Write my master thesis help

//Write my master thesis help

Write my master thesis help

Write my master thesis help: 

TUP Tutors master thesis writers provide distinguished master thesis writing services. We have a team of experienced writers that are ready to provide you with an excellent master thesis writing service.

Write my master thesis help: Sample Thesis: 

Within its territories, every nation seeks to impose, apply and execute its legislated laws and regulations, not only in reference to its own subjects, but also to aliens residing within its jurisdiction. This jurisdiction is understandable and at the same time, agreed upon by all legal authorities, especially on the level of international public law. States enjoy and apply jurisdiction because they need to preserve law and order on their territories. In numerous situations, however, States may seek to apply jurisdiction outside their boundaries, mainly for the maintenance of their sovereignty, particularly in relation to the bringing of criminals and violators of law to justice. By default, any attempt by a State to bring an individual to justice in its own courts will involve interference in the sovereignty and territorial jurisdiction of another nation, since the claiming nation is demanding the subjugation of the State offering asylum to accepting its laws, and consequently, its jurisdiction.

[1]

A government will not perceive as a threat to its sovereignty the demand by another to hand in an individual wanted for the violation of law as a threat because nowadays, almost every government frequently finds itself in similar and reciprocal situations. Accordingly, the practice of handing over individuals under the territorial jurisdiction to other States that demand such transfer, a process known as extradition, is quite very common. By and large, despite the wide practice of extradition, there exists no legal framework that obliges nations to the practice of extradition. In other words, extradition is not recognized under international public law, but rather, it is regulated by treaties among nations, as well as by customs that may or may not be accepted to all world nations. In simpler words, apart from treaties, there exist no legal framework that obliges any nation to extradite any individuals residing under its jurisdiction.[2]

The paradox related to extradition is that it is a very common practice while at the same time, there are no clear guidelines to be followed by States. Although the lack of a well defined legal framework for the practice of extradition among nations has made it easier for nations to tailor extradition treaties that meet their individual needs, the fact is that the absence of such a uniform framework continues to be a major loophole or window of opportunity exploited by criminals to escape justice worldwide.

Like any other practice by States, extradition seeks to achieve certain goals and to sustain certain interests for the State demanding extradition. The ultimate goal usually is assuring that violations of the law are punished and that individuals who ought to be brought to justice are tried and convicted as required if these were arrested in the countries in which they committed the violation in the first place. In other words, extradition is a practice that basically aims at nullifying the consequences of the criminal’s escape from the jurisdiction of the country whose laws were violated. However, it remains obvious that extradition is a controversial issue that may involve and stimulate conflicts over jurisdiction and sovereignty, and also one that might lead to or involve violations of human rights of persecuted individuals. Such intertwining relationship among various controversial issues such as jurisdiction, sovereignty, human rights, and the operation of different political and legal systems makes agreement on extradition principles extremely difficult among world nations.[3]

Historically, and before the notion of extradition was developed in Europe, a persecuted individual was safe upon crossing the boundaries of the persecuting State. The earliest extradition treaty ever known to us is the 1280 BC agreement between the ancient Egyptians and their Hittite neighbors. The main objective of this treaty was to extradite political activists who as fugitives in both countries were fermenting political rebellion in both countries.[4]

During the fourteenth century, growing political alliances, interests and relations in Europe led to the development of extradition as a practice. However, this notion was restricted and limited to political crimes and criminals. Sovereigns were specifically concerned with the arresting and persecution of individuals who represented a political threat to the system. At the same time, crimes and violations of criminal laws were viewed less seriously.

The fast expanding influence of liberalism during the eighteenth and nineteenth century reversed practice of extradition. Criminals and individuals wanted for political causes and crimes were no longer extradited, especially as notions such as the freedom of expression and the right to political freedom became widely recognized in the western world. By the end of the nineteenth century, extradition was applied only to individuals who were convicted of or persecuted for criminal rather than political offenses.

Refusal to hand in any individuals wanted for political crimes did not become a rule, but it was established as a custom, one that enjoys the respect of most world nations today, particularly after it became enhanced by the Right to Asylum through the Universal Declaration of Human Rights.

Although extradition was widely applied during the twentieth century, in reality, very few major changes actually took place in this respect. One notable development was the initiative taken by nations in some regions such as Europe and the Western Hemisphere to establish regional extradition treaties. Other developments involved the updating of extradition treaties such that they included new types of crimes that were not known before, particularly crimes and violations of financial nature. Yet in general, extradition traditions and customs did not differ much from those witnessed and applied in the nineteenth century.[5]

Write my master thesis help: LEGISLATION

The lack of a legal framework governing extradition under international public law does not exclude extradition from the arena of international law. The reason is that the major and perhaps the only source of legislation for extradition practices are extradition treaties signed by two or more nations. Because no legislation on extradition exists outside the framework of treaties, no nation is legally obliged to get involved in any extradition practices, unless it is bound by a treaty, and in such a case, the terms of the treaty will decide the situations, persons and procedures related to extradition.

A typical government will often formulate and sign bilateral treaties with a large number of countries in order to restrict the escape opportunities of individuals who violate laws or commit crimes. Governments in general are very cautious about commitment to extradition because of the compromise that such a commitment might involve with respect to sovereignty and jurisdiction.[6]

When a government decides to extradite a subject who is under its jurisdiction to another government, it is practically yielding its sovereignty and jurisdiction. Since sovereignty is a crucial principle for the existence of States, no State is willing to give it up easily. Nonetheless, States are also aware that they need to have the acceptance of other States to give up jurisdiction over wanted individuals in as much as other States need that of them. Caution, and yet the need for cooperation underlie extradition agreements and commitments, and henceforth, to avoid any uncontrollable commitment, States prefer to be engaged in clearly limited and restricted treaties with terms and conditions that are not only fair and desirable, but also controllable such that they will not compromise the sovereignty of the signatory parties.

Write my master thesis help: Bilateral Treaties

The majority of extradition treaties are bilateral. These treaties, first formulated by European nations, were concluded in order to create equal rights and obligations between nations with respect to extradition. These treaties were the sources of law organizing the principles of extradition among these nations.

The basic assumption behind bilateral extradition treaties was the need for the establishment of a limited and clearly defined legal framework for the extradition of criminals between individual nations. Because extradition involves the surrendering of jurisdiction over certain individuals, these bilateral treaties contained clauses that distinctly identified extraditable persons and acts, as well as the process of extradition and its various principles. These treaties, therefore, were based on legal equity established between the signatory parties, specifically that no nation wanted to be at a disadvantage with respect to another in relation to the surrendering of sovereignty and jurisdiction.[7]

Treaties, bilateral in most cases, are still considered the only major source of obligation or right for States with respect to extradition. The trend in the nineteenth century was to limit extradition treaties to very specific scopes. Thus, extraditable crimes were listed and mentioned clearly. However, with the development of new types of crimes, States started to formulate bilateral extradition treaties with more general classifications of extraditable crimes that may include most crimes and civil offenses. Because the restricted listing of extraditable crimes in bilateral treaties gave fugitives the opportunity to take advantage of the limitations of these treaties, most treaties were eventually formed or updated such that they would include almost all serious civil offenses. A typical treaty of this type is the extradition treaty between Japan and the United States, requiring either State to surrender any subject who is wanted for crimes including hijacking, narcotics violations and any crime punishable by “death, imprisonment, or deprivation of liberty for a period of more than one year.”[8]

Needless to mention, however, the numerous treaties that were formulated among States, tended to have similar principles and objectives. Accordingly, as these treaties “are habitually framed in the same way, a court may regard the usual form as the law even in the absence of a treaty obligation.”[9] Yet, in most cases, States will refuse to extradite any individuals under their jurisdiction if no treaty with the claiming State exists. Thus, while the execution of traditional extradition treaties has eventually led to the creation of customary rules in this respect, it is left to States to decide for themselves whether or not to abide by such customary rules when an extradition treaty does not exist.[10]

Write my master thesis help: Multilateral Treaties

Treaties on extradition are bilateral in their majority for several reasons. First of all, extradition treaties are viewed as means of cooperation between nations and at the same time, involving diplomatic, executive and judicial channels. Accordingly, it is much easier to establish bilateral treaties between two States rather than among a larger number of nations. In the nineteenth and early twentieth centuries, bilateral treaties were seen as sufficient means through which States assured the establishment of justice and the arrest of fugitives. Eventually, however, means of transportation developed very quickly, and hence, criminals were able to seek refuge almost anywhere all over the world. Accordingly, it became practically easier for a fugitive to escape the law simply by seeking refuge in a State that does not have an extradition treaty with the country claiming him.

In addition to this, the nature of crime changed during the twentieth century. Many new crimes evolved, such as financial crimes. Many of these crimes potentially affected the interests of several nations or the interests of individuals belonging to several nations. Accordingly, bilateral treaties were no longer sufficient to maintain and assure the execution of law and justice.[11]

World nations became aware of the need to formulate wider extradition treaties that covered entire regions as early as the 1930s. The first multilateral treaty signed is the Inter-American Convention on Extradition signed in Montevideo on December 26, 1933. Most Latin American countries, in addition to the US were signatory parties to this treaty. The treaty did not only recognize the rights and obligations of the member States with respect to extradition, but it also clearly identified and defined the grounds on which a State might choose to decline extradition.[12]

The development of multilateral treaties on extradition reflects a number of important facts in the arena of international law. First of all, it reflects the serious and sincere intentions of world nations to cooperate in order to maintain and assure the execution of law and justice by bringing fugitives to the courts of law. Secondly, this development reflects a strong potential in the future for the development of a universal agreement on extradition among world nations. In fact, the development of such a universal agreement might be underway as the United Nations General Assembly and the Security Council have been able to impose universal obligations on States to extradite criminals of war and terrorism. While no such obligations exist with respect to extraditing fugitives accused of civil offenses, the development itself is worth considering as a promising initiative. Already the Security Council has succeeded with respect to obliging nations to extradite fugitives accused of crimes of terrorism through an embargo imposed on Libya between 1992 and 1999, resulting in the fruitful extradition of the two Libyans accused of exploding an American civilian plane over Scotland. Yet, while the extradition of war and terrorism criminals is backed by political support, the extradition of fugitives accused of civil offenses is not generally subjected to political pressures, but rather, remains restricted to the judiciary needs of States.[13]

International Traditions & Customary Rules

Law-making treaties by practice eventually become the source of customary rules and traditions in international law, but only if their forms and practice are habitual and of similar nature, something that applies to the majority of extradition treaties among nations. In theory, it is possible for an international court of law to view the customs adopted in most treaties as binding to nations, even if the concerned nations are not signatory parties to an extradition treaty. What would prevent courts from such a practice, however, is that extradition is very closely related to the sovereignty and jurisdiction of States.

Traditions and customs of extradition treaties have never acquired the status of binding customary rules, and thus, when an extradition treaty does not exist, a State is not obliged under any circumstances to extradite any fugitives accused of committing civil offenses to another State.

By contrast, the refusal to surrender a fugitive to another State that might inflict upon him the death penalty, has become a custom practiced by numerous States. This custom has evolved as a result of the growing impact of human rights and humanitarian perspectives on legislation in most world countries.

EXTRADITION IN INTERNATIONAL LAW

Although the practice of extradition is based mostly on the interpretation of treaties and slightly on international customs and traditions, extradition depends on the principles of jurisdiction and sovereignty adopted by different nations. Because of the differences in their concepts of jurisdiction and sovereignty, States will inevitably have different interpretations and opinions in situations of extradition.

Definition of Extradition

Extradition is defined as “the formal surrender of a person by a State to another State for persecution or punishment.”[14]I. A. Shearer, on the other hand, argues that “[t]he term ‘extradition’ denotes the process whereby under treaty or upon a basis of reciprocity, one State surrenders to another State at its request a person accused or convicted of a criminal offence committed against the laws of the requesting State, such requesting State being competent to try the alleged offender.”[15]

Shearer’s definition reflects two bases for extradition, namely a treaty or reciprocity. It has been universally established that a treaty is the only obligation that will force one State to surrender a fugitive to another that had requested such a surrender. Reciprocity, on the other hand, is not obligatory, but rather, it is an expression of courtesy and mutuality in treatment between nation, itself being a moral principle rather than an obliging rule. Theoretically, Shearer’s definition is both accurate and extensive, but it overlooks the fact that sometimes, nations surrender fugitive without an obligation of a treaty, and without expecting a similar courtesy in return, but rather, for pure economic or political reasons.[16]

Blakesley further provides another definition of extradition, highlighting other characteristics of the practice. Thus, he views extradition as “the judicial rendition, by one sovereign State to another, of fugitives charged with having committed an extraditable act and sought for trial or already convicted and sought for punishment.”[17] Blakesley’s definition elaborates the characteristics of the State practicing extradition. Since extradition involves the giving up of jurisdiction and sovereignty over a person, the extraditing State has to be sovereign and to enjoy jurisdiction in the first place. Secondly, an extraditable act should be Stated in order to justify the request for extradition, and obviously, this definition makes it clear that there are offenses and crimes that may or may not be extraditable. Finally, this definition identifies the purpose of extradition, namely to bring a fugitive to court or to subject him or her to a judicial conviction and thus to have justice served.

Another definition that serves an important purpose is the 1878 Statement made by Cardaillac in which he defined extradition as “the right for a State on the territory of which an accused or convicted person has taken refuge, to deliver him up to another State which has requisitioned his return and is competent to judge and punish him.”[18] This definition raises the highly controversial question of competence, especially as it makes the State of refuge responsible for investigating the viability of the extradition request and making sure that the requesting State is competent to judge and punish the person requested for extradition. Determining competency is controversial since States have different judicial systems, practices and values, and accordingly, what might be considered as an important standard of justice, might not be seen as such in another country. Also noticeable is Cardaillac’s identification of extradition as a ‘right.’ Cardaillac most probably saw extradition as a right because he may have been referring to the extradition of foreigners rather than citizens, especially that States by definition have an obligation towards aliens residing on their territories. Extraditing these requested aliens is a negation of the host’s obligation and can only be justified if extradition were a right. On the other hand, the extradition of nationals to other States is much more difficult to be recognized by a state as a right of another because of sovereignty concerns, and accordingly, the definition is defective in this respect.

Finally, the various definitions of extradition take into consideration the fact that extradition can only be applied to fugitives who are sought for trial or punishment. Hence, extradition cannot be appropriate “for a mere suspect or a person whose presence is desired as a witness or for obtaining or enforcing a civil judgement.”[19]

Principles of Jurisdiction

All definitions take into consideration the fact that extradition is a practice involving the surrendering of jurisdiction and sovereignty enjoyed by a State over individuals residing on its territories, regardless whether these subjects are nationals or aliens. Jurisdiction cannot be separated from sovereignty, and at the same time, different States have different concepts regarding sovereignty. This ultimately implies that the practice of extradition will be affected by these differences in concepts and perceptions, especially that conflicts will arise between and among nations with respect to the identification of the limits of jurisdiction enjoyed by a State over individuals, specifically over fugitives. In general, there are five major principles of penal jurisdiction that are commonly taken into consideration with respect to the practice of extradition and the execution of relevant treaties.

The Principle of Territoriality: This principle is by all means the most common, practiced and recognized almost by all nations. A State defines territorial jurisdiction as “jurisdiction over crimes committed on its territory and over civil acts with application there.”[20] What this principle implies is that a State is entitled more than any other State to enjoy jurisdiction over the acts that were committed on its territories, hence, stipulating that the State should enjoy the right of jurisdiction over the individuals who commit criminal acts on its territories, regardless of their nationality. No complications are involved if these individuals are brought in front of justice on the territories of this State, but difficulties may certainly arise when the person or persons who committed these acts are outside the territories, and hence outside the jurisdiction of this State. When demanding the extradition of these persons, the requesting State will be resorting to its right to bring them to justice in its courts on the basis of territorial jurisdiction.

The Principle of Nationality: Countries such as Germany and Greece impose their laws on their nationals regardless where these nationals commit their crimes. Accordingly, if a German citizen commits a crime in Germany or elsewhere, the German courts, in accordance with this principle, view themselves as the adequate legal authority that can try and punish this person. Although widely recognized, this principle is not frequently practiced, the reason being that States will resort to territorial jurisdiction when they bring aliens into custody on their territories.[21] However, if the alien takes refuge in his home country, his State will claim jurisdiction over him on the basis of the principle of nationality, and in this case, he will not be surrendered to the requesting country, specifically if the constitutions of these States prohibit the extradition of their nationals. Naturally, in conformity with their constitutions, treaties to which such States are parties will not allow the extradition of nationals.

One problematic exception, however, is the State of Israel. Traditionally and in practice, Israel does not surrender its nationals to any other country. The Israeli government and the United States, however, have an extradition treaty that obliges both states to surrender their nationals when the judicial system of the other demands such surrender. In 1997, Samuel Sheinbein, an American teenage citizen and charged of first degree murder escaped the US jurisdiction and sought refuge in Israel on the basis that he was a Jew. Under the auspices of the treaty signed between the two countries, Israel was obliged to surrender Sheinbein.[22]

Nonetheless, Sheinbein was automatically granted the Israeli citizenship upon his arrival in Israel and accordingly, the Israeli high court recommended that he be tried in Israel’s courts because of an old law that prohibits the extradition of Jews and Israeli citizens. Such a law gives rise to serious dilemmas because the treaty mentioned earlier and this law are at odds.[23]

The Principle of Protection: According to this principle, a State will claim penal jurisdiction over individuals who began an act outside the territories of the State resulting in an effect taking place on the territories of the State. This principle, however, although widely recognized, is considered to be an auxiliary principle of jurisdiction, and hence, its application is very limited.[24]

The Universality Principle: This is a rarely applied principle stipulating that a State enjoys jurisdiction over any individuals who committed criminal acts any where and who happen to be on the territories of the State.[25] In reality, this application directly negates extradition since it defies the primary principles of jurisdiction that are the basis for extradition, namely territoriality and nationality. This principle simply stipulates that extradition is not necessary since the State will enjoy penal jurisdiction over the persons who had committed the criminal act, regardless of their nationality and the place in which the criminal act was committed.

On the other hand, the principle of universality has had some very serious implications with respect to extradition practices. The most noticeable case to mention in this case is that of General Augusto Pinochet, the former head of state and dictator of Chile who despite his capacity as Senator-for-life was arrested in the UK upon demand from Spain. Pinochet was also wanted by Switzerland and France for the same charges, namely, torture, abduction and murder during his tenure as President of Chile. Spain’s request was based on the fact that some of the victims were Spanish, but other States were making their demand on the basis of the universality principle, a principle that is becoming more influential today with regards to extraditing war criminals and those who had committed wars against humanity. With respect to civil crimes, the influence of the principle of universality has not yet made any influence.[26]

The Principle of Passive Personality: This is another uncommonly applied principle stipulating that a State will demand jurisdiction over persons who commit criminal acts against their nationals, regardless where the crime took place.[27] Evidently, this principle does not recognize the principle of territoriality, unless the act was committed on the territories of the State to which the injured party or parties belong. Nonetheless, some States may demand the extradition of persons who have committed criminal acts against their nationals in other parts of the world.

PRINCIPLES OF EXTRADITION

Over the years, and as a result of the habitual formulation of extradition treaties and the practice of extradition between and among nations, certain principles were developed and derived. While these principles were basically derived from the practice of extradition itself, it is important to mention that they have also become customary in the practice of extradition among States. Yet, a State will choose to ignore or reject any of these principles whenever these principles conflict with its judicial and constitutional laws. It is important, however, to mention that whatever principle a State might choose to adopt and follow, “the principles of international law recognize no right to extradition apart from treaty.”[28] Hence, the commonsense used by States is that a State will commit itself to principles of extradition when formulating extradition treaties with other States. States that adopt conflicting principles will try to reach an understanding before a treaty is signed, because after all, the conditions and terms of the treaty will be used to determine the rights and obligations of both parties.

Doctrine of Reciprocity: The doctrine of reciprocity, courtesy or comity, is a principle that derives from international relations among nations. This widely recognized and practiced principle demands that States treat each other on the bases of equality and mutuality. Thus, if a State refuses to extradite its nationals, other States will refuse to extradite their nationals to this State. This is usually translated into conditions that prevent the extradition of nationals in the treaties signed between this State and other States. However, in the absence of a treaty, this principle is not legally obliging. In fact, the US is a leading State that refuses to apply this principle if no treaty exists with other States. The US does not extradite any individuals under its jurisdiction to any States with whom it has no extradition treaties. In this respect, when a request is made by the US to another State to extradite a fugitive, and if no extradition treaty exists between the two States, the US government makes it clear to the other party that it will not be able to act likewise unless there exists an extradition treaty between the two sides. In other words, the US does not oblige itself to treat other States on the basis of comity or reciprocity in the absence of a treaty, even if these States agree to surrender requested fugitives to the US in the absence of such a treaty.

The Principle of Double Criminality: This principle is by all means profound and essential in any extradition treaty or practice. This principle does no only identify extraditable acts, but also extraditable persons. Based on the maxim “nulla poena sina lege,” it stipulates that an act is extraditable if it is recognized as a crime according to the laws of the requesting State as well as the State that enjoys territorial jurisdiction over the fugitive. If the act is not recognized as a crime in the penal codes of the State of domicile, then this State should not surrender the fugitive to the requesting State. Common difficulties and disagreements arising as a result of applying this principle are witnessed in cases related to crimes such as euthanasia, suicide, adultery and abortion, specifically that while some States identify these acts as criminal offenses, others do not treat them as criminal acts.

Case Study: Extradition of Berj Balanian

In December 1996, Germany forwarded a formal extradition request to Lebanon of Berj Balanian, a Lebanese subject who had also held a German nationality since 1973. Balanian was wanted in Germany on the charges of selling and facilitating the sale of prohibited chemical weapon technology to Libya.

The Lebanese court decided to decline the request on two basis. First of all, Article 32A of Lebanese laws prohibit the extradition of Lebanese subjects to other States for trial and punishment, and accordingly, only Lebanese courts are qualified to try and punish Lebanese citizens. Yet, Balanian was also a German, but Lebanon still refused to extradite him on the basis that the crime he had committed in Germany, namely, selling prohibited technology to Libya was not recognized as a crime in Lebanon. Accordingly, and based on the principle of double criminality, the Lebanese courts decided that Balanian was not an extraditable person in that case, despite the fact that he was tried and sentenced in Lebanon on the charge that he had jeopardized relations with a friendly nation. With respect to the procedures of extradition, Balanian was immediately arrested by the Lebanese security agents once the authorities received a request for arrest from the Interpol, but he was never actually extradited to the requesting state.[29]

The Principle of Specialty: This is another profound and universal principle that regulates the practice of extradition among States. This principle “requires a correspondence between the charges contained in the indictment and the facts presented to the extraditing judge.”[30] In other words, this principle requires the requesting State to try the extradited person on the very charges for which his extradition was requested. The principle of specialty is also incorporated in extradition treaties between and among nations. It can be best illustrated in Article VII of the extradition treaty between France and the US: “No person surrendered by either of the High Contracting Parties to the other shall be triable or be punished for any crime or offence committed prior to his extradition, other than the offence for which he was delivered up, nor shall such person be arrested or detained on civil process for a clause accrued before extradition unless he has been at liberty for one month after having been tried, to leave the country, or in case of conviction, for one month after having suffered his punishment or having been pardoned.”[31]

The principle of specialty clearly restricts the right of the requesting State to try the surrendered person for the crimes or charges Stated in the request. Thus, if an individual is surrendered for several crimes and the authorities of the surrendering State decide that only one of the crimes or charges meets the specifications of extradition, then the surrendered individual will only undergo trial for this specific act. Yet, in some cases, new charges may be made against the surrendered person as a result of new evidences that were heard of. If the new crime has not been known to the authorities of either State before, the controversy is whether the requesting State has the right to try the extradited person for these new crimes. The prevailing tradition is that the requesting State will have to seek the approval of the requested State in order to try the extradited person, even after the person has been surrendered. Approval will be sought through a new extradition request including the new charges and meeting the legal specifications demanded by the requested State.[32] If the requested State rejects the new request, then the requesting State may not try the extradited person for the new charges even though it already has the extradited person in its custody. This tradition, therefore, recognizes the fact that the requested State has only partly surrendered its sovereignty and its jurisdiction over the requested person. Needless to mention, this tradition does not only exist within the context of extradition treaties, but also as part of comity among nations that do not share extradition treaties.[33]

Traditionally, an individual who is requested for extradition by another State will fight extradition. However, if the requested individual decides to ‘waive’ extradition, that is, if he decides to place himself under the sovereignty of the requesting State without fighting extradition, then the requested State cannot hold the requesting State obliged for any restrictions and the principle of specialty no longer applies. In other words, the requesting State may try the individual who waives extradition for any charges or crimes, without any obligations or restrictions imposed by the requested State. The reason for this freedom enjoyed by the requesting State is that neither the sovereignty nor the jurisdiction of the requested State are in such a case relevant since the requested person has voluntarily decided to place himself under the sovereignty of the requesting state.[34]

Case Study: The Shreidi Case

On April 5, 1986, Yasser Mohammed Shreidi, a Palestinian residing in Lebanon was involved in bombarding “La Belle Café” in Berlin, killing three and injuring more than 120 others. Shreidi fled to Lebanon where he was involved in various criminal activities. Early in 1994, he was arrested by the Lebanese authorities for involvement in various homicide and assassination cases, and several charges were brought against him. The German authorities had already filed an extradition request to Lebanon in 1993. Shreidi was found innocent from the specific murder charges brought against him, but was still detained due to his involvement in other criminal activities including murder. During this period, the Lebanese authorities rejected the extradition request on the basis that it did not contain sufficient evidence that necessitated extradition. On May 11, 1994, the Lebanese authorities announced that Shreidi was to be extradited to Germany, on the conditions that:

¾He would be exempted from facing charges for murdering the Libyan citizen, Mustafa Al-A’ashik, an account on which the Lebanese courts had found him innocent.

¾He would not be extradited to any other country.

¾His arrest period in Lebanon would be considered as part of his sentence in Germany.

Shreidi was immediately delivered to German security officials who escorted him to Bonne on August 9, 1994. The conditions set by the Lebanese authorities, however, guaranteed that he was going to get a fair trial, and that he was facing specific charges under specific conditions. Interestingly, it is argued that Shreidi’s extradition was the product of a political deal between the Lebanese and German authorities. Controversially, moreover, although Shreidi is a Palestinian refugee, he enjoys the status of being a Lebanese subject since his laissez-passe document was issued by Lebanese authorities. This, however, did not prevent the Lebanese authorities from extraditing him.[35]

The procedures in this case go in conformity with Article 7 of the US-GB Extradition Treaty of December 1931 which stipulate that the requesting State requires the consent of the requested State to “Prosecute or punish such [extradited] person for any act committed prior to his extradition, other than that for which he was extradited.”

The Treaty also prevents the “surrender of such person to another State for prosecution or punishment,” and finally, it requires the requesting State to “Prosecute such person before a court specially constituted for the trial, or to which special powers are granted for the trial.”[36]

Case Study: Adnan Khashoggi

In 1989, Swiss authorities arrested Mr. Adnan Khashoggi, the Saudi billionaire upon an extradition request presented by the US government. The arrest was immediate, but upon revising the charges brought against him, the Swiss government announced that the extradition would be conditional. Kashoggi was wanted in the US on the accounts of mail fraud and obstruction of justice, in addition to the violation of the Racketeer Influenced and Corrupt Organizations Law (RICO). Since the Swiss law did not include any provisions related to RICO laws, the Swiss government made it clear that it would extradite Khashoggi only to face the charges on the basis of mail fraud and the obstruction of justice. Evidently, if Khashoggi had been extradited from another country where RICO laws existed, he would have faced charges related to RICO violations in the US, a situation that would have ended him in jail for many years.[37]

Act of State Doctrine: Acts of State are those acts that are committed by individuals acting in fulfillment of their capacity as officials of the State. International traditions and customs give States the right to reject an extradition request if the requested person is facing charges resulting from assuming his functions as an official of the State. This is in conformity with a long established tradition in the relations among nations and that gives the State the right not to extradite any person requested to face charges of political nature. Nonetheless, extradition is applicable in those cases that involve the misuse and abuse of office for criminal or personal purposes. The purpose of this doctrine is to make sure that individuals who abuse their capacity and powers as politicians or State officials will not be able to escape justice under the cover of political immunity provided for in extradition practice and tradition. Nonetheless, it should be noted that when a former official of State is surrendered to the requesting State, he will not face any charges of political or any other nature, apart from those that are enlisted in the extradition request. Such conditions are not only part of extradition practice among nations, but are also established in the binding clauses and terms of treaties between and among States. The purpose of these restrictions are to protect the human and political rights of the requested individual and to make sure that international public law will not be used for vendetta purposes among political opponents.

Case Study: The Jiminez Case

In 1962, Venezuela presented a formal request to extradite its former president, Marcos Perez Jiminez to face charges on the accounts of corruption and other financial offenses. In the hearings, it was decided that the offenses were part of the acts of State committed by Jiminez as a president of the republic. However, the Court of Appeals overruled this interpretation on the basis that the financial offenses “were not acts of State but acts undertaken by the accused in his personal capacity and for his own private benefit.”[38]

The following constituted the basis upon which the State of Venezuela presented its extradition request:

1-The appellant secured commissions or kickbacks in ten specific instances on Venezuelan Government contracts, some of which the appellant himself had executed.

2-Through a ‘front’ or alter ego the appellant secured a portion of the compensation paid by the Venezuelan Government for two tracts of land expropriated by decrees promulgated by him.

3-By his twenty percent ownership of EVICSA, a construction company, the appellant secured a portion of the compensation paid by the Venezuelan Government on construction contracts with the appellant’s Ministry of Development, with the connivance of two of his ministers, one of whom was head of that Ministry.

4-The appellant secured improvements on and maintenance of his private, personal eState at public expense at specific times.[39]

The final conclusion of the court was that the charges with the evidences provided in the request were sufficient to prove guilty the appellant of “embezzlement or criminal malversation by a public officer” an aspect that was included in Article II of the Extradition Treaty between the two States.[40]

Needless to mention, this application of the Act of State doctrine also covers fiscal crimes which for many years were excluded from most extradition treaties.

The Attentat Clause: Almost all extradition treaties recognize the right of nations to refuse to surrender individuals wanted for political crimes. Even nations that do not have extradition treaties among them recognize this as a well-established custom. However, a problem arises when the identification of a crime as political is controversial. For example, in the course of a political activity, individuals may be assaulted or even killed. In most cases, officials of the State, especially heads of the State and heads of governments and members of their families are considered to be primary targets for political violence. Whether or not an individual who has committed a murder, assault or other violent crime against individuals who are members of the State or family for a member of the State, remains a controversial issue. Nonetheless, this controversy has been dealt with through the inclusion of the Attentat Clause in many extradition treaties. According to this clause, attacks on the persons of heads of States or members of their families, as well as on heads of governments or members of their families, for political or non-political purposes, are recognized as extraditable crimes. The controversy arises when such a clause is not included in a treaty because the lawmakers in different nations have different interpretations and classifications of the crime involved in such cases.

Non Bis In Idem: The principle of double-jeopardy stipulates that no individual will be tried twice for the same acts or crimes. If a person has been tried for a certain criminal act, regardless whether he had been acquitted or punished, he should not be extradited to face trial for the same charges again.[41] Almost all States abide by this principle, except in very specific occasions, for example, when the trial and the sentence were farcical, resulting in a serious failure to serve justice. Yet, even in such a situation, it remains difficult to prove that justice has been served, and commonly, an extradition request defying this principle will be rejected because it conflicts the constitutional laws of most States.

Extraditable Acts

Extradition processes are very expensive, time consuming, and diplomatically demanding. Hence, it does not make any commonsense to extradite fugitives who have committed insignificant crimes. The gravity of the acts have to match with the gravity of the process of extradition. Some obstacles, nevertheless are encountered at this level. First of all, different legal systems have different perceptions and evaluations of crimes, as reflected in the punishments assigned to these crimes. Hence, while adultery might not even be seen as a crime in many countries, in certain Islamic countries, it could be seen as a grave crime with a very serious punishment. By and large, it would be logical to demand the extradition of a fugitive charged of committing manslaughter rather than one accused of a petty theft for example.

Although there is a very wide discrepancy among world nations with respect to crimes and punishment, there are no international standards that determine whether crimes and offenses against civil law constitute extraditable acts. Because of all these problems and obstacles, the traditional practice for States was to conclude a list of extraditable acts in their extradition treaties. Any acts that were not included in the list are not treated as an extraditable acts. The listing of extraditable crimes in traditional and older treaties served to facilitate extradition and to eliminate conflict over differences, but it did not entirely resolve the problems facing extradition practices. The fast development of new types and categories of crimes made it impossible to include all significant crimes in extradition treaty lists, hence allowing many criminals to escape justice simply by seeking refuge outside the territories on which they committed their acts.

Eventually, a new breed of treaties was developed in order to cope with the rate at which crime developed. These treaties were known as the “no list” extradition treaties because they did not enlist extraditable acts, but rather, set standards for the concerned authorities to use.[42] Blakesley considers the enumerative method of listing as both expensive and incapable of coping with modern crimes.[43]

Rather than listing extraditable acts, “no list” treaties rely on a ‘minimum standard of punishability under the laws of both States’, meaning that an act is extraditable if it results in a minimum punishment in both the requested and the requesting States.[44] While the enumerative method used in the US-Great Britain Extradition Treaty of December 22, 1931 resulted in 27 provisions that barely cover most major crimes, in the Harvard Research Draft Convention on Extradition all these provisions are replaced by two provisions stating, “For which the law of the requesting State, in force when the act was committed, provides a possible penalty of death or deprivation of liberty for a period of two years or more” and another similar provision for the requested State.[45] Accordingly, an act is extraditable if it meets the minimum standard of punishability (two years at minimum as stipulated in this case) in both countries. If an act is punishable by one year in one country and by three in the other, the act is not extraditable if the treaty stipulates a minimum standard of two years.

Extraditable acts are generally determined according to the principle of double-criminality, demanding that extradition may only take place when a fugitive is requested due to responsibility for an act recognized as a crime according to the laws of the requesting State and the State of domicile. Although this principle is applicable in all treaties, it has become traditional in modern times to have it recognized openly in a general clause, “Extradition shall be granted ….if [the criminal acts] are punishable as crimes or offences by the laws of both States.” Needless to mention, such a general clause does not only provide a solid recognition of the principle, but it also resolves a major problem related to the terminology used in identifying extraditable acts.[46] For example, the crimes of theft in the US and peculation in Switzerland are both treated as extraditable crimes by the two countries despite the difference in terminology, and the person who commits either act is extraditable due to the double criminality related to both acts.[47]

Extraditable Persons

Theoretically, any person taking refuge in a State that has an extradition treaty with a requesting State, and who has committed extraditable acts as recognized in the treaty regulating extradition between the two States, is an extraditable person. In practice, many difficulties arise depending on the nationality of the fugitive. When an extradition treaty exists, a State will not hesitate to surrender a person to the requesting State if the acts for which this person is requested are enlisted in the treaty or if they satisfy the minimum standard of punishability. Nonetheless, problems of nationality often coincide and even conflict with issues of jurisdiction and legislation. Constitutions in some States consider the surrendering of nationals illegal. This simply means that even in the presence of an extradition treaty, a fugitive will survive extradition if the State of refuge happens to be his own country. Yet, a State whose constitutional laws prohibit the extradition of its nationals will have special provisions in its extradition treaties assuring that the fugitive will not escape justice after all. Germany and Greece are such two States  that apply the principle of nationality.

Exemptions to Extradition: Acts & Persons

Unless an extradition treaty exists, no State is obliged to surrender its jurisdiction over a person or over persons for any reason, even if on the basis of comity. Therefore, if a treaty does not exist between two nations, neither State is obliged to extradite a requested person, even if extradition of individuals had previously taken place between the two States. In the absence of an extradition treaty, a State has the right to consider extradition as “the imperfect obligation” even if it has surrendered or has been surrendered requested individuals before. Hence, in the absence of a treaty, a State will consider extradition as neither a duty to surrender nor as a duty not to surrender.[48]

While some nations such as the United States will not surrender any requested individual unless there is an extradition treaty with the requesting State, most States will practice extradition, partly out of comity and the desire to maintain diplomatic relations and cooperation with other nations, and partly due to “the general desire of all States to ensure that serious crimes do not go unpunished.”[49]

However, there are cases and situations in which the desire of States to try and punish fugitive offenders may not apply. These are known as exemptions to extradition, and these are either expressed in the treaties among nations, or commonly recognized by States as exemptions to extradition. It is important to mention that exemption from extradition is the decision of the requested State, the reason being that the requested State enjoys jurisdiction over the requested fugitive, and hence, has the final word in deciding whether to extradite or not, and in attributing the causes or reasons for exemption. Practically, exemptions are governed by the laws of the requested State.[50]

Double Jeopardy: Also known as, Non Bis In Idem, the double jeopardy principle serves as one of the most common bases for exemption to extradition. An individual may be tried and punished only once for a crime under the judiciary systems of most world nations. Accordingly, States will refuse to surrender an individual to be tried for crimes or acts for which he had already been tried and punished. This principle, therefore, aims at maintaining and protecting the human rights of the fugitive to assure that his legal right to be tried and punished only once for a certain act or crime is respected. Outside the sphere of extradition, however a State might decide to try and punish an individual if he happens to fall under its jurisdiction, for crimes or acts for which he had been tried and punished before. This rare exception happens when the initial trial and punishment happen to be farcical. However, with respect to extradition, no State will surrender a fugitive to another State until there are guarantees that this person will not suffer double jeopardy. Exposure to double jeopardy is therefore a basis for exemption from extradition. Furthermore, if an individual is sought for extradition while at the same time faces trial under the jurisdiction of the requesting State for the same crimes or acts for which his extradition is sought, the requested State will decline the extradition request.[51]

The Principle of Specialty: The principle of specialty is not regularly a basis for exemption from extradition. Rather, it only acts as restricting principle, that is, regulating the basis upon which the transfer of an individual from the jurisdiction of one State to another takes place. Nonetheless, a State might consider itself exempted from extraditing an individual if the requesting State does not guarantee that the extradited person will be tried only for the charges listed and limited in the extradition request.

Conflict with Constitutional Laws: The constitutions of  most States have special mentioning of extradition practices and limitations. Some States impose restrictions and limitations on the extradition of their nationals, sometimes to the point of prohibition altogether as the cases of Germany, Greece and Lebanon. Many States do not face such restrictions and may extradite their nationals on the basis of a treaty or comity. States that prohibit the extradition of their nationals perceive and practice jurisdiction on the basis of the principle of nationality. It is important to mention that although a requested fugitive might be exempted from extradition because of his falling under the jurisdiction of his nation, this does not necessarily imply that he will escape justice and punishment. Still, the State on whose territory the crime has been committed is best able to try and the offender because the evidences are more practically available there, not to mention the fact that this State in particular has the greatest interest and facilities to reach and serve justice.[52] By and large, the exemption of extradition due to constitutional conflicts is usually in conformity with the maxim, “aut pumine aut dedre”’ that is, offenders must be punished by the State of refuge or surrendered to the State which can and will punish them.[53]

A State might still surrender its own citizens even if its constitution prohibits such an extradition if there exists a treaty between this State and another State. The treaty, in this case becomes obliging and the decision, depending on the extradition system of the requested State, could be left in the hands of the executive.

The Principle of Double Criminality: The principle of double criminality is a basis for exemption from extradition if the requested fugitive is faced with charges arising from acts that are not treated as criminal under the legal codes of the requested State. Such an exemption can be obtained if the legal codes of the requested State have no regulation of the criminal acts in question or if these acts are not considered criminal in the first place. However, if the acts are recognized as legal violations under the legal codes of both States, extradition will take place even if these acts are known by different terminology. Previously, differences in terminology used to give rise to possible exemption from extradition, but updated extradition treaties often resort to defining the criminal acts rather than legal terminology.

Lapse of Time: The laws of most States impose a prescriptive period or a statute of limitation during which a person has to be brought to justice to face charges related to certain crimes. The lapse of this prescriptive period is considered to be a basis of exemption from extradition. However, controversy often arises because different States apply different prescription periods. Accordingly, many States try to establish a clear understanding and definition of the prescriptive period and its limitations. In its extradition treaties, for example, the United States requires exemptions to be mentioned clearly. Traditionally, a State will refuse to extradite a requested fugitive if according to its municipal laws, the prescriptive period has lapsed.[54]

Human Rights and Capital Punishment: Following World War II, human rights have been fundamentally incorporated into extradition practices and traditions. Many States, especially on the basis of comity, refuse to surrender fugitives if they believe that these fugitives will not enjoy a fair trial or punishment. More importantly, even when there exists a treaty, a State can refuse to extradite a wanted fugitive if his life might be threatened under the jurisdiction of the requesting State. This has especially been evident in cases where the wanted fugitive faces capital punishment under the legal system of the requesting State. In such a case, the requested State will refuse to extradite the fugitive if its Constitution or its judicial traditions consider capital punishment a violation of human rights. In general, States may exempt themselves from extradition “if it appears that the request for extradition had been made in order to prosecute the fugitive on account of race, religion, or political opinions, or if the fugitive may be prejudiced thereby upon eventual trial by the courts of the requesting State.”[55]

Case Study: The Hamadi Case

In June 1985, Mohammed Ali Hamadi, a Lebanese citizen was arrested in Bonne after evidence proved that he was involved in the hijacking of an American plane. Upon his arrest, the US immediately requested his extradition but the request was rejected by the German authorities unless Washington provided guarantees that Hamadi would not face the death penalty if he was sentenced. Upon failure of the US to provide such guarantees, Hamadi was never extradited, and consequently, he was tried in Germany where he is spending a life sentence. The court emphasized the fact that he could not be released before spending at least fifteen years in jail.[56]

Fiscal Offenses: Traditionally, fiscal offenses and crimes were not treated as extraditable acts, thus leading to exemption from extradition. One probable reason for such an exemption in the past could have been the wide discrepancies between the fiscal laws of different countries, hence discouraging States from complicating their extradition treaties by including fiscal offenses in them. Another probable reason is that fiscal crimes were not traditionally viewed as serious in comparison to other crimes such as murder and drug trafficking. Nonetheless, many States today insist on including fiscal crimes in their treaties as illustrated in those formulated by the United States and that may include a special code: “Extradition shall be granted, in accordance with this convention, for offenses with taxes, duties, customs and exchange only if the Contracting Parties have so decided in respect of any such offence or category of offences.”[57]

Lack of Evidence of Guilt: Evidently, if a person is requested for extradition in order to testify in court or for any reason apart from facing charges in court or serving a conviction, the requested State can immediately exempt itself from extradition. Still, to accept the surrendering of a person under its jurisdiction, a State has the right to demand convincing evidences proving the guilt of the person requested. If the requesting State cannot provide such evidence, the requested State has the right to exempt itself from extraditing the fugitive in question.[58] Needless to mention, it is the legal perspective of the requested State that applies when considering whether the evidences provided are convincing or not.[59]

Political Offenses: Since the nineteenth century, States have come to a universal understanding among them to recognize political crimes as acts that cannot be extraditable. This understanding has not only been universally recognized in treaties, but also in extradition practices based on comity. Other offences that may be placed under this category and that are exempted from extradition include military offences such as desertion from the army and religious offences.[60]

EXTRADITION SYSTEMS

Extradition practices of States depend much on the relationships existing between the judiciary and the executive authorities in these States. Accordingly, extradition systems may be of three major types.

Exclusive Executive Control: Because extradition is considered a matter that directly pertains to sovereignty, and since the executive is the ultimate representative of sovereignty, some States grant the executive the exclusive right to decide whether or not to extradite a requested fugitive residing under the jurisdiction of the State. Panama and Ecuador are two States that apply such an extradition System. It is noticed that very few States provide the executive such an absolute exclusiveness of control, the reason being that extradition is not merely an act of sovereignty, but also a decision and practice involving the judiciary. In Belgium, the opinion of the judiciary is taken into consideration, but it is by no means obligatory to the sovereign who alone enjoys the right to decide whether extradition would or would not take place.

Exclusive Judiciary Control: Very few States recognize extradition as a purely judicial decision, specifically that the involvement of sovereignty cannot be ignored. Yet, in such States as Germany, the judiciary enjoy power over the Constitution as well as on other laws, and accordingly, the decision is absolutely restricted to the judiciary authorities, excluding the judiciary from any involvement.

Mixed Control Systems: In most States, both the judiciary and the executive are involved in deciding over extradition. This interaction is governed by the fact that extradition is not only a judiciary decision, but also a political one. In the United States and England, the capacities of the judiciary and the executive are clearly defined. If the courts decide that the requested person may not be extradited, then no extradition would take place, and the executive is not involved in any manner. On the other hand, if courts decide that the individual may be extradited, it is left to the executive to decide whether or not extradition would take place. This discrepancy is based on the reasoning that deciding whether extradition applies or not is a legal matter in the first place and that it may only be decided by the courts of law. On the other hand, the executive can enjoy control over the decision only if extradition is legal because the executive cannot and should not violate the municipal laws of the State. At the same time, when extradition becomes legal, it then becomes a political decision that the executive might feel free to judge and decide upon.

PROCEDURE OF EXTRADITION

Although different extradition treaties may contain different provisions for the extradition procedure, in general, the process is usually governed by traditions that developed over the years. In this respect, the Draft Convention on Extradition which was developed as part of the Harvard Research on International Law in 1935 gives a very detailed description of the extradition procedure as considered in most treaties today.

Requisition

The first step in the extradition procedure is to formulate and produce a request to extradite the person in question. The requisition has to be formal and in writing, and it should be communicated through the diplomatic channels between the two countries. The request for extradition should describe the purpose of the request, and at the same time, it should contain the document demanding the arrest of the individual, usually a warrant or another document of equal importance. In addition to this, the request should contain a Statement of acts and corresponding punishments according to the penal codes of the requesting country. If the person requested for extradition has been requested, a formal document stating his sentence should accompany the request.

Hence, there are two basic types of documents that will accompany the extradition request, namely the warrant of arrest or an authentic copy of it, and a document specifying and mentioning the legal codes or regulations that relate to the warrant of arrest, in addition to evidence that these codes or regulations were actually in force when the crime was committed by the person requested for extradition.[61]

If the requesting State demands the delivery of the property belonging to the person in question, a formal request in writing should also accompany the extradition request.

Apprehension or Arrest

Once a State receives a request to extradite an individual under its jurisdiction, it must arrest this individual and prevent him from escape. In some cases, and even before the extradition request is made, the State can agree to apprehend the wanted individual on the basis of provisional arrest once an informal request is made through diplomatic channels. However, a formal request must follow within a reasonable time ultimatum.

If the authorities of the requested State are convinced that the extradition request will not be processed, the person in question may not be apprehended. This is usually rare, however, because a State will not initiate the extradition procedure unless there is a high probability that the person in question will be extradited. Apprehension or provisional arrest both aim at preventing the requested person from escaping justice by taking refuge in a third State.

Hearings & Transfer

Upon receiving the official extradition request and the supportive documentation, the requested State forms a judicial hearing in which the request and the supportive documents are examined and inspected to make sure that the extradition request is legally justified. The hearings will decide whether extradition will take place or be declined.

If upon the result of the hearings a decision is made to extradite, extradition has to take place without unreasonable delay, and to be facilitated by the requested State. However, all the expenses incurred in the extradition process shall be settled by the requesting State.

When transferring an extradited person from the State of residence to the requesting State, permission is required if this transfer will involve passing through the jurisdiction of a third party. Such permission should be supported by all necessary documents related to the extradition request, in addition to a reimbursement of the expenses that the third party may incur due to the transfer. In most cases, such permits are easily obtained. However, when the laws of the third State disagree with those of the seeking State over the definition of the crime involved, especially fiscal plans, the requesting State will avoid using the territories of the third States.

Transfer of Property of Extradited Persons

The property of the extradited person may also be delivered when requested by the requesting State, but only under certain conditions. The property requested should constitute evidence that will be used by the Court of law in trying the extradited person, or it has been seized by the extradited person through unlawful acts on the account of which he has been extradited. However, if the delivered property is not used in the trial or if the extradited person is acquitted, then the property must be returned to the requested State.

 

Extradition: The Development of the Human Rights Perspective

Although most principles related to human rights and their applications were actually documented and endorsed internationally during the twentieth century, the human rights perspective had actually been developing as early as the late 18th century.

Throughout the 19th century for example, the practice of extradition had come to exclude political fugitives, applying only to those individuals wanted in relation to serious criminal offenses. The exclusion of political criminals and fugitives paralleled the development of the notions and principles of human political rights and the need to exempt individuals from prosecution and persecution on the basis of their political beliefs and behaviors.

Still, many political prisoners were extradited all over the world despite the declared intent of governments that such extradition would not take place, mainly due to political considerations and interests among States that necessitated such practices. The absence of international and regional organizations that observed and recorded such human rights violations was of course instrumental in letting these governments violate their declared intentions alongside with the human rights of political fugitives.

The Universal Declaration of Human Rights

The Universal Declaration of Human Rights is one of the most important documents related to human rights that has a substantial impact on the international practice of extradition. The Declaration of Human Rights is after all a universally obliging document for those nations signatory to its provisions. As a matter of fact, extradition as a practice has been viewed by many humanists as an explicit assertion of human rights.[62]

The Universal Declaration interrelates with extradition in a number of ways. First of all, the Declaration makes it an obligation for States to provide suspects and individuals charged with criminal offenses with all types of due process and fairness. The Declaration disregards the origin or nationality of the individual and rather, emphasizes the fact that he is a human being who has human rights that should be universally recognized. Thus, since States become indirectly obliged to assure the fact that their subjects, that is, all individuals under their jurisdiction are subject to fair treatment by the law. Consequentially, a State cannot hand over a person to another government if has not guarantees or assurances that this person will be receiving fair legal treatment and due process.

The Universal Declaration’s implications on extradition are mostly indirect, except for a very crucial aspect that has been given utmost import in the Declaration. The Declaration condemns and prohibits any practice that results in handing a fugitive or a wanted person by one government to another without respecting factors such as fairness and due process. Thus, the Declaration was actually relating to those practices that are considered alternatives to extradition.

One common practice that has become very uncommon today but that nonetheless remains a choice for many States is abduction. Abduction is conducted for a variety of reasons: when the hosting State refuses to hand in the wanted fugitive, when the hosting State does not have the ability to hand in the wanted fugitive for any reasons, or when the relations between the requesting and hosting States are poor enough such that extradition is difficult to seek.[63]

Another form of abduction that is abhorred by the Universal Declaration involves the actions of volunteering private individuals rather than officials, acting on behalf of a government to abduct a fugitive from another jurisdiction and to bring him to the courts of law. This again is considered a serious violation of human rights.[64]

Connivance between states to seize a person without lawful means, however, remains one of the most serious violations of human rights mentioned in the Declaration. Such connivance usually takes place between the law enforcing agents of the two States involved. States will resort to such a practice which mounts to the level of conspiracy for numerous reasons such as the high costs of extradition, the strong legal basis upon which the fugitive can reject and escape extradition, the lack of real and strong basis for extradition, and various others. The objective of connivance is therefore to assure that the fugitive will be transferred to the requesting State regardless whether this transfer is legally justified or not, thus violating the basic human rights of the fugitive.[65]

The articles of the Universal Declaration of Human Rights that prohibit these practices, however, are not always respected by States, although by definition they are legally binding. On many occasions, States are willing to bear the condemnation and criticism by the international community and international organizations that act as watchdogs for human rights if the illegal seizing or abduction of a fugitive is more politically important.

For the human rights perspective, extradition is the suitable, legal and acceptable process through which fugitives can be turned in to justice with their human rights respected and protected. Although the Declaration does not officially state this clearly, it definitely does that indirectly. First of all, the alternative processes that are usually used as alternatives to extradition are abhorred and rejected by the Declaration. Secondly, the notions of justice, fairness, and due process are all emphasized. The importance of the Declaration does not lie in its articles and provisions, particularly that these are mostly indirectly related to extradition. Rather, the Declaration’s important is that it is a universal declaration that introduces and imposes a humanistic perspective onto the legal, political and procedural attitudes and behaviors of States and political systems.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

Akehurst, Michael. A Modern Introduction to International Law. New York: 1992.

 

Blakesley, Christopher. “The Law of International Extradition: A Comparative Study.” In Dugard, Jonh. & Wyngaert, Christine van den, eds. International Criminal Law & Procedure. Darmouth: Aldershot, 1996.

 

Brierly, J. L. The Law of Nations. Oxford: Clarendon Press, 1963.

 

Briggs, Herbert W. The Law of Nations. Second Edition, Appleton-Century-Crofts Inc., 1952.

 

De Visscher, Charles. Theory & Reality in Public International Law. New Jersey: Princeton University Press, 1968.

 

Dixon, Martin & McCorquodale, Robert. Cases & Materials on International Law.

 

Henkin, Louis, Richard Pugh, Oscar Schacter & Hans Smit. International Law, Cases & Materials, Second Edition, West Publishing Company, 1987.

 

Henkin, Louis. How Nations Behave: Law & Foreign Policy. New York: Columbia University Press, 1979.

 

Hershey, A. The Essentials of International Public Law. New York: MacMillan, 1915.

 

Higgins, Rosalyn. Problems & Process. Oxford: Clarendon Press, 1994.

 

Hudson, Manley & Bacon, Ruth. . International Legislation. New York: Oceana Inc., 1971.

 

Jacobini, H. B. International Law a Text. Homewood. The Dorsey Press, 1968.

 

Kelsen, Hans. Principles of International Law. Second Edition. New York: Holt, Rinehart & Winston, Inc., 1967.

Mangone, Gerard J. Elements of International Law: A Casebook. Homewood: The Dorsey Press, Inc., 1963.

 

Mueller, Gerhard & Wise, Edward. Criminal Law. London: Sweet & Maxwell, 1965.

 

Shearer, I. A. Starke’s International Law. London: Butterworth, 1994.

 

Starke, J. G. Introduction to International Law. London:  Butterworth, 1989.

 

Von Glahn, Gerhard. Law Among Nations. Sixth Edition. New York: MacMillan Publishing Company, 1992.

 

[1] Hershey, p. 263.

[2] Shearer, p. 317.

[3] Shearer, p. 317.

[4] Barbara M. Yarnold. International Fugitives: A New Role for the International Court of Justice. New York: Praeger Inc., 1991.

[5] Von Glahn, p. 293.

[6] Briggs, p. 595.

[7] Glahn, pp. 293-294.

[8] Von Glahn, p. 185.

[9] Brownlie, pp. 13-14.

[10] Brownlie, p. 13.

[11] Shearer, p. 317.

[12] Hudson, pp. 579-601.

[13] Shearer, p. 317.

[14]  Gerhard Mueller & Edward Wise.  Criminal Law. London: Sweet and Maxwell, 1965: p. 442.

[15] I. A. Shearer. Starke’s International Law. London: Butterworth: p. 317.

[16]

[17] Christopher Blakesley. “The Law of Comparative Extradition.” In John Dugard & Christine van den Wyngaert, eds. International Criminal Law & Procedure. Aldershot: Dartmouth, 1996: p. 147.

[18] Christopher Blakesley, p. 147.

[19] Christopher Blakesley, p. 147.

[20] H. B. Jacobini. International Law: A Text. Homewood: The  Dorsey Press: p.105.

[21] H. B. Jacobini, p. 105.

[22] Arlo Wagner. “Israeli high court rejects extradition of Sheinbein.” The Washington Times, February 26, 1999: p. C9.

[23] Arlo Wagner: p. C9.

[24] H. B. Jacobini, p. 106.

[25] H. B. Jacobini, p. 106.

[26] Michael Goldfarb & Ray Suarez. “Pinochet/Extradition Update.” Talk of the Nation. National Public Radio (NPR):  December 14, 1998.

[27] H. B. Jacobini, p. 106.

[28] Herbert W. Briggs. The Law of Nations. Second Edition. Appleton-Century-Crofts Inc., 1952: p. 581.

[29] An-Nahar Archive Center, 1998.

[30] Christopher Blakesley, p. 423.

[31] Christopher Blakesley, p. 161.

[32]  Christopher Blakesley, p. 425.

[33] Christopher Blakesley, p. 163.

[34] Christopher Blakesley, p. 163.

[35] Dar Assayyad Research Center, 1998.

[36] Briggs, p. 593.

[37] Al-Anwar, July 28, 1989 & Wall Street Journal, July 28, 1989

[38] Von Glahn, p. 302.

[39] Sweeney, Oliver & Leech, p. 369.

[40] Sweeney, Oliver & Leech, p. 369.

[41] Christopher Blakesley, p. 165.

[42] Herbert W. Briggs, p. 596.

[43] Christopher Blakesley, pp. 401-402.

[44] Christopher Blakesley, p. 400.

[45] Herbert W. Briggs, pp. 592-593.

[46] Christopher Blakesley, p. 414.

[47] Herbert W. Briggs, p. 596.

[48] I. A. Shearer, p. 318.

[49] I. A. Shearer, p. 317.

[50] Christopher Blakesley, p. 165.

[51] Gerhard Mueller & Edward Wise, p. 445.

[52] I. A. Shearer, p.317.

[53] I. A. Shearer, p. 317.

[54] Christopher Blakesley, p. 165.

[55] J. G. Starke. Introduction to International Law. London: Butterworth, 1989:  pp. 318-319.

[56] Dar Assayyad Research Center, 1998.

[57] Christopher Blakesley, pp. 166-167.

[58] I. A. Shearer, p. 319.

[59] Christopher Blakesley, p. 397.

[60] J. G. Starke, p. 334.

[61] Gerhard Mueller & Edward Wise, p. 446.

[62] Bassiouni, p.293.

[63] Bassiouni, p.275.

[64] Bassiouni, p.275.

[65] Bassiouni, p.275.

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