Extradition

A blog post by Maria Profeta, Junior Associate.

Extradition is a process through which foreign governments can work together to seek out criminals which have fled from their country of origin to another.[1]  The process generally exists through bilateral treaties between governments and functions as a form of diplomacy.[2]  Extradition treaties outline extraditable crimes and non-extraditable offenses within its provisions as well as the rules and procedures for requesting and certifying extradition.[3]  Generally, the extradition process is preserved for offenses outlined within the international treaties.[4]  Furthermore, offenses must qualify under the concept of dual criminality[5] meaning that the offenses would establish criminal culpability under the current laws in place of both states.[6]

Under the United States law, extradition may occur only if a treaty is in place.[7]  However, some countries may grant extradition of a foreign national absent a treaty through an offer of reciprocity.[8]  Additionally, U.S. laws allow for extradition without treaties for non–U.S. citizens, nationals, or permanent residents, who have committed violent criminal acts in foreign countries against U.S. nationals.[9]

For foreign requests of extradition– asking for the U.S. to grant the extradition request of a U.S. national– the embassy of the requesting country contacts the United States Department of State.[10]  The Department of State then reviews and forwards the request to the Department of Justice’s Criminal Division’s Office of International Affairs (OIA).[11]  The two aforementioned agencies work together to determine compliance with treaty provisions and obligations between the U.S. and the requesting state.[12]  Both agencies verify the existence of any bilateral treaties, the provisions of such treaties, whether the crimes identified by the requesting state satisfy extraditable crimes under the terms of the treaty, and that all documentation is properly certified.[13]  Generally, following an extradition request from a foreign state, the OIA proceeds in several steps.[14]  The request is forwarded to the U.S. Attorney’s Office of the district where the fugitive is located, after which a proper warrant and arrest of the fugitive are conducted.[15] The fugitive then stands before a magistrate judge[16] outside of the protection of the Federal Rules of Evidence and the Federal Rules of Criminal Procedure.[17]  Under the extradition statute,[18] a hearing is scheduled to determine the validity of the request by the foreign state, with the option for the fugitive to waive such a hearing and consent to the extradition.[19]  Once determined, the extradition certification is not appealable by either the government or the fugitive.[20]  The Secretary of State[21] is then vested with the ultimate designation of deciding whether to issue a surrender warrant.[22]  The OIA then works with the foreign government to complete the request and prepare the transfer of the fugitive.[23]

Although the U.S. has treaties with the majority of states,[24] the U.S. does not have treaties with China, Iran, North Korea, Russia, and many Middle Eastern, African, and former Soviet bloc countries.[25]  Yet, the mere existence of a bilateral extradition treaty may not be enough for the application of such treaty.[26]  Other external factors such as political relations, business/commercial relations, and domestic policy could influence whether or not an extradition request is denied or granted.[27]  Additionally, domestic politics at a local level may have greater implications on international relations by influencing a state’s decision to either comply with or ignore obligations set forth by bilateral extradition treaties.[28]  However, where international political tensions may be interfering with a country’s domestic agenda, other avenues circumventing extradition may be explored.[29]

[1] Jonathan Masters, What Is Extradition?, Council On Foreign Relations, (Last updated January 8, 2020, 7:00 AM), https://www.cfr.org/backgrounder/what-extradition.

[2] Id.

[3] Ann Powers, Justice Denied? The Adjudication of Extradition Applications, 37 Tex. Intl. L. J. 277, 284 (2002); Emily Edmonds-Poli, & David Shirk, Extradition as a Tool for International Cooperation: Lessons from the U.S.-Mexico Relationship, 33  Md. J. Int’l L.. 215 (2018) [hereinafter Lessons from the U.S.-Mexico Relationship].

[4] Id.

[5] Id.

[6] Michael John Garcia & Charles Doyle, Extradition to and from the United States: overview of the law and recent treaties, CRS, https://fas.org/sgp/crs/misc/98-958.pdf (Mar. 17, 2010).

[7] 18 U.S.C. § 3184 (extradition statute).

[8] U.S. Dep’t of Just., Just. Manual §9-15.100 (2018) (discussing general principles relating to obtaining fugitives from abroad).

[9] Id.; see also 18 U.S.C. §§ 3181, 3184

[10] U.S. Dep’t of Just., Just. Manual §9-15.700 (2018) (explaining foreign extradition and provisional arrests requests).

[11]  Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] 18 U.S.C.§ 3184 (the extradition statute provides that a magistrate judge may conduct extradition hearings, as do most federal court rules).

[17] See Fed. R. Evid. 1101(d)(3); Fed. R. Crim. P. 1(a)(5)(A) (acknowledging that such federal rules of evidence and criminal procedure do not extend over fugitives at extradition hearings).

[18] 18 U.S.C.§ 3184

[19]  U.S. Dep’t of Just., Just. Manual §9-15.700 (2018) (Interesting to acknowledge the difference here with extradition and diplomatic privileges and immunities. With extradition requests, a foreign national can waive the process in the U.S.  and consent to the extradition of the requesting state. However, with diplomatic privileges and immunities, the very basis is controlled by states without allowing for individual input).

[20] See Id. (noting that the fugitive may petition for a writ of habeas corpus under 28 U.S.C. § 2241).

[21] See 18 U.S.C.§§ 3186, 3188

[22] U.S. Dep’t of Just., Just. Manual §9-15.700 (2018)

[23] Id.

[24] 18 U.S.C. § 3181 (providing a list of countries the United States has extradition treaties with).

[25] See What is Extradition?, supra note 1; see also U.S. Dep’t of Just., Just. Manual §9-15.100 (2018) (indicating that a “list of countries with which the United States has an extradition treaty relationship can be found in the Federal Criminal Code and Rules, following 18 U.S.C. § 3181, but consult the Criminal Division’s Office of International Affairs (OIA) to verify the accuracy of the information”).

[26] See What is Extradition? supra at note 1.

[27] Id.

[28] William Magnusum, The Domestic Politics of International Extradition, 52 Va. J. Int’l L. 839, 843 (2012) (discussing the way domestic politics influences international law and custom).

[29]  United States v. Alvarez-Machain, Int’l Crim. Database, http://www.internationalcrimesdatabase.org/Case/1161/Alvarez-Machain/ (last visited Feb. 11, 2021).

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