The definition of extradition is the transfer of an accused from one state or country that seeks to place the accused on trail. International extradition treaties often provide exceptions under which a nation can refuse to surrender a fugitive sought by another nation. It is the official process by which one nation or state requests and obtains from another nation or states the surrender of a suspected or convicted criminal. As between nations, treaties regulate extradition. There are many cases where the host country due to issues, will not return the escaped fugitive between the countries affected.
For example a majority of the extradition treaties have some kind of connection with the United States. There are two types of extradition treaties: list and dual criminality treaties. The most common and traditional is the list treaty, which contains a list of crimes for which a suspect will be extradited to the requested country for. Dual criminality treaties, used since the 1980s, generally allow for extradition of a criminal suspect if the punishment is more than one-year imprisonment in both countries. Occasionally the amount of the time of the sentence agreed upon between the two countries is varied.
As with any decision made between two countries it takes time to come up with a consensus on the result of the offender. Under both types of treaties, if the conduct is not a crime in either country then it will not be an extraditable offense. Extradition is a situation that is typically not something that happens everyday on the daily news, however it does happen and effect the situation within the moment. This paper will touch on some examples of International Extradition and it’s effectiveness on global situations, and some negative problems faced with it also.
Most countries have extradition laws. Most countries also have extradition treaties such as Mexico and the United States, as shown above. If two countries have an extradition treaty, they have an agreement to extradite each others wanted fugitives based upon the terms of the treaty; “considered simply as a contract between two independent Governments” (Spears 95). Even when a treaty is not present, extradition will usually be granted if it meets certain conditions regarding how the extradition request is made and who makes the request.
The primary consideration is dual criminality, “has become an unwanted barrier to extradition to both requesting and requested States” (Hafen, Article). This means that the crime for which the person is accused must have also committed a criminal offense in the country being asked to hand over the fugitive. For example, a country that has no taxes generally will not grant extradition on the grounds of income tax fraud because there is no such crime in their country. Also, many countries, such as Canada, and a majority of the European Union will not grant extradition if the person potentially faced the death penalty for their crimes.
No country would grant extradition for civil charges. They must be criminal charges only, because if it is a civil charge it should be handled within that state. If you fled to Colombia you would be extradited to the United States for drug charges (Yolanda 1). Unfortunately many of these cases are reoccurring because the global crimes that are happening over borders and not just locally. The war on drugs especially has been an on going problem for many years and is a prime example of the use of extradition.
On May 13th, 1999 there was a meeting amongst the House of Representatives with the Subcommittee on Criminal Justice, Drug Policy and Human Resources. There Representative Gilman gathered the subcommittee to talk about the war on drug and that the extradition is very important to fight the issue, “This issue is extradition, it is at the very heart of winning that war on drugs, and it is the key to international law enforcement and respect for law and order” (1) With that being said the importance of cooperation between one or more countries is very important because it ensure a smooth transition process of fugitives.
However Gilmore did mention that the international extradition with Mexico has been “seldom publicly examined” (1). Drugs have caused thousands of deaths and have generated billions of dollars every year going into the hands of dug cartels in Mexico. Here Gilman puts a lot of emphasis on the In the case, United States v. Alvarez-Machain, 504 U. S. 655, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992), it was about when a criminal defendant who was abducted to the United States acquires a defense to the jurisdiction of that country.
The opinion, written by Chief Justice Stevens, the defendant, who went by the name of Humberto Alvarez Machain, was accused of participating in the kidnap and murder of a United Sate DEA agent Enrique Camarena Salazar and a Mexican pilot. Due to this incident, the United States believed that due to the murder of a federal agent who was a representative of the US was committed at Mexico, that Machain should be put into trail at the United States.
The extradition treaty that is between Mexico and US is establish so that Mexico would put Machain through Mexico’s court system. The extradition treaty that was established between the two countries for a fugitive was “allowed only in exceptional cases, at the discretion of the government” (Library of Congress 24-25) On April 2nd, 1990 the fugitive was abducted by US agents and flown to Texas where his trial would start there. This is just one example of the problems that extraditions prevent between the relationships of two nations.
Unfortunately the United States have played this card many time, abducting the fugitive to bring him to the justice under the US laws. The only reason why they resort to such a move is because; in this case for example, Mexico wanted to punish him under their laws. With Mexico having such a corrupt government, it is valid that the US would keep in mind that Machain would not be punished in the right way. Ultimately Machain was acquitted of these charges and then sued the US government under the Federal Tort Claims Act.
This act basically means that anyone can sue the federal government on grounds that the problem happened within the United States. Because of what Machain was accused of happened in Mexico, the US Government ignored his accusation, however the federal courts made an exception and because it was an unlawful activity conducted by federal officials by the United States there could be a potential case. Stated earlier, this case was not the first time where a fugitive was abducted from where they were originally residing in to be put to trial in the US.
There was a case, Ker v. Illinois, 119 U. S. 436 (1886) where a defendant was presented to the court by unwanted abduction. Frederick Ker was accused of larceny in Illinois, but he was abducted all the way from Peru due to a lack of patience, the official sent to Peru presented, “the proper warrant to demand Ker by virtue of the extradition treaty between Peru and the US” (Ker v. Illinois). This set the precedent for many other similar cases after that involved forced abductions and unwanted trials.
With the matter with Machain, although he was announced not guilty, it left a bad taste in the fugitive’s mouth, “claiming that his abduction constituted outrageous governmental conduct… that the District Court lacked jurisdiction to try him because he was abducted in violation of the extradition treaty between the United States and Mexico” (CJ Stevens). This can cause problems on a bigger scale such as between the two countries themselves because; “the US had authorized the abduction of the respondent, and letters from the Mexican government to the US government served as an official protest of the Treaty violation” (CJ Stevens).
This negative outcome of the situation can cause tension between countries and either make the relationship worse or create a new problem. Given all the controversy and uncertainty that accompany a request for extradition, and the problems alluded to in the presented case, it should come as no surprise that extradition does not always offer a solution to the international dilemma that arises when an accused criminal crosses borders. The states involved in the example provided may not have extradition treaties, and may not want to comply voluntarily with requests for extradition.
Even if a treaty exists between the United State and Mexico for example, the state from which extradition is sought may not want to honor the extradition treaty or may question its validity. For example, when diplomatic relations between states become strained, existing treaties may be ignored. Also, in a state that has recently gained independence from a colonial power, there is some question about whether the new state is bound by the treaties of the old; the new political leaders may claim they have no such obligation.
State from which extradition is sought may also hesitate on the grounds that the individuals in question had engaged in a political offense and hence should be accepted from extradition, as a political refugee and entitled to asylum. Alternately, there may be concern about the treatment that will be afforded the individual once extradition is complete. In the US, the federal government deals with matters regarding both foreign and domestic issues.
Therefore, the executive branch of federal government negotiates all international extradition matters because it has a lot to do with the relationship amongst other countries. The U. S. Secretary of State has the power to decline to surrender a suspect for extradition on any number of discretionary grounds, including humanitarian and foreign policy considerations. The Secretary of State can also attach conditions to a suspect’s surrender.
However, even if the executive branch is in favor of the foreign nation’s request, the judicial branch can turn down extradition requests. The judiciary can dismiss an extradition request if the charges the foreign government leveled against the captive are not crimes related to the dignity of the U. S. The judicial branch can also dismiss an extradition request if the captive has a reasonable fear of facing cruel and unusual punishment if he was extradited. Hence why various countries do not extradite fugitives if the punishment they face is the death penalty.