Extradition

Extradition, in international law, the process by which one state, upon the request of another, effects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge. Extraditable persons include those charged with a crime but not yet tried, those tried and convicted who have escaped custody, and those convicted in absentia. The request distinguishes extradition from other measures—such as banishment, expulsion, and deportation—which also result in the forcible removal of undesirable persons.

According to the principle of territoriality of criminal law, states do not apply their penal laws to acts committed outside their boundaries except in the protection of special national interests. In helping to suppress crime, however, states generally have been willing to cooperate in bringing fugitives to justice.

Extradition is regulated within countries by extradition acts and between countries by diplomatic treaties (see treaty). The first act providing for extradition was adopted in 1833 by Belgium, which also passed the first law on the right to asylum. Extradition acts specify the crimes that are extraditable, clarify extradition procedures and safeguards, and stipulate the relationship between the act and international treaties. National laws differ greatly regarding the relationship between extradition acts and treaties. In the United States, extradition may be granted only pursuant to a treaty and only if Congress has not legislated to the contrary, a situation that also exists in Britain, Belgium, and the Netherlands. Germany and Switzerland extradite without a formal convention in cases where their governments and the requesting state have exchanged declarations of reciprocity. Although there has been a long-standing trend toward denying extradition requests in the absence of a binding international obligation, fugitives are sometimes surrendered by states on the basis of municipal law, or as an act of goodwill. Nevertheless, countries that do not have extradition agreements with certain other countries (or in regard to certain types of offense) have been considered safe havens for fugitives.

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Some principles of extradition are common to many countries. For example, many states decline any obligation to surrender their own nationals; indeed, the constitutions of Slovenia and, until 1997, Colombia prohibited the extradition of their nationals. In Argentina, Britain, and the United States, nationals may be extradited only if the governing extradition treaty authorizes it. Another common principle is double criminality, which stipulates that the alleged crime for which extradition is being sought must be criminal in both the demanding and the requested countries. Under the principle of specificity, the demanding state can prosecute the extraditee only for the offense for which the extradition was granted and may not extradite the detainee to a third country for offenses committed before the initial extradition. Although states have recognized certain exceptions to this principle—and some rules allow the extraditee to waive it—it is critical to the exercise of the right of asylum. If the demanding state were permitted to try an extraditee for any offense that suited its purposes (e.g., for a political offense), the right of asylum would suffer under both national and international law.

One of the most controversial issues relating to extradition is the exception for most political offenses, a standard clause in most extradition laws and treaties that provides the requested state with the right to refuse extradition for political crimes. Although this exception arguably has acquired the status of a general principle of law, its practical application is far from settled. The evolution of international law and the development of a nearly universal consensus condemning certain forms of criminal conduct have restricted the principle’s scope so that it now excludes the most heinous of international crimes—e.g., genocide, war crimes, and crimes against humanity. Apart from these and a few other cases, however, there is very little agreement on what constitutes a political crime, and states can thus exercise considerable discretion in applying the political offense exception.