Extradition

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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[who?] negotiated an extradition treaty with a Hittite King[who?].[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[edit]

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[edit]

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:

Aut dedere aut judicare[edit]

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. 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.[1]

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.”[1]

Controversies[edit]

International tensions[edit]

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 (text here) that 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.[15]

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.[16]

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.[17] It criticized Hong Kong for allowing him to leave despite an extradition request.[18] Bolivia and Venezuela advised the United States that they denied their request for extradition.[19] Nevertheless, the United States impeded Snowden's travel by cancelling his passport.

Extradition and abduction[edit]

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

NameYearFromTo
Morton Sobell1950MexicoUnited States
Adolf Eichmann1960ArgentinaIsrael
Isang Yun1967[20]West GermanySouth Korea
Mordechai Vanunu1986ItalyIsrael
Humberto Álvarez Machaín1990MexicoUnited States
Abdullah Ocalan1999KenyaTurkey
Wang Bingzhang2002VietnamChina
Hassan Mustafa Osama Nasr2005ItalyEgypt (with confirmed United States involvement)
Dirar Abu Seesi2011UkraineIsrael

"Extraordinary rendition"[edit]

"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.[21] 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.[22][23][24][25]

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.[26] 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.[27]

See also[edit]

International:

Individuals:

Footnotes[edit]

  1. ^ 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: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2211219&download=yes
  2. ^ Extradition Treaties Interpretation Act of 1998 from the United States Department of State, Extradition Treaties
  3. ^ "Putin: Snowden still in Moscow airport, won't be extradited, free to go anywhere". RT. Retrieved 25 June 2013. 
  4. ^ Article 7 of Macau Law No. 6/2006 Law of judicial cooperation in criminal matters ((Portuguese) Lei n.º 6/2006, Chinese: 第6/2006號法律)
  5. ^ 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)
  6. ^ "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. 
  7. ^ Brazilian constitution of 1988, Article 5
  8. ^ "Charter of fundamental rights and freedoms, Article 14 (4), second sentence". 1992-12-16. 
  9. ^ "Code of criminal procedure (legislative part), Articles 696-1 to 696-7". published by Légifrance, the official website of the French government for the publication of legislation, regulations, and legal information. 2005-12-13. 
  10. ^ "Légifrance publications of the French legislation". Légifrance. 2005-12-13. 
  11. ^ 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.
  12. ^ Article 2, Law of Extradition ((Japanese) 逃亡犯罪人引渡法)
  13. ^ Article 8 of the Extradition Law of the People's Republic of China (Chinese: 中华人民共和国引渡法)
  14. ^ 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.
  15. ^ Lib Dem leader joins bankers' extradition battle
  16. ^ Stevenson, Tom (2006-07-06). "Senior executives attack 'invidious, one-sided treaty'". The Daily Telegraph (London). Retrieved 2010-05-02. 
  17. ^ http://usdoj.com/7663/38803/a/usa-requests-provisional-arrest-warrants-from-various-countries-against-edward-s
  18. ^ http://edition.cnn.com/2013/07/11/world/nsa-snowden/index.html
  19. ^ http://www.globalresearch.ca/latin-american-governments-blast-hijacking-in-snowden-manhunt/5341888
  20. ^ 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. 
  21. ^ 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
  22. ^ Charlie Savage, "Obama’s War on Terror May Resemble Bush’s in Some Areas". The New York Times. 17 February 2009. Retrieved 2 January 2010.
  23. ^ "Background Paper on CIA's Combined Use of Interrogation Techniques". 30 December 2004. Retrieved 2 January 2010.
  24. ^ "New CIA Docs Detail Brutal 'Extraordinary Rendition' Process". Huffington Post. 28 August 2009. Retrieved 2 January 2010.
  25. ^ Fact sheet: Extraordinary rendition, American Civil Liberties Union. Retrieved 29 March 2007 (English)
  26. ^ Resolution 1507 (2006). Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states]
  27. ^ "Ensuring Lawful Interrogations | The White House". Whitehouse.gov. Retrieved 17 July 2010. 

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