Image Credit: Bruns/AP
The press has been giving an extraordinary amount of attention to Switzerland’s recent refusal to extradite Roman Polanski to the United States. Little attention, however, has been given to the actual law that the Swiss are trying to use to support their decision. Although much of the decision rested on a procedural quirk, the Swiss also argued that the public international law supported their decision. In particular, the head of the Swiss Federal Department of Justice and Police contended that the principle of “protection of confidence” applied in Polanski’s case:
Mrs Widmer-Schlumpf said the protection of confidence is a principle of international and national law.
“To these considerations based on the extradition treaty with the USA it is necessary to add considerations based on general international law, that is international public order, according to which international treaties are not to be interpreted only according to their wording, but also to their sense and purpose.
“They have to be fulfilled respecting the principle of good faith. This protection of confidence is a general principle laid down in specific norms both in international law and in Swiss national law, and precisely in article 9 of the Federal Constitution.
“In particular it is necessary to take into account the fact that it is generally known that, since he bought his house in Gstaad in 2006, Roman Polanski has been regularly staying in Switzerland. Nonetheless the US authorities did not file any formal extradition request for years,” said Mrs Widmer-Schlumpf.
She said although Roman Polanski was registered in the Swiss registry of wanted persons, he was never controlled by the Swiss authorities.
“These circumstances justified a confidence basis and Roman Polanski would not have decided to go to the film festival in Zürich in September 2009 if he had not trusted that the journey would not entail any legal disadvantages for him.
“Considering all the aspects of this case – and in particular the extradition request which is not satisfying as far as the presentation of the facts of the case is concerned and the principles of State action deriving from international public order– the extradition request has to be rejected,” she said.
The principle of “protection of confidence” appears to be a pseudo-equitable principle blending the concepts of laches, equitable estoppel, good faith, and American notions of due process. The principle protects the legitimate expectations and entrenched interests of individuals from arbitrary government intervention. The Swiss apparently believe that America’s delay in making an extradition request was unreasonable and led to a legitimate belief on the part of Polanski that he was no longer being pursued by American authorities.
I question whether there is any real international law principle of “protection of confidence,” at least in the context seen in the Roman Polanski case. Although ICJ cases like Temple of Preah Vihear and some ICSID cases suggest that principles of estoppel and good faith apply to the actions of states, those cases implicate much different interests than those seen in the criminal context. In the criminal case, the state is acting — at least in part — to vindicate the interests of particular individuals (victims) who have often suffered substantial, physical harm. That is to be contrasted with the investor-dispute context where the relevant harms are commercial, or the “national disputes” context (like Preah Vihear) where the relevant interests implicate complex but abstract notions of power and state sovereignty. International law seems a poor mechanism for creating de facto statutes of limitations in the criminal context because different nations value these physical harms differently. If the Swiss are right, can the principle now be used to avoid extraditing fugitives any time the country holding the fugitive feels the requesting country made inadequate attempts to capture him? Is the passage of time enough to refuse extradition?
State practice also seems to support the view that the Swiss got it wrong, as I could not find any case applying the “protection of confidence” principle in the context of extradition or international criminal law. Indeed, some cases suggest that “protection of confidence” and legitimate expectations have only a limited role in international law. See, e.g., the WTO’s decision in EC-Computer Equipment (rejecting recourse to principles of “legitimate expectations”).
Polanski’s actions also belie the suggestion that he developed any expectation that he would be free from prosecution. Polanski, after all, had not returned to the United States since he initially fled in 1978.
I recognize that this case is controversial, and many feel it should not have been brought in the first place. I don’t want to enter that argument, but I do want to suggest that the Swiss “international law” argument strikes me as a weak one. It will be interesting to see if the Swiss (or any other country receiving an extradition request for Polanski) will look to this argument again.
-Michael
I’m very glad you wrote up this essay, because I was finding it very frustrating that I couldn’t find any sort of explanation (in slow-motion, for a layman like me) of the legal basis for the Swiss decision, which I really didn’t understand, and wished to understand.
I have one comment on one remark you made, which was, “in the criminal case, the state is acting — at least in part — to vindicate the interests of particular individuals (victims).”
In THIS case, of course, that isn’t so. Indeed, the state was acting CONTRARY to the expressed wishes of the “victim”–who even went so far as to say she was glad that the Swiss resolved the matter as they did, after Mr. Polanski was released by the Swiss courts.
You’re absolutely right. I only wanted to note that difference as a general matter to suggest that the principle should not have general application in the criminal context. Thank you for you comment!
The principle of “protection of confidence” appears to be a pseudo-equitable principle blending the concepts of laches, equitable estoppel, good faith, and American notions of due process.
I hearby re-dub the protection of confidence to be “due lachestoppel faith.”
I’ve looked a bit at the link you put up, and, damn, from what I can see, the Swiss claim is BS. But even just having a concept like “protection of confidence” seems like a very bad idea for international law — it makes the administration of international law more arbitrary. And besides, “protection of confidence” appears to be nothing more than CIL on a micro scale. If a state suggests or says that a law is one thing, and then acts as if it were abiding by that law, you’ve got opinio juris and state action, so the state cannot later shout “Surprise!” and claim that the law had really been something different all along.
So really, anything protection of confidence might possibly contribute to international law can be better provided for by national treatment obligations or by more rigid formations of international due process.
And ignoring the fact that I’m not seeing a good reason to apply it in the criminal/extradition context, the Polanski case doesn’t even meet the formal requirements of protection of confidence. From ADF v. US, “any expectations that the Investor had with respect to the relevancy or applicability of the caselaw it cited were not created by any misleading representations made by authorized officials of the U.S. Federal Government.” A few other cites suggest that for the principle to apply, there needs to be some sort of affirmative misleading by the state party — but Switzerland doesn’t even try to point to any. And the fact Polanski was registered as a wanted person in Switzerland should’ve put him on notice, destroying any legitimate expectation. There is no mini-opinio juris from the US here.