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Al-Sudairey 10.Pdf University of Newcastle upon Tyne Global Co-operation and Extradition, a Comparative Study of Saudi Arabian and British Judicial and Quasi-Judicial Processes Employed in Extradition of Alleged Offenders by Abdullah Fahad Al-Sudairey Thesis submitted for the degree of Ph.D. in the School of Law School of Law University of Newcastle upon Tyne Newcastle – United Kingdom May 2010 Declaration I certify that all material in this thesis which is not my own work has been identified and that no material is included for which a degree has previously been conferred upon me. The Author I Copyright This thesis is available for libraries to use on condition that anyone who consults it is understood to recognise that its copyright rests with its author and that no quotation taken from this thesis or information derived from it may be published without the author’s written consent. II Acknowledgments First of all, I would like to thank Allah the Almighty for the grace, health and strength given to me to overcome many difficulties that I have faced to complete this thesis. Prophet Mohammad “peace be upon him” encouraged us to seek knowledge from birth to death. I would not have been able to complete this journey without the aid and support of countless people over the past four years. I would like to thank Dr. Rhiannon Talbot for her encouragement, help and kind support throughout the entire course of study. Appreciation is extended to Professor John Alder for his critical guidance during the preparation of this manuscript and his continuous support and advice and solving of problems. Thanks are also due to Professor Alison Firth and Mr Ashley Wilton. My thanks to the staff of the law school, and the staff of both the Robinson and Law libraries. I am very grateful to Saudi Government for giving me the opportunity to do this work and for supporting me financially. I am thankful to his Excellency Dr. Khalid Al-Angary the Minister of Higher Education who allowed me to do this work. I am particularly grateful to Mr. Abdullah Al-Naser the previous Saudi Arabian Cultural Attaché for his tremendous support. I would like to extent my thanks to all the staff of the Saudi Arabian Cultural Bureau for their continuous co-operation and support during my study. I am very much indebted to my relatives, friends and colleagues for supporting me in different ways. This thesis is dedicated to my mother: without her support and encouragement, this work may not have been completed. She took on the burden of rearing me herself since I lost my father when I was too young. She has continued until now to support me in different ways and I dedicate this work to her. Abdullah Fahad Alsudairey III TABLE OF CONTENTS Table of contents A-1 Abstract B-1 Chapter 1: Introduction…………………………………………………………………… 1 1.1 Extradition treaties are essential for combating international criminals………….. 4 1.2 Using the framework of the United Nations Model Extradition Treaty, the U.K. and Saudi Arabia should enter into an extradition treaty that balances the concerns of both nations…………………………………………………………. 7 1.3 Objectives of the Study…………………………………………………………… 12 1.4 Research Methodology…………………………………………………………… 14 Chapter 2: The Extradition framework…………….……………………………………... 18 2.1 Introduction……………………………………………………………………….. 18 2.2 The history of extradition……………………..………………………………….. 20 2.3 The early history of extradition under Islamic law……………………………….. 21 2.4 The early history of extradition under English law…………..…………………… 23 2.5 Extradition evolved from ad-hoc state co-operation over political offences to the extradition of criminals by statute or treaty…….………………… 25 2.6 Modern day extradition agreements……………...……………………………….. 30 2.7 Extradition exists within national and international frameworks……...…………. 36 2.8 Traditional and contemporary definitions of the term extradition………………... 38 2.8.1 Common definitions of extradition……………..…………………………... 39 2.8.2 Definition of extradition in Islamic law………………….…………………. 41 2.8.3 There exists no internationally recognized definition for extradition……….. 42 2.9 There are two types of extradition systems: judicial and administrative…………. 43 2.9.1 The judicial system…………………………………………………………. 43 2.9.2 The administrative system………………………………………………….. 44 2.9.3 The dual (judicial-administrative) system…………………………………… 46 Chapter 3: Towards an international extradition convention: shortcomings and obstacles…….……………………………………………………………… 48 3.1 Introduction………………………………………………………………………. 48 3.2 Extradition and international law…………………………………………………. 49 3.3 The United Nations Model Treaty on Extradition………………………………... 56 3.3.1 Origins of the Model Treaty…………………………………………………. 57 3.3.2 Principal characteristics of the UN Model Treaty…………………………... 58 3.4 Universal jurisdictional should apply to some extraditable offences…….……….. 63 3.4.1 Jurisdiction and extradition…………………………………………………. 63 ……… 3.4.2 Theories of jurisdiction for extradition……………….…………………….. 66 A-1 3.4.3 Territorial theory……………………………………………………………. 66 3.4.4 National/active personality theory………………………………………….. 73 3.4.5 Passive personality theory…………………………………………………... 75 3.4.6 Protective principle theory………………………………………………….. 77 3.4.7 The universality theory……………………………………………………... 79 3.5 The current extradition system does not adequately protect human rights……….. 81 3.5.1 The growth of human rights law……………………………………………. 81 3.5.2 Other types of extradition or alternatives to extradition violate international agreements on human rights………………………………………………... 84 3.5.3 Secret extradition…………………………………………………………… 85 3.5.4 Rendition and irregular rendition…..……………………………………….. 87 3.5.5 Abduction…………………………………………………………………… 89 3.6 Exceptions to extradition are eroding…………………………………………….. 89 3.6.1 Exceptions for double criminality and extradition crimes………………….. 89 3.6.2 Exceptions for political offences……………………………………………. 92 3.6.3 The death penalty exception………………………………………………... 108 Chapter 4: Extradition and British judicial and quasi-judicial mechanisms……………… 111 4.1 Introduction……………………………………………………………………….. 111 4.2 An overview of the British extradition context…………………………………… 113 4.3 Obligations and bars to extradition – a statutory requirement……………………. 116 4.4 The motives and purposes of the Extradition Act 2003…………………………... 117 4.5 Extradition procedures under EA 2003…………………………………………… 120 4.6 The main stages of the hearing…………………………………………………… 128 4.6.1 Export cases………………………………………………………………… 128 4.6.2 Import cases………………………………………………………………… 129 4.6.3 Special arrangements……………………………………………………….. 131 a. U.S. cases………………………………………………………………….. 131 b. European cases…………………………………………………………….. 131 c. Prima facie cases…………………………………………………………... 132 d. Conviction cases…………………………………………………………... 133 4.6.4 Category 1 and 2 territories…………………………………………………. 134 a. Category 1…………………………………………………………………. 134 b. Category 2…………………………………………………………………. 136 4.6.5 The Framework list…………………………………………………………. 137 4.6.6 The initial stage of the extradition hearing…………………………………. 138 4.6.7 Territorial offences………………………………………………………….. 139 4.6.8 Persons convicted and sentenced…………………………………………… 140 A-2 4.6.9 The extradition hearing……………………………………………………... 141 a. Category 1 territories………………………………………………………. 142 b. Category 2 territories……………………………………………………… 143 4.6.10 Habeas corpus and appeals………………………………………………... 144 4.6.11 Surrender…………………………………………………………………... 148 4.7 Extradition and the law on human rights: importance and impact………………... 149 4.8 Extradition arrangements with other countries…………………………………… 162 Chapter 5: Extradition in Saudi Arabia…………………………………………………… 168 5.1 Introduction……………………………………………………………………….. 168 5.2 An overview of the Saudi Arabian context for extradition……………………….. 170 5.3 Sources for extradition in Islamic Shari’a……………………………………………... 173 5.3.1 Sources and principles of Shari’a law………………………………………. 173 a. Primary sources……………………………………………………………. 174 b. Secondary sources…………………………………………………………. 174 c. Islamic schools of legal thought…………………………………………… 175 5.3.2 Sources for extradition in the S hari’a…………………………………………… 177 5.3.3 Rules of extradition in Shari’a…………………………………………………… 180 a. Application of Islamic law in places where the Shari’a is used…………... 182 b. Application of Islamic legislation in non-Shari’a places………………….. 182 i Extradition between two Islamic countries……………………………… 183 ii Extradition between an Islamic and non-Islamic country……………….. 184 c, Extradition of criminals in Shari’a …………………………………………….. 187 5.4 Treaties in Shari’a………………………………………………………………………… 188 5.4.1 The legality of treaties in Shari’a………………………………………………... 188 5.4.2 Sources for extradition in Saudi Arabia…………………………………….. 189 5.5 The relationship between the King and the Saudi constitution and the impact and effects on extradition treaties and human rights…………………………………. 190 5.6 Modern treaties…………………………………………………………………… 202 5.6.1 Agreement on co-operation between the Ministries of the Interior of Saudi Arabia and Iraq……………………………………………………………... 202 5.6.2 Bilateral agreements for co-operation on security issues with the Council of Gulf States………………………………………………………………….. 203 5.6.3 Agreement for security co-operation with the Republic of Yemen………… 208 5.6.4 Agreement for the extradition of criminals between Saudi Arabia and the Republic of Pakistan………………………………………………………... 213 5.6.5 The security co-operation agreement between Saudi Arabia and Iran……... 219 5.7 Multilateral treaties……………………………………………………………….. 225 5.7.1 The Arab League extradition agreement……………………………………. 225 A-3 5.7.2
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