Extradition

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Extradition is the official process by which one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. As between nations, extradition is regulated by treaties. As between states or other political subdivisions on a domestic level, extradition is more accurately known as rendition.

Contents

Extradition has been controversial throughout history, as trust between different nations has not been complete. Equally, a crime in one jurisdiction may not be considered such in another. However, the basic effort on the part of the majority of countries in the world to prevent wrongdoers from fleeing the consequences of what they know to be illegal actions represents an effort to bring about a unified world society, breaking down barriers that divide us. Without accountability for wrongdoing a world of peace and harmony cannot be achieved.

Terminology

Rendition
In law, rendition is a "surrender" or "handing over" of persons or property, particularly from one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition. Rendition can also be seen as the act of handing over, after the request for extradition has taken place.
Rendition, extradition, and deportation
Legal scholar L. Ali Khan, a professor of law at Washburn University School of Law in Kansas, has made the following distinctions between rendition, extradition, and deportation:

Extradition is an open procedure under which a fugitive is lawfully sent to a requesting state where he has committed a serious crime. Rendition is a covert operation under which even an innocent person may be forcibly transferred to a state where he has committed no crime. It is like a bully dispatching a helpless prey to another bully in another town.

Rendition is not even deportation. A person may be deported under U.S. immigration laws for a variety of reasons including charges of terrorism. Deportation however implies that the person is in the United States. Rendition is not territorial. U.S. agencies can abduct a person from anywhere in the world and render him to a friendly government. In December 2003, U.S. agents pulled Khaled El-Masri from a bus on the Serbia-Republic of Macedonia border and flew him to Afghanistan where he was drugged and tortured. ...

Defying international treaties and US laws, rendition works on the dark fringes of legality. The [UN] Torture Convention specifies that no signatory state shall expel, return, or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. The Convention is so strict in its prohibition of torture that it allows no exceptions under which any such transfer may be justified. Additionally, it is a crime under U.S. laws to commit torture outside the United States. If the victim dies of torture, the crime is punishable with death. It is also a crime for U.S. officials to conspire to commit torture outside the United States. Under both the Convention and U.S. laws, therefore, rendition is strictly prohibited if the rendered person would be subjected to torture.[1]

Extraordinary rendition
This term is not yet defined in international law. Its use is often criticized as euphemistic. For example, a New York Times editorial mentions the "practice known in bureaucratese by the creepy euphemism 'extraordinary rendition.'"[2] Bob Herbert of the New York Times wrote: "an American policy that is known as extraordinary rendition. That's a euphemism. What it means is that the United States seizes individuals, presumably terror suspects, and sends them off without even a nod in the direction of due process to countries known to practice torture."[3] Author Salman Rushdie wrote in 2006 that "this phrase's brutalization of meaning is an infallible signal of its intent to deceive," equating it to a form of newspeak.[4] Gerard Baker of The Times commented that this "must rank as euphemism of the year. [In] 2005 it became notorious as the term used by the U.S. to describe what it does when it hands over terrorist suspects and other enemies to third countries that are rather less scrupulous about human rights than we are."[5]

Extradition in International Law

The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation and desire of the right to demand such criminals of other countries has caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries. No country in the world has an extradition treaty with all other countries; for example, the United States (US) lacks extradition treaties with over 50 nations, including the People's Republic of China, Namibia, Jamaica, and North Korea.

There are two types of extradition treaties: list and dual criminality treaties. The most common and traditional is the list treaty, which contains a list of crimes for which a suspect will be extradited. Dual criminality treaties, used since the 1980s, generally allow for extradition of a criminal suspect if the punishment is more than one year imprisonment in both countries. Occasionally the amount of the time of the sentence agreed upon between the two countries is varied. Under both types of treaties, if the conduct is not a crime in either country then it will not be an extraditable offense.

Generally, an extradition treaty requires that a country seeking extradition be able to show that:

  • The relevant crime is sufficiently serious.
  • There exists a prima facie case against the individual sought.
  • The event in question qualifies as a crime in both countries.
  • The extradited person can reasonably expect a fair trial in the recipient country.
  • The likely penalty will be proportionate to the crime.

Restrictions

Most countries require themselves to deny extradition requests if, in the government's opinion, the suspect is sought for a political crime. Many countries, such as Mexico, Canada, and most European nations, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not subsequently be passed or carried out.

These restrictions are normally clearly spelled out in the extradition treaties that a government has agreed upon. They are, however, controversial in the United States, where the death penalty is practiced in some U.S. states, as it is seen by many as an attempt by foreign nations to interfere with the U.S. criminal justice system. In contrast, pressures by the U.S. government on these countries to change their laws, or even sometimes to ignore their laws, is perceived by many in those nations as an attempt by the United States to interfere in their sovereign right to manage justice within their own borders. Famous examples include the extradition dispute with Canada on Charles Ng. Ng participated in the brutal murders of at least seven people in the late 80s after which he fled to Canada. The cost of extraditing Ng to the American government is estimated to have been around $6.6 million as Ng filed numerous motions to delay or hamper his extradition and subsequent trial.[6]

Countries with a rule of law typically make extradition subject to review by that country's courts. These courts may impose certain restrictions on extradition, or prevent it altogether, if for instance they deem the accusations to be based on dubious evidence, or evidence obtained from torture, or if they believe that the defendant will not be granted a fair trial on arrival, or will be subject to cruel, inhumane, or degrading treatment if extradited.

Some countries, such as France, Germany, Austria, China, and Japan, have laws that forbid extraditing their respective citizens. Some others stipulate such prohibition on extradition agreements rather than their laws. Such restrictions are occasionally controversial in other countries when, for example, a French citizen commits a crime abroad and then returns to his home country, perceived as to avoid prosecution. These countries, however, make their criminal laws applicable to citizens abroad, and they try citizens suspected of crimes committed abroad under their own laws. Such suspects are typically prosecuted as if the crime had occurred within the country's borders.

Exemptions in the European Union

The usual extradition agreement safeguards relating to dual-criminality, the presence of prima facie evidence and the possibility of a fair trial have been waived by many European nations for a list of specified offenses under the terms of the European Arrest Warrant. The warrant entered into force in eight European Union (EU) member-states on January 1, 2004. Defenders of the warrant argue that the usual safeguards are not necessary because every EU nation is committed by treaty, and often by legal and constitutional provisions, to the right to a fair trial, and because every EU member-state is subject to the European Convention on Human Rights.

Extradition to federations

The federal structure of some nations, such as the United States, can pose particular problems with respect to extraditions when the police power and the power of foreign relations are held at different levels of the federal hierarchy. Less important problems can arise due to differing qualifications for crimes. For instance, in the United States, crossing state lines is a prerequisite for certain federal crimes (otherwise crimes such as murder etc. are handled by state governments except in certain circumstances such as the killing of a federal official). This transportation clause is, understandably, absent from the laws of many countries. Extradition treaties or subsequent diplomatic correspondence often include language providing that such criteria should not be taken into account when checking if the crime is one in the country from which extradition should.

To clarify the above point, if a person in the United States crosses the borders of the United States to go to another country, then that person has crossed a federal border, and then federal law would apply. In addition, taking a flight in the United States subjects one to federal law, as all airports are considered subject to federal jurisdiction.

International strains

The refusal for 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 this is justified).

The matters 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 of extradition lies with the national executive (prime minister, president or equivalent). However, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down the 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 his 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.

Extradition and abduction

Issues of international law relating to extradition have proven controversial in cases where a state has abducted and removed an individual from the territory of another state 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, as infringements of laws forbidding kidnapping. Many also regard abduction as violation of international law—in particular of a prohibition on arbitrary detention. A small number of countries have been reported to use kidnapping to circumvent the formal extradition process.

Notable or controversial cases involving abduction of foreign citizens:

Notes

  1. Friendly renditions to Muslim chambers of torture. SSRN. Retrieved December 2, 2007.
  2. Torture by Proxy. New York Times, March 8 2005. Retrieved December 2, 2007.
  3. It's Called Torture, Der Spiegel, February 28 2005. Retrieved December 2, 2007.
  4. Ugly phrase conceals an uglier truth. Sydney Morning Herald. Retrieved 2007-02-01.
  5. Non! Enough renditions from an iPod generation with no sensitivity chip, The Times, December 30 2005. Retrieved December 2, 2007.
  6. Charles Ng About.com Retrieved December 7, 2007.

References

  • Grey, Stephen. Ghost Plane: The True Story of the CIA Torture Program. New York, NY: St. Martin's Press, 2006. ISBN 0312360231
  • Pyle, Christopher. Extradition Politics & Human Rights. Temple University Press, 2001. ISBN 9781566398237
  • Thompson, A. C., and Trevor Paglen. Torture Taxi: On the Trail of the CIA's Rendition Flights. Hoboken, NJ: Melville House, 2006. ISBN 1933633093

External links

All links retrieved October 12, 2013.

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