Sunday 22 April 2018

Diplomats walking on eggshells over Washington Treaty

Ali Charaf Damache
Ali Charaf Damache
Dearbhail McDonald

Dearbhail McDonald

You won't hear it shouted from any (official) rooftops, but the sensitive subject matter of extradition between Ireland and the United States is one that at present requires all the diplomatic flair, skill and expertise of light-footed finalists on 'Strictly Come Dancing'.

As the Irish authorities work closely with their US counterparts to extradite former Anglo Irish Bank boss David Drumm back to Ireland, recent Irish court developments involving suspects who are wanted by the long arm of the US law would give even the friendliest of neighbours pause for thought.

In the past, the US was seen as a safe haven for Irish suspects, especially those of the republican variety.

But in recent years, the tables have turned somewhat, with Uncle Sam harbouring complaints that Ireland is at risk of becoming a safe haven for fugitives seeking to evade US justice.

There are also fears, not entirely unfounded, that Ireland could become the jurisdiction of choice for suspects in Europe seeking to avoid extradition there - a form of extradition tourism or forum shopping.

Last year, one prosecutor said in public what many US officials say in private, namely that lawmakers and police in America view the 1983 bilateral Washington Treaty governing extradition between Ireland and the US with deep suspicion, one that possibly borders on contempt.

"While we have an extradition treaty with Ireland, it is rarely ever enforced," lamented prosecutor Janis Echenberg.

That is probably a little unfair: a perusal of written extradition rulings handed down by the Irish courts shows that about half of extradition requests made by the US are ultimately granted.

But there are a few buts - we don't get written judgments for so-called consent surrenders, where suspects are exchanged without court challenge.

And this guesstimated 'hit rate' of some 50pc of US requests granted by Ireland is well below the 'hit rate' of almost 90pc of extradition requests that Ireland grants under the European Arrest Warrant (EAW) system.

In addition, there have been a number of recent cases in Ireland that may, to put it lightly, have upset our American cousins.

Earlier this year the Irish High Court refused to extradite a man wanted on alleged terrorism offences to the US on the grounds that solitary confinement at ADX Florence prison in Colorado is inhuman and degrading.

ADX Florence is a notorious 'supermax' prison and Ali Charaf Damache strolled out of the Criminal Courts of Justice after a judge said conditions in the prison constituted a fundamental breach of the constitutional right to bodily, mental and human integrity.

Ms Justice Aileen Donnelly's ruling was all the more potent because the European Court of Human Rights had earlier considered ADX Florence in a case involving the UK government who have habitually threatened to ditch the European Convention altogether - much to Europe's great distress.

Three years ago the ECtHR found that the isolation experienced by inmates at ADX Florence was 'partial and relative' and did not violate Article 3 of the European Convention, which prohibits torture or inhuman and degrading treatment.

Ireland is in the international extradition spotlight not least because the High Court is currently considering US requests to extradite a man the FBI says is the largest facilitator of child porn in the world as well as another man whom it claims was an administrator of the Silk Road website.

Both matters are being contested by the men involved.

Unlike the European Arrest Warrant, which is primarily a judicially managed system, the Washington Treaty between the US and Ireland is much more of a political affair, involving as it does requests initiated through diplomatic channels and ultimately decided at executive level.

In other words, it is governments who decide.

Extradition can be resisted on a number of specified grounds including equivalence of offences, territoriality and speciality.

However, like all relationships, political or otherwise, the operation and management of the Washington Treaty (supported by a multi-lateral EU/US treaty) requires sticking to the rules as well as reciprocity, goodwill and trust.

It will take more than a box of Ferrero Rocher to manage this diplomatic affair.

Irish Independent

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