Chapter 1 - Extradition and Individual Protections

Summary

Introduction

Extradition is one of the oldest forms of international cooperation and can be traced back to antiquity (Blakesley 1981, 39; Magnuson 2012, 846). The extent to which extradition law has incorporated consideration of the rights of individual suspects has evolved over time. In the mid-eighteenth century, extradition was viewed as an agreement or contract between states on how to deal with fugitive suspects apprehended in another nation's territory (Moore 1891). The idea of extradition as an agreement between nation states actively restricted the enforceable rights of the accused to challenge a request for their surrender. As the types of offences common in extradition requests shifted from political and religious crimes to target military deserters in the eighteenth and nineteenth centuries (Epps 2003), the rationale for core extradition principles also shifted. Double criminality, which requires the offence to be criminalised in both the requesting and requested nations, has always been central to extradition. As this principle matured, extradition increasingly focused on ‘the rights of the [extraditee] not to be subject to injustice’ in foreign legal systems (Boister 2023, 252). Protections for extraditees continued to develop in the late nineteenth century and now encompass human rights principles enshrined in international conventions, domestically enforced due process rights and other types of individual protections commonly raised in legal challenges to extradition. Principles such as double criminality and specialty, which requires that following surrender an extraditee should not be tried for offences beyond those listed in the request, can also have important functions aimed at protecting people sought to face trial in another nation.

Individual protections within extradition treaties are mainly subject to the requested nation's due process rules or procedures (Anderson 1983; Bloom 2008; Boister 2003; Henning 1999). Domestic due process requirements can vary and often differ from broader international human rights standards (Rose 2002; Ross 2011). Contradictions can also emerge with treaties which aim to detect or control transnational and global crime problems, the domestic incorporation of international human rights requirements and individual protections embedded in the routine operation of the criminal justice systems of requesting states (Arnell 2018; Colquhoun 2000; Dugard and Van den Wyngaert 1998).