Extradition

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.

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, 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 fifty 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. In the case of Soering v. United Kingdom, the European Court of Human Rights held that it would violate Article 3 of the European Convention on Human Rights to extradite a person to the United States from the United Kingdom in a capital case. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed. Thus parties to the European Convention cannot extradite persons where they would be at significant risk of being tortured or inhumanely or degradingly treated or punished.

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 US states, as it is seen by many as an attempt by foreign nations to interfere with the US criminal justice system. In contrast, pressures by the US 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.

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 offences under the terms of the European Arrest Warrant. The warrant entered into force in eight European Union (EU) member-states on 1 January, 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. For instance, in the United States, most criminal prosecutions occur at the state level, and most foreign relations occurs on the federal level. In fact, under the United States Constitution, foreign countries may not have official treaty relations with sub-national units such as the individual states; rather, they may have treaty relations only with the federal government. As a result, a state that wishes to prosecute an individual located in foreign territory must direct its extradition request through the federal government, which will negotiate the extradition with the requested state. However, due to the contraints of federalism, any conditions on the extradition accepted by the federal government—such as not to impose the death penalty—are not binding on the states. In the case of Soering v. The United Kingdom, the European Court of Human Rights ruled that the United Kingdom was not permitted under its treaty obligations to extradite an individual to the United States, because the United States' federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in Virginia courts. Ultimately, the Commonwealth of Virginia itself had to offer assurances to the federal government, which passed those assurances on to the United Kingdom, which extradited the individual to the United States.

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.

Controversies

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). As an example:

• Some US journalists and officials of the state of Pennsylvania accused France of wanting to make a point about justice in the United States and the death penalty by refusing to extradite Ira Einhorn (who was eventually extradited after 3 years of procedure).
• A widespread belief in the French public is that the United Kingdom intentionally delayed the extradition of Rachid Ramda (see 1995 bombings in France) in order to buy safety from Islamic terror attacks on British soil.

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.

For example, there is at present a row between the United States and the United Kingdom about the Extradition Act 2003 (text here) that dispenses with the need for a prima facie case for extradition. As of July 2006, the treaty has been ratified in the UK but not in the US, leading to a lack of reciprocity in the current extradition arrangements.

It is important to emphasise, however, that even had the treaty been ratified by the US, the treaty would still be one-sided, because it stipulates that extradition requests from the UK to the US must show a "reasonable case" that the suspect committed the offense, but requests from the US to the UK have no such requirement imposed on them.

This has come to a head over the extradition of 'the Natwest Three' from the UK to the US, for their alleged role in the Enron fraud, with various British political leaders weighing in to attack the British government's handling of the issue [1]. The leader of the UK's Liberal Democrat party, Sir Menzies Campbell, has argued that the US has not ratified the treaty primarily due to the influence of what he calls the "Irish lobby" - which, he says, is opposed to the treaty because it could make it easier for Britain to have alleged IRA terrorist suspects extradited from the US.

The precedent of the Natwest Three may also be used to extradite/prosecute Philip Watts in connection with the Royal Dutch Shell reserves scandal. The press has carried vocal criticisms of the present extradition arrangements from the UK's business community, some of whom stated that they were avoiding doing business with or in the US, because of legal concerns such as the extradition treaty, among other concerns. [2]

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:

• Morton Sobell from Mexico by the United States in 1950
• Adolf Eichmann from Argentina by Israel in 1960
• Ronnie Biggs from Brazil by independent bounty hunters in 1981
• Mordechai Vanunu from Italy by Israel in 1986
• Alvarez-Machain from Mexico by the United States Drug Enforcement Administration in 1990
• Mir Aimal Kansi from Pakistan by the CIA in 1997
• Martin Mubanga from Zambia to Guantanamo Bay by the United States in 2002
• Andrew Luster from Mexico by Dog the Bounty Hunter in 2003
• Manuel Noriega from Panama by the United States in 1989
• Hassan Mustafa Osama Nasr from Italy to Egypt by the CIA in 2005

'Extraordinary rendition'

"Extraordinary rendition" is an extra-judicial procedure and policy of the United States in which criminal suspects, generally suspected terrorists or supporters of terrorist organisations, are sent to countries for imprisonment and interrogation. 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. Critics of the procedure have accused the CIA of rendering suspects to other countries in order to avoid US laws prescribing due process and prohibiting torture.

List of extradition laws by country

• United States

See also

• Extraterritorial jurisdiction
• Universal jurisdiction
• Brian O'Rourke (1540?–1591), first man to be extradited within Britain.
• Right of asylum
• Deportation
• Luis Posada Carriles, anti-Castrist detained in the US and wanted by Cuba and Venezuela

External links

• McNabb Associates, P.C. International Extradition Database
• UN list of extradition information by country (1996)
• US State Department - Using the Criminal Justice System
• The McNabb Associates International Extradition Blog

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