EXTRADITION
02.10.18
You remember the problem that enforcement
jurisdiction will encounter if that is done
outside the borders of state? The moment
government officials will go to the territory of
another and serve processes that will encroach
upon the sovereignty of that state, that
becomes intervention. One way of avoiding that
is to have an extradition treaty where you don’t
need to go to the territory of another state just
so an accused individual could be brought to
trial in your state. You only need to make a
request for the other state to extradite.
Extradition
Traditio- to deliver
extra- outside of your territory
Bar Question: Distinguish between extradition
and deportation.
Deportation is unilateral. Because there is no
requirement of a request. That’s just a
unilateral act of the deporting state. That’s just
its decision.
Extradition is bilateral because there’s the
requirement of a request on the part of the
requesting state before it will give rise to the
duty to extradite.
Deportation does not require a treaty.
Extradition is basically treaty-based. In fact, I
will have to highlight that as a condition
because usually in the bar, they always make
the situation extreme to the point that you
would think that there would be no justice if
this person will not face trial in the territory of
State A. For example, Mr. X, the accused, is now
located in State B but State B does not
extradite. So the case can’t run if there is no
jurisdiction over the person of the accused.
Without extradition, he can’t be arrested and
consequently, no case will prosper.
Regardless of how grievous the act may be, if
there is no extradition treaty, there is no
obligation to extradite. What that means is that
there is even no CIL to extradite. What exists in
IL, though, that some even called even for the
purpose of forming part of CIL is in those
offenses that would give rise to either erga
omnes obligation or erga omnes inter partes
obligation to prosecute, another principle may
be relevant.
We call this the Principle of ut dedere ut
judicare (extradite or prosecute). If State A is
being requested to extradite an accused for an
offense that involves erga omnes obligation or
erga omnes inter partes (an offense violating jus
cogens norm or an offense violating a common
interest of some members of parties to the
convention), if it refutes to extradite, it will
have to prosecute. That’s why under the
convention on torture, this applies – ut dedere
ut judicare. Mr. X, for example, has committed
the crime of torture in State A but Mr. X is now
located in State B. There is no extradition treaty
between States A and B. When State A asks
State B to extradite Mr. X, State B says there is
no extradition treaty between us. But let us
assume that States A and B are parties to the
torture convention. So there is now a duty to
extradite, otherwise, there is a duty to
prosecute.
To clarify, if there is an extradition treaty, there
is no need to classify the offense as belonging
to the domain of erga omnes or erga omnes
inter partes because there will already be the
obligation to extradite by virtue of pacta sunt
servanda. But if there is none (no extradition
treaty), then classify the offense. Again, there is
no CIL to extradite but in the context of erga
omnes obligations, another principle will give
rise – ut dedere ut judicare. That does not mean
that extradition becomes compulsory. It only
means that if you decide not to extradite, you
have to prosecute.
Deportation…
The person to be extradited must have been
charged or convicted of an extraditable offense;
the minimum is an indictment. What that
means is that if there is no indictment, like if
the case is still being investigated, there is still
no accused but only a suspect, [this is not yet
the time to talk about extradition]. (wa bitaw ni
niya na finish na thought ako ra gipun an)
There is no prohibition, though, for two states
to agree that even on cases that have not yet
been brought to court extradition may be
observed. So not all treaties will require the
threshold of an indictment or a charge.
Going back, extradition requires an extraditable
offense. So it is important for you to know what
the extraditable offenses are. As a matter of
state practice, an extraditable offense would be
one that is:
(1) listed in the extradition treaty; and
(2) not only listed but offense should
likewise be punishable in both
requesting and requested state
(Double/ Dual Criminality Principle)
So even if the offense is listed in the extradition
treaty, but it is not punished in both states –
requesting and requested. Under the Double/
Dual Criminality Principle, the offense cannot be
considered as an extraditable offense. But then
again, there is no prohibition for states to agree
that an extraditable offense must be either
listed or even if not listed, but at least
punishable in both requesting and requested
states. But as a matter of state practice really,
the Dual or Double Criminality Principle is in
addition to the list of offenses.
Under the Dual or Double Criminality Principle,
it is not required that the offense be named
similarly in both requested or requesting state.
What is important is for the act constituting the
offense is declared illegal in both requesting
and requested state. Killing, for example, comes
in various names. In civil law jurisdiction, it’s
called murder, homicide, parricide, or
infanticide. In common law jurisdiction, it could
be named as manslaughter. Even if it is named
as manslaughter or homicide, it doesn’t matter
for as long as the killing is considered a crime in
both the requesting and requested states.
Double criminality principle will apply.
Then we have the basic principles in extradition:
1. No obligation to extradite but there is an
obligation to prosecute if there is a refusal
to extradite under ut dedere ut judicare.
(Discussion about the exam:
Vietnam to sue Malaysia for compensation
in the ICJ for the importation of materials
for nuclear reactors. There was a nuclear
disarmament treaty between ASEAN
states. Even if we assume that nuclear
disarmament is not jus cogens, at least we
have a treaty. Any of the states party to
the treaty can institute a case against the
breaching party under erga omnes inter
partes legal standing. So that was still
appropriate because a violation of a treaty
obligation is an IWA and if it is an IWA, it
will engage state responsibility. And state
responsibility includes payment of
compensation.)
2. Pacta Sunt Servanda applies.
-What that means is refusal to extradite,
when there is no justifiable reason, is a
material breach to the extradition treaty. It
becomes an IWA. If it is an IWA, it engages
state responsibility. State responsibility
may give rise to compensation,
 satisfaction, reparation, or cessation of the
wrongful conduct.
3. Dual purposes – prosecution; execution
4. Generally, extradition treaties must
exclude political offenses.
-The problem with extradition is it might
also run counter with another principle in
IL, Asylum. Of course there are several
species of Asylum – humanitarian, refugee,
political. So a political asylum seeker is one
who goes to the territory of another state
if he is prosecuted for his political belief in
his home state. It is CIL that when a person
is granted asylum, although the grant of
asylum is highly political or discretionary,
but the moment an asylum is granted, it
will give rise to another obligation similar
to the refugee convention which is the the
Principle of non refoulement. What that
means is the moment you accept the
person under the regime of asylum/
refugee intervention, the state granting
refugee or asylum status is required not to
return the person to the territory where he
came from.
So there is a conflict here. Extradition
entails delivery, while in asylum you don’t
deliver. The way to avoid the conflict is for
the extradition treaty to give way to
asylum. So if the treaty says, “this will not
cover political offenses,” there is no
obligation to extradite.
But if the treaty does not provide, there
will be a conflict. As a matter of rule, to
prevent the conflict, the treaty will usually
not include political offenses.
Then you also have to pay attention to
what we call Attentat Clause. This provides
that the mere act of killing a head of state
or head of government should not
immediately tantamount to a political
offense for purposes of the exception
clause to the extradition treaty. That is why
there need be a hearing to determine
whether there is a political offense. This is
because not all killing of the head of state
or government is politically motivated.
5. Rule of Specialty
-The common form of rule of specialty
provides that a person subject of
extradition proceedings can only be
prosecuted for an offense being made the
subject of the request. It is a violation of
the rule of specialty if the request involves
murder but the person, after having been
extradited, will be prosecuted for another
crime, even if it is also an extraditable
offense. What this rule tries to prevent is
to avoid the circumvention of the listing of
extraditable offense.
So what happens if the accused is already
extradited but he was prosecuted of
another crime? In most cases, the treaty
will provide for the remedy. Most of the
time, the person shall be returned to the
requested state for fairness sake.
Second form of rule of specialty involve a
situation where the person subject of
extradition is delivered to a state where no
extradition exists between the requested
state and where the person is delivered.
Example: States A and B have an
extradition treaty. Then State C has an
extradition treaty with State B, but not
with State A. The crime was committed in
State C, but Mr. X was found in the
territory of State A. State C can’t request
for extradition because there is no
extradition treaty between States C and A.
So what will State C do? State B will be the
one to make the request. Because there’s
 an extradition treaty between States A and
B, State A is obliged to extradite Mr. X,
then later on State B will deliver Mr. X to
State C. That is a violation also of the rule
of specialty. So Mr. X should only be
delivered to the place where he is to be
prosecuted. He can’t be delivered to any
other state where he won’t be prosecuted.
So who violated the rule of specialty here?
State B because State B was acting in bad
faith. Remember the basis of the rule of
specialty is fairness. What is promoted by
the rule of specialty is due process. The
respondent in extradition will be given an
opportunity to contest the extradition
process.
6. Ex-post facto prohibition will not apply to
extradition treaty.
-An ex-post facto law is when a penal law is
made applicable to an act which was not
yet considered a crime at the time it was
committed, meaning a penal law is given a
retroactive application.
A crime was committed in 2010, when no
extradition treaty was yet existing between
two states. In 2015, they entered into an
extradition treaty. Can State A make a
request to State B to extradite Mr. X
invoking the 2015 extradition treaty for an
act that Mr. X committed in 2010? YES.
An extradition treaty that is given
retroactive application is not an ex-post
facto law because an extradition treaty is
not a penal law. It’s not a criminal law. The
ex-post facto prohibition applies only to
penal laws. There is no judgment of
conviction in extradition. No one will be
declared guilty and then sent to jail or to
serve sentence. An extradition proceeding
will only declare whether a person will be
extradited or not. He will still be
prosecuted by the requesting state.
You have the 2 cases of Government of
USA vs Purganan and the Case of
Hongkong vs ???. This involves the case of
Jimenez in relation to extradition. So aside
from ex-post facto law as a relevant
discussion, we also need to talk about the
right to bail in extradition proceedings.
Can the respondent in an extradition
proceeding post bail for his temporary
liberty?
The first case of Jimenez in Government of
USA vs Purganan denied Jimenez of the
right to bail because extradition
proceedings are not criminal proceedings
and the right to bail is the right of an
accused.
But in the Govt. of Hongkon vs Olelea (???),
SC said that there is a change in paradigm
in IL from state-centered to individual-
centered. There is now a premium given to
individual rights affecting especially human
dignity and liberty of movement. Although
extradition proceedings remain to be not a
criminal proceeding, the fact however is
that the former has the earmarks of a
criminal proceeding, which are arrest and
detention. In the process, it restricts the
liberty of movement of the respondent. As
party to the ICCPR, we should respect the
right of a person whose liberty of
movement is restricted.