extradition

[French : Latin ex-, ex- + Latin trāditiō, trāditiōn-, a handing over; see tradition.]

For more information on extradition, visit Britannica.com.

noun

Enforced removal from one's native country by official decree: banishment, deportation, exile, expatriation, ostracism, transportation. See accept/reject, reward/punish/deserve.

Extradition is the surrendering by one state to another or by one nation to another of an individual accused of a crime in the state or nation demanding the surrender of the accused. The accused who has fled to an asylum state or nation is deemed a fugitive of the law. A state or nation makes an extradition demand in order to put the accused on trial within its jurisdiction. In the United States extradition of an accused is either interstate or international. States and nations are not required automatically to surrender a fugitive because of the sovereignty of the states and nations. Sovereignty of the states and world nations necessitates extradition laws and treaties and extradition proceedings.

Interstate extradition or interstate rendition within the United States is authorized by Article IV, Section 2 of the Constitution, which states, "A Person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." Interstate extradition is also codified in U.S. federal law. A state, acting under authority of the Constitution or federal law, may only demand the surrender of a person who is accused of committing a crime within the requesting state.

A demand from a state for the surrender of a fugitive begins extradition proceedings. Extradition proceedings are not part of the legal trial to determine the fugitive's guilt or innocence of the crime. An extradition proceeding occurs, if at all, in the asylum state to consider the merit of the demanding state's charge against the accused. After receiving a written demand and examining the facts of the charge against the accused, the governor of the asylum state may grant or deny the demand to surrender the fugitive. If denying the demand, the governor may decide to bring the accused to trial within the asylum state's jurisdiction.

If a demanding state wants to try a fugitive within the state's jurisdiction for a crime committed in the asylum state or a third state, the demanding state must rely on the authority of state legislation rather than the Constitution and federal law. Extradition of a fugitive juvenile, as opposed to a fugitive adult, from an asylum state to a requesting state occurs only if it is determined that extradition of the fugitive juvenile is in the best interests of the United States and in the best interests of the juvenile.

International extradition exists only by authority of an international treaty. The United States has the right to make an extradition demand only if a treaty with the nation providing a fugitive with asylum includes an extradition agreement. The United States has a duty to surrender an accused only if the United States has a treaty containing an extradition agreement with the nation demanding the surrender of a fugitive. Absent a treaty, neither the United States government nor the foreign government has the right to demand or the duty to deliver a criminal fugitive.

Even with a treaty, the United States and the demanding or asylum nation may place restrictions on the duty to surrender a fugitive. The use of the death penalty in many states gives reason, as authorized in the governing treaty, for a foreign asylum nation to refuse to extradite a fugitive to the United States. The foreign asylum nation may refuse to extradite a fugitive unless the United States assures the asylum country that the death penalty will not be used if the fugitive is found guilty. The United States has a "political offense exception" to extradition, which provides that the United States will not extradite to a foreign nation a fugitive accused of revolutionary activity that the offended government deems a crime. Thomas Jefferson, credited with first putting the political offense exception into international treaties, wanted to protect revolutionaries from oppressive political systems. During the 1980s U.S. courts, attempting to exempt terrorists from the political offense exception, created "wanton crimes" and "war crimes" exceptions to the U.S. political offense exception to international extradition. By 2001 the United States had treaties containing extradition agreements with 107 of the 190 nations in the world.

Bibliography

Pyle, Christopher H. Extradition, Politics, and Human Rights. Philadelphia: Temple University Press, 2001.

United Nations Crime and Justice Information Network. Available http://www.uncjin.org/Laws/extradit/extindx.htm. Provides updated extradition information by country.

—Akiba J. Covitz

The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.

Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.

Article IV, Section 2, of the U.S. Constitution provides that upon the demand of the governor of the prosecuting state, a state to which a person charged with a crime has fled must remove the accused "to the State having Jurisdiction of the Crime." When extraditing an accused from one state to another, most states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions. A newer uniform act, the Uniform Extradition and Rendition Act, is designed to streamline the extradition process and provide additional protections for the person sought, but by 1995, it had been adopted by only one state.

Extradition from one state to another takes place on the order of the governor of the asylum state (the state where the accused is located). The courts in the asylum state have a somewhat limited function in extraditing the accused to the state where she or he is charged with a crime. They determine only whether the extradition documents are in order (e.g., whether they allege that the accused has committed a crime and that she or he is a fugitive) and do not consider the merits of the charge, since the trial of the accused will take place in the state demanding extradition.

Extradition from one nation to another is handled in a similar manner, with the head of one country demanding the return of a fugitive who is alleged to have committed a crime in that country. Extradition between nations is usually based on a treaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime. The United States has entered into extradition treaties with most countries in Europe and Latin America, and with a few countries in Africa and Asia.

To determine whether an individual can be extradited pursuant to a treaty, the language of the particular treaty must be examined. Some treaties list all the offenses for which a person can be extradited; others provide a minimum standard of punishment that will render an offense extraditable. The extradition treaties of most countries fall into the second category, since treaties in the first category must be revised completely if an offense is added to the list.

Even if they do not specifically say so, most treaties contemplate that for an offense to be subject to extradition, it must be a crime under the law in both jurisdictions. This is called the doctrine of double criminality. The name by which the crime is described in the two countries need not be the same, nor must the punishment be the same; simply, the requirement of double criminality is met if the particular act charged is criminal in both jurisdictions (Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66 L. Ed. 956 [1922]).

The doctrine of specialty is also often applied even when not specifically stated in a treaty. It means that once a person has been surrendered, he or she can be prosecuted or punished only for the crimes for which extradition was requested, and not for any other crimes committed prior to the surrender. The doctrine was first established over a hundred years ago, in United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886). In Rauscher, the defendant, a U.S. citizen, was extradited from Great Britain for the beating death of a ship's crew member on a U.S. vessel but was indicted and tried on a charge of cruel and unusual punishment based on the same act. Although the specialty principle was not specifically enumerated in the treaty that allowed the extradition, the U.S. Supreme Court held that an accused "shall not be arrested or tried for any other offense than that with which he was charged in those proceedings."

Extradition treaties often provide exceptions under which a nation can refuse to surrender a fugitive sought by another nation. Many nations will not extradite persons charged with certain political offenses, such as treason, sedition, and espionage. Refusal to extradite under such circumstances is based on the policy that a nation that disagrees with or disapproves of another nation's political system will be reluctant to return for prosecution a dissident who likewise has been critical of the other nation. But, of course, not every criminal act will necessarily be protected. For example, some treaties provide that certain crimes, such as the assassination of a head of a foreign government, do not constitute political offenses that are exempt from extradition. The rise in airplane hijacking, terrorism, and hostage taking in the late twentieth century led many nations to enter into multilateral conventions in which the signing countries mutually agreed to extradite individuals who committed such crimes.

Since the 1980s, the international extradition process has been viewed by law enforcement authorities as too time-consuming, expensive, and complicated. It has also been criticized for frequently failing to bring fugitives to justice. As a result, some countries, including the United States, have turned to abduction to return a fugitive to a nation to be tried. Although its legality is questionable, abduction has sometimes been justified to combat drug trafficking and to ensure national security. In 1989, for example, the United States invaded Panama in an attempt to bring General Manuel Noriega to the United States to face charges related to drug trafficking. The Bush administration asserted that the invasion was necessary to protect national interests in the Panama Canal and to prevent an armed attack by Panama.

Noriega was eventually brought to the United States to stand trial, where he contested the validity of the federal district court's jurisdiction over him (United States v. Noriega, 746 F. Supp. 1506 [S.D. Fla. 1990]). The court rejected his contention, holding that Noriega could be tried in the United States, despite the means that were used to bring him to trial. The court declined to address the underlying legality of Noriega's capture, concluding that, as an unrecognized head of state, Noriega lacked standing (the legal right) to challenge the invasion as a violation of international law in the absence of protests from the legitimate government of Panama over the charges leveled against him.

In United States v. Alvarez-Machain, 504 U.S. 655, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992), the Supreme Court held that Humberto Alvarez-Machain's forcible abduction did not prohibit his criminal trial in the United States. Alvarez, a citizen of Mexico and a physician, was accused by the U.S. government of participating in the kidnapping, torture, and murder of a U.S. Drug Enforcement Administration agent and the agent's airplane pilot, and was indicted for these crimes. Alvarez was later kidnapped from his office and flown by private plane to El Paso, Texas. The Mexican government objected to the abduction and protested it as a violation of the extradition treaty between the United States and Mexico. It asked that the law enforcement agents responsible for the kidnapping be extradited to Mexico, but the United States refused to do so.

Alvarez sought to dismiss the indictment, claiming that the federal district court lacked jurisdiction to try him because his abduction violated the extradition treaty. The district court agreed and dismissed the indictment. The U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the abduction violated the treaty's underlying purpose of providing a legal means for bringing a person to the United States to face criminal charges. On appeal, the U.S. Supreme Court rejected the lower courts' use of the treaty as the basis for prohibiting Alvarez's trial. Justice William H. Rehnquist, writing for the majority, found in the treaty provisions nothing stating that abductions were forbidden. He further maintained that the treaty was "not the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." Thus, he concluded, the abduction did not prohibit Alvarez's trial in a U.S. court on criminal charges. Justice John Paul Stevens, joined by Justices Harry A. Blackmun and Sandra Day O'Connor, strongly dissented, agreeing with Alvarez and the lower courts that the treaty did set forth limits for dealing with the return of criminal defendants. According to the dissent, Alvarez's abduction was a gross violation of international law, intruding on the territorial integrity of Mexico.

See: fugitive from justice.

The legal process by which one government may obtain custody of individuals from another government in order to put them on trial or imprison them.

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v • d • e

Extradition is the official process whereby one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition.

Contents 1 Extradition treaties or agreements 2 Common conditions of extradition 2.1 Restrictions 2.2 Exemptions in the European Union 2.3 Extradition to federations 3 Controversies 3.1 International tensions 3.2 Extradition and abduction 3.3 'Extraordinary rendition' 4 Footnote 5 See also 5.1 List of extradition laws by country 6 External links

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 the desire of the right to demand such criminals of other countries have 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 lacks extradition treaties with several nations, including the People's Republic of China, Namibia, and North Korea.

Common conditions of extradition

By enacting laws or 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.
• 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.
• Citizenship of the person in question - some countries refuse extradition of own citizens, holding trials for the persons themselves. In some cases, such as that of Hafiz Muhammad Saeed, the suspect will not face criminal charges at all.

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 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. Parties to the European Convention also cannot extradite people where they would be at significant risk of being tortured 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 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.

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, Russian Federation, Germany, Austria, China and Japan, have laws that forbid extraditing their respective citizens. Others, such as Israel, prohibit extradition of their own citizens in their constitutions. 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 their home country, perceived as to avoid prosecution^[1]. 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, and is in force in all member-states since 22 April 2005. 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 countries, 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 constraints 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. 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)^{[citation needed]}. 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 apply.

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 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.

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 (text here) that dispenses with the need for a prima facie case for extradition.

It is important to emphasize, however, that even had the treaty been ratified by the U.S., the treaty would still be one-sided, because it stipulates that extradition requests from the UK to the U.S. must show a "reasonable case" that the suspect committed the offense, but requests from the U.S. to the UK have no such requirement imposed on them.^[2]

This came to a head over the extradition of the Natwest Three from the UK to the U.S., for their alleged role in the Enron fraud. Several British political leaders were heavily critical of the British government's handling of the issue.^[3] The former leader of the UK's Liberal Democrat party, Sir Menzies Campbell, had argued that the U.S. had not ratified the treaty primarily due to the influence of what he calls the "Irish lobby" – which, he said, is opposed to the treaty because it could make it easier for Britain to have alleged IRA terrorist suspects extradited from the U.S.

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.^[4]

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
• Isang Yun from West Germany by South Korea in 1967^[5]
• Abdullah Ocalan from Kenya by the United States and Turkey
• Ronnie Biggs from Brazil by independent bounty hunters in 1981
• Mordechai Vanunu from Italy by Israel in 1986
• Manuel Noriega from Panama by the United States following a US invasion in 1989 (although this was arguably taking an enemy leader as a prisoner of war)
• Humberto Álvarez Machaín from Mexico by the United States Drug Enforcement Administration in 1990
• Nick Leeson from Germany to Singapore on March 2, 1995
• 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 Duane Chapman in 2003
• Khaled El-Masri from the Republic of Macedonia by the CIA in 2004
• Hassan Mustafa Osama Nasr from Italy to Egypt by the CIA in 2005

'Extraordinary rendition'

Main article: Extraordinary rendition

"Extraordinary rendition" is an extrajudicial 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.^{[citation needed]} 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 circumvent U.S. laws prescribing due process and prohibiting torture.

Footnote

1. ^ One famous example of the French custom in practice is the case of the director Roman Polanski. Polanski was convicted of statutory rape of a 13 year old in the United States in 1977 but fled to France before sentencing. From there, as a French citizen, he cannot be extradited to the United States. The French government has pointed out that Polanski could be prosecuted in France if the U.S. authorities so requested. U.S. authorities declined that possibility^{[citation needed]}.
2. ^ Extradition Act 2003
3. ^ Lib Dem leader joins bankers' extradition battle
4. ^ http://www.telegraph.co.uk/money/main.jhtml?xml=/money/2006/07/06/ccnat06.xml&menuId=242&sSheet=/money/2006/07/06/ixcoms.html
5. ^ Gil, Yun-hyeong (2004-10-30). "독일, 당시 국교단절 검토: 67년 윤이상씨등 서울로 납치 '동백림사건' 항의 (Germany considered breaking off relations at the time: Protests over the 1967 "East Berlin incident" kidnapping of Isang Yun and others)". The Hankyoreh. http://www.hani.co.kr/section-005000000/2004/10/005000000200410291814225.html. Retrieved 2007-05-30. 

See also

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

List of extradition laws by country

• Extradition law in the United States
• Extradition law in Australia

External links

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

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