PUBLIC

INTERNATIONAL LAW
Project on

Extradition

Submitted to:- Submitted by:-

Dr. Jasmeet gulati Jasmine
B.A.Llb.(hons)
Section A
Roll no:- 32/13
3rd semester

1
 Acknowledgment
It is a genuine pleasure to express my deep sense of thanks and
gratitude to my mentor, philosopher and guide DR. JASMEET
GULATI, Assistant professor, University Institute of Legal Studies,
Panjab University, Chandigarh. Her dedication and keen interest
above all her overwhelming attitude to help her students had been
solely and mainly responsible for completing my project. Her timely
guidance, meticulous scrutiny, scholarly advice and scientific
approach helped me to a very great extent to accomplish this task.

JASMINE
B.A. Llb (hons.)
3RD SEMESTER
SECTION-A
ROLL NO:32/13

2
 Index
1. Introduction
2. Basis of Extradition
3. Principle of reciprocity
4. Treaties
5. Legal processes of extraditing
6. Extraditable offences
7. General principles of Extradition law
8. Grounds for refusing Extradition request
9. The Position of the Individual in the Extradition
Process

3
 Introduction

The term extradition is derived from two Latin words, ex and traditium,
which means delivery of criminals, surrender of fugitives or handover of
fugitives. It is a well-established principle of International law that a State
cannot exercise the acts of sovereignty upon the territory of another State;
thereby if a criminal escapes to another State, he would be immune from seizure
and trial by the former State.1 On the other hand, the State where he has taken
refuge may find it difficult to punish a person who has committed a crime
elsewhere, primarily for lack of jurisdiction or for any other technical reason.2

Extradition is the official process whereby one country transfers a suspected or

convicted criminal to another country. Between countries, extradition is
normally regulated by treaties. Where extradition is compelled by laws, such as
among sub-national jurisdictions, the concept may be known more generally as
rendition. It is an ancient mechanism, dating back to at least the 13th century
BC, when an Egyptian Pharaoh, Ramesses II, negotiated an extradition treaty
with a Hittite King, Hattusili III.3

Through the extradition process, a sovereign (the requesting state) typically

makes a formal request to another sovereign (the requested state). If the fugitive
is found within the territory of the requested state, then the requested state may
arrest the fugitive and subject him or her to its extradition process. The
extradition procedures to which the fugitive will be subjected are dependent on
the law and practice of the requested state.4

In the words of Oppenheim, extradition is the delivery of an accused or a

convicted individual to the State on whose territory he is alleged to have

1S.K. Verma, An Introduction to Public International Law, 3rd ed., p. 204.

2Ibid.
3Dan E. Stigall, Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement
Jurisdiction in International Law: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2211219&download=yes,
last visited on 2/11/2014 at 6:30 p.m.
4Ibid.

4
committed, or to have been convicted of a crime, by a State on whose territory
the alleged criminal happens to be for the time being.

Basis of Extradition

Extradition is a formal process whereby States grant each other mutual judicial
assistance in criminal matters on the basis of bilateral or multilateral treaties or
on an ad hoc basis.

PRINCIPLE OF RECIPROCITY

The principle of reciprocity has long been an established principle in the

relations of States
with respect to matters of international law and diplomacy. It is basically a
promise that the
requesting State will provide the requested State the same type of assistance in
the future, should the requested State ever be asked to do so. This principle is
usually incorporated into treaties, memorandums of understanding and domestic
law. It is particularly prevalent in States with a civil law tradition, where it is
viewed as a binding covenant. In common law countries, it is not viewed as an
obligatory principle. Some countries use their domestic legislation as a basis for
extradition and apply the principle of reciprocity as a precondition to
considering extradition to another State.5The Organized Crime Convention
specifically mentions the principle of reciprocity in its article 18, paragraph 1,
and obliges all States parties to adhere to it.6The principle can also be a useful
tool in a situation in which there is no treaty, as it can be viewed as a stand-
alone promise that one State will do the same for another State in future should
the need arise. As with any promise, every effort should be made to ensure that
it can be kept. Jean-Bernard Schmid, investigating magistrate for Geneva,
Switzerland, had the following observation to make regarding the importance of
honouring the promises that are made: Finally, there always is a next time. In
5Japan provides international cooperation (mutual legal assistance and extradition) based on its domestic laws
that consider assurances of reciprocity as preconditions to providing such assistance (see art. 3, Para. (ii), of the
Act of Extradition, and art. 4, Para. (ii), of the Act on International Assistance in Investigation and Other
Related Matters; both are available from the Ministry of Justice of Japan at www.moi.go.jp/ENGLISH)

6The article states, in part, that States shall reciprocally extend to one another similar assistance.

5
international co-operation, as in any business, it is in the interest of every party
to respect promises that are made.7

TREATIES

Treaties have been utilized as a basis for international cooperation throughout

the world for
many years. On the spectrum of international cooperation, they represent the
most formal vehicle that can be used, whether for mutual legal assistance or
extradition. Treaties allow for a focusing of effort and for either cooperation on
certain types of offences or the consideration of regional concerns and the legal
systems of a specific region. Treaties also oblige the parties to cooperate with
one another under international law, provided that the request falls within the
terms of the treaty.8 This scope consideration will be discussed more fully
throughout the present Manual, as it is a fundamental question that will have to
be asked each time a treaty request is made.
Bilateral treaties can be tailored between States and provide a high degree of
certitude regarding the obligations and expectations in the extradition process.
This is particularly the case when States share the same legal tradition, as the
commonality found in the treaty will follow through to the domestic court
process as well. As shown in the chapter on legal traditions, the quest for
certainty and clarity becomes more problematic when the States in a bilateral
treaty come from a different legal tradition. Another challenge to engaging in
bilateral treaties is the expense and effort it takes to see each bilateral treaty
through to fruition.
Originally, extradition was based on pacts, courtesy or goodwill between Heads
of sovereign
States.9
There was historically no general duty to extradite. Countries that desired such a
relationship would enter into bilateral extradition treaties or agreements. The
advent and increasing implementation of treaties, however, has created
obligations to extradite where none existed
7Jean-Bernard Schmid, Legal problems in mutual legal assistance from a Swiss perspective, in
Denying Safe Haven, p.47

8United Nations Office on Drugs and Crime,Manual on International Cooperation in Criminal Matters related to
Terrorism

(New York, 2009), pp. 9-10.

92004 Report of the Informal Expert Working Group on Effective Extradition Casework Practice, para. 8.

6
Before Article 16, paragraph 3, of the Organized Crime Convention states that
any offence to which the Convention alludes is deemed to be included as an
extraditable offence in any extradition treaty existing between States Parties. In
the absence of a treaty and if a State usually insists on the existence of a treaty
for extradition, the option is given for that State to use the Convention itself as
the vehicle for extradition. Article 16, paragraph 4, of the Convention provides
that, in the absence of a treaty and if a State normally insists on a treaty for
extradition, it may consider [the Convention] the legal basis for extradition in
respect of any offence to which this article applies.

Legal Basis for Extraditing

International law does not establish a general duty to extradite. A legal
obligation for one State (the requested State) to surrender a person wanted by
another State (the requesting State) exists only on the basis of bilateral or
multilateral extradition agreements, or if the requested State is a party to an
international instrument which institutes a duty to extradite, as is the case with
respect to specific offences such as, for example, genocide or apartheid. Other
international instruments impose an obligation to extradite or prosecute that
is ,if surrender is refused, the requested State must prosecute the wanted person
in its own courts. This is known as the principle of aut dedere aut judicare,
which also applies under a number of anti-terrorism instruments and
conventions dealing with other types of transnational crime. In addition,
customary international law may also serve as the basis for extradition in the
absence of previous treaty arrangements, if extradition is sought for crimes
against humanity or war crimes, although there is no general obligation to
extradite under such circumstances.

Most States are bound by a variety of bilateral and multilateral extradition

agreements as well as extradition provisions in international instruments. At the
same time, international human rights law, refugee law and customary
international law prohibit extradition in certain circumstances. In practice, this
may result in a conflict of obligations for the requested State, which needs to be
resolved in accordance with applicable principles and standards of international
law. Where international human rights and/or refugee law imposes a bar to
extradition, this takes precedence over any duty to extradite which may exist on
the basis of an agreement between two States.

7
 EXTRADITABLE OFFENCES:
Every act forbidden and made punishable by the law of a state is within the
operation of the federal constitutional provision on extradition. The words
treason, felony, or other crimes include every act forbidden and made
punishable by a law of the state. The word crime itself includes every offense,
from the highest to the lowest grade of offenses including misdemeanours. It is
to be noted that extradition for the purpose of criminal prosecution is the
exercise of a sovereign function, which the courts cannot review.

The law of the land with respect to interstate extradition authorizes the governor
and makes it his/her duty to see that the laws are executed and upon proper
application and evidence to him/her to grant a requisition, without regard to the
character or degree of the crime, whether it be treason, a felony, or a
misdemeanour.

It is to be noted that extraditions must not be used for the collection of private
debts. Extradition of a citizen from his/her home state to a foreign state against
his/her will is a most serious matter and cannot be done to disguise collecting a
civil debt.

An extradition treaty between two countries imposes mutual obligations on both

countries to extradite persons whom the authorities of the requesting party have
charged with or found guilty of an extraditable offense. A foreign conviction
entered after a trial at which the defendant was present suffices to establish
probable cause for extradition. The extradition court need not make an
independent assessment of the facts surrounding the offenses. It can rely solely
on a certified copy of the foreign conviction.

The principles of international law recognize the right to extradition only

through a treaty. To determine the nature and extent of the right, a court must
look to the treaty which created it. The right of international extradition is
solely the creature of the treaty. The conditions under which a fugitive is to be
surrendered to a foreign country are to be determined solely by the non-judicial
branches of the government.

Similarly, while determining whether the offenses charged are extraditable

treaty offenses, an extradition court must find that the treaty is in full force and
effect and that the crimes charged come under the purview of the treaty. The
role of the court in determining extraditability requires a limited evidentiary
finding. It is required to evaluate whether there was any evidence warranting
the finding that there was a reasonable ground to believe the accused guilty

8
Generally, an act charged is considered criminal by both parties. It is not
necessary that the name of the crime is the same in either countries or that the
scope of liability must be coextensive. It was observed that some crimes were
so universally condemned that the perpetrators were the enemies of all people.
Therefore extradition is permissible for certain offenses such as war crimes,
committed outside of the demanding nation

However, political offenses are not recognized as extraditable offenses. The

political offense exception to extradition generally prevents a person from being
extradited to face prosecution for crimes committed in furtherance of a political
uprising, movement, or rebellion in the country in which such occurrences took
place

General Principles of Extradition Law:

International law leaves States considerable latitude to establish their national
legal framework for extradition. Conditions and requirements may vary
significantly from one country to another. Partly, this is due to different
traditions and approaches between common law and civil law jurisdictions. Yet
national extradition laws are also similar in a number of respects, and it is
possible to identify certain general principles and requirements, including the
following:
The State seeking the surrender of a person must present a formal
extradition request, which must identify the wanted person and the
offence imputed to him or her. The requesting State is also regularly
required to submit certain documents in support of the request. The kind
and format of the evidence needed as well as the standard of proof
applied by the requested State may differ significantly from one country
to another. The formal extradition request may be preceded by a
provisional arrest warrant.
Extradition may only be granted if the conduct imputed to the wanted
person constitutes an extraditable offence under the applicable extradition
agreement or legislation. Certain acts e.g., military, political or fiscal
offences have traditionally been deemed outside the realm of
extraditable offences, although recent developments have brought about
significant changes in this respect, most notably with regard to the so-
called political offence exemption.
Generally, extradition will be granted only if the offence imputed to the
wanted person is a criminal offence under the jurisdiction of both the
requesting and requested State. This is known as the principle of double
criminality.

9
 Under the rule of speciality, the requesting State may prosecute an
extradited person only for the offence(s) specified in the extradition
request, unless the requested State consents. Similarly, the requesting
State may not re-extradite the person to a third State without the
agreement of the requested State. Recent developments in Europe have
significantly amended the traditional practice with regard to both the
double criminality requirement and the speciality rule.

Grounds for Refusing Extradition

Requests
States have long accepted that extradition may be refused on certain grounds,
and extradition treaties as well as national extradition laws regularly contain
provisions to this effect.
One traditional refusal ground which has undergone significant
restrictions in recent times is the political offence exemption. This
principle was developed in the mid-19th century, essentially for the
purpose of permitting the requested State to refuse extradition if the
offence for which it was sought was deemed to be of a political nature
while at the same time enabling States to maintain friendly relations, as
the refusal of extradition on this ground would not be considered as an
undue interference with the internal affairs of the requesting State. The
definition of political offence has long been controversial in practice,
and a considerable body of jurisprudence has developed. Since the 1970s,
acts defined as terrorism in regional and international anti-terrorism
instruments have increasingly been declared non-political for the
purposes of extradition.
A leading case of non-extradition of political crime is Re Castioni. 10 In
this case extradition of a man named Castioni was demanded by the
Swiss Government. Castioni was accused of murdering a Member of the
State Council of the Canton of Taconite. Political discontent was going on
in the said Canton for some time. An armed mob attacked the Municipal
Palace and killed a member of the State Council. There was evidence that
the shot had been fired by Castioni. But the Queens Bench of England
held that Castioni had committed a political crime and, therefore, he
could not be extradited.

10(1891) 1 QB 149.

10
 In another case, Re Munier,11the accused was an anarchist and was
charged with causing two explosions in a Paris Caf and some barracks.
After committing the crime he fled away to England. The French
Government requested for the extradition. The accused contended that he
cannot be extradited because he was accused of a political crime. In this
case the accused did not belong to any particular political party. He was
anarchist and was opposed to all sorts of Governments. The Court
ordered for his extradition and held that this was not a political crime.
The Court also tried to explain the question as to what is a political
crime. In the view of the Court when the crime is committed for
furtherance of political objectives, it will be a political crime. For
example, when there are two or more than two political parties in a State
and each party endeavours to form its own Government and a crime are
committed to achieve this objective then it will be called a political crime.
In the present case, the accused didnt belong to any party, and therefore,
the Court rules that this was not a political crime.
Persons accused of military crimes are also not extradited.
Persons accused of religious crimes are also not extradited.
Rule of Speciality- When an accused is extradited then the receiving
State must try him for that specific offence for which his extradition was
sought for. For example, in U.S. v. Rouscher,12the respondent was got
extradited by America on the ground that he, while being a servant in a
ship had run away after murdering a fellow servant. But in America,
Rouscher was tried for grievously hurting a man named Janssen. The
Supreme Court of America held that whenever a person is brought within
the jurisdiction of the Court under an Extradition Treaty, then he could be
tried for the specific offence for which his extradition had been sought
for. The same law prevails in India. This is called the rule of speciality.
Double Criminality- The specific offence for which his extradition is
sought for must be an offence in the state requesting for extradition and
the State extradited accused. This is called the rule of double criminality.
Prima facie case- there should be sufficient evidence for the crimes for
which extradition is requested. It should prima facie appear that the
accused has committed the crime. In Tarasov Extradition case (1963), the
accused was discharged by the Court because no prima facie case was
made out against him. The evidence adduced was inadequate to establish

11(1984) 2 QB 415.
12(1886) 19, US 407.

11
 a prima facie case against fugitive criminal. The Court observed that to
constitute a prima facie case in extradition case following requirements
are essential:
i. The witness would be entitled to a reasonable degree of credit;
ii. The degree of proof should be higher than in ordinary criminal
prosecutions, and
iii. The evidence must be incontrovertible leading to the probable and
strong presumption of the offence against the accused.

The so-called discrimination clause, according to which extradition

may be refused if the requested State considers that it is sought with a
persecutory and/or discriminatory intent, is a more recent development.
First provided for in the European Convention on Extradition (1957), it
has since been included in a number of multilateral extradition
agreements, bilateral treaties, national extradition laws and even so mean
ti-terrorism instruments. Modelled along the lines of the prohibition of
refoulement in Article 33(1) of the Convention relating to the Status of
Refugees (1951, hereinafter referred to as: the 1951 Convention), it
occupies an important position in the interplay between extradition and
asylum. In practice, however, States have often been reluctant to rely on
the discrimination clause to refuse extradition.
Other traditional refusal grounds include the following:
The principle of non-extradition of nationals of the requested State;
Principles of fundamental justice and fairness(including, for example, the
principle of ne bis in idem; non-extradition if a judgment was rendered in
absentiaor by a special court in proceedings during which guarantees of
fair trial were not observed; the applicability of a statute oflimations; or
because wanted person enjoys immunity from prosecution);
The wanted person would be subjected to the death penalty or another
type of punishment considered incompatible with the requested States
notions of justice;
Humanitarian exceptions, for example, in view of the age or state of
health of the wanted person. Extradition legislation in many States also
provides for the refusal of extradition if wanted person is a refugee or
asylum-seeker.

The Position of the Individual in the

Extradition Process
12
The procedural rights and safeguards available to an individual whose
extradition is sought vary from one country to another. Some States provide for
procedural rights and safeguards, but often the extent to which such rights are
implemented are limited. This results, in part, from the traditional notion that
extradition is a matter exclusively between States, in which the individual has
no standing. Given that the judicial authorities of the requested State do not
decide whether the wanted person is guilty of the offence imputed to him or her,
the guarantees available to individuals in domestic criminal proceedings are
often considered inapplicable. In some countries, however, it is recognised that
extradition proceedings constitute quasi-criminal matters and are therefore
covered by guarantees of due process and other procedural safeguards.
Depending on the procedure in place under the law of the requested country, the
wanted person may oppose his or her surrender by way of a challenge to the
legality of arrest and detention pending extradition and/or, subsequently, during
the extradition process. The availability of avenues of appeal against and
overview of decisions taken at the various stages of the extradition process is an
important factor. In a number of countries, the opportunities for the wanted
person to raise objections to his or her surrender are restricted, either under
applicable legislation or as a matter of practice. In some countries, this has the
effect of effectively depriving the individual concerned of the possibility to
oppose his or her extradition to the requesting State.

BIBLIOGRAPHY

13
 MALCOLM N. SHAW QC, International Law, Cambridge
University Press, 5th ed.; Reprint 2005.
H. LAUTERPACHT, International Law, Cambridge University
Press, 2004 ed.
M.P. TANDON & DR. V.K. ANAND, International Law &
Human Rights, Allahabad Law Agency, 15th ed., Reprint 2004.
S.K. Kapoor, International Law, Central Law Agency, 11th ed.,
1996.
DR. H.O. AGARWAL, International Law & Human Rights,
Central Law Publications, 20th ed., 2014.

WEBLIOGRAPHY
www.brittanica.com; retrieved on 16 October 2014 at 9:27pm
IST.

14