Criminal Extradition and International Diplomacy

Abstract

The law of extradition governs the relations between two sovereign States over the question of whether or not a given person should be handed over by one sovereign State to another sovereign State. Coordination and cooperation required among the law enforcement personnel, prosecutors, and other government officials of two states in the process of Extradition often helps countries avoid international tension and diplomatic crisis. Even though bilateral and multilateral treaties establish its existence, extradition is actually a product of diplomacy and foreign relations. As the extradition involves surrendering of criminals by one country to another through diplomatic means, the interplay between the diplomacy and extradition becomes inevitable. Where treaty entered into between the two countries doesn’t cover the behavior in question, it becomes a diplomatic concern which in essence depends upon their negotiations which are always influenced by their respective bargaining strength or power. Of all the factors that make for the power of a nation, the most important, however unstable, is its quality of Diplomacy and the nation’s backing which further strengthens the Diplomatic moves. But even the dominant nation has to make reasonable negotiations, using Sanctions or Assurances, in order to prevent the offended country from protesting the action. In Indian context, the main accused of Bofors Scandal which though shook India as late as 1987, is still in question is the clear example of Influence of Political relations on extradition. Due to Quattrocchi's proximity to the Gandhi family, Italian businessman was made the middleman between the Indian Army and Bofors, which is a Swedish, even middlemen are illegal in defense deals in India. The repeated failures of Indian Government to get Ottavio Quattrocchi extradited were the prima facie evidence of the use of political considerations.

An Introduction to Extradition

The term ‘Extradition’ has been derived from two Latin terms ex and traditum. Ordinarily it meant delivery of criminals, surrender of Fugitives. Extradition involves handing over of an offender or a person accused of an offence by the country where he is found to another country that requests his extradition. Extradition is the delivery of an accused or a convicted individual to the state on whose territory the alleged crime has taken place or he has been convicted of a crime, by the state on whose territory the alleged criminal happens to be residing for the time being. [1] The extradition of a fugitive from one country to another involves coordination and cooperation among law enforcement personnel, prosecutors, and other government officials. [2] 

International extradition is the formal process by which a fugitive found in one country is surrendered to another country for trial or punishment. International law does not impose any obligation on states to extradite. Nor does it set out any special procedure for handing over the person concerned to the requesting state. [3] Under International Law, extradition is in most of the cases is a matter of bilateral treaty.

The law of extradition is a dual law. It is ostensibly a municipal law; yet it is a part of international law also, inasmuch as it governs the relations between two sovereign States over the question of whether or not a given person should be handed over by one sovereign State to another sovereign State. This question is decided by national courts but on the basis of international commitments as well as the rules of international law relating to the subject. [4] 

The Purpose Of Extradition

These days criminals’ fears of capture are lessened because the increasingly borderless world gives them the ability to evade arrest. For example, the emergence of the EU and the fall of Communism in Eastern Europe allow for relatively easy travel between European countries. [5] As a result, travel between EU countries for its citizens is becoming similar to travel between some of the states of a nation. The relaxing of borders may conveniently ease trade and travel, but with the increased liberty also comes the risk of abuse by criminals. [6] 

Extradition of the fugitive criminals is mutually beneficial for all the states or to say the international community as a whole. Extradition is a process towards suppression of crime. It also acts as a warning to the fugitive criminals that they cannot escape by fleeing to another state. Extradition is also done because it is a step towards the achievement of international co-operation in solving international problems of social character. Besides these, a traditional state interest exists in obtaining reciprocal return of fugitives. [7] Public safety further encourages the improvement of extradition practices. Countries want to avoid becoming a haven for criminals who evade other countries’ judicial systems. Finally, extradition helps countries avoid international tension [8] and diplomatic crisis.

The Process of Extradition

The process of extradition is simply defined as the surrendering of a criminal or accused criminal by one sovereign to another. International Law does not recognize any general duty of states in respect of extradition [9] . Extradition, therefore in most of the cases depends on the provisions of the extradition treaties. However, there is no universally recognized parctise that there can be no Extradition except under a treaty. Like, The Extradition Act, 1962, which governs the law relating to extradition in India. Chapter III of the Act deals with the return of fugitive Criminals from Commonwealth countries with extradition agreements. Chapter II of the Act deals with Extradition of Fugitive Criminals to foreign states and commonwealth countries to which chapter III does not apply. [10] 

It may, therefore, be concluded that although there is no universal rule of international law, imposing a general duty on states in respect to extradition and generally, the extradition is granted based on a treaty, it would be wrong to say that there can be no extradition apart from a treaty. As remarked by the Supreme Court of India in The State of Madras v. C. G. Menon, [11] “Extradition with foreign states is, except in exceptional cases, governed by treaties or arrangements made."

The above definitions make it clear that in extradition, two states are involved. They are: firstly, the territorial state and secondly the requesting state. A state demanding extradition is requesting state because a person is surrendered by the territorial state only upon a request by the other state. The process of extradition therefore is different from that of banishment, expulsion and deportation [12] where an undesirable person is forcibly removed.

This is an area where political considerations play a prominent role, unless an applicable bilateral extradition treaty exists. [13] Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can, if it wants to, take that decision without any treaty obligations whatsoever, even by exercise of executive discretion [14] . Where there is a bilateral extradition treaty, the states parties to it normally go by its terms.

Most of the Extradition treaties seem to embody at least six principles [15] , as endorsed by many judicial pronouncements and state practice in respect of domestic extradition legislation.

Influence of nationality on extradition. Many States apply the principle of not extraditing their own nationals. In such cases, a State may undertake to place its nationals on trial under the conditions laid down in its own laws, in application of the principle of 'Aut tradere, aut judicare' (either extradite or judge).

Principle of extraditable offences lays down that extradition applies only with respect to offences clearly stipulated as such in the treaty. Also, it is an accepted principle in international extradition law that political offences may not give rise to extradition and it is up to the requested country to determine whether a given offence is political.

The principle of double criminality requires that the offence for which the extradition is sought be an offence under the national laws of the extradition requesting country as well as of the requested country. By extension of this principle, extradition may be refused if the time limit for prosecution in the requested State has expired.

Principle of 'Non bis in idem' means the extradition must be refused if the individual whose extradition is requested has already been tried for the same offence i.e. he must be accorded a fair trial.

The principle of specialty means that an extradited person must be tried only against the offence for which his extradition was requested. If the requesting State discovers, subsequent to extradition, that offences had been committed prior to that date and those offences should give rise to prosecution, it may ask the requested State for authorization to prosecute the extradited person for the new offences (this constitutes a request for extension of extradition).

Principle of capital punishment says that if the requested State does not apply the death penalty to its own nationals who are to stand trial, or if it does not carry out the death penalty even though it is one of the penalties that may be applicable, the requested State may refuse extradition if the person whose extradition is requested is likely to be sentenced to death in the requesting State. However, extradition may be granted if the requesting State provides sufficient assurance that the death penalty will not be carried out.

Approaches to Extradition

Non-Inquiry:- United States

This approach places the power of extradition decisions solely in the hands of the executive branch rather than a nation’s judiciary. The Supreme Court in Neely v. Henkel, [16] established non-inquiry as the American approach to extradition requests from other countries. In Neeley, the defendant, Charles Neely, faced extradition from the U.S. to Cuba on a charge of embezzling more than $10,000. Neely pressed the argument stating that the American statute governing extradition did not guarantee him all of the rights, privileges and immunities which are guaranteed under the U.S. Constitution. Neely further argued that he would not receive a fair trial if he were to be extradited to Cuba. The Court rejected Neely’s arguments and spelled out the principle of non-inquiry, stating that American citizens committing crimes in other countries must submit to their method of trial and punishment.

Non-inquiry was recently restated and reaffirmed in Ahmad v. Wigen. [17] Petitioner Mahmoud El-Abed Ahmad, a naturalized American citizen, filed for habeas corpus relief to stop his extradition to Israel after he was accused of attacking an Israeli bus. When faced with the prospect of Ahmad being mistreated by Israeli authorities if the extradition was granted, the Second Circuit Court of Appeals ruled that it was not the duty of the American court system to monitor the integrity of other nation’ courts.

Non-inquiry functions under the diplomatic theory that all countries will fully cooperate with each other; meaning, each country should strive to accommodate another country in returning fugitives without questions, for one day that country may need the favor returned. For such a liberal policy to work, non-inquiry relies on the assumption that the requesting country will give the criminal a fair trial.

The Judicial Inquiry Model: India and European countries

Judicial inquiry takes the opposite approach to extradition from non-inquiry: The judiciary asserts an active role in determining whether particular cases merit extradition. Since extradition cases are weighed on individual merits and are not decided in a per se manner, this approach naturally finds favor with those who support individual human rights. India as well as most of the European countries tends to apply the judicial inquiry model in extradition cases. [18] In 1960, the Second Circuit considered abandoning the non-inquiry approach in favor of a judicial inquiry model in Gallina v. Fraser. [19] The court, in dictum, stated that it did not fully agree with an absolute rule of non-inquiry.

Countries that choose the judicial inquiry model routinely inquire into the requesting country’s judicial procedure and methods of punishment. In India under section 4 of the Extradition Act, 1962, a requisition for the surrender of a fugitive criminal state can be made to the central government. Under section 5 of the same Act if the government thinks fit can, may order for a magisterial enquiry. And it is only after the magistrate under subsection 4 of section 7 is of the opinion that a prima facie case is made out he may await the fugitive to prison to await the orders of the central government. [20] 

International Diplomacy

What is it?

Diplomacy was invented when the earliest human societies decided it was better to hear the message than eat the messenger. Over time and in all societies sanctity had been attached to the messenger (ambassador). [21]  The first civilization to develop an orderly system of diplomacy was that of ancient Greece. Ambassadors and special missions were sent from city to city to deliver messages and warnings, to transfer gifts, and to plead the cases of their own people before the rulers of other city-states. Nevertheless, these diplomatic missions were occasional and periodic. [22] 

Diplomacy in general connotation is the art or practice of conducting international relations, as in negotiating alliances, treaties, and agreements. [23] Diplomacy is also an art of conducting relationships for gain without conflict. It is the chief instrument of foreign policy. Its methods include secret negotiation by accredited envoys (though political leaders also negotiate) and international agreements and laws. Its use predates recorded history.

Diplomacy is also defined as “the ordered conduct of relations between one group of human beings and another group alien to themselves." [24]   The primary purpose of diplomacy is communications, and the ultimate goal of diplomacy is peace. 

Diplomatic agents perform diplomacy as a function and those functions are determined by the rules of International Law and also the Municipal Laws of the States. Vienna Convention under Article 3(1) [25] lays down the various functions of the diplomatic agents:

Representation- they represent the state by which they are sent in the state where they are accredited.

Protection-they protect the interest of sending states and also of its nationals.

Negotiation- This is the most important function, which the Diplomatic Agents perform. They negotiate on various aspects on behalf of the represented state to which they are accredited.

Observation- they are also required to observe those happenings and events, which takes, place in the state they are accredited.

Promotion of Friendly relations- they are required to promote friendly relations between the two states.

Tools of Diplomacy

There are analysts who believe that Third World dependence on United States trade, security, or economic aid renders these countries subservient to United States demands. [26] At times, the United States has also been able to negotiate a settlement after the apprehension, thus preventing the offended country from protesting the action. For example, the United States has granted extradition of the abductors to the offended state. [27] 

Now as Negotiations have been identified as one of the major functions of Diplomacy we also need to look into the factors, which influence such negotiations in relation to extradition of fugitive criminals. A few tools, which are often used in such negotiations, are (1) Sanctions, [28] (2) Assurance, [29] etc.

Sanctions involve one party attempting to change another party’s behavior without the use of weapons or the military. Sanctions range from travel bans and arms embargoes, to complete trade bans. Sanctions sometimes are referred to as “coercive diplomacy." [30] 

The Interplay between Extradition and Diplomacy

International extradition occurs when a person suspected of committing a crime in one country (the requesting country) but who is found in another country (the host country) is surrendered through diplomatic means for trial or punishment in the requesting country. [31] 

Throughout its existence, extradition has fluctuated between the blurry line separating international law and diplomacy. Extradition agreements originally grew out of peace and alliance treaties, where the return of one sovereign's criminals was a sign of friendship and co-operation, not duty. [32] From its earliest usages, extradition has existed within the rubrics of both international law and diplomacy. [33] 

Extradition proceedings, albeit grounded in legal terms, are often resolved in accordance with political considerations. The requesting state has a legitimate interest in ensuring that crimes committed on its soil are punished according to its law. [34] In at least some instances, a fugitive from one free community, welcomed in another free community, would be sought for extradition by the first community. Moreover, while the second community might have an extradition treaty with the first, the treaty might not cover the behavior in question.

The interplay can also be understood in the Marian Nash Leich, [35] where they have admitted that despite the existence of INTERPOL, legal attachés agents, and other law enforcement international contacts, the extradition process must be conducted through diplomatic channels. Except in the case of dependent areas, small posts, or posts where the regularity of extraditions so requires, diplomatic representatives shall be responsible for extradition.

The extradition process always involves two states and in cases where they do not have any Extradition treaty, it depends upon their negotiations which are always influenced by their respective bargaining strength or power. Of all the factors that make for the power of a nation, the most important, however unstable, is its quality of Diplomacy and the nation’s backing which further strengthens the Diplomatic moves.

The interplay between the two can be clearly understood by looking into the case of Lauck. [36] Which suggests that Denmark’s extradition of Lauck may exemplify a new trend in extradition, which, if carried to its logical conclusion, would suggest that extradition has returned to solely a diplomatic concern, merely keeping its legal facade as a means of justification? His extradition to Germany illuminates the devaluation of international legal extradition standards, namely:

Reciprocity

Double Criminality

Political Offenses

Specialty

For centuries, extradition has provided the preferred procedural means for enforcing domestic criminal law beyond a nation's jurisdictional limits. Even though bilateral and multilateral treaties establish its existence, extradition is actually a product of diplomacy and foreign relations. This interrelationship can also be witnessed in the Report of the Review of the Office of International Affairs' Role in the International Extradition of Fugitives, [37] were they state that As the U.S. government's central point of contact in the extradition process, (Office of International Affairs) OIA's role combines both criminal justice responsibilities and international diplomacy.

In addition, because European countries do not follow the non-inquiry process in extradition, the U.S. is essentially practicing unreciprocated diplomacy with European nations. The Current American-European Compromise and Argument U.S. law enforcement officials use assurances in retrieving fugitives from foreign nations that refuse to extradite because of differences in legal opinions. To make an assurance, a representative from the requesting country promises the country holding the fugitive that if the fugitive is extradited, the requesting country will conform to the holding country's requests.

Judicial Stand on Diplomatic Extradition

One case in particular exhibits how the extradition battle over fugitives can cause foreign relations between the U.S. and other nations to deteriorate. In 1997, Benjamin Sheinbein was suspected of the killing and gruesome dismemberment of an acquaintance in Maryland. [38] Sheinbein fled to Israel three days after the body was found. Because Israeli law forbids extradition of any of its citizens for any crime, Sheinbein argued that he was an Israeli citizen. Israeli courts refused to grant his extradition to the U.S. The American government fiercely responded to the extradition refusal. Robert Livingston, Chair to the U.S. House of Representatives Appropriations Committee, for instance, threatened to cut off Israel's $3 billion American aid package unless Sheinbein was extradited to the U.S. Secretary of State Madeleine Albright personally contacted Israeli Prime Minister Benjamin Netanyahu and asked for his maximum cooperation with extraditing Sheinbein. These efforts were for the murder of a single person.

In another recent case, the U.S. gave assurances that it would sacrifice the normal path of justice in order to retrieve a highly sought-after fugitive. That fugitive, James Charles Kopp, murdered New York abortion doctor Barnett Slepian in 1998 and was one of the FBI's ten most wanted persons for over two years. Kopp killed Slepian with a gunshot that pierced through Slepian's kitchen window at his home in Amherst, New York. Authorities caught Kopp after a two-and-a-half-year manhunt that finally ended in Dinan, France. American authorities requested extradition but were refused due to Kopp's possible death penalty sentence under the Freedom of Access to Clinic Entrances Act. The U.S. Ambassador in Paris originally gave assurances that American authorities would not seek the death penalty; however, the French court distrusted the assurances, forcing U.S. Attorney General John Ashcroft to deliver an unprecedented direct assurance. Kopp lost his final appeal in France's highest court, the Conseil d'Etat, and was extradited to the U.S. in June 2002. In March 2003, Kopp was tried in Buffalo, New York and convicted of second degree murder. [39] 

Assurances, while ultimately an effective means to retrieve fugitives, require the U.S. to concede to foreign pressure and alter its normal prosecutorial procedures.

Extradition with Reference to Ottavio Quattrocchi

The Bofors commission Bribery case was a major corruption scandal in India in the 1980s; several Indian politicians, including then Prime Minister Rajiv Gandhi, were accused of receiving kickbacks from Bofors AB for winning a bid to supply India's 155 mm field howitzer. [40] The scale of the corruption was far worse than any that India had seen before, and directly led to the defeat of Gandhi's ruling Indian National Congress party in the November 1989 elections. Ten years later (1999), the Central Bureau of Investigation (CBI) named Quattrocchi in a charge-sheet as the conduit for the Bofors bribe. The case came to light during Vishwanath Pratap Singh's tenure as defense minister, and was revealed through investigative journalism by Chitra Subramaniam and N. Ram of the newspapers the Indian Express and The Hindu. [41] 

During 1986-93, the Italian fugitive was in India but was never put to any questioning as Quattrocchi was reportedly close to the family of Prime Minister Rajiv Gandhi [42] and emerged as a powerful broker in the 1980s between big businesses and the Indian government. He left India for Malaysia during the tenure of P.V. Narasimha Rao as the premier of India. Since 1993 he stayed in Malaysia where the Interpol issued a Red Corner Notice in 1997. The extradition case by India was dismissed by the Malaysian Sessions Court in Kuala Lumpur in 2002, followed by dismissal of appeals in the Malaysian High Court and finally rejected by the Malaysian Court of Appeal on March 31, 2004. Eventually, the Delhi High Court in February 2004 and May 2005 quashed proceedings against the co-accused of Quattrocchi in the Bofors scam.

In December 2005, the B. Datta, the additional solicitor general of India, acting on behalf of the Indian Government and the CBI, requested the British Government that two British bank accounts of Ottavio Quattrocchi be de-frozen on the grounds of insufficient evidence to link these accounts to the Bofors payoff. [43] The two accounts, containing € 3 million and $1 million, had been frozen in 2003 by a high court order by request of the Indian government. The accounts were de-frozen on January 11, 2006. However, on January 16, the Indian Supreme Court directed the Indian government to ensure that Ottavio Quattrocchi did not withdraw money from the two bank accounts in London. The CBI (the Indian Federal law enforcement agency), on January 23, 2006 admitted that roughly Rs 21 crore, about USD $4.6 million, in the two accounts have already been withdrawn. The British Government released the funds based on a request by the Indian Government. However, on January 16, 2006, CBI claimed in an affidavit filed before the Supreme Court that they were still pursuing extradition orders for Ottavio Quattrocchi. The Interpol, at the request of the CBI, has a long standing red corner notice to arrest Quattrocchi.

Quattrocchi was detained in Argentina on 6 February 2007, but the news of his detention was released by the CBI only on 23 February, stoking claims that it may have been suppressed by the ruling Congress government because of state elections. On February 26, Quattrocchi was released by Argentinean police. [44] However, his passport was impounded and he was not allowed to leave the country.

A question has been raised about the existence of an Extradition Treaty between India and Argentina. An Extradition Treaty of 1889 between the United Kingdom of Great Britain & Ireland and the Argentine Republic was applicable to British India. However, post Indian independence and following the enactment of The Extradition Act 1962 by the Indian Parliament, the Treaty of 1889 is not operative since it was not notified in accordance with Section 3, clause (3) of the Act, after having obtained the consent of the Government of the Argentine Republic. Thus, as there was no extradition treaty between India and Argentina, this case was presented in the Argentine Supreme Court. The government of India lost the extradition case as the government of India did not provide a key court order which was the basis of Quattrocchi's arrest. In the aftermath, the government did not appeal this decision owing delays in securing an official English translation of the court's decision. The Italian businessman no longer figures in the CBI's list of wanted persons and in April 2009, the 12-year Interpol red corner notice against the lone surviving suspect in the Bofors payoff case has been withdrawn from the agency’s website after the CBI’s appeal. [45] Recently when Income Tax Tribunal claimed that kickbacks were paid to Quattrocchi and Win Chadha in the Bofors deal because of which India had to pay almost Rs. 160 crore extra for the guns, [46] Arun Jaitley raised the ever unanswered question “why was Quattrocchi paid the money?"

Concluding Observations

Extradition though in theory appears to be a step in Justice Delivery process involving the delivery of an accused/convicted individual to the state on whose territory the alleged crime has taken place/he has been convicted of a crime, by the state on whose territory the alleged criminal happens to be residing for the time being, however in practice it is very much influenced by the international Diplomacy. This is an area where political considerations play a prominent role, unless there is an applicable bilateral extradition treaty. The process of extradition usually involves interposition of the Judiciary in both countries.

The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained. Further the matter become complex in the Countries where the final decision of extradition lies with the national executive (prime minister, president or equivalent). These may significantly slow down the procedures or can even make the execution of the fugitive hopeless. In the context of extradition, where individual liberties and international diplomacy sometimes collide, the rationale underlying notions of due process and the doctrine of the separation of powers merge: An individual’s rights should not be sacrificed to the whims or needs of politics without an adequate adjudication of the matter.