Amsterdam School of International Relations 2004 - 2005

Advanced International Law Course

Extradition from the European Union to the United States, in death penalty cases

Professor: Avril McDonald

Student: Beatrice Craciun

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Content 1. What is the legal question? What is the problem? 2. Introduction 2.1. The background of the extradition in death penalty cases 2.2. The history of the death penalty 3. Presentation of the Soering versus United Kingdom case 3.1. Abstract 3.2. Facts and figures 3.3. The law and relevant practice in the United Kingdom 3.4. The law and relevant practice in Virginia, the United States 3.5. The law and relevant practice in the Federal Republic of Germany 3.6. The procedures for the Commission 4. International Legislation 4.1. Definition of extradition and the extradition treaty 4.2. International Legislation about extradition and death penalty 4.3. Evolutions after September 11 - Military Order: Detention, Treatment, and Trial of Certain non-citizens in the war against terrorism 4.4. Conclusion concerning our case – international law 5. The International public opinion concerning the death penalty in the United States and in the European Union 6. The terrorist extradition case, after 11.09.2001

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6.1. What is terrorism? 6.2. Abu Hamsa case and its implications 7. Adequacy of extradition solution to post September 11 security threats, in particular transnational terrorism 8. My Conclusion about extradition solution

Bibliography

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1. What is the legal question? What is the problem? As a factual situation, now it is not possible to extradite somebody from The European Union to the United States if the defendant can face the death penalty, even if the person is the most wanted terrorist or criminal. It is possible that the United States wants to execute him/her for his/her crimes, but the European Union cannot accept this, according to all treaties, declarations and charters signed. As we know, the conventions are living instruments; these are possible to be changed. But in order to change them, we must do an ethical change, which helps the international community to be more correct and secure. At the same time, the international community must face with a threat without precedent, the terrorism. The question is if this new international threat is enough to propose a change in treaties and rules concerning extradition. Can we consider the international rules obsolete? Is the impossibility of the United States to judge the terrorists who attacked it an infringement of its sovereignty?

Can we consider that terrorist threat is an emergency situation (or even a war) for the international community, not only for the United States? In fact, after September 11 events, the United States even has declared “the war against terrorism” and “the national emergency situation”.

In 2002, through the Protocol 13, the European Union interdicted the extradition in a country where it is possible that defendant can be executed, even during the war or national emergency situation. The war against 4

terrorism is not the only problem between two countries; it is a global threat, to the international community. Can we adopt another protocol (or treaty) that permits the extradition of terrorists in the United States, without provisions against death penalty?

2. Introduction 2.1. The background of the extradition in death penalty cases I would like to present a background of the extradition in death penalty cases, the change in the rules of law about this and the effect of a new threat, which is terrorism.

The law is different from country to country; in some countries the death penalty is considered to be as a possible punishment in some cases, for example, serial crimes or double crimes. If a national citizen makes this infraction in a country and the victim has the same nationality, we can say it is simple to know which rule is applicable. But if the criminal and the victim has different nationalities and the crime is made in another country, the situation is more complicated; and if the possibility of death penalty exists in one country and in another does not, the situation becomes a very hard issue (due to a lot of moral implications, national and political interest).

I have decided to write about the United States of America and the European Union because in the United States of America (in almost all states) the death penalty is allowed and in the European Union it is not, regardless the 5

extent of the crime or if it is peace time or war. In this situation, it is very important if it is moral and legal to extradite from the European Union to the United States, when the defendant can face the death penalty.

In the paper I will analyze the history of death penalty in general. Because in the past, the movement from one country to another was not so easy (because of the transport, the costs and usual behavior) and the death penalty was presented in almost all countries, the problem about extradition treaties was very rarely. After that, when the internationalization made possible the movement of people from one country to another country in a very easy way, the borders are more and more open, the possibility to go for a short period (let us say one week, during the holidays) or for a long time in another country increased. More and more, we live in a global world. The situation about international criminal law has changed and some crimes request the extradition. But the problem is that for the same crime, punishment can be different. For this kind of situation, treaties and rules are already done.

In the history, death penalty in all countries from the European Union was allowed; country after country has changed this situation and now, in all countries from the European Union, the death penalty is forbidden. The situation in the United States is different; in almost all states the death penalty is allowed, as we can see on the map.

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Source:

http://www.amnestyusa.org/abolish/states/index.html

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Amnesty

International USA

2.2. The history of the death penalty The death penalty is a sentence, which imposes to the defendant, after he or she was judged in front of the court, to be put to prison. He waits for the execution, until then he or she stays in the death row. After that (in America it is possible to have 7 – 8 years) he or she is executed, using one of these methods: lethal injection, electrocution, lethal gas, hanging or firing squad.

The first rule where the death penalty was allowed like a punishment was in the Code of King Hammaurabi of Babylon in eighteenth century B.C. The punishment with the Death Penalty in America was influenced by the Britain and the first execution in America was in Virginia in 1608. After a period (1960 – 1976) when the death penalty in America was in some state forbidden, in 1977 the death penalty was reinstated. 7

Nowadays, 78 countries have as a possible punishment the death penalty. All over the world, in 2004 was around “3,797 executions in 25 countries around the world: China – at least 3,400 executions; Iran 159; Vietnam 64, United States 59, Saudi Arabia 33, Pakistan 15, Kuwait 9, Bangladesh 7, Egypt 6, Singapore 6, Yemen 6.”1 So, as we can see, the United States is in top 10 of the countries where executions were, but it is important to remark that the biggest number of executions was in China, with at least 3,400 from 3,797 in total. In the United States 3,700 prisoners wait for the execution in the death row.

3. Presentation of the Soering versus United Kingdom case 3.1. Abstract In 1989, the European Commission of Human Rights, the Government of the United Kingdom and the Government of the Federal Republic of Germany brought before the European Court of Human Rights. The Court was requested to make a decision if the facts of this case represent a breach by the two governments of the Convention for the Protection of Human Rights and Fundamental Freedoms (article 3, article 6 and article 13).

3.2. Facts and figures In March 1985, Jens Soering, German national, killed William Reginald Haysom and Nancy Astero Haysom. The crime was very violent; the
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Execution around the world,http://www.deathpenaltyinfo.org/article.php?did=127&scid=30#interexec

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defendant used a knife, with which he hit the nap, the throat and the chest of the victims. The victims were his girlfriend’s parents. The crime was committed in Bedford district, Virginia, United States. After this, the defendant together with his girlfriend (Elizabeth Haysom, Canadian national) left Virginia in October 1985. Mr. Soering was born in 1966 and he was 18 when he killed Elizabeth’s parents.

In April 1986, they were arrested in the United Kingdom, for check fraud. For three days, an American detective has interrogated the defendant in June 1986. He recognized both crimes, in presence of the American detective and other two Britain police officers. Because the Haysoms did not agree with their relationship, the defendant and Miss Haysom planned to kill them. After they had prepared an alibi at Washington, the defendant went to the Haysoms house. During the discussions, the Haysoms affirmed again their opposition to the relationship; they started to fight and Mr. Soering killed them. He was accused by two capital murders and two non-capital murders, separately.

In August 1986, the Government of United States of America asked the defendant’s extradition, a request based on the Extradition Treaty between the United States and the United Kingdom, from 1972. After the defendant fulfilled the punishment for check fraud, he was arrested again by the British police officers, according to the Extradition Act from 1870 (section 8).

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In October 1986, the British Embassy in the United States of America asked federal authorities, as follows: "Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance, in accordance with the terms of ... the Extradition Treaty, that, in the event of Mr. Soering being surrendered and being convicted of the crimes for which he has been indicted ..., the death penalty, if imposed, will not be carried out.

Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed, should not be executed."2

In December 1986, a German prosecutor interrogated the defendant. The prosecutor declared that "he had never had the intention of killing Mr. and Mrs. Haysom and ... he could only remember having inflicted wounds at the neck on Mr. and Mrs. Haysom which must have had something to do with their dying later"3 and that in the period prior the murders "there had been no talk whatsoever [between him and Elizabeth Haysom] about killing Elizabeth's parents"4. In February 1987, a German prosecutor issued an arrest warrant against Mr. Soering and the German Government asked the
2 3

Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/, Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/, 4 Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/,

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defendant’s extradition, according to The Extradition Treaty between Germany and the United Kingdom, from 1872. The American Government asked to have priority for its extradition’s request, against the German Government.

In May 1987, Elizabeth Haysom was extradited in the United States, where she was convicted to 90 years’ detention. In order to obtain the Mr. Soreign’s extradition, Mr. Updike (prosecutor of Bedford district, Virginia) declared, on oath: "I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in Bedford County, Virginia ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out."5

In June 1987, took place the committal proceedings at the Bow Street Magistrates’ Court. The defense presented the report of a psychiatric expert (doctor Bullard) with following conclusion: “Miss Haysom had a stupefying and mesmeric effect on Soering which led to an abnormal psychological state in which he became unable to think rationally or question the absurdities in Miss Haysom's view of her life and the influence of her parents. ... In conclusion, it is my opinion that, at the time of the offences, Soering was suffering from an abnormality of mind which, in this country, would constitute a defence of 'not guilty to murder but guilty of manslaughter." 6
5 6

Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/, Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/,

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The Instance did not consider the report as relevant and decided to accept the extradition request. The recourse was repealed and the State Secretary signed the extradition order. The extradition was suspended, on request of the European Commission and the European Court.

3.3. The law and relevant practice in the United Kingdom The death penalty does not exist. The British instances are not allowed to judge the cases in which foreign citizens committed infractions outside the United Kingdom; either Mr. Soering (German national) or Miss Haysom (Canadian national) cannot be tried in the United Kingdom. The provisions concerning the extradition between the United States of America and the United Kingdom are included in The Extradition Treaty (1972), in the Supplementary Treaty (1982) and the Exchange Notes (1986) amending the Supplementary Treaty. The article 1 of the Extradition Treaty stipulates: "each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offence [specified in the Treaty and including murder], committed within the jurisdiction of the other Party"7.

The Extradition procedures between the United Kingdom and the Federal Republic of Germany is legalized by the Treaty between both countries for the “Mutual Surrender of Fugitive Criminals” (May 1872) and amended by an
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Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/,

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Agreement (February 1960) and an Exchange of Notes (September 1978). Of course, these amendments were incorporated in the British law. After receiving an extradition request, the State Secretary can order the issuance of a warrant arrest. Article 11 from the 1870 Law stipulates that defendant can attack the verdict by recourse. The Article 12 from the 1870 Law stipulates that the signing of the extradition order is up to the State Secretary. The State Secretary has the power to reject the signing of the extradition order, even if the Court decided to extradite the defendant. Also, the Court can decide to reject the extradition order if the defendant can be inhumanly treated or punished with inhuman or degrading penalties in the destination country. In the R. versus State Secretary case, it was mentioned that “The most fundamental of all human rights is the individual's right to life and, when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."8

It is very important that the Extradition Treaty between the United Kingdom and the United States of America stipulates that “If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out."9 Also, I consider
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Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/, Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/,

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important the fact that the effectiveness of this kind of assurance has not been ever experienced. If both states requested an extradition for the same defendant, it is up to the State Secretary to decide which country has priority, in accordance with the facts, the defendant nationality and the place of events.

3.4. The law and relevant practice in Virginia, US The murder and its classification are legislated by the 1950 Code of Virginia and its amendments. In order to exercise the death penalty, the Court has to prove the two aggravating circumstances: • • Future social danger Cruelty.

Also, The Virginia Code specifies facts in mitigation: "1) the defendant has no significant history of prior criminal activity, or 2) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, or 3) the victim was a participant in the defendant's conduct or consented to the act, or 4) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired, or 5) the age of the defendant at the time of the commission of the capital offence."10 The death penalty can be assessed only if all jurors decide this. Even if the jurors requested the death
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Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/,

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penalty, the judge can change it in life sentence, based on a report and on serious reasons. The death penalty is realized by electrocution. For a limited period of time, the death penalty in Virginia was abolished, but starting from 1977, it was applied again and 7 people were executed.

The Virginia Supreme Court checks again each case in which it was pronounced the death penalty. After the appeal procedure is complete, the death penalty is executed, unless there is an execution suspended order. The defendant has the right to attack the Virginia Supreme Court’s decision at the Supreme Court of the United States. It is interesting to mention that the average period between the sentence announcement and its execution is between 6 and 8 years, in Virginia.

The Virginia state’s Governor has the right to commute the death penalty in life sentence, but from 1977 he has not commuted any sentence.

The relations concerning the extradition between the United Kingdom and the United States of America are object of federal authorities, not state authorities. In our case, only American federal authorities have the competence to assure the British authorities that the death penalty will not be announced or executed.

3.5. The law and relevant practice in the Federal Republic of Germany 15

The German criminal law is applicable for German citizens who committed an infraction in another state. Through Constitution, the death penalty was abolished. If the defendant is between 18 and 21 years and "the overall assessment of the offender's personality, having regard also to the circumstances of his environment, reveals that, according to his moral and mental development, he was still equal to a juvenile at the time of committing the offence"11. The murder is punished by detention between 6 month and 10 years, or by unlimited detention (in certain conditions). If the defendant’s maturity is in accordance with his / her age, the general criminal law is applied. The judge can impose a 10-15 years detention instead of life sentence. The defendant cannot be punished if she / he is not capable to estimate her / his actions’ repercussions (because of strong psychical or emotional turmoil). If the defendant can be punished by death penalty, the Government of the Federal Republic of Germany does not accept the extradition request, unless the government receives assurances that the death penalty will be not announced or executed. In our case, the government of the Federal Republic of Germany claimed that the American assurances would not have been accepted in Germany and the extradition request would have been declined.

3.6. The procedures for the Commission Mr Soering complained to the Commission that there is a high probability to be executed in the United States if the United Kingdom accepts the
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Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/, Soerign case

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extradition request, in spite of American assurances. In addition, he will support inhuman and degrading treatments, contrary to the Article 3 of the Convention. His extradition would be a breach of Article 6 (paragraph 3c) because of the juridical assistance lack for the exertion of the attack ways. Moreover, he has no attack’s way on the breach of the Article 3, contrary to the Article 13 of the Convention.

In August 1988, the Commission president asked the United Kingdom to not extradite the defendant until the Commission would examine the complaint. The extradition was suspended few times and the case was sent to the European Court. The complaint was admitted in November 1988.

The Commission found the breach of Article 13, but not the breach of Article 3 and the Article 6 (3c). In its report, the Commission mentioned "its caselaw that a person's deportation or extradition may give rise to an issue under Article 3 (art. 3) of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article (art. 3)"12. Also, the government of the Federal Republic of Germany sustained the Commission’s point of view.

The British Government claimed that the extradition does not imply its responsibility for the inhuman or degrading punishments that the extradited person could suffer, outside of British jurisdiction. The Court claimed that the
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Soerign case http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggrund/domme/ref00000204/,

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states have the obligation not to extradite a person if there is the risk that person could suffer inhuman and degrading punishments or treatments (punishments or treatments which are forbidden by the Article 3), in destination country. The Convention’s aim is to assure a balance between general interest of the community and the necessity to protect the fundamental individual rights. The Court cannot pronounce concerning the potential breach of the Convention.

The General Prosecutor admitted that there is a significant risk that the defendant to be executed in the United States. But also, the facts in mitigation from the Virginia Code (the age, no criminal activity, the defendant was under extreme mental and emotional disturbance and the capacity of defendant to appreciate the criminality of his conduct was significantly reduced) would reduce the risk that the defendant to be executed in the United States. The Court appreciated that the American assurances (that the defendant will not be executed) were not in accordance with Article IV of the Extradition Treaty between the United Kingdom and the United States. The Court decided: if the extradition request is accepted, its implementation is a breach of the Article 3; the implementation of the extradition request would not be a breach of the Article 6, paragraph 3 (c) 18

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it is not its competence to examine the complaint concerning the Article 6, paragraphs 1 and 3 (d)

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it was not a breach of the Article 113 the United Kingdom has to pay to Mr. Soering 26,752.80 pounds and 5,030.60 French francs (and Value Added Tax), as legal expenses

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it rejected others pretensions.

During my documentation for this paper, I have watched on Discovery Channel a very interesting documentary about Soering case. Contrary to the image that their advocates intend to promote (two young people who do not realize very well what they have done), their actions reveal something else. They have acted in a very meticulous way, planning very well their actions. They used a lot of false passports, sent letters to their friends in order to deceive American detectives, abandoned a crashed car in former Yugoslavia, and transited to a lot of countries in order to avoid their catch (not only European countries, but also Asian countries). When they were caught, they tried to deceive the British detectives with a false identity.

Even in the process in Virginia, Mr. Soering tried to put the whole guiltiness on her girlfriend; but the evidences proved his guiltiness. Presently, Mr. Soering is in an American prison for a life sentence (after he was extradited), but he was not executed.

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4. International Legislation 4.1. Definition of extradition and the extradition treaty The extradition is a formal international process different from deportation or expulsion, in which one country gives to another country a person who is accused of a crime within the territorial, nationality or protective jurisdiction of the requesting country. In order to be possible, it is necessary one extradition treaty in force between those two parties. In this extradition treaty are stipulate all details, but in our case the most important provision, which refers to the possibility or not as the defendant to face with the death penalty (in the extradition treaty between the United States of America and the European Union it is stipulated that the EU must receive enough proves that the defendant will not be executed in America after the process). In our case, the difficult situation is when the United States of America asks for an extradition of one criminal, who made crimes and now he/she is in a country from the European Union. When the US asks for the extradition, it can refer to the nationality, protective or territorial jurisdiction.

4.2. International Legislation about extradition and death penalty For the analysis why it is not possible to extradite the most wanted criminal from the European Union to the United States in order to be judged there in accordance with the American rules and the Constitution and executed (of

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course, if the court decides this), I will make a research among all charts, treaties, extradition treaties, declarations which are linked with our case.

- in The Universal Declaration of Human Rights, 1948, article 7 it is written, “No one shall be subjected to torture or inhuman or degrading treatment or punishment”

- in article 2 and article 3 of the European Convention of Human Rights (4 November 1950 – Roma) it is written, article 2, “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law” and article 3 “No one shall be subjected to torture or inhuman or degrading treatment or punishment”.

- in 1983, the Council of Europe adopted the Protocol 6, trough the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibited the death penalty, this punishment is allowed only in case of war or national emergency. In 2002 (Vilnius) the Council of Europe

adopted the Protocol 13 through the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances “the death penalty shall be abolished. No one shall be condemned to such penalty or executed…no reservation may be made.”

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- the European Convention on Extradition (13.12.1957 Paris) in the article 11 - Capital Punishment it is written “If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death-penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be carried out.” So, under this article, the states that have abolished the death penalty in law or in practice, may obtain sufficient assurances that after extradition the defendant will not be executed.

- Inter-American Convention on Extradition (1981) in the article 9 obliges the signatories members not to extradite in case when the defendant can face the punishment death penalty “not grant extradition when the offense in question is punishable in the request state by the death penalty” without “sufficient assurances” against the death penalty.

- Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment 39/46 (General Assembly – 10.12.1984) in the article 3 it is written “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture”.

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At the same time, the death penalty is forbidden under the statute of the International Tribunal for the Former Yugoslavia, the International Tribunal for Rwanda or the International Criminal Court, even if the defendants are judged for the most horrible crimes like: genocide, war crimes or crimes against humanity. So, the punishment with death penalty is forbidden in every case.

The United Nations General Assembly established a Treaty on Extradition like model in 1990 in which it is written about prohibition under the treaty to extradite to a State where the death penalty is allowed “if the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinions, sex or status”, as well as “if the person whose extradition is requested has been or would be subjected in the requesting State to torture or cruel, inhuman or degrading treatment or punishment or if that person has not received or would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political rights, article 14”….”if the offence for which extradition is requested carries the death penalty under the law of the request State, unless that State gives such assurance as the requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be carried out”.

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The UN Commission on Human Rights has the same point of view regarding the assurances from the requiring States that execution will not be happened.

- The Charter of Fundamental Rights of the European Union entered into force in 7.12.2000, in the article 2, it is written, “No one shall be condemned to the death penalty, or executed” but more important for our paper is the stipulation from the same document, article 19, paragraph 2 “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or inhuman or degrading treatment or punishment”.

- One of the most important acts when we analyze the possibility to extradite one criminal from the European Union to the United States of America was adopted by the Council of the European Union (Brussels, 3 June 2003) called Agreement on extradition between the European Union and the United States of America, article 13 – Capital Punishment “Where the offence for which extradition is sought is punishable by death under the law in the requesting State and not punishable by death under the laws in the requested State, the requested State may grant extradition with the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if imposed shall not be carried out. If the requesting State accepts extradition subject to conditions 24

pursuant to this article, it shall comply with the conditions. If the requesting State does not accept the conditions, the request for extradition may be denied.”

So, the United States has more than 100 extradition treaties, and for every treaty it tried to obtain the possibility to receive the right to judge in accordance with the American Constitution and rules of law, and if the defendant is accused and the punishment is death penalty, to make it possible. But in almost all cases after years of trying, the outcome was an extradition treaty, but only under the condition that the death penalty will not be carried out. For instance, the United States and Austria adopted the extradition treaty in 1998, after 10 years of hard negotiations because Austria did not agree about the possibility as a criminal can be executed in the United States after the extradition from Austria. “In 1994 President Bill Clinton signed the Violent Crime and Law Enforcement Act that expanded the federal death penalty to some 60 crimes.”13 Some of them are very connected with terrorism, like: “Murder related to a carjacking. (18 U.S.C. 2119), Murder by the use of a weapon of mass destruction. (18 U.S.C. 2332a), Death resulting from aircraft hijacking (49 U.S.C. 1472-1473), Murder during a kidnapping. (18 U.S.C. 1201), Murder during a hostage taking. (18 U.S.C. 1203), Terrorist murder of a US national

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History of the Death Penalty Part I and II, http://www.deathpenaltyinfo.org/article.php?

scid=15&did=411#innocenceconf 25

in another country. (18 U.S.C. 2332), Murder by the use of a weapon of mass destruction. (18 U.S.C. 2332a).”14 So, we can say that the United States punishes some specific terrorist acts with federal death penalty. 4.3. Evolutions after September 11 - Military Order: Detention, Treatment, and Trial of Certain non-citizens in the war against terrorism As a direct reaction to September 11 events, American President George Bush signed an order (on November 13, 2001) concerning non-American citizens suspected by terrorism. The military commissions will try them. The liable people for this order are: “(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: “(1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as Al-Qaeda;

14

History of the Death Penalty Part I and II, http://www.deathpenaltyinfo.org/article.php?

scid=15&did=411#innocenceconf

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(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order.”15 Of course, the September 11 events had repercussions among the European countries. These countries agreed to make more efficient the extradition requests to the United States, but only if the extradited people are not convicted to death penalty. At that time, the Belgian Justice Minister pointed that the extradition is not effective unless the death penalty will not be applied: “We always have said in the European Union that the execution of the death penalty is not an option”16.

4.4. Conclusion concerning our case – international law

15 16

The Military Order http://www.deathpenaltyinfo.org/article.php?scid=33&did=224; US death penalty could prove hurdle to extradition of terror suspects from Britain http://www.deathpenaltyinfo.org/article.php?scid=33&did=334

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As we know, there is no death penalty in any member countries of the European Union. Article 3 of the European Convention on Human Rights bans the signatory countries to extradite the defendants to the countries where they can be punished with death penalty. As a conclusion, after the Second World War there were a lot of attempts to limit the death penalty cases and countries to apply the death penalty. In 1948, the United Nations General Assembly adopted the Universal

Declaration of Human Rights, the death penalty was not abolished, but attempts were effective for the proclamation of article 3 “right to life” and to protect “juveniles, pregnant women, and the elderly”. Between 1950s and 1960s there were signed international human rights treaties, inclusively the European Convention on Human Rights, the American Convention on Human Rights and the International Covenant on Civil and Political Rights.17 5. The International public opinion concerning the death penalty in the United States and in the European Union The international public opinion has accused the United States concerning death penalty maintaining. A more stringent problem is the capital punishment of foreign citizens in the United States. Definitely, the international public opinion blamed the Americans that they breached the Vienna Convention on Consular Relations, not giving the right to consult the consulates. Some of the defendants were condemned to death penalty. One
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Execution around the world,http://www.deathpenaltyinfo.org/article.php?did=127&scid=30#interexec

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important case was Breard’s case, in 1998. Paraguay (his country) tried to intervene in Virginia court, but without any outcome. Further, the country appealed to the ICJ (the International Court of Justice) and managed to obtain an order for the interruption of execution. The American Supreme Court did not accept the order and carried on with the execution.

Another similar case was Karl and Walter LaGrand (German citizens), who were not informed about the consular rights. Again, the International Court of Justice emitted an order for interruption of execution. Also again, the American Court did not accept the order. But things have been changed. Instead of the Supreme Court’s behavior, the Vienna Convention on Consular Relation’s issue has become important for the United States Department and for countries that have defendants risking death penalty in the United States. The United States Department handed out leaflets (in many languages) with information concerning this obligatory treaty. Because a Mexican citizen was executed without to give him the rights according to the Vienna Convention on Consular Relations, Mexican president annulled a scheduled meeting with President George Bush.

Even in the United States Courts, this issue was recognized. District Judge Coar claimed that an International Court of Justice’s pronouncement “conclusively determines that Article 36 of the Vienna Convention creates

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individual enforceable rights, resolving the question most American courts have left open”18.

The extradition issue and potential death penalty’s application concerns not only European countries, but also Canada, El Salvador, Mexico and some African countries. The September 11 event triggered the American war against terrorism. The defendants accused by terrorism could be executed, if they are extradited. Moreover, military tribunals try them, without benefiting by the rights of a civil trial. In these conditions, a lot of countries consider that this kind of extradition represents a significantly violation of human rights issue.

Tony Blair managed to obtain from George Bush the promise that two British citizens will not be executed; these two British citizens were among the first to be tried by the military tribunals. Also, other two Australian citizens detained by Americans will benefit from the same conditions.

In the last period, the international opposition against death penalty has become more coherent. Even the United States’s allies from Europe and North America refuse the extradition request, if the defendant may be executed. And in the execution of juvenile offenders matter, the United

States can remain isolated. Almost all countries signed the Convention on the Rights of the Child prohibiting the death penalty.
18

International Influence on the Death Penalty in the U.S., by Richard C. Dieter

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6. The terrorist extradition case, after 11.09.2001 6.1. What is terrorism? “Terrorism refers to the use of violence for the purpose of achieving a political goal. The targets of terrorist acts can be government officials, military personnel, people serving the interests of governments, or random civilians.”19

In November, 2004, a United Nations panel defined terrorism as: "Any action intended to cause death or serious bodily harm to civilians, non-combatants when the purpose of such act, by its nature or context, is to intimidate a population or compel a government or an international organization to do or to abstain from doing any act."20

“The terrorist is a person who uses violence and intimidation in the pursuit of political aims.”21 Terrorism was present in all history, but after 11 September 2001 the face and implication of the terrorism have changed forever. In 11.09 2001 the most power country in the world was attacked by terrorists, the important symbol was demolished, the ideas of invincibility become only a dream, the culture and religious was through an international fight and from then any country cannot say that it is protected against terrorism.
19
20

http://en.wikipedia.org/wiki/Terrorism http://en.wikipedia.org/wiki/Terrorism#Definition 21 http://www.askoxford.com/results/?view=dev_dict&field12668446=the+terrorism&branch=13842570&textsearchtype=exact&sortorder=score%2Cname

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The states are weak or strong in subjects like economic, social and political. In my opinion, when we speak about terrorism all states are weak (after 11 September 2001), all states can be the target of the terrorists.

As we can see, the terrorism is a threat in all subjects: military, political, societal, economic and environmental.

6.2. Abu Hamsa case and its implications I chose the Abu Hamsa case because it is in accordance with my topic. He was arrested in the European Union, the United States asked for his extradition; between the European Union and the United States is an extradition treaty with special provision against death penalty, it is a veritable case of terrorism accusation. Mr. Abu Hamsa has relationships with the most known terrorist group in this moment; the case is very new and controversial.

In May 2004, the “clashes” between Americans and British concerning extradition in the cases in which the defendant could be punished with death penalty became again visible. Abu Hamza was arrested in the United Kingdom, at American request. He has been lived in London for 25 years, but his speeches (which encouraged the violence) put him in conflicts not only with British authorities, but also with moderate Muslims. Last year, the British authorities interdicted him to speech in Londoner mosques, but from 32

that time, he has specked in the street. British authorities have removed his citizenship, accusing him by links with Al Qaeda. But his advocacies have made recurs. Mr. Hamza is a British Muslim of Egyptian origin, who had acquired his citizenship through bigamy. This came to light when he supported the September 11 Bombing of New York by Al Qaeda openly in public. He had both hands amputated when fighting for the Taliban in Afghanistan, and it is costing the United Kingdom Government a lot of money to look after him.

The United States has eleven accusations against Mr. Abu Hamza. All of them refer to his implication in terrorist attacks or his support to terrorist organizations. Also, Abu Hamza is accused by implication in the kidnap of some foreign citizens in Yemen, in 1998. Four of them were killed when Yemenite military troops tried to save them. For all these accusations, Mr. Hamza would be punished with life sentence or even the death penalty (in the United States). Even only the accusations that are not so important would total to 100 years in prison. According to the British Broadcasting Corporation (BBC), Americans have obtained the evidences against Abu Hamza from James Ujaama, a Hamza’s former friend, who is in a prison in Seattle. James Ujaama has recognized that he has helped Taliban regime. Another country that wants Mr. Hamsa’s extradition is Yemen. Yemenite Foreign Affairs Minister, Mr. Abu Bakr al Qirby, realizes that there are some

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practical obstacles against this request, but he mentions that the reasons for this request are similar to the American reasons. Maybe the United States has some more information from Al Qaeda prisoners, but Yemenite authorities want to try him in Yemen, for the organize of the terrorist operations. Let us consider the legal aspects. Mr. Hamza was incriminated as having recruited some of those detainees at Guantanamo Bay. The Central Intelligence Agency has evidence that he is closely linked with Al Qaeda operations. The United States sought his extradition to the United States that is being bitterly contested in the United Kingdom. The actual legal wrangle is that he would face death penalty when he is found guilty in the United States. The United States has not ratified the Human Rights Convention Protocol No. 6 and Protocol 13 that prohibit death penalty, but the United Kingdom has. Under both protocols, the United Kingdom it is prohibited to extradite if the person would face the death penalty. So in this case, the United Kingdom is thorn between her obligation under the Protocol 6 and Protocol 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and her Extradition Treaty with the United States. Besides, there are other public order offences that he has committed in the United Kingdom relating to passport forgery and harboring illegal immigrants in the mosque. 34

The United Kingdom would be accused of complicity if Mr. Hamza faces death penalty once he is extradited. Both countries are trying to find a way out of the problem. But another issue is that Hamza denies his involvement with his links with Al Qaeda. Therefore, he has to be tried in the United Kingdom to establish that he is in fact guilty of those crimes. That is what is holding him in prison on terrorism charges, by which he can be detained until all investigations are completed under British law. Mr. Hamza’s arrest is only the first step of the extradition procedure. The effective extradition can take some months, or even years.

7. Adequacy of extradition solution to post September 11 security threats, in particular transnational terrorism A new situation has appeared – the terrorism; and the question is: are all our rules enough to cope with this situation or not?

In that moment, the extradition from the European Union to the United States of America in case of terrorism is treated in the same manner as an ordinary crime in series, even better because a serial criminal can receive the death penalty, but the extradition terrorist not more than a life sentence.

About what American nation wants concerning death penalty, more than 72% (in accordance with Gallup Poll in 2002) and more than two-thirds of

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Americans continue to support the Death Penalty (according to the Harris Poll, in 2 January, 2004).

But is it correct? Through “correct” I understand moral implication before the society. And something has to be changed in rules, which cope with situation of extradition of terrorists from the European Union to the United States of America? Let me give an example, in the United States it is possible to receive the death penalty for two crimes, and if the terrorist which planed the terrorist attack from the 11.09.2001 (where around 2,000 dead people) and he/she is caught in the European Union it is not possible to be executed because of the extradition treaty and all declarations signed by the EU. According to the American rules of law and the Constitution, the terrorist can face the federal death penalty. And, in my opinion, this is not what American nation wants, and it is an act of respect of the American sovereignty. Yes, it is true, it is not possible to accuse one specific country from the European Union that it infringes the sovereignty of the United States because they do not have one specific rule or treaty that gives the United States rights to ask extradition for terrorists without provision against death penalty. But why does America receive the terrorists? This fight against terrorism becomes an issue for an international

community. International community must fight against terrorism, but in a front line there is the United States because it is the main source of force against terrorism and it is the most important combatant, not only from 36

economic but also military point of view. I want to say that we should let America decide about what to do with the terrorists who attacked it and also for other countries - to do want they want. Yes, it is possible that countries like Somalia, Tanzania or Kenya can be target of terrorism, but they cannot fight against it, because they do not have enough money and military forces for this issue. So, the countries like the United States, Canada, Australia, and European Union are very involved in this fight against terrorism and become the first target because of this. We can conclude that they are in front line because they are the main targets and, on the other hand, they can fight against it. We cannot consider that in this fight are implied only some countries; we can say that ideologically, international community is involved, even if some countries cannot participate effectively. After the 11.09.2001, President George Bush declared “the war against terrorism” and he did a lot to bring the terrorists in front of the American Court of Justice and judge them after American Constitution and rules. The terrorist attacks were already considered as a very significant affront to the United States and for this, the punishment is the federal death penalty. I want to say something about the war against terrorism. Like all in this world the face of the war has changed over the time. Five hundred years ago, the war between two countries requested the physical presence on the battle field for both, in war in general there were involved more soldiers enrolled in the army, the parties know the target and, more or less, when the fight can start. About terrorism war, it is like a war with close eyes and cover ears. In

37

the fight it is not involved the countries, in general the civilians died, you cannot know the next target, what kind of weapons they will use, the people behind the attack can stay hide in another country. In these conditions, we can conclude that the war against terrorism is different, the involved countries has to be inventive in order to be able to fight against something unknown. At the same time, in my opinion, even the international law must be changed in order to help this effort, not to decrease the outcomes. Over the years, the number of crimes under the federal death penalty has increased, especially the crimes committed by the terrorists. Mr. Michael Bearden (former CIA officer) considers that the opposition of death penalty against international terrorism decreases the effort of the United States in fight against terror and complicates the international collaboration. The United States must face a strong opposition to capital punishment, even strong allies like the United Kingdom or Canada do not want to extradite the defendant, and the military tribunals do not accept this punishment. It is appear that all are against this punishment. For example, Canada dose not agree to extradite any defendant in the Unites States if he/she can face with death penalty, even if he/she is “the most wanted criminal”. The Council of Europe with 43 in composition representing 800 million inhabitants, and in this organization almost all countries declare public that they fight against terrorism, but at the same time they are not agree with death penalty and they consider that “the death penalty has no legitimate place in the penal system of modern civilized societies”. Even when in Spain some members of

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Al Qaeda were caught (November 23, 2001), authorities from Spain refused to extradite them in the United States because they could face the capital punishment. And after that, like an unhappy destiny, even Spain was attacked by the Al Qaeda and we know the tragedy from Madrid. After the events from 11.09.2001, the United States tried to convince the European Union that for improve international cooperation against terrorism is necessary to “eliminate discrimination against the United States and third (non-EU) countries’ extradition requests to member states”22. An alternative would be the deportation or expulsion like in the Juan Garza case when even between Mexico and the United States is an extradition treaty with assurance against execution, Mr. Juan Garza was deported from Mexico. The United States authorities brought him before the court. He was the second federal death row prisoner and he was executed by lethal injection in the federal prison in Indiana. In the last decade, the United States was more and more in impossibility to receive the criminals, even the most wanted criminals, through extradition treaty with the right to execute the defendant, and the prosecutors have realized that they can waive the death penalty if they want to judge the criminal. Some authorities and leaders from the United States are strongly against this interdiction of execution, they consider that this is a foreign interface in the
United States of America No return to execution – The US death penalty as a barrier to extradition
22

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US justice system, that for the most horrible crime like terrorism attack against the Unites States, only the US must decide if this terrorist must be executed or not. Because of the extradition treaty in which the death penalty is forbidden, they consider that the United States sovereignty is infringed. Because of this President Bill Clinton (June 1995) adopted a Presidential Decision Directive special about the terrorists who are caught or are abroad, that they must be brought in front of the United States court if it is necessary “by force …. without the cooperation of the host government”. The difference in the point of view about capital punishment has created a lot of diplomatic friction, and any trying of the United States to renegotiate the extradition treaty about this issue is seen by another state like a risk to undermine the respect of international law in general and infringement of human rights in special. At the same time the United States sees this like an infringement of the US sovereignty and a decrease in outcome in fight against terrorism. 8. My Conclusion about extradition solution If the European Union members really understand that the war against terrorism is completely different than the war from the past or another kind of present war, they really want to fight terrorism; if they want to respect the American sovereignty, they can agree: to do a derogation of the Protocol 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and to permit

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extradition in case of terrorism, without provision against death penalty; to accept under the extradition treaty extradition without another provision in terrorism case; to change the Agreement on extradition between the European Union and the United States of America - article 13 and all declarations, charters and treaties who interdict extradition from the EU to the United States.

I am not pro American, but I think that the international community has to co-operate in the fight against terrorism. If the death penalty is available for terrorists, some terrorists will be executed; if not, a lot of innocent people will die only because they are in a wrong place in a wrong moment.

________________

Bibliography:

1. Amnesty

International

USA

(source

of

picture)

-http://www.amnestyusa.org/abolish/states/index.html ;

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2. Terrorism cases in the UK: an interview with Mudassar Arani by Mahan Abedin – The Jamestown Foundation http://www.jamestown.org/publications_details.php? volume_id=402&&issue_id=3097; 3. Thanks America, we've finally got him, http://www.physicsforums.com/archive/t28071_Thanks_America,_we've_finally_got_him..html; 4. Punishment: Death Penalty http://www.karisable.com/crpundeath.htm; 5. Terrorism Prosecution http://www.watchingjustice.org/issues/subIssue.php?docId=414; 6. Official Journal of the European Union – Council Decision of 6 June 2003 - http://europa.eu.int/eurlex/pri/en/oj/dat/2003/l_181/l_18120030719en00250026.pdf 7. The Crown Prosecution Service – Request by United States for extradition of Abu Hamza http://www.cps.gov.uk/news/pressreleases/archive/124_04.html; 8. Council of the European Union – Council meeting – Justice and Home Affairs – Luxembourg – 6 June 2003 http://www.statewatch.org/news/2003/jul/10409.pdf; 9. La cererea SUA imamul britanic Abu Hamza a fost arestat la Londra – Abu Hamza was arrested in London newspaper - Curierul National - national http://www.curierulnational.ro/?

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2001%3FOpenDocument+No+return+to+execution++The+US+death+penalty+as+a+barrier+to+extradition&hl=en 19. Death Penalty Information –Centerhttp://www.deathpenaltyinfo.org/treaties; 20. Death Penalty Information –Center- U.S. death penalty could prove hurdle to extradition of terror suspects from Britain Associated Press, October 8, http://www.deathpenaltyinfo.org/article.php?

scid=33&did=334 21. International Influence on the Death Penalty in the U.S. by By Richard C. Dieter from: Foreign Service Journal, October 2003,

http://www.deathpenaltyinfo.org/article.php?scid=17&did=806; 22. Capital Punishment Project – How the Death Penalty weakens US International Interest, http://www.deathpenaltyinfo.org/article.php? scid=30&did=934 23. Soering Case – Menneskeret – Europe (case notes) http://www.menneskeret.dk/menneskeretieuropa/konventionen/baggru nd/domme/ref00000204/; 24. Execution around the world, http://www.deathpenaltyinfo.org/article.php? did=127&scid=30#interexec; 25. Charter of Fundamental Rights of the European Union - International Labour Organization http://www.ilo.org/public/english/employment/skills/recomm/instr/eu_2 4.htm; 44

26. European Convention of Human Rights (4 November 1950 – Roma) http://www.hri.org/docs/ECHR50.html#C.Art3; 27. European Convention on Extradition (13.12.1957 Paris) -

http://conventions.coe.int/Treaty/en/Treaties/Html/024.htm 28. Convention against Torture and other Cruel. Inhuman or Degrading Treatment or Punishment 39/46 (General Assembly – 10.12.1984) http://www.un.org/documents/ga/res/39/a39r046.htm 29. Protocol 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Vilnius 3.05.2002) http://conventions.coe.int/treaty/en/Treaties/Html/187.htm; 30. Agreement on extradition between the European Union and the United States of America - http://www.legislationline.org/view.php? document=57760&ref=true; 31. Military Order: Detention, Treatment, and Trial of Certain non-

citizens in the war against terrorism http://www.deathpenaltyinfo.org/article.php?scid=33&did=224; 32. “The terrorism”, by Beatrice Craciun

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35. US death penalty could prove hurdle to extradition of terror suspects from Britain (08.10.2001) http://www.deathpenaltyinfo.org/article.php?scid=33&did=334; 36. Pro – death Penalty, http://www.prodeathpenalty.com/news.htm;

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