The Law and Practice of Extradition

Harmen van der Wilt

• Publisher: Routledge
• Year: 2022
• ISBN:
  9780429670206
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Law and Practice of Extradition provides an in-depth overview of extradition law and practice, providing students with an understanding of how key elements have been shaped by the state, the fugitive and the international community.

The process of globalisation has offered huge opportunities for organised crime, both in terms of expansion of operations and the possibility to evade justice, confronting states with considerable challenges. The Law and Practice of Extradition addresses all key topics in this fast-evolving area, including extradition and international crimes, terrorism and human rights.

This textbook is particularly suitable for master's and post-doctoral students with a basic background knowledge of international law, criminal law and international relations, and will interest legal practitioners who seek a better understanding of extradition.

1 Introduction

DOI: 10.4324/9780429956683-1

Situated on the crossroads of criminal and international law, extradition has a mixed pedigree. Its criminal law features are obvious. The essence of extradition is the return of a person (from one state to another) who has been charged with having committed an offence or has already been convicted for the purpose of bringing that person to trial or the execution of a sentence. The purpose of criminal law enforcement defines the concept of extradition. Any other aim that is sought by the surrender of a person means that the procedure can be legally and properly qualified as extradition.¹ Its international law aspect is apparent from the fact that, in principle, two states are involved, namely, the requesting and the requested state.²

1 Marjorie M. Whiteman, Digest of International Law, Volume 6, US Department of State 1968, 727. 2 ‘In principle’ because surrender of persons for criminal enforcement purposes is conceivable and takes place between states and international criminal tribunals and courts. The procedure is governed by different legal rules and principles, allowing states less leeway to invoke grounds for refusal.

Since the 20th century, and especially after World War II, extradition has increasingly been considered as serving broader purposes, like sustaining world public order and furthering peaceful relations between nations.³ A vigorous advocate of this point of view was the late M. Cherif Bassiouni.⁴ His ideas have found resonance in the judgments of the European Court of Human Rights which has emphasised the need for closer cooperation, in reaction to international crime: ‘As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice.’⁵

3 Although the germs of this conception were already discernible in the classic treatises on the international community as a civitas maxima by Wolff and Grotius. On the several depictions of international relations, see for instance, Hedley Bull, The Anarchical Society: A Study on Order in World Politics, Columbia University Press: New York 1977; with a particular interest for the connection between concepts of international order and extradition: M. Ch. Bassiouni and Edward Wise, Aut Dedere, Aut Judicare; The Duty to Extradite or Prosecute in International Law, Martinus Nijhoff Publishers: Dordrecht 1995, especially pp. 26–42 (‘The Principle Aut Dedere, Aut Judicare and the Hypothesis of a Civitas Maxima’). 4 Compare M. Ch. Bassiouni, International Extradition and World Public Order, Sijthoff: Leiden, 1974. 5 ECHR, 12 May 2005, Appl. No. 46221/99, Gran Chamber (Öcalan v. Turkey (Merits)), 37 EHRR 10, section 88. Emphasis added.

1.1 Stakeholders (i): the requesting and the requested state

Although this perception of extradition as a stairway to ‘eternal peace’ should not be dismissed forthwith, we will start with the more modest proposition that extradition (at least) serves the interests of the states involved. This idea has been easily taken for granted, but it deserves further scrutiny. For the requested state it is not self-evidently advantageous to surrender fugitives from justice to another state. It may be a convenient method to get rid of unwanted individuals who may yield a danger to a state’s own society, but that benefit dwindles whenever these persons do not (or no longer) persist in their harmful behavior. Moreover, the requested state may harbor different opinions on whether the conduct is criminal at all or whether the fugitive is a menace to society. Scores of conditions and grounds for refusal in extradition conventions, like the principle of dual criminality and the political offence exception, owe their existence to the fact of life that conceptions on criminal justice are not universally shared and underscore that the willingness of states to engage in extradition is qualified at best. Arguably the strongest incentive for the requested state to comply with an extradition request is the prospect of obtaining a similar favour from the requesting state if the tables are turned. While reciprocity – do ut des – is generally a strong motive and principle in international relations and international law, its relevance in extradition is indeed overwhelming. That takes us directly to the interests of the requesting state.

At first blush, the benefits for the requesting state are rather obvious. After all, its powers of criminal law enforcement are obstructed by the suspect’s flight abroad. Why would it lodge an extradition request in the first place if it would have no interest in obtaining custody over the fugitive? The logic is flawless, but it starts from the premise that the state has actually initiated an extradition and does not explain the utility of the institution in general. It is argued that the urgency or ‘sense’ of extradition at least partially depends on the nature of the offence and the theory of punishment to which one is inclined to subscribe. For the moment, some observations on both aspects will suffice.

From a retributive point of view, extradition is arguably an indispensable instrument. If one considers punishment as a Kantian imperative, a response that of necessity must follow the crime, it is simply unacceptable that the culprit will get away with it by escaping to another country. The ‘injured’ state might ponder cajoling the state of refuge to start criminal investigations and, if accepted, transfer criminal proceedings. However, this is usually considered as a second-best solution because the legal order and society of the state where the crime has been committed have suffered a blow and that state is authorised to act in kind. Moreover, rehabilitative objectives, incidentally siding with retributive theory, are served only if the offender will stand trial and face the consequences thereof in his or her home country. Similarly, those who favour general deterrence as the major aim of punishment will defend the concept of extradition as well because it sends the message that escape does not render the offender immune from the long arm of the law. Any potential wrong-doer might reconsider his evil intentions, if (s)he realises that the chances of being caught are not diminished by going abroad. On the other hand, the advocates of special prevention who defend trial and criminal punishment as a means of incapacitating the offender and precluding that (s)he relapses into his criminal behavior will not directly be convinced by the necessity of returning the fugitive to his home country. They will argue that society is at least temporarily protected against new onslaughts by the offender as long as (s)he stays abroad. Such was probably the general feeling in ancient times when travel was cumbersome and offenders generally remained in their home country. If criminals succeeded in escaping, their ‘exile’ was tantamount to social death and the harshest form of punishment because no one was capable of vouchsafing for his/her good (or bad!) behavior. Such social and geographical contingencies obviated the need for extensive extradition arrangements.⁶ In modern times, such propositions are obviously entirely outdated. Offenders benefit from the digital revolution – cybercrime being a scholarly example. They use the most sophisticated means of communication, can travel when and where they wish, and can inflict harm to a wide array of states and societies, including the one from whence they fled. Nevertheless, some crimes are by their very nature more ‘transnational’ or ‘international,’ and these require concerted action by states or even the response of the international community as a whole.

6 Nonetheless, as Blakesley has demonstrated, extradition has been practiced since antiquity; see Christopher Blakesley, ‘The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History,’ 4 Boston College International and Comparative Law Journal (1981), p. 39. See also Geoff Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms, Martinus Nijhoff: The Hague 1998, pp. 17–22, who attributes the emergence of a ‘modern extradition system’ in the 18th and 19th centuries, primarily based on international treaties, to the rise of the nation-state and the increased attention to the rights of individuals. On the history of extradition, see also Peter D. Sutherland, ‘The Development of International Law of Extradition,’ 28 Saint Louis University Law Journal (1940), pp. 33–40; and Jan H. Verzijl, International Law in Historical Perspective, Volume 5, Martinus Nijhoff: Leiden 1972, chapter 7, section 2.

1.2 Stakeholders (ii): the international community

The second half of the previous century witnessed the establishment of a score of multilateral treaties that were concluded with the aim of addressing the challenges of specific transnational crimes. Different from their bilateral predecessors, these treaties were not only concerned with extradition, but also included a comprehensive ‘package’ of measures, including the obligation of states-parties to criminalise conduct, establish adequate criminal jurisdiction, consider either extradition or prosecution whenever a suspect was found on their territory (aut dedere, aut judicare) and render each other the widest measure of mutual assistance in criminal matters.⁷ Conventions on terrorism were structured along the same lines.⁸ These initiatives demonstrate that states are obviously inclined to cooperate more intensively whenever they are apprehensive of an increased (and shared) vulnerability, either caused by the intrinsic volatility of the crimes or because offenders have opted to consider the entire world (or part of it: the infidels, Western, secularised society) as its enemy. A similar sentiment underlies the approach towards supranational crimes stricto sensu (aggression, crimes against humanity, genocide, war crimes), the perpetrators whereof are often qualified as hostes humani generis (enemies of mankind).⁹ Apart from the well-known initiatives to hold these international criminals accountable before a supranational forum, states are increasingly active in creating a watertight network of interstate cooperation, which includes extradition and mutual assistance in criminal matters, in order to bring the culprits to justice. The point that I wish to make is that the determination of states to engage in extradition may well depend on the nature of the crime and is by no means static.

7 Typical examples include the UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988, UNTS, vol. 1582, p. 94; and the (categorical) UN Convention on Transnational Crime (UNCTOC), New York, 15 November 2000, UNTS, vol. 2225, p. 209, with two Protocols (on Human Trafficking and Smuggling of Human Persons). 8 Compare, for example, the Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention, The Hague, 16 December 1970, UNTS, vol. 12325, p. 205; and the International Convention for the Suppression of Terrorist Bombings, New York, 9 January 1998, UNTS, vol. 2149, p. 251. 9 David Luban, ‘The Enemy of all Humanity’, Netherlands Journal of Legal Philosophy (2018), pp. 112–137. For a critical response: Marc de Wilde, ‘Enemy of Humanity: The Dehumanizing Effects of a Dangerous Concept,’ Netherlands Journal of Legal Philosophy (2018), pp. 158–174.

1.3 Stakeholders (iii): the requested person

So far, only the interests of states – and, in passing, the international community – in the establishment and practical application of extradition have been addressed. Assuredly, that is an unwarranted and highly one-sided representation. After all, it is the individual suspect that is confronted with detention and the prospect of forceful removal by a state that usually bears no grudge against him.¹⁰ One may object that aliens usually have no unrestricted title to remain on the territory of a foreign country. To be sure, most statutes on aliens condition their rightful residence on their not having been convicted of a serious offence. Apart from being inapplicable in case of the extradition of nationals, the argument does not relieve the state from giving a proper explanation for using enforcement powers against the requested person. The extradition procedure precisely serves that purpose and can be considered from that perspective as offering legal protection to the individual.

10 It is my personal experience as a judge in surrender or extradition proceedings that the relator, while being informed by the chair that this court will not assess his guilt or innocence, often immediately and automatically starts to a give an account of the particulars of the offence.

While human rights have made enormous headway since World War II, Bassiouni could still write in 1974 that ‘Extradition is still regarded, with some variations in application but not in substance, as an institutional practice.’ And he continues by holding that

States are the subjects of its regulation, while individuals are objects of its outcome. The individual who is contemplated by extradition proceedings is not the primary party contemplated by extradition law and practice. Restrictions, limitations, or defenses which exist under extradition law are not, with a few exceptions, primarily designed for the benefit of the individual, instead they are designed to inure to the benefit of the states involved.¹¹

11 Bassiouni, supra footnote 4, pp. 562–563.

Bassiouni’s assertions remind us of the broader problem of how international law can accommodate the rights of individuals that are by definition ‘third parties’ under any treaty. His represen...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• Table of cases
• 1 Introduction
• 2 On the (non-) extradition of nationals
• 3 Dual criminality
• 4 The doctrine of specialty
• 5 The political offence exception
• 6 Extradition and international crimes: War crimes and crimes against humanity
• 7 Extradition and terrorism
• 8 Irregular rendition
• 9 Extradition and human rights
• 10 Conclusions: The positions of the stakeholders in extradition revisited
• Index