thumb|380x380px|An extradition document from the [[St. Louis Metropolitan Police Department|St. Louis Police Department in the United States, requesting the extradition of a murder suspect suspected of fleeing to Auckland in New Zealand, 1885]]
Extradition is the formal legal process by which one jurisdiction surrenders a person accused or convicted of a crime to another jurisdiction where the crime occurred for the purposes of prosecution or punishment. 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.
In an extradition process, one sovereign jurisdiction 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.
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, 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 state may still request the expulsion or lawful return of an individual pursuant to the requested state's domestic law.
There are two types of extradition treaties: list and dual criminality treaties. The most common and traditional is the list treaty, which contains a list of crimes for which a suspect is to be extradited. Dual criminality treaties generally allow for the extradition of a criminal suspect if the punishment is more than one year imprisonment in accordance with the laws of both countries. Occasionally the length of the sentence agreed upon between the two countries is varied. Under both types of treaties, if the conduct is not considered a crime in both of the countries involved then it will not be an extraditable offense. Such bars can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence. These bars may also extend to take account of the effect on family of the individual if extradition proceeds. Therefore, human rights recognised by international and regional agreements may be the basis for denying extradition requests. However, cases where extradition is denied should be treated as independent exceptions and will only occur in exceptional circumstances.
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 states.
This requirement has been abolished for broad categories of crimes in some jurisdictions, notably within the European Union.
Political nature of the alleged crime
Many countries refuse to extradite suspects of political crimes. Such exceptions aim to prevent the misuse of extradition for political purposes, protecting individuals from being prosecuted or punished for their political beliefs or activities in another country. Countries may refuse extradition to avoid becoming involved in politically motivated cases, or gaining a bargaining chip over a rival state.
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.
- Death penalty: Several jurisdictions, such as Australia, Canada, Macao, New Zealand, 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. 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. However, the Committee noted that if Canada had extradited without due process it would have breached its obligation under the Convention in this case.
- Torture, inhuman or degrading treatment 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. 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. 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.
Jurisdiction
Jurisdiction over a crime can be invoked to refuse extradition.
Own citizens
Several countries, such as Austria, Brazil, Bulgaria, Czechia (the Czech Republic), France, Germany, Israel, Japan, Morocco, Norway, the People's Republic of China (Mainland China), Portugal, the Republic of China (Taiwan), Russia, Saudi Arabia, Slovenia, Switzerland, Syria, Turkey, the UAE, and Vietnam have laws against extraditing their own citizens to other countries' jurisdictions. Instead, they often have special laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they can locally prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the country's borders (see, e.g., trial of Xiao Zhen). Israeli law permits the extradition of Israeli citizens who have not established residency in Israel; resident citizens may be extradited to stand trial in a foreign country, provided that the prosecuting country agrees that any prison sentence imposed will be served in Israel.
Right to private and family life
In a limited number of cases Article 8 of the European Convention on Human Rights has been invoked to stop extradition from proceeding. Article 8 states that everyone has the right to the respect of their private and family life. This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement. This case is an example of how the gravity of the crime for which extradition was sought was not proportionate to protecting the interests of the individual's family. However the court in this case noted that even in circumstances where extradition is refused a custodial sentence will be given to comply with the principles of international comity. In contrast the case of HH v Deputy Prosecutor of the Italian Republic, Genoa is an example of when the public interest for allowing extradition outweighed the best interests of the children. In this case both parents were being extradited to Italy for serious drug importation crimes.
Article 8 does not only address the needs of children, but also all family members, yet the high threshold required to satisfy Article 8 means that the vulnerability of children is the most likely circumstance to meet this threshold. In the case of Norris v US (No 2) a man sought to argue that if extradited his health would be undermined and it would cause his wife depression. This claim was rejected by the Court which stated that a successful claim under Article 8 would require "exceptional" circumstances.
Suicide risk
Cases where there is risk of the individual committing suicide have also invoked article 8 as the public interest of extraditing must be considered in light of the risk of suicide by the individual if extradited. In the case of Jason's v Latvia extradition was refused on these grounds, as the crime for which the individual was sought was not enough of a threat to public interest to outweigh the high risk of suicide which had been assessed to exist for the individual if extradited.
Fair trial standards
Consideration of the right to a fair trial is particularly complex in extradition cases. Its complexity arises from the fact that while the court deciding whether to surrender the individual must uphold these rights this same court must also be satisfied that any trial undertaken by the requesting state after extradition is granted also respects these rights. Article 14 of the ICCPR provides a number of criteria for fair trial standards. These standards have been reflected in courts who have shown that subjective considerations should be made in determining whether such trials would be ‘unjust’ or ‘oppressive’ by taking into account factors such as the duration of time since the alleged offences occurred, health of the individual, prison conditions in the requesting state and likelihood of conviction among other considerations. Yet exactly how the standards provided for in ICCPR are incorporated or recognised by domestic courts and decision makers is still unclear although it seems that these standards can at a minimum be used to inform the notions of such decision makers. This was held to be a violation of Article 6 ECHR as it presented a real risk of a ‘flagrant denial of justice’. Evidence obtained by way of torture has been sufficient to satisfy the threshold of a flagrant denial of justice in a number of case. This is in part because torture evidence threatens the "integrity of the trial process and the rule of law itself."
Human rights and extradition
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.
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. 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.
There is at present controversy in the United Kingdom about the Extradition Act 2003, which 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.
In 2013, the United States submitted extradition requests to many nations for former National Security Agency employee Edward Snowden. It criticized Hong Kong for allowing him to leave despite an extradition request.
Extradition case of Huawei CFO Meng Wanzhou
It is a part of the China–United States trade war, which is political in nature.
2019 Hong Kong extradition law protests
A proposed Hong Kong extradition law tabled in April 2019 led to one of the biggest protests in the city's history, with 1 million demonstrators joining the protests on 9 June 2019. They took place three days before the Hong Kong government planned to bypass the committee process and bring the contentious bill straight to the full legislature to hasten its approval. There are also concerns about the retroactive effect of the new law.
The government's proposal was amended to remove some categories after complaints from the business sector, such as "the unlawful use of computers".
Abductions
<!-- This section is linked from List of kidnappings -->
In some cases a state has abducted an alleged criminal from the territory of another state either after normal extradition procedures failed, or without attempting to use them. Notable cases are listed below:
{|class="wikitable sortable"
|+
! Name
! Year
! From
! To
|-
| Morton Sobell
| 1950
| Mexico
| United States
|-
| Adolf Eichmann
| 1960
| Argentina
| Israel
|-
| Antoine Argoud
| 1963
| West Germany
| France
|-
| Isang Yun
| 1967
| West Germany
| South Korea
|-
| Mordechai Vanunu
| 1986
| Italy
| Israel
|-
| Humberto Álvarez Machaín
| 1990
| Mexico
| United States
|-
| Abdullah Öcalan
| 1999
| Kenya
| Turkey
|-
| Wang Bingzhang
| 2002
| Vietnam
| China
|-
| Hassan Mustafa Osama Nasr
| 2003
| Italy
| Egypt
|-
| Rodrigo Granda
| 2004
| Venezuela
| Colombia
|-
|
| 2008
| Liberia
| United States
|-
| Dirar Abu Seesi
| 2011
| Ukraine
| Israel
|-
| Gui Minhai
| 2015
| Thailand
| China
|-
| Trịnh Xuân Thanh
| 2017
| Germany
| Vietnam
|-
| Joseph Budna
| 2025
| Belize
| Guatemala
|}
"Extraordinary rendition"
"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. 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.
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") used 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. 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.
Uyghur extradition
In June 2021, CNN reported testimonies of several Uyghurs accounting for the detention and extradition of people they knew or were related to, from the United Arab Emirates. Documents issued by the Dubai public prosecutor and viewed by CNN, showed the confirmation of China’s request for the extradition of a detained Uyghur man, Ahmad Talip, despite insufficient proof of reasons for extradition.
In 2019, UAE, along with several other Muslim nations, publicly endorsed China's Xinjiang policies, despite Beijing being accused of genocide by the US State Department. Neither the Dubai authorities nor the foreign ministry of the UAE responded to the several requests for comment made by CNN on the detention and extradition of Uyghurs.
External links
- What Is Extradition?—A primer from the Council on Foreign Relations. Jonathan Masters, 2019.
- A Brief Primer on International Law—with cases and commentary. Nathaniel Burney, 2007.
- Extraditions Cut Short —Extraditions between Colombia and United States
- Chiquita Board Members: Total Identification —Extradition of Chiquita board members
- Expulsions and extraditions, fact sheet of the ECtHR case law
- Deflem, Mathieu, and Kyle Irwin. 2017. "Extradition, International." 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.