«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 ...»
For example, some nations, such as the United States, recognize a protective principle of territoriality. This principle provides the requisite jurisdiction for crimes such as tax evasion and conspiracy to commit an offense, which are committed outside the territory but somehow have an effect within the territory. 89 Despite the prevailing practice of most treaties to refer to the locus in quo of the initial offense, questions of territoriality may nevertheless provide additional obstacles to surrender. 9°
Dual Criminality b.
The second provision typically found in extradition treaties is dual, or double criminality. 91 This provision states that the act for which extradition is sought, in addition to being a crime in the requesting nation, must be considered a crime in the requested nation as well. 92 The offense must also be included in the list of offenses found within the treaty. In the U.S. - Swiss Treaty, Article II specifically lists several extraditable offenses, including murder, arson, robbery and counterfeiting.9" If the
85. Buser, supra note 5, at 362.
86. U.S. -Swiss Treaty, supra note 84, at 1928-29 (emphasis added).
87. Buser, supra note 5, at 363.
88. Id. at 364.
89. See generally United States v. Pizzarusso, 388 F.2d 8, 8 (2d Cir. 1968), petition for cert. denied, 392 U.S. 936 (1968).
90. See id. at 363; see also Wise, supra note 3, at 712.
91. See Buser, supra note 5, at 364.
93. U.S. - Swiss Treaty, supra note 84, at 1929-30.
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REGENT UNIVERSITY LAW REVIEWoffense for which extradition is sought is considered criminal under the laws of both states, as well as being listed in the treaty, the element of dual criminality has been met. Although some treaties have remained silent on this issue, most nations require this provision to be included within the treaty.
A problem with the doctrine of dual criminality is that extradition may not be allowed for offenses not specifically included within the treaty. Thus, if the offense is a crime under the laws of both nations, but is not specifically characterized by both nations as one of the offenses listed in the treaty, then extradition may not occur. 95 The potential for such injustice is evidenced by the Dunster case, where Great Britain refused to extradite a couple that had assisted in the kidnapping of their daughter's children from the United States to Great Britain.
Since the crime of kidnapping as characterized by the United States, was not similarly characterized as such in Great Britain, extradition was denied.Y However, not all states adhere to such a strict interpretation of dual criminality. 98 Significant changes in recent times have occurred by switching from the enumerative approach, which specifically lists those offenses which are extraditable, to a broader listing according to the nature or type of offense. 9 For example, recent treaties provide for extradition of all crimes or offenses that are punishable under the laws of both nations by imprisonment of greater than one year. 1 In addition, recent treaties add conspiracies and attempts to the list of offenses, which broadens the scope and ultimate deterrent effect which extradition treaties may impose. 101
The U.S. - Swiss Treaty uses the following language to describe specialty: "[n]o person surrendered by either of the
94. M. Cherif Bassiouni, InternationalExtradition:A Summary of the Contemporary American Practice and a Proposed Formula, 15 WAYNE L. REV. 733, 742 (1969).
95. See Barnett, supra note 73, at 300-01.
96. Act Charged, a Crime in Both Countries, 6 WHITEMAN DIGEST S 13, at 775-776 (1968).
98. Barnett, supra note 73, at 301 n.120.
99. SHEARER, supra note 2, at 133-34.
100. Barnett, supra note 73, at 305.
101. Id. at 306-07.
Contracting States to the other shall be prosecuted or punished for any offense committed before the demand for extradition other than that for which the extradition is granted." 1 In other words, the requesting state may prosecute only for offenses for which the subject was extradited. If the requesting nation later decides to prosecute the subject on an offense for which he was not extradited, it must give the subject sufficient time to leave the state before initiating the proceedings. 1 3 An exception to this doctrine allows the requesting state to prosecute for actions committed after extradition has occurred. 0 4 In addition, the criminal fugitive may be extradited and tried for a crime other than that for which he was extradited if the requested country consents, or waives the doctrine of specialty. 1 5 Article IX of the U.S. - Swiss Treaty contains a similar statement: "[n]o person surrendered by either of the Contracting States to the other shall be prosecuted or punished for any offense committed before the demand for extradition, other than that for which the extradition is granted, unless he expressly consents to it in open Court...."1 Although the party providing the consent in this case is the individual subject to extradition and not the requested country, the underlying proposition remains that the doctrine of specialty may be waived.
The main purpose of the specialty doctrine is to enable the requested state to regulate the extradition proceeding of the requesting state. 1 7 The doctrine of specialty prevents "faked extraditions" for crimes which might not otherwise be extraditable, such as political offenses. 0 8 In this light the doctrine of specialty provides an extra layer of protection for individual rights and liberties.
The fourth provision typically found is a statute of limitations covering the offense for which extradition is sought. 1°9
102. U.S. - Swiss Treaty, supra note 84, at 1932.
103. Buser, supra note 5, at 364-65.
104. See M. Bassiouni, supra note 94, at 749.
105. United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986) (quoting Berenguer v. Vance, 473 F. Supp. 1195, 1197 (D.D.C. 1979)).
106. U.S. - Swiss Treaty, supra note 84, at 1932 (emphasis added).
107. Buser, supra note 5, at 365 n.56.
108. See M. Bassiouni, supra note 94, at 749.
109. See Barnett, supra note 73, at 307-08.
HeinOnline -- 3 Regent U. L. Rev. 57 1993 REGENT UNIVERSITY LAW REVIEW [Vol. 3:43 Article VIII of the U.S. - Swiss Treaty states that extradition shall not be granted when, "[u]nder the laws of the State upon which the requisition is made, or under those of the State making the requisition, the criminal prosecution or penalty imposed is barred by limitation." 110 Thus, the courts of the requested country must determine if the applicable statute of limitations has expired in either the requested or requesting nation. If the applicable statute has run, the magistrate may deny certification.
Problems typically occur when the action is expunged, forgiven, or otherwise erased from the records of the state where the offense occurred. The statute of limitations may expire in one country, and not in the other.11' For example, India applies a case by case approah for non-capital offenses, applying no statute of limitations. This would potentially create a problem with a nation such as the United States that did apply a statute of limitations for non-capital offenses.
Recent developments appear to solve this problem by making the issue of the statute of limitations of the requested nation irrelevant, focusing instead on the statute of the requesting nation. These changes enable requesting nations to effectively combat specific crimes and offenses which may not receive similar attention in other states. 113
e. Political Offense Exception
The fifth provision is the political offense exception.1 4 This well-known provision, found in Article VII of the U.S. - Swiss Treaty, simply provides that extradition will not be granted for certain "[plolitical or religious crimes or offenses." 115 Such crimes and offenses against a harsh government or regime are often viewed as more just than the typical crimes against humanity.
Underlying this provision is the assumption that the subject will not receive due process or fair and equal treatment if returned to the requesting state."
The noble and ideal objectives set forth by this exception have not been fully realized, mainly because the decision whether
to apply this exception ultimately rests with the asylum state, a state which carries its own political affinities and biases. 117 As a result, a requested state may be more willing to overlook the applicability of this exception when the requesting state holds similar political ideologies. 11 However, even where the exception might be applicable, the requested state must first determine what crimes and offenses are contained in the terms "political or religious," since most treaties, including the U.S. - Swiss Treaty, fail to give any indication of what these crimes entail. 1 9 Further, the requested state must determine which of the three most common tests to apply: the French Objective Test, the Swiss Proportionality Test, or the American Incidence Test. 12° Thus, even if the requested state determines that this provision is applicable to the case at hand, it still must deal with the inherent intricacies of this exception.
Surrender of Nationals f.
The sixth and final provision that is typically found in modern extradition treaties involves the decision by the requested state of whether or not to extradite its own nationals.
As a general rule states are not obligated to surrender their nationals.' 22 The U.S. - Swiss Treaty provides that, "[neither of the two Governments...shall be required to surrender its own citizens."' 23 The reason for refusing to surrender nationals stems from a special duty of each nation to protect its citizenry. Each citizen is said to possess the right to remain undisturbed and free from outside interference while in his homeland. 24 The lack of similar forms of justice and comparable criminal laws provide additional resistance to this practice. Punishment from state to state often varies greatly such that individual rights and liberties cannot be guaranteed upon extradition.
117. See id. at 746.
118. See id. at 748; see generally SHEARER, supra note 2; See M. BASSIOUNI, supra note 2.
119. See, e.g., U.S. - Swiss Treaty, supra note 84, art. VII, at 1932.
120. Quinn v. Robinson, 783 F.2d 776, 794-95 (9th Cir. 1986) (for a more thorough discussion of each test).
121. See Barnett, supra note 73, at 308-10; see also M. Bassiouni, supra note 94, at 749-50.
122. See Barnett, supra note 73, at 308.
123. U.S. - Swiss Treaty, supra note 84, art. I, at 1929.
124. See SHEARER, supra note 2, at 95, 98, 105, 107, 117-21.
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REGENT UNIVERSITY LAW REVIEWOn the other hand, those in favor of granting extradition of nationals argue that an offense committed is an offense against the nation in which it was committed, not the state of nationality.
Therefore, regardless of nationality, the country where the of- 6 fense was committed is the most appropriate forum for justice.
Clearly, the question regarding the extradition of nationals is filled with debate. Recent treaties attempt to calm the waters by providing that the requested state has the discretion to extradite its nationals if it so chooses. 127 If extradition of a national is then denied, the treaty typically requires that the prosecuting authorities of the requested nation initiate proceedings against the fugitive. 128 As a result of these recent developments it has become more difficult for the fugitive-national to escape the long-arm effects of extradition.
Why Extradite by Treaty?
Several reasons have been suggested for a state's decision to extradite by treaty. Many are directly parallel to those factors considered when deciding whether to extradite without the use of a treaty.' 29 First, economic interdependence plays a significant role in determining whether to enter into an extradition treaty with another nation. When one state wishes to maintain good relations with another state it often acquiesces to that nation's request to enter into a treaty. Second, a nation may choose to enter into a treaty as a symbol to the world of its continued support of individual rights, as well as the suppression of common criminality. This serves a nation's interests by gaining favor and reputation within the world community. Along these lines, extradition through the use of a treaty decreases recidivism of criminals who flee to nations that will not extradite to another state in the absence of a treaty.13° Nations choose to extradite by treaty for the same basic reasons nations choose to extradite without a treaty: self-interest, convenience and overall practicality. The willingness to enter into an extradition treaty may also depend on the various political
126. See id. at 98, 121-25.
127. See Barnett, supra note 73, at 309; see also Buser, supra note 5, at 365-66; M.
Bassiouni, supra note 94, at 750.
128. Barnett, supra note 73, at 309-10.
129. See supra part III.A.2.
130. See SHEARER, supra note 2, at 3, 9-10.