Extradition is a broad concept that refers to the formal or unofficial process of transferring a fugitive back to the State where he is currently being tried or has already been convicted for a crime. It is a notion strictly connected to the concept of territoriality and the limitations that burden States associated with apprehending criminals once they have fled an area where that State legitimately exercises its jurisdiction. Since there have been notable cases of informal extraditions based on international courtesy, this article will discuss the legality of such practices and their compatibility with the rule of law and human rights standards.
The fundamental attitude underlying extraditions is related to a common agreement on the international stage that offences should not go unsanctioned and the aut dedere aut judicare doctrine requiring States to either extradite or punish individuals who have committed crimes.
In that sense, since international political and judicial cooperation began emerging, States have been formalizing exchanges of fugitives by means of bilateral treaties. These treaties establish mutual obligations to extradite, with reasons for any refusal of extraditions as well as the bureaucratic formalities that would accompany extradition requests usually formulated via diplomatic channels. Where regular extraditions comprise exchanges of fugitives governed by treaties, irregular extraditions refer to arbitrary exchanges, usually between countries who have not assumed obligations to extradite and thus rationalize these transfers by appealing to the notion of international courtesy. In order to understand why this notion is inadequate and ultimately illegitimate, we must first analyze the concept of rule of law and the paramountcy of extradition treaties.
For the purpose of illustrating the main components of an extradition treaty, I have chosen the USA-Mexico bilateral agreement of 1978. It establishes that extradition shall be granted only when the offence is punished by at least a year of deprivation of liberty, excludes political crimes as grounds for extradition and proclaims that the requested State may refuse to extradite when there is a risk of imposition of capital punishment. Articles 10 to 14 regulate the procedural peculiarities, establishing the possibility of arrest by the requested State for a maximum of 60 days. In reality, most extradition treaties ever signed follow the same outline and rationale as the above mentioned, and although they do not establish any specific individual rights for the fugitive, they create a legal justification for surrender.
In less fortunate situations, a person might also be extradited based on comitas gentium, international courtesy and reciprocity. This is a vague expression that basically translates into political favoritism. Some States, such as Romania, have even incorporated international courtesy in their national judicial cooperation regulations while other States practice it without solemnly absorbing the concept into their laws.
Italy has been known to formulate extradition petitions based on international courtesy with – among others- the Nicaraguan government in the case of Alessio Casimirri and the Thai government in 2012 in the case of Roberto Palazzolo. Moreover, in 2011 a British national was extradited from Thailand by the UAE despite the lack of a formal agreement between the two States and the fact that “a fair trial in the UAE is more unlikely than likely, with access to justice being extremely expensive and trials lasting 15 minutes”.
In 2012, the Islamabad High Court established in the case of Maqsood Ahmed that ‘’ bilateral or multilateral accession to international conventions and international courtesy now form the usual base of extradition’’. Most civil law nations seem to agree and to practice courtesy extraditions in the absence of treaties (except for Netherlands, Zaire, Turkey and Israel) while common law nations seem to reject this view and uphold the idea that in the absence of an agreement, all that remains is merely a moral obligation to surrender the fleeing and deliver justice.
Irregular extradition proceedings are problematic because: they violate the rule of law and leave space for arbitrary extraditions and political subtleties. Note that, for example, in the case of transnational crimes when two or more States would petition the same government for an extradition, in the absence of a treaty the transfer is likely to depend on political afflictions rather than legalities. Moreover, States with less economic and political magnitudes can easily be bullied into surrendering fugitives or worse, can use these individuals as leverage for diplomatic negotiations. A treaty is thus necessary not only to bind States with obligations but to ensure due process and to accommodate the procedural rights of the detainee. Moreover, extradition treaties usually contain specialty provisions that require the fugitive to be prosecuted once extradited only for the crime on which the original petition was based. In the absence of such clauses, fake extraditions for political reasons could be sought, violating thus an extra stratum of individual rights and freedoms.
Another problem is that during both regular and irregular extraditions, fugitives that are apprehended and about to be extradited are protected by the human rights framework of the petitioned State. In most countries, regular criminal courts are competent to deal with extradition claims. The procedure is usually marked by an oral hearing and the decisions are usually subjected to an appeal procedure. In countries that have not signed or ratified the ICCPR or are otherwise severely compromised in terms of implementing the right to fair trial and the guarantees connected with it, the rights of the fugitive can be severely violated. For this reason, when a bilateral agreement is actually signed, I believe that it is absolutely necessary to allocate an extended amount of regulations as well as to design procedural guarantees that are in line with international standards.
Considering that contemporary international relations are supported by legal obligations and the codification process is at its legal historical culmination, it is rather absurd to leave such a sensitive matter in the hands of arbitrariness. All States should work towards strengthening the rule of law and formalizing extradition treaties, promoting legal security and transparency and ultimately preventing international abductions, kidnappings, deportations and human rights violations.