International extradition is the primary legal process by which one country responds to the request of a second country to send (extradite) suspected criminal offenders to face criminal charges in the second country. The person who is extradited (sometimes referred to as the fugitive or relator) may have fled the jurisdiction of the second country in an effort to avoid prosecution. Increasingly, however, the alleged offender has not fled and instead faces charges that arise out of his or her conduct in the first country and that had effects in the second country. Every year, executive and judicial authorities in scores of countries collectively request the extradition of hundreds of people to face criminal charges. In the United States, federal prosecutors bring slightly more than 100 extradition requests to court per year on behalf of countries seeking extradition of an alleged offender. This article explores the basis by which extradition occurs. Beginning with an examination of the legal authority for extradition, the entry continues with a discussion of traditional components of extradition law (i.e., circumstances by which it occurs and the particulars of treaties) and conditions by which extradition may be defended (i.e., human rights violations and the ways this defense may occur) and ends with a brief discussion related to the alternatives to extradition.
Legal Authority for Extradition
In general, a country obtains the authority to extradite from two sources: its own internal or domestic law or a treaty relationship with the country that requests the extradition. Internal law is sufficient to provide authority to extradite, but a country’s internal law may also require a treaty relationship. International law does not require countries to agree to an extradition request without a preexisting commitment to do so. A country may choose, but is not required, to extradite a person to another country as a matter of international comity. Thus, some countries will extradite without a treaty, based on reciprocity—the assumption being that the other state will reciprocate by honoring similar requests for extradition.
Some authorities hold that an international law duty to extradite exists for jus cogens crimes (crimes that violate fundamental international law norms). Any such obligation, however, overlaps in practice with multilateral conventions, such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, that nearly every country has signed and that require signatories either to extradite or to prosecute people who violate the provisions of those conventions (aut dedere aut judicare).
Regional conventions or agreements may also impose extradition obligations or their equivalent, as with the Council of the European Union’s (EU) decision to abolish extradition within the EU and replace it with the European Arrest Warrant. Despite these various multilateral arrangements, however, most extraditions take place pursuant to the terms of bilateral extradition treaties.
In addition to the obligations imposed by a convention or a treaty, the internal law of the extraditing country will typically determine the authority, process, and limits that apply to extradition. Those requirements will sometimes be complex. Depending on the specific country, its internal law of extradition will integrate constitutional, statutory, administrative, and/or judge-made law. Historically, judicial and political authorities have each had a part in the extradition process.
Traditional Components of International Extradition Law
Many countries (including China, France, Germany, Israel, Mexico, and Russia) refuse or reserve the right to refuse to extradite their own citizens, as a matter of their internal law. Extradition treaties involving these countries will usually acknowledge this position. Under the European Arrest Warrant, by contrast, a country cannot refuse to execute a warrant for one of its own citizens, although it can request that its nationals be returned to serve their sentences in their home country. The internal law of the United States does not prevent the extradition of its nationals, and the U.S. Supreme Court has declared that whether a U.S. citizen can be extradited to another country turns on the language of the relevant extradition treaty.
The extradition treaty between the United States and Mexico, signed into force in 1978, provides an example of the way countries address nationality. The treaty simultaneously recognizes Mexico’s refusal to extradite its nationals and the willingness of the United States to extradite its nationals:
Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be deemed proper to do so.
To be extraditable, a person must have committed an offense that falls within the terms of the relevant treaty. Some treaties contain a list of specific offenses that qualify for extradition. Others refer to categories of offenses. Many modern extradition treaties take a broad approach and allow extradition for conduct that is criminal under the law of both countries. Traditionally, nearly all countries have required dual criminality— that the conduct at issue be criminal in both countries, even if the specific crimes are not entirely the same. The modern approach of allowing extradition for conduct that is criminal under the law of both countries essentially adopts dual criminality as the only standard for extradition.
Extradition proceedings also involve factual issues. The usual approach, often reflected in treaties, is for the extraditing country to determine whether the factual record provided by the requesting country provides probable cause to believe that the extraditee committed the offenses charged. The extraditing country will hold a hearing on this issue, but it will not hold a trial, and it will not make a formal or informal finding of guilt. The person facing extradition may not even be allowed to present evidence that contradicts the proof provided by the requesting country. Thus, the U.S. Supreme Court has held that the extraditee may not introduce evidence that would establish the defense of insanity.
The EU has adopted a different approach to factual issues for extradition among its member states. Under the European Convention on Extradition and, more recently, the European Arrest Warrant, the requested person has the right to a hearing, but the nature or amount of evidence is not a factor to be considered in refusing to extradite or execute a warrant.
Defenses to Extradition
Most extradition treaties include provisions that forbid extradition of a person who already has been tried for the same crime. International law provides some general support for these treaty provisions, but there is no clear international law rule on this topic. Treaties that include this protection fall into two general categories. Some refer to prosecution for the same acts, while others refer to prosecution for the same offenses. The protection offered by the word acts is broader and more fact-based, and the protection offered by offenses is more narrowly focused on the elements of the crimes. The Council of Europe’s framework decision for the European Arrest Warrant limits execution of a warrant if another EU state has reached a final adjudication of the requested person in respect of the same acts.
Extradition treaties usually will specify whether the statute of limitations is a defense to extradition. If this defense is available, the treaty will also specify whether the relevant statute of limitations is that of the extraditing country, the requesting country, or both.
Since the late 1800s, extradition treaties usually have included clauses that bar the extradition of people who committed political offenses and who had, it was assumed, fled the requesting country to escape political persecution. Recently, however, the political offense exception has come under pressure because a robust political offense exception could prevent extradition of people involved in terrorism.
Although most treaties include a political offense exception, it usually appears without a definition, with the result that opinions written by national courts are the primary source of doctrine. Case law tends to distinguish between purely political offenses (e.g., treason and sedition) and relative political offenses or offenses of a political character (e.g., murder committed in the course of a rebellion). Both types of political offenses usually qualify as a defense from extradition. Many recent treaties, however, prevent the application of the political offense exception to crimes of terrorism that otherwise might qualify as relative political offenses or that would require courts to distinguish relative political offenses from mere politically motivated crimes. Another category of offenses consists of crimes committed because of political motivations. These crimes do not fall within the political offense exception.
The status of the conduct as a political offense (usually a defense from extradition) and the political motivations of the extraditee (not a defense from extradition) are distinct from the political motivation of officials in the requesting country. Allegations that the extradition is politically motivated will not support the political offense exception.
Extradition and Human Rights
In theory, the extradition process accommodates both the legal and the political aspects of extradition. Courts address objective legal questions about the specific charges and the sufficiency of the evidence, while political authorities handle subjective political and diplomatic questions about the desirability and ramifications of extradition. Human rights claims complicate this division of labor.
Traditionally, a person facing extradition cannot introduce evidence in court that the requesting country will mistreat him or her in some manner. Mistreatment is a broad category that ranges from unfair procedures, to squalid prison conditions, to torture or other forms of deliberate abuse. The justification for this rule of noninquiry is that the political and diplomatic authorities of the extraditing country have decided to allow extraditions to the requesting country and that those authorities have the discretion to consider case-by-case claims of potential mistreatment. In countries that follow the rule of noninquiry, these issues are resolved through diplomatic assurances that the extraditee will not be mistreated.
Outside the United States, and particularly in Europe, the rule of noninquiry has eroded. International law, in the form of the Convention Against Torture, the Convention Relating to the Status of Refugees, and the Convention Against the Taking of Hostages, forbids extradition if the extraditee would face torture or persecution. Although it is possible to satisfy these requirements through diplomatic assurances, this duty falls to the courts in some countries.
In Europe, the European Court of Human Rights has ruled that the European Convention on Human Rights forbids extradition if there are substantial grounds for believing that the extraditee will be subjected to torture or other cruel, inhuman, or degrading treatment or punishment in the requesting country. That court has also held that national courts in Europe must review the actions of executive officials to ensure compliance with this rule of inquiry.
By contrast, the noninquiry doctrine remains strong in the United States. Some U.S. courts have suggested that an exception to the noninquiry rule exists for particularly severe mistreatment, but no U.S. court has ever relied on this potential exception to forbid an extradition. The U.S. Congress has declared that no one should be extradited if there is a substantial risk of torture, but it has also bolstered the rule of noninquiry by stating that U.S. courts do not have jurisdiction to address this issue. The result is that the United States continues to rely on diplomatic assurances for compliance with its international law obligations in this area.
Specialty
The rule or doctrine of specialty provides a separate potential defense, not to the extradition itself but to the criminal proceedings in the requesting country. Specialty requires the requesting state to prosecute the extraditee only for the crimes that supported the extradition request (or for lesser included offenses) and to respect any conditions or limitations that the extraditing country placed on the extradition. Note, however, that the requesting state can ask the extraditing state for permission to impose additional charges or to depart from any conditions or limitations. The extraditee also has the ability to consent to additional charges or to departures from conditions or limitations. Many treaties explicitly incorporate specialty, and some authorities assert that it has the status of customary international law.
Alternatives to Extradition
Extradition provides a procedural mechanism for international cooperation in the area of criminal justice, but extradition is not the only method for securing the presence of an alleged offender. Extradition treaties will not necessarily forbid other, less formal efforts, and the U.S. Supreme Court has ruled, for example, that if an extradition treaty “does not prohibit [the defendant’s] abduction . . . the court need not inquire as to how [the defendant] came before it” (United States v. Alvarez-Machain, 504 U.S. 655, 662 (1992)). Arguably, however, international human rights law forbids such conduct.
Another alternative to extradition is deportation or removal pursuant to national immigration law. Although deportation is similar to extradition because it results in the expulsion of a person from the territory of a country, it does not in theory take place at the request of another country, and the person facing deportation may have a right under national or international law not to be sent to the country that has initiated criminal proceedings.
References:
- Bassiouni, M. C. (2014). International extradition: United States law and practice (6th ed.). Oxford, UK: Oxford University Press.
- Pyle, C. (2001). Extradition, politics, and human rights. Philadelphia, PA: Temple University Press.
- Sadoff, D. (2016). Bringing fugitives to justice: Extradition and its alternatives. Cambridge, UK: Cambridge University Press.
- S. Department of State. (1978, May 4). Extradition treaty between the United States of America and Mexico. Retrieved from https://www.oas.org/juridico/ mla/en/traites/en_traites-ext-usa-mex.pdf