Extradition: Challenges, and Methods

A Human Rights Perspective

I. Introduction: The Jurisprudential Tension

Extradition is the formal legal process by which one State (the requested State) surrenders a person to another State (the requesting State) for prosecution or punishment.

The core tension in extradition law is between sovereignty/security (the State’s duty to combat transnational crime and prevent impunity) and individual human rights (the duty to protect individuals from persecution or ill-treatment).

While there is no general obligation to extradite under Customary International Law (CIL) absent a treaty, the principle of aut dedere aut judicare (extradite or prosecute) has hardened into a binding obligation for jus cogens crimes (e.g., torture, genocide), as seen in the Convention Against Torture (CAT).

II. Methods of Extradition

While formal treaties are the gold standard, states increasingly resort to alternative (and controversial) methods to bypass procedural safeguards.

1. Treaty-Based Extradition

Bilateral Treaties: The traditional method, strictly defined by terms (e.g., US-UK Extradition Treaty 2003).
Multilateral Conventions: E.g., The European Arrest Warrant (EAW) which replaces “extradition” with “surrender” between EU states, removing the political executive from the decision-making process to expedite returns.

2. Ad-Hoc Arrangements

In the absence of a treaty, states may agree to extradite on a case-by-case basis based on comity and reciprocity.

3. “Disguised Extradition” (Deportation/Expulsion)

Critique: States often use immigration powers (deportation) to remove a suspect to a state that wants them, bypassing the rigorous human rights checks of extradition courts.
Case Law: Boitano v. USA (courts look at the “dominant purpose” of the removal). If the purpose is rendition rather than immigration control, it is an abuse of process.

4. Extraordinary Rendition

The state-sponsored, extra-legal transfer of persons from one country to another (often for torture/interrogation), completely bypassing the judicial system. This is a flagrant violation of international human rights law.

III. International Norms: The Human Rights “Bars” to Extradition

Modern extradition law is less about administrative cooperation and more about human rights adjudication. The following are the primary barriers to extradition:

1. The Absolute Bar: Torture and Non-Refoulement

Under Article 3 of the ECHR and Article 3 of CAT, a state cannot extradite a person where there are substantial grounds for believing they would be in danger of being subjected to torture.

Landmark Case:Soering v. UK (1989)
- Facts: Soering faced extradition to the US (Virginia) for capital murder.
- Ratio: The European Court of Human Rights (ECtHR) held that while the death penalty itself was not then outlawed, the “Death Row Phenomenon” (years of mental anguish awaiting execution) constituted inhuman and degrading treatment. Extradition was refused.
- Significance: It extended state responsibility extraterritorially. The UK becomes responsible for the foreseeable ill-treatment the fugitive suffers after leaving its soil.

2. The Fair Trial Bar (Article 6 ECHR / ICCPR Art 14)

Extradition can be refused if the fugitive risks a “flagrant denial of justice” in the requesting state.

Landmark Case:Othman (Abu Qatada) v. UK (2012)
- Ratio: The ECtHR blocked the deportation of Abu Qatada to Jordan because evidence obtained via the torture of third parties would likely be used against him in his trial.
- Significance: This set a high threshold. Mere “irregularities” in a foreign trial are not enough; the breach must be “flagrant” (destroying the essence of the right).

3. The Death Penalty Exception

Most abolitionist states (EU, Canada, Australia) refuse extradition to retentionist states (USA, China) unless “satisfactory assurances” are given that the death penalty will not be sought or carried out.

Case Law: Judge v. Canada (UN Human Rights Committee): Extraditing a person to face the death penalty without assurances violates the right to life (ICCPR).

4. The Political Offense Exception

Historically, states refused to extradite political dissidents.

Modern Erosion: In the age of terrorism, this exception has been severely curtailed. The Suppression of Terrorism Convention explicitly removes violent acts (bombing, hijacking) from being considered “political offenses.”

IV. Contemporary Challenges

1. The Dilemma of “Diplomatic Assurances”

When a state wants to extradite a suspect to a country known for torture (e.g., Jordan, Libya), they often seek “Diplomatic Assurances” (a promise: “We promise we won’t torture this specific guy“).

Human Rights Critique: These are often “fig leaves” used to circumvent non-refoulement obligations. If a state tortures generally, a paper promise is legally worthless.
Judicial View: In Othman, the court accepted assurances were given in good faith but still blocked removal on fair trial grounds.

2. Transnational Terrorism vs. Rights

Post-9/11, extradition laws were expedited (e.g., UK Extradition Act 2003). The challenge is ensuring that “fast-track” procedures do not erode judicial oversight.

Issue: The “trust” model (e.g., EAW) assumes all partner states have equal human rights standards, which is often factually incorrect (e.g., prison conditions in Hungary vs. Sweden).

3. Politicization of the Judiciary

Case Study:Julian Assange
- The Assange case highlighted the complexity of the “political offense” exception and the use of the Espionage Act. His defense argued extradition would be oppressive due to his mental health (Section 91, UK Extradition Act) and the risk of suicide in US “SAMs” (Special Administrative Measures) prison conditions.
- Outcome: Extradition was initially blocked on health grounds, then allowed after US assurances on prison conditions, before eventually ending in a plea deal. It illustrates how medical/health grounds have become a primary defense where political arguments fail.

V. Summary for Exams

Concept	Key Case / Principle	Significance
Non-Refoulement	Soering v UK (1989)	Extraterritorial responsibility for torture/ill-treatment.
Fair Trial	Othman (Abu Qatada)	“Flagrant denial of justice” bars extradition.
Assurances	Chahal v UK	Assurances do not absolve the sending state of risk assessment.
Methods	Boitano v US	Distinguishing “Disguised Extradition” from lawful deportation.

Conclusion:

From a human rights perspective, extradition is no longer a sovereign prerogative but a qualified power. The requesting State must prove not only the criminality of the act (Double Criminality) but also the human rights compliance of its own judicial and penal systems.

Summary of Landmark Extradition Cases
1. Soering v. United Kingdom (1989)
Court: European Court of Human Rights (ECtHR)
Facts: Jens Soering, a German national, was accused of double murder in Virginia, USA. He fled to the UK. The US requested extradition to face trial, where the death penalty was a likely outcome. Soering argued that the “Death Row Phenomenon” (waiting years in extreme isolation and fear of execution) constituted inhuman treatment.
Issue: Does the “Death Row Phenomenon” constitute inhuman or degrading treatment under Article 3 ECHR, and does a State incur liability for foreseeable ill-treatment outside its jurisdiction?
Decision: Extradition Refused. The Court held that while the death penalty itself was not prohibited at the time, the manner of its implementation (the “Death Row Phenomenon”) violated Article 3. The UK could not extradite without assurances that the death penalty would not be sought.

2. Othman (Abu Qatada) v. United Kingdom (2012)
Court: European Court of Human Rights (ECtHR)
Facts: The UK sought to deport Abu Qatada, a radical cleric, to Jordan to face terrorism charges. There was strong evidence that key witnesses against him in Jordan had been tortured, and their statements would be used in his trial.
Issue: Does deportation to a country where evidence obtained by torture of third parties will be used constitute a “flagrant denial of justice” under Article 6 ECHR (Right to a Fair Trial)?
Decision: Deportation Blocked. The Court ruled that admitting torture evidence is manifestly contrary to the concept of a fair trial. Deportation would only be lawful if Jordan guaranteed that such evidence would not be admitted (which they eventually did via a mutual assistance treaty).

3. Chahal v. United Kingdom (1996)
Court: European Court of Human Rights (ECtHR)
Facts: Karamjit Singh Chahal, a Sikh separatist, was detained in the UK for deportation to India on “national security” grounds. He argued he would face torture by Indian police. The UK government argued that the threat Chahal posed to national security outweighed the risk to his individual safety.
Issue: Is the prohibition on torture (Article 3 ECHR) absolute, or can it be balanced against the deporting State’s national security interests?
Decision: Deportation Blocked. The Court held that Article 3 is absolute. The activities of the individual, no matter how dangerous or undesirable (terrorist or otherwise), cannot justify exposing them to torture. Non-refoulement is a non-derogable right.

4. Judge v. Canada (2003)
Court: UN Human Rights Committee (UNHRC)
Facts: Roger Judge was sentenced to death in Pennsylvania, USA. He escaped to Canada. Canada deported him back to the US without seeking “assurances” that the death penalty would not be carried out.
Issue: Does an “abolitionist” State (Canada) violate the Right to Life (Article 6 ICCPR) by deporting a person to a retentionist State (USA) where they face execution?
Decision: Violation Found. The Committee held that for countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Canada violated Judge’s right to life by failing to seek assurances.

5. Bozano v. France (1986)
Court: European Court of Human Rights (ECtHR)
Facts: An Italian court sentenced Bozano to life in absentia. He fled to France. A French court refused extradition because the Italian trial in absentia violated French legal standards. French police then arrested Bozano, forced him into a car, and drove him to the Swiss border to be handed over to Italian authorities, bypassing the judicial refusal.
Issue: Did this police action constitute “lawful detention” for deportation, or was it a “disguised extradition” (abuse of power)?
Decision: Violation Found (Article 5 ECHR). The Court ruled this was a détournement de pouvoir (misuse of power). It was a de facto extradition disguised as deportation to circumvent the judicial ruling, making the detention arbitrary and unlawful.

6. USA v. Julian Assange (2021)
Court: UK Magistrates’ Court (District Judge Baraitser)
Facts: The US requested Julian Assange’s extradition for espionage. Medical experts testified that Assange suffered from severe depression and autism, and that US “Supermax” prison conditions (SAMs) would likely drive him to suicide.
Issue: Would extradition be “oppressive” due to the fugitive’s mental condition under Section 91 of the Extradition Act 2003?
Decision: Extradition Initially Blocked. The District Judge ruled that due to his mental health, extradition would be oppressive as there was a substantial risk of suicide. (Note: This decision was later overturned on appeal after the US provided specific assurances regarding his treatment, but the principle of mental health as a bar remains valid).