Introduction
It takes very little research into comparative criminal procedure to learn that, despite the myriad differences between the ways in which states administer criminal trials, most have some form of interim release for accused persons who are facing trial or appeal.Footnote 1 This mechanism is most commonly called “bail” and will be referred to as such here. The principles underpinning bail seek to balance the restriction of individual freedom with societal concern for the dispensation of justice: while it is desirable that some accused individuals not be incarcerated until guilt has been decisively established, the bailed accused is nonetheless required to abide by a set of restrictions designed to ensure that they will appear at their trial/appeal and not abscond from the court’s territorial jurisdiction.
A common restriction of this kind is that the accused is required to surrender any passports that he or she possesses to the court or to the local police,Footnote 2 for the obvious purpose of making it harder (if not impossible) for the accused to flee the state’s territory entirely. This requirement is most frequent when the accused is a national of a foreign state, and logically so, since an accused with roots in, or connections to, a foreign state will usually have even more motivation and ability to successfully abscond than a national of the prosecuting state. Unsurprisingly, it is extremely common for this condition to be imposed in extradition cases, where these concerns loom even larger.
Notwithstanding the surrender of their passport, however, accused persons do sometimes defy the conditions of their bail and abscond — the most common English colloquial phrase for which is “jumping bail.” Figures on how often this occurs, and how often it involves foreign nationals, would be difficult to obtain since it would involve reviewing the court records of a large number of states. However, media reports tend to indicate that it is at least an occasional occurrence. A noteworthy and recent example is the 2019 escape of former Nissan executive Carlos Ghosn from custody in Japan, engineered by a former US Special Forces member who was apparently hired as a “private consultant” for this purpose.Footnote 3 Similarly, in late 2020, a Ugandan Canadian doctor, who had been convicted of trafficking fentanyl in Toronto and released on bail pending appeal, jumped bail and apparently fled to Uganda, with the suspected help of his family.Footnote 4
Jumping bail is an illegal act that is typically prosecutable in the affected state, and assistance rendered to the fugitive by another person (practically inevitable in most cases) would add another layer of illegality since this assistance would almost invariably amount to an offence. The concern of this article, however, is where a third level of unlawful conduct is involved — that is, where the fugitive is assisted in jumping bail by the government of another state, including (but notionally not limited to) his or her state of nationality. Such conduct is, to say the least, an extremely unfriendly act from an inter-state relations point of view and, as explored here, amounts to a serious intrusion into the internal affairs, sovereignty, and plenary jurisdiction of the prosecuting state.
This is not an abstract legal question but, rather, an issue of current significance. Starting in 2018, journalistic reporting revealed a series of cases in Canada and the United States where Saudi Arabian nationals, usually university students, jumped bail and escaped their trials on serious charges. Most of these charges involved sexual assault, though there were also murder, manslaughter, and firearms offences. In each of these cases, there are reasons (albeit of varying strength) to suspect that Saudi government officials assisted the individuals in escaping, for example, by providing new travel documents and even private planes in order to leave. While the facts differ somewhat between the cases, what emerges is a disturbing pattern of rogue conduct on the part of the Kingdom of Saudi Arabia (KSA) that not only has international law implications but also prevents redress for the victims.Footnote 5
The rest of this article will proceed in four further sections. The second section will briefly review the known/reported facts of the Canadian and American bail-jumping cases. The third section will provide an analytical argument for the proposition that states that assist their nationals in jumping bail thereby breach the sovereignty of the prosecuting states and could be subject to state responsibility for so doing. It will also briefly discuss the availability of remedies. The fourth section will query whether, quite apart from the national interest in holding the offending states accountable, the prosecuting states owe any international law obligation, either free-standing or to the victims, to pursue redress. Some brief conclusions will then be offered in the fifth and final section.
Facts About Bail-Jumping Cases
In the following subsections, the major reported cases of bail jumping are canvassed. All of these cases — whether Canadian or American and admittedly to different extents — have a troubling commonality — namely, the appearance that the KSA has assisted the accused individuals in escaping justice.
canadian cases
The reported instances of absconding began in Canada in 2006. Taher Ali Al-Saba was charged with sexually assaulting two youths in Nova Scotia in June of that year.Footnote 6 Al-Saba was released on $10,000 bail but was required to hand over his passport to police as a condition of release.Footnote 7 He failed to appear in the Nova Scotia Supreme Court, after which the Saudi Arabian embassy informed police that Al-Saba had returned to the KSA in August 2006, at which point his passport had already been handed over.Footnote 8
Nova Scotia encountered the same issue again, just over a decade later. Mohammed Zuraibi Alzoabi, a Saudi national studying at Cape Breton University, was charged with the assault, sexual assault, and forcible confinement of a woman, as well as dangerous driving and assaulting a man with a motor vehicle.Footnote 9 The Saudi embassy posted a large portion of Alzoabi’s bail.Footnote 10 However, in 2018, before he could be brought to trial, Alzoabi fled the country, even though he had handed over his passport as a condition of his bail.Footnote 11 Lee Cohen, an immigration lawyer, has stated that it is likely that Alzoabi was able to flee because the Saudi embassy issued new travel documents to him after his original passport was seized.Footnote 12
us cases
There have been significantly more reported instances of Saudi nationals jumping bail in the United States due, in part, to a broad investigation undertaken by Shane Dixon Kavanaugh of The Oregonian, an Oregon-based newspaper. Kavanaugh has uncovered, to date, criminal cases involving at least seven accused Saudi nationals who have disappeared from Oregon as well as similar instances in at least seven other US states.Footnote 13 Below are just some examples of absconding discovered throughout The Oregonian’s investigation. Perhaps the most well-known case is that of Abdulrahman Sameer Noorah, who was charged with first-degree manslaughter and felony hit and run following a fatal hit and run of fifteen-year-old Fallon Smart in August 2016.Footnote 14 After his arrest, the Saudi consulate retained representation for Noorah and posted his bail.Footnote 15 Noorah then turned over his passport to the US Department of Homeland Security and was placed under house arrest, which required him to wear an electronic monitoring bracelet.Footnote 16 Two weeks before his June 2017 trial, Noorah disappeared.Footnote 17 Authorities believe that Noorah cut his ankle monitor and used an illicit passport and private plane, likely provided by the KSA, to flee the country.Footnote 18 In July 2018, the KSA contacted the Department of Homeland Security to inform them that Noorah was back in the KSA.Footnote 19
The Noorah case, however, is only the tip of the iceberg. In 2012, Ali Hussain Alhamoud, a Saudi national studying at Oregon State University, was charged with multiple sex crimes in Lincoln County, Oregon, including first-degree rape. The Saudi government posted Alhamoud’s bail, after which, on the very same day, Alhamoud boarded a plane in Portland and returned to Saudi Arabia.Footnote 20
Abdulaziz Hamad Al Duways,Footnote 21 who was studying at Western Oregon University, was accused of sexually assaulting a classmate in 2014. It was ordered that Al Duways turn over his passport to his defence attorney. An official from the Saudi consulate posted Al Duways’s $500,000 bail, after which, he disappeared.
Waleed Ali Alharthi,Footnote 22 a Saudi national studying at Oregon State University, was found to be in possession of child pornography and was accused of encouraging child sex abuse. An official with the Saudi consulate posted Alharthi’s $500,000 bail, after which Alharthi was required to turn over his passport to a trial court administrator. He failed to appear in court on 2 April 2015. It was learned that Alharthi had boarded a plane in Mexico City bound for Paris a week before his scheduled court appearance.
Abdulla Almakrami,Footnote 23 a Saudi national, was arrested on suspicion of sexual assault and false imprisonment in 2014. His defence attorney posted his $10,000 bail. Although his passport had been seized, he fled from Milwaukee, Wisconsin, after his arrest, and he resurfaced in the KSA months later, where he became active on social media.
Saud Alabdullatif,Footnote 24 a Saudi national studying at Eastern Washington University, was charged with forcible second-degree rape and unlawful imprisonment in May 2016, and his bail was set at $100,000. Alabdullatif posted a bond through Ace’s Bail Bonds in Spokane, Washington, to secure his release. That same day, he boarded a plane in Seattle and returned to the KSA.
Rashed Almarri, Abdulhadi Alras, Abdulhadi Binshafiah, and Ali Binshafiah,Footnote 25 all Saudi nationals, were arrested in Toledo, Ohio, in July 2015 on suspicion of committing a felony assault that left at least three people hospitalized. Bankers Insurance, a company that does business with the KSA, posted the individuals’ bail. The next day, the four boarded a plane in Chicago, which was bound for Qatar.
Abdulrahman Ali Al-Plaies,Footnote 26 a Saudi national, was accused of causing a car accident that killed a seventy-nine-year-old woman in Xenia, Ohio, in June 1988. Officials with the Saudi embassy demanded Al-Plaies’s release from jail on the grounds that he was mentally ill and not at fault for the accident. Authorities did not seize Al-Plaies’s passport and were told that it had been misplaced or lost. Just days before Al-Plaies’s trial, the judge reduced bail to $25,000, which was put up by the Saudi embassy. Al-Plaies’s left jail that day with a Saudi military officer and was never seen in the United States again.
Breaches of International Law
As one of us has commented elsewhere,Footnote 27 anyone who has spent more than ten minutes studying international law could easily draw the conclusion that the conduct being examined here is unlawful. It is intuitive that states that assist their nationals in jumping bail, thereby interfering with the operation of the prosecuting state’s criminal justice system, have breached the territorial sovereignty of the latter state. However, it is worth teasing out with some precision why this is not just undesirable but also unlawful conduct that could draw a legal response or attract remedies.
territorial sovereignty and jurisdiction
The analytical starting point is in the realm of the axiomatic: that states are independent entities, equal in law to other states, and have full sovereignty over their territories (subject to other applicable rules of international law). The Friendly Relations Declaration,Footnote 28 a “quasi-constitutional document” of the international legal order,Footnote 29 provides that the principle of sovereign equality mandates that a state’s “territorial integrity” is “inviolable.” Arbitrator Max Huber pithily referred to sovereign independence as a state’s “right to exercise [in its territory], to the exclusion of any other State, the functions of a state.”Footnote 30 For its part, the International Court of Justice (ICJ) has noted that “respect for territorial sovereignty is an essential foundation of international relations.”Footnote 31
While territorial sovereignty has many manifestations, the most relevant one is jurisdiction, used here in its international law meaning as “a state’s power to regulate or control persons, conduct, and events, or to subject them to the power of the state.”Footnote 32 It is trite law that, within their territories, states have primary and plenary power to exercise both prescriptive jurisdiction (the power to make laws) and enforcement jurisdiction (the power to enforce those laws). This power is inherent in the nature of statehoodFootnote 33 and implied by the principle of sovereign equality.Footnote 34 It follows, of course, that it breaches international law for one state to interfere with the territorial state’s exercise of its own jurisdiction.Footnote 35 From early days, moreover, states have been particularly protective of their exercise of criminal jurisdiction and the various operations of domestic criminal justice systems; indeed, as is often noted, much of the contemporary international law of jurisdiction emerged from inter-state conflicts regarding criminal matters.Footnote 36 State “sensitivity” on criminal matters has been linked to the centrality of the criminal law powers to statehoodFootnote 37 and the desire to exclude other states from this sphere: “This feeling is based upon the dual observation that a state’s first responsibility is traditionally understood to be ensuring public order and the fact that the enforcement of criminal law is explicitly connected to the coercive power of the state, i.e., its monopoly of violence that is the marker of its internal claim to sovereignty.”Footnote 38
States, then, are guarded and particular about their exercise of criminal jurisdiction, specifically. This is not criminal law for criminal law’s sake but, rather, the idea that the criminal law entails a protective aspect that is being exerted by the state over its population; criminal law is used to suppress criminal conduct and to allow at least the possibility of redress for victims. Moreover, there is obvious utility to the state maintaining its “monopoly of violence”Footnote 39 and protecting people on its territory from the criminal enforcement mechanisms of foreign states, which would have no legitimacy and might subvert procedural/rights protections that the territorial state considers desirable or necessary.Footnote 40
Zeroing in even further, these cases specifically involve the exercise of enforcement jurisdiction by Canada and the United States. As will be explored in more detail below, the exercise of enforcement jurisdiction is strictly territorially bounded under international law, and extraterritorial enforcement jurisdiction is essentially prohibited. By coming onto Canadian or American territory and interfering with domestic criminal prosecutions, the KSA has obviously interfered with the sovereign right of both states to exercise enforcement jurisdiction, on their territories, to the exclusion of other states.Footnote 41 If anything, the breach is made more intense by the fact that the KSA’s actions actually prevented criminal trials from taking place and is compounded by the fact that the Saudi state officials will have literally committed an offence by providing assistance with bail jumping.Footnote 42 It is difficult to imagine a more profound interference with criminal jurisdiction.Footnote 43
This conduct by Saudi Arabia, then, breached the territorial sovereignty of Canada and the United States. There is no mitigation of the breach inherent in the fact that the Saudi government was aiding its own nationals in absconding. Regardless of the connections between a state and an object of enforcement, “enforcement jurisdiction ultimately comes down to whether or not the latter happens to be within the territory of the enforcing state.”Footnote 44 The notion of interfering with a state’s domestic exercise of enforcement jurisdiction, on its own territory, also lends itself to consideration through the lens of the principle of non-intervention, to which we will now turn.
the principle of non-intervention
The principle of non-intervention has a substantial pedigree as a means of restraining unfriendly conduct between states — from its historical origin as a simple means of preventing war to its twentieth-century expansion into a prohibition on states interfering with each other’s internal or external affairs.Footnote 45 It has been called “part and parcel of customary international law” by the ICJ,Footnote 46 which also provided an authoritative definition:
A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.Footnote 47
It has been clear for some time that the prohibition covers interference not just in a state’s external affairs but also in its “domestic”Footnote 48 or “internal”Footnote 49 affairs, and there is little doubt that intrusions into a state’s internal exercise of criminal jurisdiction of the sort being discussed here fall into the latter sphere. In reviewing the doctrinal literature, one can certainly find suggestions that the threshold is a low one and that facilitating bail jumping would breach the prohibition; one commentator posits that something as “apparently insignificant as an ill-chosen remark made by a statesman about the affairs of a foreign state” would qualify.Footnote 50
However, the ICJ’s careful emphasis on coercion reveals a limiting factor that might throw cold water on the idea that a simple interference with criminal jurisdiction — even in aid of a national — would actually breach the norm. Coercion, as Maziar Jamnejad and Michael Wood note, is “the essence of intervention,”Footnote 51 and more nuanced views of state practice suggest that intervention is prohibited only where it “takes place through forcible or dictatorial means, and aims to impose a certain conduct of consequence on a sovereign State.”Footnote 52 Philip Kunig’s review notes that prohibited intervention tends to occur in military, subversive, economic, or diplomatic forms,Footnote 53 but, in each case, it is prohibited because it seeks to compel the victim state to do or refrain from doing something. Beyond this, he notes, “there are many acts which States perform that touch the affairs of another State but are not clear-cut interventions.”Footnote 54
Seen in this light, the facilitation of bail jumping may not cross the (admittedly fuzzy) line of coercion and thus might not constitute a breach of the principle of non-intervention. Saudi Arabia, in the examples being examined here, has shown no sign that it wishes to extract concessions of any kind from Canada or the United States or force either state to make different choices about their “political, economic, social or cultural” systems. Rather, it seeks to keep these states from lawfully exercising their criminal justice powers over Saudi nationals. That said, it is highly arguable that pursuing this latter objective is indeed “coercive” in the legal sense, in that the Saudi actions seek not just to interfere but also (successfully) to prevent Canada and the United States from exercising their criminal jurisdictions. This is a physical, tangible interference with the victim state’s legal order, which leads to the physical impossibility of that state enforcing its local law in its own territory. Surely, these actions strike at the very heart of the sovereign state interests that the rule of non-intervention seeks to protect.
At the very least, even if it is not a breach of the prohibition, Saudi Arabia’s conduct is certainly an unfriendly act that tiptoes up to the line and constitutes an “interference,” if not an “intervention.”Footnote 55 This is underscored, perhaps, by the KSA’s own views on the relevant norms. In 2018, a Canada-Saudi diplomatic conflict was sparked by Twitter comments by Chrystia Freeland, then the Canadian Foreign Affairs minister, which criticized the KSA for imprisoning human rights dissidents. The Saudi foreign ministry’s objections in response were fierce and explicit:
[T]he Canadian statement is a blatant interference in the Kingdom’s domestic affairs, against basic international norms and all international protocols. It is a major, unacceptable affront to the Kingdom’s laws and judicial process, as well as a violation of the Kingdom’s sovereignty. … The Kingdom views the Canadian position as an affront to the Kingdom that requires a sharp response to prevent any party from attempting to meddle in Saudi sovereignty.
… The Kingdom … categorically rejects any intervention in its domestic affairs and internal relations with its citizens.Footnote 56
The contrast between a foreign minister’s comment on social media and actual interference with a state’s criminal justice system, on its territory, is notable. It certainly does not lie in the mouth of a state expressing such sentiments about the former to deny the legal significance of the latter. These remarks amount to an indirect admission that the Saudi conduct in the bail-jumping cases constitutes (as argued in the previous section) a breach of sovereignty, and they suggest that, were the roles reversed, the Saudi government would view them as a breach of the rule of non-intervention as well.
analogues: abduction and extraterritorial enforcement
It is sometimes worthwhile to analyze conduct by way of other conduct that it resembles, particularly in a field with the fluidity of international law. Mindful of the dangers of proceeding by analogy, we nonetheless think that there are two legal analogues that demonstrate effectively that the state conduct being discussed here is tainted with illegality: the prohibition on the exercise of extraterritorial enforcement jurisdiction and the legal regime around inter-state abduction.
Extraterritorial Enforcement
As noted above, incidental to sovereignty, states are entitled to exclusive exercise of enforcement jurisdictionFootnote 57 on their territories. The natural corollary of this norm is that states are prohibited from exercising enforcement jurisdiction on the territories of foreign states. This is a hard rule of customary international law, its modern recognition often traced to the decision of the Permanent Court of International Justice in Lotus,Footnote 58 and it is subject only to consent-based exceptions such as treaty or informal agreements. States are hostile to such conduct because it undermines basic territorial sovereignty in general as well as the state’s legitimate monopoly on the use of coercive (and even violent) conduct. It is often argued that a breach of this rule also breaches the principle of non-intervention.Footnote 59
It is possible that, in facilitating bail jumping by its nationals, Saudi Arabia was in fact “enforcing” some law authorizing the government to do so, but this is both speculative and unlikely. Nor did these measures bear the usual trappings of enforcement jurisdiction, such as police investigation, search, seizure, arrest, and so on. In this sense, the conduct does not fall within the strict ambit of the rule since the actions taken by the Saudi officials were more along the lines of law breaking as opposed to law enforcing; they were acting, it might be said, more like criminals than police.
As argued above, this conduct is easily construed as unlawful simply because it interfered with the Canadian and American territorial exercise of criminal jurisdiction and thus breached sovereignty. However, invoking the prohibition on extraterritorial enforcement is analytically helpful in the sense that it provides further “taint” on this activity, particularly because it runs counter to the same policy prescriptions that underlie this rule. When a government official commits a crime in a foreign state, within the scope of their authority and with the specific intention and effect of obstructing criminal law, it is not simply a run-of-the-mill offence but also an act of hostility perpetrated by one state against another. Specifically, it frustrates the territorial state’s ability to discharge its own criminal laws and processes and undermines its ability to protect its own population. It also deprives the territorial state of its entitlement to provide or refuse consent for foreign activities on its soil, which is the essential foundation of all criminal cooperation between states.
Abduction
As history bears out, states sometimes abduct individuals from the territories of other states, often to facilitate criminal prosecution. As the word “abduct” suggests, the territorial state does not give its consent for the seizure of the individual, who is instead spirited away by foreign government officials or their proxies to face foreign process. This sort of abduction has been agreed to be unlawful as a breach of territorial sovereignty since at least the time of the publication of the Harvard research in 1935.Footnote 60 Its illegality was re-emphasized by the United Nations (UN) Security Council during its engagement in the dispute between Argentina and Israel over the latter’s famous abduction of Adolf Eichmann from Argentinian territory.Footnote 61 Despite the fact that it still happens,Footnote 62 it remains unlawful.Footnote 63 Abduction by government officials is essentially an arrest or at least done for law enforcement purposes, and, for this reason, it is usually framed as a breach of the prohibition on extraterritorial enforcement jurisdiction.Footnote 64
The Saudi conduct here shows no signs of constituting abduction, which by its very definition requires that the individual does not consent to being removed from the territorial state. There is certainly no evidence that the individuals were returned to Saudi Arabia to face any sort of legal consequences. However, the absence of any coercion of the involved individuals is the only missing element, which makes abduction another powerful, if supplementary, analogue that further demonstrates the illegality of the bail jumping. It is the lack of consent by the territorial state for an enforcement-related action that puts bail jumping essentially on all fours with abduction. It is not the lack of consequences for the individual removed that bears on the injury to the territorial state but, rather, the undermining of the latter’s control over its own territory and legal processes.
state responsibility and remedies
Assuming that any of the above analysis is correct, then the state responsibility angle for the Saudi actions being examined here is straightforward. States are responsible for their internationally wrongful actsFootnote 65 and are thereby under obligations to cease the wrongful conduct and provide assurances of its non-repetitionFootnote 66 and to make full reparation of the injury, whether it is held to be material or moral.Footnote 67 Given the secretive manner in which the Saudi conduct was carried out there are some questions as to how responsibility actually flows. However, all routes of liability flow back to the Saudi state, whether the relevant actors were employees of the Saudi foreign ministry or embassy (state organs),Footnote 68 any other individual who has state authority,Footnote 69 or any private person acting under the instructions, direction, or control of the Saudi government.Footnote 70 As the injured states, Canada and the United States would be free to invoke state responsibility.Footnote 71
Short of the unlikelyFootnote 72 option of launching proceedings before the ICJ or an arbitral tribunal, there are self-help remedies of which Canada and the United States could avail themselves. As noted earlier, assisting a person to jump bail is itself a criminal offence of some sort, so if the individuals could be found and if the investigation provided evidence of their conduct, they could be prosecuted. If they are members of a Saudi foreign mission and/or within a certain class of diplomatic staff, they might be protected from prosecution by diplomatic immunity; in which case, they could be declared persona non grata. Footnote 73
Continuing on the state-to-state level, the injured states would certainly be entitled to publicly or privately launch a diplomatic protest with the Saudi government, which could involve calling in the relevant Saudi ambassador for instruction.Footnote 74 The state might also invoke countermeasures, amounting to either unfriendly, but non-breaching, acts of retorsion, or even go so far as to breach some existing legal arrangement between itself and the KSA as a means of pressuring the latter to provide reparations for the latter’s breach.Footnote 75 The most injurious and offensive aspect of the Saudi conduct here was that individuals who were in the process of being prosecuted escaped the domestic criminal justice systems of the territorial states. The most logical form of reparation, then, would be for the KSA to surrender the individuals involved or at least to initiate an investigation that might lead to their surrender. While neither Canada nor the United States has an extradition treaty with the KSA, both states are able to engage in an extradition process on an ad hoc basis. Alternatively, the KSA might undertake to prosecute the individuals themselves, exerting nationality-based extraterritorial jurisdiction.Footnote 76 Beyond these solutions, all that remains to the injured states is to obtain red notices with the International Criminal Police Organization (INTERPOL), which would put police forces of the international community under formal notice that the individuals are sought for prosecution.Footnote 77 While it seems unlikely that the KSA would respond to the notices, they might result in arrests and even extradition if the individuals were to travel through an airport or land border of some state that was willing to go to these lengths.
We find it interesting that, as of the date of writing, Canada and the United States appear to have invoked virtually none of these options. Indeed, at the state-to-state level,Footnote 78 neither government has indicated that it even views the conduct as unlawful, let alone that they are bothered by it. More noise has been made in the United States, where Oregon senators sponsored an ultimately successful bill that compelled the Federal Bureau of Investigation (FBI) to declassify all information regarding Saudi bail-jumping assistance.Footnote 79 In response, the FBI declassified an intelligence bulletin indicating that it was almost certain that the bail-jumping assistance had taken place, expressing the view that this “undermin[es] US judicial process.”Footnote 80 However, the FBI has only a domestic reach. Despite the fact that the Oregon senators are currently lobbying the Biden administration to address the problem, there has been no move at the federal level as of yet.Footnote 81 Analysts have expressed the view that, while the problem is a matter of concern, it has been viewed by successive executives as less pressing than the need to maintain Saudi assistance in combatting radical Islamic terrorism.Footnote 82
In Canada, despite sustained investigation by journalists that featured repeated inquiries of federal authorities, the story has been met largely with indifference. When the Al-Saba case broke in 2007, Nova Scotia Crown Prosecutor Catherine Cogswell took the unusual step of commenting on the case in the media,Footnote 83 noting the frustration of the victims’ families and calling on the federal government to introduce greater restrictions on bail for foreign nationals.Footnote 84 Then Foreign Affairs Minister Peter MacKay was reported to be “looking into it,” but there is no evidence anything substantial was done.Footnote 85
As for the Alzoabi case, in April 2019, Philip Hannan, a communications official at Global Affairs Canada, stated in an email that no one at Global Affairs had contacted the Saudi embassy about whether it had helped Mohammed Zuraibi Alzoabi flee prosecution in Cape Breton, Nova Scotia. Nor did anyone at Global Affairs, the Canada Border Services Agency, the Department of Justice, or the Royal Canadian Mounted Police consider themselves responsible for finding Alzoabi.Footnote 86 In January 2019, Foreign Minister Freeland told reporters in Sherbrooke, Quebec, that the Alzoabi case was being looked into.Footnote 87 However, internal emails from Global Affairs “tell a different story.”Footnote 88 “Based on the traffic I’ve seen there’s no proof of Saudi involvement,” Amy Mills, Global Affairs spokeswoman, wrote in an email, despite a Crown prosecutor in Cape Breton having stated that the Saudi embassy posted Alzoabi’s bail.Footnote 89 According to Mills’s email, “[t]here’s talk of reaching out to ask but that would be a political call and I don’t think anyone recommends that at this time.”Footnote 90 Brendan Sutton, a Global Affairs deputy director, responded: “Well put, Amy.”Footnote 91 There is no indication that Canadian police sought an INTERPOL red notice for either fugitive.
In our view, the lack of action by the United States — and lack of interest on the part of Canada — is disturbing, particularly given the seriousness of the prosecutions that the Saudi nationals escaped and most especially because many of them involved sexual assault, sometimes of children. It is axiomatic that individual Canadian and US citizens have no standing in any state-to-state dispute under international law, and, therefore, none of the legal analysis provided here thus far would ground a remedy for any of the victims in these cases; the injured states are free, as Canada and the United States have done so far, to sweep the matters under the proverbial rug. This is unlikely to provide much comfort to the victims or to ordinary citizens who might reasonably expect their governments to respond in some way.
Thus, it is not just that the territorial state’s exclusive jurisdiction over criminal enforcement has been undermined but also that this breach of international law has resulted in real-life harm to people whom the criminal justice system is supposed to protect. It seems intuitive that the lack of response to the illegal actions of the KSA must amount to a breach of some duty owed by these states to their citizens, yet this is a complex question. Quite apart from whether some remedial proceedings might be available under domestic law, the only potential international law route would be by way of some obligation on the affected state to prosecute the alleged perpetrators or at least to attempt to do so. It is to that topic that we now turn.
Is There an Obligation to Prosecute?
extradite or prosecute?
The idea that states have a general obligation to prosecute crimes has been lurking in international law since Grotius, who postulated the principle of aut dedere aut punire, meaning “either extradite or punish.”Footnote 92 Modern terminology replaces “punish” with “prosecute” (aut dedere aut judicare) to better reflect the possibility that an accused individual may be found not guilty.Footnote 93 The principle requires that states criminalize certain dangerous conduct through their criminal law as well as take steps to either prosecute those who engage in such conduct or extradite the offender to another state prepared to try them.Footnote 94
The justifications for the principle are clear. An obligation to either prosecute or extradite those who commit crimes works as a deterrent for potential future offenders, helps to avoid the problem of vigilante justice, and guarantees respect for the rule of law.Footnote 95 It avoids the possibility of some states becoming “safe havens” for criminals. Additionally, and perhaps most importantly, aut dedere aut judicare promotes healing and reconciliation for crime victims.Footnote 96 What is still being debated, however, is the principle’s status in international law. There has been disagreement about the extent to which aut dedere aut judicare applies today. More specifically, the breadth of the principle has been questioned – whether it has general, customary application or whether it only applies to specific international offences.
Customary International Law
An evaluation of international law, as it currently stands, suggests that the aut dedere aut judicare principle is only obligatory under custom for certain categories of crimes, the range of which is still in dispute.Footnote 97 For instance, there is recent consensus that there may be a customary duty to prosecute crimes against humanity,Footnote 98 and it is certainly arguable that the obligation to prosecute breaches of the Geneva Conventions has passed into custom.Footnote 99 Any assertion that the customary obligation applies more broadly has been largely rejected, at least up until this point, both by academics and in international politics. As recently as 2011, when Special Rapporteur Zdzislaw Galicki proposed customary international law as a source of the obligation to prosecute or extradite, there was “general disagreement” among states with the notion that “the customary nature of the obligation to extradite or prosecute could be inferred from the existence of customary rules proscribing specific international crimes.”Footnote 100
There is, of course, powerful moral force behind the idea that states should be obliged to extradite or prosecute persons alleged to have committed serious crimes. The late M. Cherif Bassiouni was one of the foremost promoters of this point of view, arguing that the obligation “should be deemed a civitas maximas, … because world states face a certain vulnerability presented by the harmful conduct of international, transnational and domestic criminality.”Footnote 101 However, it has generally been accepted that no customary law obligation exists to either extradite or prosecute perpetrators even for most of the most serious international crimes.Footnote 102 Even Bassiouni admitted that state practice shows that aut dedere aut judicare has not yet been recognized as making up part of general international law, except for the case of certain international offences or when a specific treaty obligation exists.Footnote 103
This is not to say such a customary obligation is not on the horizon. In 2014, the International Law Commission (ILC) submitted a report to the UN General Assembly that concluded its work on the obligation to prosecute or extradite. In that report, the ILC noted that states have expressed a desire for cooperation among both states and international tribunals in fighting crime, particularly international crime, in accordance with the rule of law.Footnote 104 In making that statement, the report referenced a meeting between heads of states in 2012:
In the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, the Heads of State and Government and heads of delegation attending the meeting on 24 September 2012 committed themselves to “ensuring that impunity is not tolerated for genocide, war crimes, crimes against humanity and for violations of international humanitarian law and gross violations of human rights law, and that such violations are properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through national mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law.”Footnote 105
The report is evidence that a growing number of states are recognizing the importance of criminal prosecution in protecting the human rights of their citizens. Additionally, in its concluding remarks, the report explicitly states that any of the ILC’s scepticism regarding customary status for the principle should not be construed as implying that it “has not become or is not yet crystallizing into a rule of customary international law.”Footnote 106 However, the report also states that the obligation to combat impunity through prosecution is “given effect” by various conventions, not by an external duty to prosecute.Footnote 107 Therefore, it seems that the ILC currently shares the scholarly viewpoint: any duty to prosecute crime, outside of crime falling into particular established categories, is not customary and, thus, must be found in treaties.
Treaties
In modern international law, an increasing number of treaties explicitly create an obligation to extradite or prosecute vis-à-vis certain offences. Under these treaties, usually referred to as “suppression conventions,” an extradite or prosecute obligation is paired with a clause awarding jurisdiction to any party state that apprehends a perpetrator, creating what is often referred to as “conditional universal jurisdiction.” To wit, all party states agree that any of them may prosecute any person alleged to have committed the targeted offence and that if they do not prosecute they must extradite to another party state willing to do so. The practical effect is that the states are obliged to facilitate prosecution of the offender, directly or indirectly. According to Miles Jackson, although the specific language proclaiming the obligation occasionally differs, over seventy international agreements include aut dedere aut judicare. Footnote 108 These include the Convention on the Prevention and Punishment of the Crime of Genocide,Footnote 109 the Geneva Conventions,Footnote 110 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Footnote 111
However, none of these explicit articulations of the duty to prosecute are applicable to the crimes of the absconding Saudi nationals. Each of the suppression conventions is specific to a particular crime or range of crimes, and, while they certainly display variety — narcotics trafficking, cybercrime, a range of terrorist acts — they do not typically catch the class of “common crimes” of which the Saudi nationals are accused (mostly, sexual assault). It might be possible for a particular act to be caught — for example, if some conduct met the fairly low threshold for involvement with an “organized group” under the United Nations Convention on Transnational Organized Crime,Footnote 112 this convention’s extradite or prosecute obligation might be available. On the whole, however, the class of criminal conduct here, while serious, does not have an obligation to prosecute attached to it.
an implicit duty to prosecute in international human rights law?
Coercive Human Rights
As discussed above, the types of crimes committed by the Saudi students in both Canada and the United States are not attached to any explicit, treaty-based duty to prosecute. However, there is emerging consensus that certain general human rights instruments implicitly establish a duty to prosecute criminally all violations of human rights.Footnote 113 This is relevant as sexual abuse and violence against women, which make up a majority of the crimes committed by the absconding Saudi nationals, have been recognized as “human rights offences.”Footnote 114 These general treaties do not directly refer to any state obligation to investigate and prosecute individuals who have committed human rights offences.Footnote 115 However, they do both recognize the individual’s right to a remedy for a human rights violation and impose an obligation on states to respect and ensure treaty-protected rights.Footnote 116 The right to a remedy implies both enforcement of the victim’s human rights and redress for the violation.Footnote 117
The right to a remedy established by these agreements has resulted in enforcement bodies moving towards recognizing a duty to prosecute. These bodies, including the UN Human Rights Committee (HRC), the Inter-American Court of Human Rights, and the European Court of Human Rights, “have interpreted their mandate in monitoring compliance with international conventions as comprising the imposition of obligations to criminalize, prosecute, and punish human rights violations.”Footnote 118 According to Mattia Pinto, this increasing reliance upon human rights law to order states to ensure criminal accountability at the domestic level amounts to what Alexandra Huneeus has dubbed “international criminal law by other means.”Footnote 119 There is a large literature on this subject, covering the breadth of international human rights law instruments, which we do not intend to canvass here.Footnote 120 Generally speaking, the argument that these general treaties impose a duty to prosecute on states is reflective of the emerging principle of “coercive human rights,” which holds that modern criminal law needs to be refined to meet modern human rights obligations:
The necessity of reconstruction of the criminal process in line with these developments is generally seen as a result of the contemporary untenability of the sovereignty-based arguments against the necessity of an application of the requirements of international human rights law, which have been successfully penetrating into domestic criminal justice discourse leading to a perceptible process of domestication of international human rights standards in the national constitutional and legal discourse. … [I]n the structure of criminal process, the emerging concept of the procedural obligation in human rights law, which in its criminal-law aspect, in the most general terms, can be determined as the obligation to investigate, prosecute and, if appropriate, punish criminal attacks on human rights, [has been introduced]. Such an obligation is not owed to the society as a whole but to the person who has suffered personal damage by the occurrence of a criminal offence.Footnote 121
According to Krešimir Kamber, even though the scope and strength of human rights protection via criminal law varies widely amongst states, depending on regional, social, and political values, there has been a trend towards a universal acceptance that human rights law creates positive procedural obligations.Footnote 122 More specifically, she argues that one of these developing universal obligations is a “coercive duty” on states to prosecute harmful conduct.Footnote 123
This idea of coercive human rights, in this context, can be seen in modern human rights instruments, including a number of conventions, declarations, and other non-binding instruments created by various UN bodies, that express the idea that states ought to provide criminal justice mechanisms for serious breaches of human rights standards.Footnote 124 One such document, for instance, is the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims Declaration), unanimously adopted by the UN General Assembly in 1985Footnote 125 and primarily concerned with victims of criminal offences under domestic law.Footnote 126 The preamble of the Victims Declaration calls on states to “establish and strengthen the means of detecting, prosecuting and sentencing those guilty of crime.”Footnote 127 This goal is evident in the content of the declaration, particularly Article 4, which states that victims “are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.”Footnote 128 While the principles of the Victims Declaration are non-binding recommendations “for the appropriate measures to be taken at the international, regional and national level in securing victims’ rights,”Footnote 129 its wide acceptance at the international level signals a shift towards victim-centred justice and, thus, a duty to prosecute violations of victims’ human rights.
Duty to Prosecute under the International Covenant on Civil and Political Rights (ICCPR)
The main human rights instrument of interest here is the ICCPR Footnote 130 as both Canada and the United States are parties. Any duty to prosecute under the ICCPR is generally conceived as an obligation to provide a remedy for violation of substantive ICCPR-protected rights.Footnote 131 The relevant procedural obligations of parties can be found in Article 2. Article 2(1) provides that a state party is required to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights found in the treaty. Relatedly, Article 2(3) requires a state party to provide an effective remedy to those whose rights are violated as well as to ensure that such remedies are enforced. These obligations are binding on all states parties to the ICCPR,Footnote 132 and a failure to bring perpetrators of human rights violations to justice could give rise to a breach of the treaty.Footnote 133
However, it is important to remember that the right to a remedy under the ICCPR does not exist in a vacuum. Any obligation to prosecute under Article 2(3) of the ICCPR has to be taken in conjunction with one of the substantive provisions of the treaty.Footnote 134 Thus, in order to demonstrate a breach of obligation on the part of Canada or the United States, it first has to be shown that the crimes committed by the Saudi nationals actually amounted to human rights violations. There are several applications that could be raised, but Liora Lazarus convincingly locates an implied positive right to individual protection from crime in Article 9, which protects, inter alia, the “security of person.”Footnote 135 In General Comment no. 35, the HRC distilled its findings in a number of previous matters and stated:
The right to personal security also obliges States to … protect individuals from foreseeable threats to life or bodily integrity proceeding from any government or private actors. States parties must also take both measures to prevent future injury and retrospective measures, such as enforcement of criminal laws, in response to past injury[.]Footnote 136
At least so far as the sexual assaults go, this duty is reinforced by the Convention on the Elimination of All Forms of Discrimination against Women,Footnote 137 Article 2 of which obliges states to “take all appropriate measures,” including the use of legislation, to eliminate discrimination against women. Moreover, the UN Special Rapporteur on Violence against Women has suggested that there is now a rule of customary international law requiring states to address gender-based violence with “due diligence,” which includes “positive action to prevent and protect women from violence, punish perpetuators of violent acts and compensate victims of violence.”Footnote 138
All of this would suggest that, as sexual crimes are paradigmatically “human rights crimes,” even when perpetrated by private actors, any reasonable construction of the right to personal security would impose an obligation on Canada and the United States to prosecute the offences at issue here. A duty to be “duly diligent” would certainly also encompass the police and the governments of Canada and the United States to make some kind of effort to apprehend the perpetrators once they jumped bail, particularly where there are at least some avenues (INTERPOL notices, diplomatic representations, and so on) available for them to do so.
Remedial Considerations
Given that some authority exists for a finding of a duty to prosecute in relation to violations of the ICCPR, one question still remains: what avenues are available for the victims to receive remedies? The ICCPR provides two petition systems, either of which could theoretically be used to establish a breach of Canada’s or the United States’ duty to prosecute the Saudi nationals. First, there is a petition system under which the HRC can receive and consider complaints from states parties regarding other states parties’ non-compliance with their ICCPR obligations.Footnote 139 Under this first system, the responsibility would be on another state to report the violation.
The more helpful system is likely the second, which permits individuals (rather than states) to submit complaints directly to the HRC for consideration.Footnote 140 Under this system, complaints can be submitted by the alleged abuse victim (so long as they have exhausted all local remedies), and they are to be forwarded to the relevant state party, which is required to respond to the HRC within six months.Footnote 141 While the HRC’s final views on the matter after the state responds are technically non-binding, “given that they are usually publicized by one or the other party, … such views may serve as a source of political pressure on States, thus encouraging compliance.”Footnote 142 However, this remedy is only available if the offending state is a party to the Optional Protocol to the ICCPR Footnote 143 — thus, Canada can be subject to the regime, but the United States cannot.Footnote 144 Therefore, the ICCPR would only provide a claims mechanism for individual Canadian victims. It would be the responsibility of another state to report the US violation in order to provide redress for US victims.
Moreover, introducing a sense of realism to this route is probably wise. The legal developments regarding a human rights-based obligation to prosecute are far more advanced under the European Convention on Human Rights and even the American Convention on Human Rights than the ICCPR. Footnote 145 State party adhesion to the views of the HRC, moreover, is (to put it politely) uneven, and its findings are not subject to direct application in the law of states parties. The battle for an individual remedy in these cases would certainly be uphill if it were to be undertaken.
Conclusions
This article has presented what we hope is a convincing case that a state that assists its nationals (or any individuals) to jump bail has acted in a manner that breaches some fairly fundamental principles of international law and has manifestly violated the sovereignty of the territorial state. In the case examples used, it seems inarguable that Saudi Arabia has breached the sovereignty of both Canada and the United States in so doing. However, these cases also illustrate the disappointing reality — disappointing, certainly, from the point of view of the victims of the alleged crimes — that, while offended states have a number of solid and potential avenues for remedy, they may fail to pursue these out of some vague sense of national interest or through simple neglect. Nor are potential direct remedies for the victims without obstacles.
From several points of view, this is not a good thing. On some views, the sovereignty of states in international law is “not so much a static fact as a reiterative process of assertion: not just something states possess, but rather something they repeatedly claim, and that is repeatedly recognized by other states.”Footnote 146 To the extent that this is the case, then, when states permit intrusions into their sovereignty, without protest,Footnote 147 it is undermined. This is particularly the case, in our view, with regard to a “hard” rule of customary international law like the prohibition of one state interfering with another’s jurisdiction generally and the specific prohibition on extraterritorial enforcement jurisdiction. Notionally, where this conduct goes unprotested, then the entire norm itself is weakened. Realistically, the failure of Canada and the United States to protest the Saudi conduct here may or may not threaten the status of the overall rule, but it can hardly be healthy for the sovereignty of either state. This is, as well, to say nothing of the victims, who are left largely without redress. It is hollow for legal doctrine to describe the international law of jurisdiction as being intended to allow states to use their criminal laws to protect their nationals when breaches of that law are left unaddressed and perpetrators are blithely permitted to go free. In a time when, at least in North America, dialogue about sexual crimes is more open than ever, it is profoundly disappointing that states might use the difficulties involved with transnational prosecutions as an excuse to do nothing. As both public policy and moral imperative, more is surely required.
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