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.

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, makes 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 US 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. US agencies can abduct a person from anywhere in the world and render him to a friendly government. In December 2003, US 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 US 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 US officials to conspire to commit torture outside the United States. Under both the Convention and US laws, therefore, rendition is strictly prohibited if the rendered person would be subjected to torture.

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.'" 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." Author Salman Rushdie wrote in 2006 that "this phrase's brutalisation of meaning is an infallible signal of its intent to deceive," equating it to a form of newspeak. 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 US 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."

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 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.

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

Since the 1980s, the United States has increasingly turned to rendition as a judicial and extra-judicial method for dealing with foreign defendants. The CIA was granted permission to use rendition in a presidential directive that dates to the Clinton administration, although very few uses were documented during that time. The practice has grown sharply since the 9/11 terrorist attacks, and now includes a form where suspects are taken into US custody but delivered to a third-party state, often without ever being on American soil. Because such cases do not involve the rendering country's judiciary, they have been termed extraordinary rendition.

Human rights groups charge that extraordinary rendition is a violation of Article 3 of the United Nations Convention Against Torture (UNCAT), because suspects are taken to countries where torture during interrogation remains common, thus circumventing the protections the captives would enjoy in the United States or other nations who abide by the terms of UNCAT. Its legality remains highly controversial, as the United States outlaws the use of torture, and the U.S. Constitution guarantees due process. Rendered suspects are denied due process because they are arrested without charges and deprived of legal counsel.

The CIA and the White House strongly resist any in-depth investigation into the details of rendition, refusing to release information on the subjects detained and the facilities used throughout the world. Critics think this procedure might be kept from scrutiny as it could result in legal challenges to the U.S. government, inside the U.S. as well as in those countries used for detention.

Reported Methods

Media reports describe suspects as being arrested, blindfolded, shackled, and sedated, or otherwise kidnapped, and transported by private jet or other means to the destination country. The reports also say that the rendering countries have provided interrogators with lists of questions.

Legal Debate

Evidence obtained illegally or under duress is inadmissible in US courts, and hampers court cases against suspected terrorists in the US. The trial of Zacarias Moussaoui, the only person to be indicted in the US in connection with the 9/11 attacks, was in part complicated by Moussaoui's requests for access to confidential documents and his assertion of a right to call al-Qaida members held in captivity in Guantanamo Bay Naval Base as witnesses, a demand rejected by government attorneys on the grounds that it would compromise confidential sources.

The House of Commons Select Committee on Foreign Affairs in their first report published on 15 February 2006, points out that although both the UK and the U.S. have ratified UNCAT, the UK ratified it without reservations, while the US ratified CAT with a reservation that specifies the meaning of "mental pain or suffering" in more detail than Article 1 CAT; and that under U.S. legislation, the term "cruel, inhuman or degrading treatment" is interpreted according to the U.S. Constitution. Having made this point the report goes on to say in paragraph 44 that: The US Secretary of State, Condoleeza Rice has denied the use of torture, in response to a letter written by Foreign Secretary Jack Straw on behalf of the United Kingdom as Presidency of the European Union. On 5 December 2005 she said:

Rendition is a vital tool in combating trans-national terrorism. Its use is not unique to the United States, or to the current administration…[However] the United States does not permit, tolerate or condone torture under any circumstances.

• The United States has respected—and will continue to respect—the sovereignty of other countries.
• The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation under torture.
• The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured.
• The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred people will not be tortured.

While Rice has denied that the CIA used torture, she refused to address the allegations of covert prisons that have caused consternation across Europe and not least in Romania.

The American Civil Liberties Union (ACLU), Physicians Committee for Human Rights and Veterans for America have sought access to presidential directives expressly authorizing extraordinary rendition. A story published in The NewStandard in December 2005 notes: "To date, there have been no Congressional or other governmental inquiries into the CIA's use of extraordinary renditions, despite repeated calls for such investigations."

References

ISBN links support NWE through referral fees

• Grey, Stephen (2006). Ghost Plane: The True Story of the CIA Torture Program. New York, New York: St. Martin's Press. ISBN 0-312-36023-1.
• Thompson, A. C., and Trevor Paglen (2006). Torture Taxi: On the Trail of the CIA's Rendition Flights. Hoboken, New Jersey: Melville House. ISBN 1-933633-09-3.

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
• Rendition of Anthony Burns - notorious fugitive slave law incident
• Legal history of interstate rendition
• Outsourcing Torture, from The New Yorker, February 7, 2005
• 2000 State Department list of renditions and extraditions - through 2000
• Alternatives to extradition - definition of rendition and extraordinary rendition used by the United States Department of Justice
• Friendly Renditions to Islamic Countries

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