Even after Monday’s press conference by the Australian Federal Police, there are a number of unanswered questions hanging over the fate of Andrew Chan and Myuran Sukumaran.
In response to questions about a possible recurrence, we are told that there is still no certainty that something similar could happen again and that the decision was a very 'difficult' one. For a press conference that has been ten years in the making, this is not reassuring.
As it was, while the police explained why they could not have arrested the ring before they left Australia (due to a lack of sufficient evidence), none of them seem to have turned their attention to whether they could have been arrested on their return (laden with drugs and therefore with the evidence of their guilt presumably readily to hand).
Unfortunately, formulating a principled response to the executions has been bedevilled by the fact there has been a lot of xenophobia around the debate with some serious hypocrisy on display (given Australia’s own gaping human rights issues and its silence around its allies’ far more frequent use of the death penalty).
A useful starting point in formulating such a response seems to me to be Australia’s 1992 Extradition Treaty with Indonesia – a document not mentioned in any commentary to date – or by the AFP. Extradition, the international law mirror image of asylum, allows a country to hand over to another country people who are wanted in that country for trial (whether nationals of the requesting country or not). Most nations recognise restraints on extradition – the crime must be serious and criminal in both states, the extradition must not result in double jeopardy (i.e. in a second trial for the same offence) and not be for a 'political' offence.
People must only be tried for the crimes for which they are extradited. All of these are reflected in Australia’s treaty with Indonesia. Crucially for current purposes, it is a general principle of international law (reflected also in Article 7 of the Extradition Treaty) that extradition will not be granted where the death penalty will be imposed for that crime in one state but not the other.
Obviously, the Extradition Treaty is not directly applicable here. The men were arrested by Indonesian authorities and tried for Indonesian offences in an Indonesian court. Nevertheless, the major – if not the sole – reason for their arrest and trial was the action