What in the World is Extradition?

by Barbara D'Amato



With all the extradition issues wound into the slaying of Dr. Cornbleet and the fleeing of Peterson to a French jurisdiction, I realized I didn’t know the first thing about extradition. So I consulted Wikispousia.com and came up with Anthony D’Amato, a professor of law at Northwestern University, who specializes in international law and jurisprudence, the philosophy of law. He was kind enough to give me an overview.

Anthony D’Amato:

Extradition is one of the oldest practices of states. The ancient Hittites entered into elaborate extradition treaties written on bronze tablets. (Every one of those tablets was subsequently melted down, but the clay molds were preserved—as if today someone threw out all the original letters but kept the carbon paper).

Crimes back then, as they still mostly are today, were territorial. If someone committed murder in state A and fled to state B, there would be no law in state B that applied to his act. Hence he would have a safe harbor. But say the king of state A wanted the murderer to be brought back and executed. Fortunately, the king of B had a mirror-image interest in bringing back fugitives who had committed their crimes in the territory of B. Thus the conditions were ripe for treaties. The king of A pledged to arrest and transport fugitives back to state B, and the king of B agreed to do the same thing regarding fugitives who committed their crimes in state A.

The fugitives who were wanted the most were the ones who had committed political crimes, such as assassinations of government officials. Extraditing those fugitives was a prime motivation for entering into extradition treaties. On the other side of the coin, states were reluctant to extradite their own citizens. Suppose a citizen of A enters into B, kills someone there, and then runs back to A. His family and friends would protest his being extradited to state B where he would probably be executed for murder. Moreover, they could claim that state B had trumped up evidence against the citizen of A.

Today, extradition treaties sometimes exempt nationals (citizens) from being extradited. The extradition treaty between the United States and France has a curious article. It provides that France has no obligation to extradite its own citizen to the United States to stand trial for a murder committed in the United States. It also provides that if France wants to extradite an American for a murder committed in France, the United States has the discretion either to extradite or not to extradite that person.

The history of political extradition in international law would not have been imagined by the most visionary Hittite. In the nineteenth century following the American and French revolutions, people began to realize that political crimes and offenses were often necessary to rid a country of despotic rulers. If a ‘freedom fighter’ who shot a government official in A fled to B, obviously the government of A would desperately want him back to be tried for treason. The fugitive asked the government of B for asylum. And various nations in B’s position for various reasons did grant asylum. In Latin America, where changes of government by assassination seemed to exceed (in the popular imagination) changes of government by election, a strong rule in favor of asylum developed where escaping revolutionaries were granted asylum almost as a matter of course.

The ‘political offense exception’ to extradition took root, and found itself spelled out in numerous extradition treaties. Ironically it was the United States and Great Britain in 2003 who retreated from the political offense exception. Great Britain had been furious that several American courts refused to approve extradition for alleged Irish terrorists who claimed their acts (including bombs) were politically motivated. The Supplemental Extradition Treaty of 2003 removed the political offense exception for acts involving violence or weapons.

And almost as an afterthought, the 2003 treaty also removed the nationality exception to extradition.

What about extradition of persons to tribunals in The Hague who are accused of committing war crimes or genocide? Since these are crimes under international law, and since international law applies everywhere, the particular law of the territory in which the crime took place is irrelevant. Hence the accused persons have no safe harbor. They are subject to what is called universal jurisdiction. Technically speaking they are not extradited to The Hague but rather are remitted there.

Barbara, Back again:

This is a thumbnail. All the books written on extradition laid end to end [don’t make jokes having to do with killing lawyers] would reach from here to Seahawks Stadium. Realizing this, Tony has said he would respond to questions on the subject.