I am delighted to once again present a guest blog post from my friend and co-author, Dr. Joseph Rikhof, the recently-retired Manager of the Law at the War Crimes Program, Justice Canada. Below he discusses the Supreme Court of Canada's recent decision in India v. Badesha, a closely-watched case on the controversial topic of diplomatic assurances in extradition cases. Prof. Joanna Harrington and I blogged on the BC Court of Appeal's decision in the case, which you can read here.
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Assurances in extradition law; the recent decision of the Supreme Court of Canada in the India v. Badesha case
On September 8, 2017 the Supreme Court rendered a decision in the Badesha case.[1] This case involved the request from India to have Surjit Singh Badesha and Malkit Kaur Sidhu extradited to stand trial for conspiracy to commit the murder of Jaswinder Kaur Sidhu, whose body was discovered on June 9, 2000 in a village in the Indian state of Punjab. It was the theory of the Indian government that she had been the victim of an honour killing arranged by the accused, who are the victim's uncle and mother and both Canadian citizens living in Canada, and carried out by eleven co-accused, some of whom had already been tried in India.
After an extradition hearing, Mr. Badesha and Ms. Sidhu were committed for surrender. The Minister of Justice then ordered their surrender to India after determining, in accordance with section 44(1)(a) of the Extradition Act, that it would not be unjust or oppressive to do so. Mr. Badesha and Ms. Sidhu applied for judicial review of the Minister’s decision to the British Columbia Court of Appeal. A majority of the court concluded that it was unreasonable for the Minister to find that surrendering Mr. Badesha and Ms. Sidhu would not be unjust or oppressive in the circumstances. Accordingly, the majority ordered that the Minister’s decision be set aside and that the matter be remitted to the Minister for further consideration. The Attorney General of Canada appealed from that order.[2]
The importance of the Supreme Court decision lies in the reliance on diplomatic assurances provided by a country to where a person will be extradited and where concerns have been raised about the human rights situation in that country. In this case the appellants had argued to the Minister that the surrender was unjust or oppressive as there was no guarantee India would honour a death penalty assurance; that they would not have a fair trial in India; that prison conditions in India would be inhumane given their advanced age and health problems. The Minister had received assurances from the government of India to counter such allegations, specifically that no death penalty would be imposed; that even though a fair trial should be assumed, Canadian officials would be allowed to attend the court proceedings on request; that India would provide required medical care and medications and make every reasonable effort to ensure their safety and consular access while in custody in India.[3]
The Supreme Court indicated that the general principles with respect to assurances in extradition law are that, in assessing whether there is a substantial risk of torture or mistreatment, diplomatic assurances regarding the treatment of the person sought may be taken into account by the Minister and that where the Minister has determined that such a risk of torture or mistreatment exists and that assurances are therefore needed, the reviewing court must consider whether the Minister has reasonably concluded that, based on the assurances provided, there is no substantial risk of torture or mistreatment.[4]
The court then, relying on the jurisprudence of the European Court of Human Rights, provided the following legal framework for the acceptance of assurances from third states:
- whether the assurances are specific or are general and vague;
- who has given the assurances and whether that person can bind the receiving state;
- if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;
- whether the assurances concern treatment which is legal or illegal in the receiving state;
- the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances;
- whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the individual’s lawyers;
- whether there is an effective system of protection against torture in the receiving state, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs) and whether it is willing to investigate allegations of torture and to punish those responsible; and
- whether the individual has previously been ill-treated in the receiving state.[5]
The court was of the view that the assurances received from the government of India were sufficient within this framework, taking especially into account the fact that there was no history of India not complying with assurances given to its treaty partners; that there had been no evidence of any corruption, intimidation or torture involved in India’s investigation of Mr. Badesha, Ms. Sidhu or any of the eleven co-accused; that there was no evidence that the seven co-accused found guilty at trial were mistreated while in prison in India; and that there was also no evidence that Ms. Sidhu and Mr. Badesha had personal characteristics that would make them part of a category of individuals who would be particular targets of ill-treatment in India because of their political or religious affiliations.[6] The court also took into account the nature and gravity of the crime, which was criminal conduct of the most horrific nature, namely participation in a conspiracy to commit the honour killing of a family member.[7] As a result the surrender decision by the Minister was found to be reasonable.[8]
This decision by the Supreme Court can be compared and in some respect contrasted with a recent extradition decision in the UK of July 28, 2017[9] by the High Court of Justice. This appeal case involved the second request for extradition by Rwanda for four persons involved in the 1994 genocide in that country. The first request had been denied in 2009 by the same court as a result of fair trial concerns in Rwanda related to the independence of the judiciary and the safety of defence witnesses.[10] This time, the court again refused extradition for a number of reasons, which were again related to the fairness of the trial,[11] but primarily because of the lack of sufficient legal representation for the defendants in such trials in Rwanda[12] while providing a stark comment about the general legal system in Rwanda:
… the evidence suggests that Rwanda has, if anything, become more of an illiberal and authoritarian state than was the case in 2008/2009. … we are struck by the fact that these renewed requests from the GoR, relying on improvements in the legal system, come from a state which, in very recent times, has instigated political killings, and has led British police to warn Rwandan nationals living in Britain of credible plans to kill them on the part of that state.[13]
However, in spite of these shortcomings in the legal process in Rwanda, the court was of the view that they could be remedied by the government of Rwanda providing assurances while echoing some of the sentiments by the Supreme Court of Canada, but in reverse, in saying:
Given the seriousness of the offences alleged here, we are prepared to permit the Appellant a final opportunity to seek to assure the Court that credible and verifiable conditions will be in place, to overcome the legal bar to extradition upheld above. It should by no means be assumed that such assurances will successfully overcome the bar to extradition given the historical failure of the Appellant to cooperate in prosecutions in England, the serious concerns articulated earlier in this judgment, the length of time that has passed and the inherent difficulty of being able to rely on assurances. However, it seems to us right that the opportunity should be afforded to the Appellant to persuade us that satisfactory assurances can be given. Given the very long history here, there can be no question of any long delay before the matter is finally resolved.
On the facts of this case, any successful future assurances or guarantees would have to be detailed, formal and underpinned with significant diplomatic weight. They would have to include at least (1) adequate funding for investigation and development of defence cases and for representation in Court by experienced and properly resourced advocates, (2) assurance of admission to the Rwandan Bar for suitably qualified and experienced foreign lawyers as defence counsel, where desired, and (3) inclusion of at least one non-Rwandan judge in any trial, such judge to be suitably experienced and independent of any connection with the Government of Rwanda (for example an existing judge of another relevant international Court or tribunal).[14]
By way of post-script to the decision of the Supreme Court of Canada, firstly, the case in question has not resulted in the extradition of Badesha and Sidhu; while in transit in Toronto on their flight from Vancouver to India, the Court of Appeal of British Columbia agreed on September 21, 2017, to hear further arguments re their surrender, as a result of which they were returned to Vancouver and remanded into custody.[15]
Secondly, with respect to assurances, this notion also became a factor to consider in three Ministerial Directions on September 25, 2017 by the Minister of Public Safety to the RCMP, CSIS and CBSA with the title “Avoiding Complicity in Mistreatment by Foreign Entities”; two of the three appendices to these directions state the following:
When there is a substantial risk that disclosing information to a foreign entity would result in the mistreatment of an individual, and officials are unable to determine if that risk can be mitigated through, for example, the use of caveats or assurances, the matter will be referred to the President of CBSA/Director of CSIS/Commissioner of the RCMP for decision.[16]
FOOTNOTES
[1] 2017 SCC 44.
[2] Paragraphs 1-3 of the decision.
[3] Paragraphs 13-19.
[4] Paragraph 46.
[5] Paragraph 51. For a recent analysis of diplomatic assurances, see Mariagiulia Giuffré, “Deportation with Assurances and Human Rights, The Case of Persons Suspected or Convicted of Serious Crimes, 15 Journal of International Criminal Justice (2017), 75-95.
[6] Paragraphs 58-65.
[7] Paragraph 66.
[8] Paragraphs 67.
[9] Government of Rwanda v Nteziryayo & Ors [2017] EWHC 1912 (Admin).
[10] Vincent Brown aka Vincent Bajinja and others v. The Government of Rwanda and The Secretary of State for the Home Department (2009) EWHC 770 (Admin). Between October 2008 and May 2009 courts in Germany, France, Switzerland and Finland had also refused extradition for similar reasons until in May 2009 Sweden reversed this trend, which was upheld by the ECtHR in the case of Ahorugeze v. Sweden, Application No. 37075/09. That time, a number of countries have extradited or deported persons to Rwanda, namely Norway, Denmark, Canada and the Netherlands (see Government of Rwanda v Nteziryayo & Ors [2017] EWHC 1912 (Admin), paragraph 156 with a detailed overview of the trials of those persons in Rwanda in paragraphs 157-207).
[11] Government of Rwanda v Nteziryayo & Ors [2017] EWHC 1912 (Admin), paragraphs 234-261.
[12] Idem, paragraphs 377-380.
[13] Idem, paragraph 370.
[14] Idem, paragraphs 382-383.
[15] See Ottawa Citizen, September 22, 2017, page NP3; see also India v. Sidhu, 2017 BCCA 333.
[16] See https://www.publicsafety.gc.ca/cnt/trnsprnc/ns-trnsprnc/index-en.aspx, Appendices A and B.