This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, rights, and obligations that are to be vindicated. If a fugitive is to be protected, it is because the state wills it so. The second approach considers the individual, at least to a degree, to be a subject of international law. It is the fugitive's interests and rights that are at issue and that human rights law protects. Thus, extradition law (treaties, custom, and domestic law) should include certain specific, basic human rights clauses or rules, through which the fugitive, if he obtains, will be exempt from extradition. These may include specific, wholesale human rights clauses in extradition treaties and domestic extradition laws. It can be argued that, even without a specific clause, established international human rights rules are incorporated by reference.
The battle between these approaches illustrates the tension between the value of protecting individual human rights in the criminal justice arena and the need to provide effective international law enforcement. Most recently, the process that leads to the English decision not to extradite Augusto Pinochet to Spain exemplified the tension between these values.
It is interesting to wonder about the apparent oddity that many, though not all, human rights activists, who traditionally have been quite vigorously libertarian in protecting rights of individuals facing criminal justice systems of various nations (and, presumably still are in the run-of-the-mill cases), have become pro-prosecution hawks and quite weak on the incorporation of broad human rights protections for those brought before international tribunals or otherwise prosecuted for the more heinous international crimes. Some of the reactions to the Pinochet decision are representative. I will argue that if we are seriously going to try to end impunity for crimes against humanity and war crimes, it must be done in a way that is consistent with the highest protection of human rights interests for those being prosecuted. Otherwise, the system will ultimately fall of its own weight or become a tool of repression itself. If we are not scrupulous in protecting the accused from abuses and deprivation of civil liberties and ensuring related human rights protections for the accused during extradition, investigation, and trial, we will ultimately condemn the viability of human rights and criminal justice.
91 J. Crim. L. & Criminology 1 (2000).
Blakesley, Christopher L., "The Autumn of the Patriarch: The Pinochet Extradition Debacle and Beyond- Human Rights Clauses Compared to Traditional Derivative Protections Such as Double Criminality" (2000). Scholarly Works. Paper 332.