Opinion Number. 907

Subject

EXTRADITION: GERMAN NEW GUINEA WHETHER EXTRADITION LIES FROM DUTCH NEW GUINEA TO GERMAN NEW GUINEA UNDER EXTRADITION TREATIES BETWEEN GREAT BRITAIN AND NETHERLANDS: STATUS OF GERMAN NEW GUINEA UNDER BRITISH MILITARY OCCUPATION

Key Legislation

TREATY BETWEEN GREAT BRITAIN AND NETHERLANDS FOR MUTUAL SURRENDER OF FUGITIVE CRIMINALS (1898). Arts II. XVIII: TREATY BETWEEN GREAT BRITAIN AND NETHERLANDS RELATING TO EXTRADITION OF FUGITIVE CRIMINALS BETWEEN CERTAIN BRITISH PROTECTORATES AND NETHERLANDS (1914), Art.I

Date
Client
The Secretary, Prime Minister's Department

The question has been referred by the Secretary of the Prime Minister's De-partment for advice as to the desirability of taking further action to secure the extradition of a German citizen, named A., the Captain of the motor schooner Rabaul, from Dutch New Guinea, to answer before the British courts in the Colony of German New Guinea two criminal charges, one of theft of the schooner at some date on or subsequent to 26 May 1917, and the other of sodomy alleged to have been committed with the native crew on the voyage between Rabaul and Lassul Bay about the same time.

The facts are set out in the following letter from the Naval Secretary to the Secretary of the Prime Minister's Department:

In January of this year, a report was received by this Department to the effect that a motor schooner of 20 or 25 tons, under the control of a German named A., was lying at Wakde in Dutch New Guinea, and that it had come from German New Guinea.

On 31 January 1918 the Administrator at Rabaul was communicated with and asked if he had information about A.

On 14 February 1918 the Administrator replied that A. had left Rabaul on 26 May last in a schooner named Rabaul belonging to the Hernscheim Company with a pass good for a 6-weeks recruiting trip, and that he was wanted by the authorities at Rabaul on a charge of theft of the schooner and also on a charge of sodomy alleged to have been committed with the native crew on the voyage between Rabaul and Lassul Bay. The Administrator also suggested that extradition proceedings were not possible, owing to the Extradition Treaty being in abeyance during the war.

On 15 February 1918 the Naval Commander-in-Chief, China, was acquainted with these facts. On 16 February 1918 the Commander-in-Chief, China, replied that he was in communication with the Consul-General, Batavia, and would see if anything could be done to have A. extradited. On 22 April 1918 the Commander-in-Chief, China, asked if the evidence was sufficient to warrant a request for extradition to The Hague, as the Dutch colonial authorities were not amenable.

On 17 May 1918 the Administrator, Rabaul, was informed of the telegram of the Commander-in-Chief, China, and asked if there was sufficient evidence against A. to forward a request for A.'s extradition. On 24 May 1918 the Administrator replied that the evidence was sufficient to forward the request.

On 27 May 1918 the Commander-in-Chief, China, was informed that the evidence was sufficient to forward the request for extradition.

On 30 May 1918 the Commander-in-Chief, China, communicated with this Depart-ment, and stated that the request had been made to the Dutch authorities, Dutch New Guinea. A copy of the Commander-in-Chiefs letter, and the report of the Consul-General are enclosed herewith.

The Board considers that the advisability of taking any further action to secure the extradition of A is a matter for the consideration of your Department, and it has therefore set out the whole of the facts with a view to enabling your Department to come to a conclusion on this point.

The Commander-in-Chief, China, and the Administrator at Rabaul are being informed that this course has been adopted.

It appears that the objections of the authorities of Dutch New Guinea were based upon the opinion that the Extradition Treaties of 1898 and 1914 between the Netherlands and Great Britain did not apply to this case, and, more particularly, referring to the provisions of Art. XVIII of the Treaty of 1898 and Art. I of the Supplementary Treaty of 1914, 'since the alleged offence was not committed in a British Colony, possession, or Protectorate in the sense of the words in the Treaties'.

In my opinion the objection of the Dutch authorities is well founded. I do not think that the Colony of German New Guinea in British occupation is a British Colony, possession, or Protectorate within the meaning of the Treaties, nor does it appear that either offence was committed in the occupied territory, but rather that both were committed at sea. Moreover, neither of the alleged crimes is amongst those enumerated in Art. II of the Treaty of 1898 as crimes for which extradition is to be granted, though both come within the general discretionary clause at the end.

As supporting the Dutch view I refer to Wheaton's Elements of International

Law, 5th edn, pp. 520-1:

The rights of occupancy, then, cannot be co-extensive with those of sovereignty. They are due to the military exigencies of the invader, and consequently are only provisional. The local inhabitants do not owe the occupant even temporary allegiance; and the national character of the locality is not legally changed.

And at p. 521:

It was held, too, in the French Courts, that a crime committed by a Frenchman in Spanish territory which was at the time occupied by the French forces, was a crime committed in foreign territory. I do not think, therefore, that further action at the present time would be likely to lead to the extradition of the accused.

[Vol. 16, p. 139]