Extradition

Extradition is a cooperative law enforcement process by which the physical custody of a person  charged with committing a crime or convicted of a crime whose punishment has not yet been fully served, is formally transferred, directly or indirectly, by authorities of one jurisdiction to those of another at the request of the latter for the purpose of prosecution or punishment, respectively.[1]

Between countries, extradition is normally regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. It is an ancient mechanism, dating back to at least the 13th century BC, when an Egyptian PharaohRamesses II, negotiated an extradition treaty with a Hittite KingHattusili III.[2]

Through the extradition process, a sovereign (the requesting state) typically makes a formal request to another sovereign (the requested state). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process.[2] The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.[2]

Extradition treaties or agreements

The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state, because one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation, and the desire for the right to demand such criminals from other countries, have caused a web of extradition treaties or agreements to evolve. When no applicable extradition agreement is in place, a sovereign may still request the expulsion or lawful return of an individual pursuant to the requested state’s domestic law.[2] This can be accomplished through the immigration laws of the requested state or other facets of the requested state’s domestic law. Similarly, the codes of penal procedure in many countries contain provisions allowing for extradition to take place in the absence of an extradition agreement.[2] Sovereigns may, therefore, still request the expulsion or lawful return of a fugitive from the territory of a requested state in the absence of an extradition treaty.[2]

No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with Russia, the People's Republic of ChinaNamibia, the United Arab EmiratesNorth KoreaBahrain, and many other countries.[3][4] (See Extradition law in the United States.)

Bars to extradition

By enacting laws or in concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. Common bars to extradition include:

Failure to fulfill dual criminality

Generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested states.

Political nature of the alleged crime

Most countries refuse to extradite suspects of political crimes. See political offence exception.

Possibility of certain forms of punishment

Some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture. A few go as far as to cover all punishments that they themselves would not administer.


Aut dedere aut judicare

In law, the principle of aut dedere aut judicare (Latin for "either extradite or prosecute") refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition. The obligation arises regardless of the extraterritorial nature of the crime and regardless of the fact that the perpetrator and victim may be of alien nationality.[1]

Rationale

The rationale for this principle is to ensure that there are no jurisdictional gaps in the prosecution of internationally committed crimes. It is, however, unusual for states to be required to exercise this jurisdiction because often another state party will have an interest in the matter, and so will apply for extradition of the defendant(s). In this situation the state requesting extradition will have priority.

The obligation of aut dedere aut judicare for all crimes is however not assured, and Stigall notes that "some contemporary scholars hold the opinion that aut dedere aut judicare is not an obligation under customary international law but rather “a specific conventional clause relating to specific crimes” and, accordingly, an obligation that only exists when a state has voluntarily assumed the obligation."[2] But in the international crimes for which it is applied, it is "posited [by Cherif Bassiouni] that ... it is not only a rule of customary international law but a jus cogens principle", compelling states to invoke it for any and all crimes that fall under the principle; Kelly finds within Israeli and Austrian judicial decisions "some supporting anecdotal evidence that judges within national systems are beginning to apply the doctrine on their own."

Typical offences

Typically offences classified as falling under the aut dedere aut judicare principle include:


Controversies

International tensions

The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained. Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons (regardless of whether or not this is justified). A case in point is that of Ira Einhorn, in which some US commentators pressured President Jacques Chirac of France, who does not intervene in legal cases, to permit extradition when the case was held up due to differences between French and American human rights law. Another long-standing example is Roman Polanski whose extradition was pursued by California for over 20 years. For a brief period he was placed under arrest in Switzerland, however subsequent legal appeals there prevented extradition.

The questions involved are often complex when the country from which suspects are to be extradited is a democratic country with a rule of law. Typically, in such countries, the final decision to extradite lies with the national executive (prime ministerpresident or equivalent). However, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down procedures. On the one hand, this may lead to unwarranted international difficulties, as the public, politicians and journalists from the requesting country will ask their executive to put pressure on the executive of the country from which extradition is to take place, while that executive may not in fact have the authority to deport the suspect or criminal on their own. On the other hand, certain delays, or the unwillingness of the local prosecution authorities to present a good extradition case before the court on behalf of the requesting state, may possibly result from the unwillingness of the country's executive to extradite.

Even though the United States has an extradition treaty with Japan, most extraditions are not successful due to Japan’s domestic laws. In order for the United States to be successful, they must present their case for extradition to the Japanese authorities. However, certain evidence is barred from being in these proceedings such as the use of confessions, searches or electronic surveillance. In most cases involving international drug trafficking, this kind of evidence constitutes the bulk of evidence gathered in the investigation on a suspect for a drug-related charge. Therefore, this usually hinders the United States from moving forward with the extradition of a criminal.[21]

There is at present controversy in the United Kingdom about the Extradition Act 2003,[22] which dispenses with the need for a prima facie case for extradition. This came to a head over the extradition of the Natwest Three from the UK to the U.S., for their alleged fraudulent conduct related to Enron. Several British political leaders were heavily critical of the British government's handling of the issue.[23]

In 2013, the United States submitted extradition requests to many nations for former National Security Agency employee Edward Snowden.[24] It criticized Hong Kong for allowing him to leave despite an extradition request.[25] Abductions

In some cases a state has abducted an alleged criminal from the territory of another state either after normal extradition procedures failed, or without attempting to use them.

Extraordinary rendition

"Extraordinary rendition" is an extrajudicial procedure in which criminal suspects, generally suspected terrorists or supporters of terrorist organisations, are transferred from one country to another.[27] The procedure differs from extradition as the purpose of the rendition is to extract information from suspects, while extradition is used to return fugitives so that they can stand trial or fulfill their sentence. The United States' Central Intelligence Agency (CIA) allegedly operates a global extraordinary rendition programme, which from 2001 to 2005 captured an estimated 150 people and transported them around the world.[28][29][30][31]

The alleged US programme prompted several official investigations in Europe into alleged secret detentions and illegal international transfers involving Council of Europe member states. A June 2006 report from the Council of Europe estimated 100 people had been kidnapped by the CIA on EU territory (with the cooperation of Council of Europe members), and rendered to other countries, often after having transited through secret detention centres ("black sites") utillised by the CIA, some of which could be located in Europe. According to the separate European Parliament report of February 2007, the CIA has conducted 1,245 flights, many of them to destinations where suspects could face torture, in violation of article 3 of the United Nations Convention Against Torture.[32] A large majority of the European Union Parliament endorsed the report's conclusion that many member states tolerated illegal actions by the CIA, and criticised such actions. Within days of his inauguration, President Obama signed an Executive Order opposing rendition torture and established a task force to provide recommendations about processes to prevent rendition torture.[33]


Reasons for refusing an extradition request

Reasons for refusing an extradition request, bars to extradition, are:

  • 'Double jeopardy'; a person must not be prosecuted or sentenced in respect of an offence that he has already been convicted or acquitted of. 
  • Extraneous considerations; the request will be refused if the purpose of the request is deemed to be to prosecute or punish the person on account of race, religion, nationality, gender, sexual orientation or political opinions, or if extradited the person might be prejudiced at his trial or punished unfairly for any of these reasons.
  • Passage of time; the request will be refused if it would be oppressive to prosecute or punish the person for the extradition offence due to the age of the alleged offence.
  • Age of wanted person; extradition is not possible if due to his age the person could not be convicted of the offence in the sending country.
  • Absence of speciality provisions; specialty is the principle that a person may only be dealt with in the requesting state for the conduct in respect of which extradition was ordered. Extradition instruments invariably include specialty provisions.
  • Human rights; extradition will be refused if it would not be compatible with the person's rights under the European Convention on Human Rights within the meaning of the Human Rights Act. 
  • Death penalty; a person must not be extradited if there is a possibility that the person will be sentenced to death. Extradition may be possible if the requesting state gives an undertaking that the death penalty will not be imposed.
  • Physical or mental condition; if it would be unjust or oppressive to extradite the wanted person on these grounds the extradition request will either be refused or adjourned until the condition improves.
  • Proportionality; in relation to EAW (European Arrest Warrent) cases where the requested person is wanted for prosecution, extradition must not take place if the judge decides that extradition would be disproportionate taking into account the seriousness ofthe conduct alleged to constitute the extradition offence, the likely penalty and the possibility of the foreign authorities taking less coercive measures than extradition.
  • Absence of a decision to charge and try; in EAW cases involving accusation warrants, extradition is not possible where it appears to the judge that there are reasonable grounds for believing that the requesting authority has not yet taken a decision to charge and try the requested person unless the sole reason for that situation is the absence of the requested person.