Extradition

Why This Matters

A terrorist escapes to a neighbouring state. A fraudster flees to a country with no extradition treaty. A revolutionary seeks refuge claiming political offence. A former head of state is arrested in a third country. Extradition is the mechanism by which states cooperate to ensure fugitives cannot escape justice by crossing borders. It is also the mechanism by which states protect individuals from politically motivated prosecutions. The tension between these two functions runs through every extradition question in the OU paper. Part A tests definitions. Part B tests principles and procedure. Part C tests application of the political offence exception and dual criminality rule to specific scenarios.

Chapter Overview

This chapter answers five questions:

1. What is extradition? Definition, basis, and the role of treaties.
2. What is the procedure? Formal request, supporting documents, and prima facie case.
3. What are the governing principles? Dual criminality, specialty, political offence exception, non-extradition of nationals.
4. When may extradition be refused? Additional grounds of refusal.
5. How do Part C scenarios apply these rules?

Definition and Basis of Extradition

Extradition is the formal process by which one state (the requested state) surrenders a person present on its territory to another state (the requesting state) for the purpose of trial or punishment for an offence committed in the requesting state's jurisdiction.

Extradition is not an obligation under customary international law. No state is bound to extradite in the absence of a treaty. The maxim aut dedere aut judicare (either extradite or prosecute) applies in limited contexts, primarily for offences recognised as crimes under international law such as terrorism, torture, and genocide, but it does not create a general obligation to extradite.

The basis of extradition is almost always bilateral treaty. Extradition treaties specify the offences for which extradition is available, the procedure for requesting it, and the grounds on which it may be refused. In the absence of a treaty, extradition is a matter of comity: a state may choose to surrender a fugitive as a gesture of goodwill but is not legally obliged to do so.

Procedure for Extradition

Extradition follows a formal procedure governed by the bilateral treaty and domestic extradition law of the requested state.

Formal Request

The requesting state submits a formal diplomatic request through its embassy or directly to the competent authority of the requested state. The request must be accompanied by:

• A description of the offence and the applicable law of the requesting state
• Evidence establishing a prima facie case against the fugitive: sufficient evidence that, if uncontradicted, would justify committal for trial
• A physical description and if possible photograph and fingerprints of the fugitive
• The text of the relevant penal provisions of the requesting state

Prima Facie Case Requirement

The requested state's judicial authority must be satisfied that a prima facie case exists before ordering surrender. This is not a full trial on the merits: the court does not determine guilt. It determines whether the evidence, if uncontradicted, would be sufficient to put the person on trial in the requested state.

This requirement protects the individual from surrender on flimsy or fabricated evidence. It is one of the principal judicial safeguards in extradition proceedings.

Judicial and Executive Functions

Extradition in most common law states (including India) involves both judicial and executive functions. The court determines whether the legal conditions for extradition are met: dual criminality, prima facie case, absence of a bar to extradition. The executive then decides whether to surrender: even where the court approves, the executive retains a residual discretion to refuse on grounds of public policy, diplomatic considerations, or humanitarian concerns.

In India under the Extradition Act 1962, the inquiry is conducted by a Magistrate who returns a report to the Central Government. The Central Government then makes the final surrender decision.

Governing Principles of Extradition

Five principles govern extradition law.

Dual Criminality

The dual criminality rule requires that the act for which extradition is sought must constitute a crime in both the requesting state and the requested state.

If an act is criminal in State A but lawful in State B, State B will not extradite. The rule protects individuals from being surrendered for conduct that their state of refuge does not recognise as criminal. The standard in modern treaties is conduct-based, not charge-based: the question is whether the underlying conduct would be criminal in the requested state, not whether the exact offence as charged exists.

Specialty

The specialty principle requires that the extradited person may be tried only for the offence for which extradition was granted and no other.

Once surrendered for offence X, the requesting state cannot try the person for offence Y discovered subsequently without first releasing the person, giving them an opportunity to leave, and making a fresh extradition request for offence Y.

The Political Offence Exception

A state may refuse extradition if the offence for which surrender is sought is a political offence.

Two categories exist:

Pure political offences: Acts directed solely against the state and its political organisation with no element of ordinary criminality: treason, sedition, espionage. Always protected.

Relative political offences: Ordinary crimes committed in the context of and connected to a political uprising or conflict. Protected only if the political element predominates. The Castioni uprising test applies: the act must have been committed during a political uprising and in furtherance of it.

Non-Extradition of Nationals

Many states, particularly civil law states, refuse to extradite their own nationals. Common law states including India generally permit it. Where a state refuses to extradite its own national, the aut dedere aut judicare principle requires it to submit the case to its own prosecuting authorities.

Double Jeopardy (Ne Bis in Idem)

Extradition is refused where the person has already been tried and acquitted or convicted for the same offence in the requested state. Surrendering the individual for a second prosecution would violate a fundamental principle of justice.

Additional Grounds for Refusing Extradition

Beyond the five principles, most extradition treaties recognise further grounds.

Death penalty: Many states refuse extradition where the offence carries the death penalty unless the requesting state gives assurances it will not be imposed or carried out.

Fair trial guarantee: Extradition may be refused where the individual would not receive a fair trial due to systemic deficiencies, political bias, or discrimination on grounds of race, religion, nationality, or political opinion.

Humanitarian grounds: Age, health, or disproportionate circumstances may justify refusal.

Statute of limitations: Extradition is refused where the offence is time-barred in either state.

The Indian Position

India's extradition law is governed by the Extradition Act, 1962. India has bilateral extradition treaties with approximately fifty states. The Central Government may by notification treat any foreign state as an extradition country for the purposes of the Act even without a treaty.

The Act incorporates dual criminality, specialty, and the political offence exception. Section 31 specifically excludes extradition for offences of a political character. Extradition is also prohibited where the request is made to prosecute on account of race, religion, nationality, or political opinions. The inquiry is conducted by a Magistrate; surrender is decided by the Central Government.

Common Confusions

Key Takeaways

Definition: formal surrender by requested state to requesting state for trial or punishment.

Basis: treaty primary; comity without treaty; aut dedere aut judicare for international crimes.

Procedure: formal diplomatic request, prima facie case requirement, dual judicial and executive function. India: Extradition Act 1962, Magistrate inquiry, Central Government decision.

Five Principles: DSPND: dual criminality, specialty, political offence exception, non-extradition of nationals, double jeopardy.

Political offence: pure (treason, sedition): always protected. Relative: Castioni test. Terrorism excluded: Meunier. Former heads of state: Pinochet: no immunity for torture.

Memory Hooks: ADJ: basis DSPND: five principles Pure vs relative table

Extradition

Extradition is the formal process by which one state surrenders a person present on its territory to another state for trial or punishment for an offence committed in the requesting state's jurisdiction. It is not an obligation under customary international law: no state is bound to extradite without a treaty. In the absence of a treaty, surrender is a matter of comity.

Five principles govern extradition: dual criminality (the act must be criminal in both states), specialty (tried only for the extradited offence), the political offence exception (pure and relative political offences protected), non-extradition of nationals (applied by civil law states), and double jeopardy (no extradition where already tried for the same offence).

The political offence exception is the most contested principle. In re Castioni (1891) established the uprising test: a killing committed during and in furtherance of a political rising is a political offence. In re Meunier (1894) held that anarchist bombings targeting the public are not political offences. In R v Bow Street Magistrate ex parte Pinochet (No 3) (1999), the House of Lords held that former heads of state have no immunity from extradition for acts of torture under the Convention Against Torture.

Part B (15 marks)

Discuss the Principles Governing Extradition under International Law