Extradition
Torsten Stein†Content type:Encyclopedia entriesArticle last updated:June 2019Product:Max Planck Encyclopedias of International Law [MPIL]
Module:Max Planck Encyclopedia of Public International Law [MPEPIL]Subject(s):Nationality of individuals — Extradition and mutual assistance
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
A. Notion
1 Extradition designates the official surrender of an alleged offender from justice, regardless of his or her consent, by the authorities of the State of residence to the authorities of another State for the purpose of criminal prosecution or the execution of a sentence. Thus, extradition constitutes only one, albeit the most important, aspect of the broader spectrum of mutual legal assistance in criminal matters between States.
2 Every single extradition is regarded as an agreement under international law, notwithstanding the fact that the two States Parties to such an agreement may have established general extradition relations by concluding a bilateral or acceding to a multilateral extradition treaty (Treaties). Under an individual agreement, the State of residence exercising jurisdiction—not necessarily criminal jurisdiction—over the alleged offender renounces its jurisdiction for the benefit of the other State (Jurisdiction of States).
3 Unlike the case where an alien is expelled or deported (Aliens, Expulsion and Deportation), the motive for the return of an alleged offender from justice is not the maintenance of domestic public order or security, but the furtherance of foreign criminal proceedings. In numerous instances, however, expulsion and deportation have been and continue to be used as alternatives to extradition, sometimes in order to accelerate the transfer of the alleged offender, in other cases also to circumvent rules of extradition law which would preclude the return of the alleged offender (see eg the Soblen Case). The legality of deportation in cases where extradition is prohibited depends upon the applicable domestic law and whether the relevant extradition treaty confers any rights upon individuals (Individuals in International Law). In any case, most courts have held that they may exercise criminal jurisdiction over a surrendered alleged offender notwithstanding the fact that the return was illegal (male captus bene detentus; see the decision of the Supreme Court of the United States in the case of United States v Alvarez-Machain; see also Criminal Jurisdiction of States under International Law).
4 According to recent case-law, jurisdiction is not exercised if the State exercising jurisdiction captured the alleged offender under a serious violation of human rights and under protest of the other State (see the decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia [ICTY] in the case Prosecutor v Dragan Nikolić [Judgment on Sentencing Appeal], and the Opinion in State v Ebrahim of the Appellate Division of the Supreme Court of South Africa).
B. Historical Evolution of Legal Rules
5 The origins of international cooperation in the suppression of crime go back to the very beginnings of formal diplomacy (see also History of International Law, Ancient Times to 1648). Every period of history has examples of the rendition of alleged offenders, and famous extradition cases date back to the pre-Christian ages. Rendition in ancient times did not, however, follow any legal rules but was considered as a highly political act left to the unfettered discretion of the sovereign (see Sovereignty). Sovereigns could choose to grant asylum or oblige each other by surrendering those persons who were most likely to affect the political order within the requesting State (Asylum, Territorial; Asylum, Diplomatic). Until the middle of the 18th century, extradition primarily involved political refugees rather than common criminals; the escape of the latter was not seen as a danger requiring sustained and concerted countermeasures on an international scale.
6 Though extradition treaties or extradition provisions in peace treaties and treaties of alliance were concluded in earlier times; it was not before the latter half of the 18th century that such treaties appeared in greater numbers. By that time the movement of individuals between States had increased and special problems began to arise in the shape of highway robbers, vagabonds, and deserting troops (Deserters). While at first treaties were confined to rather limited and pragmatic provisions, during the decades that followed many of the more refined and still valid principles of extradition were developed upon a more general appreciation of the wider dimensions of the problem of escaping criminals. Hand in hand with the intensification of extradition relations and their extension to common criminals went restrictions on the surrender of political refugees to the point of a complete reversal of the situation existing at the outset of developments. Domestic ordre public (public policy) and the individual liberties guaranteed in national constitutions, as reflected in national extradition acts, added further limitations to arbitrary rendition, until by the end of the 19th century a coherent body of legal rules governing extradition had developed whose major principles still apply in contemporary extradition law.
C. Current Legal Situation
1. Sources of Contemporary Extradition Law
7 Sources of contemporary extradition law are bilateral agreements and multilateral conventions on the one hand and national extradition acts on the other. While bilateral or multilateral agreements are the most often used means for establishing extradition relations between States, another approach is uniform legislation on the basis of an agreed scheme, eg the Agreement between Finland, Denmark, Iceland, Norway and Sweden concerning Co-operation of 1962 (‘Helsinki Treaty’), whose Member States agreed in June 2005 to modernize it in order to make cooperation in the field of extradition more effective (Nordic Cooperation); the Commonwealth Scheme for the Rendition of Fugitive Offenders, as amended in 1990 (Commonwealth)—or on the European Union Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States (‘Framework Decision on the European Arrest Warrant’; European Arrest Warrant).
8 Whether the provisions of an extradition treaty take precedence over those laid down by the national extradition act of the requested State is decided by domestic law (International Law and Domestic [Municipal] Law). Under the law of most European States, extradition treaties take precedence over domestic statutes, either on the basis of an express provision in that statute (eg the extradition acts of Austria: Art. 1 Auslieferungs- und Rechtshilfegesetz [Act on Extradition and Legal Assistance] BGBl No 529/1979; and Germany: Art. 1 (3) Gesetz über die internationale Rechtshilfe in Strafsachen [Act on International Cooperation in Criminal Matters] 1982 BGBl I at 2071 as revised by 1994 BGBl I at 1537) or according to the lex specialis rule. In the United Kingdom (‘UK’), however, the Extradition Act (2003 [UK] chapter 41) prevails and extradition is admissible only after an order in council has directed the application of the Extradition Act to a specific country after the conclusion of a corresponding extradition treaty.
9 Despite the fact that most of the basic principles and rules provided for in extradition treaties or schemes and in national extradition statutes are almost identical (see eg the similarities between Art. 1 United Nations Model Treaty on Extradition and Art. 1 United Nations Model Law on Extradition of 2004), and despite the fact that multilateral conventions served as a model for recent amendments of statutes and bilateral treaties, the prevailing opinion is that these principles and rules have nevertheless, with very few exceptions, not become rules of customary international law.
2. Duty to Extradite
10 General international law (General International Law [Principles, Rules, and Standards]) neither imposes the duty on States to extradite common criminals nor does it oblige them to prosecute or punish alleged offenders when extradition fails (Aut dedere aut iudicare). The opposite view held by Grotius and others—already vigorously opposed at that time—was rejected by State practice. Efforts to establish such a duty at least for war crimes and international crimes such as genocide and terrorism after World War II remained unsuccessful, as have the recent attempts to base corresponding obligations on the United Nations Charter and the Friendly Relations Declaration (1970). The duty to extradite or prosecute an alleged offender does not exist save on the basis of a treaty fixing the prerequisites for and the exceptions to such an obligation or on the basis of the growing practice in recent years of including the obligation to extradite or prosecute in numerous international treaties and national acts. There exists no customary law about such an obligation. To make criminal law and therefore extradition more effective, the International Law Commission (ILC) started working on a codification (Codification and Progressive Development of International Law) about the obligation to extradite or prosecute but abandoned the idea due to general disagreement relating to the customary nature of this obligation (Final Report of 2014).
11 Likewise, general international law contains no limitations on a State’s freedom to extradite, except for those fundamental human rights that can be considered as part of ius cogens. Whether, beyond that bar, extradition is admissible in the absence of a treaty is decided solely under domestic law. While the common law countries and, eg the Netherlands are prevented from extraditing in the absence of a treaty, most civil law countries do grant extradition without treaty on the basis of reciprocity and according to the rules of their national extradition acts.
3. Substantive Law
(a) Principles
12 Every single extradition is subject to the rules of the applicable treaty or statute. In the absence of a universal convention or customary international law in this field there exist as many ‘extradition laws’ as there are treaties and national statutes. A number of rules, however, recur in all these norms, differences being rather a matter of wording than of principle.
(i) Extraditable Offences
13 Older treaties and statutes specify by name the offences for which extradition is available. They can be described as list treaties employing an enumeration method. This practice proved to be unfavourable in the face of diverging terminologies in national penal codes and the evolution of new types of crimes such as narcotic drugs offences (Narcotic Drugs and Psychotropic Substances), whose inclusion required supplementary treaties. More recent treaties and statutes therefore define extraditable offences simply by reference to their punishability, the requirement being normally deprivation of liberty of at least one year disregarding extenuating or aggravating circumstances (‘elimination method’). Some treaties combine both methods (‘open-ended list’), some of the ‘no list’ treaties and statutes provide that if one of several offences is an extraditable offence, extradition may be granted for all offences (‘accessory extradition’). Under a number of multilateral international conventions combating specific international crimes the offences established under these conventions are deemed to be included in existing extradition treaties.
(ii) The Double-Criminality Rule
14 The double-criminality rule requires that an act shall not be extraditable unless it constitutes a crime under the laws of both the requesting and the requested States. Expressly incorporated in ‘no list’ treaties and statutes as one constituent element of extraditable offences along with the minimum penalty, the rule also often appears in treaties employing the enumerative method and is sometimes considered as part of customary international law. The rule ensures that no State is obliged to extradite a person for an act not recognized as criminal by its own standards, and also serves the principle of reciprocity according to which a State is not required to extradite categories of offenders which it, in turn, would never have occasion to demand.
15 Rightly interpreted, the rule does not require identity as to the denomination of the offence but asks only whether the act in question is perceived as punishable under both legal systems, if necessary after an ‘analogical readjustment of the facts’, the phrase used in Germany in Art. 3 (1) Gesetz über die internationale Rechtshilfe in Strafsachen. The rule as such requires that the act is in abstracto chargeable as an offence but does not usually require that the act is in concreto prosecutable and could result in a conviction.
16 Recent extradition treaties—eg the UN Convention against Transnational Organized Crime of 2000, the International Convention for the Suppression of the Financing of Terrorism of 1999, the International Convention for the Suppression of Terrorist Bombings of 1997, and the Convention on Cybercrime within the Council of Europe (COE) of 23 November 2001—and national acts coordinated by multilateral decisions, especially the Framework Decision on the European Arrest Warrant, provide more and more exceptions from the double-criminality rule by accepting the demand of the requesting State exercising jurisdiction.
(iii) Evidence of Guilt
17 Courts in common law countries require, broadly speaking, that a requesting State makes out a prima facie case of guilt against an alleged offender justifying his or her committal for trial under its own legal system, before they will grant extradition for the purpose of prosecution (see Fair Trial, Right to, International Protection). No such evidence is required in respect of convicted alleged offenders; persons convicted in absentia, however, count as accused persons for the purposes of extradition. In contrast, most civil law countries reject this requirement. The verification of the extradition request is a more or less formal one. Supporting documents must enclose a copy of the warrant of arrest or judgment, the legal characterization of the offence, information regarding the identity of the offender, and, at most, a summary of the relevant facts. Prima facie evidence is here considered as an unnecessary requirement that will often jeopardize the performance of justice. Civil law countries do, however, request additional evidence—including evidence of guilt—if, from the circumstances of the case, there is reasonable doubt as to whether the requested person has in fact committed the offence, or where there is reasonable suspicion that the returnable offence charged to the alleged offender is not genuine.
(iv) Reciprocity
18 Traditionally, the principle of reciprocity underlies the whole structure of extradition. Where general extradition relations are established by virtue of a treaty, reciprocity to a large extent is guaranteed, although even here optional grounds for denying extradition may result in the inequality of reciprocal obligations. Extradition in the absence of a treaty is the field where the principle of reciprocity is mainly applied; here, surrender takes place usually only after assurances of reciprocity have been expressly given by the requesting State. The precondition of strict reciprocity, however, is increasingly considered as being detrimental to the interests of justice. Therefore, some recent extradition treaties and statutes either do not mention reciprocity at all, allow considerable exceptions, or express the principle in optional terms, thus conceiving reciprocity as a political maxim rather than as a legal precondition.
(v) The Speciality Rule
19 Under the speciality rule, incorporated in almost every treaty and statute and considered as a rule of general international law, an alleged offender may not be detained, tried, or in any way punished in the requesting State for any offence committed prior to surrender other than the one for which extradition was granted, unless he or she does not leave the territory of the requesting State within a certain time limit—usually 30 to 45 days—after being free to do so, or voluntarily returns or is lawfully re-extradited to it by a third State, or unless the State which surrendered him consents. Prior consent is not required if the description of the offence for which extradition was granted is altered in the course of the proceedings, provided that the offence in its new description is based on the same facts and itself constitutes a returnable offence—under some treaties a lesser returnable offence, under others a returnable offence for which no higher maximum penalty is fixed.
20 The speciality rule, though generally not conceived of as a rule conferring individual rights, nevertheless protects the alleged offender from having to face charges of which he or she had no notice prior to transfer. It also reinforces the double-criminality rule and rules prohibiting extradition for certain categories of offences—eg political, fiscal, or military offences—and it protects from abuse the legal processes of the requested State, which is called upon in extradition to renounce its jurisdiction over, and protection of, the alleged offender.
21 Particularly in cases where it appears that the alleged offender after return may be prosecuted or prejudiced on political grounds, it has become the constant practice of States to require express assurances from the requesting State that it will respect the speciality rule (see Diplomatic Assurances).
(b) Circumstances Precluding Return
22 Like the aforementioned principles, a number of exceptions to the obligation to extradite are to be found in most extradition treaties and are reflected in national extradition acts. Such exceptions primarily relate to the personal circumstances of the alleged offender, to the peculiarities of criminal proceedings in the requesting State and to certain categories of offences.
(i) Citizens
23 While common law countries—basing their criminal jurisdiction strictly on the territoriality principle and being thus unable to prosecute their own nationals for offences committed abroad (Nationality)—are usually prepared to extradite their citizens, civil law countries, as a rule, are prevented from doing so by constitutional or statutory law—except, for example, the area of applicability of the Framework Decision on the European Arrest Warrant. Extradition treaties, therefore, if not excluding the extradition of citizens altogether, usually concede to requested States the right to deny extradition of nationals if their domestic law so provides. Some extradition treaties restrict the requested State’s freedom to naturalize alleged offenders after demand has been made for them, others oblige requested States to institute criminal proceedings for their part if surrender has been refused on grounds of nationality.
(ii) Capital Punishment
24 Under most extradition treaties and statutes surrender may be denied if the offence for which extradition is requested is punishable by death under the law of the requesting State, unless the authorities of that State previously give assurances, which the requested State considers sufficient, that the death penalty will not be imposed or carried out. Difficulties in obtaining such assurances may, however, arise in cases where capital punishment is the only punishment prescribed by law and where under the law of the requesting State the power of pardon lies with the parliament or the Head of State (Heads of State; Pardon Power), or where the independence of the judiciary excludes any interference in the forthcoming proceedings. Some norms extend the possibility of denying extradition to cases involving punishment impairing the physical integrity of the offender, inhuman or degrading punishment, or even life imprisonment.
25 Whether fundamental human rights lead to a right to refuse extradition in all cases in which the death penalty is expected, independently from extradition treaties, is unclear. In the Soering Case, the European Court of Human Rights (ECtHR) considered that the very long period of time a condemned prisoner can expect to spend on death row in Virginia, United States of America, would expose him to a real risk of treatment going beyond the threshold set by Art. 3 (3) European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)).
26 In the case of Öcalan v Turkey, the ECtHR even declared the imposition of the death penalty itself—following an unfair trial—as incompatible with international law, but did not say anything concerning the consequences for extradition.
(iii) Procedural Defects
27 Recent statutory law and agreements preclude extradition if there is reason to believe that the criminal proceedings in the requesting State have not been or will not be in conformity with the internationally recognized minimum standards of procedural guarantees. Under this concept, extradition may be denied if the alleged offender has been or will be tried by an ad hoc or extraordinary tribunal or if he or she has been convicted in absentia without having, upon return, the right to a complete retrial safeguarding the rights of defence. Whether such procedural defects may be invoked in order to refuse surrender in the absence of explicit reference to corresponding exceptions in an extradition treaty remains doubtful.
(iv) Personal Circumstances of the Alleged Offender
28 A number of States refuse extradition on ‘humanitarian grounds’ if surrender is likely to have consequences of an exceptional and disproportionate gravity for the alleged offender, particularly on grounds of age, state of health, or other personal circumstances.
(v) Military Offences
29 While earlier extradition treaties expressly provided for the surrender of deserters—as do modern defence agreements and treaties of military alliances—later extradition treaties and national statutes usually exclude military offences from extradition. Far from universally accepted, the exception, if applied, is mostly restricted to purely military offences not involving any common crime.
(vi) Fiscal Offences
30 Traditionally, fiscal offences—eg tax evasion, violation of currency or customs regulations—were also excluded from extradition. Under some treaties exceptions were subject to subsequent additional agreements between the contracting parties dealing with specific categories of fiscal offences. A more modern view, however, takes into account the danger to national economies and the extensive damage to public budgets caused by white-collar crimes, and rejects the view that fiscal offences are not really crimes calling for counter-measures on an international scale. Recent extradition treaties and statutes, therefore, no longer exclude fiscal offences from extradition, and older conventions have been amended correspondingly (see eg the Second Additional Protocol to the European Convention on Extradition).
(vii) Political Offences
31 The political offence exception, based on humanitarian concern for the offender on the one hand and on the reluctance of States to become involved in the political problems of the other States on the other, has constituted one of the most intractable problems of extradition law ever since it was first introduced into treaties and national statutes. Today, the political offence exception forms part of almost every extradition treaty and statute between and in democratic countries, but its character as a binding rule of customary law is at least debatable. Difficulties, errors, and disputes in connection with the exception are primarily due to the lack of any agreed definition of the term political offence. Treaties and statutes confine themselves to excluding political offences—or offences of a political character—and connected offences from extradition, leaving the classification of an offence as political to the requested State. Lesser problems are posed by absolute or purely political offences—eg treason, espionage, sabotage—defined as offences aimed directly and exclusively against the State, its organs, or political organization. The scope of the so-called relative or related political offences entails much greater uncertainty. Relative political offences are per se common crimes assimilated to political offences because the perpetrator—according to the subjective definition—pursued a political purpose or was politically motivated or because the common crime fell into a political context in that it was committed incidentally to or in the course of and in furtherance of civil war (Armed Conflict, Non-International), insurrection, or political commotion. A more rigid definition confines relative political offences to those common crimes having a predominantly political character or being directly connected to a purely political offence by preparing, facilitating or ensuring the impunity of the latter. The predominance or proportionality test, requiring consideration of such factors as the seriousness of the offence or its consequences, the indiscriminate use of violence against innocent victims and the futility of the attempt to further the political object claimed for the offence, appears to be the most reasonable approach, but none of the others is excluded by law, and even the strict subjective definition, though mostly rejected in theory, has been frequently applied in practice. A requested State’s decision affirming the political character of an offence may be challenged, if at all, only in clear cases of abuse.
32 The lack of unanimity that is found with regard to the definition of political offences also exists vis-à-vis possible exceptions to the exception. Only the debatable attentat clause, restricted to heads of State and their families, has gained wide acceptance. Very few treaties and statutes expressly exclude genocide, murder, manslaughter, or related crimes in general from the concept of political offences. Out of the special international conventions, only the Convention on the Prevention and Punishment of the Crime of Genocide and the European Convention on the Suppression of Terrorism unambiguously declare the limited number of offences established by them as ‘non-political’ for the purpose of extradition; all others confine themselves to the maxim aut dedere aut iudicare. The growing tendency to restrain the application of the political offence exception to the most serious and violent crimes became apparent in the supplementary treaties to existing bilateral extradition agreements of the United States of America with, eg Belgium, Germany, Spain, and the UK. In 1988, the International Law Association (ILA) adopted Draft Articles on Extradition in Relation to Terrorist Offences, excluding from the political offence exception offences which are directed against persons engaged in international communication; these articles were adopted in 1998 becoming a draft resolution (Resolution No 1/98 Extradition and Human Rights). In the area of applicability of the Framework Decision on the European Arrest Warrant, political offences are no longer a ground to refuse extradition.
33 In sum, neither the kind nor the number of particular restrictions to the political offence exception reflect a general consensus as to what is worthy of the protection offered by the exception, and what cannot be tolerated by the community of nations and therefore ought not to be privileged in extradition law. There are increasing doubts as to whether the political offence exception in its traditional wording is still a timely concept, if indeed it ever was.
(viii) The Discrimination Clause
34 Recently, a so-called discrimination clause has been added to the political offence exception, underlining the humanitarian background of the traditional exception and overlapping with its scope of application to a considerable extent. Older extradition acts had already widened the scope of the political offence exception by including those cases where it seemed likely that request for surrender based on a common crime had in fact been made with a view to trying the alleged offender for a political offence. The European Convention on Extradition of 1957, henceforth serving as a model for subsequent treaties and statutes, for the first time expanded this rule by providing that extradition will not be granted,
if the requested Party has substantial grounds for believing that a request for extradition for an ordinary crime offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons (Art. 3 (2) European Convention on Extradition).
This clause, focusing not on the political character of a potential offence but on the political character of an eventual persecution, expressly incorporates the principles of humanitarian asylum into the law of extradition, on the understanding that prosecution of a political offence may, but does not automatically, amount to political persecution. In protecting alleged offenders, the discrimination clause is clearly preferable to the political offence exception, which is often misapplied.
(ix) Others
35 Other grounds for denying extradition commonly provided for are pending proceedings or final decisions passed in respect of the same offence in the requested State (Ne bis in idem) or at the international criminal courts and tribunals (International Criminal Courts and Tribunals, Complementarity and Jurisdiction), lapse of time, or the fact that the offence has been committed in whole or in part in the territory of the requested State.
4. Extradition Procedure
36 Extradition proceedings are initiated only upon formal request, usually communicated through diplomatic channels (Diplomatic Communications, Forms of), with the exception of requests under the European Arrest Warrant (‘competent judicial authority’), and supported by those documents specified by the applicable extradition treaty or, in the absence thereof, by the extradition act of the requested State. Insufficient documents may be supplemented within a fixed time limit. Most extradition treaties and statutes provide for the possibility of requesting—for a limited period pending receipt of a formal request—the provisional arrest of an alleged offender, either by means of rapid communication or on the basis of an international warrant of arrest (‘red individual notice’) issued by Interpol (see the Arrest Warrant Case [Democratic Republic of the Congo v Belgium]) or of the Framework Decision on the European Arrest Warrant by one Member State to another of the European Union. The extradition procedure itself is usually not the subject-matter of extradition treaties but is left entirely to the requested State, including the questions if, to what extent, and at which stage of the proceedings judicial protection is available to the alleged offender.
37 As extradition treaties create rights and obligations only for the States Parties to the treaty, in principle the alleged offender may consequently not invoke the violation of the extradition treaty by the requesting State or treaty provisions precluding his or her return when arguing against surrender. Statements such as the resolution ‘New Problems of Extradition’ of 1983 by the Institut de Droit international advocate that States, when concluding an extradition treaty, should provide that a person whose extradition is requested is entitled to invoke the treaty before national courts for his or her protection. In practice, however, such protection is mostly guaranteed by analogous provisions in national extradition acts.
38 While in common law countries the lawfulness of rendition may be reviewed in habeas corpus proceedings, civil law countries make surrender dependent upon a prior criminal court’s ruling on its admissibility; if extradition is declared inadmissible, this decision is usually final, otherwise surrender is left to the executive’s discretion. As a rule, the requesting State has no standing in any of these judicial proceedings.
39 Most extradition acts governing extradition procedure provide for return by consent—simplified extradition, informal surrender—in cases where the alleged offender, duly instructed, waives formal proceedings either in writing or before a court or commissioned judge. In so doing, the alleged offender in some countries also loses the protection under the speciality rule, in others the speciality rule may be waived separately. A validly declared waiver is usually irrevocable.
40 Expenses resulting from return proceedings in the requested State are met by that State; some treaties provide that exceptional expenses—eg for air transport—are to be borne by the requesting State.
5. Related Procedures
(a) Conditional Surrender
41 An alleged offender serving a sentence or facing criminal proceedings in the requested State may be surrendered temporarily if the requesting State undertakes to return him after the termination of the proceedings. States may commit themselves to return their own nationals if they have been surrendered temporarily.
(b) Re-Extradition to a Third State
42 An alleged offender surrendered to the requesting State may not, without the consent of the requested State, be surrendered to a third State, unless he or she has not left the requesting State after being free to do so for a fixed period of time.
(c) Transit
43 Transit of an alleged offender from the requested to the requesting State through the territory of a third State depends upon the consent of the latter. Consent will usually be given upon the presentation of a copy of the order granting the extradition. However, some States subject transit to the same rules as extradition itself. If air transport is used and no landing is scheduled, a notification of the State whose territory will be flown over is sufficient, if required at all. In the case of an unscheduled landing, such notification may have the effect of a request for provisional arrest. Whether, in such a case, a citizen of that State would have to continue his or her journey to the requesting State, is doubtful.
(d) Concurring Requests
44 A variety of rules is provided for in extradition treaties for cases where extradition is requested by more than one State (see eg Pinochet Cases). If requests are made for the same offence, the requested State has to give precedence to the request of the State in which the offence was committed. If requests are made for different offences, the requested State should make its decision with regard to the seriousness of the offences, the nationality of the alleged offender, the respective dates of the requests, and the possibility of subsequent extradition to another State.
D. Existing Extradition Treaties
1. Bilateral Treaties
45 There is no reliable figure for existing bilateral extradition treaties, due to the unknown number of unregistered treaties (Treaties, Registration and Publication) and treaties that have become inoperative or obsolete. It has been estimated that there are around 1500, which all follow, with few variations, the same pattern.
2. Multilateral Treaties
46 As of the time of writing a world-wide extradition convention does not exist. The attempt of the ILC to work out such a convention had been given up due to general disagreement relating to the customary nature of the obligation to extradite or prosecute (Final Report 2014). In the meantime, the similarity of international extradition treaties is supported by the United Nations Model Treaty on Extradition, which restricts the exception for political offences.
47 The large amount of new and of amended multilateral treaties shows their primary importance in the field of extradition. Sometimes provisions regarding extradition are embodied in a more comprehensive treaty on legal assistance between States in criminal matters in general or even legal assistance in the broader sense, including assistance in civil, family, and criminal matters (see the Code of Private International Law [‘Bustamante Code’] of 1928; Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Matters [‘Minsk Convention’] of 1993; see also Mutual Legal Assistance in Civil and Commercial Matters).
(a) Europe
48 The European Convention on Extradition of 13 December 1957 entered into force on 18 April 1960. Since March 2009, it has been ratified by all 47 Member States of the Council of Europe. Israel, the Republic of Korea, and South Africa as non-Member States ratified as well. The first Additional Protocol to the European Convention on Extradition concerning political offences and the ne bis in idem rule has been in force since 20 August 1979, binding 38 Member States (as of April 2020); the Second Additional Protocol to the European Convention on Extradition of 1978 relating to fiscal offences, judgments in absentia and amnesty has been in force since 5 June 1983, valid for 41 Member States (as of April 2020). Both protocols were ratified by South Africa and the Republic of Korea. The Third Additional Protocol to the European Convention on Extradition, aiming at a simpler and accelerated extradition procedure in case of consent of the alleged offender, was opened for signature on 10 November 2010 and has been in force since 1 May 2012, binding 22 Member States (as of April 2020). The European Convention on the Suppression of Terrorism of 1977 within the Council of Europe also incorporates some articles concerning extradition.
49 The Convention Drawn up on the Basis of [then] Article K.3 of the Treaty on European Union, on Simplified Extradition Procedure between Member States of the European Union of 1995, complements and simplifies the European Convention on Extradition of 1957 between the Member States of the EU in cases in which the person concerned and the requested Member State agree to his or her surrender. The Council Act Drawing up the Convention relating to Extradition between Member States of the European Union of 1996 abolishes political offences and citizenship as grounds for refusal of extradition except if the Member State has made a reservation. The conventions of 1995 and 1996 have not formally entered into force as not all Member States have ratified them, but most of them declared the conventions applicable in relation to other Member States who made the same declaration. Arts 59 to 66 Convention implementing the Schengen Agreement regulate extradition in Europe as well.
50 All these above-mentioned European treaties are substituted between the Member States of the EU by the Framework Decision on the European Arrest Warrant, within its area of application. The Framework Decision entered into force on 7 August 2002 and had to be transposed into national law by the Member States of the EU by 31 December 2003. The European Arrest Warrant is a judicial decision by one Member State of the EU which demands—from 1 January 2004 onwards—the arrest and surrender of an individual by another Member State of the EU in order to prosecute him for the commitment of a crime carrying a maximum sentence of at least twelve months or to execute a sentence of at least four months. The Framework Decision has been amended several times, last on 26 February 2009 (OJ L81/24). The UK withdrew from certain parts of the Union’s police cooperation and judicial cooperation in criminal matters in 2014 (Council Decision of 27 November 2014, OJ L343/11), but continued to participate in the European Arrest Warrant. Whether this will be the case after Brexit depends upon future arrangements.
51 The purpose of the Framework Decision on the European Arrest Warrant is to accelerate and to simplify extradition procedures: the surrender of the person has to take place within a period of ninety days; or, if the arrested person consents, within ten days (Art. 17 Framework Decision). Under specific circumstances, the double-criminality rule is abolished. That means that the requested Member State may not refuse the surrender even of its own nationals and even in cases of political offences if the requesting Member State punishes the crime with imprisonment of at least three years and the crime is included in the list of serious offences itemized in Art. 2 (2) Framework Decision on the European Arrest Warrant. The only reasons for refusal are written down in Arts 3 and 4 Framework Decision on the European Arrest Warrant, such as the ne bis in idem rule, amnesties, statutory limitation, and the age of the person.
52 Even if the application of the Framework Decision on the European Arrest Warrant has already succeeded in many cases and has, for example, decreased the time taken to surrender a person to another Member State from more than nine months to an average of two to six weeks, there are still problems which have to be solved. Some Member States modified the temporary applicability of the Framework Decision on the European Arrest Warrant, or introduced reasons for refusal of surrender which are not listed in the Framework Decision on the European Arrest Warrant—such as political or fiscal reasons, reasons of national security, or the examination of the merits of a case—or the governments influence the judicial decision in a political manner. A report submitted to EU Justice Ministers in summer 2009 illustrates striking differences in the level of use of the European Arrest Warrant by Member States and the number of people actually arrested (only 13%) and delivered to the requesting State (only 10%; cf Bulletin Quotidien Europe No 9956 [5 August 2009]). Recently, problems of a different kind arose: A Polish national, prosecuted in Poland for drug trafficking and arrested in Ireland on the basis of a European Arrest Warrant, opposed his surrender relying on the Commission’s reasoned proposal of 20 December 2017 regarding systemic deficiencies concerning the independence of the judiciary and the rule of law in Poland (COM(2017) 835 final). Upon reference by the Irish High Court, the European Court of Justice (‘ECJ’) ruled that the executing authority must determine precisely whether, having regard to the requested person’s situation, the nature of the offence, and the factual context, there are substantial grounds for believing that that person will risk a breach of the fair trial guarantee (Case C–216/18 PPU [25 July 2018] ECLI:EU:C:2018:586) (European Union, Court of Justice and General Court). In his Opinion of 30 April 2019 in Joined Cases C–508/18 and C–82/19 PPU ([30 April 2019] ECLI:EU:C:2019:337) the Advocate General held, upon reference from two Irish Courts, that officials of German public prosecution offices do not qualify as ‘judicial authority’ under Art. 6 Framework Decision on the European Arrest Warrant, because they must comply with the official instructions of their superiors. Other courts in Ireland and the UK had decided differently (cf Assange v The Swedish Prosecution Authority [2012] UKSC 22).
53 According to Art. 31 (2) Framework Decision on the European Arrest Warrant, Member States may continue to apply and to conclude bilateral or multilateral agreements or arrangements,
in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants.
It is for the States to decide if they extend among themselves the scope of the Framework Decision on the European Arrest Warrant in order to maintain the previous rule of their law. The Member States of the Treaty concerning Extradition and Mutual Assistance in Criminal Matters (‘Benelux Convention’) have made no statements indicating that the Benelux Convention has become obsolete, whereas Denmark, Finland and Sweden, parties to the Helsinki Treaty of 1962, stated that they will continue the application of their own uniform legislation of 1959 (Sweden) and 1960 (Denmark and Finland) in so far as it allows the Framework Decision on the European Arrest Warrant to be extended and simplifies the procedure for surrender.
54 The States of Eastern Europe have adopted their own treaties for extradition. The multilateral Minsk Convention includes extradition provisions in its Section IV. The convention was ratified by the Member States of the Commonwealth of Independent States (CIS)—Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. On 28 March 1997 in Moscow, the Member States of the CIS (except Turkmenistan) signed the Protocol to the Convention on Legal Aid in Civil, Family and Criminal Cases. It entered into force on 17 September 1999, binding Armenia, Belarus, Kazakhstan, Moldova, Russia, Tajikistan, and Ukraine, and simplifies the collaboration between the judicial authorities of the States Parties.
55 The Chisinau (or Kishinev) Convention on Legal Aid and Legal Relations on Civil, Family and Criminal Cases was signed on 7 October 2002, and came into force on 27 April 2004. Azerbaijan, Belarus, Kazakhstan, and Kyrgyzstan ratified it. The Chisinau Treaty extends the circumstances in which extradition may occur between the CIS countries.
(b) Africa
56 The Agreement concerning the Extradition of Fugitive Offenders of the League of Arab States (LAS) was opened for signature on 3 November 1952 and entered into force on 28 August 1954 for Egypt, Jordan, and Saudi Arabia. Detailed provisions for extradition are also contained in the Arab Convention for the Suppression of Terrorism of 1998, although with the usual exceptions.
57 The general Convention on Cooperation in Judicial Matters of the former Organisation Commune Africaine et Malgache of 12 September 1961, signed by 12 of the 14 former French territories in Equatorial and West Africa, entered into force, as far as can be seen, for Burkina Faso, Benin, Gabon, and Madagascar (see also Regional Co-operation and Organization: African States).
58 The Convention on Extradition in the frame of the Economic Community of West African States (ECOWAS) of 6 August 1994 was signed by 15 Member States and shall enter into force upon ratification of nine States.
(c) The Americas
59 Several multilateral extradition treaties have been concluded within the Inter-American system, sometimes overlapping and some probably being inoperative: the Treaty of Extradition and Protection against Anarchy of 28 January 1902, signed by nearly all American States, was ratified only by Costa Rica, El Salvador, Guatemala, and Mexico. The Caracas Agreement on Extradition of 18 July 1911 was ratified by Bolivia, Colombia, Ecuador, Peru, and Venezuela. The Central American Convention on Extradition of 7 February 1923 was ratified by Costa Rica, El Salvador, Guatemala, Honduras (who withdrew in 1953), and Nicaragua. A follow-up convention adopted on 12 April 1934 has never entered into force. The Bustamante Code was ratified by 15 Latin American States. The Montevideo Convention on Extradition of 26 December 1933 was ratified by 12 American States including the United States of America. The Inter-American Convention on Extradition of 25 February 1981 was signed by 11 Latin American States. It entered into force on 28 March 1992. As of April 2020 it has been signed by 14 States and ratified by six States.
E. Evaluation
60 Undoubtedly, extradition is at present the most effective means of cooperation between States in criminal matters and extradition treaties will remain of primary importance as the only source of a State’s duty to extradite, whereas criminal prosecution—on the basis of aut dedere aut iudicare—for cases where extradition has failed remains of little practical importance, if only on grounds of technical difficulty. Recent efforts to conclude specific agreements on the transfer of criminal proceedings and the execution of foreign criminal judgments might, however, shift the relative weights of the different components of mutual assistance in criminal matters. Until then, extradition relations of whatever kind should, as the resolution New Problems of Extradition of the Institut de Droit international emphasizes, be expanded as indispensable in times where alleged offenders from justice take ample advantage of rapid means of transport and diminished border controls. The elaboration of extradition relations in detail depends to a great extent on the relations between the respective States in general and on the mutual confidence in their legal and judicial systems in particular. Extradition relations between States having comparable legal orders and sharing the same values will and should be closer and more flexible, and fewer exceptions and safeguards should be needed (see eg the Framework Decision on the European Arrest Warrant). Where greater differences exist between States, more safeguards are necessary; in some instances States would be best advised to refrain from entering into general extradition agreements—which often confine themselves to minimum standards abstaining from providing the necessary details and being subject to reservations—and instead to grant extradition, when appropriate, on an ad hoc basis subject to the rules of the domestic extradition law of the requested State, or on bilateral extradition treaties, which are more flexible in this respect. Art. 33 Inter-American Convention on Extradition, leaving it to the States Parties to decide whether the Convention shall supersede multilateral or bilateral treaties in force (Treaties, Conflicts between), strongly supports this view, while Art. 28 European Convention on Extradition appears to be too narrow in allowing only for supplementary agreements.
