Extradition

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"Extradition order" redirects here. For the band, see Extradition Order (band).
Not to be confused with deportation.

Extradition is a cooperative law enforcement process by which the physical custody of a person (i) charged with committing a crime or (ii) convicted of a crime whose punishment has not yet been fully served, is formally transferred, directly or indirectly, by authorities of one jurisdiction to those of another at the request of the latter for the purpose of prosecution or punishment, respectively.[1]

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, Ramesses II, negotiated an extradition treaty with a Hittite King, Hattusili III.[2]

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.[2] The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.[2]

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.[2] 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.[2] 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.[2]

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.[3][4] (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 states.

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 jurisdictions, such as Australia, Canada, Macao,[5] New Zealand,[6] South Africa, and most European nations except Belarus,[7] 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.[8] In particular, the fact that the person in question is a nation's own citizen causes that country to have jurisdiction (see next point).

Own citizens

Some countries, such as Austria,[9] Brazil,[10] the Czech Republic,[11] France,[12][13] Germany,[14] Japan,[15] the People's Republic of China,[16] the Republic of China (Taiwan),[17] Russia,[18] Switzerland[19] and Syria[20] forbid extradition of their own citizens. 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

Main article: Aut dedere aut judicare

A concept related to extradition that has significant implications in transnational criminal law is that of aut dedere aut judicare.[2] 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. Many international agreements contain 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.[2]

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, 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”.[2]

Controversies

International tensions

Swedish extradition of German and Baltic soldiers to the Soviet Union in January 1946
Cali Cartel boss Miguel Rodríguez Orejuela extradited from Colombia to the United States.
Juan Carlos Ramírez Abadía being extradited to face charges in the United States.
Viktor Bout extradited to the United States aboard a Drug Enforcement Administration plane.

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.

Even though the United States has an extradition treaty with Japan, most extraditions are not successful due to Japan’s domestic laws. In order for the United States to be successful, they must present their case for extradition to the Japanese authorities. However, certain evidence is barred from being in these proceedings such as the use of confessions, searches or electronic surveillance. In most cases involving international drug trafficking, this kind of evidence constitutes the bulk of evidence gathered in the investigation on a suspect for a drug-related charge. Therefore, this usually hinders the United States from moving forward with the extradition of a criminal.[21]

There is at present controversy in the United Kingdom about the Extradition Act 2003,[22] which dispenses with the need for a prima facie case for extradition. This came to a head over the extradition of the Natwest Three from the UK to the U.S., for their alleged fraudulent conduct related to Enron. Several British political leaders were heavily critical of the British government's handling of the issue.[23]

In 2013, the United States submitted extradition requests to many nations for former National Security Agency employee Edward Snowden.[24] It criticized Hong Kong for allowing him to leave despite an extradition request.[25]

Abductions

In some cases a state has abducted an alleged criminal from the territory of another state either after normal extradition procedures failed, or without attempting to use them. Notable cases are listed below:

Name Year From To
Morton Sobell 1950 Mexico United States
Adolf Eichmann 1960 Argentina Israel
Isang Yun 1967[26] West Germany South Korea
Mordechai Vanunu 1986 Italy Israel
Humberto Álvarez Machaín 1990 Mexico United States
Rodrigo Granda 2004 Venezuela Colombia
Abdullah Ocalan 1999 Kenya Turkey
Wang Bingzhang 2002 Vietnam China
Hassan Mustafa Osama Nasr 2003 Italy Egypt
Dirar Abu Seesi 2011 Ukraine Israel
Gui Minhai 2015 Thailand China

"Extraordinary rendition"

Main article: 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.[27] 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.[28][29][30][31]

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.[32] 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.[33]

See also

International:

Individuals:

Footnotes

  1. ^ Sadoff, David A. (2016-12-24). Bringing International Fugitives to Justice: Extradition and its Alternatives. Cambridge University Press. p. 43. ISBN 9781107129283.
  2. ^ a b c d e f g h i Dan E. Stigall, "Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law". SSRN 2211219. {{cite web}}: Missing or empty |url= (help)
  3. ^ Extradition Treaties Interpretation Act of 1998 from the United States Department of State, Extradition Treaties
  4. ^ "Putin: Snowden still in Moscow airport, won't be extradited, free to go anywhere". RT. Retrieved 25 June 2013.
  5. ^ Article 7 of Macau Law No. 6/2006 Law of judicial cooperation in criminal matters (Template:Pt icon Lei n.º 6/2006, Chinese: 第6/2006號法律)
  6. ^ Section 30(3)(a) of the Extradition Act 1999. Also section 48(1)(b)(ii) of the Extradition Act 1999, although this section only applies to extraditions from New Zealand to Australia or the UK, neither of which have the death penalty.
  7. ^ Includes Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Israel, Kazakhstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom and Vatican City (Belarus is excluded)
  8. ^ Adam Abelson (2010-05-19). "The prosecute/extradite dilemma: Concurrent criminal jurisdiction and global governance" (PDF). The criminal laws of the United States, whether state or federal, ordinarily apply only to conduct within U.S. territory. Sometimes, however, they apply to conduct abroad, from antitrust conspiracies to torture. Where such extraterritorial criminal prescriptive jurisdiction exists under U.S. law, jurisdiction typically exists under the law of another country as well, such as the country where the conduct occurred.
  9. ^ "section 12 of the Austrian Extradition and Legal Assistance Act ("Auslieferungs- und Rechtshilfegesetz (ARHG)")". Rechtsinformationssystem des Bundes (RIS), the official website of the Austrian government for the publication of legislation. 2014-02-27.
  10. ^ Brazilian constitution of 1988, Article 5
  11. ^ "Charter of fundamental rights and freedoms, Article 14 (4), second sentence" (PDF). 1992-12-16.
  12. ^ "Code of criminal procedure (legislative part), Articles 696-1 to 696-7" (PDF). published by Légifrance, the official website of the French government for the publication of legislation, regulations, and legal information. 2005-12-13.
  13. ^ "Légifrance publications of the French legislation". Légifrance. 2005-12-13.
  14. ^ Except to a member state of the European Union or to an international court: Basic Law for the Federal Republic of Germany, Article 16 (2), 29 July 2009.
  15. ^ Article 2, Law of Extradition (Template:Ja icon 逃亡犯罪人引渡法)
  16. ^ Article 8 of the Extradition Law of the People's Republic of China (Chinese: 中华人民共和国引渡法)
  17. ^ Article 4 of the Law of Extradition (Chinese: 引渡法) prohibits a citizen of the Republic of China from being extradited from Taiwan, unless the person acquired the citizenship after the request for extradition is made.
  18. ^ Constitution of the Russian Federation, Article 61
  19. ^ Swiss Federal Act on International Mutual Assistance in Criminal Matters, Article 7
  20. ^ Article 38 of the constitution of the Syrian Arab Republic
  21. ^ Surena, André M. Grove, Margaret A. Perl, Raphael. Zagaris, Bruce. Blum, Jack A. International Drug Traffic. Proceedings of the Annual Meeting. American Society of International Law. Vol. 84. 28 March 1990. p. 1-12 <http://www.jstor.org/stable/25658526>
  22. ^ http://www.fco.gov.uk/Files/kfile/USExtradition_210503.pdf[dead link]
  23. ^ Oliver King and agencies (2006-07-04). "Lib Dem leader joins bankers' extradition battle". Politics.guardian.co.uk. Retrieved 2014-07-29.
  24. ^ [1][dead link]
  25. ^ "U.S. criticizes China's handling of Snowden case - CNN.com". CNN. 12 July 2013.
  26. ^ 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)" (in Korean). The Hankyoreh. Retrieved 2007-05-30.
  27. ^ Michael John Garcia, Legislative Attorney American Law Division. Renditions: Constraints Imposed by Laws on Torture 8 September 2009; link from the United States Counter-Terrorism Training and Resources for Law Enforcement web site Archived October 14, 2012, at the Wayback Machine
  28. ^ Charlie Savage (17 February 2009). "Obama's War on Terror May Resemble Bush's in Some Areas". The New York Times. Retrieved 2 January 2010. {{cite news}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  29. ^ "Background Paper on CIA's Combined Use of Interrogation Techniques". 30 December 2004. Retrieved 2 January 2010.
  30. ^ "New CIA Docs Detail Brutal 'Extraordinary Rendition' Process". Huffington Post. 28 August 2009. Retrieved 2 January 2010.
  31. ^ Fact sheet: Extraordinary rendition, American Civil Liberties Union. Retrieved 29 March 2007 Template:En icon
  32. ^ Resolution 1507 (2006). Archived June 12, 2010, at the Wayback Machine Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states]
  33. ^ "Ensuring Lawful Interrogations | The White House". Whitehouse.gov. Retrieved 17 July 2010.

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