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Contents
- Preliminary Material
- Main Text
- Ch.I The Legal Framework of Extradition in International Law and Practice
- Preliminary Material
- 1 Introduction
- 2 Historical Background
- 3 The Duty to Extradite: Aut Dedere Aut Judicare
- 4 Extradition by Multilateral Regional Arrangements
- 5 Bilateral Treaty Practice
- 6 Extradition without a Treaty
- 7 Surrender to International Criminal Tribunals
- 8 A Policy-Oriented Inquiry into the Values and Processes of Extradition
- 9 A Proposed Conceptual Framework in Light of Existing State Practice
- Ch.II Legal Bases for Extradition in the United States
- Preliminary Material
- 1 Historical Background
- 2 The Relationship among the Executive, Legislative, and Judicial Branches and the Place of Treaties in the Extradition Process
- 3 The Different Constitutional Types and Meanings of “Treaties”
- 4 The Legal Bases of Extradition
- 5 The Constitution, Treaty-Making, and Treaty Interpretation
- 5.1 Extradition: A Federal Prerogative
- 5.2 The Relationship of Treaties to National Legislation
- 5.3 Standing
- 5.4 Treaty Interpretation
- 5.4.1 Plain Meaning of the Words and Parties’ Intentions
- 5.4.2 Sources: Negotiating History, Executive View, and Subsequent Conduct
- 5.4.3 Interpretative Criteria
- (1) Consistent Interpretation of Terms
- (2) Liberal Interpretation of Terms
- (3) Rule of Liberality
- (4) Expressio Unius Est Exclusio Alterius
- (5) Ejusdem Generis
- (6) Retroactive Application
- (7) Resort to Customary International Law Principles
- (8) Resort to General Principles of Law
- (9) Resort to National Legislation
- 5.4.4 Contemporary Jurisprudential Trends: The Restatement’s Position
- 5.4.5 Judicial Deference to the Executive Branch
- 5.5 The Effects of State Succession and War on U.S. Extradition Treaties
- 6 The Duty to Extradite and to Refrain from Unlawful Means of Surrender
- Ch.III Asylum and Extradition
- Ch.IV Disguised Extradition: The Use of Immigration Laws as Alternatives to Extradition
- Preliminary Material
- 1 Introduction
- 2 Modalities of Disguised Extradition Evidenced in Certain Landmark Cases
- 3 U.S. Immigration Procedures as Alternatives to Extradition
- 4 Remedies
- 5 The International Law Commission’s Principles of State Responsibility
- 6 Particular Remedies within the United States
- 7 Conclusion
- Ch.V Abduction and Unlawful Seizure as Alternatives to Extradition
- Preliminary Material
- 1 Typology and Rationale
- 2 The Policy of Abduction in Comparative Law and Practice
- 3 Comparative Jurisdictional Analysis of Unlawful Seizure Cases
- 4 Extraordinary Rendition: The United States’ New Kidnapping Techniques since September 11, 2001
- 5 Extraterritorial Application of the U.S. Constitution in U.S. Jurisprudence
- 6 Abduction and Other Forms of Unlawful Seizure in the Jurisprudence of the United States
- 7 Abduction and Unlawful Seizure: State Responsibility in International Law
- 7.1 Introduction
- 7.2 The Questionable Validity of Mala Captus Bene Detentus in International Law
- 7.3 The Bases of State Responsibility under International Law
- 7.4 Internationally Protected Human Rights and State Responsibility
- 7.4.1 Introduction
- 7.4.2 The Sources of Internationally Protected Human Rights
- (1) The United Nations Charter
- (2) The Universal Declaration of Human Rights
- (3) Multilateral Treaties
- (a) The International Covenant on Civil and Political Rights
- (b) The Convention Relating to the Status of Stateless Persons
- (c) The Convention Relating to the Status of Refugees
- (d) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- (e) International Convention for the Protection of All Persons from Enforced Disappearance
- (f) General Assembly Resolution on Extrajudicial, summary or arbitrary executions
- (g) The European Convention for the Protection of Human Rights and Fundamental Freedoms
- (h) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
- (i) The Inter-American Convention on Human Rights
- (j) The African Charter on Human and Peoples’ Rights
- (k) The International Right to the Due Process of Law
- (4) Decisions of International Courts
- (5) United Nations Resolutions
- 7.4.3 State Responsibility for Violation of Internationally Protected Human Rights: Transfer and Torture
- 7.5 Treaty Interpretation and Internationally Protected Human Rights
- 7.6 Remedies
- 8 United States Remedies for Abduction Abroad
- 9 Policy Considerations
- Ch.VI Theories of Jurisdiction and Their Application
- Preliminary Material
- 1 Introduction
- 2 Territorial Jurisdiction and Its Extensions
- 2.1 Special Status Territories
- 2.2 Subjective–Objective Territorial Theory
- 2.3 Floating and Aerial Territoriality: The Law of the Flag
- 2.3.1 Historical Basis
- 2.3.2 The Law of the Flag as a Jurisdictional Basis
- 2.3.3 United States Vessels on the High Seas
- 2.3.4 Non–United States’ Vessels on the High Seas
- 2.3.5 Stateless Vessels
- 2.3.6 Searches and Seizures on the High Seas
- 2.3.7 The 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
- 2.3.8 The Law of the Flag for Aircraft
- 2.4 Special Environments
- 3 The Active Personality or Nationality Theory
- 4 The Passive Personality Theory
- 5 The Protected Interest or Protective Theory
- 6 Expanded Extraterritorial Criminal Jurisdiction
- 7 Universal Jurisdiction
- 7.1 Introduction
- 7.2 The Theoretical Foundation of Universal Jurisdiction
- 7.3 Universal Jurisdiction in International Criminal Law
- 7.4 Contemporary Practice before International Criminal Tribunals
- 7.5 Contemporary Practice before National Courts
- 7.6 Misconceptions About National State Law and Practice
- 7.7 Conclusion
- 8 International Immunities
- 9 Expansionist Approach to Extradition Jurisdiction in the United States
- 10 Recommendations for a Policy-Oriented Inquiry into the Problems of Jurisdiction and Jurisdictional Priorities in Extradition and World Public Order
- 11 Overlapping Jurisdictional Claims and Extradition Priorities
- Ch.VII Substantive Requirements: Dual Criminality, Extraditable Offenses, Specialty, and Non-Inquiry
- Preliminary Material
- 1 Reciprocity: The Underpinning of Substantive Requirements
- 2 Dual Criminality
- 3 Extraditable Offenses
- 4 Jurisprudential Applications of Dual Criminality and Extraditable Offenses
- 5 Dual Criminality and Complex Crimes
- 6 The Principle of Specialty (also referred to as the Rule of Specialty)
- 6.1 Nature of the Principle
- 6.2 The Substantive Contents of the Principle of Specialty
- 6.3 Jurisprudential Applications
- 6.4 Variance in Prosecution and the Principle of Specialty
- 6.5 Use of Evidence for Crimes for Which Extradition Was Not Granted and for Purposes of Sentencing Enhancement
- 6.6 Standing to Raise the Specialty Issue
- 6.6.1 Waiver of Specialty by the Relator
- 6.6.2 Waiver of Specialty by the Surrendering State
- 6.6.3 Guilty Pleas and Waiver of Specialty
- 6.6.4 Circuits Allowing the Individual to Object without the Need for the Requested State’s Protest
- 6.6.5 Circuits That Require Some State Action from the Requested State before Conferring Standing to the Relator
- 6.6.6 Circuits in Which the Issue of Standing Is Not Clearly Decided
- 6.6.7 Eventual Supreme Court Review
- 6.7 Extension of the Specialty Principle: Limitations on Re-Extradition
- 6.8 Other Issues of Pertaining to Standing
- 6.9 The United States as the Requested State and the Principle of Specialty
- 6.10 The Position of the Restatement (Third) of the Foreign Relations Law of the United States on Specialty
- 6.11 The Principle of Specialty and Assurances in Light of Governmental Interests
- 7 Diplomatic Assurances
- 8 The Rule of Non-Inquiry
- 8.1 Nature and Scope of the Rule
- 8.2 The Rule of Non-Inquiry as Applied by U.S. Courts in Passive Extradition (When the United States Is the Requested State)
- 8.3 The Rule of Non-Inquiry: The Death Penalty and Torture
- 8.4 The Rule of Non-Inquiry as Applied by Courts of Foreign States in Active Extradition (When the United States Is the Requesting State)
- 8.5 Revisiting the Rule of Non-Inquiry
- Ch.VIII Denial of Extradition: Defenses, Exceptions, Exemptions, and Exclusions
- Preliminary Material
- 1 Introduction
- 2 Grounds Relating to the Offense Charged
- 2.1 The Political Offense Exception
- 2.1.1 Historical Development and Meaning
- 2.1.2 Ideologically Motivated Offenders and Political Offenses
- 2.1.3 The Political Function and Political Activities of a Relator and the Political Offense Exception
- 2.1.4 The Purely Political Offense
- 2.1.5 The Relative Political Offense
- 2.1.6 A Proposed Juridical Standard of Inquiry into the Political Offense Exception
- 2.1.7 International Crimes: The Exception to the Political Offense Exception
- 2.1.8 The Political Offense Exception and World Public Order: A Proposed Standard
- 2.1.9 The Need for a More Consistent Approach to the Application of the “Political Offense Exception”
- 2.2 Offenses of a Military Character
- 2.3 Offenses of a Fiscal Character
- 2.1 The Political Offense Exception
- 3 Grounds Relating to the Person of the Relator
- 4 Grounds Relating to the Criminal Charge or to the Prosecution of the Offense Charged
- 4.1 Introduction
- 4.2 The Legality of the Offense Charged, Ex Post Facto, and the Retroactive Application of the Extradition Treaty
- 4.3 Double Jeopardy—Ne Bis In Idem
- 4.4 Statute of Limitations
- 4.5 Right to a Speedy Trial
- 4.6 Immunity from Prosecution and Plea Bargain
- 4.7 Amnesty and Pardon
- 4.8 Conviction Based on Trial in Absentia
- 5 Torture: A Substantive Bar to Extradition
- 6 The Special Problems of Death Penalty Exclusion
- Ch.IX Pretrial Proceedings
- Preliminary Material
- 1 Sources and Content of Procedural Rules: Some Comparative Aspects
- 2 Procedure in the United States
- 3 The Initial Executive Process
- 4 The Judicial Process
- 5 The Request
- 6 The Complaint
- 7 Documentation
- 8 The Meaning of “Fugitive”
- 9 Provisional Arrest
- 10 Arrest Warrants
- 11 Timeliness of the Extradition Request and Complaint
- 12 Bail
- 12.1 The Constitutional and Legal Bases for Bail
- 12.2 Jurisprudential Applications of Bail: The Meaning of “Special Circumstances”
- 12.2.1 Length of the Proceedings and Detention
- 12.2.2 Need to Consult with Counsel
- 12.2.3 Health Condition of the Relator
- 12.2.4 Age of the Relator
- 12.2.5 Availability of Bail to Relator at Home or Abroad
- 12.2.6 Likelihood of the Relator Being Found Not-Extraditable (on legal or factual grounds)
- 12.2.7 Deprivation of Religious Practices while Incarcerated
- 12.2.8 Attendance at Other Legal Proceedings
- 12.2.9 Liberal Application of the Special Circumstances Test
- 12.3 The Artificial Legal Notion of “Special Circumstances”
- 13 Discovery
- Ch.X The Extradition Hearing
- Preliminary Material
- 1 Introduction
- 2 Standing of the Relator in Extradition Hearings
- 3 The Requirement of a Charge or Accusation
- 4 The Requirement of “Probable Cause”
- 5 Evidentiary Matters
- 5.1 Admissibility of Evidence
- 5.2 Documentary Evidence
- 6 Conclusion
- Ch.XI The Review Process and Executive Discretion
- Preliminary Material
- 1 The Review Process
- 2 Prosecutorial Misconduct as Grounds for Review of the Proceedings
- 3 Standing and the Firewall between U.S. Judicial Proceedings and Foreign Legal Proceedings
- 4 Issues of Standing
- 5 Excessive Delays in Judicial Review
- 6 Executive Discretion
- Ch.XII Surrender and Miscellaneous Matters
- Preliminary Material
- 1 Surrender of a Person Held Extraditable to a Requesting State
- 2 Dissolution of the Extradition Order and Release of the Relator for Failure to Surrender
- 3 Renewability of Extradition Request
- 4 Transit Extradition
- 5 Costs
- 6 Receipt by the United States of a Person from a Foreign State
- Ch.I The Legal Framework of Extradition in International Law and Practice
- Further Material
- Appendix I Multilateral Conventions Containing Provisions on Extradition
- A Prohibition against War
- B Prohibition of Certain Means and Methods in the Conduct of War (Humanitarian Law of Armed Conflict)
- C Prohibition of Emplacement of Weapons in Certain Areas
- D Prohibition against Genocide
- E Prohibition against Apartheid
- F Prohibition against Torture
- G Prohibition against Slavery and Slave-Related Practices
- H Prohibition against Piracy
- I Prohibition against Aircraft Hijacking and Unlawful Acts against International Air Safety
- J Protection of the Safety of Persons
- K Prohibition against the Unlawful Use of the Mails and Internet
- L General Conventions against Terrorism
- M Protection of Civil and Commercial Maritime Navigation and Non-Military Sea-Based Platforms
- N Protection of Civil Aviation and Safety of Aircrafts
- O Protection of the Safety of Persons
- P Protection against the Use and Manufacture of Explosives and Bombs
- Q Preventing the Use of Weapons of Mass Destruction
- R Preventing Means of Financing Certain Forms of Terrorism
- S Prohibition against Counterfeiting
- T Protection of National and Archaeological Treasures
- U Protection of International Means of Communication
- V Prohibition of International Traffic in Obscene Publications
- W Prohibition against Bribery and Corruption
- X Mercenarism
- Y Prohibition against Narcotic Drugs
- Z Prohibition against Organized Crime
- AA Other
- BB General Assembly Resolutions
- CC Security Council Resolutions
- Appendix II Regional Multilateral Conventions
- African Union
- Association of South East Asian Nations
- Benelux Countries
- Commonwealth of Nations
- Council of Europe
- Economic Community of West African States (ECOWAS)
- European Union
- Latin American Countries
- League of Arab States
- Nordic States
- Organisation of Islamic Cooperation
- Organization of American States
- South Asian Association for Regional Cooperation (SAARC)
- Southern African Development Community (SADC)
- Appendix III Bilateral Extradition Treaties of the United States
- Appendix IV Countries with Which the United States Has No Bilateral Extradition Treaty
- Appendix V Countries with Which the United States Has Signed an “Article 98” Agreement Not to Surrender Its Citizens to the International Criminal Court
- Appendix VI United States Legislation Applicable to Extradition
- Title 18—Crimes and Criminal Procedures Chapter 209—Extradition
- s.3181 Scope and Limitation of Chapter
- Credit(s)
- Historical and Revision Notes
- Amendments
- Extradition Treaties Interpretation
- Judicial Assistance to International Tribunal for Yugoslavia and International Tribunal for Rwanda
- Extradition and Mutual Legal Assistance Treaties and Model Comprehensive Antidrug Laws
- Extradition Agreements
- Convention on Extradition
- Sec. 3182 Fugitives from State or Territory to State, District, or Territory
- Sec. 3183 Fugitives from State, Territory, or Possession into Extraterritorial Jurisdiction of United States
- Sec. 3184 Fugitives from Foreign Country to United States
- Sec. 3185 Fugitives from Country Under Control of United States into the United States
- Sec. 3186 Secretary of State to Surrender Fugitive
- Sec. 3187 Provisional Arrest and Detention within Extraterritorial Jurisdiction
- Sec. 3188 Time of Commitment Pending Extradition
- Sec. 3189 Place and Character of Hearing
- Sec. 3190 Evidence on Hearing
- Sec. 3191 Witnesses for Indigent Fugitives
- Sec. 3192 Protection of Accused
- Sec. 3193 Receiving Agent’s Authority over Offenders
- Sec. 3194 Transportation of Fugitive by Receiving Agent
- Sec. 3195 Payment of Fees and Costs
- Sec. 3196 Extradition of United States Citizens
- Appendix VII United States Attorneys’ Manual, Chapter 15
- 9-15.100 Definition and General Principles
- 9-15.200 Procedures for Requesting Extradition from Abroad
- 9-15.210 Role of the Office of International Affairs
- 9-15.220 Determination of Extraditability
- 9-15.225 Procedure when Fugitive is Non-Extraditable
- 9-15.230 Request for Provisional Arrest
- 9-15.240 Documents Required in Support of Request for Extradition
- 9-15.250 Procedure after Assembling Documents
- 9-15.300 Procedure in the Foreign Country
- 9-15.400 Return of the Fugitive
- 9-15.500 Post-Extradition Considerations: Limitations on Further Prosecution
- 9-15.600 Alternatives to Extradition
- 9-15.610 Deportations, Expulsions or other Extraordinary Rendtions
- 9-15.620 Extradition from a Third Country
- 9-15.630 Lures
- 9-15.635 Interpol Red Notices
- 9-15.640 Revocation of United States Passports
- 9-15.650 Foreign Prosecution
- 9-15.700 Foreign Extradition Requests
- 9-15.800 Plea Agreements and Related Matters: Prohibition
- Criminal Resource Manual
- Relevant Provisions
- 535 International Extradition—Text of 18 U.S.C. § 3184
- 536 Treaty List
- 601 Constitutionality of 18 U.S.C. § 3184
- 602 Procedures For Requesting Extradition From Abroad
- 603 Determination of Extraditability
- 604 Form—Request for Provisional Arrest
- 605 Prosecutor’s Affidavit
- 606 Copies of Warrant and Complaint and/or Indictment
- 607 Statutes
- 608 Affidavits Establishing the Crime and the Fugitive’s Identity
- 609 Evidence of Conviction
- 610 Deportations, Expulsions, or other Extraordinary Renditions
- 611 Interpol Red Notices
- 612 Role of the Department of State in Foreign Extradition Requests
- Relevant Provisions
- Appendix VIII Content Analysis of Bilateral Extradition Treaties
- 1 Treaty as Jurisdiction or Legal Basis for Extradition
- 2 Double Criminality Provision
- 3 Definition of Extraditable Offenses
- 4 Rule of Non-Inquiry
- 5 Guilty Pleas
- 6 Specialty
- 7 Political Offense (Political Crimes)
- 8 Political Offense (Politically Motivated Request)
- 9 Offenses of a Military Character
- 10 Offenses of a Fiscal Character
- 11 Exclusion of Nationals
- 12 Double Jeopardy
- 13 Statute of Limitations
- 14 Other Defenses
- Table of Cases
- Table of Authorities
- Subject Index
- Appendix I Multilateral Conventions Containing Provisions on Extradition
