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AN APPRAISAL OF THE CONCEPT AND PRACTICE OF EXTRADITION UNDER INTERNATIONAL LAW
Customary international law and treaties have evolved over the centuries by the willing and active commitments of nations to subdue criminals tendencies by punishing fugitive offenders who attempt to escape from justice by seeking refuge in another nations. Extradition has been adopted to effectively prosecute fugitive offenders without offending the sovereignty of a sister state, and without compromising the doctrine of inviolability under international law. One of the problems of this research is that political offence is an exception to extraditable offences, and a concept which is troublesome in the determination of extraditable offence. It is disheartening to learn that some fugitives hide under this exception to escape the wrath of the law. Another problem of this research is the reluctance of some countries to subscribe to the principle of reciprocity and international morality in considering a request for extradition. The attitude of these states has made their territoriesa Haven for fugitive criminals. Another problem of this research is the inherent loop holes in the laws of extradition with particular reference to political offence exception. It is disheartening to learn that bilateral and multilateral treaties, and municipal extradition laws of state parties have made political offence as an exception to extraditable offences, but contain no provision geared towards the ingredients of a political offence that are of universal application. This legal challenge made different nations to ascribe diverse meanings to political offence. The research, therefore, traced the history and development of the practice of extradition in international. It also appraised the nature, scope and principles of extradition in order to ascertain whether the original philosophy behind the birth and practice of extradition amongst sovereign states still exists. It also identified the definitive inadequacy of the concept of political offence, and how it has hampered the smooth practice of extradition.The methodology used in achieving this aim is doctrinal method, which is a library oriented research. It also dwelled on the practice of extradition amongst some sovereign states like England, United States of America and Nigeria. The practice of extradition from the Nigerian dimension of certain instances, like Umaru Dikko, Enahoro and Ojukwu, etcetera, were analyzed and some positive lessons discovered. The research found that political offence exception is an obstacle in the determination of extraditable offences. It has also been found that state parties to extradition agreements take undue advantage of the inherent loop holes in the laws of extradition to avoid their international obligation. It has also been found that domestic extradition laws of state parties empower the Attorneys-Generals or Foreign Ministers who are political appointees to determine which offence is of political character. The research also finds that extradition proceedings are conducted by the requested state, who is the complainant, the prosecutor and the judge. This is difficult to be reconciled with the fair hearing principle of Nemo Judex in Causa Sua. The research recommended that only the courts would be in a better position to determine whether or not a particular offence is political, and not Attorneys-Generals or Foreign Ministers who are political appointees and their judgment is likely to be influenced by politics or other extraneous considerations. The research also recommended that there is need for establishment of a neutral international judicial body to sit in a neutral state to conduct extradition proceedings. It has also been recommended that in the interest of all humanity, municipal legislation on extradition should expressly provide the ingredients that constitute the political offence and the political offence exception should not always be treated like a sacred veil because it is many times used as a shield to protect fugitive criminals.
There is a universal righteous indignation against crimes as constituting a clog in the wheels of peace, security and progress of society. Consequently, the fight against international crimeshave over the years become a subject of concern amongst sovereign states.This is more particularly because these sovereigns dearly desire to develop a mechanism either in the form of bilateral or multilateral treaty that will effectively prosecute international criminals without offending the sovereignty of a sister state and without compromising the doctrine of inviolability under international law. This is the primary philosophy behind the birth of the concept and practice of extradition under international law.The word “extradition” is derived from the Latin words“ex” and “traditum” which means to “deliver from”1. It basically, involves the process whereby, under a treaty or on reciprocity, one state surrenders to another state, at its request, a person accused or convicted of a criminal offence committed against the law of the requesting state for trial or sentence2. The practice of extradition is in the interest of all nations; Lord Russell, in Re-Arton3 captures the philosophy behind the practice of extradition in the following
The law of extradition is founded upon the broad principle, that it is in the interest of civilized communities that crimes should not go unpunished, and it is part of the comity of nations that one state should afford to anotherevery assistance towards bringing persons guilty of such crimes to justice.
Fundamentally, the concept and practice of extradition under International Law was a mechanism developed by the conference of sovereign states, predicated on the notions and basic principles of neighborliness and reciprocity with the aim of combating international crimes and apprehension of fugitive offenders4.The concept and practice of extradition dates back to the ancient middle age and far eastern civilization. It was perceived as a matter of courtesy and goodwill between sovereigns5. The subject of extradition is much older than modern International law6 and pre-dates even the origin of modern concept of nation-state based on organized rules of international behavior. Without extradition, international criminal offenders would be able to escape justice by moving from one country to another as it not possible for foreign authorities to arrest a fugitive offender in another country without extradition. Extradition allows countries to make request for another country to arrest and transfer a fugitive offender in order to prosecute, convict, sentence or enforce an already imposed sentence on them.
The reality on ground is that if the ills associated with the practice of extradition internationally are not curbed in good time, diplomatic relations are most likely to become unhealthy amongst sovereign states; international criminals will surely make head-way in their nefarious activities; and the original philosophy behind the concept and practice of extradition which is to curb international crimes will be lost. This research appraises the concept, practice and procedure of extradition under International Law. It is, therefore, a modest effort to delve into the slippery legal terrain governing the trend and the various manifestations of the intricacies associated with extradition, especially in our contemporary era where there is high tendency
among our world leaders and some prominent individuals to abuse public office or commit some nauseating crimes and attempt to seek for asylum elsewhere.
1.2 Statement of the Problem
This research work has identified the following as problems associated with the concept and practice of extradition under international law.
The obligation of state parties to extradition agreements has been hampered by the political offence exception under the law of extradition. Political offence exception has a firm root and history under the law of extradition. It is good that offences with characterization of politics should not be within the extraditable offences. This is because they are not naturally or traditionally core offence with all the ingredients of what constitutes an “offence” or “crime”. However, political offence is an exception, and a concept which is troublesome in the determination of extraditable offences. It is disheartening to learn that some fugitives hide under this exception to escape the wrath of the law.
The reluctance of some countries to subscribe to the principle of reciprocity and international morality in considering a request for extradition is another challenge facing the practice of extradition. There is a misconception as to the fact that the doctrine of reciprocity is the foundation upon which a successful practice of extradition resides. As it is, the doctrine of reciprocity has less potency and minimal viability due to the reluctance of some states to subscribe to its practical operation. It is, at best, effective only in theory. The attitude of these states has made their territories a Haven for fugitive criminals. We have seen this attitude in the United Kingdom and Ivory Coast, on the extradition requests by Nigeria over Umaru Dikko7
and Ojukwu8. The recent one, is that of Buruji Kashamu, where the Nigeria government, under Jonathan administration was reluctant to extradite the fugitive to the United States of America, despite the extradition treaty between Nigeria and the United States of America9.
Another major challenge is the inherent loop holes in the laws of extradition with particular reference to the doctrine of political offence exception. It is disheartening to learn that bilateral and multilateral extraditiontreaties, and municipal extradition laws of state parties have made political offence as an exception to extraditable offences, but contain no provision geared towards the ingredients of a political offence that are of universal application.10As it is, an offence of a political character is determined by a requested state. As a result of this legal challenge, different nations ascribe diverse meanings to political offence.
Another problem facing the practice of extradition is Jurisdictional Matters. Whether extradition proceedings are to be conducted domesticallyor internationally have seriously hampered the development of this area of law. Extradition proceedings are conducted by the requested state who is the complainant, the prosecutor and the judge. This is difficult to be reconciled with the fair hearing principle of memo judex in causasua, especially where the fugitive is a national of that requested state. In this circumstance, prosecution hardly yields positive results, if the legal process of prosecution and sanction is often controlled by the fugitive‟s sympathizers.
Aim and Objectives of the Research
This research work seeks to achieve the following aim and objectives.
This research work aim at tracing the history and development of the practice of extradition under International Law and appraising the nature, scope and principles of extradition with the following objectives:
1. To ascertain whether the original philosophy behind the birth and practice of extradition amongst sovereign states still exists;
2. To trace the basis of the political offence exception. In order to identify those who have a historic claim to the political offence exception under the law of extradition,
3. To identify the definitive inadequacy of the concept of political offence and how it has hampered the smooth practice of extradition internationally;
4. Tocritically examine the concept of political offence exception under the law of extradition in order to determine its relevance in today‟s international relation with a view to ensuring that the doctrine does not become a shield to perpetrators of crimes and other illegal activities.
1.4 Justification of the Research
The research envisages a better understanding of the law and practices of extradition. It will therefore be of help and great benefit to students of law, law teachers, lawyers, legislators, governments, international and regional organizations such as the United Nations and the African Union as well as the international community at large.
1.5 Scope and Limitation of the Research
This researchwork examines the concept, practice and procedure of extradition under international law. Consequently, the research work is limited to identifying the problems associated with the practice of extradition internationally, such as the definitive inadequacy of the concept of political offence and failure of the existing legal instruments to address same. Instances will however be limited to the Nigerian experience in the practice of extradition under international law.
1.6 Research Methodology
The methodology used, is doctrinal which, is a library oriented research. Materials consultedinclude primary and secondary sources. The primary sources include: information obtained from relevant statutes and case laws, such as the Nigerian Extradition Act11 and the Pinochet‟s Case12. Secondary sources consist of information obtained from books of both foreign and local authors, journals, articles published and unpublished, conferences and resolutions of international organizations.
1.7 Literature Review
There are several contributions on the concept and practice of extradition. It is imperative at this point to review some of these contributions as follows.
Umozurike13, in his contribution on the concept and practice of extradition, define extradition as the process where, under a treaty or on reciprocity, one state surrenders to another state, at its request, a person accused or convicted of a criminal offence committed against the law of the requesting state. He opines that the rationale for extradition is that a serous crime should not go unpunished even if the criminal escapes from the jurisdiction where the crime was committed. He also discusses the procedure for extradition and holds that for an application to be made, there must be an extraditable person and an extradition crime, that states extradite for serious crimes only and for offences that are punishable in both the requesting and the requested states. However, he submits that a request for extradition would be turned down if the prosecution is on political, racial or religious grounds.On the principle of specialty, he opines that it presupposes that the requesting state must try only for the offence for which the offender was extradited.
The author‟s contribution is commendable having discussed the meaning and some principles of extradition. However, he did not discuss extraditable and non-extraditable offences and other principles of extradition, such as the doctrine of political offence exception, which is the focus of this research work.
Okeke14 In his work discussed extradition in international law with particular reference to some events in Nigeria. He traced the history of extradition and the position of extradition in contemporary international law. The author discussed extraditable offences, extraditable persons, and procedure for request of extradition, specialty principle, and offences of a political, military and religious character. He also discussed the concept of extradition in the light of the applicable law in Nigeria. The author extensively discussed the political offence. According to the author, political offences have given rise to difficulties of interpretations which different countries have tried to solve in different ways. It is therefore left to the country to which a request for extradition is made to determine which offences fall within the political category. However, the author failed to provide a way forward in solving the problem of what amounts to political offences in universal basis, which is the focus of this research work.
Shaw15, in his contribution to the subject of this research, defines extradition as the practice that enables one state to hand over to another, suspects or convicted criminal who have fled abroad. He also states that extradition is based upon bilateral treaty law and does not exist as an obligation upon state in customary international law. He also mentioned the principle of double criminality and offence of political character and extradition of nationals. There is need for a concept of extradition under international law.
Nggada16, in his research work on the concept and practice of extradition, discussed the meaning and procedure for extradition. He discussed extraditable and non-extraditable offences, rule of double criminality, rule of specialty and the exceptions to the rules. He discussed the practice of extraction in the light of the commonwealth and the ECOWAS. He also distinguished the concept of extradition from deportation and rendition. He examined extradition treaties among the ECOWAS States and the commonwealth.The author‟s research work is beneficial. However, he did not discuss the concept of expulsion. Perhaps an approach wide enough to examine the practice of extradition under international law may have been more beneficial.
Bedi17, in his research work on the concept and practice of extradition, discussed extradition as a subject which involves municipal law as well as international law. He examined the four basis for a claim to extradition, which are treaties, national laws, reciprocity and morality. His research has also covered extraditable offences, objects of extradition and practice in common law countries. Under the procedure for extradition, he discussed the request for extradition, concurrent demands by various states, judicial intervention, conditional competence with request and grounds for refusal of extradition. The author examined some bilateral and multilateral treaties on extradition, like the Arab Convention, 1952, the European Convention
1975, the inter-American second Draft Convention of 1975. The Afro-AsianConvention of 1961
and the Benelux Convention, 1962. The author opined that:
Though under the existing rules of international law no state, in the absence of treaty, is under any legal obligation to surrender a fugitive found within its jurisdiction to the requesting state. Yet, to meet the urgent needs to humanity and to achieve internationals solidarity, states should not decline to surrender persons charged with or convicted of criminal offence as affecting the general wellbeing and happiness of society.
The author‟s research work is highly commendable. However, the concepts of rendition,
expulsion and deportation are not distinguished from extradition which is the focus of this
Hingorari’s18 research work on the concept and practice of extradition, did trace the
history of extradition. That the concept of extradition was first used in a French Decree in 1971
and later again by France in a treaty in 1828, after which the word has been uniformlyused. The
author posited that extradition is practiced among nations mainly for two reasons. Firstly, to
warn criminals that they cannot escape punishment by fleeing to a foreign territory.Secondly, it
is in the interests of the territorial state that a criminal who has fled from another territory, should
not be left free, because he may again commit a crime and run away to some other state. The
author distinguished the concept of extradition from deportation, kidnapping and mistaken
declared extradition. His work also captured the procedure of extradition under the
commonwealth countries. The author examined some bilateral and multilateral treaties on
extradition, like the Extradition Act of 1962, Indo-Nepalese Extradition Treaty, Indo-American
Extradition Treaty, and etcetera. He also discussed extraditable offences, the doctrine of double
criminality, the rule of specialty and the Political offence exception. However, he did not discuss
expulsion and rendition, and the work is limited to the practice of extradition among the commonwealth countries. There is need for a wider and thorough examination of the concept under international law.
Mackarel and Nash19 in their research on the concept and practice of extradition, did examine the meaning, basis and practice of extradition. They also opined that reciprocity and comity formed the basis for the practice of extradition across jurisdictions. Their research also extends to examining the traditional procedure for the practice of extradition which according to them is rested on judicial cooperation in the fight againstcrimes, protection of fundamental rights of individuals and the sanitation of the international arena from trans-border crime. The author also discussed the double criminality principle, principle of specialty, principle of double jeopardy, the range of extraditable offences, conspiracy and association, political offence exception, fiscal offences extradition of nationals and entry into force.
Without doubt the authors did make substantial contribution on the subject of this research. However, it can be readily observed that their research work was based on the European Union Convention of 1996 and thus limiting their research to the concept and practice of extradition in Europe. There is need for a wider and thorough examination of the concept under international law.
Parry20 in his contribution to the subject of this research examined the concept and practice of extradition under International Law. His research centered on the importance of Habeas corpus, doctrine to the practice of extradition, the rule of non-inquiry and the rule of sovereign theory. His research work was predominantly under the American jurisprudence with
respect to the practice of extraction. He also examined the American judicial attitude to the rule of limited inquiry and non-inquiry. An appraisal of his contribution reveals that a thorough understanding of the concept and practice of extradition needs to be limited to the American experience. The rule of non – inquiry and limited inquiry are features that are peculiar to the American conception of extradition. The author ought to have been wider and comparative. The author lacks comparative focus and depth. His work is lopsided,inform of the American jurisprudence.
Jones21 in her examination of the research subject identified extradition as a branch of international law which occupied considerable attention in international community after the First World War. Her workis premised on considering features of extradition law in the light of British and European opinion and experience. Her study raises four basic questions: firstly, the test for extradition, secondly, the principle of non-extradition in respect of political offences, thirdly, the principle of non-extradition in respect of nationals, fourthly the judicial control over extradition procedure. The contribution of this author is, of course, of intellectual benefit to this area of research. However, the following are identified as the shortcomings of her contribution: non-consideration of the concept of rendition, the concept of deportation, the principle of double jeopardy, the principle of double criminality and the doctrine of specialty, which is the focus of this research work.
Onyeneke’s22 study on extradition x-rayed the subject from the international law and domestic law view points. His work captured the development of the legal parameters of law
dealing with extradition internationally and domestically.He explained what international law and domestic law connote, the doctrine of dualism and monism under international law. According to him extradition is a municipal legal procedure often subject of treaty obligation, by which the criminal justice authority of one state (the requested state) arrests and surrenders to those of another (the requesting state) a suspect or fugitive convict present in the territory of the former state and wanted by the later. He holds that extradition as a rule is an internalization of jurisdiction and is effected by bipartite treaty. He also considered the concept of double criminality and human rights vis-a-vis extradition. The author‟s work is however limited to the concept and practice of extradition between the United Kingdom and the United States of America. The work also failed to capture issues such as rendition, expulsion, deportation, extraditable and non extraditable offences, political offences, extradition of national, principle of double criminality, basis for the practice of extradition and the Nigerian extradition regime.
Honig,23 in his appraisal of the concept of extradition explained that multilateral convention provides the footing for the effective practice of extradition. According to him such convention required the general acceptance of the community that they seek to govern and therefore certain basic principles and agreements should be achieved. This rotates around the following issues: (i) whether the parties to the convention are to be under a legal duty, in prescribed circumstances, to grant a request for extradition, or whether the decision concerning such request is to be left to their discretion, viz whether extradition is to be mandatory or permissive; (ii) whether political offences shall be defined, or whether it shall be left to the requested state to define such offences by references to municipal law, and whether the duty to refuse the extradition of political offenders shall be absolute or whether discretionary power shall
be vested in the requested state; (iii) whether the parties to the convention shall be allowed to differentiate between their own and foreign nationals, or whether request for extradition shall be determined without regard to the nationality of the persons whose extradition is sought; (iv) whether the rule of specialty is to be strictly observed, alternatively whether its observance may be waived by the requested state and/or the person concerned; etc.
In the light of the above issues, the author discussed extraditable offences, political offences, extradition of nationals, the rule of specialty, time barred offences, offences punishable by death, conflicting request for extradition, transit in course of extradition and offences subject to and exempt from extradition. One important contribution of this author is the identification of the reality that multilateral convention is not intended entirely to supersede existing bilateral treaties but designed to exist side by side with the later. This author‟s research work is commendable though not entirely infallible.
Stein’s24 research effort on the concept and practice of extradition is directed towards examining the notion, historical evolution of legal rules and current legal situation on the subject. In his opinion, extradition connotes the surrender of an allege offender from justice, regardless of his or her consent, by the authorities of the state of residence to the authorities of another state for the purpose of criminal prosecution or the execution of a sentence.Thus,mutual legal assistance in criminal matters between states formed the core of the concept and practice of extradition. According to the author, the historical evolution of extradition dates back to the ancient time of 1648. Even though recent extradition practices embodied more legal rules. Other issues considered by this author include: extraditable offences, the double criminality rule, evidence of guilt, reciprocity doctrine, the specialty rule, circumstances precluding return,
citizens, capital punishment, procedural defects, bilateral and multilateral treaties, and evaluation of the concept of extradition under international law. The immense contribution of this author alleys any fear of misconception that may arise from assessment and understanding of the concept and practice of extradition under international law. However, concept such as rendition, expulsion deportation, extradition of nationals extraditable persons and even the challenges associated with the implementation of international law on extradition were not considered by the author.
Plachta’s25 research work examined the contemporary problems of extradition, human rights and extradition, grounds for refusal and the principle of autdedereautjudi care(all states are obliged to prosecute any offence committed in any place by any person found in their territory, unless an offender is extradited). The author is of the opinion that mutual relationship between human rights and extradition are often characterized as a tension between protective and cooperative function.This form of international legal assistance of the concept of extradition and human rights in the opinion of this author is based on the understanding that out of all human rights, a group has been recognized as non-derogable in all universal and regional instruments and, therefore, has to be granted protection notwithstanding the law of extradition. He also submitted that fair trial rights are relevant to the classification of exception against the law of extradition. However, the author did not distinguish the concepts of rendition, deportation and expulsion from the concept of extradition.
Cebeci26in her research discussed International Extradition Law and the Political Offence exception. She considered the traditional incidence test as aworkable reality in matters of extradition. In her opinion, recent episodes in international extradition law reveal that the application of the political offence exception in extradition have allowed the United States of America to become a haven for international terrorists. Her work also considered the meaning and historical origin of extradition law. She perceives extradition as the process by which person charged with or convicted of crime against the law of a state who are located in a foreign state are returned by the later to the former for trial or punishment. According to her the historical origin of the first recorded extradition treaties dates back to 1280 BC. The Peace Treaty between Ramses II of Egypt and Hittite Prince HattusilliII provided for the return of one party criminal who was found in the territory of the other party. It is the opinion of the author that international extradition law developed with the need to preserve internal order of the respective states. She opined that extradition was a gesture of friendship and cooperation between sovereigns. That in international law, the duty to extradite another country‟s criminal has generally not been looked upon as an absolute duty. Therefore countries must enter into bilateral treaties in order to ensure the return of their own alleged criminals. Other issues examined by the author include: the doctrine specialty, the political offence exception, the incidence test to the doctrine of extradition, criticism, abolition of political offence as exception to extraditable offences and the reform of traditional incidence test. The work of this author is commendable.However,other issues and principles relating to extraditions are not discussed by the author.
Murphy:27 in his research work on the Concept and Practice of Extradition considered the meaning of extradition, why extradition is necessary, why states refuse to apply the penal laws of other states, historical justification for extradition, necessity for domestic extradition, need for asylum, practical inconveniences associated with the practices of extradition. He also considered the concept of rendition, habeas corpus and extradition, the place of fugitive in the practice of extradition, probable cause as a basis to justify fugitive retrieval and burden of proof in the practice of extradition. Murphy‟s work is largely motivated by the American jurisprudence and thus does not provide an in-depth analysis of the concept of extradition under international law. He has been able to captured the American experience.
Rebane28in his contribution to the study of the concept and practice of extradition, discussed the law of extradition vis-à-vis the individual right and the need for International Criminal Court to safeguard individual rights. The writer argued that states in their zeal to prosecute terrorists and pursue fugitives, are trampling on the same fundamental human rights they espouse in the international forum. The work traced the birth of international human rights and extradition, the roots of extradition, extraterritoriality and irregular rendition, the state of modern extradition law and practice, the formalization of extradition through treaties, the development of multilateral and bilateral agreements,the work also discussed the common features of civil and common law extradition treaties, exception and limitation of extradition, dual criminality principle, the principle of specialty and the development of a political offences
exception. The author‟s work is however limited to the concept and practice of extradition between the United Kingdom and United States of America.
1.8 Organizational Layout
The research work is divided into the following five chapters:
Chapter one is the introductory chapter. It deals with background to the study, statement of the problem, aims and objectives of the research, scope and limitation of the research, method of data collection, literature review and justification.
Chapter two examines the conceptual discourse on extradition. In specific terms, it discusses the meaning and nature of the following concepts: municipal law,treaty, extradition, rendition, expulsion and deportation.
Chapter three analysis the nature, scope and principals of extradition. It traces the history of extradition, nature of extradition, extraditable and non-extraditable offences.
Chapter four considers the practice of extradition under international law. It discusses the basis for the practice of extradition, some bilateral and multilateral treaties on extradition and the Nigerian extradition regime.
Chapter five deals with summary, findings and recommendations.
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