Extradite

Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country. 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 Pharaoh negotiated an extradition treaty with a Hittite King.[1] 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.[1] The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.[1]

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.[1] 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.[1] 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.[1]

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 China, Namibia, the United Arab Emirates, North Korea, Bahrain, and many other countries.[2][3] (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 parties.
  • 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.
    • Death penalty: Many countries, such as Australia, Canada, Macao,[4] New Zealand, South Africa, and most European nations except Belarus,[5] will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not be passed or carried out.
    • Torture, inhuman or degrading treatment or punishment: Many countries will not extradite if there is a risk that a requested person will be subjected to torture, inhuman or degrading treatment or punishment. 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.
  • Jurisdiction: Jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation's own citizen causes that country to have jurisdiction.
    • Own nationals: Some countries, such as Brazil,[6] the Czech Republic,[7] France,[8][9] Germany,[10] Japan,[11] the People's Republic of China,[12] the Republic of China (Taiwan)[13] forbid extradition of their own nationals. These countries often have laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the country's borders (see e.g. trial of Xiao Zhen).

Aut dedere aut judicare

A concept related to extradition that has significant implications in transnational criminal law is that of aut dedere aut judicare.[1] This maxim represents the principle that states must either surrender a criminal within their jurisdiction to a state that wishes to prosecute the criminal or prosecute the offender in its own courts. 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. Cherif Bassiouni, however, has posited that, at least with regard to international crimes, it is not only a rule of customary international law but a jus cogens principle. Professor Michael Kelly, moreover, citing Israeli and Austrian judicial decisions, has noted that “there is some supporting anecdotal evidence that judges within national systems are beginning to apply the doctrine on their own.”[1] Even so, a wide array of international instruments now contains provisions for aut dedere aut judicare. These include all four 1949 Geneva Conventions, the U.N. Convention for the Suppression of Terrorist Bombings, the U.N. Convention Against Corruption, the Convention for the Suppression of Unlawful Seizure of Aircraft, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention for the Protection of Cultural Property in the Event of an Armed Conflict, and the International Convention for the Suppression and Punishment of the Crime of Apartheid.[1]

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 minister, president 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.

For example, there is at present a disagreement between the United States and the United Kingdom about the Extradition Act 2003

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 U.S. because of legal concerns such as the extradition treaty, among other concerns.[15]

A controversy in 2012 concerns the extradition of Richard O'Dwyer from the United Kingdom to the United States.

In 2013, the United States submitted extradition requests to many nations for National Security Agency employee Edward Snowden. [16] It criticized Hong Kong for allowing him to leave despite an extradition request.[17] Bolivia and Venezuela advised the United States that they denied their request for extradition.[18] Nevertheless, the United States impeded Snowden's travel by cancelling his passport.

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 include the abduction or attempted abduction of

Name Year From To
Morton Sobell 1950 Mexico United States
Adolf Eichmann 1960 Argentina Israel
Isang Yun 1967[19] West Germany South Korea
Mordechai Vanunu 1986 Italy Israel
Humberto Álvarez Machaín 1990 Mexico United States
Abdullah Ocalan 1999 Kenya Turkey
Hassan Mustafa Osama Nasr 2005 Italy Egypt (with confirmed United States involvement)
Dirar Abu Seesi 2011 Ukraine Israel

"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.[20] 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.[21][22][23][24]

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.[25] 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.[26]

See also

International:

Individuals:

Footnotes

External links

  • Extradition Lawyers' Association
  • UN list of extradition information by country (1996)
  • A Brief Primer on International Law—with cases and commentary. Nathaniel Burney, 2007.
  • Extraditions Cut Short—Extraditions between Colombia and United States
  • Chiquita Board Members: Total Identification—Extradition of Chiquita Board Members
  • [1] International Extradition: New Jersey & Other States
  • Expulsions and extraditions, factsheet of the ECtHR case law
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