CHAPTER 8
EXTRADITION
ITRODUCTION:
It is quite possible for a person to escape to another State after committing a crime in his own State. Such cases have started occurring more frequently with the result of the development of the air traffic.
In such situations, a question arises as to whether fugitive shall be tried in the country where he has fled away or in the State where the crime has been committed. This is based on a Latin maxim:” AUT DEDERE AUT JUDICARE.” THIS simply means, “either extradite or prosecute.
Normally, a State finds itself in a difficult situation to punish a person who has committed a crime elsewhere primarily because of the lack of jurisdiction, and therefore, such persons are sometimes surrendered to the State where the crime has been committed.
Surrender of an accused or of a convict is referred to extradition. Surrender of a person is opposite to the traditional practice of the States to grant asylum. This is why, it is rightly said that asylum ends where extradition begins.
Thus, in those cases where the tradition of granting asylum is not followed, it is known as extradition.
The term extradition has been derived from two Latin words ex and traditum. This means ex= out; tradtionem= delivering up or handing over.
Definition: Extradition may therefore be defined as surrender of an accused or a convicted person by the State on whose territory he is found to the State on whose territory he is alleged to have committed, or to have been convicted of a crime.
The above definition makes it clear that in extradition two Sates are involved. They are: firstly, the territorial State, i.e., a State where an accused or a convict is found and secondly, the requesting State, i.e., a State where the crime has been committed. A State which demands for the surrender is known as requesting State because a person is surrendered by the territorial State only upon a request by another State. Request is made normally through the diplomatic channel. The request for extradition of a person distinguishes extradition from other measures such as banishment, expulsion and deportation, where an undesirable person is forcibly removed BY the territorial state without being requested by another state.
Purpose of Extradition or why should a person be extradited?
A criminal is extradited to the requesting State because of the following reasons:
(1) Suppression of crime: Extradition is a process towards the suppression of crime. Normally a person cannot be punished or prosecuted in a State where he has fled away because of lack of jurisdiction or because of some technical rules of criminal law. Criminals are therefore extradited so that their crimes may not go unpunished.
(2) Deterrent effect: Extradition acts as a warning to the criminals that they cannot escape punishment by fleeing to another State. Extradition therefore has a deterrent effect.
(3) Promoting the interest of the territorial state: Criminals are surrendered as it safeguards the interest of the territorial State. If a particular State adopts a policy of non-extradition of criminals, they would like to flee to that State only. The State, therefore, would become a place or den for international criminals.
(4) Reciprocity principle: Extradition is based on reciprocity. A State which is requested to surrender the criminal today, may have to request for extradition of a criminal on some future date.
(5) Promotes international cooperation: Extradition is done because it is a step towards the achievement of international co-operation in solving international problems of a social character. Thus, it fulfills one of the purposes of the United Nations as provided under Para 3 of Article 1 of the Charter.
(6) Justice to the offender/convict: The State on whose territory the crime has been committed is in a better position to try the offender because the evidence is more freely available in that State only than in the territorial State.
Is Extradition a Legal Duty of a State?
Grotius was of the view that a State of refuge has a duty either to punish the offender or to surrender him to the State seeking his return. The principle of ‘prosecution or extradition’ was recognized by him as a legal duty of the State where the offender is found. The legal duty of the State according to him is based on natural law. Vattel also had a similar view. He regarded extradition as a clear legal duty imposed upon States by International Law in the case of serious crimes. The principle of prosecution or extradition has been expressed by the maxim out dedere aut puniare.
However, in practice, the principle has not been followed by the States, and therefore, it could not become a rule of International Law. In modern times, a fugitive criminal is not surrendered in the absence of extradition treaties.
A legal duty to surrender a criminal therefore arises only when treaties are concluded by the States and after the formalities have been taken place which are stipulated in the extradition treaties. Only in exceptional cases, a State may extradite a person on the basis of reciprocity. However, this is done not because of any legal duty on their part, but because of reciprocity or courtesy.
Extradition and Deportation- DISTINCTION:
Extradition and deportation both are the methods by which an alien is required to leave the territory. However, both differ from one to another. Firstly, while extradition is primarily performed in the interest of the expelling State.
Secondly, extradition needs the consensual cooperation of at least two States, whereas deportation is a unilateral action apart from the duty of the receiving State to accept its own national.
Thirdly, extradition applies to criminal prosecutions and thus suppresses criminality, expulsion order may be issued to any foreign national on a number of grounds.
Fourthly, while extradition of a person takes place only on the request of another State, expulsion is an order of a State which prohibits a person to remain inside the territory of the ordering State.
Law of Extradition: is there any Law?
In International Law, rules regarding extradition are not well established mainly because extradition is a topic which does not come exclusively under the domain of International Law. Law of extradition is dual law. It has operation – national as well as international. Extradition or non-extradition of a person is determined by the municipal courts of a State, but at the same time it is also a part of International Law because it governs the relations between two States over the question of whether or not a given person should be handed over by one State to another State. This question is decided by the national courts but on the basis of international commitments as well as the rules of International Law relating to the subject.
Presently, in the absence of any multilateral treaty or Convention, extradition is done by States on the basis of bilateral treaties wherein provisions are made in accordance with the municipal law by which they have agreed between themselves to surrender the accused or convict to the requesting State in case such a person comes under the purview of a given treaty. Bilateral treaties at international level are supplemented by national laws or legislation at the municipal level. For example, the Extradition Act-1962 is the Indian Law on the subject. Thus, like India, many States have national legislations. They have made rules regarding extradition of fugitive criminals. Bilateral treaties, national laws of several States, and the judicial decisions of municipal courts led to develop certain principles regarding extradition which are deemed as general rules of International Law.
Important amongst them are as follows:
(1) Extradition Treaties:
The first and the foremost important condition of extradition is the existence of an extradition treaty between the territorial State and the requesting State. Some States, such as the United States, Belgium and the Netherlands, require a treaty as an absolute pre-condition. The strict requirement of an extradition treaty may be regarded as the most obvious obstacle to international cooperation in the suppression of crimes. It is, therefore, desirable that States conclude extradition treaties with as many States as possible to suppress the crime.
When an offender is returned to another State in the absence of an extradition treaty, normally the act is called deportation. In practice, a person is deported to the State from which he has arrived in the deporting State. If such a State refuses to accept, a person is deported to the State of his nationality. The home State of such a person has the duty to receive them, since a State cannot refuse to receive such of its subjects as are deported from abroad.
(2) Extradition of Political Offenders:
It is a customary rule of International Law that political offenders are not extradited. In other words, they are granted asylum by the territorial State. During the days of monarchs, extradition of political offenders was very common. They used to prefer extradition so as to avoid intervention in the affairs of another State. But the practice underwent a complete change with the beginning of the French Revolution.
Perhaps, for the first time, the French Constitution of 1793 under Article 120 made a provision for granting asylum to those foreigners who exiled from their home country for the cause of liberty. Later on, other States followed the principle of non-extradition of the political offenders gradually.
Indian Extradition Act of 1962 also lays down a similar provision under Section 31(a). At present, non-extradition of the political offenders has become a general rule of International Law and therefore, it is one of the exceptions of extradition.
The rule of non-extradition of the political offenders is based on many considerations which are as follows: -
(1) The rule is based on the elementary consideration of humanity. No State would like to extradite a person if he is not a criminal. If it does, it will not be in compliance with the law of natural justice.
(2) If political offenders are extradited, it is feared that they would not be treated fairly. It is the duty of the territorial State to ensure safeguards to the surrendered fugitives for a fair trial in the requesting State. Since it is a difficult task, they are not extradited.
(3) The rule also protects the political offender from any measure that can be of an extra-legal character which the requesting State might attempt to take against them.
(4) The object of the political offenders to take shelter in another country is not the same as those of the ordinary criminals.
(5) Political offenders are not dangerous for the territorial State as may be in the case of ordinary criminals.
What does not constitute a political offence?
On some occasions, fugitives take undue advantage of the principle of non-extradition of political offenders by posing themselves as political offenders. In order to check the abuse, an attempt was made to restrict the principle in certain cases. In 1856, Belgium introduced the attentat clause in its extradition law.
Article VI of the said Act provides that an attempt on the life of the head of a foreign government or of members of his family shall not be considered to be a political offence, or an act committed with such an offence, when it in fact constituted murder, assassination or poisoning. Some other European States followed this practice, but the attentat clause has not been accepted as a general rule of International Law because sometimes, the Head of the State may be titular head. He may not be the most important and powerful man in a State. For instance, the Queen of England or the President of India may not be as powerful as the Prime Minister.
At present, the political offence exception to extradition is no longer accepted in a number of serious crimes which are as follows:
1. It is expressly excluded by some multilateral treaties notably the Genocide Convention of 1948 and the Convention of Apartheid of 1973.
2. Political offence is not recognized as an exception to extradition in the case of customary International Law crimes such as war crimes and crimes against humanity.
3. Multilateral treaties relating to hijacking, torture or hostage taking, injury to diplomats and grave breaches of the Geneva Conventions on the laws of war and armed conflict have seriously undermined the exception by requiring States either to prosecute or extradite despite the fact that they will normally be political motivated.
4. States have excluded the political offence exception in the case of some purely localized criminal offences by means of bilateral or multilateral treaties.
Although the principle of non-extradition of political offenders is widely accepted, there is probably no rule of customary International Law which prevents the extradition of the political offenders, it may do so in its extradition treaties by which the principle itself is regulated.
For instance, extradition treaty between India and Canada concluded on February 6, 1987 provided under Article 5(1)(a) that extradition may be refused if the offence in respect of which it is requested is considered by the requested State; Canada in this case, to be a political offence or an offence of a political character.
However, Para 3 of the above Article stated that certain offences shall not be regarded as political offences or an offence of political character which are:
unlawful seizure of aircraft, unlawful acts against the safety of civil aviation, crimes against internationally protected persons, an offence related to terrorism, murder, manslaughter, assault causing bodily harm, kidnapping, hostage taking, offences involving serious damage to property or disruption of public facilities and offences relating to firearms, weapons, explosives or dangerous substances, or an attempt or conspiracy to commit the above offences. The above offences shall not be considered as political offence.
Meaning of Political Offence:
Although the notion of non-extradition of the political offenders is generally accepted as one of the most complicated questions which arises in this regard is to define the term ‘political offence’. The question has become more complex because whether or not the offence, which is the subject of a request for extradition, is a political crime is decided by the municipal courts, and this has led to the emergence of divergent views taken by the Judges of the different municipal courts. In a few cases, Judges did not consider it necessary to lay down an exhaustive definition of the term political offence. Hence, they did not make any attempt to define the term, International publicists have also made attempts to define it, but their views are also too divergent.
In the last decade of the nineteenth century, a leading case on the meaning of the term political offence was decided by the British Court was that of Re Castioni-1891. In this case, Lord Denman, J.; laid down that for an offence to be political, it must at least be shows that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act, in the course of acting in a political matter, a political rising, or a dispute between two parties in the State as to which is to have the Government in its hands.
The question really is, whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as a part of the political movement and rising in which he was taking part…. His extradition was refused on the finding that his motive for the act was political.
In the case of Re Meunier, which came before the court three years after Castioni, the principle laid down in Re Castioni was repeated. In Re Meunier, the petitioner was a French anarchist who was charged with causing explosions at a café and also in certain barracks in France, one of which resulted in death of two individuals. Cave, J., upheld his extradition and held that:
“in order to constitute an offence of a political character, there must be two or more parties in the State each seeking to impose the Government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not. In the present case, there are not two parties in the State, each seeking to impose with whom the accused is identified….. namely, the parties of anarchy, is the enemy of all Governments. Their efforts are directed primarily against the general body of citizens.”
The principle laid down in Re Castioni, and Re Meunier was followed for a fairly long time by other States as well. The Federal Court of the United States, in 1984 in Re Ezta held that in order to bring an offence within the meaning of the words ‘political character’ it must be incidental to and form part of political disturbance. The Federal Tribunal of Switzerland in Re Pawan, the Supreme Court of Brazil in Re Benegas case also applied the strict principle laid down in the Castioni case.
According to all these decisions, an offence is considered to be political if it is directed against the State or the Constitutional Order, or be otherwise, inextricably involved in conditions disturbing the constitutional life of the country. It should be committed by an organised movement to secure power in the State against the established regime.
Ex parte Kolcynski case:
In Ex parte Kolcynski and others, a wider meaning of the concept of political offence was given. In the above case Lord Goddard, C.J., deviated himself from the established principle sets in Castioni case.
Cassels, J., in the above case, observed that the offences for which extradition was requested were committed in circumstances, in which, if surrendered, the accused would, although being tried for those offences, be also punished for an offence of a political character. He, therefore, said that the political offence must always be considered according to the circumstances existing at the time when they have to be considered. After having made the above observations, he added, that it is submitted on behalf of the men that if they should be extradited they may not only be tried for the offences for which their extradition is requested, but they will be punished as for an offence of a political character, and that offence is treason of a political character, and if they were surrendered, there could be no doubt that, while they would be tried for the particular offence mentioned, they would be punished as for a political crime.
(3) Doctrine of Double Criminality:
The doctrine of double criminality denotes that a crime must be an offence recognized in the territorial as well as in the requesting State. No person is extradited unless this condition is fulfilled. The doctrine appears to be based on the consideration that it would offend the conscience of the territorial State if it has to extradite a person when its own law does not regard him a criminal. The requesting State would also not ask for the surrender of a person for those crimes which are not recognized in its State. The doctrine thus satisfies double purpose. It helps the requesting State to enforce its criminal law, and to the territorial State in the sense that the rule protects it from fugitive criminals. In order to ensure that a crime is recognized in both the States, a list of extraditable offences is attached in the extradition laws of some States. But, generally a list of crimes is embodied in the treaties for which extradition is done.
The rule of double criminality has put a State into a difficult situation when it has to request another State for extradition is respect of those offences which do not find place in the list of crimes embodied in a treaty. In order to overcome the above difficulty it is desirable that instead of laying down the names of various crimes specifically in the treaties, some general criterion should be adopted. For instance, any offence punishable with a definite minimum penalty under the laws of both the States should eligible a person for extradition appears to be more appropriate.
(4) Rule of Speciality:
According to this principle, a fugitive may be tried by the requesting State only for that offence for which he has been extradited. In other words, the requesting State is under a duty not to try or punish the fugitive criminal for any other offence than that for which he has been extradited, unless he has given an opportunity to return to the territorial State. The rule has been made to provide safeguard to the fugitives against fraudulent extradition. The rule of speciality is an established is an established principle of international law relating to extradition. An important case on this rule is that of United States v. Rauscher, wherein the accused was extradited on the charge of murder, but he was tried and convicted in USA, on a minor charge of causing cruel and unusual punishment on a member of the crew. He made an appeal before the Supreme Court of the United States which quashed the conviction and ordered the release of the prisoner on the ground that unless otherwise provided for by the treaty, the prisoner could only be charged with the offence for which he was extradited unless he was given a reasonable time to return to the country which surrendered him. This principle has also been envoked in Tarasov’s case. It is to be noted that the accused can raise this principle when a treaty or the national law provides for this principle. In their absence, his plea cannot be entertained.
(5) Prima Facie Evidence:
There should be a prima facie evidence of the guilt of the accused. Before a person is extradited, the territorial State must satisfy itself that there is a prima facie evidence against the accused for which extradition is demanded. In C.G. menon’s case the Madras High Court held that the need for offering evidence to show that prima facie the offender is guilty of the crime with which he has been charged by the country asking for his extradition has been well recognized. The purpose for laying down the rule of prima facie evidence is to check the fraudulent extradition. The territorial State has to see that the demand is not motivated by any political reasons.
(6) Time-barred Crimes:
A fugitive criminal shall not be surrendered, if he has been tried and has served sentence for the offence committed in the territorial State. Thus, extradition is not granted if the offence for which extradition has to be made has become time-barred.
(7) Extradition of Own Nationals:
In many cases a person after committing a crime in a foreign country flees back to his own country. Whether a State would extradite such persons, i.e., its own nationals, to a State where crime has been committed is a controversial point and practice of States considerably differs on it. Extradition or non-extradition of its own nationals depends upon the wordings of the extradition treaties.
Nationals may therefore be extradited if there is no bar in the national extradition law or in the treaty. But if the restriction is imposed therein regarding the extradition of its own nationals, it becomes a duty of the territorial State to punish them so that crimes may not go unpunished.
(8) Military Offenders:
Extradition treaties generally exclude military offences. Broadly, military offences fall into two categories, i.e., those which constitute offences under ordinary criminal law and those which relate specifically to military matters. Only the second category qualify as military offences in respect of which extradition will not apply. Desertion is an example of the second category.
The End