JB TJIVIKUANAMIBIA’S BID to extradite three Icelandic nationals suspected of involvement in the multimillion dollar ‘Fishrot’ scandal has been rejected by Icelandic prosecution authorities, according to media sources.
More than US$650 million was flagged as suspicious proceeds involving Namibia’s state-owned National Fishing Corporation of Namibia (Fishcor) and Icelandic fish processing firm Samherji. It is alleged Samherji paid bribes to Namibian politicians and business personalities to gain unfair advantage and access to Namibia’s horse mackerel quotas.
In international law, extradition is a formal, diplomatic process by which one state, at the request of another, effects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge. It enables governments to bring fugitives to justice but can be fraught with political tension, even when a treaty is in place.
Extradition is not a recent creation. Over thousands of years, countries have developed processes to apprehend and transfer accused and convicted persons to other jurisdictions to face trial and/or imprisonment. The concept of extradition was known even in the times of pharaonic Egypt.
The contemporary process of extradition typically involves a treaty between two states. It is not governed by an international treaty regime or overseen by the United Nations. It is done as a matter of comity rather than because of a legal obligation.
There are a number of bottlenecks literally suffocating extradition treaties that need to be remedied. These include the role of reciprocity in the law of extradition; the requirement of dual criminality – the principle of “non bis in dem” or double jeopardy (no legal action can be submitted twice for the same course of action) – the nature of evidence required to support an extradition request; and the nature of punishment, particularly torture or execution, if an accused person is extradited.
The recent trend in extradition has been to favour bilateral treaties, on the assumption that one country will have a stronger bargaining position to obtain more favourable treatment for persons extradited, or greater guarantees that the process will be smooth and fast. However, many countries favour a multilateral approach, with a large measure of agreements on criminal offences subject to extradition, and with a bilateral approach only acting as a supplement.
There are too many policy dangers to the bilateral approach to allow it to function alone. Firstly, this is because policy, as a political creature, fluctuates a great deal in response to the state of a relationship between two countries. Secondly, there are practical difficulties. As the number of bilateral treaties increases, it becomes more difficult to negotiate new treaties and it becomes more difficult for those in the judicial and prosecutorial areas to administer them adequately.
Given the fluctuating nature of the interstate relationship on which bilateral relations are based, there can be no development of jurisprudence with any degree of consistency. In almost every country there are too few people in the departments and ministries of foreign affairs and justice who administer the mechanics of extradition.
Additionally, far too few people at prosecutorial level are familiar with extradition and its intricacies. As a result, the process becomes more difficult to implement. Political officials are thus occasionally tempted to find short-cuts rather than strengthen the process in a way that does not curtail the rights of the accused or violate the rights of sovereign states.
Evidence of high profile cases across the globe highlight the deeply politicised nature of extradition we face today. Typically, countries will grant extradition only if the alleged crime is punishable in both countries. Moreover, most countries refuse to extradite people accused of certain political crimes such as treason, sedition, and espionage.
Some countries also apply double jeopardy exceptions, refusing to extradite persons who have already been punished for the crime involved. Also, a growing number of nations refuse to extradite people who may face torture, execution, or other human rights violations in the requesting nation. In general, the lack of reciprocal treaties has proved to be another roadblock to extradition.
In summary, Namibian authorities have indicated they want Samherji officials extradited to appear in court in connection with the Fishrot scandal. Unfortunately, Iceland’s laws do not allow for extradition of its citizens. Countries without treaties have the right to refuse extradition.
International relations often become strained when the extradition of criminals or suspected criminals is refused. Correctly or not, countries refused extradition often claim the refusal is based on politics rather than law. Given this predicament, an effective international instrument such as the Model Treaty on Mutual Assistance In Criminal Matters could be explored.
