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Part 2 The objects of international law, Ch.8 Individuals, Extradition

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Sir Robert Jennings QC, Arthur Watts KCMG QC

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:
19 June 2008
ISBN:
9780582302457

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Subject(s):
Extradition and mutual assistance — Nationality of individuals

Extradition

Harv Research (1935), pp 51–434 (a comprehensive treatment of the subject) Rolin, Hag R (1923), pp 181–227 Report by Brierly and Charles de Visscher, for League Codification Committee, AJ, 20 (1926), Special Suppl, pp 243–51, and comment by Kuhn, AJ, 20 (1926), pp 754–7 International Law Association’s Thirty-fourth Report (1927), pp 441–8 Puente, Mich Law Rev, 28 (1929–30), pp 665–722 (as to Latin America) Mercier, Hag R, vol 33 (1930), iii, pp 172–237 Baklassari, Rivista, 23 (1931), pp 3–31 (as to Italy) Lieck, JCL, 3rd series, 15 (1933), pp 59–66 Hudson, AJ, 28 (1934), pp 274–306 Mervyn Jones, Grotius Society, 27 (1942), pp 113–42 Green, Current Legal Problems, 6 (1953), pp 274–96 McNair, Opinions, ii, pp 40–66 Parry, BDIL, 6, Ch 17 Whiteman, Digest, 6, Ch 16 Shearer, Extradition in International Law (1971) Verzijl, International Law in Historical Perspective (1972), v, pp 269– 401 Bassiouni and Nanda, International Criminal Law, vol 2 (1973), pp 309–416 Bassiouni, International Extradition and World Public Order (1974), and International Extradition: United States Law and Practice (1983) Rezek, BY, 52 (1981), pp 171–203 Vieira, Hag R, 185 (1984), ii, pp 151–380 Restatement (Third), i, pp 556–90 See also works cited at § 417, n 5, as to British extradition law and practice.

§ 415  Absence of legal duty of extradition

Extradition is the delivery of an accused or a convicted1 individual to the state where he is accused of, or has been convicted of, a crime, by the state on whose territory he happens for the time to (p. 949) be.2 While usually the wanted person will have been physically present on the territory of the requesting state when the crime was committed, this is not necessarily the case, for example3 in relation to offences committed on board ships4 or aircraft,5 or in a place under the control of, but not under the de jure sovereignty of, the requesting state,6 or offences constructively committed in that state by someone outside it, as where the effects of an offence occur within its territory or a constituent element of the offence takes place there.7

(p. 950) Although Grotius8 held that every state has the duty either to punish, or to surrender to the prosecuting state, such individuals within its boundaries as have committed a crime abroad, no such rule forms part of customary international law. On the contrary, states have always upheld their right to grant asylum to foreign individuals as an inference from their territorial authority,10 excepting, of course, those cases where a treaty imposes an obligation to extradite them.

§ 416  Rise of extradition treaties

In fact, numerous treaties have been concluded stipulating the cases in which extradition shall take place. Under them, individuals prosecuted for the more serious crimes, political crimes excepted, are surrendered to the prosecuting state, if not punished locally. But this solution of the problem of extradition was little known before the nineteenth century. Before the eighteenth century, extradition of ordinary criminals hardly ever occurred, although then many states used frequently to surrender to each other political fugitives, heretics, and even immigrants, either in consequence of special treaties stipulating the surrender of such individuals, or voluntarily without such treaties. Matters began to undergo a change in the eighteenth century, first as between neighbouring states and then, more widely, as international travel developed in the nineteenth century giving wanted criminals greater opportunities to flee. Treaties of extradition thus became necessary, and a great many now exist.1

There also gradually developed a tendency towards the conclusion of multilateral2 extradition treaties between states in certain parts of the world. The (p. 951) first were the treaties between American states concluded in 18893 and 1902,4 leading eventually to the Inter-American Convention on Extradition 1981.5 A Council of Europe Convention on Extradition was concluded in 1957,6 and similar conventions have been concluded between Arab states7 and also between certain African states.8

Sometimes states may find it convenient to replace formal extradition arrangements with some simpler system for the arrest and return of wanted criminals, particularly, for example, if the states concerned have common frontiers across which people move with relative ease. Thus, as between the United Kingdom and the Republic of Ireland, a wanted person may be arrested in one state and sent to the other on the basis of a warrant issued in the latter state and backed in the extraditing state.9 Extradition may also sometimes take place as a matter of (p. 952) comity in the absence of an extradition treaty,10 if the states concerned are willing to allow it, although this has occasioned protests from a third state whose nationals are extradited in such circumstances.11

Where extradition takes place in the absence of a treaty, the state granting extradition may attach special importance to assurances of reciprocity on the part of the requesting state, which assurances may themselves be in such terms as to constitute an international agreement.12 The surrender of fugitive criminals to the authorities of another state may also be provided for in treaties which are not general extradition treaties in the usual sense, but which, in dealing with some specific subject, contain provisions for the return of people alleged to have committed infractions of the law relating to the subject matter of the agreement.13

Such variants of the normal procedures still constitute extradition, in the sense of the formal return of a fugitive following a request for his extradition. They are, however, to be distinguished from more informal practices whereby a wanted individual may be handed over by the local authorities to the (usually neighbouring) state which wishes to prosecute him, or deported to that state in circumstances amounting to disguised extradition.14 In such cases the failure to use extradition procedures will not usually deprive the courts of the prosecuting (p. 953) state of jurisdiction over the accused,15 nor will the failure to observe in all their detail the requirements of extradition procedures where the accused has been extradited to the prosecuting state.16 Where a criminal, who has succeeded in escaping into the territory of another state, is erroneously handed over, without the formality of extradition having been complied with, by the police of the local state to the police of the prosecuting state, the Permanent Court of Arbitration held, in the Savarkar case,17 that the local state cannot demand that the prosecuting state shall send the criminal back and ask for his formal extradition.

Several multilateral treaties dealing with offences evoking the general condemnation of the international community have adopted the practice of obliging parties either to extradite persons found on their territory but wanted for trial on such an offence by another party, or to try such persons themselves. This principle of aut dedere aut judicare has, for example,18 been adopted in the Genocide Convention 1948,19 the four Geneva Conventions on Humanitarian Law 194920 and their Protocols of 1977,21 the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963,22 the Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970,23 the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil (p. 954) Aviation 1971,24 the Single Convention on Narcotic Drugs 1961,25 the Convention on Psychotropic Substances 1971,26 and the European Convention for the Suppression of Terrorism 1977.27

§ 417  National extradition laws

Many states have enacted special laws,1 which enumerate those crimes for which extradition shall be granted and asked in return, and which at the same time regulate the procedure in extradition cases. These laws2 furnish the basis for the conclusion of extradition treaties,3 which will be framed in terms consistent with said laws.4

The first state with such an extradition law was Belgium in 1833, which remained, however, for more than a generation quite exceptional. The United Kingdom introduced its first Extradition Act in 1870. This Act, as subsequently amended, has furnished the basis for extradition treaties between the United Kingdom and a large number of other states. It has now been replaced by the Extradition Act 1989, which consolidates the extradition law of the United Kingdom.5 As under the 1870 Act so too under the 1989 Act general extradition (p. 955) arrangements with one or more foreign states are given effect by Orders in Council.6 The Act also provides for special arrangements for particular cases.7

The Act of 1989, unlike that of 1870, applies both to foreign and Commonwealth states. However, it treats Commonwealth countries, which are for the United Kingdom not ‘foreign’8 states, differently, broadly following the separate arrangements made under the Fugitive Offenders Act 1967, which replaced the Fugitive Offenders Act 1881.9 The principle underlying these arrangements is that the return of fugitive offenders between Commonwealth countries follows not from formal treaty arrangements but from legislation in each country following a common pattern.10

States which possess no extradition laws, and whose written constitution does not mention the matter, leave it to their governments to conclude extradition treaties according to their discretion. In these countries the governments are usually competent to extradite an individual, even if no extradition treaty exists.

§ 418  Extradition of nationals

In principle, any individual, whether he is a national of the prosecuting state, or of the state which is required to extradite him, or of a third1 state, may be extradited. Many states, however, such as France and (p. 956) Germany, never extradite one of their own nationals to a foreign state, but themselves have the power to punish them for grave crimes committed abroad.2 Other states, including the United Kingdom, have not adopted this principle, and, in the absence of treaty provisions to the contrary, make no distinction between their own nationals and other persons whose extradition from their territory is requested.3

A conflict between international law and a state’s internal law may arise if an individual must be extradited according to an extradition treaty, but cannot be extradited according to the internal law of the state from which extradition is demanded.4

(p. 957) § 419  Extraditable crimes

International law allows a state to grant extradition for any crime it thinks fit. Extradition is, however, a procedure usually appropriate only for the more serious offences and, accordingly, the internal extradition law of most states limits the number of extraditable crimes either to certain specified crimes or to crimes subject to a specified level of punishment1 (a more modern alternative which allows for some flexibility in the development of criminal law and makes easier the reconciliation of differing national concepts of particular crimes). Similarly, subject to its treaty obligations,2 a state may refuse extradition for any crime. States which have extradition laws need to ensure that their extradition treaties are consistent with those laws; where the laws limit the crimes for which extradition may be granted that limitation will be reflected in the treaties, either by the inclusion of an agreed list of extraditable crimes or by an agreed level of punishment to which a crime must be subject in order to be extraditable, or by a combination of the two. The specification of extraditable crimes in a bilateral treaty may be extended not only by a further bilateral treaty but also by multilateral treaties dealing with the suppression of certain offences, which may provide for those offences to be deemed included in extradition treaties concluded by the contracting parties.3

(p. 958) A further limitation upon the crimes for which extradition is granted is the requirement of ‘double criminality’ which is usually included in extradition treaties, and according to which extradition is only granted in respect of a deed which is a crime according to the law of the state which is asked to extradite, as well as of the state which demands extradition4 — although not necessarily a crime of the same name in each, so long as there is a substantial similarity between the offences in each state.5 However, it is not for the courts of the requested state to try the case on its merits as if it were a criminal prosecution; they usually only need ascertain whether the evidence submitted (which need not comply with all the forum state’s rules as to the admissibility of evidence in criminal trials) is prima facie sufficient to justify judicial proceedings against the accused,6 (p. 959) although not even this degree of evidence is required by some states.7

Political criminals are, as a rule, not extradited,8 and according to many extradition treaties, military deserters9 and persons who have committed offences against religion are likewise excluded from extradition; and many states refuse extradition if the death penalty will be enforced for the crime.10 On the other hand, although it comes close to enforcing foreign revenue laws, some treaties provide for extradition for fiscal offences.11

§ 420  Conditions of extradition

Extradition is granted only if asked for,1 and after the formalities have taken place which are stipulated in the treaties of extradition and the extradition laws, if any. The usual procedure is for there to be (p. 960) a request for extradition submitted through diplomatic channels,2 identifying the fugitive criminal, stating that a warrant for his arrest has been issued, and outlining the facts of the offence: in urgent cases there is often a procedure for provisional arrest (on the basis of, for example, information obtained through the International Criminal Police Organisation)3 pending the receipt of the more formal documents requesting extradition. Extradition is effected through the handing over of the criminal by the police of the extraditing state to the police of the prosecuting state.4 The law of the United Kingdom, and of many other states, provides an opportunity for a wanted person to have the lawfulness of his extradition determined by the courts:5 but this is primarily a matter of the internal law of each state, and not a requirement of customary international law. Furthermore, where a state is a party to treaties for the protection of human rights it will be necessary for it to ensure that the grant of extradition by it in any particular case is consistent with its human rights obligations, which may be relevant even if the requesting state is not also a party to the human rights treaty in question.6

(p. 961) Most extradition treaties embody the so-called principle of specialty, whereby it is a condition of extradition that the surrendered individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted, or for those at least which the extradition treaty concerned enumerates.7 If, nevertheless, an extradited individual is tried and punished for another crime, the extraditing state has a right to complain.8 Where a state is by (p. 962) treaty committed to observe the principle of specialty, another state will not assume that it will act in bad faith and ignore that commitment if a fugitive is extradited to it.9 In those cases where the same set of facts can constitute several offences it is not unusual to provide in treaties that the accused may be tried not only for the offence specified in the request for extradition but also for any other lesser offence proved by the facts established to the extraditing state in connection with that request.10

Footnotes:

1  For the UK, s 1 of the Extradition Act 1989, following the earlier law, expressly includes convicted criminals; but see also s 6(2). Extradition of a fugitive on the basis of a conviction in the requesting state can give rise to difficulty in the case of a conviction in absentia, especially where the procedures of the foreign court are unknown to those of the state being asked to surrender the fugitive and where the fugitive will not be entitled to a fresh trial on his return. See ex parte Caborn-Waterfield [1960] 2 QB 498, leaving open the question of the limits upon return in such circumstances (and see notes by O’Higgins, ICLQ, 9 (1960), pp 498–503 and 10 (1961), pp 339–44); ex parte Kotronis [1970] AC 250; Athanassiadis v Government of Greece [1971] AC 282; R v Governor of Pentonville Prison, ex parte Zezza [1983] AC 46 (demonstrating that conviction in absentia is different from conviction for contumacy). See also Ex parte Stenger, ILR, 18 (1951), No 102; United States ex rel Argento v Jacobs (1959), ILR, 28, p 337; Gallina v Fraser (1960), ILR, 31, p 356; Re Mylonas (1960), ibid, p 369. And see Art 3 of the Second Protocol (1978) to the European Convention on Extradition (n 6).

2  As to the acquisition of custody over a fugitive criminal by means (legitimate or not) other than extradition see Evans, BY, 40 (1964), pp 77–104; O’Higgins, BY, 36 (1960), pp 279–320. With particular reference to illegal abductions, see § 119, n 14ff; and as to the deportation of aliens, including their disguised extradition, see §§ 413, 414; and, as to their informal surrender, see § 416.

3  Note also that an extradition treaty may even provide for extradition in certain cases where the accused committed offences in the territory of the requested state, as where the offence is committed by an officer or employee of the requesting state who is also a national of that state: see Art 4(1) of the USA-Sweden Extradition Treaty 1961 (UNTS, 494, p 141).

Where the requesting state seeks the extradition of a person for an offence committed outside its territory, acquiescence in the extradition by the requested state may be inconsistent with its general position as regards exterritorial criminal jurisdiction (as to which see generally § 139). If in particular circumstances both the requesting and requested states assert the same degree of exterritorial jurisdiction, an extradition treaty between them can, without prejudice to either of them, contain an obligation to grant extradition for an offence committed in those circumstances; otherwise, the treaty can only provide for extradition at the requested state’s discretion. See Art III of the Canada-USA Protocol of 1988 amending the 1971 Extradition Treaty between them (ILM, 27 (1988), p 422). See also as to the UK, the Extradition Act 1989, s 2. See also R v Governor of Brixton Prison, ex parte Rush [1969] 1 WLR 166; Republic v Director of Prisons, ex parte Allotey (1974), ILR, 60, p 290; Abu Daoud (1977), ILR, 74, p 453.

A treaty may require the extradition offence to have been ‘committed in the territory of the requesting party, in which case no extradition can be granted unless it is proved that the offence in question was actually committed in the territory of the requesting state: Kossekechatko and Others v Attorney-General for Trinidad [1932] AC 78; Athanassiadis v Government of Greece [1971] AC 282.

4  In R v Governor of Brixton Prison, ex parte Minervini [1958] 3 All ER 318, it was held that a crime committed on board a ship was to be treated as committed on the territory of the state whose flag the ship was flying; see also Re Kelinski, ILR, 24 (1957), p 497; Wan Ping Nam v Minister of Justice of the Federal Republic of Germany (1972), ILR, 56, p 512; In re Kam Shu (1973), ILR, 51, p 324. For the UK see also Extradition Act 1989, s 2(4)(b), and Sched I, para 13.

5  Article 16 of the Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963 (§ 141, n 7) provides that, for purposes of extradition, offences committed on board aircraft shall be treated as if committed not only where they occurred but also in the territory of the state of registration of the aircraft. See also Re Abarca (1964), ILR, 40, p 208. For the UK see also Extradition Act 1989, s 2(4)(b), and Sched I, para 14.

6  In Schtraks v Government of Israel [1962] 3 All ER 529, the House of Lords, in considering an extradition request in relation to territory not recognised as under the de jure sovereignty of the requesting state, considered the Extradition Act 1870 not to be concerned with sovereignty but with territory in which territorial jurisdiction is exercised (p 532, per Lord Reid). For refusal of extradition to a requesting state in respect of an offence committed at a place on its territory at the time under belligerent occupation by another state, see Re LoDolce, ILR, 18 (1951), p 318; cf Re Extradition of D’Amico (1959), ILR, 28, p 602; United States ex rel Karadzole v Artukovic (1959), ibid, p 326. And for a request for extradition by the authorities in military occupation of territory, see Re Kraussman, ILR, 22 (1955), p 987. See also Arnon v Attorney-General, Israel Year Book on Human Rights, 9 (1979), p 334 (removal from Israeli-occupied territory to Israel does not constitute extradition).

7  Thus, in 1884, the UK surrendered to Germany one Nillins, who, by sending from Southampton forged bills of exchange to a merchant in Germany as payment for goods ordered, was considered to have committed forgery, and to have obtained goods by false pretences, in Germany. See Clarke, The Law of Extradition (4th ed, 1903), pp 177 and 262. See the comments on this principle in the Lotus case, referred to at § 140. See also Ex parte Hammond, AD, 6 (1931–2), No 66; Re Hugo, ibid, No 170; R v Godfrey [1923] 1 KB 24; United States ex rel Eatessami v Marasco, AJ, 62 (1968), p 781, and Novic v Public Prosecutor of the Canton of Basel Stadt, ILR, 22 (1955), p 515, concerning extradition for an offence producing its effects within the requesting state even though the accused had not been within its territory at the time. And see generally § 137, nn 11–14, and § 139, n 37ff, as to conduct producing effects in a state although not taking place there.

8  Grotius, ii, c 21, § 4.

10  See § 402.

1  On 1 January 1990 the UK had extradition treaties in force with over 40 states. For a review of some US extradition treaties see Evans, AJ, 59 (1965), pp 351–62. See also § 143, as to international cooperation in criminal matters more generally.

2  However, the Report of Brierley and Charles de Visscher for the League Codification Committee (AJ, 20 (1926), Special Suppl, pp 243–51) pronounced against the feasibility of a general convention dealing with the whole subject of extradition. With all the multilateral extradition agreements there arises the problem of their relationship to existing or subsequent bilateral treaties between two of the parties: the European Convention on Extradition (n 6) supersedes existing bilateral treaties but permits future bilateral treaties between parties supplementing the provisions of the Convention (Art 28), while the 1933 Montevideo Convention did not super-sede existing treaties (Art 21). Apart from formal multilateral treaties, certain groups of states with common cultural or geographical links have made special arrangements for extradition between member states of the group: see nn 3–8.

The Institute of International Law in 1880, at its meeting in Oxford (see Annuaire, 5, p 127), adopted a body of 26 rules concerning extradition. For a Draft Convention on Extradition adopted in 1928 by the International Law Association see Report (Thirty-fifth Conference, 1928), pp 324–9, and Grotius Society, 14 (1928), pp 108–12. See also a Model Draft prepared in 1931 by a sub-committee of the International Penal and Prison Commission and printed in Harv Research (Extradition, 1935), pp 309–15, and also the Draft Articles on Extradition prepared by Harv Research itself, ibid, pp 21–434.

3  Harv Research (Extradition, 1935), p 275.

4  Ibid, p 278. The Convention was signed by 17 states but not ratified. Further conventions between American states include those of 1911 (ibid, p 282) and 1934 (ibid, p 293), each of which was between five states, and the major Montevideo Convention of 1933 concluded between the states represented at the Seventh Pan-American Conference, and ratified by many of the signatories, including (subject to important reservations) the USA (ibid, p 289). The Montevideo Convention was revised in 1940 (AJ, 37 (1943), Suppl, p 122). See generally Vieira, Hag R, 185 (1984), ii, pp 172–5. Note also the inclusion of extradition in the so-called Bustamante Code, Arts 344–81, adopted at Havana on 20 February 1928: LNTS, 86, p 344; Hudson, Legislation, 4, pp 2283–354.

5  ILM, 20 (1981), p 723.

6  UNTS, 359, p 273. See de Freitas, Grotius Society, 41 (1955), pp 25–45; Honig, ICLQ, 5 (1956), pp 549–69; O’Higgins, ibid, 9 (1960), pp 491–4. The Convention entered into force in 1960. Additional Protocols have been concluded in 1975 (European TS No 86) and 1978 (ILM, 17 (1978), p 813; European TS No 98): the Convention and the two Protocols are published together as Misc No 8 (1990), Cm 999. See also the Explanatory Report on the Convention, as revised and published by the Council of Europe in 1969.

Belgium, Luxembourg and the Netherlands concluded a Convention on Extradition and Judicial Assistance in Penal Matters in 1962. See De Schutter, Rev Belge, 3 (1967), pp 102–26.

7  BFSP, 159 (1952), p 606.

8  Convention on Judicial Co-operation signed at Tananarive in 1961: see Bassiouni and Nanda, International Criminal Law, vol 2 (1973), pp 333–4.

9  See the Backing of Warrants (Republic of Ireland) Act 1965 for the return of fugitives to the Republic from the UK; and see also the equivalent Irish provisions in Pt III of the Republic’s Extradition Act 1965, on which see O’Higgins, ICLQ, 15 (1966), pp 369, 390–4; and see generally Kelly, The Irish Constitution (2nd ed, 1984), pp 533–42.

See also the Agreement of 19 November 1962 between South Africa and the Federation of Rhodesia and Nyasaland providing for similar informal extradition arrangements (UNTS, 458, pp 60–71); and Re Daem, ILR, 18 (1951), No 121. As to informal extradition agreements concluded by France, see Pfloeschner, Les Dispositions de la constitution du 27 Octobre 1946 sur la primauté du droit international et leur effet sur la situation des etrangers en France sous la IVe République (1961), pp 48–54.

10  See, eg Chile Extradition (Reciprocity) Case, AD, 3 (1925–26), No 223; Re Fernando Benet, ibid, No 225; Re Milton Gomes, AD, 5 (1929–30), No 177; Re Nikoloff, AD, 7 (1933–34), No 147; The State (Duggan) v Tapley, ILR, 18 (1951), No 109; Re Alvez Novo, ILR, 19 (1952), No 75; N v Public Prosecutor of the Canton of Aargau, ILR, 20 (1953), p 363; Re Peyre, ILR, 22 (1955), p 525; Re d’Emilia, ILR, 24 (1957), p 499; Re Bachofner (1959), ILR, 28, p 322; Re Bettarel (1960), ILR, 30, p 386; Fiocconi and Kella v Attorney-General (1972), ILR, 51, p 272; and cases cited at § 415, n 9. See also Art 8.3 of the Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (see § 141, n 12); and, generally, Shearer, op cit in bibliography preceding § 415, pp 25–34.

For extradition from the UK, the Extradition Act 1989 requires there to be an ‘arrangement’ with a foreign state, although such an arrangement may relate to a particular case as an alternative to a general extradition treaty (ss 3(3), 15); for extradition to the Republic of Ireland and to Commonwealth states see, respectively, n 9, and § 417, nn 9, 10.

11  See, eg the protests by the UK over the extradition of Thornley from France to Russia in 1864 (Parry, BDIL, 6, p 460) and of Wynne from Hungary to the Soviet Union in 1962 (UK Contemporary Practice (1962), II, pp 210–14).

12  See Re Lapage, AD, 6 (1931–32), No 157; Re Zahabian (1963), ILR, 32, p 290; Italian National Re-Extradition Case (1970), ILR, 70, pp 374, 378–9. As to the special ‘arrangements’ which may be made by the UK under the Extradition Act 1989 for extradition in particular cases where there is no general extradition treaty with the other state, see § 417, n 7. See generally on reciprocity in matters of extradition, Rezek, BY, 52, (1981), pp 171–203.

In 1974 the UK sought the extradition from Brazil of a notorious train robber Biggs, notwithstanding the absence of an extradition treaty between the UK and Brazil, but since the UK could not offer reciprocity, Brazil refused to extradite Biggs: see The Times, 7 May 1974. The power to seek extradition in the absence of an extradition treaty was affirmed by the High Court of Australia in Barton v Commonwealth of Australia [1974] 3 ALR 70, on which see Brown, ICLQ, 24 (1975), 127–30.

13  See, eg Art VII.5(a) of the NATO Status of Forces Agreement 1951 (UNTS, 199, p 67); Wilson v Girard (1957), ILR, 24 (1957), p 248; Williams v Rogers (1971), ILR, 57, p 3315; Holmes v Laird (1972), ILR, 60, p 35; and, generally, Evans, BY, 40 (1964), pp 79–82. See also Art 45 of the Treaty of Peace with Italy 1947.

14  See § 414, nn 7–10.

15  Eg Stevenson v United States, AJ, 62 (1968), p 500; Re Kote, Mazeli and Noujaim (1966), ILR, 47, p 267; R v Hartley (1977), ILR, 77, p 330. Cf Amadien, RG, 93 (1989), p 696, accepting jurisdiction in a case involving a cross-frontier transfer of a wanted fugitive, but doubting the propriety of exercising jurisdiction if the return was in breach of an extradition treaty or amounted to disguised extradition. And see § 119, n 16, as to jurisdiction following an illegal seizure of the accused from foreign territory.

16  Eg Geldof v Meulemeester and Steffen (1961), ILR, 31, p 385.

17  (1911), Scott, Hague Court Reports, p 275. See also Hamelin, L’Affaire Savarkar (Extrait du Recueil général de Jurisdiction coloniales, 1911); Baty, Law Magazine and Review, 36 (1911), pp 326–30; Kohler, ZV, 5 (1911), pp 202–11; Strupp, Zwei praktische Fälle aus dem Völkerrecht (1911), pp 12–26; Robin, RG, 18 (1911), pp 303–52; Hamel, RI, 2nd series, 13 (1911), pp 370–403.

For a case having certain features in common with the case of Savarkar see Charteris, JCL, 3rd series, 8 (1926), pp 246–9. See also the Lamirande case between the UK and France reported in former editions of this work. And see § 119, n 16 as to jurisdiction in case of irregular apprehension.

18  Other treaties incorporating the same principle include the Convention on the Prevention and punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973 (§ 492), the Convention against the Taking of Hostages 1979 (§ 122, n 56), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (§ 440, n 12), the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (§ 122, n 58), and the Convention against the Recruitment, Use, Financing and Training of Mercenaries 1989 (§ 122, n 12).

19  UNTS, 78, p 277.

20  Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Art 49; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Art 50; Convention Relative to the Treatment of Prisoners of War, Art 129; and Convention Relative to the Protection of Civilian Persons in Time of War, Art 146. See § 49, n 24.

21  See § 49, n 25.

22  See § 141, n 7.

23  See § 141, n 12.

24  See § 141, n 14.

25  See § 143, n 14.

26  See § 143, n 16.

27  See § 122, n 52.

1  In the case of the UK, the powerlessness of the Crown at common law to arrest a fugitive criminal and surrender him to another state for trial made legislation essential; see Clarke, The Law of Extradition (4th ed, 1903), pp 126–8, for some early cases illustrating this rule; and Diamond v Minter [1941] 1 All ER 390, 399–403.

2  See Martitz, Internationale Rechtshilfe, i, pp 747–818, where the history of many of these laws is sketched and their text is printed. Extradition statutes of many states were set out in Harv Research (Extradition 1935), Appendix VI.

As to the Indian Extradition Act 1962, see Saxena, ICLQ, 13 (1964), pp 116–38, and, as to the earlier Indian law, Muddiman, The Law of Extradition from and to British India (2nd ed, 1927). On the Irish Extradition Act 1965 see O’Higgins, ICLQ, 15 (1966), pp 369–94, and BY, 34 (1958), pp 274–311 on earlier Irish practice. As to Canada see LaForest and Williams, Extradition to and from Canada (2nd ed, 1977), and the Fugitive Offenders Act 1985; as to Australia see Shearer in International Law in Australia (ed O’Connell, 1965) pp 558–88, and the Extradition (Foreign States) Act 1966; and as to Nigeria, see Kassim-Momodu, ICLQ, 35 (1986), pp 512–30.

3  For the view that extradition treaties are to be interpreted more liberally than would be appropriate for a domestic statute, see R v Governor of Pentonville Prison, ex parte Harmohan (1981), 73 Cr App R 216; Government of Belgium v Postlethwaite [1988] AC 924, 946–7.

4  For a conflict between obligations resting upon the requested state under its domestic law (in relation to ‘plea bargaining’) and under an extradition treaty, with priority being given to the former, see Petition of Geisser (1977), ILR, 61, p 443.

5  The law of extradition to foreign states was substantially revised by Pt I of the Criminal Justice Act 1988; the law of extradition to Commonwealth states was set out in the Fugitive Offenders Act 1967 (see nn 9, 10). These two Acts were consolidated in the Extradition Act 1989. The revision of the law of the UK was preceded by a report of an Interdepartmental Working Party to review the law and practice of extradition in the UK, May 1982 (see UKMIL, BY, 53 (1982), pp 402–6), and a Consultative Paper, February 1985 (Cmnd 9421; and see UKMIL, BY, 56 (1985), p 423–6).

On the extradition laws of the UK see Hartley Booth, British Extradition Law and Procedure, vols 1 and 2 (1980, 1981); Stanbrook, Extradition (1980); Warbrick, ICLQ, 38 (1989), pp 427–30; and, with particular reference to arrangements with Commonwealth States, Robinson, ICLQ, 33 (1984), pp 614–33. On the history of extradition in the UK before the Extradition Act 1870, see Clarke, The Law of Extradition (4th ed, 1903), pp 126–66.

6  Section 4. The Act requires that the Order should recite or embody the terms of the arrangements.

7  Section 3(3)(b). Such special arrangements are given effect by a certificate issued by a Secretary of State: s 15.

8  But note that by s 3(2), a state party to the European Convention on Extradition (see § 416, n 6) may be treated as a foreign state even if it would not otherwise be so regarded.

9  As to the position under the 1881 Act, see O’Higgins, ICLQ, 9 (1960), pp 486–91, and ICLQ, 12 (1963), pp 1364–78. The attainment of independence by states now members of the Commonwealth created some difficulties in the application of the 1881 Act to such states: see eg The State of Madras v Menon, ILR (1954), p 46; Public Prosecutor v Anthony Wee Boon Chye, Malaya Law Journal, 31 (1965), p 189; Re Government of India and Mubarak Ali Ahmed [1952] 1 All ER 1060.

At a time when Fiji had ceased to be a member of the Commonwealth but the Order in Council designating Fiji a Commonwealth country for purposes of the Fugitive Offenders Act had not been amended, extradition to Fiji under that Act was held still to be lawful: R v Brixton Prison Governor, ex parte Kahan [1989] 2 All ER 368.

10  This approach to the matter was agreed at a meeting of Commonwealth Law Ministers in 1966 which ‘considered that Commonwealth extradition arrangements should be based upon reciprocity and substantially uniform legislation incorporating certain features commonly found in Extradition Treaties. The Meeting accordingly formulated a Scheme setting out principles which could form the basis of legislation within the Commonwealth and recommended that effect should be given to the Scheme in each Commonwealth country’ (Cmnd 3008). Revisions to the scheme were introduced at subsequent Commonwealth meetings; the scheme as revised up to and in 1990 is set out in Commonwealth Law Bulletin, 16 (1990), pp 1036–43.

As to extradition arrangements within the French Community, see Shearer, Extradition in International Law (1971), pp 59–61; and within the Communist States of Europe, ibid, pp 65–6, and Lasok, ICLQ, 12 (1963), at pp 1350–52. Denmark, Finland, Iceland, Norway and Sweden have adopted an arrangement whereby extradition between them takes place on the basis of parallel legislation: see Shearer, Extradition in International Law (1971), pp 63–5, and note Denmark’s Declaration in 1962 regarding Art 28.3 of the European Convention on Extradition 1957, excluding the operation of the Convention ‘in relations with Norway and Sweden, extradition between the Scandinavian countries being governed by uniform legislation’: UNTS, 444, p 348.

1  R v Ganz (1882) 9 QBD 93. On extradition of nationals see generally Schachor-Landau, ICLQ, 29 (1980), pp 274, 286–94.

2  See Art 16 of the Basic Law of the Federal Republic of Germany, and s 3(1) of the German Criminal Code; Art 3(1) of the French Extradition Law of 1927 (RG, 1927, p 544); Re A, ILR, 18 (1951), p 324 (nationality at the date of commission of the offence, rather than at the date of extradition, the determining factor); Extradition of German National Case, ILR, 21 (1954), p 232; Extradition (Germany) Case (1959), ILR, 28, p 319; but note German-Swiss Extradition Case (2) (1968), ILR, 60, p 314, allowing redelivery of a German national to another state which had itself earlier agreed to his return to the Federal Republic on a temporary basis. See also Re Artaza, ILR, 18 (1951), No 106 (an Argentine decision).

Article 6 of the European Convention on Extradition 1957 (see § 416, n 6) permits the non-extradition of nationals, and allows parties for this purpose to define its ‘nationals’, an opportunity of which Sweden and Denmark availed themselves so as to cover by that term nationals of Sweden, Denmark, Finland, Iceland and Norway, and aliens domiciled in (respectively) Sweden and Denmark (see UNTS, 444, p 348). In bilateral treaties the UK has often secured the possibility of not extraditing citizens of Commonwealth countries or of the Republic of Ireland: eg Art 4 of the UK-Austria Extradition Treaty 1963. And see generally Satter, ÖZöR, 1 (1948), pp 504–22, and Shearer, Extradition in International Law (1971), Ch 4 and Appendix II (where 163 bilateral treaties are classified according to their nationality provisions).

As to criminal jurisdiction over nationals abroad, see generally § 138.

3  Although the UK is ready to extradite one of its own nationals for crimes committed abroad, it is in some cases prevented from doing so because the extradition treaties concerned include a clause stipulating that nationals should not be extradited: see the Anglo-Swiss Treaty of 1874, and R v Wilson (1877) 3 QBD 42. More modern extradition treaties between the UK and foreign states usually include a clause according to which no party is compelled to extradite nationals, and some earlier treaties were amended in that sense. Thus, Art 2 of the Anglo-French Extradition Treaty of 1876 was amended by a convention of 1908 (TS No 34 (1909)) to make optional the refusal to extradite nationals. See R v The Governor of Brixton Prison [1912] 3 KB 568, where the Court, in reliance upon that Convention, granted the extradition of a British subject. In the case of Valentine et al v United States, ex rel Neidecker (1936) 299 US 5; AJ, 31 (1937), p 134; AD (1935–37), No 167, the US Supreme Court interpreted Art V of the Extradition Treaty of 1909 which provided that ‘Neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention’ as meaning that the Government of the USA was without power to surrender citizens of the USA to France. For a criticism of this point of view see Garner, AJ, 30 (1936), pp 481–6 (with reference to the decision of the US Circuit Court of Appeals in this case: 81 F (2nd) 32); Manton, Temple Law Quarterly, 10 (1935–36), pp 12–34; Preuss, RIF, 3 (1937), pp 156, 173, 244–54; Kuhn, AJ, 31 (1937), pp 476–80. And see Rafuse, The Extradition of Nationals (1939). However, in the absence of treaty provisions to the contrary the practice of the USA has been to surrender its nationals. See Hackworth, iv, § 318; Whiteman, Digest, 4, pp 55–65; Sayne v Shipley (1969), ILR, 51, p 281. See also Hackworth, iv, § 319, for an unsuccessful request of the German diplomatic representative in the USA in February 1940 that one Strakosch, a German national, should not be extradited to the UK on the ground that, even if acquitted, he would be liable to internment as an alien enemy.

4  See eg the Palladini case as reported in Moore, iv, § 594, pp 290–97.

It is noteworthy that the USA, although they do not any longer press for extradition of Italian subjects who, after having committed a crime in the USA, have returned to Italy, nevertheless considered themselves bound by the Treaty of 1868 to extradite to Italy such American subjects as had committed crimes in Italy: see the Porter Charlton Case (see AJ, 5 (1911), pp 182–92; 7 (1913), pp 580–82, 637–53), and the decision of the US Supreme Court (Charlton v Kelly, 229 US 447). See Hyde, i, § 319; Hershey, p 379, n 74; Harv Research (1935), pp 123–37.

In 1969 the House of Lords held that in the circumstances of the case of Kotronis, his extradition to Greece was in accordance with the law applying at the time, but that the surrounding circumstances (including the fugitive’s political background, and the fact that he was wanted in connection with a conviction passed on him in absentia) were properly matters which the Home Secretary could take into account in deciding whether or not, in his discretion, to grant extradition: Royal Government of Greece v Governor of Brixton Prison, ex parte Kotronis [1971] AC 250. The Home Secretary decided that, notwithstanding the terms of the Anglo-Greek Extradition Treaty of 1910 he would not permit Kotronis to be extradited: The Times, 10 December 1969. In this connection it is relevant to note that at the time there was considerable doubt about the observance of human rights in Greece, that both Greece and the UK were parties to the European Convention on Human Rights of 1950, and that the European Commission of Human Rights had expressed the view obiter that the extradition of a person to a particular country in which basic human rights might be grossly violated or entirely suppressed might give rise to questions whether the extradition might itself constitute ‘inhuman treatment’ and so be prohibited by Art 3 of the Convention (X v Federal Republic of Germany, YBECHR, 6 (1963), p 462, 480). See also R v Governor of Pentonville Prison, ex parte Teja [1971] 2 All ER 11, in which it was argued that the return of Taja to India under the Fugitive Offenders Act 1967 would be contrary to rules of international law relating to diplomatic immunity.

1  While in the UK the Extradition Act 1870 provided a list of extraditable crimes, which was varied from time to time, the Criminal Justice Act 1988 introduced instead a ‘level of punishment’ standard of at least 12 months’ imprisonment; this new provision has been repeated in s 2(1) of the Extradition Act 1989.

The limiting effect of adopting a list of crimes is illustrated by Prudente, RG, 91 (1987), p 1374.

Where a federal state requests extradition, it may be granted even if the offence in question is one against a state law rather than a federal law: eg Scott v State of Israel (1970), ILR, 48, p 188.

2  As to the applicability of extradition treaties to offences committed before their entry into force see Hackstetter v State of Israel (1972), ILR, 51, p 331. As to the retroactive effect of extradition treaties, in connection with the Insull case (see n 4), see Stowell, AJ, 27 (1933), p 130. See also Harness in Indian Law Rev, 11, pp 351–63.

3  See eg the Convention for the Suppression of Counterfeiting Currency 1929 (LNTS, 112, p 371); Art 8.1 of the Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (see § 141, n 12); Art 8.1 of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 (§ 141, n 14), and several other similar treaties aimed at preventing and punishing the commission of offences which meet with general international condemnation.

4  Thus, in 1932 the Greek Court of Appeals refused the extradition of the financier Samuel Insull, an alleged fugitive from justice from the State of Illinois, on the ground that the offence with which he was charged did not constitute a crime under Greek law: see AJ, 28 (1934), p 308, n 4; AD, 7 (1933–34), No 146; and see n 6. For the Eisler case, in which extradition to the USA for perjury was refused on the ground that the act — an alleged false statement in an application for permission to depart from the USA — was not perjury in English law, see The Times, 28 May 1949; also Finch, AJ, 43 (1949), pp 487–91 and Jacob, Yale LJ, 59 (1950), pp 622–34. See also, on the principle of double criminality, Lapradelle, Causes célèbres du droit des gens. Affaire Henry M Blackmer, Extradition (1929); and ex parte Gardner [1968] 2 QB 399.

In Factor v Laubenheimer and Haggard the Supreme Court of the USA, in interpreting the Extradition Treaty with the UK, refused to follow this principle and found that the offence with which the plaintiff was charged was an extraditable crime even if it were not punishable by the law of the State of Illinois where the plaintiff was taken in custody, although it was a criminal offence in several other states of the USA: (1933), 290 US 276, 54 S Ct 191; AJ, 28 (1934), p 148. For a criticism of the decision see Hudson, ibid, pp 274–306. But see Borchard, ibid, pp 742–6. See also ZöV, 4 (1934), pp 686–90.

See generally on double criminality Shearer, Extradition in International Law (1971), pp 137–41; Mörsberger, Das Prinzip der identischen Strafrechtsnorm im Auslieferungsrecht (1969). The requirement of double criminality can lead to the courts of the requested state having to undertake a detailed examination of the criminal law of the requesting state: see, eg Schtraks v Government of Israel [1962] 3 All ER 529.

5  See Re Bellencontre [1891] 2 QB 122; R v Dix (1902) 18 TLR 231; Re Gerber, ILR, 24 (1957), p 493; Re Marshal Marcé (1960), ILR, 28, p 324; Re Seidnitzer (1962), ILR, 49, p 507; Wyatt v McLoughlin (1974), ILR, 55, p 528; Cotroni v Attorney-General of Canada (1974), ILR, 69, p 218; M v Federal Department of Justice and Police (1979), ILR, 75, p 107; R v Governor of Pentonville Prison, ex parte Budding [1980] 1 All ER 701; Demjanjuk v Petrovsky (1985), ILR, 79, pp 535, 542–3; Gartia-Henriquez and Deveylder, RG, 90 (1986), p 1028; Government of Canada v Aronson [1989] 3 WLR 436. But cf Re Nielsen [1984] AC 606, holding inquiry into the criminal offence constituted by the accused’s conduct under the law of the requesting state to be irrelevant under the Extradition Act 1870, unless the relevant treaty called for such inquiry.

For the purpose of the double criminality principle terms used in listing crimes in an extradition treaty may be given a non-technical meaning: R v Governor of Holloway Prison, ex parte Jennings [1982] 1 WLR 949; and see § 417, n 3.

6  See the protest of the USA made in November 1935 against the refusal of Greece to extradite the financier Samuel Insull following upon the decision of the Athens Court of Appeals which investigated the substance of the charge in respect of which extradition was sought. For an account of the case see Hyde, AJ, 28 (1934), pp 307–12, and see ibid, pp 362–72, for the text of the decision (and also AD, 7 (1933–34), No 146); Ahmed Rechid, RG, 41 (1934), pp 687–710. And see Saxena, AJ, 57 (1963), pp 883–8. See also, illustrating the need for only a lower standard of evidence in extradition cases, sufficient merely to justify bringing a person before a foreign court, United States ex rel Sakaguchi v Kaulukukui (1975), ILR, 61, p 488; Jhirad v Ferrandina, AJ, 71 (1977), p 152; Re Commonwealth of Puerto Rico and Hernandez (No 2) (1973), ILR, 60, p 282; Republic v Director of Prisons, ex parte Allotey (1974), ILR, 60, p 290; United States of America v Sheppard (1976), ILR, 71, p 510. In many US extradition treaties this requirement is reflected in language allowing extradition only if there is ‘probable cause’ under the laws of the requesting state to believe that the fugitive committed the crime in question. See, eg Art XI of the 1983 Supplementary Convention to the USA-Sweden Extradition Convention 1961, and the Letter of Submittal relating to that Supplementary Convention: ILM, 22 (1983), p 736. As to the significance of the requirement in s 5 of the Fugitive Offenders Act 1881 that the evidence must raise a ‘strong and probable presumption that the fugitive committed the offence’, see R v Governor of Brixton Prison, ex parte Armah [1968] AC 192.

7  See generally Shearer, Extradition in International Law (1971), pp 150–65. Although s 9(8)(a) of the UK’s Extradition Act 1989 requires sufficient evidence to establish a prima facie case against a wanted person, this can be dispensed with in giving effect to agreements which themselves dispense with it: s 9(4).

For the view that there is no requirement for a prima facie case as a general principle of international law, see Shannon v The Attorney-General and Ireland (1984), ILR, 79, pp 73, 83–4, 87.

8  See §§ 421–4.

9  See, eg Art 4 of the European Convention on Extradition 1957 (see § 416, n 6), and Art 3(2) of the Switzerland-Israel Extradition Treaty (UNTS, 377, p 305). In the late 1960s the grant of asylum by Sweden and Canada to military deserters from the US forces assumed noticeable proportions: see Jones and Raish, Harv ILJ, 13 (1972), pp 88–131.

10  As to the policy adopted by certain states of extraditing persons accused of capital crimes on condition only that the death penalty is not inflicted see Reeves, AJ, 18 (1924), pp 298–300, and Re Candino de Pepe, ILR, 23 (1956), p 412; Viaux-Peccate v State of the Netherlands (1978), ILR, 74, p 456; Re Cuillier, Ciamborrani and Vallon (1979), ILR, 78, p 93. See also Art 11 of the European Convention on Extradition 1957 (see § 416, n 6). Under s 12(2)(b) of the UK’s Extradition Act 1989 the possibility that the accused may face the death penalty is a ground on which the Secretary of State may decline to order the accused’s extradition.

In the Soering case the European Court of Human Rights held in 1989 that the possible detention for several years of a person under sentence of death while his appeals were pending (the so-called ‘death row’ situation) constituted inhuman and degrading treatment, and that therefore extradition to a state where such circumstances were a possibility would be in breach of the European Convention on Human Rights: ILM, 28 (1989), p 1063. Accordingly the UK, before extraditing Soering to the USA, obtained assurances that he would not be charged with offences carrying the death penalty. See, on the Soering case, Sudre, RG, 94 (1990), pp 103–21. See also R v Secretary of State for the Home Department, ex parte Kirkwood [1984] 1 WLR 913.

11  See Art 5 of the European Convention on Extradition 1957 (§ 416, n 6), replaced by Art 2 of the Second Protocol thereto (ibid). See also Re Wyrobnik, ILR, 19 (1952), No 86; N v Public Prosecutor of the Canton of Aargau, ILR, 20 (1953), v 363; Extradition of S Case (1965), ILR, 45, p 376; R v Governor of Pentonville Prison, ex parte Khubchandani (1980) 71 Cr App R 241; R v Chief Metropolitan Magistrate [1988] 1 WLR 1204. See generally on non-enforcement of foreign revenue laws, § 144.

1  Many treaties make it a condition of extradition that reciprocity is granted.

2  Diplomatic channels have been dispensed with in some agreements: eg Art 11 of the Benelux Convention on Extradition and Judicial Assistance in Penal Matters 1962 (§ 416, n 6) and the Tananarive Convention of 1961 (§ 416, n 8). Similarly the arrangements between states of the French Community, the Nordic states, and Eastern European states (see § 417, n 10) dispense with the use of diplomatic channels for requests for extradition.

3  See Provisional Arrest for Extradition Case (1965), ILR, 45, p 378; Orsini (1975), ILR, 73, p 661; Kissel v Ministère Public (1980), ILR, 73, p 665. For the issue of a provisional warrant of arrest in the UK see Extradition Act 1989, s 8(1) and (4).

4  Extradition from one state to another, via a third state, may create legal problems since that third state will not be bound by the bilateral extradition treaty pursuant to which the extradition is taking place and other legal grounds for keeping the person being extradited in custody during the transit may be lacking. See, eg Vardy v United States, AJ, 70 (1976), p 842; Italian National Re-Extradition Case (1970), ILR, 70, p 374. As to the situation where a person is extradited from state A to state B and, after serving a sentence there, is to be extradited from state B to state C, see Gilette v Ministère Public Fédéral (1965), ILR, 72, p 627.

5  Thus the Supreme Court of Costa Rica has held unconstitutional the extradition of a person by the executive branch of government, without recourse to extradition proceedings in the courts: Review of the International Commission of Jurists, December 1972, p 78. See also, eg Re Petalas, ILR, 22 (1955), p 519 (France); Re Garcia-Setien (1963), ILR, 43, p 244 (Belgium).

Under the Extradition Act 1989, s 11(3), the courts of the UK have a general power to refuse extradition if in all the circumstances it would be unjust or oppressive. The Secretary of State has a similar power: s 12(2)(a). As to whether prolonged delay since the commission of the offence for which extradition is sought would make it unjust or oppressive to grant extradition, see Kakis v Cyprus [1978] 2 All ER 634, and comment by Gray, CLJ, 38 (1979), pp 17–20. In order to give reassurance to the requested state, the requesting state may give undertakings as to the procedures to be followed in the treatment of the fugitive if he were returned: as to the possible undesirability of such undertakings being taken into consideration by a court, see R v Governor of Brixton Prison, ex parte Armah [1968] AC 192.

6  See eg the Soering case, § 419, n 10; X v Federal Republic of Germany, YBECHR, 6 (1963), pp 462, 480; R v Secretary of State for the Home Department, ex parte Kirkwood [1984] 1 WLR 913; Russell v Fanning (1988), ILR, 79, p 134; generally, Van den Wyngaert, ICLQ, 39 (1990), pp 757–79; and, on analogous cases of deportation, § 413, n 11. In this context, extradition has been considered in relation to the return of a fugitive to a state where he may be subject to cruel, inhuman or degrading treatment, or where his return may involve a failure to respect family life, or a failure to allow the effective exercise of a right of petition. But an allegation that a conviction in the requesting state was contrary to natural justice is a matter to be taken into account, to the extent necessary, by the Secretary of State rather than by the Courts: ex parte Kotronis [1971] AC 250. See also Atkinson v Government of the United States [1971] AC 197. And see The Netherlands v Short, ILM, 29 (1990), p 1375, for priority being given to obligations under the European Convention on Human Rights (to which the requested, but not the requesting, state was a party) over different obligations under another treaty (to which both states were parties).

7  See Becker, ZV, 11 (1918–20), pp 230–40; Hsu, Du Principe de la specialité en matière d’extradition (1950); Zodrow, Der Grundsatz der strafrechtlichen Spezialität im Auslierungsrecht (1968). See also United States v Rauscher (1886) 119 US 407; Austrian Extradition Case, ILR, 23 (1956), p 410; Re Rull (1959), ILR, 30, p 385; Extradition (Rule of Specialty) Case (1960), ILR, 32, 286; Lazzeri v Schweizerische Bundesanwaltschaft (1961), ILR, 34, p 134; Glaser v Procurator-General of the Canton of Berne (1964), ILR, 72, p 597; Dutch-German Extradition Case (1965), ILR, 44, p 174; Decorte v SA Groupe d’Assurances Nedlloyd (1971), ILR, 69, p 216; Ministère Public v Desmedt and Boon (1974), ILR, 77, p 394; R v Kerr and Smith (1976) 62 Cr App R 210; R v Davidson (1976) 62 Cr App R 209 (but note comment by Crawford, BY, 49 (1978), pp 285–6); R v Uxbridge Justices, ex parte Davies [1981] 1 WLR 1080. However, the requirements of specialty have been held not to limit the application of the court’s rules as to the use of evidence relating to offences for which extradition was not granted but in support of charges which met the requirements of specialty: United States v Flores, AJ, 71 (1977), p 536; German-Swiss Extradition Case (1968), ILR, 61, p 470. Also a charge of having committed an offence between certain dates has been held not to conflict with the requirements of specialty where the accused was extradited for the same offence but in relation to different dates: United States v Rossi, AJ, 71 (1977), p 785. Nor does specialty apply so as to prevent trial for an offence committed after the accused’s return: Re Albrand (1969), ILR, 51, p 269. And see Fiocconi and Kella v Attorney-General (1972), ILR, 51, p 272, as to the application of the specialty principle where extradition was granted by comity rather than by treaty.

The principle of specialty received an interesting illustration in two decisions in United States v Milligan (1934) 74 F (2nd) 220 and (1935) 76 F (2nd) 511 — in the second of which it was held that the rationale of the principle is not any interest of the accused, but that of the extraditing state which can waive the benefit of it. The possibility of such a waiver by the extraditing state is included in some extradition treaties, eg Art 14 of the European Convention on Extradition 1957 (§ 416, n 6); Art 15 of the USA-Italy Extradition Treaty 1973; and see Berenguer v Vance, AJ, 74 (1980), p 674, and also ibid, pp 161–2. The power to waive the specialty requirement is included in s 6(4)(c) of the UK’s Extradition Act 1989.

In Re Dilasser, ILR, 19 (1952), No 83, a Venezuelan court refused, as not being in accordance with principles of international law, a request by France for permission to try a person for an offence different from that for which he had been extradited by Venezuela to France. The accused may, however, be tried for a different offence from that for which he was extradited if, after having been returned to the requesting state, he leaves it and then voluntarily returns to it or he had a reasonable opportunity of leaving it but did not do so. See eg Novic v Public Prosecutor of the Canton of Basel-Stadt, ILR, 22 (1955), p 515.

8  It was held in United States ex rel Donnelly v Mulligan that a person who has been acquitted of the charge for which he had been extradited may be extradited, on another charge, to a third state with the consent of the state which originally granted the extradition: 74 F (2nd) 220; AD, 7 (1933–34), No 144; 76 F (2nd) 511; AD, 8 (1935–37), No 169. It has been held by the Italian Court of Cassation that if the accused consents and the extradition treaty provides for such consent, he may be tried on charges other than those for which he has been extradited: Re Arrietto, AD, 7 (1933–34), No 140. On the other hand, the same Court held that, in the absence of a treaty provision to the contrary, the extradited person cannot validly consent to a prosecution on such charges: Vallerini v Grandi, AD, 8 (1935–37), No 176. For an emphatic affirmation of the principle of identity of extradition and prosecution as being a principle of international law see the decision of the Spanish Supreme Court in Fiscal v Samper (AD, 9 (1938–40), No 152); and the decision of the Reichsgericht in the Extradition (Germany and Czechoslovakia) Case, AD, 1 (1919–22), No 182; but see to the contrary Re Flesche, AD, 16 (1949), No 87; Saksena v The State, ILR, 20 (1953), p 371.

9  R v Governor of Pentonville Prison, ex parte Budlong [1980] 1 All ER 701, 714; and see § 423, n 2, para 1.

10  See eg s 6(4)(b) of the UK’s Extradition Act 1989. And see R v Corrigan [1931] 1 KB 527.