Monday, October 15, 2007

What in the World is Extradition?

by Barbara D'Amato

With all the extradition issues wound into the slaying of Dr. Cornbleet and the fleeing of Peterson to a French jurisdiction, I realized I didn’t know the first thing about extradition. So I consulted and came up with Anthony D’Amato, a professor of law at Northwestern University, who specializes in international law and jurisprudence, the philosophy of law. He was kind enough to give me an overview.

Anthony D’Amato:

Extradition is one of the oldest practices of states. The ancient Hittites entered into elaborate extradition treaties written on bronze tablets. (Every one of those tablets was subsequently melted down, but the clay molds were preserved—as if today someone threw out all the original letters but kept the carbon paper).

Crimes back then, as they still mostly are today, were territorial. If someone committed murder in state A and fled to state B, there would be no law in state B that applied to his act. Hence he would have a safe harbor. But say the king of state A wanted the murderer to be brought back and executed. Fortunately, the king of B had a mirror-image interest in bringing back fugitives who had committed their crimes in the territory of B. Thus the conditions were ripe for treaties. The king of A pledged to arrest and transport fugitives back to state B, and the king of B agreed to do the same thing regarding fugitives who committed their crimes in state A.

The fugitives who were wanted the most were the ones who had committed political crimes, such as assassinations of government officials. Extraditing those fugitives was a prime motivation for entering into extradition treaties. On the other side of the coin, states were reluctant to extradite their own citizens. Suppose a citizen of A enters into B, kills someone there, and then runs back to A. His family and friends would protest his being extradited to state B where he would probably be executed for murder. Moreover, they could claim that state B had trumped up evidence against the citizen of A.

Today, extradition treaties sometimes exempt nationals (citizens) from being extradited. The extradition treaty between the United States and France has a curious article. It provides that France has no obligation to extradite its own citizen to the United States to stand trial for a murder committed in the United States. It also provides that if France wants to extradite an American for a murder committed in France, the United States has the discretion either to extradite or not to extradite that person.

The history of political extradition in international law would not have been imagined by the most visionary Hittite. In the nineteenth century following the American and French revolutions, people began to realize that political crimes and offenses were often necessary to rid a country of despotic rulers. If a ‘freedom fighter’ who shot a government official in A fled to B, obviously the government of A would desperately want him back to be tried for treason. The fugitive asked the government of B for asylum. And various nations in B’s position for various reasons did grant asylum. In Latin America, where changes of government by assassination seemed to exceed (in the popular imagination) changes of government by election, a strong rule in favor of asylum developed where escaping revolutionaries were granted asylum almost as a matter of course.

The ‘political offense exception’ to extradition took root, and found itself spelled out in numerous extradition treaties. Ironically it was the United States and Great Britain in 2003 who retreated from the political offense exception. Great Britain had been furious that several American courts refused to approve extradition for alleged Irish terrorists who claimed their acts (including bombs) were politically motivated. The Supplemental Extradition Treaty of 2003 removed the political offense exception for acts involving violence or weapons.

And almost as an afterthought, the 2003 treaty also removed the nationality exception to extradition.

What about extradition of persons to tribunals in The Hague who are accused of committing war crimes or genocide? Since these are crimes under international law, and since international law applies everywhere, the particular law of the territory in which the crime took place is irrelevant. Hence the accused persons have no safe harbor. They are subject to what is called universal jurisdiction. Technically speaking they are not extradited to The Hague but rather are remitted there.

Barbara, Back again:

This is a thumbnail. All the books written on extradition laid end to end [don’t make jokes having to do with killing lawyers] would reach from here to Seahawks Stadium. Realizing this, Tony has said he would respond to questions on the subject.


Anonymous said...

if France wants to extradite an American for a murder committed in France, the United States has the discretion either to extradite or not to extradite that person.

So it seems that France isn't doing anything with its own citizen that it wouldn't recognize the US' right to do with its own citizens.

Isn't Italy demanding the extradition of some US citizens that kidnapped someone on its soil for trial? Have we handed them over?

As I said earlier, at least the Cornbleets know who, they know why, they know the guys is off the street, they have a confession and they know he will be punished.

This is better than many families in similar cases get.

I do feel for their loss, and I think Hans Peterson should get the max tossed at him.

Speculating that he could get more here in the US is just that...speculation.

They have pretty much a sure thing there in France, and although they might wish to participate, etc...well, life isn't perfect.

Kevin Guilfoile said...

Barb and Tony, thanks for that great briefing, and thanks for the offer of help. I know I'm going to have more questions about all this as events unfold and I'm sure others will, as well.

Barbara D'Amato said...

From everything I hear, if I had a choice between being imprisoned in a French prison and a U.S. prison, I'd pick the U.S.

Anonymous said...

From everything I hear, if I had a choice between being imprisoned in a French prison and a U.S. prison, I'd pick the U.S.


Anthony D'Amato said...

In reply, here are some excerpts from a July 2005 article in Le Monde Diplomatique, accessible at

Physical and mental violence now play a bigger part in the running of prisons, to keep a potentially explosive situation under control and quell thoughts of resistance.

Since autumn 2004 there has been an atmosphere of physical confrontation. At Lannemezan more and more guards go on duty in combat gear. Use of handcuffs (a symptomatic gesture) is widespread. In the solitary wing at Fleury-Mérogis, a huge prison south of Paris, prisoners are cuffed US-style for any movements inside or outside buildings. Handcuffs seem to have become standard equipment. In the prison hospital the senior supervisor for each floor wears handcuffs and riot gloves on his belt, although 90% of patients cannot get out of bed unassisted.

In December 2003 the story of a woman at Fleury-Mérogis kept handcuffed while she gave birth prompted an outcry. But there was much less response a year later when the ministry issued instructions that all patients should not only be restrained, but handcuffed behind their backs. Whenever they go to court, or anywhere else outside, detainees spend several hours cuffed in prison vans. You can only understand the pain if you have experienced this treatment. So prisoners are refusing to leave their cells for medical treatment.

Besides this daily brutality, there are solitary confinement and transfers to other units for disciplinary reasons. No one is safe from the threat of physical violence or solitary confinement. Anyone thought to be a troublemaker or a potential ringleader is a target. As happened in the days of the dreaded top-security detention centres (QHS, quartier haute sécurité) selected hard cases are often rotated from unit to unit. About 200 supposedly dangerous prisoners travel back and forth between the solitary wings of prisons all over France, two months in Epinal, two weeks in Grasse, four months in Perpignan. Some places are mandatory stages in this progress, and the tough conditions in them are designed to break people. The former QHS at Fleury-Mérogis, which re-opened last year, is typical. Like similar units in Paris, Rouen and Lyon, it is set aside for convicts accused of attempting or carrying out violent escapes.

The isolation wings of large prisons are packed. In the past, space was reserved for the worst psychiatric cases and prisoners under official protection. But now inmates may find themselves in solitary for varying periods of time for no good reason. At Moulins, the management may put someone in solitary simply to make room for a new arrival. Due to the shortage of isolation facilities, a prisoner may be put in an ordinary cell, but the door will only be opened in the presence of a senior officer with an extra escort. Those subjected to this treatment are only allowed an hour’s exercise a day in an inner courtyard. Much of their personal kit and televisions or radios are confiscated. Access to showers is restricted and all the other usual activities - telephone, laundry, sport, library - are prohibited.

It seems to have become deliberate prison policy to cut the standard of living of inmates and reduce the range of services available to them. This operates together with a drive to extort as much money as possible from those serving sentences; the official reason is the need to boost the finances of criminal injuries compensation schemes. The prison service has launched economy drives, shelving free services and basic supplies. This process has affected social activities. Damaged or worn-out equipment is no longer replaced and only the bare minimum is done to maintain collective areas.

To cover everyday needs prisoners must buy everything from bin-liners to drugs prescribed by prison doctors. With the further decline in the quality of meals, a black market for food has sprung up in some jails; this has not happened for a long time. To survive, inmates must buy items of food and personal hygiene. But canteen prices are exorbitant, some 30%-50% higher than prices in shops.