This article is written by Seep Gupta, a student at the Institute of Law, Jiwaji University. This is an exhaustive article which deals with the law of Rendition and Extradition.
Table of Contents
Introduction
As complex as they sound, both rendition and extradition are the two sides of the same coin. Their names sound so heavy and full of technicalities but in reality, they are not as complex as we are making them. This article will explain the meaning, concept, differences, and legality of both rendition and extradition under English law. Without making it the mountain of the molehill, let’s decipher both of these concepts one by one.
Meaning of rendition and extraction
Extradition is nothing but it is the transfer of a suspected criminal (who hasn’t been pronounced or declared as a convicted criminal under the court of law) from one foreign state to another foreign state requesting him for criminal adjudication. Extradition is based on the bilateral and multilateral treaties with the country to which the criminal is being deported. It can be thus claimed as a mutual and legal relationship between two countries for a better and convenient criminal trial. The advantage of extradition treaties is that they are mutually cooperative and based on mutual reciprocity. Generally, the extradition method is used for pretty serious offences such as terrorism and drug crimes. We should bear one thing in mind that for the extradition of a criminal an act should be an offence according to the penal law in both the countries (between the requesting and requested state). It is not for a political offence. However, since the last decade, some human rights organisations and international treaties have declared extradition as against the breach of human rights.
Rendition is nothing but it is the transfer of a foreign criminal from one foreign state to another for interrogation and detention. Extradition is a type of rendition. Rendition is an umbrella term. Extradition is a mere part of it. Rendition can also be seen as a request of handing over after extradition has taken place. Rendition can also be seen as an act of handing over or rendering such as rendering any justice or any criminal person. However, Extraordinary or irregular rendition is entirely a different concept from that of rendition. Extraordinary rendition is an illegal rendition that is done illegally without following any procedure of law. However, this practice has been criticised by many human rights authorities.
Meaning in English law
According to English common law, rendition is nothing but the handling over a suspected criminal or surrender of an absconder or a fugitive from one state to another complying with all the necessary national and international procedural laws. A common example of rendition is the extradition of a suspected criminal from one country to another to face trial in that country. It is one of the primary examples of lawful rendition. Illegal or extraordinary rendition is the illegal transfer of a suspected criminal to its home country where the criminal is further harassed and tortured by the concerned authorities without any laws related to it. The most common cause of illegal rendition is terror suspects are arrested by the CIA (Central Intelligence Agency) and later they are transferred and flown to another country mainly the suspect’s home country where they are vulnerable and subjected to illegal and undue beating and torture. This practice is also known as, “Torture by Proxy”. It is also because the receiving states do not have proper procedural laws and regulations that can control or strictly prohibit torture and oppression.
Since the 1980s, there has been a remarkable increase in the cases of illegal rendition especially for terrorist suspects and foreign criminals. This gives the USA an edge to torture and oppresses the foreign defendants by transferring them to the state where laws concerning torture and oppression do not apply. However, the United Kingdom is aware of the grave illegal rendition cases that have happened over the years in the United States.
Meaning in United States law
Extradition comes into the picture when a person who commits a crime flees the state. Any person charged with a federal crime can be moved from one state to another state without any extradition practice. Article IV of Section 2, of the US Constitution, provides that the state to which the criminal has fled and charged with the crime must be removed from that state and must be transferred to the state which has jurisdiction of the crime. Most states in the USA follow the norms and procedures strictly which are laid in the Uniform Extradition Act, 1937.
Extradition from one state to another state can only take place with the permission of the governor of that state. In some cases, the extradition goes beyond the procedural formalities. But these cases are very rare. Extradition between two countries is also done in the same way. It is usually based on the treaty between the two countries, one who is requesting the criminal and the other in which the fugitive criminal is charged with the crime. The United States of America has entered into extradition treaties with many countries such as Europe, Latin America, and a few countries in Africa and Asia. Some treaties provide extradition for most of the crimes while some don’t. Extradition with a specific country depends on the terms and conditions of the treaty that is signed with that particular country. Extradition treaties provide certain exceptions under which a nation can refuse to surrender a fugitive criminal. This generally involves the offences of political nature such as treason, sedition, and espionage.
Differences between rendition and extradition
A rendition is an act of rendering or handling a suspected and foreign criminal to the receiving state. Extradition is a legal proceeding where a court decides whether the criminal should be handed over to the receiving state or not. Rendition for most of the purposes is the same as extradition.
Rendition is the transfer of a detained person while extra-ordinary or irregular rendition means the illegal transfer of a foreign defendant at a place especially for subjecting him to torture and harassment. Rendition works under the ambit of procedural laws and within the legality of law and order. While illegal rendition works outside the scope of the law.
Rendition brings the suspect to the state court while extra-ordinary or irregular rendition doesn’t. Rendition is a noun while extradition is a verb that involves the action taken by the authorities of one country to transfer the suspected criminal to another jurisdiction. It contains other legal aspects too, involving the transfer of the physical custody of the suspected foreign defendant.
Extradition and rendition operation bilateral treaties under international law
The United Kingdom has signed various treaties of extradition with many countries. One such treaty that the United Kingdom entered was with India in 1992. However, between the period of 1992-2016 one fugitive was extradited from the United Kingdom to India. However, India has made at least 23 extradition requests with the United Kingdom.
The Extradition Treaty of 22nd September 1992
This treaty was signed on 22nd September 1992 and was ratified on 15th November 1993. It was signed between India and the United Kingdom. It provides that both of the countries have the right to perform extradition operations under the conduct and that under the laws of both of the countries it is punishable for one year. The important thing is to be noted that the extradition operation can only be performed if any specific offence is punishable in both of the countries. However, it does not include the extradition of its nationals. The extradition however can be refused on two grounds. First is if the offence is political and second if the requesting state carries the punishment of the death penalty for that particular offence.
Treaty of Extradition between the United States of America and the Kingdom of Albania
This treaty was signed on March 1st, 1933, and was ratified on February 2nd, 1934. This treaty was concluded to transfer fugitive extradited criminals from the United States of America to the Kingdom of Albania It includes the inventory of more than two dozen criminals including murder, rape, arson, and burglary. It is also provided in the treaty that the surrender of the criminal should only take place after the evidence of their criminality. It is given in Article I of the treaty. According to Article II of the treaty, fugitive criminals should be delivered according to the provisions that are depicted in the treaty.
Italy-UAE new Extradition Treaty
The treaty between Italy and the United Arab Emirates was approved by the Senate on October 3rd, 2018. It will allow Italy to request the extradition of nine fugitive criminals that are included in a plethora of crimes such as mafia association, money laundering, drug trafficking, and tax fraud. This treaty between the United Arab Emirates and Italy will now legally allow both of the countries to extradite fugitive criminals from both countries.
Present scenario of rendition and extraction according to human rights point of view
According to Amnesty International (which is a London-based international organisation that specifically works and checks human rights violations within the world) some victims of rendition operations have disappeared and later turned on in the custody of US officials. According to the CIA, covert aircraft which were leased by the front companies were used by the USA officials to transfer the fugitive to the middle eastern countries such as Egypt, Jordan, Morocco, Saudi Arabia, and Pakistan. Most of these middle eastern states to which these fugitive criminals are usually transferred are known to inflict torture cruelty and other forms of ill-treatment during interrogation. These countries usually do not have any procedure and law which curbs the subjection of ill-treatment and cruelty during the interrogations. It is also known that these detainees are also threatened by the USA officials that they will be forcibly transferred to other states.
According to Amnesty organisation, these rendition operations are illegal because they bypass proper judicial and administrative laws and do not usually include extradition practices. However, the USA believes that these renditions operations are carried out following US law, treaty obligations, and under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. USA officials deny transferring any detainee forcibly or any type of interrogation that involves torture.
Extraordinary renditions are sheer hybrid human rights violations that include forceful disappearance, an undue amount of torture, denial of access to concerned judicial authorities, lack of proper investigation, inaccessibility of impartial tribunals. It includes state-sponsored abuse that involves the forceful and illegal transfer of the fugitive criminal that does not include any use of morality and proper procedural laws. Governments of the countries usually shield their authorities and conceal it by projecting that the criminal has disappeared and they usually play coy. They also gain the fact that the individual has ever been taken into custody. Extraordinary renditions are nothing but a very bad attempt to avoid international treaties and human rights treaties that say that it is illegal to use torture as a method for interrogation activities.
According to the reports, Sweden, Russia, and the USA have orchestrated the practice of extraordinary renditions. Several international treaties bar the illegal use of illegal force and subjection of cruelty and torture These treaties are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention and Protocol Relating to the Status of Refugees.
Landmark case laws
There are several landmark cases of extradition. Some of these are mentioned below:-
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Roman Polanski Case
This case is related to a very famous Hollywood director Roman Polanski who was charged with child sex and was roaming free dated back to the 70s. Many repeated attempts were made by the USA judicial authorities to have him extradited but all went futile. He was arrested in 2009 by the Swiss government. The Swiss authorities denied the extradition because of a lack of legal documents by the US authorities. In the present times, Polanski has successfully evaded extradition and has avoided all the countries which are having extradition agreements with the USA while successfully maintaining his image as a Hollywood director.
2. Adolf Eichmann Case
According to the reports, Eichmann was a SS (Schutzstaffel means political leaders in the German Nazi Party) official who was in charge of Jewish deportations in Europe during World War II (1939-1945). He had clandestinely lived in Argentina with a secret identity with the name ‘Clemens’ before he was officially found in 1960.
He was later tracked down by the Mossad which is the espionage and spy agency of Israel and was abducted and sent back to Israel. He was found guilty in the year 1961 and was hanged in the following year.
3. ‘El Chapo’ Guzman Case
Joaquin Guzman, a famous drug pin legend from Mexico who is known by its popular name, ‘El Chapo’ was recently extradited to the United States of America and was presented in the federal court. It was done according to the provisions which were given in the extradition treaty between the USA and Mexico. Guzman is the year 2015, escaped from the prison of Mexico. The federal court in the USA although did not pronounce the death penalty to the Guzman.
Conclusion
Hence, extradition is, therefore, a procedure for facilitating the convenient transfer of fugitive criminals. It is done according to the procedures and provisions given in the bilateral treaty between the two countries. Extraordinary rendition is however an illegal process that includes gross violation of Human Rights. Laws should be enacted to curb the illegal subjection of torture and illegal practices of extraordinary rendition.
References
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