Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition.
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 as 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 of the right to demand such criminals of other countries have caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries. No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with several nations, including the People's Republic of China, Namibia, the United Arab Emirates, North Korea, and Bahrain. Extradition is the delivery of an accused or a convicted individual by one state to another state on whose territory he/she is alleged to have committed or to have been convicted of a crime.
[edit] Restrictions
By enacting laws or concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. 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 parties.
* Political nature of the alleged crime - most countries refuse to extradite suspects of political crimes.
* 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.
* Jurisdiction - Jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation's own citizen causes that country to have jurisdiction.
* Citizenship of the person in question - some nations refuse to extradite their own citizens, holding trials for the persons themselves (see e.g. trial of Xiao Zhen). In some cases, such as that of Hafiz Muhammad Saeed, the suspect will not face criminal charges at all.
Most countries require themselves to deny extradition requests if, in the government's opinion, the suspect is sought for a political crime. Many countries and areas, such as Australia, Canada, Macao,[1] Mexico, and most European nations, 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. 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 case. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed. Parties to the European Convention also cannot extradite people where they would be at significant risk of being tortured inhumanely or degradingly treated or punished.
These restrictions are normally clearly spelled out in the extradition treaties that a government has agreed upon. They are, however, controversial in the United States, where some states have the death penalty, as it is seen by many[by whom?] as an attempt by foreign nations to interfere with the U.S. criminal justice system. In contrast, the U.S. has often persuaded countries to change or even break relevant laws, as alleged in the extradition dispute with Canada on Charles Ng.[citation needed] The case of Charles Ng went before the Supreme Court of Canada, where it was decided that extradition to the United States did not violate Mr. Ng's rights under the Canadian Charter of Rights and Freedoms. However, subsequent Canadian case law has overruled the Ng decision. Accordingly in Canada, a prisoner cannot be extradited to a country allowing the death penalty unless assurances have been made to prevent the execution of such.
Countries with a rule of law typically make extradition subject to review by that country's courts. These courts may impose certain restrictions on extradition, or prevent it altogether, if for instance they deem the accusations to be based on dubious evidence, or evidence obtained from torture, or if they believe that the defendant will not be granted a fair trial on arrival, or will be subject to cruel, inhumane or degrading treatment if extradited.
Some countries, such as France, Germany,[2] Russian Federation, Austria, the People's Republic of China,[3] the Republic of China (Taiwan)[4] and Japan,[5] forbid extradition of their own citizens either by law or by treaty. Such restrictions are occasionally controversial in other countries when, for example, a French citizen commits a crime abroad and then returns to their home country, perceived as to avoid prosecution.[6] 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.
When there is a lack of an extradition treaty, countries still sometimes request extradition, although it may not be granted. Taiwan and the Philippines lack an extradition treaty with each other, this was cited by the Taipei Times in a case where in April, 2003, in Shihlin, Taipei, Taiwan, when a Filipino woman, Virginia Chun, aged 46, cut off the penis of her Filipino-Chinese husband, surnamed Tsai, on a Tuesday while Tsai was asleep in their house. After flushing his penis down the toilet, she fled back to the Philippines. After being stitched up at a hospital, Tsai was left with a 2.5 cm (1 in) stump of a penis and is unable to have sex. The government of Taiwan requested that Virginia Chun be extradited to Taiwan to be put on trial, but due to the lack of an extradition treaty, it was unclear whether the Filipino police would agree to extradite her.[7][8]
[edit] Exemptions in the European Union
The usual extradition agreement safeguards relating to dual-criminality, the presence of prima facie evidence and the possibility of a fair trial have been waived by many European nations for a list of specified offences under the terms of the European Arrest Warrant. The warrant entered into force in eight European Union (EU) member-states on 1 January 2004, and is in force in all member-states since 22 April 2005. Defenders of the warrant[who?] argue that the usual safeguards are not necessary because every EU nation is committed by treaty, and often by legal and constitutional provisions, to the right to a fair trial, and because every EU member-state is subject to the European Convention on Human Rights[citation needed].
Extradition to federations
The federal structure of some countries, such as the United States, can pose particular problems with respect to extraditions when the police power and the power of foreign relations are held at different levels of the federal hierarchy. For instance, in the United States, most criminal prosecutions occur at the state level, and most foreign relations occurs on the federal level. In fact, under the United States Constitution, foreign countries may not have official treaty relations with sub-national units such as the individual states; rather, they may have treaty relations only with the federal government. As a result, a state that wishes to prosecute an individual located in foreign territory must direct its extradition request through the federal government, which will negotiate the extradition with the requested state. However, due to the constraints of federalism, any conditions on the extradition accepted by the federal government — such as not to impose the death penalty — are not binding on the states. In the case of Soering v. United Kingdom, the European Court of Human Rights ruled that the United Kingdom was not permitted under its treaty obligations to extradite an individual to the United States, because the United States' federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in Virginia courts. Ultimately, the Commonwealth of Virginia itself had to offer assurances to the federal government, which passed those assurances on to the United Kingdom, which extradited the individual to the United States.
Less important problems can arise due to differing qualifications for crimes. For instance, in the United States, crossing state lines is a prerequisite for certain federal crimes (otherwise crimes such as murder, etc. are handled by state governments except in certain circumstances such as the killing of a federal official).[citation needed] This transportation clause is absent from the laws of many countries. Extradition treaties or subsequent diplomatic correspondence often include language providing that such criteria should not be taken into account when checking if the crime is one in the country from which extradition should apply.
To clarify the above point, if a person in the United States crosses the borders of the United States to go to another country, then that person has crossed a federal border, and then federal law would apply. In addition, taking a flight in the United States subjects one to federal law, as all airports are considered subject to federal jurisdiction.
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 the State of California has pursued 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.
It is important to emphasize, however, that even had the treaty been ratified by the U.S., the treaty would still be one-sided, because it stipulates that extradition requests from the UK to the U.S. must show a "reasonable case" that the suspect committed the offense, but requests from the U.S. to the UK have no such requirement imposed on them.[9]
This came to a head over the extradition of the Natwest Three from the UK to the U.S., for their alleged role in the Enron fraud. Several British political leaders were heavily critical of the British government's handling of the issue.[10] The former leader of the UK's Liberal Democrat party, Sir Menzies Campbell, had argued that the U.S. had not ratified the treaty primarily due to the influence of what he calls the "Irish lobby" – which, he said, is opposed to the treaty because it could make it easier for Britain to have alleged IRA terrorist suspects extradited from the U.S.
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.[11]
Extradition and abduction
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 of
Year Name From To
1950 Morton Sobell Mexico United States
1960 Adolf Eichmann Argentina Israel
1967[12] Isang Yun West Germany South Korea
1986 Mordechai Vanunu Italy Israel
1990 Humberto Álvarez Machaín Mexico United States
1997 Mir Aimal Kansi Pakistan United States
1999 Abdullah Ocalan Kenya United States, Turkey
2002 Martin Mubanga Zambia United States, Guantanamo Bay
2004 Khaled El-Masri Republic of Macedonia United States
2005 Hassan Mustafa Osama Nasr Italy United States, Egypt
2009 Camilla Broe Denmark United States
2011 Dirar Abu Seesi Ukraine Israel
[edit] 'Extraordinary rendition'
Extraordinary rendition
"Extraordinary rendition" is an extrajudicial procedure and policy of the United States in which criminal suspects, generally suspected terrorists or supporters of terrorist organisations, are sent to other countries for imprisonment and interrogation.[citation needed] 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. Critics of the procedure have accused the CIA of rendering suspects to other countries in order to circumvent U.S. laws prescribing due process and prohibiting torture.
No comments:
Post a Comment