Extradition

Introduction:
The term extradition has derived from two Latin words ex and traditum. Ordinarily
it may mean ‘delivery of criminals’, ‘surrender of Fugitive’, or ‘handover of
fugitives According to Oppenheim, extradition is the delivery of an accused or a
convicted individual to the state where he is accused of, or has been convicted of, a
crime, by the state on whose territory he happens for the time to be.
With the development of air traffic cases of person escaping to other state after
committing a crime started occurring more. A state can’t punish a person who has
committed crime elsewhere because of lack of jurisdiction and there such persons
are surrendered to the state where they have committed the crime. Surrender of an
accused or convict is referred as extradition. Surrender of a person is opposite to the
traditional practice of the states to grant asylum. Thus, in those cases where the
tradition of granting asylum is not followed, it is known as extradition.
Purpose of Extradition:
A criminal is extradited to the requesting state for the following reasons
1) Suppression of crime:
Extradition is a process towards the suppression of crime. Normally a person
cannot be punished or prosecuted in a state where he has fled away because
of lack of jurisdiction or because of some technical rules of criminal
law. Criminals are therefore extradited so that their crimes may not go
unpunished
2) Deterrent effect:
Extradition acts as a warning to the criminals that they can’t escape
punishment by fleeing to another state. Extradition therefore has a deterrent
effect.
3) Safeguarding the interests of Territorial state:
Criminals are surrendered as it safeguards the interest of the territorial state.
If a particular state adopts a policy of non-extradition of criminals they would
like to flee to that state only. The state therefore would become a place for
international criminals, which dangerous for it, which indeed would be
 dangerous for it because they may again commit a crime there, if they would
left Free.
4) Reciprocity:
Extradition is based on reciprocity. A state which is requested to surrender the
criminal today may have to request for extradition of a criminal on some
future date.
5) International co-operation:
Extradition is done because it is a step towards the achievement of
international co-operation in solving international problems of a social
character. Thus it fulfills one of the purposes of UN as provided under para 3
of article 1 of the charter.
6) Evidence:
The state on whose territory the crime has been Committed is in a better
position to try the offender because the evidence is more freely available in
that state only.
Basis of the Principle of Extradition:
Ordinarily each State exercises complete jurisdiction over all the persons within its
territory. But sometimes there may be cases when a person after committing crime
runs away to another country. In such a situation, the country affected finds itself
helpless to exercise jurisdiction to punish the guilty person. This situation is
undoubtedly very detrimental for peace and order. In such a situation peace and order
can be maintained only when there is international co-operation among the States.
There is social need to punish such criminals and in order to fulfil this social
necessity the principle of extradition has been recognized. The inability of a State to
exercise its jurisdiction within the territory of another State would seriously
undermine the maintenance of law and order if there were no cooperation in the
administration of justice. The awareness among national decision makers of the
social necessity of jurisdictional co-operation is illustrated by the widespread
practice of returning a person who is accused or who has been convicted of a crime
to the State in which the crime was committed.
Principles of Extradition:
The principles of extradition are as follows
 Double criminality
  Extraditable offence
 Double jeopardy
 Rule of specialty
 Rule of reciprocity
 Nationality
 Refugee, Human Rights & Non Discrimination
 Political or Military Character
 Conviction based on trial in absentia
Double criminality:
Double criminality refers to the characterization of the relator’s criminal conduct in
so far as it constitutes an offence under the laws of the two respective states. The
general rule is that the offence in respect of which extradition is requested must be
an extraditable offence not only under the law of the requesting state but also under
the law of the requested state. Hence, if any act is considered a crime is the state
requesting extradition both if it is not a crime in the country of refuge extradition is
not granted.
Example:
In Eisler case 1939 the fugitive Eisler was convicted for being member of CPUSA
hut managed to flee and reach UK. He was arrested and produced For trail at the
English magistrate, held to be released on the ground that the offence for which he
was convicted in USA was not recognized as a crime in UK.
Extraditable offence:
The very first requirement for a successful extradition is that the offence committed
must be an extraditable offence. Extradition is a procedure appropriate only for the
more serious offences and accordingly the national extradition law of most States
limits the number of extraditable offences either to certain specific offences or to
offences subject to a specified level of punishment
Double Jeopardy:
The most basic understanding of double jeopardy is that it refers to prosecuting a
person more than once for the same offense. Once you are acquitted or convicted of
a specific instance of violating the law however, you cannot be prosecuted (or
punished again, if convicted) on that same charge by the same government for that
same instance of violating that law.
Example:
Guy Paul Morin, who was wrongfully convicted in his second trial after the acquittal
in his first trial was vacated by the Supreme Court of Canada.
Rule of Specialty:
This doctrine is premised on the assumption that whenever a state uses its formal
processes to surrender a person to another state for a specific charge, the requesting
state shall carry out its intended purpose of prosecuting or punishing the offender
only for the offence for which the requested state conceded extradition. The doctrine
of specialty developed to protect the requested country from abuse of its
discretionary act of extradition. A fugitive criminal cannot be tried for a crime other
than the crime for which he was extradited, however, if he escapes and in rearrested,
he can be tried to other offences too (US versus Rouscher, where the US supreme
court held that the person extradited could only be tried for the crime extradited for
not for another, the other leading case is R versus Corrigan, 1931)
Rule of Reciprocity:
Reciprocity is one of the legal basis for extradition in the absence of a treaty which
is a part of international principles of friendly cooperation amongst nations.
Reciprocity, as a substantive requirement of extradition (whether based on a treaty
or not) arises with respect to various specific aspects of the process.
Extradition of nationals:
In principle, any individual, whether he is a national of the requesting State, or of
the requested State, or of a third State, may be extradited. Many States, however,
never extradite one of their nationals to a foreign State Does it mean the offender
goes unpunished? The answer is negative. In such a case the requested party has to
initiate criminal prosecution against any such person for the same offence according
to its laws.
Political or Military Character:
There is an important principle in international law that the political criminal
shall not be extradited. For example Re Meunier case in which the accused was an
anarchist and was charged with causing two explosions in para café and two
barracks. After committing the offence, he fled to England. France demanded his
extradition. The accused contended that the nature of his crime was political and
therefore be could not be extradited. The practice of non-extradition for political
crimes began with French Revolution of 1789. It is also a restriction on the scope of
extradition. Military criminals shall also not be extradited who have not been
charged of war crimes
Importance of Extradition:
The general desire of all state to ensure that serious crimes do not go unpunished. A
state in whose territory a criminal has taken refuge cannot prosecute o punish
him purely because of some technical mile of criminal law or for lack of
jurisdiction. Therefore to close the net round the fugitive offenders, international
law applies the maxim “aut punier aut didere” (the offender must be punished by
the state of refuge or surrendered to the state which can and will punish him, or
either punish or extradite) Hence, the necessity of extradition is due to: A desire that
no crime should go unpunished. It would be better if the criminal is punished where
he committed the crime (territoriality of criminal jurisdiction)