Extradition is the procedure wherein one country transfers either a suspected or convicted criminal to another country. The process of extradition is usually governed by treaties between the countries. In the process of extradition, a sovereign (the requesting state) makes a formal request to another sovereign (the requested state) for the extradition of the criminal. If the fugitive criminal is found within the territory of the requested state, then the requested state arrests him/her and hands over to the requesting state. The extradition process, however, is subjected to the laws, policies and practice of the requested state with respect to the extradition of the fugitive.
The settled principle in international law is that a state has no obligation to surrender an alleged criminal to a foreign state, because of the principle of sovereignty which provides every state with legal authority over the people living within its borders. Therefore, an absence of international obligation along with the need for the right to demand criminals from other countries, have led to extradition treaties and agreements. Nevertheless, even when no applicable extradition treaty or agreement exists between the states, a sovereign may still request the extradition of an individual subject to the domestic law of the requested state.
However, there is no country in the world which 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.
The countries, by enacting laws or in concluding treaties or agreements, determine certain situations under which they may accept or deny the requests of extradition. A few considerable conditions to extradition include the following:
- Dual criminality: The act for which extradition of a criminal is sought must constitute a crime punishable by in both, the requesting and the requested, states.
- Nature of the alleged crime: Generally, most of the countries do not entertain the request to extradite suspects of political crimes.
- Form of punishment: Extradition may also be refused on the ground that the person, if extradited to the requesting state, may be awarded capital punishment or may be tortured.
- Death penalty: Various states, such as Canada, Australia, Macao, South Africa, New Zealand and most European states except Belarus, does allow extradition if the other state is suspected of imposing death penalty on the suspect unless they are given assurance that the death penalty will not be carried out.
- Torture, inhuman or degrading treatment or punishment: Many states do not extradite the fugitive if there are chances that he/she can be subjected to torture, inhuman or degrading treatment or punishment.
It was held by the European Court of Human Rights in the case of Soering v United Kingdom, that it would be a violation of Article 3 of the European Convention on Human Rights to extradite a person to the United States from the United Kingdom in a case of capital punishment.
- Jurisdiction: Jurisdiction over a crime can also be a ground to deny extradition. More particularly, due to the fact that the person being requested is a national of the requested state further puts the state in a position to have complete jurisdiction over that citizen.
- National of the requested state: Few states, like Brazil, Austria, the Czech Republic, Germany, France, Japan, the Republic of China (Taiwan), the People’s Republic of China prohibit extradition of their own nationals. These countries, moreover, might have laws that give them jurisdiction over crimes committed by or against their nationals abroad (for instance, the trial of Xiao Zhen).
There is a principle of aut dedere aut judicare which has substantial implications in transnational criminal law. According to this maxim, states have to either prosecute or surrender individuals suspected of having committed crimes invoking universal jurisdiction, which was also affirmed by International Criminal Tribunal for the Former Yugoslavia in Blaškić case[1]. International agreements such as the U.N. Convention Against Corruption, the U.N. Convention for the Suppression of Terrorist Bombings, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Convention for the Suppression and Punishment of the Crime of Apartheid, the Convention for the Protection of Cultural Property in the Event of an Armed Conflict, all four 1949 Geneva Conventions and the Convention for the Suppression of Unlawful Seizure of Aircraft, incorporates this maxim. However, the nature of the principle as a customary international law, voluntarily assumed obligation, or jus cogens is disputed.
It can, thus, be construed that the policy of extradition is directed towards punishing the criminals for the act they commit while holding the required jurisdiction. It further can also help in combating terrorism and related activities by requesting extradition from the country that seeks to provide safe haven to the offenders.
[1] Prosecutor v. Tihomir Blaškic, Case No. IT-95-14-AR, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997.