Ordinarily, European-related extradition qualms create few serious trans-Atlantic tensions. For one thing, American prosecutors often are willing to forego seeking the death penalty against a given criminal defendant, or let an individual simply be tried in Europe. To the extent that there has been a dialogue on the subject, it has been almost entirely one-sided and ritualized. The Europeans blast the United States for its death penalty practices, while the American diplomats, most of whom themselves do not espouse strong pro-death penalty views, offer lukewarm rejoinders.
Meanwhile, the Europeans also have been quite successful at creating an impression that, on death penalty-related issues, their hands are tied by law. Since the respect for law plays an exceptional role in the American political and constitutional tradition, this European approach has also helped to mitigate Washington's anger. However, when examined, the European legal claims prove dubious - neither the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, nor the 1983 Protocol to the Convention (dealing with the abolition of death penalty) prohibit extradition of suspects from Europe to the so-called "retentionist" countries that continue to impose the death penalty.
Ironically, the leading European death penalty extradition case, Soering v. United Kingdom, decided in 1989 by the European Court on Human Rights, held that the Soering should not be extradited to Virginia (where he faced the death penalty), primarily because he was likely to spend many years on death row, in less than ideal conditions. Under these circumstances, his extradition violated the Convention's prohibition against inhuman and degrading treatment. The court did not say that an extradition to a retentionist state was per se unlawful.
Moreover, given the European attitudes on other policy matters, their claim that, in dealing with war on terrorism-related issues, their hands are tied by the domestic constitutional and legal culture is difficult to accept at face value. For example, when attacking the United States for failing to embrace the ICC, the European commentators and officials seemed profoundly unimpressed with the claims that, ICC's policy merits aside, the United States Constitution poses insurmountable legal obstacles to the American participation in that institution. These observations are derided as an example of American constitutional "provincialism", that cannot be allowed to stand in the way of international justice.
Even closer to home, when dealing with the ICTY, the Europeans displayed no patience for the arguments made by Yugoslavia that its constitution prohibited the extradition of Slobodan Milosevic to the Hague. Indeed, they were perfectly pleased to secure an extra-judicial transfer of Milosevic, arranged by the government of Serbia, in defiance of the decisions by the Yugoslav national courts. The point here is not, of course, that Milosevic should not have faced the music in The Hague. The proper way, however, to effect this outcome would have been for Yugoslavia to change its constitution first and then go through an appropriate extradition process. In short, domestic constitutional niceties seem to matter to the Europeans only when dealing with American extradition requests.
(To be continued in the next issue)
Messrs. Rivkin and Casey are partners in the Washington, DC office of Baker & Hostetler LLP. They served in a variety of positions in the Reagan and Bush-41 Administrations, including the White House Counsel's Office and the Department of Justice. Mr. Rivkin is an Associate Fellow of The Nixon Center.