«Imagine yourself as the leader of a nation. Three weeks ago in a foreign country, Mrs. X, a national of that country, took part in the murder of her ...»
EXTRADITION: EVALUATING THE
DEVELOPMENT, USES AND OVERALL
EFFECTIVENESS OF THE SYSTEM
Imagine yourself as the leader of a nation. Three weeks ago
in a foreign country, Mrs. X, a national of that country, took
part in the murder of her own father. Sometime later Mrs. X
escapes from jail and flees to your country, where she begins taking part in various illegal activities. After being captured for violating the laws of your country, Mrs. X's country immediately requests her return. Soon thereafter, agents of your government enter a plea agreement with Mrs. X and tell her that if she cooperates by testifying in other proceedings, she will not be surrendered to her country. To make matters worse, your country is in the process of sensitive negotiations with another country, negotiations in which Mrs. X's country represents your country.
What do you do? Do you grant extradition, or do you pursue some other means of surrender?
This scenario is based on the case of Josette Bauer, who was extradited by the United States to Switzerland in 1981.1 It illustrates the various questions nations must face when deciding whether to grant final surrender of a fugitive criminal. As the scenario indicates, there are no easy answers - a myriad of political, social and judicial factors play a crucial role in shaping the final outcome.
This note will examine the development of extradition throughout the centuries, both with and without the use of mutual extradition treaties. Further, it will examine various "disguised" or alternative methods to extradition and determine what, if any, advantages they have over traditional extradition. Finally, it will discuss several proposals that have been recommended for correcting the current traps and pitfalls of extradition, and whether these proposals are realistically capable of providing the necesIn re GEISSER, 627 F.2d 745, 746 (5th Cir. 1980).
HeinOnline -- 3 Regent U. L. Rev. 43 1993 REGENT UNIVERSITY LAW REVIEW [Vol. 3:43 sary changes for salvaging the system. The underlying theme throughout this note considers whether the present system of extradition has failed to meet the expectations reasonably demanded of it; namely, that of effectuating final surrender of criminal fugitives with the intention of administering justice.
II. EXTRADITIONA. Definition Extradition - from the Latin word extradere, meaning forceful return of a person to his sovereign - is the process whereby one nation, upon request by another nation, surrenders an individual found within its territory who has been charged with a criminal offense in the requesting state. 2 In essence, the underlying goal or purpose of extradition is the final surrender of a criminal fugitive for the purpose of administering "justice." Final surrender further serves the basic concepts of fair play and the protection of national, as well as international interests. Therefore, while extradition may serve such ends as political necessity, its primary purpose is to ensure the swift and effective administration of justice.3 Extradition is distinguishable from other means of surrender in that it involves a conscious effort to return an individual to the jurisdiction in which his crime was committed. 4 Another distinguishing feature of extradition is the principle of reciprocity, which means that if one state extradites a fugitive criminal to another state, that state will return the favor by extraditing a fugitive criminal at some point in the future. 5 Reciprocity may
2. M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION & WORLD PUBLIC ORDER 3(1974).
Extradition has always been considered contrary, or an "extra-tradition" to the practice of granting asylum and hospitality; thus giving indication to the formulation of its name. Id. at 3. The usage of the word extradition, however, did not appear until the first part of the 19th century. I. A. SHEARER, EXTRADITION IN INTERNATIONAL LAW 12 (1971). For example, in the United States, extradition as a term of art did not become officially recognized until
1848. And in England, it would have to wait until 1870 before finally becoming a common fixture in Parliamentary circles. Id.
3. See Edward M. Wise, Some Problems of Extradition, 15 WAYNE L. REV. 709, 709 (1969).
4. See M. BASSIOUNI, supra note 2, at 3.
5. See Wade A. Buser, Note, The Jaffe Case & the Use of InternationalKidnapping as an Alternative to Extradition, 14 GA. J. INT'L. & COMP. L. 362 (1984).
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be secured in one of two ways: first, by the formation of a treaty, or second, through guarantees based on comity, courtesy and good will.6 Extradition by treaty establishes a legal duty and obligation to reciprocate at some point in the future. 7 In the absence of a treaty, reciprocity is based on principles of good will and comity. 8 Thus, although the principle of reciprocity is not expressly stated, it nevertheless remains an integral part of the overall process, both with and without the use of a treaty.
International extradition is an "institutional practice" whereby the requesting and requested governments are viewed as the subjects of its regulation, and the individuals are viewed as the subjects of its outcome. 9 Any restrictions or limitations included in the process are primarily implemented for the benefit of the states, not the individuals. Thus, extradition is mainly an inter-governmental practice where the fate of the individual is ° placed at the mercy and good will of the respective nations.1 The working definition of extradition includes several "interlocking factors" which contribute to its conceptual framework for analysis." First, national interests of the requesting and requested state must be weighed and balanced to provide the most favorable benefits for each state. Second, an international duty to preserve and maintain public order must also be considered. Third, application of certain minimum standards of fairness must be applied to the individual so as to insure the existence of certain fundamental rights. Finally, there is a collective duty among all nations to combat or suppress criminal conduct. 2 These factors and competing interests add meaning to this practice and shed light on the difficult questions that each nation must attempt to resolve when faced with a request for extradition.
Extradition can be traced as far back as the Egyptian, Chinese, Chaldean and Assyro Babylonian civilizations.1 3 While one author suggests that treaties or agreements for extradition
date back as early as 1496 B.C., the earliest known recorded extradition treaty was signed around 1280 B.C. between Ramses II of Egypt and Hattusili III, the Hittite Prince. 14 This treaty provided for the return of criminals found within the territory of one nation that had violated the laws of the other. Although it is unknown whether any criminals were surrendered under this treaty, it nevertheless remains the oldest monument to the institution of extradition. 15 After these early beginnings little attention was paid to extradition until its resurgence with the Roman Empire around 400 - 100 B.C.' 6 Most infamous during this period was Rome's request for extradition of Hannibal from Syria in accordance with the treaty ending the war between the two nations. 17 An interesting feature of Roman law during this time permitted extradition of Roman nationals for offenses against ambassadors who I were present in Roman territory at the time of the offense.
The next significant historical period was the 17th century. 19 Extradition during this time consisted mainly of the delivery of political or religious dissidents, with the national interests of the state taking precedence over any concern for world order. 20 Extradition was viewed mainly as an act of friendship or comity between the nations. In fact, surrender of fugitives often occurred without solicitation. 21 Leaders were more likely to voluntarily surrender fugitives for offenses involving political or religious crimes than any other offenses. As a result, the common criminal received little attention during this time and was often considered a "second class citizen" under the system. 22 In the 18th and 19th centuries the focus shifted to the suppression of common criminality. 23 Prior to this time, the suppression of criminality was of little concern for neighboring states. Escape from a home city was exceptional. It often meant 24 a hard and uncertain life away from family, friends and country.
Transport was slow and marked with many dangers. It was much safer for the criminal to take his chances at home than to seek refuge abroad. 25 Additionally, there was a sense that crimes committed in a certain country were the problem and concern of that country alone. In other words, criminality was best punished at home without the aid of outside interference.2 An additional limiting factor was the harshness of criminal law. Countries were less willing to restore a fugitive to a requesting country where laws were brutal or extremely unjust.Y With the advancement of travel and technology, however, the isolationism that once marked foreign relations would no longer remain practical.0 Many of the factors that had placed the suppression of criminality in the background - such as the inability to travel great distances in a short period of time, and the lack of an efficient means of global communication - would no longer present an obstacle to mobility.2 A new sense of international cooperation was needed to combat the expanding nature of criminality. This growing sense of cooperation would be evidenced by an onslaught of mutual extradition treaties in the 18th and 19th centuries. One such treaty, often viewed as the first extradition treaty of the modern era, was Jay's Treaty in 1794.30 Although limited to the crimes of murder and forgery, this treaty between the United States and Great Britain would serve as a framework for future treaties, leading to many of the features and characteristics that are presently found in treaties of extradition. 31 Since 1948 there has been a growing concern for the preservation of world order and the protection of individual human rights.3 2 The rise of humanitarian international law would place certain limitations on a state's right to extradite.3 Still of major concern, however, was the suppression of common criminality, evidenced by the continual increase in the formation of mutual extradition treaties.3
27. Id. at 10-11.
28. See id. at 7-8.
29. See M. Cherif Bassiouni, International Extradition in American Practice and World Public Order, 36 TENN L. REV. 2 (1968).
30. See id. at 2-3.
31. SHEARER, supra note 2, at 11-16; see also BUSER, supra note 5, at 360. See infra text accompanying notes 86-126 for the typical features found in extradition treaties.
32. M. BASSIOUNI, supra note 2, at 4-5.
33. See SHEARER, supra note 2, at 16-19.
34. Id. at 34-43.
The two most common means of extradition are: extradition in the absence of a treaty, and second, extradition through the use of a treaty. Other means exist which effectuate final surrender yet are considered alternatives or substitutes to the traditional practice of extradition.35
A. Extradition in Absence of Treaty
Only a few countries in the world possess no extradition treaties whatsoever. However, several countries possess only a handful of such treaties, choosing not to practice extradition by treaty with certain countries for any one of several reasons to be discussed below.
Evidence for extradition in the absence of a treaty is found as early as 1880, in a resolution by the Institute of International Law.37 Furthermore, certain legal scholars recognize an obligation to extradite fugitive criminals regardless of the presence of a treaty.3 Today, most civil law states add support to this position and recognize final surrender absent a treaty as a valid form of extradition.3 9 In comparison, common law countries such as the United States and Great Britain show greater reluctance in granting extradition in the absence of a treaty. According to their view, no absolute duty to extradite exists absent a specific treaty obligation.
Those states which do extradite in the absence of a treaty will often require a guarantee of reciprocity before surrendering a subject. For example, on July 30, 1872, the Circulaire of a French Minister of Justice stated that, "on the basis of reciprocity extradition might take place in the absence of a treaty.....,41 The German extradition law of 1929 also states that extradition 42 absent a treaty will not occur unless recripocity is guaranteed.
35. Id. at 67.
36. M. BASSIOUNI, supra note 2, at 10. See infra part III.A.2.
37. Id. at 10-11.
38. See SHEARER, supra note 2, at 20, 23, 68; see also Extradition Without Treaty, 4 MOORE INT'L. L. DIGEST S 580, at 245 (hereinafter MOOREI.
39. M. BASSIOUNI, supra note 2, at 9-15.
40. Id. at 11.
41. SHEARER, supra note 2, at 25-26.
42. M. BASSIOUNI, supra note 2, at 11.
Until such a guarantee is forthcoming, final surrender will not take place. 3 Such provisions as those found in the French and German systems provide a wall of protection against the future bad faith activity of a requesting nation.