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International Extradition
International extradition is the process used by a country when it wants to secure the presence of an individual either to stand trial for a crime or to serve a prison sentence after conviction when that individual is no longer in that country. International extradition is also extremely complicated. McNabb Associates had decades of experience in international extradition matters, and the firm's Senior Principal, Douglas McNabb, has testified in the United Kingdom as an expert witness on international extradition and United States federal criminal law.
There are always three parties involved in an international extradition request. The first party is the defendant, who is either wanted for trial, or has been convicted of a crime but has left the country in which he has been convicted. The second party is the country which wants that individual, which is known as the Requesting State. The third and final party is the country in which the defendant is located, which is known as the Requested State.
An international extradition request begins with an arrest warrant issued by a competent judicial authority in the Requesting State; often that arrest warrant will be forwarded to Interpol, which will then issue a Red Notice to Interpol member nations. Once the individual is located in the requested state, which may provisionally arrest the individual based on the Red Notice, the extradition process will formally begin by a diplomatic request from the Requesting State to the Requested State. Extradition is ordinarily governed by the terms of a bilateral extradition treaty between the Requesting State and the Requested State; the United States, for example, has bilateral extradition treaties in force with over 100 countries.
The extradition treaty will name the extraditable offenses in one of three methods:
- Laundry List. The first method is the traditional laundry list of extraditable offense found in older extradition treaties, such as the treaty between the United States and Nicaragua. In this type of treaty, the only extraditable offenses are those that are specifically enumerated, typically involving crimes of violence, kidnapping, or counterfeiting.
- Dual-Criminality. The second method is the more flexible dual-criminality approach. In this method, extradition can be had for any offense which is a crime in both countries punishable by deprivation of liberty for more than one year. This approach is found in all modern treaties, such as the treaty between the United States and Austria. It is favored in the international community because it makes it easier for the Requested State to secure the presence of the individual for activities which have been criminalized since the conclusion of the treaty.
- Hybrid. The final method is the hybrid method, which incorporates both the laundry-list approach and the dual-criminality approach. This type of approach can be seen in the 1972 extradition treaty between the United States and the United Kingdom.
Changes to extradition treaties are typically done through protocols, and the most common type of protocol converts treaties containing antiquated laundry lists into a more modern dual-criminality treaty. As these protocols are signed however, extradition processes can become confusing. For example, the United States and the United Kingdom revamped their extradition relationship in 2003; the United Kingdom has enshrined those changes into its domestic laws, while the United States has yet to ratify the new relationship. As a result, the United States can make extradition requests based on the UK's Extradition Act of 2003 (which has much lower proof threshholds than the treaty that is still currently in force between the two countries), while any request from the United Kingdom will be subject to the still-in-force extradition treaty dating from 1972 (with a supplementary signed in 1985). Such imbalance can often cause international comity problems.
Extradition can also be conducted under the provisions of multilateral conventions, which often place duties on member nations to either prosecute the individual for specific acts or extradite the individual to the Requesting State. In these conventions, countries who have extradition treaties between each other agree to include the subject of the convention (such as hijacking) as an extraditable offense in any existing or future extradition treaty. Furthermore, in the absence of a bilateral extradition agreement, the contracting nations agree that extradition for the subject can be had, even in the absence of a bilateral treaty, subject to certain conditions.