International Extradition: A Guide To U.S. And International Practice

• Published date: 13 November 2020
• Subject Matter: Government, Public Sector, International Law, Criminal Law, International Courts & Tribunals, Human Rights, Crime
• Law Firm: Arnold & Porter
• Author: Ms Amy Jeffress, Samuel M. Witten and Kaitlin Konkel

Introduction

The U.S. government's efforts to extradite Julian Assange from the United Kingdom have prompted broad discussion of'and questions about'the law and practice of international extradition.¹ A decision in the Assange case is expected early next year.² Other recent well-publicized international extradition cases include those of Omar Ameen, an Iraqi refugee in the United States whom Iraq sought on what critics call a questionable murder charge.³ Mullah Krekar, an Iraqi Kurdish cleric extradited from Norway to Italy following his conviction in Italy for leading a jihadist group;⁴ and Emilio Lozoya, the former chief of the Mexican state oil firm Pemex, who was arrested in Spain earlier this year as Mexico prepared to seek his extradition on corruption charges.⁵

For each of these well-known cases handled by authorities around the world, however, U.S. diplomatic and law enforcement authorities deal with dozens of important but lower-profile requests for extradition'both to and from the United States'as part of the regular work of international law enforcement cooperation.

The process by which the United States evaluates these incoming and potential outgoing extradition requests may be unfamiliar to some practitioners. This Advisory is meant to provide a basic primer for those interested in understanding the law and practice of international extradition, with a focus on the U.S. process. It first addresses the basic elements common to most bilateral extradition treaties. Next, it describes the process for extradition to and from the United States. Finally, it discusses some of the defenses most commonly raised in extradition cases, along with suggestions for handling such matters to achieve the best results for individuals facing potential extradition.

General Overview of Extradition Treaties

Extradition treaties are intended to operate like contracts and obligate the parties to arrest and surrender a person to a foreign treaty partner upon request, provided that the treaty's requirements are met and no exceptions apply. Extradition treaties are individually negotiated and may vary in order to accommodate the legal systems and priorities of the negotiating countries, but they generally share common elements. They establish requirements for both the country sending the extradition request (the "requesting state") and the country receiving the request (the "requested state").

The United States has extradition treaties with more than 100 countries.⁶ U.S. extradition proceedings are also subject to the requirements of U.S. statutory law, most importantly those codified at 18 U.S.C. ' 3181 et seq. In general, the United States will extradite an individual to another country only under the authority of a bilateral extradition treaty with that country,⁷ but it will accept fugitives from other countries whether based on a bilateral extradition treaty, the provisions of a multilateral convention,⁸ or other means of return.⁹

We discuss the elements common to most extradition treaties below.

Extraditable offenses. All treaties include provisions defining which crimes are extraditable. Treaties agreed upon prior to the 1970s typically contain a negotiated list of specific extraditable offenses (such as "murder," "manslaughter," or "larceny") and permit extradition only for the crimes that are listed in the treaty. Modern treaties have largely done away with these lists, however, and use a "dual criminality" approach instead.¹⁰ This more flexible approach examines the conduct that serves as the basis for the request.¹¹

Exceptions to extradition. Every extradition treaty contains exceptions to the parties' extradition obligations. The most common exceptions include:

• Political offenses. These provisions are aimed at crimes such as treason, espionage and other offenses that could be used to target political opponents or otherwise cause the requested state to become entangled in the domestic politics of the requesting state. To clarify and limit the contours of the "political offense" exception, most U.S bilateral treaties now exempt violent conduct such as bombings and hostage-taking from the exception, even if the individual sought for extradition asserts that the conduct in question was political in nature.¹²
• Nationality. Many countries refuse to extradite their own nationals, and where that position prevails in negotiations, an extradition treaty may include an exception for this policy. The U.S. government has long held the view that nationality should not operate as a bar to extradition, since the requesting state should have the right to pursue criminal charges against persons who violate its laws regardless of nationality. The U.S. government accordingly extradites its nationals and seeks to limit nationality-based denials of its outgoing requests.¹³ In addition U.S. statutory law expressly permits the Secretary of State to surrender a U.S. citizen to a foreign country when the extradition judge has issued a certification of extraditability and "the other requirements of [the applicable] treaty or convention are met."¹⁴
• Prior proceedings (non bis in idem). These provisions, which appear in most extradition treaties, bar extradition where the person has already been convicted or acquitted in the requested state of the offense for which extradition is requested.¹⁵ The concept is similar to the U.S. doctrine of "double jeopardy."
• Capital offenses. Although the United States tries to limit the application of this exception in its bilateral extradition treaties, many treaties contain provisions permitting the requested state to demand assurances that the death penalty will not be sought or imposed.¹⁶ For example, the U.S.-South Africa treaty provides that "[w]hen the offence for which extradition is sought is punishable by death under the laws in the Requesting State, and is not punishable by death under the laws in the Requested State, the Requested State may refuse extradition unless the Requesting State provides assurances that the death penalty will not be imposed, or if imposed, will not be carried out."¹⁷
• Rule of specialty. The doctrine of specialty provides that "the requesting state may, after the fugitive has been surrendered to it, prosecute or punish the fugitive only for the crime or crimes for which extradition was granted, subject to certain exceptions."¹⁸ A common modern formulation of this doctrine, as explained by the U.S. Senate Committee on Foreign Relations in its report on the U.S. extradition treaty with Cyprus, is that "a person extradited under the Treaty may only be detained, tried, or punished in the Requesting State for: (1) the offense for which extradition was granted or a differently denominated offense based on the same facts, provided the offense is extraditable or is a lesser included offense; (2) an offense committed after the extradition; or (3) an...