13 Extradition is the obligatory departure of a person from one State to another, at the request of the latter State, for the purpose of bringing him or her to justice or of implementing a judgment, if the person concerned has already been sentenced and convicted. While expulsion is in the interests of the expelling State for certain purposes, such as national security, public order, the prevention of crime or illegal migration, extradition is in the interest of the requesting State and only for the purpose of criminal justice. Expulsion, extradition, and the involuntary return (refoulement) of a refugee or migrant to his or her country of origin are, in contrast to rendition and similar forms of illegal removal of aliens from one State to another, legal concepts which, if implemented in pursuance of a valid decision reached by a competent authority in accordance with domestic law and respecting the minimum guarantees against arbitrary removals established by international law, a lawful practice between States under international law. Such minimum guarantees include the prohibition of refoulement under Article 3 of the Convention,15 (p. 297) the protection of privacy and family life under Article 17 CCPR, the right to remain in one’s own country under Article 12(4) CCPR, or the procedural rights of aliens to a hearing, an appeal, and proper representation under Article 13 CCPR. In addition to international human rights, refugee, and criminal law, the respective rights and obligations of the requesting and the requested State vis-à-vis each other and in relation to the individual concerned are regulated in various bilateral and multilateral extradition treaties.16 The decision to expel or extradite an individual to another State is, however, regarded as an essential element of State sovereignty, and States are extremely reluctant to accept any legal obligations to expel or extradite.
14 The Convention is based on the desire to combat impunity for the crime of torture and to eliminate safe havens for torturers. This requires the obligation of all States parties to establish jurisdiction without loopholes as well as their obligation to mutual judicial assistance and willingness to extradite alleged torturers to other States with a more convincing jurisdiction. The main purpose of Article 8 is, therefore, to remove, as far as possible, any legal obstacles to extradition and to create the legal possibility for States parties to extradite alleged torturers to other States parties.17 The Committee regularly noted with concern State parties’ failure to enact legislation complying with these obligations under Article 8.18
15 The travaux préparatoires reveal two different legal approaches dominating the drafting process. One is represented by Article X of the IAPL draft, which contains an order of priority among various grounds of jurisdiction19 and an obligation of States parties to extradite the alleged torturer to a State with a stronger jurisdiction. The other is expressed in Article 14 of the original Swedish draft which, rather than establishing a duty to extradite, gives priority to the duty of the State, where the alleged offender is present (the forum State), to prosecute and only provides the forum State with an alternative option, if requested, to extradite. Since this principle of aut dedere aut judicare had already been accepted and developed in a considerable number of anti-terrorism treaties and does not require any legal obligation to extradite, it finally prevailed over the first concept.20
16 The Austrian position21 in the Working Group that both legal approaches are complementary and should, therefore, be combined, and which was later maintained as illustrated by the failure of the Austrian authorities to arrest Mr. Al-Duri in 1999,22 overlooked the different philosophies behind these two approaches. The ‘prosecution approach’ seems more practical insofar as extradition involves a complex and lengthy procedure with many legal obstacles. On the other hand, the ‘extradition approach’ seems more practical as the territorial or national State usually has better access to (p. 298) evidence than a State exercising jurisdiction under the universality or passive nationality principle. With respect to torture, experience shows, however, that the territorial or national State often has no political interest in prosecuting perpetrators of torture, since they acted in accordance with an explicit State policy or at least with the acquiescence of the Government.
17 The ‘extradition approach’ demands that all legal obstacles to effective extradition be removed. This can be seen from the attempts in Article X of the IAPL draft to make the Convention a proper legal basis for extradition and to establish the obligation of States parties to recognize torture as an extraditable offence. Article 14 of the original Swedish draft did not contain any similar provisions. Since the ‘prosecution approach’ of the Swedish draft also recognized the alternative of extradition, it was also essential that the Convention created, as far as possible, the legal possibility to extradite. However, as the majority of the Committee against Torture made clear in its admissibility decision on the case of Rosenmann v Spain, Article 8 does not impose any obligation on a State party to seek an extradition, or to insist on its procurement in the event of a refusal.23