Chapter 4 - The Need for Reform

Summary

Introduction

The cases examined in this book illustrate that individual protections during the extradition process emerge in two ways. The first involves human rights protected under international laws, such as the CAT and related treaties. The second is through due process rights in national legal systems applied in individual cases, which are subject to the rule of non-inquiry. Human rights protected under international law emerge occasionally in the cases presented in Chapters 2 and 3. However, high evidentiary standards are commonly needed to establish viable human rights arguments under domestic extradition laws (Arnell 2013; Cullen and Burgess 2015; Parry 2010). Due process or procedural concerns in the administration of justice in requesting states appear more common, yet remain equally difficult to challenge in extradition courts (Dugard and Van den Wyngaert 1998). Both executive and judicial approaches to extradition must consider how requesting states meet basic international and domestic human rights standards, as ‘obligations to protect individuals should not end at our borders’ (Bifani 1993, 660). This is despite some experts arguing extradition should become a purely administrative process by eroding its substantive and procedural elements, including the need for the requesting state to provide evidence to support a claim for surrender (Boister 2017a).

This chapter examines core human rights and due process issues that commonly emerge in extradition cases. It links the existence of these protective rights to significant elements of criminal justice administration, while positing why these arguments are rarely successful in legal challenges to an extradition request. The chapter then explores the importance of a defendant-centred approach to help clarify the status of individual rights in extradition law (Gless 2013) and proposes some specific reforms to the current extradition procedure. Broader implications for the potential universalisation of contemporary criminal law are then discussed.

Rights in Extradition Law

This section summarises key individual rights claims which can arise during the extradition process, many of which are demonstrated in the cases examined in this book, and aligns them with core elements of the criminal justice process. This includes discussion of prominent international human rights protections, vulnerabilities based on an extraditee's age and health, formal rules relating to bail, access to legal representation, the conduct of fair trials, issues relating to evidence and sentencing, and the legal tensions associated with judicial and executive decision-making.