Common use of Extradition Defined Clause in Contracts

Extradition Defined. Extradition is the process by which a person charged with or convicted of a crime under the laws of one state is arrested in another state and returned to the former state for trial or punishment. Although states have no general obligation in interna- tional law to extradite persons, the practice has become widespread and is nearly universal. Even so, the process of international extradition has serious defects. Due to so many unique legal systems throughout the world, no single set of rules is avail- able to govern the process of international extradition39. Consequently, the conditions upon which extradition may be granted vary widely. Most states require that fugitives can only be extradited from their territory pursuant to authorization by statute or treaty. Virtually all extraditions take place pursuant to bilateral extradition treaties or conventions, although certain excepted conditions can complicate the process between states. Extradition is vital for enforcing international legal rules and compelling respect for law and order. Without the political capability or legal means to extradite accused criminal offenders to states where they can be investigated, prosecuted, convicted, and appropriately punished, those persons will remain at large, the beneficiaries of impunity. Thus, extradition becomes neither a diplomatic game nor trivial activity in seeking to apprehend international criminals. It is an international process that is essential today for bringing international fugi- tives to justice in states where their alleged criminal offences were committed. Extradition procedures thus provide a necessary conduit for bringing to justice indi- viduals accused of international criminal offences, including of terrorist activities. A criminal who succeeds in placing himself outside the territory of the state where he committed the crime also places himself beyond the reach of the law that he has violated. Through the formal process of extradition, one government transfers the accused individual to the custody of another government. This process is usually done by treaty, reciprocity, or comity. Indeed, four centuries ago, ▇▇▇▇ ▇▇▇▇▇▇▇ asserted that it was a state’s duty either to extradite or prosecute accused criminals found within its territories if a second state requests extradition40. That vital role is highlighted by key provisions in the contemporary legal instruments to suppress international terrorist activities, as extradition is used to facilitate the apprehension, prosecution, trial, and punishment of individuals who commit acts of terrorism. Additionally, if vigorously exercised and enforced, extradition may serve as a viable deterrent to the commission of criminal terrorist acts. Historical experience, however, demonstrates that a treaty agreement providing for the extradition process between states, while necessary, may not be sufficient. Under 39 For a view of the extradition process, see ▇▇▇▇ ▇. ▇▇▇▇▇▇, Some Myths of United States Extradition Law, 76 GEO. ▇.▇. 1441 (1988) and ▇. ▇. ▇▇▇▇▇▇, International Extradition and Global Terrorism: Bringing International Criminals to ▇▇▇▇▇▇▇, ▇▇▇. L.A. Int’l & Comp. L. Rev. [Vol. 25:493] 40 ▇▇▇▇ ▇▇▇▇▇▇▇, DE ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ LIBRI TRES 526–27 (▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ trans., Oceana Publications 1964)(1583–1645). contemporary international law, no universal rule obligates governments to extra- dite, or even prosecute, alleged offenders who hide in their territory41. Indeed, the international extradition process today operates almost entirely through bilateral treaties, and certain conditions such as the nationality of the offender, concern over the fairness of a foreign trial, or the supposed political nature of the offence can obstruct the extradition process. Moreover, the international extradition system is neither comprehensive nor complete. No state has extradition treaties with every other state42. Perhaps what is most problematic for the extradition cases involving acts of terrorism is the political offence exception. Many modern extradition treaties specifically exempt political offences from extradition, since liberal and democratic governments developed a strong antipathy toward the idea of surrendering dissidents into the hands of a despotic government43 There are, however, no recognized criteria as to what constitutes a “political” offence, nor is there a rule of international law prohibiting the extradition of political offenders. As a result, the decision whether to extradite rests on subjective criteria, as determined by the holding government. Ac- cordingly, the bilateral extradition system can provide only partial remedies for bringing international terrorists to justice. The consequence is that, while govern- ments might agree that terrorist acts rise to being criminal offences against the inter- national community, strict multilateral enforcement through extradition in prosecut- ing such acts may still be lacking. Since 1970, the threat of various international terrorist activities prompted the ad hoc negotiation of a series of special multilateral agreements dealing with criminal activities, nearly all of which contain specific extradition provisions. These instru- ments contribute much to expanding the opportunities for governments to extradite accused offenders to other states, even in the absence of specific bilateral treaties. Pre-eminent among the concerns for which multilateral agreements have been nego- tiated are the international criminal offences associated with terrorist acts. The United Nations assumed the lead role as convener and sponsor of the various diplomatic conferences that negotiated these anti-terrorism instruments. The ration- 41 See M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Universal Jurisdiction for International Crimes: Historical Per- spectives and Contemporary Practice, 42 VA. J. INT’L L. 81, 83 (2001); ▇. ▇▇▇▇▇▇ BAS- SIOUNI & ▇▇▇▇▇▇ ▇. ▇▇▇▇, AUT DEDERE AUT JUDICARE, THE DUTY TOEXTRADITE OR PROSECUTE IN INTERNATIONAL LAW, at XI (1995); see also RESTATEMENT (THIRD) OF FOR- EIGN RELATIONS LAW OF THE UNITED STATES § 401 cmt. b (1987) [hereinafter Third Re- statement]. 42 The United States, for example, has extradition treaties with approximately 100 states, al- though today there are at least a total of 193 states in the international community. See U.S. DEPT. STATE, A List of Treaties and Other International Agreements of the United States in Force as of January 1, 2000, pt. 1 (Bilateral agreements) passim, at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/www/ global/legal_affairs/tifindex.html (last visited Sept. 21, 2003). 43 For overviews of the political offense exceptions, see M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Interna- tional Extradition: United States Law and Practice 502–83 (3rd ed. 1996) and ▇. ▇. ▇▇▇▇▇▇▇▇▇, Terrorism, Drugs, International Law, And The Protection Of Human Liberty 264–70 (1992). ale for this U.N. strategy is plainly evident. Terrorist activities challenge in many ways the core principles and mandates of the organization. Terrorist acts are intended to be assaults on the principles of law, order, human rights and peaceful settlement of disputes on which the world body was founded. In addition, the effectiveness of any international legal regime depends on its imple- mentation and support by participant governments. The U.N. system must therefore strive to raise awareness of the various threats posed by terrorism. To meet this goal, it stipulated that certain terrorist acts rise to the level of international crimes. Between 1963 and 2005 the United Nations spon- sored and promoted the promulgation of 13 law-making instruments relating to international terror violence. Further, the United Nations today is promoting the negotiation of another prominent international instrument, a comprehensive conven- tion on the suppression of international terrorism44. In nearly all of these instru- ments, extradition is assigned the central role in law enforcement. For extradition of an accused terrorist to proceed, however, the government of a state must establish lawful jurisdiction over that offender. Using military force governed by humanitarian law to counter terrorist activities is but one facet of counterterrorism policy45. It is vital that governments practice a law enforcement approach as well. Under this law enforcement approach, the strategic key to combating cross-border terrorist activities remains the apprehension, prosecution, and punishment of persons who perpetrate or conspire to commit such criminal offences. In order to reach this goal, what is required are not only close international cooperation and collaboration, but also the open diplomatic channels and feasible legal means. While much coop- eration to combat terrorism has been accomplished through bilateral efforts46 and regional organizations, such as the European Union (EU) and Organization of 44 For a discussion of various attempts to define terrorism see ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Is Terrorism Worth Defining?, 13 Ohio N.U.L. Rev., 97 (1986). 45 On September 20, 2001, in an address to a Joint Session of Congress and the American peo- ple, President ▇▇▇▇▇▇ ▇. ▇▇▇▇ declared war on terrorism in general and al Qaeda in particu- lar. 37 WEEKLY COMP. PRES. DOC. 1347 (Sept. 20, 2001). For international legal implica- tions, see ▇▇▇▇ ▇. ▇▇▇▇▇, America’s New War on Terror: The Case for Self Defense Under International Law, 25 HARV. ▇.▇. & PUB. POL’Y 559 (2001). On the legal distinctions and implications of terrorism as war vis-à-vis terrorism as a crime, see ▇▇▇▇ ▇▇▇▇▇▇▇, Choices of Law, Choices of War, in 25 HARV. ▇.▇. & PUB. POL’Y 457 (2001). 46 Bilateral cooperative efforts to apprehend and prosecute terrorists are conducted primarily through general extradition treaties between states. Realizing the importance of the extradi- tion process, the Eighth U.N. Congress on the Prevention of Crime and Treatment of Offend- ers in 1990 completed the drafting of a “Model Treaty on Extradition” to assist governments interested in negotiating bilateral agreements to improve cooperation in preventing interna- tional crimes and promoting criminal justice. UNITED NATIONS, EIGHTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS, REPORT OF THE EIGHTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME AND TREAT- MENT OF OFFENDERS, U.N. Doc. A/CONF.144/28 (1990). 62 American States (OAS)47, the chief forum for coordinating multilateral responses to the world-wide terror threat is the United Nations (UN). 47 ▇▇▇▇://▇▇▇.▇▇-▇▇▇.▇▇▇/arab/docs/league/terrorism98.htm (articles 5–8 concern extradition of offenders) (last visited Sept. 21, 2003); Convention of the Organisation of the Islamic Con- ▇▇▇▇▇▇▇ on Combating International Terrorism, July 1, 1999, U.N. GAOR, 54th Sess., Agenda Item 160, at 15–16, U.N. Doc. A/54/637 (2000) (articles 5–8 concern extradition). Proliferation Security Initiative (PSI) PSI I: Application in the Baltic Sea