M. Cherif Bassiouni Weighs In on the Amanda Knox Extradition, and Gets It Wrong

by Julian Ku

I have been feeling a little guilty for blogging about the Amanda Knox case since it is more of a People Magazine topic than an Opinio Juris one.  But just today, I realized that even someone as respected in the international law field as M. Cherif Bassiouni has opined on her extraditability in this OUP blog post from last April.  So maybe it’s OK after all, especially since Bassiouni’s view that she is not extraditable is (in my view) flatly wrong.

Bassiouni, a giant in the field of international criminal law and the author of the leading treatise on the international law of extradition, argues that Amanda Knox is not extraditable to Italy because of the admittedly unusual Italian criminal procedure that seems to subject defendants to convictions, acquittals, and then conviction again in violation of the rule of ne bis in idem (double jeopardy).

As I have explained, no US court has held that the double jeopardy protection of the Fifth Amendment would prevent an extradition because no U.S. court has applied that Fifth Amendment protection to actions by a foreign government.  In other words, no U.S. has held that a U.S. citizen can invoke the Fifth Amendment against the prosecution of a foreign government.  It is possible a court might do so, but there has been no signs of that so far.

But what really bothers me is that Bassiouni makes the same mistake that many other (far lesser in stature) legal commentators have made when he suggests that Article VI of the US-Italy Extradition treaty imposes a double-jeopardy requirement on the Italian government.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text).

With all due respect to Professor Bassiouni, this is not quite right. I point him and others to my first post on this subject and I re-do the discussion below.   Here is Article VI:

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

(Emphasis added.)

I don’t think it is possible to read this language as imposing a non bis in idem requirement on Italy, since Italy is not the “Requested Party” in the Amanda Knox case.  The only way Amanda Knox could invoke Article VI is if she has been “convicted, acquitted or pardoned,or has served the sentence imposed” by the United States, which is the “Requested Party.”  But Knox has not been charged or punished for this crime in the United States, so she can’t invoke Article VI.

As Bassiouni points out, the complexity of Italy’s criminal procedure could possibly violate the prohibition on non bis in idem contained in the European Convention on Human Rights.  I don’t know enough about Italy’s criminal procedure or the ECHR’s jurisprudence in this area to know if he is right, but I do know that this issue is not something that would be considered in the “extraditability” analysis by a U.S. court.  Knox could (and probably has) raised this argument in Italian courts, or directly before the ECHR. But it should not affect her extraditability.

Because of Bassiouni’s stature, his blogpost will be (and already has been) repeated by media reports for the proposition that Knox has a credible double-jeopardy defense to extradition.  But although they are right to cite Bassiouni as a leading authority on international extradition, he’s wrong on this one.

http://opiniojuris.org/2015/03/26/m-cherif-bassiouni-weighs-in-on-the-amanda-knox-extradition-and-gets-it-wrong/

13 Responses

  1. I love all things Amanda Knox, and I love your posts on her. Don’t apologize!

  2. Thanks Julian. You may find of interest the case of Canada v Schmidt, [1987] 1 SCR 500, concerning an attempt to resist extradition from Canada to the United States on the grounds that an acquittal for kidnapping under federal law was a double jeopardy bar to extradition on a state charge of child stealing. Argument rejected. What seems strange or unusual in one jurisdiction may not be strange or unusual in another etc. Case online at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/210/index.do

  3. Thanks for the post . With all due respect, and despite my ignorance of the Italian law, I can’t understand, from that post at least, how a formal reading and analysis of provision in a treaty, can come at the back of very substantial principle in national and international law:

    Fair trial !! fair system or judiciary !! Because in many judiciaries , if a person, proves in fact, that in the designated country, he won’t get a fair trial, extradition can be annulled, and by all means, avoiding double jeopardy, is a very basic concept or lay of decent judiciary .

    Thanks

  4. Julian is correct, but the US Pres. is bound by the 5th Amend here or abroad. So the real Q is what does the 5th req. — today, not that the US cannot extradite. Perhaps if there was a h.r. violation and a “real risk” for Amanda Knox, the 5th would be interp. to deny extradition.

  5. Indeed, here is what I concluded in a lengthy article on double jeopardy in the international system (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121906):

    [E]xtradition shall be refused, it will be recalled, only where there has been a final judgment rendered against the individual in the “requested State.”

    But what about where the individual already has been convicted or acquitted in the REQUESTING state, and is likely to be subject to yet another prosecution for the same offense upon return? Or has already been convicted or acquitted in a third state? The overwhelming majority of extradition treaties are manifestly silent; and the silence is not accidental. Rather it evinces two interrelated points about the treaties: (1) they do not purport to establish an unqualified right to be free from double jeopardy—often even among states parties; and (2) their double jeopardy provisions certainly were not intended to be generalizable to states outside the treaty.

    . . . .

    This [double jeopardy] exception, viewed with even a modest degree of skepticism given its particularly narrow coverage, may not have much to do at all with the individual’s rights when compared with another, apparently more salient motivation: the requested state’s sovereign interest in not seeing its own proceedings repeated, questioned, or overturned by foreign courts.

  6. the CNN “legal analyst” — Jeffrey T — just made the erroneous Art. 6 claim on CNN.
    He has proven before that he does not fully understand international law (being fair).

  7. Anthony, the words “final” and “finally” provide the answer here re: the Italian legal process. There may be a “final” decision today, but there has not yet been one — we are waiting in “real time” to see what the decision will be.
    Prediction: guilty and extradition request.
    Is she really “guilty”? Who knows?

  8. The “way out”? — guilty but sentenced to time served

  9. I have been feeling a little guilty for blogging about the Amanda Knox case since it is more of a People Magazine topic than an Opinio Juris one

    Are you crazy, Professor Ku? You can’t turn down true crime drama and international law!

  10. conviction annuled

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