Extradition
Extradition is an act where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to their law enforcement. It is a cooperative law enforcement process between the two jurisdictions and depends on the arrangements made between them. Besides the legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.
Through the extradition process, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction. 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. The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.
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 BCE, when an Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with a Hittite king, Hattusili III.
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. 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. 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.No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with China, the Russian Federation, Namibia, the United Arab Emirates, North Korea, Bahrain, and many other countries.
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. Observing fundamental human rights is also an important reason for denying some extradition requests. It is common for human rights exceptions to be specifically incorporated in bilateral treaties. Such bars can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence. These bars may also extend to take account of the effect on family of the individual if extradition proceeds. Therefore, human rights recognised by international and regional agreements may be the basis for denying extradition requests. However, cases where extradition is denied should be treated as independent exceptions and will only occur in exceptional circumstances.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.The requirement has been abolished for broad categories of crimes in some jurisdictions, notably within the European Union.
Political nature of the alleged crime
Many 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, New Zealand, South Africa, and most European nations except Belarus, 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. The United Nations Human Rights Committee considered the case of Joseph Kindler, following the Canadian Supreme Court's decision in Kindler v Canada to extradite Kindler who faced the death penalty in the United States. This decision was given despite the fact that it was expressly provided in the extradition treaty between these two states that extradition may be refused, unless assurances were given that the death penalty shall not be imposed or executed, as well as arguably being a violation of the individual's rights under the Canadian Charter of Human Rights. The decision by the Committee considered Article 6 of the International Covenant on Civil and Political Rights, the “inherent right to life” and whether this right prohibited Canada from extraditing the individual to the United States where he faced the death penalty. The Committee decided that there was nothing contained in the terms of Article 6 which required Canada to seek assurance that the individual would not face the death penalty if extradited. However, the Committee noted that if Canada had extradited without due process it would have breached its obligation under the Convention in this case.
- 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 regard to torture the European Court of Human Rights has in the past not accepted assurances that torture will not occur when given by a state where torture is systematic or endemic. Although in the more recent case before the same court Othman v. United Kingdom the court retreated from this firm refusal and instead took a more subjective approach for assessing state assurances. Unlike capital punishment it is often more difficult to prove the existence of torture within a state and considerations often depend on the assessment of quality and validity of assurances given by the requesting state. In the deportation case of Othman the court provided 11 factors the court will assess in determining the validity of these assurances. While torture is provided for as a bar to extradition by the European Convention on Human Rights and more universally by the Convention Against Torture, it is also a jus cogens norm under international law and can therefore be invoked as a bar even if it is not provided for in an extradition agreement. 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 punishment case. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed, but not the death penalty sentence itself. The Court in Soering stressed however that the personal circumstances of the individual, including age and mental state were relevant in assessing whether their extradition would give rise to a real risk of treatment exceeding the threshold in Article 3.
Jurisdiction
Own citizens
Some countries, such as Austria, Brazil, Bulgaria, the Czech Republic, France, Germany, Japan, Norway, the People's Republic of China, the Republic of China, Russia, Saudi Arabia, Switzerland, Syria and Vietnam 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.Right to private and family life
In a limited number of cases Article 8 of the European Convention on Human Rights has been invoked to stop extradition from proceeding. Article 8 states that everyone has the right to the respect of their private and family life. This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement. While this article is useful as it provide for a prohibition to extradition, the threshold required to meet this prohibition is high. Article 8 does explicitly provide that this right is subject to limits in the interests of national security and public safety, so these limits must be weighed in a balancing of priority against this right. Cases where extradition is sought usually involve serious crimes so while these limits are often justified there have been cases where extradition could not be justified in light of the individual's family life. Cases to date have mostly involved dependant children where the extradition would be counter to the best interests of this child. In the case of FK v. Polish Judicial Authority the court held that it would violate article 8 for a mother of five young children to be extradited amidst charges of minor fraud which were committed number of years ago. This case is an example of how the gravity of the crime for which extradition was sought was not proportionate to protecting the interests of the individual's family. However the court in this case noted that even in circumstances where extradition is refused a custodial sentence will be given to comply with the principles of international comity. In contrast the case of HH v Deputy Prosecutor of the Italian Republic, Genoa is an example of when the public interest for allowing extradition outweighed the best interests of the children. In this case both parents were being extradited to Italy for serious drug importation crimes.Article 8 does not only address the needs of children, but also all family members, yet the high threshold required to satisfy Article 8 means that the vulnerability of children is the most likely circumstance to meet this threshold. In the case of Norris v US a man sought to argue that if extradited his health would be undermined and it would cause his wife depression. This claim was rejected by the Court which stated that a successful claim under Article 8 would require “exceptional” circumstances.
Suicide Risk: Cases where there is risk of the individual committing suicide have also invoked article 8 as the public interest of extraditing must be considered in light of the risk of suicide by the individual if extradited. In the case of Jason's v Latvia extradition was refused on these grounds, as the crime for which the individual was sought was not enough of a threat to public interest to outweigh the high risk of suicide which had been assessed to exist for the individual if extradited.
Fair trial standards
Consideration of the right to a fair trial is particularly complex in extradition cases. Its complexity arises from the fact that while the court deciding whether to surrender the individual must uphold these rights this same court must also be satisfied that any trial undertaken by the requesting state after extradition is granted also respects these rights. Article 14 of the ICCPR provides a number of criteria for fair trial standards. These standards have been reflected in courts who have shown that subjective considerations should be made in determining whether such trials would be ‘unjust’ or ‘oppressive’ by taking into account factors such as the duration of time since the alleged offences occurred, health of the individual, prison conditions in the requesting state and likelihood of conviction among other considerations. Yet exactly how the standards provided for in ICCPR are incorporated or recognised by domestic courts and decision makers is still unclear although it seems that these standards can at a minimum be used to inform the notions of such decision makers. If it is found that fair trial standards will not be satisfied in the requesting country this may be a sufficient bar to extradition.Article 6 of the ECHR also provides for fair trial standards, which must be observed by European countries when making an extradition request. This court in the Othman case, whom if extradited would face trial where evidence against him had been obtained by way of torture. This was held to be a violation of Article 6 ECHR as it presented a real risk of a ‘flagrant denial of justice’. The court in Othman stressed that in order for a breach of Article 6 to occur the trial in the requesting country must constitute a flagrant denial of justice, going beyond merely an unfair trial. Evidence obtained by way of torture has been sufficient to satisfy the threshold of a flagrant denial of justice in a number of case. This is in part because torture evidence threatens the “integrity of the trial process and the rule of law itself.”
Human rights and extradition
Human rights as a bar to extradition can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence as well as the effect on family of the individual if extradition is granted. The repressive nature and the limitations of freedoms imposed on an individual is part of the extradition process and is the reason for these exceptions and the importance that human rights are observed in the extradition process. Therefore, human rights protected by international and regional agreements may be the basis for denying extradition requests, but only as independent exceptions. While human rights concerns can add to the complexity of extradition cases it is positive as it adds to the legitimacy and institutionalisation of the extradition system.Determining whether to allow extradition by the requested state is, among other considerations, a balancing exercise between the interests of the requesting state's pursuit of justice over the accused individuals, the requested state's interests in holding dominion over those presently in its territory, and the rights of the extraditable persons. Extradition raises human rights concerns in determining this balance in relation to the extraditable person. States make provision to recognise these rights both expressing in bilateral treaty agreements and also, potentially by way of state's obligations under the Universal Declaration of Human Rights, of which the International Covenant on Civil and Political Rights is particularly relevant to extradition. Although regional, the European Convention of Human Rights has also been invoked as a bar to extradition in a number of cases falling within its jurisdiction and decisions from the European Court of Human Rights have been a useful source of development in this area.
''Aut dedere aut judicare''
A concept related to extradition that has significant implications in transnational criminal law is that of aut dedere aut judicare. 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.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”.
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. 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. 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 suspect.
There is at present controversy in the United Kingdom about the Extradition Act 2003, 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.
In 2013, the United States submitted extradition requests to many nations for former National Security Agency employee Edward Snowden. It criticized Hong Kong for allowing him to leave despite an extradition request.
2019 Hong Kong extradition law protests
A proposed Hong Kong extradition law tabled in April 2019 led to one of the biggest protests in the island's history, with 1 million demonstrators joining the protests on the 9th of June, 2019. They took place three days before the Hong Kong government planned to bypass the committee process and bring the contentious bill straight to the full legislature to hasten its approval.The bill, which would ease extradition to communist People's Republic of China, includes 37 types of crimes. While the Beijing-friendly ruling party maintains that the proposal contains protections of the dual criminality requirement and human rights, its opponents allege that after people are surrendered to the mainland, it could charge them with some other crime and impose the death penalty for that other crime. There are also concerns about the retroactive effect of the new law.
The government's proposal was amended to remove some categories after complaints from the business sector, such as "the unlawful use of computers".
Experts have noted that the legal systems of mainland China and Hong Kong follow 'different protocols' with regard to the important conditions of double criminality and non-refoulement, as well as on the matter of executive vs. judicial oversight on any extradition request.
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 |
| Antoine Argoud | 1963 | West Germany | France |
| Isang Yun | 1967 | West Germany | South Korea |
| Mordechai Vanunu | 1986 | Italy | Israel |
| Humberto Álvarez Machaín | 1990 | Mexico | United States |
| Abdullah Ocalan | 1999 | Kenya | Turkey |
| Wang Bingzhang | 2002 | Vietnam | China |
| Hassan Mustafa Osama Nasr | 2003 | Italy | Egypt |
| Rodrigo Granda | 2004 | Venezuela | Colombia |
| Konstantin Yaroshenko | 2008 | Liberia | United States |
| Dirar Abu Seesi | 2011 | Ukraine | Israel |
| Gui Minhai | 2015 | Thailand | China |
| Trịnh Xuân Thanh | 2017 | Germany | Vietnam |
| Xiao Jianhua | 2017 | Hong Kong | China |
"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. 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 allegedly operates a global extraordinary rendition programme, which from 2001 to 2005 captured an estimated 150 people and transported them around the world.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, and rendered to other countries, often after having transited through secret detention centres utilised 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. 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.