Monday, 5 January 2015

The Need for a Universal Criminal Code for the Expediting of Worldwide Extradition Procedures

On May 3, 1995, I addressed the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Cairo about the need to expedite worldwide extradition procedures. What follows is my speech before the world’s nations present at that Congress.

Just over twenty-one years ago, an American pharmacist working in his own pharmacy in Hamilton, Canada, was driving his car home one night and he ran over a small boy. He stopped his vehicle and looked under his car and notwithstanding the fact that the boy was wedged under his car, he got back into his car and drove away. Several blocks away, the boy became unlodged from the underside of the speeding car. By the time the shocked witnesses got to the boy, he was already dead. When the pharmacist arrived home, he told his wife that he had run over a child and didn’t stop to render aid and that as a result, the police would be arriving shortly to arrest him. Within an hour, he and his family had left their home and within an hour after that, they had returned to the United States

The local police attempted to extradite him back to Canada to face the charges of dangerous driving and fail to remain at the scene of an accident but the state he lived in refused to honour the police request for his extradition because that state didn’t have those two specific crimes in their criminal code. The closest many of the states have in their codes that relate to those two Canadian crimes are, vehicular homicide and hit and run. 

The general public of both Canada and the United States were extremely upset when they realized that because of this anomaly in our two country’s extradition laws, it was then and still is possible for persons who commit terrible crimes in one country, to flee to another country and literally escape punishment.

And this glitch in the extradition procedures (in what should otherwise be a relatively simple procedure) is occurring because the nations of this world do not have a common or universal criminal code in which all nations would recognize. As a result, criminals are committing crimes in various countries and then fleeing to other countries to escape the consequences of their crimes. The victims  (if they survive) and their families too, suffer from the injustice of it all and ask the question that gnaws at us all, “Why?” 

Why, indeed.  Why would a state in one country, which might have charged this criminal with vehicular homicide (had the crime occurred there in that state) refuse to extradite him to a country where the fugitive would have been charged with the lessor charge of dangerous driving?

The answer is because that particular state didn’t have a crime on their books called, ‘dangerous driving’ or ‘fail to remain’ and for that reason, they didn’t want to extradite him. Had he been charged with vehicular homicide and hit and run, (charges that don’t exist in Canada but do in that state)  then that particular state would have cooperated with Canada and extradited the fugitive back to Canada.  Because of this inconsistency between the two criminal codes, a man who dragged a young boy to his death while fleeing from the scene of an accident was not returned to Canada to answer for his horrible crime until 20 years had elapsed. He was eventually returned to Canada because after all those years had passed, that particular state finally enacted legislation to included those two crimes in its criminal code, the very crimes the fugitive was originally charged with twenty years earlier when he was fleeing Canada.

It is conceivable however that he may never have been returned to Canada to face Canadian justice. For example, he might have died in the interim or alternatively, moved to another state where the second state didn’t have those two particular crimes in their criminal code or during those twenty years, he could have changed his name and vanished forever somewhere amongst the quarter billion people in the USA.

In Canada, a man who rapes a woman is no longer charged with rape but
instead, he is charged with sexual assault. But to quote Shakespeare—a rose is a rose by any name.  Rape is also rape by any name so I ask you rhetorically, would it be proper for Canadian authorities to refuse the extradition request of another nation to send a rapist back to that country for trial when the two countries do not both jointly use the words rape or sexual assault in their criminal codes?  I think not.

Of course there are many other kinds of crimes that go under different names in the nations of the world. Time doesn’t permit me to go through them in length but I will compare the terms of some of the crimes in Canada and compare them with those of Israel.

What Canada calls ‘blasphemy’, the Israelis call, ‘insult to religion’. What Canada calls, ‘anal intercourse’, Israel calls it, ‘sodomy’. What Canada calls ‘criminal negligence causing death’, Israel calls it, ‘homicide by carelessness’. What Canada calls ‘perjury’, Israel calls it, ‘false swearing’.

If you take a close look at these kinds of crimes, no matter under what terms they are referred to, you will realize that there really isn’t any difference in the kinds of crimes that these two countries define in their respective criminal codes.

For example, isn’t sodomy the same as anal intercourse? So if an Israeli seizes a young victim in Canada and the perpetrator has anal intercourse, (a Canadian term for the crime) with the young victim, and the perpetrator flees back to Israel, would the Israeli authorities be right in refusing Canada’s request to extradite the perpetrator back to Canada simply because Israel doesn’t have in their criminal code, the offence of ‘anal intercourse’ since the actual term used in that country is ‘sodomy’?  Such a decision would not only be ridiculous but it would result in a terrible injustice to the victim who suffered from such a crime. Let me be quick to assure you ladies and gentlemen, I have no reason to believe that an Israeli would commit such a crime on a young person in Canada—I am merely creating a ‘what if’ scenario and asking a rhetorical question.

Canada and Israel however do have similar terms for similar crimes such as, theft, assault causing bodily harm and counterfeiting, just to name a few.

These two countries also have crimes in each of their criminal codes that do not exist in both of their criminal codes. For example, in the criminal code in Israel, it is a crime to make someone undergo ‘compulsory labour’ whereas in Canada, no such crime exists.

If having a universally accepted criminal code that can be used for expediting the extradition procedures between countries is to succeed, then work must begin on it now.

And we should,  in my respectful opinion, begin with choosing those crimes that are so serious, it matters not how they are described in each country. 

For example, if ‘first degree murder’, (that is planned murder or the murder of a police officer or prison guard on duty) is described thusly in one country and another country describes the same kind of crime as ‘capital murder’ or ‘homicide in the first degree’, what difference is that going to make to anyone, especially the victim?  The planned killing of another human being, is murder, homicide; call it what you will, the end result is exactly the same.

The same goes for the crime of rape. What difference is it if the victim is raped or sexually assaulted?  Ask the victim if she can differentiate between the two. Tell the victim that her rapist will not be returned to her country for trial because in his own country, a woman isn’t raped—she is sexually assaulted.

If a drunk who drives a motor boat at a high speed through  a large number of swimmers and your child is one of those swimmers and she and three others die as a result of that drunk’s dangerous drunken behaviour, how will you feel if he is charged with criminal negligence causing death, then flees to his own country and then you are told that he will never stand trial for that crime because his own country doesn’t have such a crime in their criminal code—that country calls it homicide by carelessness?  You will curse not only the drunk who killed your child but also the country that appears to be preventing you from obtaining justice.

I am well aware of the complexities facing all nations of the world over this highly contentious area of international law. The problems facing us all are enormous and will not be solved as quickly as we would all hope. Some problems may be overwhelming and we may never see them resolved.

For example, I know that a lot of countries will refuse to extradite a fugitive from another country, if by returning him to face trial, if when convicted, he will be executed by being tortured to death. Most will refuse to extradite a fugitive who will, if convicted, have a limb chopped off. And I doubt that many countries will return an accused person to another country to face a trial of blasphemy, if his conviction will result in him being hanged nor will one be returned if he or she will be stoned to death for adultery.

Each country must decide how they want to treat the fugitives who escape their own countries and seek refuge in theirs.  If it is against the moral fibre of their peoples to send a fugitive back to his own country where he will, if convicted, suffer an inhumane death, then so be it.

We as a community of nations must preserve the peace and tranquility of not only our own nations but of the world community as a whole and we all share this one common goal. It is for this reason that we must as a family of one, think alike and agree, as most families do, on the major issues that would cause concern amongst us.  We all share the desire for justice and the willingness to cooperate with one another to bring about the preservation of peace and tranquility that is so difficult to achieve these days.

Those of us participating in this United Nations Ninth Congress in Cairo have a unique opportunity to consider the prospect of asking the United Nations Secretariat to conduct studies and conferences around the world for the next five years for the purpose of creating a basic universal criminal code that will be recognized and adopted by all nations so that the extradition of fugitives will be the rule rather than the exception. The turn of the century is but five years from us and what a grand beginning it will be when during the first year of the year 2000, the problems incumbent with extradition procedures, will go the way of Small Pox—completely eradicated forever.

For this reason, I sincerely hope that the delegates seriously consider bringing in a resolution for the purpose of instructing the U.N. Secretariat to prepare for the Tenth Congress, a universal criminal code that will do to the problem of conflicting extradition procedures, what the needle did to the problem of Small Pox. 

Today many nations recognize that international common law doctrines as well as general principles of law provide nations with grounds to exercise universal jurisdiction over individuals charged with committed acts of genocide, crimes against humanity, and other war crimes beyond the serious violations outlawed by the Geneva Conventions. Universal jurisdiction is also applicable in war crimes committed in non international conflicts, summary executions, forced disappearances, and torture. Increasingly, we come to understand that nations not only have authority to exercise universal jurisdiction in such crimes, but also, the duty to do so or to extradite perpetrators to nations that are capable of exercising that jurisdiction.

The development of international criminal law is imperative to disbursing commensurate global justice. Social control is predicated on the assumption that law-abiding citizens will be protected from law-violators via criminal prosecution and eventual punishment brought about by the extradition of offenders back to the countries where they committed the crimes. The obligation to develop adequate enforcement mechanisms is perhaps more essential internationally because of the injustice that will result if the criminals are not prosecuted where the crimes were committed.

There should be no dispute that certain crimes are of such horrendous proportion that they not only violate domestic statutory law, but these crimes are such that the international community as a whole finds particularly abhorrent. Though practiced all too frequently, crimes such as murder, child molestation, rape, terrorism, etc., will go unpunished if the nations as a community do not agree upon a some system that will make it possible for one nation to recognize another nation’s needs to extradite criminals, irrespective of how they define the criminal law that has been breached.

I believe that an international criminal code is the means in which this problem can be solved. Once it is established, each nation can compare their own criminal codes with the universal one and match the appropriate crimes in their codes with those stated in the universal criminal code. This way, the extradition of criminals will be simplified and justice will prevail. 

Universal cooperation requires not only mutual assistance in identifying internationally recognized prohibited criminal behavior, but also prosecuting all offenders to the fullest extent permitted by mutual cooperation from all nations. Anything less than full criminal law enforcement diminishes the severity with which the international community regards these criminals.

Despite my presentation, the delegates at the Congress didn’t bring in a resolution to direct the UN Secretariat to begin creating a Universal Criminal Code.

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