Meaning and Definition of the Term Extradition - Coursework Example

Basis of the Principle of Extradition Ordinarily each state exercises complete jurisdiction over all the persons within its territory. But sometimes there may be cases when a person after committing crime runs away to another country. In such a situation, the country affected finds itself helpless to exercise jurisdiction to punish the guilty person. This situation is undoubtedly very detrimental for peace and order. In such a situation peace and order can be maintained only when there is international co-operation among the states. There is social need to punish such criminals and in order to fulfill this social necessity the principle of extradition has been recognized. “The inability of a state to exercise its jurisdiction within the territory of another State would seriously undermine the maintenance of law and order if there were no co-operation in the administration of justice. The awareness among national decision makers of the social necessity of jurisdictional co-operation is illustrated by the widespread practice of returning a person who is accused or who has been convicted of a crime to the state in which the crime was committed.”(Collins)(1) Meaning and Definition of the term extradition “Extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of a crime, by the state on whose territory the alleged criminal happens to be for the time being.”(Oppenheim)(2) “ The term ‘extradition’ denotes the process whereby under treaty or upon a basis of reciprocity one state surrenders to another state at its request a person accused or convicted of a criminal offence committed against the laws of the 1. Edward Collins International Law in a Changing World(1969),p.216 2. L. Oppenheim, International Law, Vol.1, Eighth Edition, p.696 requesting state, such requesting state being competent to try the alleged offender.”(Starke)(3) In the view of the eminent jurist Grotius, it is the duty of each state either to punish the criminals or to return them to the States where they have committed crime. In practice, however, States do not accept such obligation. Under International Law, extradition is mostly a matter of bilateral treaty. In principle, each State considers it a right to give asylum to a foreign national. “States have always upheld their right to grant asylum to foreign individuals as an inference from their territorial supremacy, those cases where a treaty imposes an obligation to extradit them”(4) Thus there is no universal rule of customary international law in existence imposing the duty of extradition. International Law does not recognize any general duty of States in respect of extradition. Extradition depends on the provisions of the existing extradition treaties. In Factor v. Laubenheimer(5), the Court held : “The principles of International Law recognize no right to extradition apart from treaty while a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he fled……the legal right to demand his extradition and the correlative duty to surrender him to the demanding state exist only when created by treaty.” But as pointed out in Wheaton’s International law(6), there is no universally recognized practice that there can be no extradition except under a treaty. It is a well known fact that USA and UK are one of the closest allies in the International sphere, their bonding going right from the days of the Cold War era. From, sharing intelligence inputs between their respective countries to planting moles and cultivating 3. J.G. Starke, Introduction to International Law, Tenth Edition(1989) p.352 4. Oppenheium’s International Law, note 2, p.950. assets in the erst while Communist Soviet Union. These two countries have treaded the path together taking each other in to confidence over virtually every matter concerning International affairs, so it is not a surprise that they also enjoyed special relationship as to extradition of Criminals between their respective countries. The Rule of Speciality was the hallmark of extraditions between the US and UK. According to it an accused is extradited for a particular crime, and the country that gets back the criminal is entitled to prosecute that person only for the crime for which he was extradited. This is known as the Rule of Speciality. U.S. v. Rauscher(7) amply illustrates the Rule of Speciality. In this case America got Rauscher extradited from Britain on the ground that he had fled to Britain after murdering a fellow servant in an American Ship. In America, Rauscher was tried not for murder but for causing grievous hurt to a man named Janssen. The Supreme Court of the United States of America held that when a person is brought under the jurisdiction of the Court under the extradition treaty, he may be tried only for such offence for which his extradition was sought. With the changing times and influx of terrorism in almost every nation of this World albeit, under a different name and the happening of 9/11 and other incidents like that US and UK felt the need to put in place a proper extradition treaty to cover all the flaws of the existing laws and also to address the conflict with the domestic laws in their respective countries. 5. (1993)280 U.S. 276 6. Edn.,4,Ss. 116(a) to (d), pp.186 to 189 7. (1886) 119 U.S. 407 The Extradition Act 2003(8) is an act enacted by the parliament of the United Kingdom. It came in force in the year 2004. According to the Foreign & Commonwealth Office(9) the reason for which the extradition treaty between the US & UK came in to being was to modernize according to the current times post 9/11 and also to make simple the UK's extradition arrangements with the United States. Before the 2003 treaty the arrangements were based on a Treaty negotiated and entered in to in the year 1972, alongwith an additional protocol in 1986, both the past treaties and MOU will now go in to oblivion after the new Treaty. The new Treaty replaces the existing system of defining extradition offences through a list of specific crimes with a ‘threshold of sentence', now extradition can be requested for any offence which attracts a maximum penalty of at least 12 months in the UK or the United States. The current Treaty addresses the difficulty that the United States often faced to provide a prima facie evidential case against any person whom they wish to extradite. It also makes a number of changes to existing procedures in order to make extradition more flexible and efficient, including the simplification of documentary authentification requirements for material provided to the UK. The Treaty protects the dis- application of the political defense in terrorist cases, secured in the 1986 protocol. The Treaty is supported by documents constituting Understandings on two issues (they are not part of the Command Paper). The first confirms that the Treaty extends to United States non-metropolitan territories. The second confirms that the provisions on onward extradition or surrender of a person extradited to the UK under the treaty operate to 8. Extradition Act 2003 9. Based on the text of treaty issued by the Foreign and Commonwealth Office,UK preclude onward surrender to the International Criminal Court. This is compatible with the UK's obligations to the International Criminal Court. Ministerial Responsibility The Secretary of State for the Home Department has responsibility for extradition policy and agreements and their implementation. The Secretary of State for Foreign and Commonwealth Affairs has overall responsibility for UK policy relating to the UK's relations with the United States of America. Policy Considerations (i) General The United States is the UK's most significant single extradition partner, and the one, which generates the most extradition traffic outside the EU. The new Treaty reflects best modern practice in extradition. By making any crime attracting a 12-month penalty in both countries extraditable, it brings existing arrangements up to date to include offences, such as computer related crime, not known when the current Treaty was drawn up in 1972. The Treaty simplifies procedures and reduces bureaucratic burdens on both sides, and provides for a more efficient and effective process. This may lead to some cost reductions in the processing of individual extradition cases. (ii) The Treaty is not expected to pose any additional financial burden on the United Kingdom. 10. Based on the text of treaty issued by the Foreign and Commonwealth Office,UK Implementation The measures contained in the Treaty can be brought into force under the 1989 Extradition Act. The Government of the United States can not ratify the Treaty until it has secured the advice and consent of the United States Senate. (As per the Foreign Commonwealth Office Document) The USA ratified the US-UK Extradition Treaty 2003 into US law in the year 2006. According to the Summary of the CRS report for Senate about the 2003 extradition treaty between the USA & UK : The Federal court’s denial of British extradition requests in the cases of four fugitives from Northern Ireland led to the Supplementary Extradition Treaty. The Treaty proved controversial, and before the Senate would give its consent, it insisted upon modifications, some quite unusual. Those modifications have been eliminated in a newly negotiated treaty to which the Senate has recently given its advice and consent and which incorporates features often more characteristic of contemporary extradition treaties with other countries. There was initial criticism of the new Treaty’s exemptions to the political offense bar to extradition; elimination of judicial inquiry into politically motivated extradition request; treatment of probable cause; clause relating to extradition for crimes committed overseas; dropping the statute of limitations defense; discretionary authority Based on Congressional Research Service Report for provisional arrest and detention; language relating to the seizure of assets; exceptions to the rule of speciality (permitting prosecution for crimes other than those for which extradition was granted); and retroactive application. The Treaty also contains articles relating to capital punishment, waiver of extradition, extradition involving third countries, double jeopardy, the elimination of nationality as a bar to extradition, translations, and deferred prosecution. The Senate conditioned its approval of the Treaty upon an understanding, two declarations and three provisos, which relate to the Treaty’s treatment of the exception for politically motivated requests and the role of the courts, its changes in the double jeopardy clause, assurances that the Treaty is not designed to accomplish the extradition of fugitives from Northern Ireland covered by the Belfast/Good Friday Agreement, and reporting requirements concerning the disposition of requests under the Treaty.(As per the Report of Congressional Research Service, The Library of Congress) Though it can be said that the Extradition Treaty 2003 between the United States of America and United Kingdom gave a new direction to an already fruitful relationship between the two nations, still it had its share of criticisms. In UK a considerable section of the politicians criticized the treaty on various grounds, the major among that is that the treaty is unfair to the interests of the United Kingdom. Before this treaty came in to being both the countries United States and the United Kingdom both had to make a preliminary case backed by evidence before making a formal request for the extradition of a particular Based on Congressional Research Service Report person. The procedure was that after that the District Judge would weigh the evidence and then if deemed fit would uphold the request for extradition. But post the Extradition treaty 2003 between the United States and the United Kingdom this requirement has been waived for the United States. It means that United State doesn’t necessarily provide the preliminary evidence to show the involvement of the person whose extradition is being seeked to have committed a cognizable offence. Whereas, if United Kingdom seeked the extradition of some person then it that case they still have to provide the preliminary evidence against the person whose extradition is being seeked before making a formal request for extradition and then the Court will adjudicate on the request. In United Kingdom politicians cutting across party lines criticized the Treaty. The Liberal Democrats and the Conservatives both say that the 2003 Extradition Act has created an imbalance between the conditions through that a UK citizen might be extradited to the USA and the conditions on which a US citizen can be extradited to the UK, making it easier to extradite people from the UK than from the US. The UK government initially agreed that there was an imbalance between the concessions given to the two countries but later took a U-turn and said that the terms of the treaty were no different from the terms negotiated with other countries and were more or less the same. The act of providing prima – facie evidence before seeking the extradition of any person has been done away with as far United States of America is concerned. They just need to make an Based on Congressional Research Service Report Principles of International Law, Extradition, S.K. Kapoor,CLA allegation against someone and they can be sure that they will secure an extradition. Whereas, the United Kingdom is bound by the Fourth Amendment of the US constitution if they have to seek the extradition of someone. According to the Fourth Amendment, there should be "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime" Article 8 provides the requirement and the special treatment given to the USA. It is produced verbatim as under : Article 8 Extradition Procedures and Required Documents. Article 8 establishes the procedures and describes the documents that are required to support a request for extradition. All requests for extradition shall be submitted through the diplomatic channel. Among other requirements, Article 8(3) provides that a request for the extradition of a person sought for prosecution must be supported by: (a) a copy of the warrant or order of arrest issued by a judge or other competent authority; (b) a copy of the charging document, if any; and (c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is sought. The Treaty will not change the evidentiary burden required for extradition requests to the United States. However, under the new Treaty, the evidentiary requirements for extradition from the United Kingdom are lowered from a "prima facie" standard to what in practice will constitute a U.S. probable cause standard. Extradition Treaty, UK Statute Law,Ministry of Justice,UK The Criticism of the US UK Extradition treaty also says that there are no safety valves in the new treaty and the human rights of an innocent person can be severally violated because of that. Before the 2003 treaty the Home Secretary of UK could intervene if he found something fishy but now he could not. In addition to that the baiters say that the domestic laws of the United Kingdom are sufficiently mature to handle a variety of crimes alleged for giving the request of extradition. Certain groups within the USA have also raised questions about whether the new U.S.-U.K. Extradition Treaty will place the United States in conflict with certain other of its international obligations: specifically, its obligations under the International Convention on Civil and Political Rights (the "ICCPR") and the 1967 UN Refugees Protocol. The ICCPR entered into force in late March 1976; both the U.S. and the U.K. are parties to the Convention. Some critics have suggested that, since the U.K. has derogated from its obligations under Article 9 of the ICCPR, the U.S. would not be in compliance with its ICCPR obligations if it extradited a fugitive to the U.K. This is incorrect. Article 4 of the ICCPR specifically contemplates derogation from obligations contained in the Treaty, with the exception of certain Articles from which a State cannot derogate; Article 9 of the ICCPR is not one of the Articles from which no derogation is permitted. In 1988, the U.K. formally notified other States Parties to the ICCPR that, in accordance with Article 4(3), it found it necessary to take and continue measures derogating in Based on Fact Sheet, US UK Extradition Treaty,US Department of State certain respects from the U.K.’s obligations under Article 9(3) of the ICCPR. Further, following September 11, 2001, the U.K. enacted new legislation entitled the "Anti-Terrorism, Crime, and Security Act 2001," which addresses, among other issues, detentions. This new U.K. law permits the Home Secretary to authorize the indefinite detention without charge of suspected international terrorists. In short, U.K. law regarding the detention of those suspected of involvement in international terrorism has nothing to do with extradition or the treatment of a fugitive who might be returned from the U.S. to the U.K. to face trial or sentencing or to serve a sentence in the U.K. By definition, if the U.K. is seeking extradition of a fugitive, that person already has been charged with an offense in the U.K. A second criticism that has been made regarding the new Treaty is that it allegedly violates the asylum and non-refoulement provisions of the 1967 UN Refugees Protocol, to which the U.S. is a party. This, too, is incorrect. U.S. courts have long recognized that asylum proceedings and extradition proceedings are two distinct proceedings; in fact, U.S. courts often suspend asylum proceedings until extradition proceedings are complete. The 1951 Convention Relating to the Status of Refugees (the "UN Refugee Convention"), as well as U.S. law, provide that an individual may be excluded when there is reason to believe that the individual has committed a serious, non-political offense. Therefore, if the United States has decided to extradite to the U.K. a fugitive for whom the U.K. has made an extradition request, that individual will, by definition, be an individual reasonably suspected to have committed a serious, non-political offense. (http://www.state.gov/p/eur/rls/fs/34885.htm ) Based on Fact Sheet, US UK Extradition Treaty,US Department of State References Dr. S.K. Kapoor, International Law, Central Law Agency, 15th Ed. http://fas.org/sgp/crs/misc/RL32096.pdf http://www.fco.gov.uk/en/about-the-fco/publications/treaty-command-papers-ems/explanatory-memoranda/explanatory-memoranda-2003/usaextrad http://www.state.gov/p/eur/rls/fs/34885.htm http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=820518 Fact Sheet on US UK Extradition Treaty, US Department of State Congressional Research Service, The Library of Congress Foreign & Commonwealth Office, United Kingdom Thomas Buergenthal; Sean D. Murphy, Public International Law in a Nutshell, West Publishing Read More