Chapter 2 Literature Review - Extradition and the Political Offense Exception
2.3 Obligation to Extradite or Prosecute
To this point, it is understood that the current extradition procedure presents many ambiguities and challenges. However, why extradition causes conflict? Extradition causes conflict because it is limited by whatever the domestic laws of the states impose on it, the areas of applicability, and the exceptions or limitations to the rule. Likewise, the requested state is not as interested as the requesting state in prosecuting the criminal since the crimes did not affect it directly. The anarchical system of international law with the lack of a supranational authority that decides the merits of the extradition request and the enforcement of the treaties also constitutes a major problem as the requested country will have to take a decision that might not be the one expected by the requesting state and, as a result, creates animosity between them.
Notwithstanding the limitations and challenges, the major concern is focused on the fact that even when the crime does not constitute an extraditable offense, criminals should not get away by taking advantage of the loopholes and differences in the judicial system of the countries
59 Tzu-Tsai Cheng v Governor of Pentonville Prison [1973] 2 All ER 204, [1973] Quoted in Standbrook, Extradition Law and Practice, 74.
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involved. In an effort to cope with this issue, countries can still cooperate by prosecuting criminals in their own territory when extradition is denied. When it does constitute an extraditable offense, most extraditions occur in the presence of a treaty and in its absence by reciprocity.
First, whether an extradition request is honored by a treaty or by statue, the domestic legal framework of that given country has to allow it. Extradition by treaty implies an existing and ongoing relation between the signatory countries and willingness for cooperation. For those who favor one over the other, or only support extradition in the presence of a treaty, a fundamental question will be “is extradition a legal or merely a moral obligation to surrender criminals?” Most countries will not extradite in the absence of a treaty, making it impossible to get a fugitive back.
In the same vein, extradition treaties, bilateral or multilateral, not only supply the broad principles and the detailed rules of extradition but also dictate the very existence of the obligation to surrender fugitive criminals. When extradition takes place in the absence of a treaty, it is considered an act of grace rather than of obligation. Significantly, in many such countries
‘extradition by statue’ is dependent upon an ad hoc guarantee of reciprocity, which is a tantamount to a treaty.60
The existence of a treaty implies that the party states have agreed to cooperate in this matter. Petersen (1992) considers that extradition treaties are based on the principle of mutuality as with every offender extradited to a requesting state, the requested state's chances grow that when the roles are reversed one hand will wash the other. She continues arguing that the
60Shearer, Extradition in International Law, 22.
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contracting states accept each other's sovereign right to prosecute offenders when the crimes they are accused of have injured the state, but warn the readers that such treaties should not be overestimated as effective measures for cooperation. Cooperation, therefore, means that the loyalty and willingness to cooperate stipulated in these treaties will manifest only in the refusal from that state to grant refuge to an alleged offender of that country61 and support his cause.
Extradition treaties normally enumerate which offenses are extraditable. They also mention the exceptions - e.g. the non-extradition of nationals, the political offense exception, the principle of speciality, double criminality, humanitarian considerations, etc. These exceptions are more focused on the conduct of the state rather than the crime committed. Extradition treaties also include the extensive procedural requirements and the information that needs to be provided by the requesting state to the requested state. Likewise, they mention the costs of extradition and the obligation to inform the other party the reasons for refusal.62
Moreover, it is up to each individual state to decide how it wants to be bound to accept an extradition request. Most states opt to have a formal legal treaty with another state where the circumstances under which an extradition request can be granted are clearly stipulated. However, is extradition still possible in the absence of a treaty? Yes. Other states have not been able to sign as many treaties as the major powers have, but have accommodated their domestic legislations to allow extraditions to countries it has not an extradition treaty with yet. Much of the extradition requests that are granted outside a treaty happen through reciprocity or comity.
61Antje C. Petersen, "Extradition and the Political Offense Exception in the Suppression of Terrorism," Indiana Law Journal, Vol.67, no. 3 (1992): 771.
62Extradition Treaty between the United States and the Republic of Turkey.
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Some countries like the US have taken a strong stance on extradition, only allowing it to happen under a treaty. The Supreme Court of the United States firmly lay down as early as 1840 that no obligation to extradite existed apart from that imposed by a treaty.63 This policy helped the United States maintain a position of neutrality with countries it has not started formal diplomatic relations and did not want to be involved with yet in regards to political dissidents that went to the US. In fact, “Common Law” countries overall do not extradite in the absence of a treaty. The law in the United States requires the existence of a treaty for extradition.64 Argentina, by contrast, allows extradition to happen either by a treaty or through reciprocity.65
To avoid impunity of the offender in the absence of a treaty or another limitation such as the non-extradition of nationals and the political offense exception, which could impede the extradition, the requested state could still prosecute the criminal. Hugo Grotius deemed extradition as an act with two possible actions from the state, “to either extradite or themselves to punish fugitive criminals” –aut dedere aut punire.66 In modern extradition law, Grotius’s phrase has been adapted to prosecution instead of punishment. Today is it known as “aut dedere aut judicare.” Grotius considered that asylums were open to those who had killed anyone by a
weapon escaping from their lands, but deliberate murderers, or those, who had disturbed the peaceful order of the state, found no protection even from the altar of God.67 In his view, heinous and unjustifiable crimes should never go unpunished even if the requested state refuses to grant the extradition request.
63 Holmes v. Jennison, 39 U.S. 540 (1840), https://supreme.justia.com/cases/federal/us/39/540/case.html
64 Valentine v. United States ex rel. Neidecker, 299 US. 5,9 (1936), https://supreme.justia.com/cases/federal/us/299/5/
65 Código Procesal Penal de la Nación. Ley N° 23.984. Promulgada: 4 de setiembre de 1991. Argentina. Article 53.
66 Standbrook, Extradition Law and Practice, 4.
67 Hugo Grotius, On the Law of War and Peace (Kitchener: Batoche Books, 2001), 219.
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A series of existing international treaties require to either taking steps towards prosecution or a trial in lieu of extradition. For example, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft in article 768 request states to at least refer the case to the competent local authorities. Other treaties include an obligation to prosecute the offenders when the offenses are not extraditable regardless the nationality of the offender such as the 1929 Convention for the Suppression of Counterfeiting Currency,69 and when the person has not already been prosecuted as in the 1961 Single Convention on Narcotic Drugs.70 The Geneva Conventions, like the Convention for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field,71 in relation to prisoners of war, also stipulates the obligation to prosecute grave breaches regardless of the nationality or extradite the accused to the country that has made prima facie case.
Former Irish Attorney General, Mr. Costello, remarked as early as 1975 the alternative obligation to extradite or prosecute, as a method for bringing international offenders to trial, seemed to be “the one which the international community favors.”72 In some cases, different factors such as the nationality, the absence of a treaty or formal diplomatic relations between the parties involved make it more difficult for extradition to happen. Nevertheless, when extradition is refused for such reasons, it does not constitute an excuse for states to not comply with their international duties and obligations and let the alleged criminal go unpunished.
68 Hague Convention for the suppression of Unlawful Seizure of Aircraft. No. 12325. (United Nations treaty. 1970) See Art. 7.
69 International Convention for the Suppression of Counterfeiting Currency, (Geneva: League of Nations, April 20, 1929).
Articles 8, 9, and 10.
70Single Convention on Narcotic Drugs, (United Nations, 1961), Article 36.
71Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. (Geneva: United Nations, 12 August 1949) Article 49.
72Bassiouni, Aut Dedere Aut Judicare, 19.
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