Erga Omnes

Governments often prefer deporting foreigners accused of international crimes than trying them on the basis of universal jurisdiction. Their rationale is usually practical, focused on the procedural and political costs of holding trials far away from where the crimes occurred.  These are real concerns.  But the penchant for deportation may also reflect a more complicated desire: constructing the image of a national space disconnected from heinous political crimes, while banishing suspects to a jurisdiction more likely to inflict punishment.

Note a couple of cases from the last few weeks:

• Léon Mugesera was detained in Québec and is awaiting deportation to Rwanda, where he’s wanted for using vitriolic hate speech to incite genocide; he’s spent much of the last 18 years battling the legal system and resisting deportation from Canada.
• Also this month the European Court of Human Rights ruled that Britain can’t deport Abu Qatada to Jordan where he’s wanted on charges of terrorism—not because of well-founded fears of torture and ill-treatment, since diplomatic assurances have presumably guaranteed against that—but because a trial may rely on torture-gathered evidence.  If Jordan convinces Britain otherwise, the ECHR could overturn its decision on appeal.

In legal systems constrained by high evidentiary thresholds or weak rule of law, even those presumed guilty of international crimes can escape severe punishment, triggering public outcry and a request for cross-border transfer.  In such cases, extradition isn’t merely a regulated relocation of authority, or a shift to the jurisdiction best situated for delivering justice.  It can be a kind of forum shopping by states, intent on placing suspects in the jurisdiction most likely to mete out punishment.