Introduction
First of all, we need to understand the role played by international law in our lives. Basically, the role of international law is primarily to promote better relations between states on the international scene by the development of certain accepted codes governing the behavior of states in relation to their neighbors and other nations. However, one of the controversial aspects which might lead to turmoil between the two countries is the issue of extradition or granting asylum of a foreign citizen in their country. Let’s analyze these terms.
Extradition
The term extradition denotes the process whereby one state surrenders to another state at its request a person accused or convicted of a criminal offense committed against the laws of the requesting state usually within the territory of the requesting state the latter being competent to try the alleged offenders.[1] It is an act of one sovereign authority to another.
Extradition is a concept which by its very nature is not a matter regulated by international law. It is municipal in that it falls within the domestic jurisdiction of a state to decide on what occasion it will agree to surrender persons within its borders and to determine procedurally how this will be done. However, the consequences of such municipal law are very much regulated by the effect of international legal scenarios.
The systematic surrender of persons alleged to be criminals in pursuance of treaties between nations is a comparatively recent practice adopted by nations for the sake of convenience. The ancient roots lie in the concept of a writ of habeas corpus.
In modern times, the laws are so strict that in England, the Crown could not surrender an alleged criminal, even if it wished to do so, unless the surrender was authorized by legislation i.e. The Extradition Act, 1870. This is the case of being governed by strict municipal laws in most nations. In the absence of a treaty or statute, the grant of extradition depends purely on reciprocity or courtesy. In 1957 the European Convention on Extradition, Extradition, multilateral extradition was signed by the Council of Europe while the Extradition Treaty of 2004 between the USA and UK is an example of a bilateral extradition treaty. Customary international law imposes no obligation upon a state to surrender alleged criminals to other states and thus permits a state to protect them at its discretion. Hence, no duty to extradite in the absence of a treaty between parties.
In other words, if an alleged offender is in a territory other than the state seeking to exercise jurisdiction, the lawful method of securing his return to stand trial is to request for his extradition. It must be satisfied that the person to be extradited is an Extraditable Person and has committed an Extraditable Crime. This is important to note in the case of political asylum seekers which will be dealt with below.
In the case of a federation, extradition can be inter-state like in the case of the USA and hence governed by the US Constitution.
Further, the Rule of Double Criminality that must be abided with states that the extradition crime must be a crime punishable according to the law both of the state of asylum and of the requesting state. The Rule of Speciality states that the person who is extradited for a certain crime should be tried for that very crime and not some other crime. It must also be looked into that the possibility of punishment is not out of proportion in the other country from the crime committed and there must be a chance of free trial.
Asylum
The expression ‘right of asylum’ is shelter, protection, or refuge from danger granted to those fleeing their country for political reasons. One state has a right to grant an individual an asylum which must be respected by other states. Article 14 of UDHR also recognizes the right to seek asylum.[2]
In cases of political offenders, they are not as a rule extraditable. Hence, close scrutiny is required. They have not committed the crime as per the extraditable crimes then it comes to the discretion of State.
In determining whether an offense is non-political or a political crime, regard should be given in the first place to its nature and purpose, i.e., whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object.[3]
Asylum may be territorial (or internal) i.e. granted by a state on its territory, or it may be extra-territorial, i.e. granted for and in respect of legations, embassies, consular premises,
international headquarters, premises of international institutions, warships and merchant vessels. Territorial asylum may be further sub-divided into political asylum, refugee asylum, and general asylum.
Interrelation
The term ‘extradition’ is synonymously referred to as refusal of asylum making them mutually exclusive. The liberty of a state to accord asylum to a person and liberty to refuse asylum is upon mutual relations of the states.[4]
Famous Examples
Long after World War II, Adolf Eichmann a Nazi official and a member of the German SS was captured in 1960 as a war criminal in Argentina by Israeli agents and extradited. Eichmann was abducted to Israel for trial and was convicted.
Slobodan Milosevic was president of the Republic of Serbia and subsequently was elected president of the Federal Republic of Yugoslavia (FRY). He launched brutal attacks on ethnic Albanians in Kosovo. He was arrested in March 2001 by the Serbian government and surrendered/extradited to ICTY in Hague. He died of ill-health while standing trial.
Julian Assange who is the co-founder of WikiLeaks is in extraterritorial asylum under Ecuadorian Embassy. Edward Snowden seeks asylum in Russia after exposing the NSA illegal spying program.
References:
[1] Abegunde Babalola, Extradition under International Law: Tool for Apprehension of Fugitives, 22 J.L. Pol’y & Globalization 25 (2014).
[2] Sibylle Kapferer, The Interface between Extradition and Asylum, UNHRC, 2003, available at https://www.unhcr.org/3fe84fad4.pdf
[3] Hambro, Edvard. “New Trends in the Law of Extradition and Asylum.” The Western Political Quarterly, vol. 5, no. 1, 1952, pp. 1–19.
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[4] Edvard Hambro, Extradition and Asylum: A Note, 11 German Y.B. Int’l L. 106 (1962). Extradition and the Right of Asylum, 6 Law Mag. & Rev. Quart. Rev. Juris. & Quart. Dig. All Rep. Cases 5th ser. 262 (1881).
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