Criminal law is particular to each state. What is unlawful in one state may well be lawful in another. Even when the same actions are criminal in two states, the specific elements of the crime may well differ. Jurisdiction to prosecute a crime is principally based on that crime having occurred within the territory of the state seeking to try the alleged offender. In addressing offenses against individuals or property, such restrictions pose few if any problems. Nevertheless, for centuries states have had to respond when an alleged offender has committed a crime in one state and then fled to another. The law of extradition provides the traditional solution. Extradition is the legal method by which one state surrenders an alleged offender to another state so that the latter can prosecute him or her. It is a discreet and specialized area of law that needs to be explored in a general context before looking at the aspects specific to those accused of genocide or crimes against humanity.
Extradition is more than a method for removing undesirable persons from the territory of a state. Such removal for aliens can be accomplished through deportation, which allows the state to remove those deemed inimical to the public interest. The state has no interest in where a person goes after he or she is deported, although sometimes states use deportation as a form of disguised extradition. Extradition, in contrast to deportation, is based on an agreement between at least two states to surrender suspects to face prosecution. The destination of the individual is fundamental to the process. Furthermore, being based on an agreement between at least two states, it is their interests that determine the nature of the process; the individual concerned is simply an element, although not completely powerless, in that interstate agreement. Originally, extradition agreements were bilateral (meaning they existed between two states), so differences in practice can be found within international extradition law. Most common law states, that is, those with an Anglo-American tradition, for example, require a certain degree of evidence against the alleged fugitive offender, while states adopting the continental European model only look for a warrant, proof of identity, statement of the law, and a brief outline of the facts.
There are two matters that are intrinsic to extradition law. First, the agreement may be bilateral, multilateral, formal, informal, or ad hoc, but it is an interstate mechanism. Thus, surrender to some other entity, such as the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) or to the International Criminal Court (ICC), is not based on extradition but some other mechanism for surrendering the accused. Second, the state making a request must have jurisdiction to prosecute the alleged offender for the crimes that form the basis of the request. This second matter is called the requirement of double criminality and is found in nearly all extradition arrangements. Double criminality provides that extradition shall not take place unless the actions of the accused would constitute a crime within the jurisdiction of both the courts of both the requested and requesting states. The premise for the rule is that states should only surrender someone to another state for behavior that both of them have criminalized, recognizing that criminal law reflects the mores and customs of each state. Although the criminalization of genocide and crimes against humanity may be assumed to be universal, such an assumption needs to be examined in slightly closer detail. Genocide was very precisely defined in the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide in terms of actus reus (act or omission) and mens rea (mental element of the crime). Some states have adopted a broader definition in their domestic legislation, however, and it is only when some convergence exists that one could assume double criminality.
With respect to crimes against humanity, the situation is even less clear because there is, as yet, no universally accepted definition. This is not to suggest that acts commonly described as crimes against humanity would not be criminalized in most states; rather, double criminality is not based on the simple identity of terms. One should look to see if the activities listed in an extradition request are criminalized by the requested state. The difficult cases involve requests made by a state asserting a form of extraterritorial jurisdiction. Not only must the activity be criminalized by both states, but both states must be able to prosecute in regard to the extraterritorial elements of the crime—common law states have a much more restricted capacity to prosecute crimes that did not take place within their territory. Civil law states have jurisdiction over their own citizens for crimes committed anywhere in the world, as well as a much more developed understanding of crimes that threaten the state and universal jurisdiction. Moreover, several have adopted the "passive personality" principle giving a state jurisdiction when the victim is a citizen of the state. The consequence is that the requesting state may well have jurisdiction over acts criminalized in both states, but the requested state would lack jurisdiction because of an extraterritorial element to the crime based on the facts.
Genocide and Crimes Against Humanity
Genocide and crimes against humanity present some particular issues for extradition law. The Genocide Convention states in its Article VI:
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
On the basis of Article VI, until the establishment of the ICC, one could argue that only the territorial state had the authority to prosecute. Custom, however, provides that universal jurisdiction exists over genocide—see the International Court of Justice (ICJ) Advisory Opinion in the Reservations to the Genocide Convention case (1951) and Randall (1988).
Crimes against humanity are more problematic in a legal sense because no universally accepted definition exists. Even the statutes of the ad hoc international criminal tribunals and the ICC do not have uniform definitions. Article 5 of the statute for the International Tribunal for the former Yugoslavia requires that the crime occurred during an armed conflict, but persecution is simply a freestanding crime within crimes against humanity; Article 3 of the statute of the International Tribunal for Rwanda does not require there to be an armed conflict, but the crime has to be committed as part of a widespread or systematic attack and with a persecutory intent; the most recent definition of the crime in an international instrument, Article 7 of the Statute of the International Criminal Court, does not require an armed conflict, the crime, on the other hand, does have to be part of a widespread or systematic attack, but there is no need for persecutory intent, although persecution is a separate crime as long as it is associated with another crime within Articles 6, 7, or 8 of the Statute. The only element on which all definitions agree is that the crime has to be directed against a civilian population. Given such divergence, the requirement of double criminality in extradition law could be problematic if the requesting and requested states have adopted definitions of crimes against humanity from different statutes.
One might argue that crimes against humanity are subject to universal jurisdiction, rendering part of the double criminality requirement easier to satisfy. It is clear that some of the crimes listed as crimes against humanity, such as torture and possibly enslavement, if committed in the appropriate context (in an armed conflict or as part of a widespread or systematic attack) would be subject to permissive universal jurisdiction, but it has not been established that all crimes against humanity enumerated in the Rome Statute would provide domestic courts with the jurisdiction to prosecute, regardless of the place where the crime occurred or the nationality of the alleged perpetrator or victim. For instance, Article 7.1(i) lists the enforced disappearance of persons as one crime that could constitute a crime against humanity. Paragraph 2(i) of the same article provides as follows:
"Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
Although such actions ought to be criminalized, it is not certain that prior to 1998 enforced disappearance was recognized by states as a crime attracting universal jurisdiction, unless seen as a form of torture (see Sarma v. Sri Lanka, 2003, para. 9.5). Its adoption in the Rome Statute does not of itself accord such a status.
Defenses to Extradition
Extradition law includes a series of specific defenses that prohibit surrender and, additionally, international human rights law provides its own safeguards for alleged transnational fugitive offenders. These defenses have been interpreted by various domestic courts in different states, so while they are recognized as part of state practice in the field of extradition law, no uniform definition exists and they may indeed have been omitted from particular treaties and therefore be irrelevant with respect to a particular request.
Although it might appear to be contrary to the fundamental objective of prosecuting those who commit genocide or other crimes against humanity to exempt from extradition those committing military offenses, extradition law has applied a very specific and limited definition to what constitutes an offense of a military character. It is not every offense committed by a member of the military forces that constitutes a military offense. To result in protection at an extradition hearing, the offense must be purely military in character, such as going absent without leave or refusing to perform military service.
"Specialty" is peculiar to extradition law. It provides that the requesting state can only prosecute the transnational fugitive offender after surrender for the crimes stipulated in the request and for no others. Indeed, since extradition law also extends to requesting the return of a convicted fugitive, if a request fails to include previous convictions after the fugitive absconds, he or she cannot be reincarcerated for those convictions on surrender, so strong is the principle of specialty (R v. Uxbridge Justices, ex parte Davies, 1981). Although one might initially deduce that specialty has little to do with extradition in cases of genocide or crimes against humanity, the case of John Demjanjuk suggests that it could prove problematic in certain instances.
The Political Offense Exemption
The political offense exemption provides that surrender shall not take place when the offense is of a political character. The nonextradition of persons accused of political offenses might even be accepted as a norm of customary international law when it is not expressed in the international agreement between two states. However, Article VII of the Genocide Convention explicitly states that "genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition." Such clauses rejecting the political offense exemption are extremely rare in international treaties (see the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, the 1998 International Convention for the Suppression of Terrorist Bombings, and the 2000 International Convention for the Suppression of the Financing of Terrorism).
Although extradition law is part of international law, it is nevertheless implemented in domestic courts and therefore there is no one accepted definition of a political offense. Certain crimes are seen as purely political, such as treason, but ordinarily a political offense is a common crime whose political character predominates, such as murdering a tyrant with the intent of overthrowing the government. It is not sufficient that the crime was committed by a politically motivated offender. The exemption applies to offenses of a political character, not politically motivated offenders—on the other hand, the offender must have a political rather than a personal motive. Four main approaches have developed to the political offense exemption (with three being very similar), and, depending on which one is followed, crimes against humanity could be deemed as political, no matter how appalling that idea may seem.
The first approach is contained in the law of the United Kingdom. For an offense to be of a political character under this approach, it had to be part of, and in furtherance of, a political disturbance, and not too remote from the ultimate goal of an organization attempting to change the government or its policies. In addition, the request has to be made by the state that was the target of the fugitive offender's crime. Imagining crimes against humanity that would satisfy the remoteness element of that test is difficult: How could a crime against humanity be sufficiently proximate to overthrowing a government or changing its policies when it involves an "attack on a civilian population"? The Swiss approach, now also adopted in the United Kingdom, includes elements of the U.K. approach, but adds proportionality to its predominance test. Even if the crime would have been political under the traditional U.K. approach, if it were determined to be disproportionate, then the Swiss approach would find it to be nonpolitical:
Homicide, assassination and murder, is one of the most heinous crimes. It can only be justified where no other method exists of protecting the final rights or humanity (In re Pavan, 1928).
The Swiss test would deem crimes against humanity to be nonpolitical as they are disproportionate. The third approach may be found in the decisions of the Irish courts. They have followed the Swiss approach since 1982:
The offenses set forth in the two warrants . . . cannot be regarded as political offenses . . . as they contemplate and involve indiscriminate violence and can be correctly characterized as terrorism (Ellis v. O'Dea [No. 2], 1991).
In addition, the Irish courts demand that the crime not threaten the democratic nature of the requested state. If the transnational fugitive offender is as much of a threat to the requested state as he or she was to the requesting state, then the alleged offender forfeits the protection of the political offense exemption.
The final approach derives from U.S. court decisions. The basic test is that an offense will be deemed political if it is part of, or in furtherance of, a political uprising. Although an uprising requires a greater degree of violence and instability than a disturbance, an offense which is part of that uprising is prima facie political—there is no requirement of proximity to the ultimate goal or proportionality. As such, crimes against humanity might be deemed political. In the Artukovic case the breadth of the U.S. approach was made apparent. Yugoslavia requested the extradition of Andrija Artukovic in 1956 with respect to war crimes. He had served as Minister of the Interior under the Axis-controlled Croatian government of World War II. In that position he had allegedly ordered the death of 1,293 named individuals and approximately 30,000 unidentified persons. The District Court for the Southern District of California held that these were political offenses because they had been committed in a political uprising, namely the power struggle that occurred in Croatia during World War II. The U.S. Court of Appeals for the Ninth Circuit upheld the district court's refusal to extradite Artukovic to Yugoslavia, rejecting the asserted principle that war crimes were automatically nonpolitical.
Even if one accepts that stance by the U.S. courts, it is difficult to see how the murder of 30,000 people, principally civilians, could be part of, or incidental to, a political uprising. The Supreme Court vacated the Court of Appeals decision and remanded the case to the District Court. The District Court in its second attempt at interpreting existing law again decided to refuse extradition, partly because of lack of evidence. However, it did find that the offenses alleged were of a political character as well. The 1959 decision in the series of Artukovic cases would seem to be a most disturbing misinterpretation of the exemption. Not only should war crimes and, by analogy, crimes against humanity be excluded from the ambit of political offenses like genocide, but the offenses charged here were of a type and nature that the scope of the accepted political incidence test might be stretched beyond rational limits. Artukovic was eventually extradited, but only in 1986 after the Court of Appeals for the Ninth Circuit recognized the error of the earlier 1959 decision.
A sounder approach to crimes against humanity and the political offense exemption may be seen in the reasoning of Kroeger v. The Swiss Federal Prosecutor's Office (1966):
The offense must have been committed in the course of a struggle for power in the State and must also be in appropriate proportion to the object pursued, in other words suitable to the attainment of that object. The extinction of human life, one of the most reprehensible crimes, can only appear excusable if it constitutes a last resort in the pursuit of a political objective. On the facts, . . . such a situation does not come into question. The accused was acting at a time when the nationalist socialist regime stood at the pinnacle of its power. He acted against helpless women, children and sick persons who could not possibly have threatened German dominion.
In the words of the Argentinian Supreme Court:
Extradition will not be denied on grounds of the political or military character of the charges where we are dealing with cruel or immoral acts which clearly shock the conscience of civilized people (In re Bohne, 1968).
Although the political offense exemption is fundamental to extradition law, the UN Genocide Convention excludes it in relation to Article III crimes and crimes against humanity are non-political by their very nature.
When the state requesting extradition retains the death penalty for crimes that the requested state does not apply capital punishment to, then most modern extradition treaties provide that the latter shall seek assurances from the former that it will not impose the death penalty on the transnational fugitive offender if he or she is surrendered. Although such a rule is not customary international law at this time, death penalty clauses are becoming more prevalent in extradition arrangements. States that have ratified the second optional protocol to the International Covenant on Civil and Political Rights (ICCPR), other abolitionist states that are parties to the ICCPR, and states party to Protocol 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) cannot extradite without gaining such assurances from the requesting state (Judge v. Canada, 2003; Soering v. United Kingdom, 1989). In addition, returning someone to face the death penalty may, in certain cases, amount to torture, inhuman or degrading treatment, or punishment contrary to Article 3 of the United Nations Convention Against Torture 1984 (torture only) or the ECHR's Article 3.
Given that most recent examples of genocide and crimes against humanity have occurred in noninternational armed conflicts, the rules in extradition law pertaining to nationals ought to have little impact. Most civil law states will not extradite their nationals. By way of corollary, they assert jurisdiction over crimes committed by their nationals anywhere in the world. Furthermore, their rules of evidence in criminal trials more readily permit the admission of documentary evidence so witnesses to genocide or crimes against humanity do not have to appear at the trial in person. Nevertheless, if a trial for genocide or crimes against humanity is seen as a form of postconflict justice, allowing a previously divided state to face up to gross human rights violations of the past, then a remote trial in a third state may not satisfy that objective.
Extradition law does recognize immunity as a defense, as is clear from the Pinochet cases. Former heads of state and their equivalents, however, ought not to have immunity for genocide or crimes against humanity committed during their terms of office, although it is not as simple as saying that they cannot have immunity for any criminal acts perpetrated during that time. In Pinochet No. 3 (1999), the English House of Lords held that former Chilean President Augusto Pinochet's immunity for torture committed while he was head of state ceased on the date that Spain, the United Kingdom, and Chile (respectively, the requesting state, the requested state, and the state where the crimes occurred) became parties to the 1984 UN Torture Convention. By analogy Article IV of the Genocide Convention stipulates no immunity for former heads of state for Article III crimes committed during their tenure in office. No equivalent provision exists for crimes against humanity, but given that they have been accepted as international crimes since the Nuremberg tribunals, the reasoning of Pinochet 3 is that former heads of state do not enjoy immunity.
Existing heads of state and their equivalents, on the other hand, receive a much broader immunity, even for serious international crimes. In Congo v. Belgium (2002), the ICJ held that domestic courts had no jurisdiction to prosecute under principles of universal jurisdiction acting high officials (in this case the Congolese foreign minister). While Article IV of the Genocide Convention holds that even "constitutionally responsible rulers" shall be punished, this directive has to be interpreted in light of Article VI, which gives jurisdiction to the territorial state and an international penal tribunal. The ICJ accepted the notion that an international tribunal could prosecute an acting head of state.
Irregular or de facto Extradition
As can be seen, there are a variety of reasons why an extradition request may fail, if one assumes that the request has been properly made in the first place. Given the desire to bring persons accused of genocide or crimes against humanity to trial, irregular methods have been used to obtain jurisdiction: "collusive" deportation and abduction. When extradition would be impossible because an international agreement does not exist between the requesting and requested states and there is no option of trying a transnational fugitive offender before an international tribunal or a domestic court on the basis of universal jurisdiction, then alternative methods of surrendering the accused, with due regard for his or her human rights, may be justified. However, given the existence of the ICC and the burgeoning acceptance of universal jurisdiction as well as the seriousness of genocide and crimes against humanity, one might hope that such alternative methods will need to be used rarely.
Collusive deportation involves the prosecuting state and the state where the transnational fugitive offender is seeking refuge. The latter uses its power to deport aliens in order to return the transnational fugitive offender to the state seeking to prosecute him or her. As such, a legal process is initiated. Nevertheless, following the decision of the European Court of Human Rights in Bozano v. France (1986), Council of Europe (CoE) member states should not deport a transnational fugitive offender, with extradition being the appropriate means of surrendering that individual to the requesting state. The opposite perspective emerged when Bolivia expelled Klaus Barbie (the former Nazi referred to as the "Butcher of Lyon") to France to face trial for crimes against humanity. Barbie's legal team alleged that France violated international law in obtaining jurisdiction through expulsion rather than extradition. The French high court, the Cour de Cassation, held that:
"All necessary measures" are to be taken by the Member States of the United Nations to ensure that war crimes, crimes against peace and crimes against humanity are punished and that those persons suspected of being responsible for such crimes are sent back "to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of those countries.
The English House of Lords, on the other hand, has divested itself of jurisdiction with respect to the return of a transnational fugitive offender to face charges for financial crimes when extradition would have been possible. Canadian, South African, and Zimbabwean courts have decided similarly. However, the First Section of the European Court of Human Rights was prepared to sanction collusive deportation in Ócalan v. Turkey (2003). Abdullah Ócalan was the leader of the Workers Party of Kurdistan (PKK), a Kurdish separatist group. Turkish authorities took him into custody at Nairobi Airport with the collusion of Kenyan authorities. Given that there was no extradition treaty between the two states, the European Court of Human Rights was prepared to hold that the detention was lawful under Article 5.1 of the ECHR. The decision of the First Section raises many questions, the most fundamental of which relates to its function. Domestic courts deciding whether they should divest themselves of jurisdiction to prosecute need to take into account the availability of extradition, but the European Court of Human Rights ought to focus on the rights of the applicant, particularly those relating to the lawful deprivation of liberty—if bundling Lorenzo Bozano across the Swiss border on his way to Italy was contrary to Article 5.1, accepting Ôcalan after he had been whisked onto a waiting plane by Kenyan authorities must also be unlawful. The situation might have been different if Kenyan authorities had used their ordinary laws relating to deportation with a right to judicial review.
If collusive deportation raises questions of legality, abduction from a third state, violating the latter's sovereign status, should never be adopted—it is, in the words of Ivan Shearer, "manifestly extra-legal" (1971, p. 75). The leading authority in this area is Eichmann (1960). Former Nazi Adolf Eichmann was abducted from Argentina by agents acting for Israel. He was tried and convicted, but only after the UN Security Council addressed the violation of Argentina's sovereignty. Nevertheless, the ICTY later determined that it would prosecute an individual snatched by Nato troops from Bosnia and Herzegovina (Prosecutor v. Dragan Nikolic, 2003, para. 33).
Duty to Prosecute and Universal Jurisdiction
Grave breaches of the Geneva Conventions for the protection of victims of war and the First Additional Protocol relating to international armed conflicts impose a duty on all signatories to investigate and prosecute. Extradition is a secondary response. Mandatory universal jurisdiction, however, is limited to grave breaches. All other crimes, including genocide and crimes against humanity, have, at best, permissive universal jurisdiction, except when the alleged genocide or crimes against humanity also qualify as grave breaches—there is a degree of overlap in the appropriate circumstances. Nevertheless, even though no mandatory universal jurisdiction exists, a duty to prosecute does arise when an alleged offender is found in the territory of the state and is not extradited—aut dedere, aut judicare, that is, the state must either surrender the fugitive to another state with jurisdiction or prosecute him or her itself (Bassiouni and Wise, 1995). Article V of the Genocide Convention provides as follows:
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.
Although it might be argued that Article V should be read in conjunction with Article VI, only requiring states to enact legislation to prosecute individuals for genocide committed within the territory of that state, customary international law gives states universal jurisdiction over genocide, particularly since Article IV stipulates that persons committing genocide shall be punished.
As for crimes against humanity, one again has to rely on customary international law that, as might be expected, is not expounded in a single document. Nevertheless, the writings of scholars and the decisions of several international tribunals suggest that if evidence exists that a person has committed crimes against humanity and this person is found within the territory of a state, that state would have a duty to prosecute if it does not extradite the alleged offender to the state where the crimes against humanity occurred.
The ICC and Rendition
The ICC was established by means of an interstate treaty. As such, the rules about surrender are laid down in the 1998 Rome Statute (Part 9, Articles 86–102). Although the Statute provides the framework, individual states party will establish their own mechanisms for surrender (Article 88); states that are not party to the Statute can agree to surrender on an ad hoc basis. Such systems will be similar to the extradition process, but noticeable differences will exist. Extradition is based on a request by a coequal sovereign state, whereas surrender to the ICC will follow a request made by the Office of the Prosecutor. It will, however, be much like an extradition request under the extradition law of the requested state (Article 91): proof of identity and evidence of location; a copy of the arrest warrant; and
Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.
The Rome Statute foresees only three reasons why a requested state that is a state party might refuse surrender: ne bis in idem (double jeopardy, Article 20); a competing request from another state (Article 90); and a contrary obligation under international law (Article 98). It is the latter ground that is giving rise to controversy. Article 27 provides that official capacity, even as a head of state, is not a defense to any of the Article 5 crimes. Article 98, however, provides:
The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
The interplay of the two articles is complex, but one likely interpretation is that Article 98 protects those with immunity, with the immunity stemming from a nonstate party. A person with immunity from a state party to the Rome Statute cannot rely on Article 98—ratification of the statute gives rise to a waiver not only with respect to the ICC, but also in relation to all other states party (Akande, 2003).
Akande, D. (2003). "The Jurisdiction of the International Criminal Court Over Nationals of Non-Parties: Legal Basis and Limits." Journal of International and Criminal Justice 1:618–650.
Bassiouni, M. C., and E. Wise (1995). Aut Dedere, Aut Judicare: The Duty to Extradite or Prosecute in International Law. Dordrecht: Martinus Nijhoff.
Gilbert, G. (1998). Transnational Fugitive Offenders in International Law. Dordrecht: Martinus Nijhoff.
Randall, K. (1988). "Universal Jurisdiction Under International Law." Texas Law Review 66:785–841.
Shearer, I. (1971). Extradition in International Law. Manchester, U.K.: Manchester Uiversity Press.
European Convention for the Protection of Human Rights and Fundamental Freedoms. ETS 5 (1950). Also available from http://www.echr.coe.int.
Genocide Convention, 1948. 78 UNTS 277 (1951).
Geneva Conventions, 1949. 75 UNTS 31-417 (1950). Additional Protocols, 1977. 1125 UNTS 3-608 (1979) and 16 ILM1391 (1977).
International Covenant on Civil and Political Rights. UNGA Resolution 2200A(XXI), UNGAOR, 21st Session, Suppl. No. 16, 52 (1966); 999 UNTS 171; 6 ILM 368 (1967); 61 AJIL 870 (1967).
International Criminal Court Statute, July 17, 1998. 37 ILM 999 (1998).
International Criminal Tribunal for the Former Yugoslavia Statute. UNSC Resolution 827 (1993) and 32 ILM 1192 (1993).
International Criminal Tribunal for Rwanda Statute. UNSC Resolutions 935 and 955 (1994).
United Nations Convention Against Torture. 23 ILM 1027 (1984) and 24 ILM 535 (1985).
Artukovic v. Boyle. 140 F Suppl. 245 (1956); Karadzole v. Artukovic. 247 F2d 198 (1957); US ex rel. Karadzole. Karadzole v. Artukovic. 355 U.S. 393 (1958); US ex rel Karadzole. 170 F Suppl. 383 (1959); In re Extradition of Artukovic. 628 F Suppl.1370 (1985); Artukovic v. Rison. 784 F2d 1354 (1986).
Banegas, In re Banegas. Supreme Federal Court of Brazil, 15 ILR 300 (1948).
Bohne, In re Bohne. Argentinian Supreme Court, 62 AJIL 784 (1968).
Bozano v. France. European Court of Human Rights, Series A, Vol. 111 (1986).
Congo v. Belgium. International Court of Justice (February 14, 2002). Available from http://www.icjcij.org/icjwww/idocket/iCOBE/iCOBEframe.htm.
Davies, R v. Uxbridge Justices, ex parte Davies. English High Court, 1 WLR 1080 (1981).
Demjanjuk, In re Extradition of Demjanjuk. 612 F Suppl. 544 at 571 (1985).
Demjanjuk v. Petrovsky. 776 F2d 571 (1985); cert.den.106 Supreme Court 1198 (1986).
Attorney-General of the government of Israel v. Adolf Eichmann. District Court of Jerusalem, Israeli Supreme Court, 36 ILR 5 (1960).
Ellis v. O'Dea (No. 2). Irish High Court, confirmed by Supreme Court, ILRM 346 (1991).
Fédération Nationale des Déportés et Internés Résistants et Patriotes et al. v. Barbie. Cour de Cassation, 78 ILR 125 (1985).
Judge v. Canada. Human Rights Committee, CCPR/C/78/D/829/1998 (August 13, 2003).
Kroeger v. The Swiss Federal Prosecutor's Office. Swiss Federal Tribunal, 72 ILR 606 (1966).
Ôcalan v. Turkey. European Court of Human Rights (First Section), 46621/99 (March 12, 2003). Available from http://hudoc.echr.coe.int/hudoc/default.asp?Language=en&Advanced=1.
Pavan, In re Pavan. Swiss Federal Tribunal, Annual Digest 347 (1928).
Pinochet, In re Pinochet. 2 WLR 272 (1999).
Pinochet, R (No. 2) v. Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet. 3 WLR 1456 (1998).
Pinochet, R v. Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet. On Appeal from a Divisional Court of the Queen's Bench Division, 2 WLR 827 (1999).
Prosecutor v. Dragan Nikolic. Decision on Interlocutory Appeal Concerning Legality of Arrest. ICTY Appeals Chamber, IT-94-2-AR73 (June 5, 2003).
Reservations to the Genocide Convention. International Court of Justice Reports, 15 (1951).
Sarma v. Sri Lanka. Human Rights Committee, CCPR/C/78/D/950/2000 (July 31, 2003).
Soering v. United Kingdom. European Court of Human Rights, Series A, Vol. 161 (1989).
EXTRADITION OF SLAVES
The Torah relates directly to the issue of extradition in the context of a slave who flees from his slavery, prohibiting a person from returning to his master an escaped slave who is now in his custody: "Do not deliver to his master a slave who has escaped from his master. He shall dwell in your midst with you, in the place he shall choose in one of your gates, where it is good for him; you shall not oppress him" (Deut 23:16–17). Some Biblical commentators have interpreted this passage on the basis of the context in which it appears, viz. as referring to a slave who during battle escapes from the enemy camp to the Israelite camp, the reason for the prohibition on his extradition being that it is better for the slave to remain in the Israelite camp than to return to worshipping idolatry. An additional reason proposed is a practical one, deriving from the aforesaid battle context – namely, the danger that the slave will "learn the way into the city," so that to return him to his master would constitute a danger to the security of the city (Naḥmanides. ad loc.; Ibn Ezra, ad loc.). A case in which the question of extraditing a slave at a time of battle arose in 1 Samuel 30:11–16: David and his men, in pursuit of the Amalekites, found an Egyptian slave who had been forsaken by his Amalekite masters. The slave agreed to show David and his men the location of the Amalekite troop, in return for David's promise that he would not return him to his masters.
According to the Talmud, the prohibition against ex-tradition applies to a Canaanite slave who has fled from Jewish masters outside the Land of Israel into the Land of Israel (Bavli, Gittin 45a; Maim., Yad, Avadim 8.10). Rabbi Judah the Prince is of the opinion that the prohibition applies to a person who purchases a slave on condition that he emancipate him, and later regrets his act and seeks the slave for himself.
EXTRADITION OF AN ESCAPED CRIMINAL
The Torah rejects the possibility that an escaped criminal may acquire refuge from punishment by entering sacred grounds: "If a person shall maliciously kill another with guile, he shall be taken to die (even) from my altar" (Exod 21:14). In this manner, the Torah abrogated the rule, widespread at that time and even later (1 Kings 2: 29–32), that entry upon sacred ground can spare a murderer from his just punishment. Biblical commentators emphasized that this law is intended to serve as a contrast to the law of one who committed inadvertent manslaughter, who is given a special place to live and guaranteed protection from persecution by the blood avenger (see *City of Refuge). A murderer with malice aforethought has nowhere to seek refuge, not even the altar. Maimonides (Guide 3.39) emphasizes the difference between the Torah's command against delivering an escaped slave, regarding whom we are commanded to have mercy and to grant protection and care for all his needs, and a malicious person, whom we are commanded not to pity and not to protect, and who must be turned over to the officer of justice even if he grasps hold of the altar.
INSTANCES OF EXTRADITION IN THE TORAH
The Book of Judges (15:9–13) relates that, after Samson smote the Philistines, the Philistines retaliated against Israel, in order to capture Samson and to take revenge for his deeds. The men of Judah went to Samson and told him that they had come to take him so as to extradite him to the Philistines. Samson asked the men of Judah to swear to him that they themselves would not harm him but would only extradite him to the Philistines. They duly did so, binding Samson with ropes; however, as soon as he was delivered to the Philistines he flung off the ropes with which he had been bound and once again struck down a thousand Philistines. Some halakhic authorities classified Samson's extradition as performed under duress, for had the men of Judah not given Samson to the Philistines, the Philistines would have killed them (Or Sameah on Maim., Yad, Yesodei ha-Torah 5.5). From the commentary of Radak (ii Samuel 20:22), it follows that extradition was only possible due to Samson's consent, but that they would not have been entitled to extradite him against his will.
Following the incident involving the concubine at Gibeah (Judges 19–21), during which people from the town of Gibeah in the territory of Benjamin perpetrated an act of rape and murder, the other tribes of Israel gathered together and demanded that the clans of Benjamin turn over the perpetrators of the atrocity, in order to "eliminate the evil from Israel" (ibid. 20:12–14). The Benjaminites refused to extradite the men and went to war against the other tribes of Israel. Nahmanides, in his Torah Commentary (Gen. 19:8) states that the Benjaminites were not obligated to deliver the sinners from Gibeah into the hands of the other tribes of Israel, because the responsibility to take action lay exclusively in the hands of the tribal court of Benjamin, each tribe having jurisdiction over its own members.
Another incident relating to extradition appears in i Samuel 23:10–12, when David, fleeing from Saul, together with his followers, came to the aid of the townsfolk of Keilah, saving them from the Philistines. After David had smitten the Philistines at Keilah, Saul heard that David was situated there, and went with his army in order to capture him. David inquired of God, through the ephod (sacred oracle) held by the Abiathar the priest, as to whether the heads of Keilah would deliver him into the hands of Saul. God responded that they would extradite him, whereupon David left the city. The text implies that, in this case as well, the delivery of David into the hands of Saul by the people of Keilah, had it occurred, would have been one of extradition under duress, as had they not turned David over to Saul, Saul would have destroyed the town.
Following the era of the Talmud and thereafter, in periods during which Jewish communities found themselves under the suzerainty of a heathen ruler, whether in Israel or in the various Diaspora communities, the issue of extradition was considered from various angles: the criminal justice aspect of the offender's acts; the relationship between Israel and the other nations of the world; the relationship between the Jewish legal system and the non-Jewish legal system; and the relationship of the Jewish community towards its own members who had deviated from the right path. Jewish legal autonomy, while containing a not-insignificant measure of juridical competence even in the field of criminal law, was nevertheless restricted with respect to the majority of cases concerning serious offenses and offenses of interest to the authorities, in which areas the authorities retained the right of adjudication and the right to punish. We will now deal with the main problems and questions discussed in the talmudic literature in this regard.
THE SEIZURE AND EXTRADITION OF JEWISH THIEVES AND ROBBERS
During the talmudic period, the Sages encountered cases in which they were requested by the Roman administration to hand over Jewish criminals. We find differing opinions among the Sages regarding the question as to whether such ex-tradition is prohibited or permitted, or possibly even desirable. The Talmud relates how R. Eleazar b. Simeon seized thieves and robbers on behalf of the Roman administration, and the dispute that arose in this regard with R. Joshua b. Korha. R. Joshua b. Korha reacted to R. Eleazar b. Simeon's acts with the words: "Vinegar son of wine: how long will you continue to deliver the people of God to death?" R. Eleazar b. Simeon answered by way of a parable: "I am eliminating thorns from the vineyard" to which R. Joshua b. Korha retorted: "Let the owner of the vineyard [i.e., God] come and eliminate his thorns" (tb, bm 83b). A further discussion of the same issue appears in the sequel to this talmudic passage, which records that R. Ishmael b. Yose would also apprehend offenders at the bidding of the authorities. These controversies reflect the aversion to turning over a Jew to the Roman government, which was suspected of not conducting fair trials, hostility to Jews, and persecution of their persons and property.
SAVING JEWS SUSPECTED OF SERIOUS CRIMES
An additional incident discussed by the Talmud and its commentaries (Bavli, Niddah 61a) reflects the divergent approaches to the issue of granting asylum to a murderer. In this case, certain persons who were suspected of murder approached R. Tarfon with the request that he hide them from the authorities. R. Tarfon's response was that he could not hide them, for the Sages had stated that one should take heed of an evil rumor, viz. that they were in fact murderers. Talmudic commentators are divided as to the reason for R. Tarfon's refusal to hide them. According to Rashi (ad loc.), R. Tarfon suspected there might be truth to the rumor that they had murdered, in which case it would be forbidden to save them. According to R. Aḥa Gaon (She'iltot de-Rav Aḥa §129; Tosafot, ad loc.), R. Tarfon's suspicion did not emanate from the fact that he was forbidden to save them, but rather from the danger to which he would be exposed were he to save them. R. Asher b. Jehiel (Rosh, on Niddah 9.5) adopts the She'iltot's explanation and rejects that of Rashi, because, according to his view, it cannot be forbidden to save a person's life merely because of a rumor that he has sinned. From Asheri's words, it follows that, when it is clear that the person has indeed committed a crime, it would be forbidden to save him even according to Rashi's disputants. R. Solomon Luria (Yam shel Shelomo on tb Nid. 61a) states unequivocally that a distinction must be made between the case of one who has definitely murdered, whom it is forbidden to save and who must be handed over to the authorities to judge, and the case of a rumor, which gives rise to a mere suspicion, in which case the individual, who is presumed innocent until proven guilty, must be saved, provided there is no danger to the savior in doing so.
Over the centuries during which Jews were in various Diasporas and subject to the whims of foreign rulers, many and varied questions arose concerning the interrelationship between the Jewish community and the Jewish legal system and between the authorities and the local legal system. Within this reality, and in view of the need to grapple with the phenomenon of criminality that existed within the Jewish community, the question often arose as to the need to hand over Jewish criminal offenders to the authorities. In post-ralmudic and responsa literature, various aspects of this topic are considered.
DELIVERING A CRIMINAL WHO ENDANGERS THE COMMUNITY
When a given individual's criminal conduct constituted a danger to the entire Jewish community, such as when the non-Jewish authorities are liable to harm the entire Jewish community on account of the acts of an individual offender, or when only the non-Jewish authorities have the power to prevent the offender continuing in his socially unacceptable conduct, he may be extradited to the non-Jewish authorities. Thus, already in the 13th century it was ruled that the non-Jewish authorities could be informed, and extradition was permissible, in the case of a violent man who regularly assaulted others, or a person whose criminal acts encouraged gentiles to contrive plots against the Jewish community, in order to remove the danger from the entire Jewish community (Maharah Or Zaru'a, #142). The Shulḥan Arukh rules (ḤM 388) that a Jew who harasses the community, and not merely one individual, could be delivered into the hands of the non-Jews in order "to beat, imprison or fine him." R. Moshe Isserles adds, in his glosses to the Shulḥan Arukh (ad loc.) that even a Jew who is engaged in forgery – if there is a danger that the Jewish community will be harmed by his activities, and he fails to take heed of the warnings made to him – may be delivered to the authorities, in order to demonstrate that only he, the offender, engages in forgery, and no other member of the community does so. Elsewhere, Isserles writes that the permission to deliver such offenders to the non-Jewish authorities is based upon the principle of "rodef "– i.e., that any Jew is permitted, if necessary, to kill a person who is pursuing his fellow with the aim of killing him, in order to save the life of the pursued: "One who endangers the community, e.g., if he engages in forgery in a locality where the authorities forbid it, has the status of a rodef and it is permitted to deliver him to the authorities" (Rema, ḤM 425.1). R. David Halevi, in his commentary Turei Zahav on the Shulḥan Arukh (ḤM 157.8) similarly rules that anyone who transgresses and rebels against the local law in a manner that endangers the Jewish community may be turned into the authorities, even if the authorities do not demand that he be handed over.
when the community is threatened if the wanted person iis not delivered
The Tosefta (Terumot 7.20) deals with a case in which non-Jews demanded that a group of Jews hand over one of their number to be killed, or else they would all be killed. The Tosefta rules that it is forbidden to deliver a single Jewish soul; rather, they should all be killed. However, if a specific person was designated to be handed over, they should deliver that individual rather than allow all of them to be killed. The Jerusalem Talmud records an amoraic controversy as to whether such a person can only be delivered if he is in fact deserving of death, as was Sheba son of Bichri who rebelled against King David's rule (2 Samuel 20). In other words the story of Sheba is seen as the source of the ruling by the Tosefta. The alternative view is that he should be handed over request, even if he is not liable to the death penalty. It is noteworthy that the case of the Tosefta does not discuss the issue of extradition – i.e. deliverance of a suspected criminal for the purpose of trying him – but only (translating it into the contemporary context) the case of a terrorist group which threatens to kill many people unless an individual is handed over to them. Nonetheless, the halakhic authorities relied on it in cases where the non-Jewish authorities required the handing over of a specific individual and threatened the lives of other Jews in the event that he was not delivered. Maimonides (Yad, Yesodei ha-Torah 5.5) ruled that, if the wanted person is deserving of death, he may be handed over in order to prevent the killing of the remainder of the group; however, "we avoid ruling this way where possible." In a case brought before R. Joel Sirkis (Responsa Ba"ḥ ha-Yeshanot §43), the leaders of the Jewish community were asked to deliver to the Christian authorities for trial a Jew who, according to the authorities, had collaborated in the desecration of Christian religious artifacts. The authorities demanded his extradition, stipulating that, if he was not extradited, the community leaders would have to take his place for any punishment that was decreed. Sirkis ruled that the words of Maimonides – that a person who is liable for the death penalty may be extradited – apply even where the non-Jewish authorities have grounds to kill him under their laws, even if he is not deserving of death according to Jewish law. In such a case, it was not certain that handing over the Jew would result in his death, because the authorities intended to conduct a trial, and the possibility existed that he would be proven innocent. Hence, R. Sirkis ruled that his delivery to the non-Jewish authorities was permitted even de jure, in contrast to Maimonides' ruling that we avoid ruling that way where possible. Furthermore, in this case too permission to deliver the accused was given only because there was prima facie evidence of his guilt, and that the grounds for which the non-Jews sought to judge him were thereby substantiated; hence, the accused himself was considered responsible for the allegations made against him.
saving jews suspected of serious crimes from the laws of the authorities
R. Jair Ḥayyim Bacharach (Resp. Ḥavvot Yair §146) was asked about a case involving a Jewish youth, a fugitive murderer, who was later caught by the authorities. R. Bacharach rejected the possibility that he could be delivered to the non-Jewish court, even by the relatives of the murder victim (by virtue of the a fortiori argument thatthey could in any event deliver him to the authorities based on the law of the blood avenger; see *Blood Avenger). At the same time, based on Rashi's interpretation of the talmudic passage about R. Tarfon, he rules that it is forbidden to save the youth from the authorities, because of the duty to "eradicate all evil from your midst." He then raises the possibility that, even though it is forbidden to save him, it may be permitted to give him advice on how to escape. In suggesting this possibility, R. Bacharach relies on the words of R. Tarfon in the talmudic story, who told those people who sought refuge with him that they should hide themselves – what may have amounted to advice on the part of R. Tarfon. R. Jacob Emden (Resp. She'ilat Ya'avetz ii. 9) rejects this possibility out of hand, ruling that it is forbidden to give advice to a murderer on how to evade the judgment against him. In the case brought before him, after one Jew who had murdered another Jew was arrested by the authorities, he was given the possibility of acquitting himself by swearing a solemn oath that another person killed the victim and he was not the murderer. The local rabbi ruled that the murderer should save himself from death by swearing falsely. R. Emden vehemently rejects this advice and states that "it is forbidden to save him from death through any means, even an [otherwise permissible one]," and certainly not through making a false oath.
EXTRADITION BASED ON THE PRINCIPLE THAT "THE LAW OF THE LAND IS LAW"
In the rulings of the great halakhic authorities of Spain from the 13th century onward, the authority of the local non-Jewish government is accepted also in matters of penal law, by virtue of the principle that "the law of the land is law" (see *dina de-malkhuta dina), and not only regarding matters of local administration and civil law. The Rashba, in a responsum cited by the Beit Yosef on the Tur (ḤM 388), discusses a case in which the Jewish community was asked by the non-Jewish authorities to determine whether a particular Jew had transgressed a criminal offense; if so, he would be punished by the authorities. The Rashba, relying upon the principle of "dina de-malkhuta dina," sets forth the following rule that, when a Jewish court operates under the government's authority, there is no need to insist on all the normal evidential strictures of the Torah – warning, valid witnesses, etc. – even in capital matters for, were the Jewish court to insist on such requirements, the world would be desolate, as murderers and their companions would multiply. The Rashba proceeds to rule, relying on the above-mentioned talmudic cases involving R. Eleazar Simeon and R. Ishmael b. Yose, that anyone who is appointed by the king is permitted to turn in Jewish criminals to the king. The Ritva, a disciple of the Rashba, also explained the acts of the aforesaid tannaim on the basis of the principle of "dina de-malhuta dina," whichapplies even in the realm of criminal law (Ḥiddushei ha-Ritva ha-Ḥadashim, at bm 83b).
R. Samuel de Modena (Salonika, 16th century; Resp. Maharshdam ḤM 55), relying on a responsum of the Rabad, rules, on the basis of the principle of "dina de-malkhuta dina" that acts of the government concerning the punishment of criminals are legally binding just as the government has authority to enact laws in the city.
In the 19th century, R. Moses Schick (Resp. Maharam Schick, hm 50) utilized the above-cited rulings of Rashba and Ritva in relation to a case in which the Jewish community suspected, albeit without any conclusive evidence, that a woman had murdered her husband. The question was asked whether there was any obligation to report the case to the authorities. Maharam Schick determines, in relation to the legitimacy of governmental enactments in punishing criminals, that "…anything they do whose purpose is to benefit society, their law is law," and that the woman could be reported to the authorities, albeit he concludes that great scholars should not initiate this matter, but rather do nothing – neither save nor extradite the suspect.
The State of Israel
The Extradition Law, 5714 – 1954, determines the ways and means by which a person can be extradited from the State of Israel to another country that requests his extradition. Amongst the provisions set down in the Law, compliance with which is essential to perform the extradition, are the following: the existence of a reciprocal agreement between Israel and the requesting state; that the offense concerned not be of a political nature; that the extradition be to a state, the fairness of whose judicial proceedings the State of Israel acknowledges; and, that no person shall be extradited who has already been brought to trial in the State of Israel for the same offense.
In the Aloni affair (hcj 852/86 Aloni v. Minister of Justice, PD 41 (2)1) the issue of extradition was heard by the Supreme Court of the State of Israel, together with an examination of the existing legal framework in Israel in light of the principles of Jewish law. The Court was asked to decide the issue of whether the State should be ordered to extradite to the French authorities a man who was wanted in France for murder. The accused was declared extraditable according to the Israeli Extradition Law, pursuant to a treaty between the two states, but the justice minister decided not to execute the extradition order, due to fear of danger to the life of the defendant by prisoners in the French prison in the event of his extradition. Justice Menachem Elon analyzed the position of Jewish law on the topic of extradition at length and in great detail, based on the above-cited and other sources. His conclusion was that the provisions of the Extradition Law accord, first and foremost, with the categorical stand of Jewish law, which negates the possibility that a suspect in the commission of an offense evade accountability for his acts, particularly if the alleged crime is murder. Justice Elon relies on the justifications in favor of extradition approved by the great halakhic authorities, even where extradition was forced on the Jewish community by the non-Jewish authorities. These justifications were based either on substantive Jewish law itself, or on the principle of "dina de-malkhuta dina" – i.e., in order to establish social order and the rule of law. According to Elon, the sources of Jewish law indicate that throughout Jewish history extradition was permitted in specific cases, even when no supervision of the judicial system or the penalty prescribed was performed by the Jewish community. Therefore, it is all the more justified today when it is executed freely by a sovereign Jewish State, with rights equal to those of the state requesting the extradition, and when the Jewish State has the ability to monitor the integrity of the judicial system in the other state and to annul the extradition treaty with it in the event that the said judicial system lacks such integrity. Elon suggests that this view would be concurred with even by the authorities who opposed cooperation with non-Jewish courts unless the crime posed a danger to the Jewish community. This opposition was based on their fear of a miscarriage of justice being caused by the extradition, a fear that was regarded as more significant than the benefit gained in punishing the criminal. These being the reasons for their opposition to extradition based on cooperation with non-Jewish courts, the same authorities would not object to extradition performed by and with the advantages afforded by a sovereign Jewish State.
From the above-cited rulings of Havvot Yair and She'ilat Ya'avetz, which set forth a prohibition on shielding the criminal in cases of serious crimes, Justice Elon derives that, in a sovereign Jewish state, their rulings should be understood as indicating a duty to extradite. According to Elon, in a small Jewish community the argument may be made that, while it is forbidden to conceal the offender from the authorities, there is no obligation to hand him over, and if the authorities so desire they can come and search for him. By contrast, in a sovereign state, it is impossible to simply turn a blind eye, because such is not the way of a Jewish state, which has a duty either to try the offender, if this is possible according to its laws, or to extradite him to a state which has the ability to try him, subject to the restrictions stipulated in the law. According to the aforementioned arguments, when it is impossible to try the offender in Israel, the State of Israel must extradite the offender in order to eliminate the evil from its midst.
In the same judgment, Justice Elon ruled that, in the event of a reasonable probability of danger to the life of the accused were he to serve his sentence in a foreign country, he should not be extradited. This was in contradistinction to the majority of the Court, who ruled that extradition should only be avoided in the event of a high probability of danger to his life. Justice Elon also ruled that the execution of the extradition be delayed until arrangements are put in place to ensure that the accused's wife will not find herself in a state of abandonment (iggun). It should also be noted that, in this judgment, Justice Elon recommended that the Extradition Law be amended so as to allow a criminal sentenced by a foreign court to serve his sentence in an Israeli jail; indeed, in 1999 the law was amended in this spirit.
The position adopted by Justice Elon aroused controversy. Amongst his disputants was R. Shaul Yisraeli (see bibliography), who emphasized the prohibition of litigating before non-Jewish courts. According to R. Yisraeli, the possibility of delivering a Jew to the authorities by virtue of the Law of the King and "dina de-malkhuta dina" only exists where there is no autonomous government in Israel and no possibility of trying the criminal under Jewish law. In addition, he states that the authority of government law, by virtue of the principle of "dina de-malkhuta dina," only applies to those citizens who live within the borders of that state. It does not extend to validate an extradition agreement between states, and it is therefore forbidden for the State to enter into an extradition treaty which, according to R. Yisraeli, has no validity from the halakhic point of view even post factum. R. Yisraeli also emphasizes the merits of the Land of Israel, by whose virtue arguments (for his innocence) may be found in his favor (Makkot 7a). The solution suggested by R. Yisraeli to ensure that the State of Israel does not become a "sanctuary for criminals" is for the State to enact a law according extra-territorial status to Israeli criminal law, enabling all Jewish criminals to be tried in Israel.
It should be noted that the Jerusalem Rabbinical Court, in considering the issue dealt with by the aforesaid Supreme Court judgment, determined that an extradition treaty made by the State of Israel with another state has halakhic validity by virtue of the principle of "dina de-malkhuta dina" because "it is a matter of good governance that the State of Israel not become a refuge for Israeli criminals and that we should be able to punish criminals who are located in other countries – in Israel" (File 8384/5747, pp. 27–28, given on 12 Tishrei 5748, 5/10/87).
M. Elon, Jewish Law (1994), 4:1861, 1862; idem, Jewish Law (Cases and Materials) (1999), 369–88; idem., "Laws of Extradition in Jewish Law," in: Teḥumin, 8 (1986/7) 263–86; 304–9 (in Hebrew); S. Yisraeli, "Extradition of an Offender to a Foreign Jurisdiction," in: ibid., 287–96 (in Hebrew); J.D. Bleich, "Extradition of an Offender to a Non-Jewish People," in: ibid., 297–303 (in Hebrew); idem, "Extradition of an Offender Who Has Fled to Ereẓ Yisrael," in: Or ha-Mizraḥ, 35 (1986/7), 247–69; Y. Gershuni, "Is it Permitted for the Government of Israel to Extradite a Criminal to Another Nation?" in: Or ha-Mizraḥ, 21 (1971/2), 69–77 (in Hebrew); B. Rabinowitz, "Teomim, Extradition For Imprisonment by Non-Jews" in: No'am, 7 (1963/4), 336–60 (in Hebrew).
[Menachem Elon (2nd ed.)]
The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.
Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.
Article IV, Section 2, of the U.S. Constitution provides that upon the demand of the governor of the prosecuting state, a state to which a person charged with a crime has fled must remove the accused "to the State having Jurisdiction of the Crime." When extraditing an accused from one state to another, most states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions. A newer uniform act, the Uniform Extradition and Rendition Act, is designed to streamline the extradition process and provide additional protections for the person sought, but by 1995, it had been adopted by only one state.
Extradition from one state to another takes place on the order of the governor of the asylum state (the state where the accused is located). The courts in the asylum state have a somewhat limited function in extraditing the accused to the state where she or he is charged with a crime. They determine only whether the extradition documents are in order (e.g., whether they allege that the accused has committed a crime and that she or he is a fugitive) and do not consider the merits of the charge, since the trial of the accused will take place in the state demanding extradition.
In some cases, courts considering extradition from one state to another may go beyond the procedural formalities and look at the merits of the criminal charge or at allegations by the accused that extradition will lead to harmful consequences beyond a prison term. These cases are rare because under the U.S. Constitution, states are not given the power to review the
underlying charge. This problem occurred in New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 118 S. Ct. 1860, 141 L. Ed. 2d 131 (1998), in which the state of New Mexico refused to return a fugitive to the state of Ohio.
The Supreme Court has identified that a court considering an extradition case can only decide four issues: (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for the extradition, and (4) whether the petitioner is a fugitive. The New Mexico Supreme Court in Reed determined that the person subject to the extradition, Manuel Ortiz, was not a "fugitive," and refused to honor the extradition order from the state of Ohio. The Supreme Court found that New Mexico courts had overstepped their authority and ordered the New Mexico Supreme Court to return the fugitive.
Extradition from one nation to another is handled in a similar manner, with the head of one country demanding the return of a fugitive who is alleged to have committed a crime in that country. Extradition between nations is usually based on a treaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime. The United States has entered into extradition treaties with most countries in Europe and Latin America, and with a few countries in Africa and Asia.
To determine whether an individual can be extradited pursuant to a treaty, the language of the particular treaty must be examined. Some treaties list all the offenses for which a person can be extradited; others provide a minimum standard of punishment that will render an offense extraditable. The extradition treaties of most countries fall into the second category, since treaties in the first category must be revised completely if an offense is added to the list.
Even if they do not specifically say so, most treaties contemplate that for an offense to be subject to extradition, it must be a crime under the law in both jurisdictions. This is called the doctrine of double criminality. The name by which the crime is described in the two countries need not be the same, nor must the punishment be the same; simply, the requirement of double criminality is met if the particular act charged is criminal in both jurisdictions (Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66L. Ed. 956 ).
The doctrine of specialty is also often applied even when not specifically stated in a treaty. It means that once a person has been surrendered, he or she can be prosecuted or punished only for the crimes for which extradition was requested, and not for any other crimes committed prior to the surrender. The doctrine was first established over a hundred years ago, in United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886). In Rauscher, the defendant, a U.S. citizen, was extradited from Great Britain for the beating death of a ship's crew member on a U.S. vessel but was indicted and tried on a charge of cruel and unusual punishment based on the same act. Although the specialty principle was not specifically enumerated in the treaty that allowed the extradition, the U.S. Supreme Court held that an accused "shall not be arrested or tried for any other offense than that with which he was charged in those proceedings."
Extradition treaties often provide exceptions under which a nation can refuse to surrender a fugitive sought by another nation. Many nations will not extradite persons charged with certain political offenses, such as treason, sedition, and espionage. Refusal to extradite under such circumstances is based on the policy that a nation that disagrees with or disapproves of another nation's political system will be reluctant to return for prosecution a dissident who likewise has been critical of the other nation. But, of course, not every criminal act will necessarily be protected. For example, some treaties provide that certain crimes, such as the assassination of a head of a foreign government, do not constitute political offenses that are exempt from extradition. The rise in airplane hijacking, terrorism, and hostage taking in the late twentieth century led many nations to enter into multilateral conventions in which the signing countries mutually agreed to extradite individuals who committed such crimes.
Since the 1980s, the international extradition process has been viewed by law enforcement authorities as too time-consuming, expensive, and complicated. It has also been criticized for frequently failing to bring fugitives to justice. As a result, some countries, including the United States, have turned to abduction to return a fugitive to a nation to be tried. Although its legality is questionable, abduction
has sometimes been justified to combat drug trafficking and to ensure national security. In 1989, for example, the United States invaded Panama in an attempt to bring General Manuel Noriega to the United States to face charges related to drug trafficking. The george h. w. bush administration asserted that the invasion was necessary to protect national interests in the Panama Canal and to prevent an armed attack by Panama.
Noriega was eventually brought to the United States to stand trial, where he contested the validity of the federal district court's jurisdiction over him (United States v. Noriega, 746 F. Supp. 1506 [S.D. Fla. 1990]). The court rejected his contention, holding that Noriega could be tried in the United States, despite the means that were used to bring him to trial. The court declined to address the underlying legality of Noriega's capture, concluding that, as an unrecognized head of state, Noriega lacked standing (the legal right) to challenge the invasion as a violation of international law in the absence of protests from the legitimate government of Panama over the charges leveled against him.
In United States v. Alvarez-Machain, 504 U.S. 655, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992), the Supreme Court held that Humberto Alvarez-Machain's forcible abduction did not prohibit his criminal trial in the United States. Alvarez, a citizen of Mexico and a physician, was accused by the U.S. government of participating in the kidnapping, torture, and murder of a U.S. drug enforcement administration agent and the agent's airplane pilot, and was indicted for these crimes. Alvarez was later kidnapped from his office and flown by private plane to El Paso, Texas. The Mexican government objected to the abduction and protested it as a violation of the extradition treaty between the United States and Mexico. It asked that the law enforcement agents responsible for the kidnapping be extradited to Mexico, but the United States refused to do so.
Alvarez sought to dismiss the indictment, claiming that the federal district court lacked jurisdiction to try him because his abduction violated the extradition treaty. The district court agreed and dismissed the indictment. The U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the abduction violated the treaty's underlying purpose of providing a legal means for bringing a person to the United States to face criminal charges. On appeal, the U.S. Supreme Court rejected the lower courts' use of the treaty as the basis for prohibiting Alvarez's trial. Justice william h. rehnquist, writing for the majority, found in the treaty no provisions stating that abductions were forbidden. He further maintained that the treaty was "not the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." Thus, he concluded, the abduction did not prohibit Alvarez's trial in a U.S. court on criminal charges. Justice john paul stevens filed a strong dissenting opinion in which Justices harry blackmun and sandra day o'connor joined. According to the dissent, Alvarez's abduction was a gross violation of international law, intruding on the territorial integrity of Mexico.
Other nations have also struggled with high-profile extradition cases. For example, in 2000, officials in Britain refused to extradite former Chilean dictator Augusto Pinochet to Spain where he would face trial for thousands of murders and other atrocities during his rule from 1973 to 1990. While, Pinochet had absolute immunity from prosecution in Chile, other nations, including Spain, were free to charge him with his alleged crimes. When Britain refused to extradite him, he was able to return to Chile and avoid prosecution.
"Abduction as an Alternative to Extradition—A Dangerous Method to Obtain Jurisdiction over Criminal Defendants." 1993. Wake Forest Law Review 28.
McWhirter, Robert James. 2001. The Criminal Lawyer's Guide to Immigration Law: Questions and Answers. Chicago: American Bar Association.
Marcus, Paul. 2003. Criminal Procedure in Practice. Notre Dame, Ind.: National Institute for Trial Advocacy.
The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.
United States and United Kingdom Ratify New Extradition Treaty
Three years after negotiating its provisions, the United States Senate ratified a new extradition treaty with the United Kingdom in September 2006. The new treaty replaces two others that have been the subject of controversy for several years. Of particular interest to commentators are revised provisions related to the extradition of those who are accused of committing political offenses.
The U.S. and the U.K. negotiated the first modern version of extradition treaty between the two nations on June 8, 1972. The Senate did not ratify it until June 21, 1976, and the treaty was finally entered into force on January 21, 1977. One of the major causes of controversy over the original statute was the so-called "political offense exception." Article V of the original treaty provided, "Extradition shall not be granted if … (i) the offense for which extradition is requested is regarded by the requested Party as one of a political character; or (ii) the person sought proves that the request for his extradition has in fact been made with a view to try or punish him for an offense of a political character."
Several other extradition treaties include political offense exceptions, and federal courts in the U.S. had developed judicial standards for determining whether a person facing extradition was accused of committing a political offense. Under this judicial standard, the treaties precluded extradition on the basis of criminal charges growing out of conduct "committed in the course of and incidental to a violent political disturbance, such as war, revolution, or rebellion." Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981).
A controversy arose surrounding the treatment of four members of the Provisional Irish Republican Army. Federal courts in New York and California refused to extradite these individuals based on the political offense exception. The uproar that ensued led the U.S. and the U.K. to negotiate a supplemental treaty, which was signed on June 25, 1985. This supplemental treaty curtailed the political offense exception and also revised other provisions, including easing the statute of limitations in the original treaty. The U.S. Senate produced a compromise under which the political offense exception allowed the extradition of terrorists in most cases, among other changes. The effect of the changes on the individuals from the Provisional Irish Republican Army was that all four were returned to Ireland, either through extradition or through deportation.
Extradition treaties that were ratified after the Supplemental Treaty of 1985 have generally had more most exemption to the extradition bar for political offenses. Most of these new treaties allow extradition where the political offense involves a crime of violence against the head of a state or that person's family. Likewise, these treaties permit extradition when the crime is covered by a treaty that obligates a nation to extradite the offender. Some extradition treaties, however, have retained the exemptions to the political offense ban that are found in the Supplemental Treaty.
The United States and the United Kingdom entered into negotiations to draft a new treaty that would replace both the 1977 version and the Supplemental Treaty of 1985. On March 31, 2003, former U.S. Attorney General John Ashcroft and U.K. Home Secretary David Blunkett announced that the two nations had agreed to the new pact, pending the ratification by appropriate bodies of the two governments. Later that year, the United Kingdom incorporated the treaty into British law through the passage of the Extradition Act of 2003.
Under the terms of the 2003 agreement, federal courts in the U.S. would retain the authority to bar extradition requests when the request fails to meet the demands of the treaty. Moreover, the treaty does not require the United States to take any action that is forbidden by the U.S. Constitution. The accord urges the U.S. Secretary of State to consider any requests for the extradition of a fugitive who has been previously acquitted, and it requires annual reports from the Secretary of State about the number and disposition of extradition requests brought under the treaty.
The 2003 agreement received criticism on a number of grounds. Most notably, the treaty eliminates the ban on extradition for political offenses for any offense that allegedly involves violence or weapons. The treaty also transfers responsibility for determination of whether a request is politically-motivated from the judiciary to the executive branch. Moreover, the agreement eliminates any statute of limitations.
A controversy surrounding three bankers led to the ratification of the treaty by the United States. Three bankers associated with NatWest were accused of fraud offenses in connection with Enron, the now infamous energy trading company that went bankrupt in 2001. According to allegations, the three conspired with former Enron executives over the sale of part of the company in 2000, which earned them a total of $7.3 million. The U.S. wanted to extradite the three bankers, but because the U.K. had ratified the treaty and the U.S. had not, critics in the United Kingdom said that the two nations did not have a reciprocal legal arrangement.
The bankers were extradited during the summer of 2006. In July 2006, British Home Minister Baroness Scotland traveled to the U.S. to urge the U.S. to ratify the 2003 treaty. On September 29, the Senate finally approved the pact. According to Robert Tuttle, the U.S. ambassador to the U.K., "I am extremely gratified at the unanimous support of the United States Senate for this extremely important Treaty. With the Senate's action, we can now have a fully modernized extradition relationship that helps to protect citizens of both of our countries and to improve the administration of justice."
A fact sheet about the extradition treaty is available from the Secretary of State's website at 〈http://www.state.gov/p/eur/rls/fs/34885.htm〉.
The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.
Bobby Fischer Escapes Extradition to the U.S.
Former world chess champion Bobby Fischer escaped extradition to the United States by Japanese officials when the nation of Iceland agreed to grant him citizenship in March 2005. U.S. officials had sought Fischer's arrest since 1992, when Fischer violated federal law by playing a chess match in the former Yugoslavia.
Fischer grew up in New York and began playing chess at the age of six. He gained celebrity for his chess-playing ability as a teenager, becoming the youngest grandmaster in history by the age of 15. Reports indicate that Fischer led a secluded lifestyle and played chess constantly. Fischer became a cold war icon when he faced Boris Spassky in a match in Reykjavik, Iceland, in 1972. After he defeated Spassky, Fischer appeared the covers of such publications as Time, Newsweek, and Sports Illustrated. Prior to that time, the Soviet Union had dominated the chess world, producing every world champion from 1948 to 1971.
Fischer defaulted his world title to Anatoly Karpov in 1975 after the International Chess Federation refused to comply with all of the 179 demands that Fischer had made in order to agree to the match. Fischer spent much of the 1970s and 1980s living in seclusion in Pasadena, California. He reportedly became more enigmatic, once having the fillings in his mouth removed in order to "prevent the Soviets from beaming in malignant waves." Although chess masters often sought Fischer out for counsel, he has remained withdrawn.
In 1977, Congress enacted the International Emergency Economic Powers Act, 50 U.S.C. §§1701 et seq. . This statute permits the president to issue orders that prohibit transactions in foreign exchange with another country. These orders may be issued where the president finds that a country presents an "unusual and extraordinary threat" to the United States. On June 5, 1992, President George Herbert Walker Bush signed Executive Order 12810, which prohibited transactions with the Federal Republic of Yugoslavia. The order came as a result of Yugoslavia's role in conflicts in Bosnia and Herzegovina.
Later that year, chess organizers convinced Fischer to face Spassky in a rematch of their 1972 battle, this time in Yugoslavia. Officials within the Treasury Department warned Fischer in a letter that U.S. policy forbids him from being involved in "business or commercial activities" in Yugoslavia. Officials believed that Fischer's involvement in the match amounted to an "exportation of services to Yugoslavia in the sense that the Yugoslav sponsor is benefiting from the use of your name and reputation," according to the Treasury Department's letter.
Fischer responded to the letter by spitting on it in public. He defeated Spassky again in what was billed as the "World Chess Championship Match" and received $3.3 million. In November 1992, a grand jury in the U.S. District Court for the District of Columbia issued an indictment, charging Fischer with performing a contract in Yugoslavia. A U.S. magistrate
judge issued an arrest warrant for Fischer in December 1992.
For more than a decade, Fischer stayed out of the U.S., moving among such countries as Japan, the Philippines, and Hungary. He became an outspoken critic of U.S. policy. Hours after the September 11th attacks in 2001, Fischer cheered the terrorists' actions on a Filipino radio station, saying the attacks were "wonderful news."
The American Embassy in Bern, Switzerland, issued a passport to Fischer in January 1997 that was valid through 2007. The Department of Justice and the Homeland Security Department contacted the Department of State in 2003 in an effort to revoke Fischer's passport. Shortly thereafter, the Department of State revoked the passport based on Fischer's arrest warrant. Officials sent Fischer a letter on December 11, 2003, to notify him that his passport had been revoked.
Fischer entered Japan in April 2004, using his invalid passport. Three months later, Fischer attempted to board a Japan Airlines flight from Tokyo to the Philippines. Fischer claimed that he did not know that his passport had been revoked until he was shown the letter after his arrest. Japanese officials detained him at the airport and later sent him to a detention center in the city of Ushiki. U.S. authorities sought to extradite him, submitting written requests to Japanese officials to turn Fischer over for deportation. Fischer responded by renouncing his American citizenship and filing documents in Japanese court asking for protection as a "political refugee."
Some groups and individuals began to work on Fischer's behalf to avoid the deportation. One group, the Tokyo-based Free Bobby Fischer, lobbied the Japanese government to allow Fischer to travel to Iceland. In Iceland, Saemi Palsson, one of Fischer's former security guards, arranged for Fischer to receive citizenship. In late March 2005, Japanese officials relented and allowed Fischer to fly to Reykjavik. A crowd of about 250 greeted Fischer and his fianceé at the airport.
As Fischer arrived in Iceland, another U.S. grand jury was reportedly reviewing tax evasion and money laundering charges against him. However, U.S. officials told news sources that the chances of Fischer's deportation from Iceland to the United States are slight.
EXTRADITION is the surrendering by one state to another or by one nation to another of an individual accused of a crime in the state or nation demanding the surrender of the accused. The accused who has fled to an asylum state or nation is deemed a fugitive of the law. A state or nation makes an extradition demand in order to put the accused on trial within its jurisdiction. In the United States extradition of an accused is either interstate or international. States and nations are not required automatically to surrender a fugitive because of the sovereignty of the states and nations. Sovereignty of the states and world nations necessitates extradition laws and treaties and extradition proceedings.
Interstate extradition or interstate rendition within the United States is authorized by Article IV, Section 2 of the Constitution, which states, "A Person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." Interstate extradition is also codified in U.S. federal law. A state, acting under authority of the Constitution or federal law, may only demand the surrender of a person who is accused of committing a crime within the requesting state.
A demand from a state for the surrender of a fugitive begins extradition proceedings. Extradition proceedings are not part of the legal trial to determine the fugitive's guilt or innocence of the crime. An extradition proceeding occurs, if at all, in the asylum state to consider the merit of the demanding state's charge against the accused. After receiving a written demand and examining the facts of the charge against the accused, the governor of the asylum state may grant or deny the demand to surrender the fugitive. If denying the demand, the governor may decide to bring the accused to trial within the asylum state's jurisdiction.
If a demanding state wants to try a fugitive within the state's jurisdiction for a crime committed in the asylum state or a third state, the demanding state must rely on the authority of state legislation rather than the Constitution and federal law. Extradition of a fugitive juvenile, as opposed to a fugitive adult, from an asylum state to a requesting state occurs only if it is determined that extradition of the fugitive juvenile is in the best interests of the United States and in the best interests of the juvenile.
International extradition exists only by authority of an international treaty. The United States has the right to make an extradition demand only if a treaty with the nation providing a fugitive with asylum includes an extradition agreement. The United States has a duty to surrender an accused only if the United States has a treaty containing an extradition agreement with the nation demanding the surrender of a fugitive. Absent a treaty, neither the United States government nor the foreign government has the right to demand or the duty to deliver a criminal fugitive.
Even with a treaty, the United States and the demanding or asylum nation may place restrictions on the duty to surrender a fugitive. The use of the death penalty in many states gives reason, as authorized in the governing treaty, for a foreign asylum nation to refuse to extradite a fugitive to the United States. The foreign asylum nation may refuse to extradite a fugitive unless the United States assures the asylum country that the death penalty will not be used if the fugitive is found guilty. The United States has a "political offense exception" to extradition, which provides that the United States will not extradite to a foreign nation a fugitive accused of revolutionary activity that the offended government deems a crime. Thomas Jefferson, credited with first putting the political offense exception into international treaties, wanted to protect revolutionaries from oppressive political systems. During the 1980s U.S. courts, attempting to exempt terrorists from the political offense exception, created "wanton crimes" and "war crimes" exceptions to the U.S. political offense exception to international extradition. By 2001 the United States had treaties containing extradition agreements with 107 of the 190 nations in the world.
Pyle, Christopher H. Extradition, Politics, and Human Rights. Philadelphia: Temple University Press, 2001.
See alsoSovereignty, Doctrine of .
Sandra M. Dunkin