Extradition law is an intricate topic in that the request from one state needs to be weighed against several factors. The extradition process provides for several possible defenses to requests. The enforceability of a defense will depend on the extradition treaty governing the relationship between the requesting state and the state of refuge. This article lists some of the most common defenses available.
Political motivation
A common principle of extradition law holds that an individual may not be extradited if the extradition request and/or the underlying criminal allegation are politically motivated. However surprising this may be, such occurrences do take place even among democratic states. Most recently, the US withdrew an extradition request, possibly for fear of having it deemed politically motivated.
Lack of dual criminality
The concept of dual criminality must be satisfied in order to consider an extradition request. Dual criminality means that the crime under which an extradition is sought by a requesting state must also constitute a crime in the state of refuge. If this can be proven, the extradition request will usually fail under the treaty in question.
Political offense
Extradition treaties generally include exceptions to the extradition obligations for “political crimes”. This exception has been often criticised and the definition of what constitutes a political crime is unclear. Most recently, treaties have curtailed the exception by excluding certain violent crimes from it.
Sufficiency of evidence
If an extradition request holds its base on criminal charges which are yet to be trialed, the defendant may rely on a defense of sufficiency of evidence. In common law countries, we also call this probable cause, where allegations fail to display enough evidence. Unless a treaty specifically holds that a lower standard of proof can be relied upon, a subject may successfully argue that there isn’t enough evidence held against them to validate the extradition request.
Human rights concerns
A subject may prevent their extradition by citing (and proving) human rights concerns. This relates to the treatment of the individual in question if they were returned to the requesting state. Common reasons may be suspicions that the defendant may not be subject to a fair trial or that they may be subject to torture or even execution. Decisions on such issues are usually taken by the Secretary of State rather than the extradition judge. If extradition is to go through, the State Department may place certain conditions on the extradition to ensure that the rights of the person being extradited are respected.
Other treaty-based defenses
An individual can rely on other specific treaty-based offenses. These may include prohibition of the extradition of nationals, statutes of limitations, humanitarian considerations such as health or age. Some treaties may also prohibit extradition for capital offenses.
Extradition is a highly technical, lengthy and sometimes even controversial process. It requires a thorough understanding of several jurisdictions, an analysis of the underlying criminal charges and a deep investigation of the particular circumstances of each case. For legal teams, this is an opportunity to develop deep and critical legal strategies.
