Abstract
The effectiveness of bilateral agreements in the context of criminal law enforcement remains highly contested. In the Indonesian context, such bilateral cooperation classifies two modalities of indirect law enforcement systems, namely, extradition and mutual legal assistance (MLA) in criminal matters. This article attempts to explain these modalities through a behavioral and rational approach by taking Indonesia’s MLA treaty with Switzerland and its extradition treaty with the Russian Federation as a case study. From this approach, we argue that the state’s decision to cooperate implies the adoption of control and consensus models. However, these two models were induced by political preferences rather than the sole reliance on the maxim aut dedere aut judicare in criminal laws. At the domestic level, the attitudes of penal entrepreneurship and institutional arrangement showcase the multifaceted state’s rationality in deciding a treaty design in criminal law cooperation.
Highlights
Instead of focusing solely on the legal element, this work considers the legalization in international law, which is the process of bilateral agreement formulation, and the political perspective at the domestic level
We employ the control and consensus model of international agreement accompanied by a rationalist perspective through the behavioral approach lens
The case study reveals that Indonesia applied the consensus model to deal with the former treaty and the control model to tackle the latter case
Summary
Amid these series of efforts, the effectiveness of bilateral agreements in criminal matters is still highly contested Bassiouni argued that these types of indirect criminal law enforcement imply several weaknesses, including the (1) failure to provide an overall framework that integrates all applicable modalities, (2) heavy dependence on the effectiveness of national legal systems, (3) lack of a policy that provides continuity and progressive development, (4) placement of the sole duty on states to act in conformity with treaty obligations without international constraints, (5) overreliance on bilateralism, (6) failure to provide a mechanism for the resolution of conflicts arising between states, and (7) lack of adequate safeguards to ensure “due process.”[2] A number of studies mentioned several shortcomings of these agreements from a domestic perspective, including the lack of a clear provision in the Extradition Law, inefficiency of procedures among law-related institutions, and uncoordinated measures among indirect criminal law enforcement modalities.[3]. Cherif Bassiouni, Introduction to International Criminal Law (Leiden, Boston: Martinus Nijhoff Publishers, 2014), 530
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