GIR Know How Extradition -- United States

1 Are extradition proceedings regulated by domestic legislation, treaties or both?

US extradition proceedings are regulated by both treaty and US domestic legislation. In general, the United States will extradite an individual to a foreign country only when (1) an applicable bilateral extradition treaty is in place, (2) all the requirements of the treaty are met, and (3) none of its exceptions apply. US extradition treaties are individually negotiated, and the extradition analysis turns on the provisions of the particular treaty in question. Proceedings also must comply with US statutory law, most importantly the requirements set forth in 18 USC Section 3181 et seq. (see https://www.govinfo.gov/app/details/USCODE-2017title18/USCODE-2017-title18-partII-chap209/summary).

As a matter of US statutory law, extradition generally is possible 'only during the existence of any treaty of extradition with [the] foreign government' (18 USC Section 3181(a)). Section 3181(b) provides a narrow exception authorising the surrrender of persons other than US citizens, nationals or permanent residents who have committed crimes of violence against US nationals abroad, provided the Attorney General makes certain certifications in writing.

2 Is there a central register of extradition treaties that your state has entered into?

The US Department of State compiles an annual publication titled Treaties in Force, which lists treaties and other international agreements 'in force for the United States as of the stated publication date for each edition' (US Department of State, Treaties in Force, https://www.state.gov/treaties-in-force/). Extradition treaties appear under the 'Law Enforcement' heading for each listed country or international entity, and under the 'Law Enforcement' heading for multilateral agreements to which the United States is a party. Although the publication provides basic information about the listed treaties, such as the dates they were signed and entered into force, it does not contain copies of the treaties themselves. In addition, a list of countries with which the United States has extradition treaties appears in the note to 18 USC Section 3181 (see https://www.govinfo.gov/app/details/USCODE2017-title18/USCODE-2017-title18-partII-chap209-sec3181).

Recent US extradition treaties are available on the Department of State website. For older treaties, '[n]o single source contains a comprehensive collection of all treaties and international agreements' (US Department of State, How to Find Treaty and Agreement Texts, https://www.state.gov/texts-of-agreements/). The Department of State website provides guidance on locating agreement texts at https://www.state.gov/finding-agreements/.

3 Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?

The extradition framework set forth in 18 USC Section 3181 et seq. applies to all US extradition relationships, including those with close partners such as Canada and the United Kingdom. The United States enters into extradition treaties with countries with which it has strong law enforcement relationships. In deciding whether to enter into a new extradition relationship, the United States considers factors such as its level of confidence in the fairness and due process protections of the foreign country's legal system.

The United States and its treaty partners periodically update their extradition arrangements to ensure that they continue to meet the parties' needs. For example, in 2003, the United States and European Union signed an extradition treaty (US-EU Treaty) that sets forth streamlined processes for the authentication and transmission of documents, the transmission of requests for provisional arrest and the furnishing of supplementary information, among many other provisions (see Agreement on Extradition, US-EU, articles 5, 6, 8, 25 June 2003, TIAS 10-201). The United States and individual EU member states subsequently entered into separate bilateral instruments to implement these provisions.

4 Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?

When a foreign state is not a bilateral treaty partner, the United States will not extradite to that state based solely on the provisions of a multilateral convention (US Department of State, 7 Foreign Affairs Manual 1613.3(d)). This position is documented in written Notifications to the United Nations and testimony by US executive branch officials to Congress. For example, the United States submitted a formal Notification to the United Nations stating that it would not apply Article 16(4) of the UN Convention Against Transnational Organized Crime, 15 November 2000, TIAS 13127 (the Convention), which provides that governments that 'make[] extradition conditional on the existence of a treaty' - a category that includes the United States - may consider the Convention to be 'the legal basis for extradition in respect of any offence to which this article applies' (see 'United Nations Convention Against Transnational Organized Crime, New York, 15 November 2000, United States of America: Ratification', C.N.1153.2005.TREATIES-23 (Depositary Notification) (15 November 2005), https://treaties.un.org/doc/Publication/CN/2005/ CN.1153.2005-Eng.pdf).

US executive branch officials who testified before Congress in connection with the Convention made representations consistent with this position. See, for example, Hearing on Law Enforcement Treaties: Hearing Before the S. Comm. on Foreign Relations, 108th Cong., 63 (2004) (responses of Samuel M Witten and Bruce Swartz to additional questions for the record submitted by Senator Joseph R Biden) ('The United States would not use the Convention as an independent legal basis for extradition from the United States in cases where the United States has no extradition treaty with another State Party seeking extradition. We will continue our practice of extraditing persons under the authority of bilateral extradition treaties, and will deem offenses under this Convention to be extraditable offenses under such treaties as are in force between State Parties to the Convention.').

5 Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?

The United States will extradite to a foreign state only if the requirements of 18 USC Section 3181 et seq. and applicable treaty provisions are met. It will not extradite pursuant to ad hoc arrangements.

6 For which offences is extradition from your state allowed?

Each US extradition treaty is individually negotiated and each specifies the particular offences for which extradition is permitted under the treaty. Older US extradition treaties typically included a list of extraditable offences, such as theft or kidnapping. For example, the extradition treaty between the United States and Brazil provides that '[p]ersons shall be delivered up according to the provisions of the present Treaty for prosecution when they have been charged with, or to undergo sentence when they have been convicted of, any of the following crimes or offenses' (Treaty of Extradition, US-Brazil, article 2, 13 January 1961, TIAS 5691). The treaty then lists specific crimes, such as murder, robbery and larceny.

Beginning in the 1970s, the United States and other countries shifted away from the use of lists and towards a dual criminality standard. This standard makes an offence extraditable when...