Extradition

In an extradition, one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdictions and depends on the arrangements made between them. In addition to 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.^[1]

"Extradition Order" redirects here. For the band, see Extradition Order (band).

In an extradition process, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction ("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 them 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]

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.^[2]

The relevant crime is sufficiently serious.

There exists a prima facie case against the individual sought.

The event in question qualifies as a crime in both countries.

The extradited person can reasonably expect a fair trial in the recipient country.

The likely penalty will be proportionate to the crime.

Death penalty: Several jurisdictions, such as Australia, Canada, Macao,^[8] New Zealand,^[9] South Africa, United Kingdom and most European nations except Belarus, will not consent to the extradition of a suspect if the death penalty is a possible sentencing option 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.^[10] 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.^[11] However, the Committee noted that if Canada had extradited without due process it would have breached its obligation under the Convention in this case.

[7]

Torture, 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.^[12] Although in the more recent case before the same court Othman (Abu Qatada) 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 (Abu Qatada) the court provided 11 factors the court will assess in determining the validity of these assurances.^[13] 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.^[6] 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 (the individual in this case was 18 years old) were relevant in assessing whether their extradition would give rise to a real risk of treatment exceeding the threshold in Article 3.^[14]

inhuman or degrading treatment

Human rights and extradition[edit]

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.^[6] 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.^[46]

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.^[47] 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.^[5] 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.

Deportation

Extraterritorial jurisdiction

Extraterritoriality

Immunity from prosecution

Right of asylum

Universal jurisdiction

Sosa v. Alvarez-Machain

International

Lists

Individuals:

Protest:

—A primer from the Council on Foreign Relations. Jonathan Masters, 2019.

What Is Extradition?

—with cases and commentary. Nathaniel Burney, 2007.

A Brief Primer on International Law

Archived 13 June 2008 at the Wayback Machine—Extraditions between Colombia and United States

Extraditions Cut Short

Archived 12 August 2008 at the Wayback Machine—Extradition of Chiquita board members

Chiquita Board Members: Total Identification

fact sheet of the ECtHR case law

Expulsions and extraditions

pp. 340–342 in Encyclopedia of American Civil Rights and Liberties: Revised and Expanded, edited by Kara E. Stooksbury, John M. Scheb II, and Otis H. Stephens Jr.. Santa Barbara, CA: ABC-CLIO.