The enduring architecture of extradition: Sovereignty, treaties, and the pursuit of fugitives

“ The principle that crime should be tried and punished where committed stands in the way of the trial of a culprit who has escaped to another country. But for mutual protection most of the civilized nations have treaties for the extradition of criminals. The United States have extradition treaties with over twenty countries. ”

“ Again, in his opposition to the extradition [276] clause of the treaty, Benton was certainly wrong. Nothing is clearer than that nations ought to combine to prevent criminals from escaping punishment merely by fleeing over an imaginary line; the crime is against all society, and society should unite to punish it. Especially is there need of the most stringent extradition laws between countries whose people have the same speech and legal system, as with the United States and Great Britain. ”

“ It is obvious that the criminal law of a country could not be consistently and impartially maintained if those accused or convicted of crimes were able to escape due process of law by moving to another country. ”

“ In balancing the international obligations of Canada in respect of extradition, and another purpose of the extradition legislation—to prevent Canada from becoming a safe haven for criminals, against the likelihood that the fugitives would be executed if returned to the United States, the view of the majority was that the decision to return the fugitives to the United States could not be said to be contrary to the fundamental principles of justice. ”

“ EXTRADITION (Lat. ex, out, and traditio, handing over) , the surrender of an alleged criminal for trial by a foreign state where he has taken refuge, to the state against which the alleged offence has been committed. When a person who has committed an offence in one country escapes to another, what is the duty of the latter with regard to him? Should the country of refuge try him in its own courts according to its own laws, or deliver him up to the country whose laws he has broken? ”

“ Extradition may be sufficiently defined to be the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender. ”

“ The fact that every State exercises territorial supremacy over all persons on its territory, whether they are its subjects or aliens, excludes the prosecution of aliens thereon by foreign States. Thus, a foreign State is, provisionally at least, an asylum for every individual who, being prosecuted at home, crosses its frontier. In the absence of extradition treaties stipulating the contrary, no State is by International Law obliged to refuse admittance into its territory to such a fugitive or, in case he has been admitted, to expel him or deliver him up to the prosecuting State. ”

“ He, too, has every benefit of the writ of habeas corpus; and furthermore can only be arrested by the authority of his own government; whereas, our citizens can be arrested at the instance of any person making the proper affidavit that the crime had been committed within our jurisdiction.
This country is open to all men who wish to come to it. No question, or demand of a passport meets them at the border. He who flees from crimes committed in other countries, like all others, is admitted; nor can the common thief be reclaimed by any foreign power. To this effect we have no treaty. ”

“ There is no civilised State in existence nowadays which has not concluded such treaties with the majority of the other civilised States. And the consequence is that, although no universal rule of International Law commands it, extradition of criminals between States is an established fact based on treaties. ”

“ Henkel, 190 U.S. 40, 61, 23 S.Ct. 781, 47 L.Ed. 948. But 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 had fled, and it has been said that it is under a moral duty to do so (see 1 Moore, Extradition, § 14; Clarke, Extradition (4th Ed.) p. 14) , the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty. ”

“ Since, however, modern civilisation categorically demands extradition of criminals as a rule, numerous treaties have been concluded between the several States stipulating the cases in which extradition shall take place. According to these treaties, individuals prosecuted for the more important crimes, political crimes excepted, are actually always surrendered to the prosecuting State, if not punished locally. ”

“ A fugitive from justice has no absolute right of asylum in a country to which he flees; and, if he can be got back within the jurisdiction of the country whose laws he has violated, he may be proceeded with precisely the same as if he had not fled, unless there is something in the laws of the country where he is to be tried, or in the way in which he was got back, to prevent. I do not understand this to be denied. All, therefore, depends, in this case on the treaty with Great Britain under which this extradition was effected and section 5275 of the Revised Statutes. ”

“ It is manifest that the act does not attempt to confer power upon the Executive to surrender any person, much less a citizen of the United States, to a foreign government where an extradition treaty or convention does not provide for such surrender. ”

“ Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Klüber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties. ”

“ For no State has a right to interfere with the internal affairs of another State, and, if a State were to surrender reactionary political criminals but not progressive ones, the prosecuting State of the latter could indeed complain and consider the refusal of extradition an unfriendly act. If, however, non-extradition is made a general principle which finds its application in favour of political criminals of every kind, no State can complain if extradition is refused. ”

“ It also repeats the proviso contained in the Jay Treaty.
The declaration of purpose that fugitives be 'reciprocally delivered up' and the provision for 'mutual requisitions' mean that neither shall have advantage over the other or be entitled to demand any extradition which under corresponding circumstances it would not be bound to grant, and directly negative the notion that the United States alone is bound to extradite for acts not criminal where the fugitive is found. ”

“ We shall pass by the effect of the Penal Code in preventing the authorities of Italy from carrying out its international engagements to surrender citizens, for that has no bearing upon the question now under consideration, which is whether, under accepted principles of international law, citizens are to be regarded as not embraced within an extradition treaty unless expressly included. That it has come to be the practice with a preponderant number of nations to refuse to deliver its citizens is true ”

“ Persons liable to extradition vary according to treaties. It is the general practice to surrender on [143] demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects. ”

“ No German may be extradited to a foreign country. A different regulation to cover extradition to a Member State of the European Union or to an international court of law may be laid down by law, provided that constitutional principles are observed. ”

“ We also considered the impact of each measure on our civil rights and traditional liberties. As part of this decision, the impact on the extradition of nationals of EU countries was considered. The European Convention on Extradition (1957) governed extradition relations between the UK and other EU member states prior to the adoption of the EAW. Under the ECE some member states did not extradite their own nationals to the UK and may not do so again in the future. ”

“ The extradition of Portuguese citizens from Portuguese territory is only permissible where an international convention has established reciprocal extradition arrangements, in cases of terrorism or international organised crime, and on condition that the applicant state's legal system enshrines guarantees of just and fair proceedings. ”

“ The treaty only provides in art. 6 (26 Stat. at L. 1508, 1510) , that 'the extradition of fugitives under the provisions of this convention and of the said 10th article' (of the treaty of August 9, 1842) 'shall be carried out in the United States and in Her Majesty's dominions respectively, in conformity with the laws regulating extradition, for the time being in force in the surrendering states.' This evidently contemplates the laws of the United States regulating extradition, and has no reference whatever to the laws of the particular state within which the proceedings are taken. ”

“ Procedure.—To obtain from a foreign country the extradition of a fugitive from the United Kingdom, it is necessary to procure a warrant for his arrest, and to send it, or a certified copy, to the home secretary together with such further evidence as is required by the treaty with the country in question. In most, cases an information or deposition containing evidence which would justify a committal for trial in Great Britain will be required. ”

“ Article 9 establishes the procedures and describes the documents that are required to support a request for extradition. It requires that all requests be submitted through the diplomatic channel. Article 9 (3) provides that a request for the extradition of a person sought for prosecution must be supported by such evidence as would justify committal for trial if the offense had been committed in the Requested State. ”

“ This appears to have been the object of § 5270 [U.S.C.omp. Stat. 1901, p. 3591] , which is applicable to all foreign governments with which we have treaties of extradition. The requirements of that section, as already observed, are simply a complaint under oath, a warrant of arrest, evidence of criminality sufficient to sustain the charge under the provisions of the proper treaty or convention, a certificate by the magistrate of such evidence and his conclusions thereon, to the Secretary of State. ”

“ Upon a demand upon the United States for extradition, there is a preliminary examination before a commissioner or judge before there can be a surrender to the foreign government (Revised Statutes, Title LXVI.; 22 Statutes at Large, 215) . It is enough to show probable guilt (Ornelas v. Ruiz, 161 United States Reports, 502) . An extradition treaty covers crimes previously committed. If a Power, with which the United States have such a treaty, surrenders a fugitive charged with a crime not included in the treaty, he may be tried in the United States for such crime. ”

“ The result would be that the foreign government, though entitled by the terms of the treaty to the extradition of the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, under all the disadvantages of such a situation, and could not obtain extradition until after it had procured a conviction of the accused upon a full and substantial trial here. ”

“ The ground of the appeal is that there is no sufficient evidence to warrant extradition on the charge.
It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common law. But it is a waste of time. For while, of course, a man is not to be sent from the country merely upon demand or surmise, yet if there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender. ”

“ Good faith toward foreign powers, with which we have entered into treaties of extradition, does not require us to surrender persons charged with crime in violation of those well-settled principles of criminal procedure which from time immemorial have characterized Anglo-Saxon jurisprudence. Persons charged with crime in foreign countries, who have taken refuge here, are entitled to the same defenses as others accused of crime within our own jurisdiction. ”

“ And the universal practice of nations is to surrender criminals only in consequence of some special treaty with the country which demands them.
There are two practical difficulties about extradition which have probably prevented the growth of any uniform rule on the subject. One is the variation in the definitions of crime adopted by different countries. The second is the possibility of the process of extradition being employed to get hold of a person who is wanted by his country, not really for a criminal, but for a political offence. ”

“ To support a demand for extradition from Great Britain it is therefore necessary to show that the offence is one of those enumerated in the Extradition Acts, and also in the particular treaty, and that the acts charged amount to the offence according to the laws both of Great Britain and of the state demanding the surrender. ”

“ In support of this contention, petitioner asserts that it is a general principle of international law that an offense for which extradition may be had must be a crime both in the demanding country and in the place where the fugitive is found, and that the applicable treaty provisions, interpreted in the light of that principle, exclude any right of either country to demand the extradition of a fugitive unless the offense with which he is charged is a crime in the particular place of asylum. ”

“ Once the contracting parties are satisfied that an identified offense is generally recognized as criminal in both countries there is no occasion for stipulating that extradition shall fail merely because the fugitive may succeed in finding, in the country of refuge, some state, territory or district in which the offense charged is not punishable. ”

“ The surrender of a fugitive, duly charged in the country from which he has fled with a nonpolitical offense and one generally recognized as criminal at the place of asylum, involves no impairment of any legitimate public or private interest. The obligation to do what some nations have done voluntarily, in the interest of justice and friendly international relationships, see 1 Moore, Extradition, § 40, should be construed more liberally than a criminal statute or the technical requirements of criminal procedure. ”

“ It is of some significance also that the construction which petitioner urges would restrict the reciprocal operation of the treaty. Under that construction the right to extradition from the United States may vary with the state or territory where the fugitive is found although extradition may be had from Great Britain with respect to all the offenses named in the treaty. ”

“ The United Kingdom has extradition treaties with practically all civilized foreign countries; and though it is not practicable to state which of the statutory extradition offences are included in each, it may be said generally that crimes 1 to 17 inclusive are covered in all, though Rumania has reserved the right to refuse, and Portugal does refuse, to surrender for a crime punishable with death. ”

“ If some offence, unknown to the law of other nations-to what may figuratively be called the common law of nations-should be created by the law of a particular people, such an offence would not come within the category of crimes which it is the purpose of extradition to repress. ”

“ It is further to be noted that the restrictions on surrender in the Extradition Acts apply only to surrenders by Great Britain. Foreign countries may surrender fugitives to Great Britain without any treaty, if they are willing to do so and their law allows of it, and such surrenders have not infrequently been made. But when surrendered for an extradition crime, the prisoner cannot be tried in England for any other crime committed before such surrender, until he has been restored, or has had an opportunity of returning, to the foreign state from which he was extradited. ”

“ It is obvious that such cases stand on a very different ground. It is there a question between independent nations bound by no ties of mutual obligation on the subject, and at liberty to adopt such means of redress and retaliation as they please. But where an extradition treaty does exist, and a criminal has been delivered up under it, he cannot, without violating the treaty, be tried for any other crime but that for which he was delivered up. ”

“ A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded. ”

“ While the escape of criminals is, of course, to be very greatly deprecated, it is still most important that a treaty of this nature between sovereignties should be construed in accordance with the highest good faith, and that it should not be sought, by doubtful construction of some of its provisions, to obtain the extradition of a person for one offense and then punish him for another and different offense. ”

“ A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was surrendered. For many years Great Britain claimed that a person surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other offenses provided the person had been once surrendered. ”

“ No appropriation was made by the last Congress to pay this judgment.
United States v. Rauscher [3] is noteworthy as involving the much-mooted question of the right to try a person for a crime other than that for which his extradition was secured; the opinion of the court denying the right, under existing treaties, may not be wholly satisfactory as a legal argument, but it must not be forgotten that the question depends rather on political than judicial principles for its proper determination. ”

“ Because, in some cases, in construing the treaty, it has been stated that a person extradited can be tried only for the offense for which he was surrendered for trial until he has had an opportunity of returning, it is assumed by the plaintiff in error that such language prohibits the trial of a person so extradited for any crime committed by him subsequently as well as prior to the surrender, without an opportunity for his return to the other country. ”

“ Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. ”

“ When the expulsion of an alien from the national territory is proper in accordance with the Constitution and the law, the extradition shall not be effected, in the case of a political exile, to the territory of the nation that may claim him. ”

“ For individual liberty and self-government of nations are demanded by modern civilisation, and their gradual realisation over the whole globe is conducive to the welfare of the human race.
Political crimes may certainly be committed in the interest of reaction as well as in the interest of progress, and reactionary political criminals may have occasion to ask for asylum as well as progressive political criminals. The principle of non-extradition of political criminals indeed extends its protection over the former too, and this is the very point where the value of the principle reveals itself. ”

“ Now, many writers agree upon this point, but maintain that such arguments meet the so-called purely political crimes only, and not the relative or complex political crimes, and they contend, therefore, that the principle of non-extradition ought to be restricted to the former crimes only. But to this I cannot assent. No revolt happens without such complex crimes taking place, and the individuals who commit them may indeed deserve the same protection as other political criminals. ”

“ But I see no reason why individuals guilty of any murder—as provided by the Russian proposal—or who have committed other crimes, such as arson, theft, and the like, should not be surrendered in case the political motive or purpose of the crime is of no importance in comparison with the crime itself. On the other hand, the Belgian clause goes too far, since exceptional cases of murder of heads of States from political motives or for political purposes might occur which do not deserve extradition. ”

“ For the purposes of the Extradition Act—
(a) any act, wherever committed, which is a relevant offence of a Protocol country which is a declared Commonwealth country, or which is a relevant offence of a Protocol country which is not a declared Commonwealth country in the case of which the Extradition Act has been applied by a notification in the Gazette made under section 4 of that Act, shall be deemed to be an offence within the jurisdiction of that country; and (b) any such offence shall be deemed not to be an offence of a political character. ”

“ The reservation is based on an apparent contradiction between extradition for offences of forced disappearance and article 27 of the Constitution, which bars extradition for political offences except as provided for in treaties and conventions with respect to crimes against humanity or against international law. The preamble to the Convention reaffirms that the systematic practice of forced disappearance is a crime against humanity. ”

“ Extradition of a foreign subject can be carried out only on a basis of a ratified international agreement and on the principle of reciprocity. A foreign subject cannot be extradited for political criminal offences. Acts of terrorism are not regarded as political criminal offences. ”

“ Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in Article 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons. ”

“ In addition to such legal questions as the regulation of international extradition, restitution instead of punishment, and the diminution of the concept of the punishment by imprisonment as the ultima ratio in the struggle against crime, the Union shall pay more attention to the sociological aspect of crime. ”