PUBLIC INTERNATIONAL LAW II
(LLB-421)
LECTURE 15
EXTRADITION
AHSAN IQBAL HASHMI
ASSISTANT PROFESSOR, DEPARTMENT OF LAW
OBJECTIVE
• To learn about the concept of Extradition and Asylum in
international law
INTRODUCTION
• It is quite possible for a person to escape to another State after
committing a crime in his own State. Such cases have started occurring
more frequently with the result of the development of air traffic. A
question arises as to whether fugitive shall be tried in the country
where he has fled away or in the State where the crime has been
committed.
• Normally, a State finds itself in a difficult situation to punish a person
who has committed a crime elsewhere primarily because of the lack of
jurisdiction, and therefore, such persons are sometimes surrendered
to the State where the crime has been committed. Surrender of an
accused or of a convict is referred to extradition. Surrender of a person
is opposite to the traditional practice of the States to grant asylum.
EXTRADITION
• Thus, in those cases where the tradition of granting asylum
is not followed, it is known as extradition. Thus, the
surrender of a person is against the established and
traditional practice of the States which started since the
last quarter of the eighteenth century.
EXTRADITION DEFINITION
• The term extradition has derived from two Latin words ex and
traditum. Ordinarily, it may mean ‘delivery of criminals’,
‘surrender of fugitives’ or ‘handover of fugitives’. Extradition
may be defined as the surrender of an accused or a convicted
person by the State on whose territory he is found to the State
on whose territory he is alleged to have committed or to have
been convicted of a crime. According to Oppenheim extradition
is the delivery of an accused or a convicted individual to the
State where he is accused of or has been convicted of, a crime,
by the State on whose territory he happens for the time to be.
TWO STATES IN EXTRADITION
• The above definition makes it clear that there are two
states involved. They are:
• Territorial State
• Requesting State
TERRITORIAL STATE
• Firstly, the territorial state, i.e., a State where an accused
or a convict is found,
REQUESTING STATE
• Requesting State, i.e., a State where the crime has been
committed. A state which demands the surrender is known
as requesting State because a person is surrendered by the
territorial State only upon a request by another state.
REQUEST FOR EXTRADITION
• A request is made normally through the diplomatic
channel. The request for extradition of a person
distinguishes extradition from other measures such as
banishment, expulsion, and deportation where an
undesirable person is forcibly removed.
PURPOSES OF EXTRADITION
SUPPRESSION OF CRIME
• Extradition is the process towards the suppression of
crime. Normally a person cannot be punished or
prosecuted in a State where he has fled away because of
lack of jurisdiction or because of some technical rules of
criminal law. Criminals are therefore extradited so that
their crimes may not go unpunished.
WARNING TO THE CRIMINALS
• Extradition acts as a warning to the criminals that they can
not escape punishment by fleeing to another State.
Extradition, therefore, has a deterrent effect.
RECIPROCITY
• Extradition is based on reciprocity. A State which is
requested to surrender today may have to request for
extradition of a criminal on some future date.
INTERNATIONAL CO-OPERATION
• Extradition is done because it is a step towards the
achievement of international co-operation in solving
international problems of a social character. Thus, it fulfills
one of the purposes of the United Nations as provided
under Para 3 of Article 1 of the Charter.
LAW OF EXTRADITION
• In International law, rules regarding extradition are not
well established mainly because extradition is a topic
which does not come exclusively under the domain of
international.
• Law of extradition is dual law. It has operation in national
as well as international law.
ROLE OF MUNICIPAL COURTS
• Extradition or non-extradition of a person is determined by
the municipal courts of a State, but at the same time, it is
also a part of international law because it governs the
relations between two States over the question of whether
or not a given person should be handed over by one state
to another. This question is decided by the national courts
but on the basis of international commitments as well as
the rules of international law relating to the subject.
CONVENTION GOVERNING
EXTRADITION
• A number of attempts have been made to conclude a convention
governing extradition request among nations. In 1935, the Harvard
Law School prepared a draft Convention on the subject. The
International Law Associated has also considered legal problems
relating to extradition in the Conference held at Warsaw. In 1928 the
Draft Convention on extradition was approved but nothing has
materialized in concluding a universal convention on extradition.
International Law Commission has also not yet taken the topic for its
consideration for codification despite the inclusion of the topic of
extradition in 1949, in its provisional list of fourteen topics for its
codification. It is desirable if a multilateral convention is concluded so
that general rules of International Law may be settled regarding
extradition.
PRINCIPLES REGARDING
EXTRADITION
• Bilateral treaties, national laws of several States, and the
Judicial decisions of municipal courts led to developing
certain principles regarding extradition which are deemed
as general rules of International Law. Important amongst
them are as follows:
EXTRADITION TREATIES
• The first and foremost condition of extradition is the existence of an
extradition treaty between the territorial state and requesting state.
Some states such as the United States, Belgium, and the Netherlands,
require a treaty as an absolute pre-condition. The strict requirement
of an extradition treaty may be regarded as the most obvious obstacle
to international co-operation in the suppression of crimes. Since
extradition treaties are politically sensitive and require careful and
lengthy negotiations, States have few extradition treaties and the
criminal can usually find a safe haven- that is a state which requires a
treaty for extradition and has no such treaty with the State within
whose jurisdiction the crime was committed. it is therefore desirable
that states conclude extradition treaties with as many States as
possible to suppress the crime.
EXTRADITION OF POLITICAL
OFFENDERS
• It is a customary rule of International law that political
offenders are not extradited. In other words, they are
granted asylum by the territorial state.
THE DOCTRINE OF DOUBLE
CRIMINALITY
• The doctrine of double criminality denotes that a crime
must be an offense recognized in the territorial as well as
in the requesting state. No person is extradited unless this
condition is fulfilled.
RULE OF SPECIALTY
• according to this principle, a fugitive may be tried by the
requesting state only for that offense for which he has
been extradited. In other words, the requesting state is
under a duty not to try or punish the fugitive criminal for
any other offense than that for which he has been
extradited unless he has given an opportunity to return to
the territorial state. The rule has been made to provide
safeguard to the fugitives against fraudulent extraditions.
TIME-BARRED CRIMES
• a fugitive criminal shall not be surrendered if he has been
tried and has served sentence for the offense committed
in the territorial state. Thus, extradition is not granted if
the offense for which extradition has to be made has
become time-barred.
EXTRADITION OF OWN
NATIONALS
• In many cases, a person after committing a crime in a
foreign country flees back to his own country. Whether the
State should extradite such persons, i.e., its own nationals,
to a state where crime has been committed is a
controversial point and practice of states considerably
differs on it. Many counties such as the Netherlands,
Belgium, Italy, Germany, Switzerland, and France have
adopted a principle for not extraditing own nationals to a
foreign state.
THANK YOU