Since extradition has existed in various forms throughout history and across cultures and time periods, there is no single, universally accepted legal definition of the concept that can be applied across all areas of international law. Nonetheless, this body of law acknowledges that its significance lies in ensuring that criminals, especially those involved in transnational organized crime, do not go unpunished and that they are held accountable for their actions. The extradition system is predicated on the principle of reciprocity, which is codified in international treaties, international standards, and domestic legislation. However, obstacles to the application of this principle frequently allow criminals to go free.
Extradited individuals are protected from prosecution or punishment in any jurisdiction other than the one from which they were extradited under a rule of law known as “specialty”. Rather than being seen as a personal right, specialty has traditionally been seen as a means to safeguard the independence of the extraditing state.
Let’s say a person is extradited to be tried on a relatively minor crime but is then held and tried on a politically charged sedition allegation without the permission of the state that originally requested the extradition. As a matter of fact, this is cause for concern because it appears that the extradition process was manipulated in order to force the defendant to testify about a matter for which his extradition could have been denied.
This paradigm scenario can be seen from two different angles. As one school of thought has it, and as is reflected in recent US case law on the subject, the extraditing state’s sovereignty has been invaded by the requesting state, which has behaved dishonourably, and their relations are likely to suffer as a result. In another light, one that is more likely to resonate with the everyday citizen, the situation raises the innate suspicion that someone’s rights have been violated.
Understanding the Extradition System
The legal process of extradition involves one state (the requested State) handing over an individual who is physically present within its borders to another state (the requesting State) that has made a formal request for the individual’s extradition for the purposes of prosecution or execution of a sentence.
From this definition, we can deduce that the primary function of extradition is to locate and return wanted criminals to the jurisdiction that has jurisdiction over their crimes, or to return them so that they may legally serve the sentence imposed by the courts of the country that has requested their return. A further indication of the extradition system’s significance is that it prevents criminals from evading justice by taking advantage of loopholes in conflicting laws and, by extension, the variations in national judicial systems.
It is the right of the State on whose territory the criminal committed his crime or prejudiced its interests, and it is the duty of the country to which the criminal fled to seek his extradition. Therefore, it is vital for the criminal to know that he will face criminal prosecution no matter where he goes or to what he resorts.
In today’s world, where there are many methods and techniques of crime, where the application of this system requires the concerted efforts of the concerned authorities, and various security and judicial authorities. Thus, extradition is one of the most important forms of international cooperation in combating transnational organized crime and limiting its spread.
Legal Sources of Extradition System
Multilateral and bilateral treaties, as well as national laws, provide the primary legal framework for the practice of extradition today.
A treaty refers to any legally binding agreement between states that is drafted in writing and governed by international law, regardless of whether it is composed of a single document or a collection of related documents. Many regional and bilateral international agreements have been concluded concerning the system, making international agreements one of the most important legal foundations on which the system rests.
International custom is a form of customary law that has developed through the longstanding repetition of international behavior to the point where it is widely accepted as obligatory among States. The greater the number of states that fully commit to using it, the stronger the general obligation. Article 38 of the ICJ’s Statute confirms what is already common knowledge: custom is one of the primary sources of public international law.
The national legislation of states in the field of extradition can be independent of itself, and as a result, it is a direct source for the extradition system. This is the case with the Belgian extradition law of 1833, the American extradition law of 1848, the French extradition law of 1927, and the Swiss law on extradition of criminals for the year 1983.
The Extradition Process in the United States (US)
When prosecutors at the federal, state, or local level submit an extradition request to the executive branch, the extradition process begins for wanted individuals who are currently located outside the United States. All extradition requests must first be reviewed by the Office of International Affairs (OIA) in the Justice Department. When deciding whether or not to ask the Department of State to formally request extradition, the OIA considers a number of factors for each extradition request like the existence of a bilateral agreement, the concept of double criminality, limitation statutes and other procedural factors.
The Extradition Process in the European Union (EU)
National judicial authorities in EU Member States use the European Arrest Warrant (EAW), a region-wide judicial cooperation tool, to request and approve cross-border transfers of requested persons without political involvement.
A judicial authority of the issuing Member State issues an EAW to arrest, detain, or seize the requested person or their property. EAWs can only be issued for crimes that carry a minimum one-year prison sentence. If convicted, the prison term must be at least four months.
The Extradition Process in the United Kingdom (UK)
The BREXIT Transition Period ended on 31 December 2020 and the United Kingdom is no longer be a member of the European Arrest Warrant (EAW) framework. On January 1, 2021, the UK and the EU entered into a new extradition agreement that streamlines the process based on extradition warrants (much like the EU’s surrender agreement with Norway and Iceland).
Current EAW cases have the following transitional provisions in place:
- If an arrest was made in response to an EAW before midnight on 31 December 2020, the Withdrawal Agreement’s Article 62 applies. The extradition procedure in these instances will proceed according to the same EAW guidelines.
- During the Transition Period, if an EAW was issued but no arrest was made, the terms of the EAW are governed by Title VII (Surrender) of the United Kingdom-European Union Trade and Co-operation Agreement. Under the revised procedures, an EAW will be considered a valid warrant in this case.
Following the submission of a warrant by the requesting state (typically electronically via Interpol), the relevant UK authority issues a certificate (following a proportionality test), an arrest is initiated, and an initial hearing and extradition hearing follow.
Extradition treaties frequently include the rule of specialty, the topic of this Essay, because it is a generally accepted principle of international law. Once extradition has taken place, the receiving country cannot hold the defendant in custody or charge him with any crimes other than those for which he was extradited. The extraditing country reviews the request for extradition and determines whether or not to extradite the suspect based on the nature of the crimes alleged in the request and whether or not those crimes are specifically listed in the extradition treaty. According to the extradition doctrine, the extraditing country must respect any restrictions on prosecution imposed by the country receiving the extraditee. As a result, once extradition is finalised and the defendant faces prosecution in the requesting state, only then can specialty challenges be brought.
Whether multilateral or bilateral, extradition treaties always include provisions, typically labelled “specialty,” that restrict the requesting state’s ability to deal with the extradited person for offences other than the one for which the person was extradited. Yet, as common as these clauses are, so too are the numerous subtle but material and significant variations in their wording. When it comes to prohibited actions, for instance, treaties have varying definitions like the requested person may not be “proceeded against,” “detained,” “tried,” “punished,” “imprisoned,” and so on.
There are two main exceptions that typically qualify this negative obligation:
- when the extraditing state has, upon request, given its consent to such subsequent prosecution, trial, punishment, and so on as the case may be according to any modalities or conditions specific to the treaty (the term “consent” is so employed in this article); and
- when the extradited person has had the opportunity to leave the requesting state’s territory and has not done so.
Specialty – Individual or Sovereign State Right?
Naturally, extradition between states emerged initially from comity and was only subsequently placed on a treaty obligation footing, and extradition outside treaty frameworks remains possible either on an ad-hoc or general basis. It is indeed possible that a treaty will not apply to those situations. In a similar vein, some extradition obligations arise from thematic treaties, without detailed provisions, which can lead to scenarios where the position of the parties involved is neither clearly defined nor regulated in detail by national law.
The question then arises as to whether or not customary international law (CIL), binding in the absence of a treaty or legislative provisions on the topic, contains any underlying specialty principle. One useful takeaway from the broader discussion of that doctrine is the question of whether or not specialty protections only serve the interests of the sovereign state making the request, or whether or not they also confer individual protection.
The Swiss Federal Court’s summary seems to suggest dual purposes without controversy, but whether specialty rules are meant to confer rights to the individual has been a “vexed question” for quite some time. The Swiss court apparently agreed with one author’s claim that dual purpose is crucial; however, that author went on to argue that extradition is uniquely suited to safeguard the interests of the requesting state rather than the defendant.
The United States v. Rauscher (1886) case is a landmark decision for the position of the US. The Supreme Court’s Rauscher decision establishes that extradited foreign nationals “can only be tried for one of the offences described in that treaty,” rather than crimes not covered by the treaty. This decision was subject to various interpretations speculating it was a right to protect the individual from wrongful prosecution, however, this was clarified in a subsequent decision in Ker v. Illinois (1886), also decided that year, the Supreme Court ruled against the accused person who claimed that international law gave him the right to remain in his country of asylum if extradition proceedings were initiated against him. The Court decided that the defendant lacked standing to challenge his own prosecution apart from a challenge by the Peruvian government.
The Supreme Court has repeatedly chosen to avoid addressing this specific issue. The most recent attempt to have this question heard by the Supreme Court, Hamilton v. Clarke (2018), was denied certiorari by the Court three years ago.
The previous positions of the US Supreme Court have been upheld in recent cases like United States v. Ghanem, No. 19-50278. The Ninth Circuit overturned the 30-year sentence of an international arms dealer, finding that he cannot be tried for charges that did not appear on his extradition request. Also in United States v. Beltran-Levya (Guzman Loera), the case of the popular international criminal known popularly by his alias; El-Chapo. Guzman was found to have no standing to invoke the specialty doctrine by the Second Circuit Court of Appeals because the treaty does not grant individual rights and Mexico signed a waiver expressly excluding the specialty doctrine.
With the positions of both Switzerland and the US above, it can be deduced that the key practical issue of relevance is enforceability. Most U.S. circuit courts (including those that have considered specialty as a principle of CIL) appear to hold that individuals lack the legal standing to invoke specialty rights, or if they do, that such rights derive from the requested state’s rights and arise only when the requested state has a valid objection to the action at hand while others take a natural law stance granting defendants right to individually invoke the provision.
How Can Courts Decide on the Violation of Specialty Protection
Writers have proposed various frameworks, however, the three-step framework for analyzing the question of individual standing for extradited defendants will be adopted as it covers the provisions of a majority of the frameworks.
In this proposed framework, the court would first check to see if the defendant’s crime and the sentence he received after being tried in the United States fall under the purview of the extradition treaty. When the offence or penalty is within the scope of the specialty doctrine, the prosecution does not constitute a violation of the doctrine. Unless the intent of the two contracting nations suggests a desire to extradite defendants for such a crime, there may be a specialty violation and a cognizable injury for the defendant if the crime or punishment is not covered under the treaty.
Courts must take into account two additional considerations when deciding whether an individual defendant has the right to challenge his American prosecution despite no objection from the objecting country. A court must first determine whether the surrendering nation has expressly waived any limitations on the prosecution or punishment of the defendant. If this is the case, the court will not have to decide whether or not a violation of specialty occurred.
Second, the courts must consider whether the nation’s actions or intent are relevant to the legality of the extradition and/or prosecution. Importantly, international comity principles apply to all of these considerations to the extent possible, stating that sovereign states should avoid actions that would conflict with the laws of another state. Comity between contracting nations may require them to go beyond the letter of the treaty if doing so would be in their mutual interest, even if no violation of the treaty’s specialized provisions has occurred.
A degree of nuance is required in the framework due to the wide range of circumstances that can affect a country’s compliance with an extradition treaty. Therefore, a standard-based approach is used for the third factor, which takes into account the intent of the signatory nations. Due to this, the courts are given more freedom to deal with variations in treaty language and context.
Basically, specialty should be viewed as a human right, not a matter of diplomatic formalities between nations. This is based on the principle that people are more than just a commodity to be transacted between states, and that their worth should be respected. Extradited defendants may have a private right of action to contest their prosecution under the specialty doctrine from this viewpoint, but this protection has been narrowed by a number of precedents and dissenting opinions of courts. They provide that this action has to be brought by the surrendering nation and the accused cannot bring an action personally but the action must flow from that of the sovereign state.
While this position stands, viewing it from the perspective of a person’s right to liberty and dignity offers a basis for expansive interpretations of the treaty specialty norms and robust approaches to standing and due process questions. Thus, more clarity has to be made with further distinctions between the rights of the individual and that of the sovereign states involved.
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