The Human Rights Movement had a very powerful impact in terms of international law and international relations after the Second World War. The urgent awareness toward human rights ideology is due to the development of the jurisprudence of human rights which impacts the domain of extradition.
In recent years, international laws and relations turn their attention to extradition. Both transnational and international crimes are increasing on a regular basis. There are treaties, acts and judicial decisions of extradition. The countries are trying to build up a good relationship with other countries and in creating those relations extradition is one of the most important factors if we talk about international laws. The term extradition means that it is the act of one governmental authority formally turning over an alleged criminal to another governmental authority for prosecution for a criminal charge. Generally, extradition happens between two states and nations. The international community is creating bilateral ties and multilateral treaties to promote mutual assistance and extradition. Uncertainly there is a problem between the claim for the inclusion of human rights in the extradition process and the demand for more international cooperation and this creates tension for the law and order that is prevailing in the society.
Relation of Human Right and Extradition
In any country, human rights are considered to be the most important part of law and order and it should be respected. The extradition laws have not violated human rights. And it does not escape obligations placed by the human rights on states while dealing with the liberties of the individuals. There are many challenges faced by the country that ask for the extradition of any person from another country, it involves a lot of inquiry and investigation and after that the test of individuals’ human rights. Sometimes there is a lot of controversy between the countries on the issue of extradition like in the case of South Africa and Botswana when they are dealing with extradition cases where death plenty involves. If we talk about a country like India, there is a lot of controversy in cases of extradition. India has an extradition treaty with the UK and since 2002 we have asked for 28 people to extradite but they only give the custody of one fugitive. The extradition involves a lot of things and the UK have a complex law related to it. But the most important aspect is that after considering a person they look for person’s human rights interest and it is in the hands of the judge to decide that case. But here the questions arise do extradition laws infringe human rights or not? And even if it does then what are the difficulties in applying the human rights to extradition law? These are the things that a country looks into while dealing with cases of extradition with human rights.
Invoking individuals’ human rights in the cases of extradition gives rise to several difficulties, like sometimes the human rights principles exist outside the domestic laws and extradition treaty signed by the counties. A number of difficulties raise, one difficulty is that when a person claims or raises human rights concern, the courts of the respected state are requested to look into the matters and inquire about the standard of criminal justice that a person will be subjected to in the particular state. These judicial inquiries tend to harm state relationships with other countries because it is said that the inquiry is actually conducted by the executive rather than the judiciary and it seems very unreasonable and therefore the relationship between the countries turns out to be unfriendly. The judiciary is also said inappropriate to find the truth about conditions overseas and it causes a lack in the investigation because now the human rights abuses come in picture.
Since the end of the second World War, human rights have become the most prominent aspect of international as well as domestic laws. The United Nations is formed after the Second World War with the aim to preserve international peace and security and protect human rights in the light of natural law. After that, a lot of treaty has been signed and in the year 1948 an international agreement concluded, the declaration of Human Rights.
Individual Role in Principle of Extradition
The criminal justice system is one of the fields where the rights of individuals are at stake and because of this human right has great significance in this area. To protect human rights through the criminal justice delivery system is the important feature of any system which is governed by the rule of law. Criminal law always tries to first protect human rights. The criminal justice system in a democratic society with the rule of law is difficult to manage proper balance and sometimes it conflicts interests. State power and individual liberty, and sets out the minimum guarantees that States must observe throughout their criminal justice process. (the UN Human Rights instruments regarding the administration of justice in the Criminal Justice System include, Declaration of Basic Principles of Justice for Victims of Crime and the Abuse of Power (1985))
Extradition is also a tool which facilitates the administration of criminal justice and when dealing human right of a person come because extradition involves the surrender of a person, from one nation to another, it has been accused or convicted of an offense outside the territory and thereby exposes to the concerned individual of another country for the administration of criminal justice.
The individuals who are come under the extradition process have been enjoying minimal protection because of putting limitations on state power to protect the human rights of that individual such as the rule of specialty, double jeopardy, dual criminality, and the political offense exception.
Modern Laws on Extradition that deal with Human Right
There is no standard rule in international law that deals with extradition and also compatible with human rights norms. On the other side, there is no bar for human rights to come into considerations with the extradition process. So, the State also makes various extradition treaties that deal with human rights. One of the important clauses is that extradition should not be granted for the purpose of punishing any person on the basis of their race, religion, nationality or political opinions. Another provision excludes extradition where many states abolish the death penalty and are unwilling to provide assurances that this penalty will not be implemented if the fugitive is extradited. Another provision allows the state to refuse extradition if any person might be subjected to torture. At some certain extent, these clauses have helped to overcome the limitations that are inherent in the traditional law developed by extradition law.
Multilateral treaties also have begun to deal with the violations of human rights as a ground for refusing the extradition such as: –
The 1957 European Convention on Extradition (Adopted on 13th Dec 1957, 359 UNTS 273) which deal with the provisions that exclude extradition when the state is unwilling to provide the assurance that the death penalty will not be imposed if any person is extradited (U.N. Model Treaty, 1990, Art 11).
The 1990 United Nations Model Treaty on Extradition (14th Dec 1990, GA/45/116) which excludes extradition if there are some grounds to believe that prosecute or punish a person is on the basis of that person’s race, religion, nationality, ethnic origin, political opinion, sex or status (Art 3(b), U.N. Model Treaty, 1990) or if any person would be subjected to any type of torture or cruel, inhuman or degrading punishment (Art 3(f), U.N. Model Treaty, 1990)
Model Law on Extradition, 2004 which deal with some exceptions to extradition which are provided under the model law as this law tries to protect the human right of fugitive criminals. They are, Offences of Political Nature, Discrimination clause, Torture, Cruel, Inhuman or Degrading Treatment or Punishment, Fair trial standards-Judgement in absentia-Extraordinary or ad hoc court or tribunal, Ne bis in idem, Statute of limitation, Military offenses, Nationality, the Death penalty.
“The views of the authors are personal“
Frequently Asked Questions
When did the Extradition start?
Extradition is regulating within the countries by the extradition laws or acts between countries by diplomatic treaties. First Act for the extradition laws was adopted in 1833 by Belgium which also passed the first law on right to asylum.
How many countries have extradition treaties with India?
India signed the extradition treaty with 47 countries like the US, UAE, UK, Canada, Germany, Nepal, Bangladesh, Denmark, South Africa, France. India has signed an extradition treaty with the UK in on1993 and released Vijay Mallya on bail with the extradition request.