Extradition

In one line

Extradition is one State handing a wanted person over to another to be tried or punished, and it is the answer to the problem that enforcement jurisdiction stops at the border.

In the wording a student can write in an exam: extradition is the formal surrender by one State to another, at the latter's request, of a person accused or convicted of an offence committed within the jurisdiction of the requesting State. There is no general duty in customary international law to extradite; the obligation arises from treaty, and it is subject to established conditions, chiefly double criminality, the rule of speciality, and the political offence exception.

Why it exists

[State Jurisdiction] ends with the point this chapter answers. A State may legislate for conduct abroad on any of five bases, and its courts may try it, but enforcement jurisdiction is strictly territorial. It cannot send police into another State to make an arrest.

So a fugitive who reaches another country is beyond reach unless that country cooperates. Extradition is the machinery of that cooperation, and without it every border would be a wall against justice and a shelter for the guilty.

There is no general duty to extradite. Absent a treaty, a State may refuse, and the refusal is lawful however grave the offence. That is a consequence of sovereignty, and it is the reason the network of bilateral extradition treaties is as dense as it is.

The alternative to a duty to extradite is a duty to prosecute. Many modern conventions on terrorism, hijacking, torture and corruption use the formula aut dedere aut judicare, extradite or prosecute, which leaves the requested State a choice but not the option of doing nothing.

The conditions

Six recur in treaties and in national statutes, and an examiner expects them named.

Double criminality

The act must be an offence in both States, the requesting and the requested. It need not carry the same name or the same penalty; what matters is that the conduct is criminal in both.

The reason is fairness to the requested State, which is asked to use its own coercive machinery. It will not imprison and surrender a person for conduct its own law permits.

The rule of speciality

The surrendered person may be tried only for the offence for which he was surrendered, and not for some other offence committed before the surrender, unless the requested State consents or the person has had an opportunity to leave and has not taken it.

Its purpose is to stop a State from asking for a person on one charge and trying him on another, which would let it evade every condition the requested State applied.