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Kyle IrwinBaylor University
This is a copy of a publication in the 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, 2017. Also available as PDF file.
Please cite as: 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.
Extradition refers to the delivery of a person, who is suspected or has been convicted of a crime, by a country or other jurisdiction where the person has taken refuge to the country or jurisdiction that asserts legal authority over said person. The purpose of extradition is to prevent criminals who flee a jurisdiction to escape from punishment for a criminal offense they have been accused or convicted of.
Historically, extradition dates back as far as the ancient days of the Egyptian, Greek, and Roman empires, and often would concern political refugees. The modern system of extradition evolved in Europe from the 18th century onwards. With the rise of national states and the centrality of the concept of sovereignty, more than 100 extradition treaties were signed during the 18th and the early part of the 19th centuries. The development of bilateral treaties between nations has become the norm to regulate extradition. By present-day standards, extradition between countries is not considered an obligation in the absence of a formal treaty. A multitude of bilateral extradition treaties exists, but there is no country that has such treaties with all other countries in the world.
Extradition treaties typically spell out the conditions under which an extradition can take place. An extradition treaty will provide that the crime involved is serious, and that there exists sufficient evidence for the prosecution against the wanted individual or that the person to be extradited has been convicted under conditions of due process of law. Furthermore, extradition treaties rely on a principle of ‘double-criminality’ which specifies that the offense for which extradition is requested is regulated by law in both countries. Other common provisions include that the conditions of the treaty are reciprocal between the two parties, that the extradited person can expect or already had a fair trial in the requesting country, and that the punishment will be proportionate to the crime. Most countries, including the United States, will not surrender a fugitive wanted for a political crime. The rise in terrorism, however, has brought about some limitations to the political offense exception.
In some respects, the provisions of extradition treaties vary considerably depending on the countries involved. Many countries, including most European states, Mexico, and Canada, do not allow an extradition to countries that have capital punishment unless assurances are made that the death penalty will not be imposed on the extradited person. In some countries, such as Germany and France, extradition of a citizen of that country is always prohibited, although those countries will allow prosecution of their own citizens when they have committed serious crimes abroad. The political structure of countries, such as the federal structure of the United States, can bring about an additional difficulty in extradition proceedings, inasmuch as the governments of foreign nations have official relations only with federal governments, not with the governments of a country’s constituent states. It is not always clear whether an extradition agreement with the federal government is also binding to the states when a matter of state jurisdiction is involved. Also, extradition among states in a federal country is separately regulated. In the United States, interstate extradition (or rendition) is regulated by Article 4, Section 2, of the U.S. Constitution, which specifies that interstate extradition applies irrespective of the nature of the crime.
Extradition has gained attention in recent years because international criminality has become an increasing problem, while at the same time human rights have also been more universally recognized. Therefore, there is presently a sharper need in extradition cases to find a proper balance between the recognition of states’ claim to sovereignty, on the one hand, and respect for individuals’ civil and human rights, on the other. The existing system of extradition already incorporates safeguards for individuals’ rights, such as the political offense exception, the rule of double criminality, and the principle of ‘specialty’ which specifies that the extradited individual will only stand trial for the offense specified in the extradition. But not all civil and human rights concerns are as easily dealt with in extradition. Conflicts in specific cases have revolved around the use of the death penalty, torture in criminal proceedings, harsh interrogation methods, questionable trial and incarceration conditions, and cruel, inhuman or degrading treatment and punishment.
In order to more effectively protect human rights, extradition could benefit from a conditional agreement whereby the state that receives an extradition request is allowed to monitor the judicial process of the extradited individual. This would also include monitoring the extradited person in prison. Because of sovereignty concerns, however, such a monitoring system will be politically unacceptable to many countries, making extradition ironically more difficult.
An important problem with the present system of multiple bilateral extradition treaties is that there is no over-arching international law or treaty guiding their application. Yet, inasmuch as human rights have begun to be recognized across nations, there has been a relative loss in nations’ sovereignty and a streamlining of extradition provisions. In specific cases, also, nations have agreed to multilateral extradition treaties on particular offenses. Furthermore, when nations explicitly agree upon a shared system of criminal law provisions as members of a supranational political entity, the need for extradition is eliminated altogether. With the increasing development of multilateral treaties and the formation of supranational entities, the current system of extradition is changing and might lead to an increase in extradition agreements between supranational entities rather than between national states.
Bibliography
- Dugard, John, and Christine Van den Wyngaert. “Reconciling Extradition with Human Rights.” The American Journal of International Law 92(2):187-212, 1998.
- Epps, Valerie. “The Development of the Conceptual Framework Supporting International Extradition.” Loyola of Los Angeles International and Comparative Law Review 25:369-387, 2003.
- Gilbert, Geoff. Aspects of Extradition Law. Boston: Martinus Nijhoff Publishers, 1991.
- Pyle, Christopher H. Extradition, Politics, and Human Rights. Philadelphia: Temple University Press, 2001.
- Rose, Thomas. “A Delicate Balance: Extradition, Sovereignty, and Individual Rights in the United States and Canada.” The Yale Journal of International Law 27:193-215, 2002.
See related writings on the policing of terrorism.
