Extradition

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Definition

Extradition is the official process by which one nation or state surrenders an individual found on its territory to another nation or state where that individual is wanted either to stand trial for an alleged offense or to serve an already pronounced penal sentence. The nation or state asking for extradition of an individual is known as the requesting state, and the nation or state in which the individual is currently found is known as the requested state.

Between nations, extradition is regulated by both treaties and the principles of international law. It should be noted that many countries decline to surrender their own nationals to other countries.[1] Additionally, extradition is not appropriate where an individual is merely wanted to give evidence as a witness - in such cases the matter must be settled by requesting a letter rogatory .

Sources of Extradition Law

Under generally accepted international law, a nation does not have any obligation to surrender an alleged criminal to a foreign state via a request for extradition because of its own sovereignty and legal authority over people within its borders. However, the desire of the right to demand the extradition of alleged criminals has led to a proliferation of extradition treaties amongst countries to codify the ability to demand extradition. A comprehensive collection of extradition treaties through 1995, sorted by nation, is available through the United Nations Crime and Justice Information Network (UNCJIN) here.

The two major types of international treaties concerning extradition are bilateral treaties and multi-national conventions. For any type of extradition agreement, however, a vital feature of any modern extradition treaty must be "the conscious purpose, openly and regularly pursued, to restore a person to an authority competent to exercise jurisdiction over him or her" in compliance with international and municipal legal norms.[2]

Most countries in the world have signed bilateral extradition treaties, wherein two countries enter into an agreement with specific terms for the extradition of people's within its borders to the other party to the treaty. In 1990, the United Nations created a model extradition treaty providing a framework to assist its Member States wishing to negotiate and conclude bilateral extradition agreements.[3]

Additionally, some countries will enter into multi-national conventions under which several or more nations will agree to extradition terms amongst all signatories. Examples of multi-national conventions on extradition include:

  • European Convention on Extradition[4]
  • Commonwealth Scheme for the Rendition of Fugitive Offenders[5]
  • Arab League Extradition Convention
  • Interamerican Extradition Convention[6]
  • Economic Community of West African States Extradition Convention

Some countries will grant extradition without a treaty, but every such country requires an offer of reciprocity when extradition in such circumstances.[7]

In 1973, the United Nations passed a resolution specifically noting the importance of extradition in the process of punishing war crimes, noting that Member States should take steps to help detect and investigate persons suspected of having committed war crimes and assist in their punishment by facilitating extradition to the home state of the offending individual.[8]

Interestingly, no country in the world has an extradition treaty with all other countries.

Principles of Extradition Law

Because of the myriad treaties governing extradition and the individual circumstances underlying any given extradition request, each case must be considered individually as it arises. However, there are some basic principles common to most extradition laws:[9]

  • Citizenship/Nationality - As noted above in Section 1, many countries will not extradite their own nationals. In such cases, the country may undertake to place its nationals on trial under the conditions laid down in its own laws, applying the principle 'either extradite or judge'. In this sense, a requested state may choose to deny an extradition request when it exercises its own jurisdiction over an individual.
  • Dual Criminality - Generally, an offense is only extraditable if it is punishable in the requesting state and would have been punished in the requested state if committed there. By extension, extradition may be refused if the time limit for prosecution n the requested state has expired, as the offense would no longer be punishable.
  • Potential Punishment - Some countries will refuse extradition on the grounds that the individual to be extradited may receive capital punishment, such as the death penalty, or face torture if returned to the requesting state. A few countries will further refuse to extradite an individual that faces any punishment they themselves would not administer. In Soering v. United Kingdom, for instance, the European Court of Human Rights held that it would violate Article 3 of the European Convention of Human Rights to extradite a German national to the United States from the United Kingdom in a capital case because of the harsh conditions and uncertain timescale of death row inmates.[10]
  • Political Offenses - It is generally accepted international law that political offenses may not give rise to extradition requests. However, since no precise definition of political offenses exists in international law, it falls to the requested country to determine whether a given offense is political in nature.
  • Double Punishment ('non bis in idem') - Extradition may be refused if an individual has already been tried for the same offense.
  • Specificity - An extradited individual may only be tried for the offenses cited in the extradition request. Should any further offenses be later discovered, the requesting state may seek permission from the requested state to extend the terms of the extradition to try the individual for the additional offenses.

Extradition versus Abduction

Because the extradition process can sometimes be time consuming, expensive and complicated, some countries have turned to abduction to recover a fugitive from a foreign state. Abduction involves one state entering a foreign state and removing the fugitive in question without previously requesting permission, or following normal extradition procedures. Such abductions are usually in violation of the domestic law of the country in which they occur, and is of questionable legality under international law as well. In United States v. Alvarez-Machain, for instance, the U.S. Supreme Court held that Humberto Alvarez-Machain's forcible abduction did not prohibit his criminal trial from proceeding.[11] The Supreme Court found that nothing in the U.S.-Mexico extradition treaty specifically prohibited abduction, and that the U.S. still had jurisdiction over Alvarez-Machain. The dissent strongly disagreed and claimed that abduction is a gross violation of international law norms.

Extradition is also very different from the practice of extraordinary rendition, wherein criminal suspects are sent to other countries for imprisonment and interrogation. Where extradition is meant to return fugitives so that they can stand trial or fulfill a criminal sentence, extraordinary rendition is meant mainly to extract information from suspects, often those suspected of terrorist activities. Many critics of the practice of extraordinary rendition say that it is designed to circumvent due process and torture prohibitions and should not be used.

Specific Countries Practice

United States of America

Extradition law in the United States can involve either extradition between the U.S. and a foreign country or interstate extradition between two of the states within the union. For extradition between the U.S. and foreign countries, the extradition process is regulated by treaty and conducted between the federal government and the foreign state, as discussed above. The process is considerably different from intrastate extradition, or interstate rendition, which is governed by Article 4, Section 2, Clause 2 of the U.S. Constitution.

Also known as the Extradition of Fugitives Clause in the U.S. Constitution, Art. 4, Section 2, Cl. 2 of the Constitution requires states, upon demand of another state, to deliver a fugitive from justice who has committed a "treason, felony or other crime" to the state from which the fugitive has fled.[12] The federal statute 18 U.S.C. Section 3182 sets the process by which an executive of a state, district or territory of the United States must arrest and turn over a fugitive from another state, district or territory.[13]

A comprehensive list of US bilateral extradition treaties is available here.


See Jurisdiction

Notes

  1. Countries refusing to extradite their own citizens include France, Russian Federation, Austria, China, Japan, see http://en.wikipedia.org/wiki/extradition
  2. See Introduction to Database on Bilateral Agreements on Extradition, Judicial/Legal Assistance, Control of Narcotic Drugs, and Prisoner Transfer by Country, available at http://www.uncjin.org/Laws/extradit/extindx.htm
  3. Model Treaty on Extradition, G.A. Res. 45/116, U.N. Doc. A/RES/45/116 (Dec. 14, 1990), available at http://www.un.org/documents/ga/res/45/a45r116.htm
  4. Available at http://conventions.coe.int/treaty/en/Treaties/Html/024.htm. The European Convention on Extradition was supplemented by the Simplified Extradition Procedure Between Member States act of the European Union, passed on Mar. 10, 1995 to further facilitate extradition amongst EU Member States. 1995 O.J. (78), available at http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/l14015a_en.htm
  5. Available at http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7B717FA6D4-0DDF-4D10-853E-D250F3AE65D0%7D_London_Amendments.pdf
  6. >Available at http://www.oas.org/juridico/english/treaties/b-47.html
  7. http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/15mcrm.htm#9-15.100
  8. Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, G.A. Res. 3074 (XXVIII) (Dec. 3, 1973), available at http://www2.ohchr.org/english/law/guilty.htm
  9. See generally INTERPOL's Extradition Fact Sheet, available at http://www.interpol.int/public/ICPO/LegalMaterials/FactSheets/FS11.asp
  10. 11 Eur. Ct. H.R. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf
  11. 504 U.S. 655 (1992), available at http://supreme.justia.com/us/504/655/case.html
  12. U.S. CONST. art. IV, Section 2, cl. 2, available at http://www.usconstitution.net/const.html.For further discussion, please see http://en.wikipedia.org/wiki/Extradition_Clause
  13. Text of 18 U.S.C. Section 3182 available at http://www.law.cornell.edu/uscode/18/3182.html. For further discussion, please see http://en.wikipedia.org/wiki/Extradition_law_in_the_United_States