¹ National Defense Authorization Act, Pub. L. No. 104–106, §1342, 110 Stat. 486 (1996).

² See Agreement on Surrender of Persons, Oct. 5, 1994, U.S.-Int’l Trib. Former Yugo. [hereinafter Yugoslav Agreement]; Agreement on Surrender of Persons, Jan. 24, 1995, U.S.-Int’l Trib. Rwanda [hereinafter Rwanda Agreement] (on file with authors).

³ For a discussion of the legitimacy of the use of Security Council authority in this way, see Prosecutor v. Tadić, UN Doc. IT-94-1-AR72, at 17–19 (ICTY App. 1995) (affirming legality of Yugoslav Tribunal’s creation); James C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993).

⁴ SC Res. 827 (May 25, 1993), reprinted in 32 ILM 1203 (1993) (Yugoslav Tribunal); SC Res. 955 (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994) (Rwanda Tribunal).

⁵ Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, annex (1993) [hereinafter Yugoslav Tribunal Statute]; Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, SC Res. 955, supra note 4, annex [hereinafter Rwanda Tribunal Statute].

⁶ Rule 58 of the Rules of Procedure and Evidence of each Tribunal states that the “obligations laid down in Article 29 [Rwanda Article 28] of the Statute shall prevail over any legal impediment to the surrender or transfer of the accused to the Tribunal which may exist under the national law or extradition treaties of the State concerned.” UN Doc. IT/32/Rev.7 (1996) (Yugoslav Tribunal Rules); UN Doc. ITR/3/Rev.1 (1995) (Rwanda Tribunal Rules).

⁷ The explanations of votes of Security Council members on the resolution creating the Yugoslav Tribunal confirm this view. See UN Doc. S/PV.3217, at 15 (1993) (the United States: “the resolution recognizes that States may find it necessary to take measures under their domestic law to enable them to implement the provisions of the Statute”); id. at 24–25 (Japan “intends to cooperate in its implementation to the best of its ability, in accordance with the spirit of internationally established principles on criminal matters and within our Constitution”); id. at 37 (Brazil “is determined … to cooperate fully with the International Tribunal in strict accordance with the relevant Brazilian legislation, which includes the observance of the constitutional competence of the Brazilian Supreme Court to process and judge requests for extradition”).

⁸ 18 U.S.C. §3184, as amended by Pub. L. No. 104–106, supra note 1, §1342(a) (1).

⁹ Id. §3186, as amended by Pub. L. No. 104–106, supra note 1, §1342(a) (1).

¹⁰ See supra note 2.

¹¹ See Yugoslav Tribunal Statute, supra note 5, Art. 18(4); Rwanda Tribunal Statute, supra note 5, Art. 17(4).

¹² See Spatola v. United States, 741 F.Supp. 362, 374 (E.D.N.Y. 1990), aff’d, 925 F.2d 615 (2d Cir. 1991); United States v. Clark, 470 F.Supp. 976 (D. Vt. 1979).

¹³ See, e.g., Treaty of Extradition, Mar. 28, 1995, U.S.-Jordan, Art. 19; Treaty of Extradition, Oct. 13, 1983, U.S.-Italy, Art. XX.

¹⁴ In the bilateral extradition context, most U.S. courts have accordingly rejected the application of the political offense doctrine to such offenses. See, e.g., Eain v. Wilkes, 641 F.2d 504, 518–23 (7th Cir.), cert. denied, 454 U.S. 894 (1981); Ahmad v. Wigen, 726 F.Supp. 389, 401–09 (E.D.N.Y. 1989), aff’d, 910 F.2d 1063, 1066 (2d Cir. 1990); In re Extradition of Artukovic, 628 F.Supp. 1370, 1376 (CD. Cal. 1986); In re Extradition of Demjanjuk, 612 F.Supp. 544, 569–71 (D.C. Ohio 1985). But see United States ex rel. Karadzole v. Artukovic, 170 F.Supp. 383, 393 (CD. Cal. 1959) (finding offenses for which Artukovic was sought to be political and not extraditable under U.S.-Servia Treaty; he was not extradited for another 27 years); Quinn v. Robinson, 783 F.2d 776, 803–04 (9th Cir.), cert, denied, 479 U.S. 882 (1986) (plurality would bestow benefit of political offense exception in some circumstances).

¹⁵ Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554, 568–74 (1995) (discussing applicability of universal jurisdiction to Tribunals’ offenses).

¹⁶ See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3115, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3317, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3517, 75 UNTS 287; Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 UNTS 3; Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 UNTS 609; International Convention Against the Taking of Hostages, GA Res. 34/146, Dec. 17,1979, TIAS No. 11,081; Hague Convention on the Protection of Cultural Property, May 14, 1954, 249 UNTS 240.

¹⁷ See Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Dec. 9, 1968, GA Res. 2391 (XXIII), UN GAOR, 23d Sess., Supp. No. 18, at 154, UN Doc. A/7218 (1968).

¹⁸ The United States would have jurisdiction concurrent to that of the Tribunals only in very limited cases, such as genocide committed by a U.S. citizen, see 18 U.S.C. §1091(d) (1994), hostage taking, see 18 U.S.C. §1203 (1994), attacks on certain internationally protected persons, see 18 U.S.C. §§112, 878, 1116 (1994), torture, see 18 U.S.C.A. §2340A (West Supp. 1996), and the terrorist murder of a U.S. citizen, see 18 U.S.C. §§1119, 2332 (1994). (The Geneva Conventions of 1949 have never been implemented in U.S. legislation, although many of the offenses proscribed therein are also proscribed for U.S. service people by the Uniform Code of Military Justice.) Moreover, there would be enormous logistical difficulties and costs in conducting a U.S. prosecution for offenses over which the Tribunals have jurisdiction, as it would be based upon acts taking place thousands of miles from the United States and would likely involve witnesses and physical evidence located outside the United States.

¹⁹ See Yugoslav Tribunal Statute, supra note 5, Art. 10; Rwanda Tribunal Statute, supra note 5, Art. 9.

²⁰ Reid v. Covert, 354 U.S. 1, 16 (1957).

²¹ See Gallina v. Fraser, 177 F.Supp. 856, 866 (D. Conn. 1959), aff’d, 278 F.2d 77 (2d Cir.), cert. denied, 364 U.S. 851 (1960) (“regardless of what constitutional protections are given to persons held for trial in the courts of the United States … those protections cannot be claimed by an accused whose trial and conviction have been held or are to be held under the laws of another nation”). For example, the Sixth Amendment by its terms applies only to “criminal prosecutions,” and not to extradition proceedings. Neely v. Henkel, 180 U.S. 109, 122 (1901). Similarly, the Fifth Amendment’s protection against double jeopardy does not apply to a proceeding by a foreign sovereign. Collins v. Loisel, 262 U.S. 426, 429 (1923).

²² In the bilateral extradition context, the Constitution is not often cited by U.S. courts as the basis for procedural safeguards. Since extradition treaties have almost invariably contained certain minimum procedural requirements analogous to those provided by the Constitution in domestic criminal proceedings, courts have often misleadingly observed that the sole procedures required for extradition are those set forth in the applicable treaty. See Ex parte Charlton, 185 F. 880, 884 (3d Cir. 1912), aff’d sub nam. Charlton v. Kelly, 229 U.S. 447 (1913); United States ex rel Neidecker v. Valentine, 81 F.2d 32, 39–41 (2d Cir.), aff’d, 299 U.S. 5 (1936).

²³ Since chapter 209 is made applicable to surrender proceedings, the case law interpreting the constitutional contours of chapter 209 in the bilateral extradition context probably would be applied by analogy to Tribunal surrender cases.

²⁴ See Sahagian v. United States, 864 F.2d 509, 513 (7th Cir. 1988), cert. denied, 489 U.S. 1087 (1989).

²⁵ Sayne v. Shipley, 418 F.2d 679, 684–86 (5th Cir. 1969), cert, denied, 398 U.S. 903 (1970) (hearing constitutionally required for extradition of fugitive from U.S. Canal Zone to Panama, despite absence of such a requirement in the governing statute).

²⁶ Fernandez v. Phillips, 268 U.S. 311 (1935); Benson v. McMahon, 127 U.S. 457 (1888).

²⁷ See Yugoslav Agreement, supra note 2, Art. 2(3); Rwanda Agreement, supra note 2, Art. 2(3).

²⁸ See Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990) (“The interests of international comity are ill-served by requiring a foreign nation … to satisfy a United States district judge concerning the fairness of its laws and the manner in which they are enforced.”).

²⁹ A few courts have also suggested that judicial consideration of these matters is barred by the political question doctrine. See generally Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 Cornell L. Rev. 1198, 1236–40 (1991). For an argument in favor of inquiry that was in effect rejected on appeal, see Ahmad v. Wigen, 726 F.Supp. 389, 410–15 (E.D.N.Y. 1989), criticized in 910 F.2d 1063, 1067 (2d Cir. 1990).

³⁰ Recendy, in Lobue v. Christopher, 893 F.Supp. 65 (D.D.C. 1995), this authority was declared unconstitutional, but on appeal the district court’s decision was vacated for lack of jurisdiction. 1996 U.S. App. LEXIS 9933 (D.C. Cir. Apr. 30, 1996). Other courts deciding the issue after Lobue have rejected the district court’s reasoning. See, e.g., In re Extradition of Lang, 905 F.Supp. 1385 (CD. Cal. 1995); Carreno v. Johnson, 899 F.Supp. 624 (S.D. Fla. 1995).