1 of 100 DOCUMENTS
Copyright (c) 1999 Emory University School of Law
Emory International Law Review
Spring, 1999
13 Emory Int'l L. Rev. 77
LENGTH: 31543 words
ARTICLE: (NON-)EXTRADITION OF NATIONALS:
A NEVERENDING STORY?
Michael Plachta *
* Chair of Criminal Procedure, Gdansk University. The author wishes to thank Mrs. Sara Criscitelli, U.S.
Department of Justice, for her help in researching this Article.
SUMMARY:
... Moreover, while the international community and the international legal order have radically changed over the last
century, the content of this debate has not. ...
TEXT:
[*77]
Introduction
There is little exaggeration in asserting that the problems surrounding the non-extradition of nationals are as old as
extradition itself. Its origin can be traced to ancient times. Whether consistently or not, the practice of refusing to
surrender one's nationals has been maintained by many countries for centuries. Notwithstanding all of the convincing
arguments against it, as well as the proposals to modify states' policies with respect to this form of international
cooperation in criminal matters, there is nothing to indicate that it will soon be abandoned. Most states seem to be
unmoved by the compelling arguments proposed by international criminal law scholars in favor of relaxing the strict
prohibition of the extradition of nationals by either allowing a "conditional surrender" or even a total departure from this
practice.
The controversies regarding the nationality of the requested person as grounds for refusing to extradite range from
the scope of the rule's application ratione personae, n1 to the validity of its justification, and finally to the rule's status
in international law. As for the status of the rule in international law, some scholars argue that the non-extradition of
nationals is not a universally recognized principle of international law, n2 while others believe that, at [*78] least
in civil law jurisdictions, this concept has been elevated to a rule of international law. n3 The latter view was
endorsed by the Austrian Supreme Court in 1961:
It may ... be observed that in criminal matters there is a generally recognized rule of international law (Article 9 of the
Federal Constitution) that a State's own nationals must never be extradited to another state in whose territory they have
committed a criminal offence. n4
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Interestingly, each and every question pertaining to this problem is extremely sensitive and controversial, whether it
concerns one of the issues just mentioned or whether it concerns the character (mandatory or optional) of the refusal to
extradite one's nationals, the treaty stipulations and legislative pronouncements in which this rule appears, or the date on
which the fugitive offender's nationality - a possible bar to extradition - is assessed by the requested state authorities.
n5 Truly, since the nineteenth century the principle has evolved from a mere rule of custom to an emotionally charged
conviction, despite strong opposition originating mainly, although not exclusively, n6 from the common law [*79]
legal system, where the rule is perceived as a "creature of national distrust, a relic of a more primitive order of
civilization." n7
On many occasions, countries that oppose the extradition of their nationals have been called upon to reevaluate
their justifications for this rule, to reexamine its validity, and to reconsider their further adherence to this system. n8
However, even if not rejected outright, such demands have been almost completely ignored by the governments for
reasons relating to their domestic policy, political considerations, and sovereignty; their national interests clearly
outweigh any inter- or supranational ones. n9 Therefore, in sharp contrast to the considerable evolution over the last
few decades of almost all other forms of international cooperation in criminal matters, including extradition itself, the
gap between the two approaches to the problem of surrendering nationals has not been closed. A global trend in the
attitude toward the non-extradition of nationals is difficult to [*80] discern. Overall, the traditional stance against the
extradition of nationals has prevailed.
Given the recent developments in both international relationships and international criminal law, most notably the
establishment of two international criminal tribunals, one for Yugoslavia and the other for Rwanda, followed by the
work to create a permanent international criminal court, the question arises as to whether the rule of non-extradition of
nationals should be challenged again. Should it be abandoned altogether, or would a mere concession to the opposite
principle be sufficient? This Article seeks to answer this and other relevant questions through the examination of the
origin and development of the rule of non-extradition of nationals in Part I and the validity of its justification in Part II.
Two dominant approaches (along with their variants) will be considered in Part III. In addition, the non-extradition of
nationals will be analyzed in the context of human and constitutional rights in Part IV. Finally, in Part V, an inquiry will
be made into the possible solutions to the problem of negative effects produced by the policies of civil law countries
that refuse to surrender their citizens. Given the history, development, and rationale of the rule, this Article concludes
by asserting that, although a "frontal attack" against the non-extradition of nationals is not promising, there are other
ways to escape from the stalemate it creates.
I. Origin and Development
Although there is ample evidence of the practice of non-extradition of nationals in ancient times, n10 an examination
of the pertinent documents warrants caution, or even re [*81] serve, due to their diametrically different ideas of
statehood, sovereignty, law, and the relationship between a government and its subjects. These concepts contributed to
the doctrine of extradition as it was then understood. Specifically, extradition was more a matter of grace than of
obligation. Moreover, given the hostility between nations and tribes, as well as disparities in levels of civilization, the
surrender of a subject to a foreign state was in many situations tantamount to permanent exile, if not death. n11
Therefore, any conclusions drawn from ancient times regarding the justification of the rule of non-extradition of
nationals must take this into account.
In ancient Greece, instead of surrendering citizens, the competent authorities exercised jurisdiction forum patriae
over the offender. n12 In ancient Rome, purely national law precluded the extradition of citizens to foreign states;
n13 based on a treaty, however, extradition was possible under very exceptional circumstances. n14 Among the
Italian city-states, the practice varied, but to the extent that extradition was based on the statutory interpretation
elaborated by post-glossators, the extradition of nationals was allowed and encouraged due to the exclusive jurisdiction
of the forum loci delicti commissi. n15 The practice of mutual surrender of offenders, including the transfer of
prisoners, was facilitated not only by geographic proximity, but also by cultural, economic, social, and legal similarities
- a tenet that is reflected in the contemporary practice between some closely linked countries, such as the Nordic states.
[*82] The modern practice of non-extradition of nationals dates back to medieval times, and it is rooted in the
relationship between the feudal ruler and his subjects. While the former owed protection to his "subditos" for their
allegiance, work, and contribution to his wealth and power, the latter were entitled to the "ius de non evocando," the
right not to be withdrawn from the jurisdiction of their local courts. Thus, the "Treupflicht" n16 was a corollary of the
ius de non evocando. The latter was formulated as a privilege that was given by the ruler in a special decree, called a
"Bull." The first Bull may have been issued in 1290 by the German Kaiser for the inhabitants of M<um u>hlhausen.
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n17 However, the best known privilegium de non evocando was granted in the Golden Brabantine Bull to the Lothars
who resided in Brabant and Limburg in 1349. n18 Unfortunately, through repression and excessive fines, that
privilege was gradually abused. n19
The continental practice developed under the predominant influence of France. In 1736, France and the Netherlands
adopted reciprocal arrangements that were extensions of the provisions of the Brabantine Bull. n20 However,
between 1765 and 1834, French treaty practice demonstrated a flexible approach to the extradition of nationals, which
reflected a wide variety of political and practical considerations. n21 For example, while France in 1765 concluded an
extradition treaty with Spain that specifically applied to [*83] nationals, in 1777 France and the Helvetic League
agreed that each party would not deliver up its own citizens except for a crime "grave et public." n22 Even though
France is looked upon as the "cradle" of the rule of non-extradition of nationals, its extradition policy was extremely
unsettled until the 1830s or 1840s. In addition, there was also a disparity between the official pronouncements regarding
non-extradition of nationals and the practice thereof. In 1803, Mr. Jollivet declared in the Council of State that the
non-extradition of nationals was established by the universal usage of nations. n23 In 1811, Napoleon issued his
famous decree permitting the extradition of nationals. n24 This decree was supposed to have been abrogated by the
Constitutional Charter of 1814, but in 1820, J. Machon, a Frenchman, was delivered up for trial in Switzerland. n25
It was not before 1834 that a French extradition treaty clearly stated that French nationality was a bar to surrender.
n26 Since that date, however, French policy has been consistent for the most part. The only deviation from strict
adherence to the rule of non-extradition of nationals after 1834 occurred in 1843, when separate treaties concluded with
Great Britain and the United States provided for the extradition of "all persons" without exception. n27 The deviation
was more formal than substantive because no French national was ever surrendered under these treaties. n28
Well-established in French public law, the rule of non-extradition of nationals was purely a customary norm until
[*84] 1927, when the Extradition Law was adopted, providing that extradition cannot be granted when the requested
person is a French "ressortissant," that is, anyone who is subject to French sovereignty as a national, protege, or
inhabitant of a territory under mandate. n29
Notwithstanding some variants and modifications, the rule of non-extradition of nationals has developed along
similar lines in other European countries. Whether acting under treaties or on the basis of reciprocity, most European
countries adopted the rule by the middle of the nineteenth century; the rule has persisted in Europe and has spread to
Latin America. n30 With the exception of the Netherlands and a specific situation between the Nordic states, no
countries have abandoned the doctrine. Two more states should be mentioned in this context: Switzerland and Italy.
While the old Swiss Extradition Law of 1892 contained an absolute prohibition of the extradition of Swiss nationals, the
1981 Law on International Cooperation in Criminal Matters has made surrender possible on the condition that the
person gives his consent in writing. n31 In 1947, the Italian Constitution was amended to generally permit the
surrender of Italian nationals: "Extradition of a national shall be granted only where it is expressly provided for in an
international treaty." n32
[*85]
II. Rationale: A Thorny Issue
A. Methodological Issues
Justifying the rule of non-extradition of nationals presents several problems. First and foremost, the arguments
advanced in its favor developed in the nineteenth century, and some of them are based on an even earlier era. In
contemporary writing, no one has proposed a new rationale; the same is true with respect to the domestic legislative
practice in the last half of the twentieth century. Today's purported justification may be based, at best, on the
recapitulation of old arguments. n33 The rule is often formulated in a somewhat dogmatic style, without any
satisfactory basis of reasoning other than its mere existence. n34 Sometimes it is stated as a political axiom hardly
open to discussion. n35 Because modern legislators refrain from specifying reasons for maintaining this rule, those
who vehemently oppose it look much like Don Quixote fighting with a phantom; it is difficult to argue against
something that, first, has not been expressly nor clearly defined, and, second, that may or may not be tacitly accepted by
the opposite party. Typically, to make a case for the extradition of nationals, one must, somewhat arbitrarily, advance
the traditional reasons in favor of non-extradition, which presumably might have been considered valid if ever expressly
admitted by the governments, and then demonstrate that they are ill-founded, inadequate, or outdated. n36
state,
[*86] Worse still, given that arguments pro and con are rooted in the political, practical, and legal interests of a
n37 including the considerations of its domestic policy, there is no guarantee that both parties of the dispute
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follow the same methodological regime. As a result, while the arguments generally raised against this rule operate on an
international level and emanate from the notions of world legal order, fundamental justice, and the need to strengthen
the international solidarity and spirit of cooperation in the suppression of criminality, the counterarguments point almost
exclusively to the domestic matters of a state. An interesting question arises as to whether the paucity, or lack, of
arguments on one side can be compensated by arguments from the other. Finally, it may also be that the authority of the
doctrine that exempts a national from extradition resides less in the force of the arguments employed to justify it than in
the unanimity of international treaties that have accepted it. n38
B. Specific Arguments
In Great Britain, a Royal Commission was appointed in 1878 to inquire into all aspects of the law of extradition. n39
Lord Cockburn, who in the previous year had declared in court that the exception of nationals from the treaty with
Switzerland was a "blot upon the law," n40 was chairman of the Commission. The Commission summarized the
arguments in favor of exempting nationals as follows: first, a subject ought not to be withdrawn from his natural judges
(ius de non evocando); second, the state owes its citizens the protection of its laws (Treupflicht); third, it is impossible
to [*87] place entire confidence in the justice of a foreign country; and fourth, it is a serious disadvantage for a man
to be tried in a foreign language, and where he is separated from his friends and his resources and from those who could
bear witness to his previous life and character. n41
The Commission rejected these arguments and concluded that a person residing abroad owes obedience to the laws
of his country of residence - a consideration which overrides the arguments mentioned above. n42 This rationale was
later reflected in a ruling of the United States Supreme Court, where Justice Harlan, speaking for a majority of the
Court, stated authoritatively that the American citizenship of an offender grants him neither an immunity for offenses
committed abroad, nor a right to demand all of the procedural guarantees existing under the law of the United States:
When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such
modes of trial and to such modes of punishment as the laws of that country may prescribe for its own people, unless a
different mode be provided for by treaty stipulations between that country and the United States. n43
The rationale for exempting nationals from extradition rests on the notion that the offender is likely to receive ill
treatment or an unfair trial in the requesting state. n44 To that extent, it is discriminatory treatment that differenti
[*88] ates between nationals and non-nationals. n45 The justification of the rule of non-extradition of nationals
largely derives from a jealously guarded conception of national sovereignty, and it presupposes the existence of sharp
contrasts in the administration of criminal justice between states, resulting in potentially unfair treatment. However, as
Harvard Research in International Law pointed out, "if justice as administered in other States is not to be trusted, then
there should be no extradition at all." n46 Other arguments advanced against the surrender of a national are the
following: (1) fundamental right of asylum; (2) popular instinct of society; (3) disparity in domestic legal systems with
respect to both substantive law and procedure; and (4) potential for bias and prejudice against the surrendered person,
based solely on his foreign origin and nationality. n47
C. Liaison Intime Between a State and Its Subject: The Bottom Line?
The modern formulation of the ius de non evocando has its origin in France and was based on the declaration in Article
62 of the French Constitutional Charter of 1814 that "nul ne pouvra etre distrait de ses juges naturels." n48 Its in
[*89] terpretation among scholars and writers was not unanimous. n49 Specifically, it was unclear whether "juge
naturel" should be understood as "juge national." A powerful argument favoring this interpretation can be found in an
even earlier treaty stipulation adopted in the 1781 convention between the King of France and the Prince of Basel
regarding crimes committed on the frontiers of the two countries; its Article 2 provided:
In the case of a crime calling for corporal punishment [or capital punishment], the court of the place of the crime [(court
exercising jurisdiction ratione materiae)], after carrying the procedure to the point of definitive judgment, will transfer
the case to the natural judges of the accused who will pronounce the sentence according to the laws and ordinances of
their country. n50
Today, interpreting "juge naturel" as "juge national" is viewed more as a rule of good politics than as a rule of law.
n51
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There is considerable confusion regarding the role and significance of the "natural judge" as a motive for refusing
to extradite nationals. It seems that the misunderstanding has been caused by the failure to make a clear distinction
between the competence of courts of a given state to hold trial and the competence of the actual venue within the
territory of that state. Chronologically, one must first establish whether the domestic courts have jurisdiction over the
case before a specific court can claim competence. It is a universally recognized rule of criminal procedure that
jurisdiction belongs to the court loci delicti commissi. n52 The [*90] notion of the "natural judge" points to the
venue, rather than the national jurisdiction, n53 and in this sense it is similar to the origin of the jury of neighbors of
the accused in early English practice. They were both witnesses and representatives of the community. n54 Therefore,
it is very doubtful whether an extrapolation of this concept to the notion of a national judge is valid. From the point of
view of the administration of justice, the juge naturel is not the juge national. For instance, allowing the accused to
invoke a nationality exception to be judged in his home country, rather than the forum delicti, might lead to "unnatural"
results, where the determination of the truth is very difficult. n55 To summarize, the "natural judge" of the accused is
he who has jurisdiction ratione materiae.
If it is agreed that the reason for not surrendering nationals is a special relationship between them and their home
country, this is where the Treupflicht comes into play. This theory was developed and advanced by German writers,
although its meaning remains somewhat unclear. n56 Recently, it has been criticized for being devoid of any practical
significance. n57 This concept was not completely unknown in the common law countries. For example, in an
English case, the counsel for the extraditee argued, "As a British subject the prisoner owes allegiance to the Queen, in
return for which he is entitled to her protection, for nationality involves a "duplex ligamen.'" n58 On the other hand,
the rule of non-extradition of nationals may be perceived as a manifestation of "solidarite mal placee" between the state
and its citizens. n59
[*91] If there is a grain of truth in the assertion that the link between the requested state and its national may
justify non-extradition, then it will be difficult to agree upon the criterion, especially because the basis of such a link has
changed dramatically in the course of history. The problem is that both formal criteria (papers or documents stating
nationality) and material or substantive ones (domicile, work, business, family ties) n60 lead to unacceptable
consequences. The use of substantive criteria would mean that the same "protection" has to be granted to persons other
than nationals when they have genuine and long-standing ties to the requested state, while formal criteria might produce
an obvious absurdity, which the following hypothetical illustrates. Suppose that X acquired double nationality: State A
by ius soli and State B by ius sanguinis. X has lived in the territory of State A for some forty years and has never even
set foot on the soil of State B. However, after committing a fraud (together with several other persons based on a
sophisticated scheme), X fled to State B, whose passport he legally obtained. State A sought X's extradition, and State
B, which does not recognize multiple nationality, refused to extradite on the grounds that X is a national of State B. Due
to the nature of the offense and evidentiary considerations, the trial in State B was not feasible even though State B had
jurisdiction, the rule of mandatory prosecution applied, and StateB was eager to initiate criminal proceedings.
This case also illustrates that the rigidity of the traditional concept of non-extradition of nationals could produce
further undesirable effects. Assume that after some time X decided that he would like to return to his true home country
and that, consequently, he does not raise any objection [*92] to his surrender to State A; rather, he requests his
extradition. It turns out that he lacks standing in such a case, and his request cannot even be taken into account by the
executive. Consequently, as a national of the requested state, he cannot be delivered up - whether with his consent or
without it - unless, of course, State B happens to be Switzerland, whose 1981 Law on International Cooperation in
Criminal Matters allows the surrender of nationals with their written consent. n61 Switzerland's flexible solution
warrants serious consideration by other countries.
III. Approaches: An Irreconcilable Disparity?
A. Differing Perspectives on Sovereignty and the Status of Citizens
The role of nationality in extradition is one of the issues that illustrates an almost bottomless precipice between
common law and civil law countries. Moreover, while the international community and the international legal order
have radically changed over the last century, the content of this debate has not. Let us compare the proceedings of the
meeting of the Institute of International Law at Oxford in 1880 n62 with the documentation of the 1989 International
Conference on Extradition in Siracusa, Italy. n63 The starting point for the participants at both gatherings was the
international community's distinct extradition practices: the vast majority of states that refuse to surrender their
nationals and the minority of states that extradite their nationals. n64 At both meetings, the rule of non-extradition
was [*93] challenged and criticized for being incompatible with the fundamental premises of justice and extradition.
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One could sense some reticence founded on an unenthusiastic acceptance of the status quo. Nevertheless, Resolution
VIII, adopted at the Oxford meeting, called upon states to abandon their policy of non-extradition, n65 while the
participants at the Siracusa conference showed an inclination to give a restrictive reading to the nationality exception.
n66
An analysis of the role of national dignity in the context of extradition demonstrates the fundamental differences in
the two approaches to surrendering nationals. In nineteenth century Europe, it was argued that such a surrender
constituted an indignity to the State. For example, in 1881, the commission appointed by the Italian government to
report on extradition concluded that the rule against the surrender of nationals was required because Italy
owes protection to its sons, and cannot abandon them to their lot, if charged with crime, to the mercy of foreign law and
judges. The national dignity cannot consent that a citizen, a member of the state, should be compelled to bow his head
in obedience to the commands of a foreign authority. n67
A direct response to this statement can be found in an opinion handed down by Lord Cockburn, who addressed this
issue from the perspective of the common law:
[*94]
I do not see any loss of dignity, of national greatness, or character, where crimes are committed by our own subjects in a
foreign state, if we give them up when that state requires the surrender of them for the purpose of justice, because it can
be better done there than here. n68
It is only through the most tenuous and artificial reasoning process that one can reach the conclusion that the surrender
of an offending national for trial in the proper foreign tribunal amounts to a national indignity. n69
How the requested state views the person sought is also instructive in explaining the disparity between common
law and civil law countries. In civil law jurisdictions, the state's authorities consider the national, based on the
Treupflicht theory, as their compatriot. In common law jurisdictions, the opposite seems to be true, as a 1968
declaration by the Chairman of the English House of Commons indicates: "We don't feel outraged honour at the thought
of delivering an Englishman into the hands of foreign judges. He is first of all a criminal and only after that an
Englishman." n70
B. Common Law Countries
Two features of extradition practice in common law countries have bearing on the policy of surrender of nationals: (1)
reciprocity and (2) the treaty requirement. This explains why treaty stipulations have such profound influence on
extradition practice. The problem is relatively easy and straightforward when the treaty does not refer to nationality
specifically, but instead provides for the extradition of [*95] "all persons." n71 Judicial construction and executive
interpretation of such clauses consistently hold that the word "persons" includes nationals, and therefore, the refusal to
surrender a fugitive because he is a national cannot be justified under such treaty provisions. The opinion of the U.S.
Supreme Court in Charlton v. Kelly is instructive:
There is no principle of international law by which citizens are excepted out of an agreement to surrender "persons,"
where no exception is made in the treaty itself. Upon the contrary, the word "persons" includes all persons when not
qualified as it is in some of the treaties between this and other nations. That this country has made such an exception in
some of its conventions and not in others, demonstrates that the contracting parties were fully aware of the
consequences unless there was a clause qualifying the word "person." n72
The extradition problem arose between common law and civil law countries when the latter refused to accept treaty
provisions obligating them to surrender all requested offenders, including their own nationals. One way to proceed in
the negotiations was to reach a compromise along the following lines: (1) both signatory states undertake to extradite all
persons requested, subject to the conditions stipulated in the treaty; and (2) neither party shall be bound to surrender its
own nationals (a variant: nationals of one signatory state shall not be delivered up to the other signatory state).
Interestingly, the same, or very similar, wording generated differing interpretations in the United States and Great
Britain. n73
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[*96] Based on the 1874 extradition treaty between Great Britain and Switzerland, the court in Wilson held that,
regrettably, "no British subject in this country could be surrendered to the Swiss government." n74 Because British
courts lacked jurisdiction over offenses committed by Wilson, the ruling set him free and was tantamount to his
immunity. The situation was untenable. In 1896, the court in In re Galwey distinguished the ruling in Wilson and held
that, under the 1876 treaty with Belgium, it was perfectly legal to surrender British subjects. n75 The court further
explained that the treaty stipulation was not introduced to prohibit the surrender of a British national, but rather to vest
in the executive the discretion to do so. n76
The interpretation of substantially the same treaty stipulation took a different course in the United States. The
reasons therefor may be found in two principal reservations against the extradition of United States citizens. n77 The
executive opinion proposed that, since there was no general power to extradite apart from a treaty obligation, a treaty
provision which expressly denied an obligation to extradite United States subjects deprived that country of any
constitutional power to do so. n78 In Valentine v. United States ex rel. Neidecker, the U.S. Supreme Court affirmed
that opinion. n79 It held that the treaty with France, properly interpreted, did not provide any power to surrender
nationals. n80 Although the question was not directly before the Court, the Justices noted that the expanded version
of the clause, which explicitly granted parties in other treaties a [*97] discretionary power to surrender nationals,
would effectively give power to the executive to surrender United States nationals. n81
In November 1990, the U.S. Congress finally corrected the problem with an extradition reform bill. The following
provision was adopted:
If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the
Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has
been requested by that country if the other requirements of that treaty or convention are met. n82
U.S. courts have repeatedly stated that "United States citizenship does not bar extradition by the United States" n83
and have rejected constitutional and treaty objections to the extradition of U.S. nationals. n84 Similarly, the U.S.
Department of State has opined that "the United States has the authority, frequently exercised in the interests of justice,
to extradite [its] nationals." n85 In negotiating new extradition treaties, the Department of State has been seeking
clauses specifically calling for the extradition of nationals, or at least granting the discretion to do so. n86
[*98] In the 1996 extradition treaty between the United States and Hong Kong, a different formula was adopted
to define the treaty's scope of application ratione personae. n87 According to Article 1, the treaty applies to "any
person." Consequently, Article 3 states that "surrender shall not be refused on grounds relating to the nationality of the
person sought." n88 However, two exceptions are included in this article. First, the United States "reserves the right
to refuse the surrender of [its] nationals... in cases in which the requested surrender relates to the defence, foreign affairs
or essential public interest or policy of the United States." n89 The Government of Hong Kong reserved a similar
right, giving rise to the second case in which the extradition request will be denied based on the nationality of the
offender:
The person sought neither has the right of abode in Hong Kong nor has entered Hong Kong for the purpose of
settlement, and the State whose government is responsible for the foreign affairs relating to Hong Kong has jurisdiction
over the offense relating to the requested surrender and has commenced or completed proceedings for the prosecution of
that person. n90
The Commonwealth system of extradition is based on reciprocal legislation. Therefore, even if the United Kingdom
itself refrains from exempting its nationals from surrender, it is conceivable that its extradition request will be denied in
one of the member states under the respective domestic legislation. The Commonwealth Extradition Scheme allows
discretion to be exercised with respect to the return of a fu [*99] gitive offender "who is a national or permanent
resident of the part of the Commonwealth in which he is found," provided he is not also a national of the requesting
Commonwealth country. n91 In such a case, the surrender may be precluded by law or refused by the competent
executive authority. Thus far, it appears that, by virtue of its constitution, only Cyprus absolutely prohibits the
extradition of its citizens. n92
C. Groups of Closely Linked Countries: A Regional Approach?
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It is assumed that the underlying theme in the rationale for the rule of non-extradition of nationals is mistrust between
states and a fear that a compatriot might be subjected to some kind of "barbaric" treatment in the requesting state. Thus,
it could be expected that the need to invoke such grounds for refusal should disappear among countries that share
similar characteristics derived from the same fundamental principles. Characteristics to consider include culture,
tradition, religion, social and economic values, and legal and political systems. However, this is not always the case. Of
the three examples below, the only one where this expectation has been fulfilled is among the Nordic countries.
Interestingly, the states of that region have adopted a "double standard" with respect to the extradition of nationals.
The prohibition applies in external relations with non-Nordic countries; n93 however, it has been generally removed
(with some restrictions) in internal relations. Under parallel domestic laws relating to the extradition of offenders to
other Nordic countries, a national of the requested state [*100] may be delivered to the requesting Nordic state. This
generally occurs when he has either established a permanent residence in the latter country n94 or has resided there
for two years prior to the commission of an offense. n95 Extradition will also be granted even if the residency
requirement is not met in the case of serious criminal offenses (for example, an offense punishable by the deprivation of
liberty in excess of four years). Moreover, while making reservations to Article 6 of the European Convention on
Extradition, the Nordic countries adopted an extended definition of "national" so that it covers both its citizens and
residents. Finally, they declared that the term "national" includes both nationals and residents of both the requested state
and other Nordic states. n96
It should be recalled that the processes of cooperation and harmonization among the Nordic countries have ancient
roots. Even the first regional statutes from the twelfth and thirteenth centuries demonstrated striking homogeneity in
both legal concepts and adopted solutions. n97 Admittedly, the most important factors that contribute to smooth
cooperation in this region are mutual confidence in, and respect for, the social and legal order and the criminal justice
system existing in other Nordic states.
Apparently, the three neighboring Benelux countries do not present the same case. Article 5 of the 1962 Benelux
Treaty Concerning Extradition and Mutual Assistance in Criminal Matters, in force since 1967, provides an absolute
prohibition of extradition of nationals. n98 Oddly enough, the [*101] Convention does not provide for a
corresponding duty of the requested state to bring the case to its competent authorities for prosecution, even though it
includes a provision on the transfer of criminal proceedings (Article 42). The rigid solution adopted in the Convention
sharply contrasts with the overwhelming desire and long-standing efforts to promote cooperation, harmonization, and
confidence among these three countries. Because one of the underlying ideas behind the common Benelux policy was
the legal equality of the countries' citizens, irrespective of their national origin and passport, it should logically follow
that they have equal status in the extradition process. n99 Although it was suggested that an exception should be
made for nationals domiciled in the requesting state, and possibly even to abandon this idea altogether, the Legislative
Commission rejected all proposals and adopted the ban on extradition of nationals based on arguments pertaining to
constitutional, practical, and technical considerations. n100
Although the former communist countries allegedly had the same ideological, political, social, and economic
foundations (not to mention geographic proximity), they all adhered to the traditional rule of non-extradition nationals,
even in their mutual relations. Among them, bilateral treaties conformed to a uniform pattern in their absolute
exemption of citizens of the requested state, subject to an obligation to prosecute in the home country. n101 The
removal of this exception was never seriously considered, despite a proposal based on the division of the criminal
process into two stages: trial on the one hand, and sentencing and enforcement, on the other, of which the former could
be carried out in the loci delicti commissi (where the national [*102] might be temporarily and under exceptional
circumstances surrendered), while the latter could be carried out in the offender's home country. n102
One more development warrants a closer look. It is intriguing whether, in the process of constructing the "common
European home," it will be possible to eliminate the rule of non-extradition of nationals. So far, this task has been
impossible to fulfill. Perhaps the drafters and designers of the political and legal foundations of this structure
underestimated how deeply rooted this rule is in continental legal tradition, thought, and philosophy. Or perhaps it is
still too early to expect success to overcome existing barriers, differences, prejudices, and mistrust among the Member
States of the European Union. Alternately, the traditional way of thinking based on state sovereignty and old principles
might still take precedence over the more pragmatic approach to the extradition of nationals. In any case, the Schengen
Convention of 1990 has not changed anything in this area. n103 Then came the Convention drawn up on the basis of
Article K.3 of the Treaty on European Union, relating to extradition between the Member States of the European Union.
n104
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Its drafters were determined to flush out what in common law parlance is called "an illegitimate relic of nationalist
sentiments," n105 which certainly constitutes an obstacle to efficient extradition. Their desire is stated in unequivocal
language in Article 7, paragraph 1, which provides that "extradition may not be refused on the ground that the person
claimed is a national of the requested Member State [*103] within the meaning of Article 6 of the European
Convention on Extradition." n106 Good intentions notwithstanding, strong political will alone cannot compensate for
the "ugly realities" in 1996 Europe, even among the actual Member States. The drafters of the Convention decided to
face them, rather than ignore them, by including in paragraph 2 the right of every Member State to refuse to surrender
its nationals. n107
However, there are two noteworthy differences between reservations based on Article 6, paragraph 1(a) of the
European Convention of 1957 n108 and the reservation granted to the Member States by Article 7 of the 1996
Convention. First, while the European Convention of 1957 is limited to the definition of the term "national," the drafters
of the 1996 Convention clearly suggested in paragraph 2 that, in their declarations, the Member States may stipulate that
they will authorize the surrender of their own nationals "under certain specified conditions." Second, unlike the 1957
European Convention, the 1996 Convention has imposed a specific time limit (five years) on the validity of the
reservations made under Article 7. Its paragraph 3 contains detailed provisions regarding the period of validity, as well
as its renewal, expiration, and notification. There can be no doubt as to the drafters' intentions. It was their hope that,
over time, the progress in consolidating the European Union will (or at least may) encourage the governments to take
steps toward abandoning the rule of non-extradition of nationals and thereby remove a "thorn" from their mutual
relationships. Arguably, if applied by all civil law states in Europe, this policy would result in a substantial
improvement in the free flow of fugitive offenders to face trial. Additionally, it would still provide the states with the
best opportunity for rehabilitation and maintenance of family [*104] contacts, especially when combined with
another form of international cooperation in criminal matters, e.g., the transfer of sentenced persons back to their home
countries to serve their imprisonments there. n109
IV. Non-Extradition of Nationals: A Human/Constitutional Right?
A. Some Underlying Problems
The question arises whether the sacrosanct rule of non-extradition of nationals confers a substantive, personal right on
a state's own subject, granting him standing to claim it in court. This assertion might be supported by the contextual
interpretation of the domestic pronouncements in which the relevant provision has been adopted, especially where it has
been placed in the constitution. Typically, it can be found together with human rights and freedoms. For example, in the
new Polish Constitution of 1997, the provision prohibiting the extradition of a Polish national has been placed in
Chapter II: Freedoms, Rights and Duties of Human and Citizens, Section 2: Personal Freedoms and Rights, Article 55,
paragraph 1. n110
It can be argued that, because the extraditee is the beneficiary of this mechanism, it logically follows that he should
be empowered not only to trigger it, but also to waive it. Such a concept would be substantially the same as the system
upon which the transfer of prisoners has been based: normally, this operation cannot be accomplished without the
explicit consent of the sentenced offender. n111 However, unlike the transfer of prisoners, there are insurmountable
[*105] difficulties in identifying and discerning the rationale for the ban on the surrender of nationals. In the process,
the following would have to be established: (1) Whose interests are protected by the rule of non-extradition of nationals
- the relator's or the state's?; (2) What is the role of human rights considerations in maintaining this rule?; (3) Assuming
that the extraditee is the beneficiary of this concept but lacks standing in the extradition process, we would have to
conclude that it is the requested state which claims this "privilege" on his behalf, without making any inquiry into the
opinion of its national; and (4) Given the growing tendency toward treating the extraditee as a subject, not merely as an
object of extradition, would it be proper to make the surrender conditional and dependent on his consent, only because
he happens to possess the passport of the requested state? Would this be consistent with the purpose of extradition? If
adopted generally, wouldn't such a framework eventually paralyze the system of international extradition? Not before
these matters are clarified can the main question be answered satisfactorily. Yet, some attempts are noteworthy.
Chronologically, the first is a theory developed in German legal and political doctrine which asserts that every
citizen has the right to live and remain in the territory of his home country. Some authors hold that this "right" is
meaningless n112 because, even if mentioned by the commentators to the German Basic Law (Grundgesetz) in the
context of Article 16(2)'s prohibition of the extradition of nationals, n113 there is no stipulation in the German
Constitution that expressly confers such a privilege on German nationals. n114 Given the realities of contemporary
life and international relations, this concept seems to have lost touch with the modern world.
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[*106]
B. Human Rights Context
Other efforts involved interpretations of international treaty stipulations that pertained to movement rights, as well as
expulsion and deportation. One of them is the 1957 Treaty of Rome, which established the European Economic
Community. Article 48(3)(b) of the treaty grants the right to "move about freely ... within the territory of Member
States." n115 In Regina v. Governor of Pentonville Prison, an extraditee challenged an order for committal on the
grounds that the surrender would deprive her of the freedom of movement guaranteed by Article 48. The court rejected
the submission:
If this submission is right, it will impose a formidable fetter upon extradition... I cannot believe that it can have been the
intention of those who drew the Treaty of Rome that it should have the effect of so emasculating the process of
extradition. n116
Another international instrument with some relevance here is the European Convention on Human Rights.
Paradoxically, even though the Convention contains vital safeguards aimed at the protection of human rights that have
been found to be directly applicable to extradition, n117 there is no specific protection against extradition. The
question arose as to whether such a protection could be found in Article 3, paragraph 1, of the Fourth Additional
Protocol to the Convention, which provides: "No one shall be expelled, by means either of an individual or of a
collective measure, from the territory of the State of which he is a national." n118 [*107] This provision gave rise
to two conflicting interpretations aimed at explaining whether the "means of individual expulsion" designates
extradition. Interestingly, they both start from the same point.
The explanatory report on this Protocol states, "It was understood that extradition was outside the scope of this
paragraph." n119 One view holds that such understandings are not an adequate basis for drafting a legal text.
Moreover, the wording of Article 3(1) of this Protocol is "clear and unambiguous" and, as such, precludes the use of this
explanatory report to interpret it. n120 The accepted principles of treaty interpretation do not permit the invocation of
the travaux preparatoires in such a case. Consequently, signatories of the Fourth Protocol are bound by Article 3(1) and
must refuse extradition of their nationals in the same way as states that adhere to the non-extradition rule by virtue of
their domestic legislation - unless they refrain from this policy by making an explicit reservation to the contrary.
Other authors, having admitted that the language of Article 3(1) raises doubts as to the true meaning of the term
"expulsion" in the context of extradition, rely on the Explanatory Report and consider its contents as controlling in the
interpretation of this provision. n121 This reading of Article 3(1) indicates that the Fourth Protocol alone does not
give its signatories the right to refuse extradition of their nationals.
The latter opinion is shared by the European Commission on Human Rights. In X v. Austria, the Commission
defined [*108] expulsion as a procedure under which "a person is obliged permanently to leave the territory of the
State of which he is a national without being left the possibility of returning later." n122 The words "permanently"
and "without being left the possibility of returning later" evidently serve to support the decision of the Commission that
extradition does not fall under the concept of expulsion and, consequently, does not fall under the prohibition of Article
3. Similarly, in Br<um u>ckmann v. Federal Republic of Germany, the Commission, referring to international law,
made another attempt to distinguish between expulsion and extradition: "Expulsion is the execution of an order to leave
the country, while extradition means the transfer of a person from one jurisdiction to another for the purpose of his
standing trial or for the execution of a sentence imposed upon him." n123
The distinction between expulsion and extradition, based solely on the criteria used by the Commission, is not
always as clear-cut as the Commission wished it to be. Moreover, the line between these procedures may sometimes be
blurred. Consider a situation where the offense which demanded the surrender carries the death penalty and the
requested state does not make a reservation that this penalty cannot be imposed or carried out. Alternatively, consider a
situation where the convicted offender is sought to serve life imprisonment, with no release on parole or probation.
Consequently, under exceptional circumstances, the requested person may seek protection under Article 3, paragraph 1,
of the Fourth Protocol to the European Convention on Human Rights. Such a possibility is precluded under the
International Covenant on Civil and Political Rights, which does not refer to the right to "remain" in the home country
or to the right of a national not to be "expelled." Instead, Article 9(1) of the Covenant guarantees everyone the right to
lib [*109] erty, security, and non-deprivation of liberty, "except on such grounds and in accordance with such
procedures as are established by law." Article 12 grants the right to liberty of movement and freedom to choose
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residence, including freedom to leave any country. Finally, the Article 13 right not to be expelled is explicitly limited to
"aliens lawfully on the territory of a state." n124
C. Constitutional Aspects
The rule of non-extradition of nationals also has two constitutional aspects. The first manifests itself in the stipulation
that prohibits the surrender of nationals, as adopted in the constitutions of some countries. n125 Usually, once the
prohibition has been elevated to the rank of the country's "supreme law," it becomes "durable" and long-lasting in the
sense that, absent a special procedure, such a stipulation is difficult to remove or modify. However, as the story of the
International Criminal Tribunal for the Former Yugoslavia demonstrates, this is not entirely impossible. In their
domestic legislation concerning cooperation with this Tribunal, some states specifically declared that they relinquished
the rule of non-extradition of their nationals if, and only if, the request for surrender is submitted by the Tribunal. In one
case, that step was tantamount to an amendment to a state's (Croatia's) constitution.
[*110] Another constitutional aspect of this rule can be framed in the following question: Can the requested
offender, in claiming his nationality-based protection against the surrender, rely on the constitutional stipulation that
provides for non-extradition-related rights and freedoms? An illustration of this problem can be found in the Canadian
legal system. Until 1982, Canada had extradited its nationals either when the extradition treaty was silent on the matter
or when discretion existed to extradite nationals. The decision whether to extradite was normally exercised in favor of
extradition by the Minister of Justice. Section 6(1) of the Canadian Charter of Rights and Freedoms, enacted in 1982 as
Part I of the Constitution Act, provides, "Every citizen has the right to enter, remain in and leave Canada." One of the
many questions that arise in the context of this stipulation is whether the citizen's "right to remain in" may be interpreted
to include his "right not to be extradited." In other words, does the surrender of a Canadian citizen to a foreign state
constitute an infringement of his right to remain in Canada as set forth in section 6(1) of the Charter? The travaux
preparatoires of the Charter indicate that the intent of the drafters of section 6(1) was to provide for the right of citizens
to enter and leave Canada and be protected from expulsion. The debate in the Joint Committee on the Constitution
centered on expulsion and deportation. n126 It could be inferred that this provision seeks to prevent expulsion or
deportation of certain groups of Canadian citizens. On the other hand, it is difficult to dismiss an assertion that, if
section 6(1) were to address only a citizen's right not to be exiled or banished, the section would have been framed in
more specific terms.
When section 6(1) was challenged in the courts, two lines of interpretation emerged. The earlier interpretation held
that extradition prima facie infringes upon a Canadian citizen's right to remain in Canada. However, in Federal Re
[*111] public of Germany v. Rauca, the Ontario Court of Appeal added that such an infringement was a reasonable
limitation of that right pursuant to section 1 of the Charter because it was "a reasonable limit prescribed by law as can
be demonstrably justified in a free and democratic society." n127 Later courts have followed this approach, n128 in
which the jurisdiction of the Canadian courts over the alleged offenses was not raised as an issue.
In 1989, when the Supreme Court of Canada dealt with this problem in United States v. Cotroni, it turned out that a
more subtle distinction was required. Cotroni and El Zein, both Canadian citizens, argued that their extradition to the
United States was impermissible on the following grounds: (1) their conduct with respect to the alleged crime took
place entirely in Canada; and (2) they could be charged with the offense under Canadian as well as United States law.
n129 Therefore, they argued that their cases could be distinguished on the facts. Their proposition was accepted by
Justice Wilson in his dissenting opinion. n130 He opined that the locus of the wrongdoing is relevant when
extradition to a foreign country is sought to be justified as a reasonable limit on a Canadian citizen's right to remain in
Canada. The majority of the court disagreed and pointed out that
Modern communication means the territoriality of wrongdoing is no longer the determining factor for criminal law
jurisdiction over international crime. Why should the territoriality of the wrongdoing be so important under
constitutional law? Indeed the locus of the wrongdoing seems irrelevant to the s. 6(1) Char [*112] ter right which
purports to allow Canadian citizens to remain physically in Canada. n131
The Quebec Court of Appeal had held that, while the overall objectives of extradition - in term of the maintenance of
law and order, as well as the suppression of international crime - was sufficient to warrant interference with the Charter
right, in the circumstances of this case the objectives could be met without an infringement of section 6(1). The
potential for prosecution in Canada made extradition unreasonable and disproportionate. The Supreme Court of Canada
disagreed, holding that extradition is essential to the continuance of a stable and democratic society and that the
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objectives of extradition warrant limited interference with the right to remain in Canada.
that there is
n132 Justice La Forest added
nothing irrational in surrendering criminals to another country, even when they could be prosecuted for the same acts in
Canada. It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the
persons most interested in bringing the criminal to justice reside. n133
The court stated in general terms that the decision whether to surrender a national should be based upon the
prosecutorial discretion of the requested state, n134 giving due consideration to individual constitutional rights.
n135 Specifically, the competent authorities must assess whether prosecution [*113] would be equally effective in
the territory of that country or whether the evidentiary or other considerations would seriously undermine their efforts to
carry out the criminal proceedings and to establish the truth. Both the domestic legislation of the requested state and its
arrangements pertaining to various forms of international cooperation in criminal matters are relevant in this context.
Some authors went even further in the interpretation of section 6(1) by submitting that this provision does not apply
to extradition at all and that there is no right to resist extradition carried out in accordance with Canadian extradition law
and treaties. n136
V. Proposed Solutions: A Disguised Status Quo or an Effective Remedy?
A. Two Conflicting Attitudes: Abolitionists vs. Reformers
The efforts to abolish the rule of non-extradition of nationals have long and fascinating histories, given the number of
distinguished scholars, authorities, and international bodies that almost unanimously supported the idea of removing
nationality of the requested person from the catalog of reasons for refusal of his surrender. n137 Out of the drafts and
resolutions adopted in this matter, one of the earliest is Field's Outlines of an International Code, which did not exempt
nationals from extradition. n138 The resolution adopted [*114] by the Institute of International Law at its Oxford
meeting in 1880 recommended the extradition of nationals on the ground that it was desirable that the courts of the
locus delicti should render judgment, but the Institute expressly reserved this recommendation for countries whose
criminal legislation rested on similar bases and which had mutual confidence in their judicial institutions. n139 The
most recent proposal, adopted in 1997 by the U.N. Commission on Crime Prevention and Criminal Justice, was
elaborated on by an Intergovernmental Expert Group on Extradition at its 1996 meeting in Siracusa. n140 Most
experts agreed that, in the long term, countries should work toward the elimination of the ground for refusal based on
the nationality of the requested person. n141
Their compelling reasons and good intentions notwithstanding, the overall practical effect of such resolutions and
recommendations is next to nil. Over the last century, there has not been any significant change in the attitude of
national legislatures toward this problem. One reason for the failure to bring about amendments of domestic law in this
area was that the rule of non-extradition was attacked with the use of rational arguments, although it is very likely that
the rule is rooted in irrational ones. Another reason seems to point to sovereignty as the real basis for this practice, and
state sovereignty is rather difficult to challenge. Given these political - rather than purely legal - considerations, it is not
surprising that there have been voices calling for caution, patience, and realism. In Resolution VII, adopted by the 12th
Commission in 1981, the International Law Institute declared that "every State should in principle remain free to refuse
the extradition of nationals." n142 The participants at the Dijon session believed that it could not be expected that
states whose legal sys [*115] tems - or even whose constitutions - prohibit the extradition of nationals would easily
abandon that principle. n143
The question arises as to whether this stalemate can be broken. One thing which has become clear is that merely
demanding that the civil law states abandon their policies of non-extradition of nationals will not bear the expected
fruits. One option might be to offer them some sort of "compensation." The other is to consider the surrender either in a
very restricted scope or in exceptional circumstances. Finally, with the advent of human rights and their direct
application to extradition, a new ground for refusal may develop that might be even more attractive to such states than
the traditional one. Quite another question is the effectiveness of these proposed solutions.
The solutions may be categorized as follows:
1. Solutions aimed at preserving the status quo, but creating a remedy to the existing system:
a) inherent criminal jurisdiction of the requested state;
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b) aut dedere aut judicare; or
c) aut dedere aut poenam persequi.
n144
2. Solutions aimed at facilitating the surrender of na-tionals:
a) legislative techniques:
(i) domestic law: treaty requirement;
n145
(ii) treaty stipulation: optional (discretionary) clause; or
n146
[*116] (iii) surrender limited ratione criminis:
(a) serious offences;
n147
(b) international crimes.
n148
b) conditional surrender:
(i) consent of the extraditee;
n149
(ii) requesting state's assurance to return the sentenced person.
n150
c) surrender at the request of an international criminal tribunal.
n151
3. Solution based on the replacement of the rule of non-extradition of nationals by the new ground for refusal of
[*117] the surrender: possible violation of procedural safeguards in the criminal proceedings carried out against the
requested offender in the territory of the requesting state.
B. Criminal Jurisdiction of the Requested State: Can the Potential of Its Exercise Save the Non-Extradition of
Nationals?
Generally, countries that refuse to extradite their nationals have the power under their laws to prosecute them for
offenses specified in the request for surrender, that is, the offenses committed abroad. This feature of domestic criminal
law constitutes a criterion, albeit an imperfect one, upon which a distinction has traditionally been based between states
which do and do not extradite their nationals. Basic approaches to the problem of extradition of nationals are related to
general concepts, particularly regarding jurisdiction and the formation of the jurist in common law, as distinguished
from civil law. Common law lawyers tend to support territorial jurisdiction and extradition of nationals, while civil
lawyers tend to support extraterritorial, personal jurisdiction over nationals and object to the extradition of nationals.
Undeniably, while the scope of application of the nationality principle as interpreted by the civil law countries is
extremely broad, but not unrestricted, n152 the common law countries only authorize the prosecution of their citizens
for offenses committed abroad that violate either multilateral conventions or the proliferating statutes that specifically
criminalize extraterritorial acts perceived as harmful to their or their citizens' interests. n153
[*118] However, the territoriality versus personality approaches to jurisdiction no longer sufficiently account for
the complexity of jurisdiction over the offense in criminal law. While jurisdiction in most common law criminal justice
systems remains fashioned along territorial lines, the increasing trend to "stretch" territorial boundaries to encompass
extraterritorial events and the liberal inclusion of undoubtedly extra-territorial offenses undermine this distinction.
n154 Similarly, civilian jurists have recognized that territorial interests are a primary consideration in the decision to
prosecute, even when jurisdiction over the offense is established on the personality principle. n155
The causal relationship between the non-extradition of nationals and the personality of the law in modern times is
perfectly illustrated in the debate on the 1865 French law that introduced a full-fledged principle of (active) personality.
n156 The proposal was to extend the jurisdiction of French courts over its citizens. The debate concerned the extradition
of nationals. n157 The proposed law sought to prevent, at least to some extent, the complete failure of justice in cases
where French nationals were not delivered up for trial to the country in which they had committed their offenses. The
arguments raised in the debate referred to "national dignity" and the "honor of the country" as profound obstacles to the
surrender of nationals.
Two different formulas may be used to describe and define the intrinsic relationship between the rule of
non-extradition of nationals and the principle of active personality (or nationality):
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[*119] . The principle of active personality was adopted as a direct consequence of the prohibition to surrender
nationals; in other words, the state has no other option but to prosecute its citizens itself because it cannot extradite
them. In short, the rule of non-extradition was chronologically first; the active personality principle came later.
. The prohibition of the surrender of nationals is a logical consequence of the adoption of the principle of active
personality; in other words, the state does not need to extradite its citizens because it can prosecute them itself. In short,
the active personality principle chronologically preceded the rule of non-extradition of nationals.
Although the two components of the system, that is, the rule of non-extradition and the active personality principle,
are correlative, the fundamental difference between these formulas must not be overlooked. Failure to distinguish
between them may create some confusion as to the proper role and significance of each of these components. n158
The former signifies that the principle of active personality is a measure which has been adopted in order to remedy the
detrimental effects on criminal justice and legal order produced by the general ban on the extradition of nationals, while
the latter points to the active personality principle as the justification for the refusal to extradite nationals. Such
justification is typically provided to answer charges that the refusal to surrender nationals results in a frustration of
justice or a lack of reciprocity in the application of extradition treaties.
The difference between the two approaches becomes even more clear when we focus on the latter. Its real
significance [*120] is that it constitutes a "conditional statement" or "legal syllogism": an "If A, then no-B" so
powerful that, once the major premise has been established (the requested state has jurisdiction over its citizen and the
offense for which the extradition request was submitted), the minor premise must follow (the requested national cannot
be surrendered), irrespective of any domestic law or treaty stipulation to that effect. In other words, as long as the
principle of active personality is perceived as a justification for the rule of non-extradition of nationals, the jurisdictional
principle alone may suffice to justify the rule.
An early example may be found in Italy in the first half of the nineteenth century. Although the prohibition to
surrender nationals was formally adopted in the Italian legislation of 1889 (Criminal Code, Article 9), it would be a
mistake to maintain that this rule did not exist in Italy before then. The rule was based on provincial enactments, such as
the Criminal Code of the Kingdom of the Two Sicilies of 1819, the Criminal Code of Tuscany of 1843, and the
Criminal Code of Sardinia of 1859. While they did not specifically forbid the extradition of nationals, the codes did
provide for the trial and punishment of the subjects of these kingdoms in the courts of their own countries. That this
was, in fact, the intention of the respective legislatures can also be inferred from the stipulation of the extradition treaty
concluded between the Kingdom of the Two Sicilies and Sardinia in 1819, in which Article 2 provided: "If the accused
or convicted person is a subject of the Government under which he has sought asylum, he must be punished by his own
government according to the laws in force." n159 This treaty stipulation illustrates how the principle of active
personality becomes the rule of non-extradition of nationals.
Another example may be found in Poland, where between 1932 and 1969 no legislation made nationality a bar to
ex [*121] tradition. Nonetheless, the non-extradition of Polish nationals was always considered to be an "axiom" by
legal writers and commentators due to the long tradition of personal jurisdiction in that country. n160
Finally, an almost inseparable link between the two elements of this mechanism became vivid in 1978, when the
Israeli Knesset adopted the Penal Law Amendment (Offenses Committed Abroad) Law. n161 While Article 1 confers
jurisdiction ratione materiae over all extraditable offenses if they have been committed by an Israeli national or resident,
Article 2 has limited extradition ratione personae to foreigners. n162 That legislation marked a departure from two
fundamental precepts of the common law system to which Israel formally belongs: the territoriality of criminal law and
the policy allowing the extradition of nationals. n163
The principle of active personality (or nationality) must not be treated as a justification for the rule of
non-extradition of nationals; otherwise, we give states a very convenient and powerful argument to claim nationality as
a ground for refusal of extradition on the basis of the mere existence of personal jurisdiction. If this rule is ever to be
abandoned, the link supporting the reasoning must be broken and removed. Consequently, the role of the personality
principle in the context of extradition should be viewed in terms of a remedy against the complete frustration of criminal
justice and the impunity of an offender, by its closing of gaps and loopholes in the system of international cooperation
in the suppression of criminality. n164 However, [*122] when examined from this perspective, the active
personality principle fails to be a perfect instrument, for it has the following shortcomings:
1. Usually, this principle does not exist in a full-scale and general (or universal) form. n165 Instead, its scope of
application is typically limited by the imposition of one or more conditions and requirements, such as:
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a) double (dual) criminality: an offense must also be punishable by the lex loci commissi;
b) level of gravity: usually only the more serious offenses are included;
c) catalog of specific offenses;
d) special characteristics of the offender; for example, in addition to being a national, such a person must also be a
public official (functionary);
e) other conditions, e.g., the offense must be committed against another national (or nationals).
2. The principle of active personality merely represents the potential for an offender to be tried and punished.
Whether this will materialize depends on the exercise of discretionary powers by the public prosecutor. The situation is
different in the continental countries that have adopted the rule of compulsory prosecution. n166 It is here that the
public prosecutor is under an obligation to institute criminal proceedings when there are sufficient grounds to believe
that an offense has been committed.
[*123] 3. Even after the first two problems have been solved, another one emerges: the competent authorities of
the requested state may face insurmountable difficulties in conducting criminal prosecution and trial, mainly due to
evidentiary considerations. Therefore, the active personality principle may fall short of achieving its goal of bringing an
offender to justice. However, because this problem is common to both the active personality principle and the rule aut
dedere aut judicare, it will be dealt with in greater detail in the next section.
As early as 1926, the system based on personal jurisdiction was sharply criticized as a possible alternative to the
extradition of nationals, for practical reasons:
The theory that a country should try its own nationals for crimes wherever committed, fails [as a justification for two
reasons:] (a) because of the impossibility of securing the relevant evidence from abroad; and (b) because it applies even
to an escape after conviction, which would mean practical immunity on the general principles of justice that a person
may not be tried again for the same offence. n167
C. Aut Dedere aut Judicare: An Unfulfilled Promise?
If the possibility of an offender's impunity is recognized as the most serious danger caused by the practice of
non-extradition of nationals, then from the point of view of criminal justice it should not matter in which state's territory
the offender is prosecuted and punished as long as justice is done. This was the underlying idea of the maxim aut dedere
aut punire, as originally formulated by Hugo Grotius in 1625:
[*124]
The state in which he who has been found guilty dwells ought to do one of two things. When appealed to, it should
either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal.
This latter course is rendition, a procedure more frequently mentioned in historical narratives. All these examples
nevertheless must be interpreted in the sense that a people or king is not absolutely bound to surrender a culprit, but, as
we have said, either to surrender or to punish him. n168
When interpreting these words today, it must be remembered that the scope of application of this maxim was limited to
"crimes which in some way affect human society" as a whole and which in contemporary language can be identified, to
a certain extent, as international crimes. n169 Moreover, the rule presupposed the existence of a "triggering
mechanism," or "appeal," which today would be translated as an extradition request. Finally, while in the original
wording an alternative to dedere was punire, it cannot be held that Grotius really meant to exact punishment without
first establishing guilt. n170 The accused fugitive may turn out to be innocent. Thus, the most that can rightly be
demanded from the requested state in lieu of extradition is to put the accused on trial, or prosecute him (judicare).
n171
[*125] Under the aegis of this maxim, instead of being a last resort if extradition is refused on the grounds of the
nationality of the fugitive offender, prosecution and trial in the requested state would be elevated to a more proactive
status in international criminal law. At present, the prevailing view holds that extradition, or some variant thereof, is the
exclusive means of bringing fugitive offenders to justice. If it is accepted that the principal aim must be to prosecute the
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fugitive and that international public order requires international cooperation and mutual assistance, then a more
positive acceptance of trial in the extraditee's home country is necessary. To determine the effectiveness of the system
based on aut dedere aut judicare with respect to the extradition of nationals, the following three problems must be
addressed: first, the status and scope of application of this principle under international law; second, the hierarchy
among the options embodied in this rule, provided that the requested state has a choice; and third, practical difficulties
in exercising judicare.
1. Present Status of the Principle aut dedere aut judicare Under International Law
Despite persuasive arguments to the contrary advanced by leading authorities in international criminal law, n172 the
principle aut dedere aut judicare has not gained the status of a norm of international customary law. To qualify as a
customary rule of international law binding on the international community and to satisfy the source requirements of the
International Court of Justice, n173 two elements must be proved: (1) a material element manifested by a general
practice; and (2) opinio juris sive necessitatis, that is, the conviction that the practice is "accepted as law." However,
[*126] contemporary practice furnishes less than consistent evidence of the existence of a general obligation to
extradite or prosecute with respect to international offenses. n174 The most that may be said about aut dedere aut
judicare is that it constitutes a "general principle" of international law, n175 although some scholars go further by
arguing that it belongs to the jus cogens norms. n176 The latter proposal would mean that this principle is an
overriding, or "peremptory," norm which cannot be set aside by treaty. The consequences of such a proposal may be
quite dramatic: if every state under any circumstances had such an alternative obligation (either to surrender or to
prosecute), treaty stipulations notwithstanding, it would invalidate both international instruments providing exclusively
for "dedere" and treaties providing for the extradition of nationals. n177
In his dissenting opinion in the Lockerbie case, Judge Weeramantry, in his characterization of this principle as a
"rule of customary international law," seems to have equated it with the proposition that a state is entitled "to try its own
citizens in the absence of an extradition treaty." n178 In this sense, the principle is "an important facet of a State's
sovereignty over its nationals." n179 However, the proposition that there is no duty, absent a treaty, to extradite
nationals who a state is prepared to try itself can be relevant only in the face of an obligation to surrender. But, as the
practice of modern international law demonstrates, there is no duty to extradite in the absence of a treaty. n180
[*127] The uncertainties surrounding the status of this principle under international law directly affect both the
scope of its application and its effectiveness. Practically, the alternative obligation of states either to surrender or to
prosecute exists insofar as it has been expressly spelled out in an international instrument or, only exceptionally, in
domestic legislation. It has been standard policy to include the principle aut dedere aut judicare in general extradition
treaties, either bilateral or multilateral, n181 especially with respect to the refusal to surrender nationals. n182 In
addition, such a stipulation appears in almost all conventions aimed at defining international offenses and securing
international cooperation in the suppression of such acts. n183 It is feared that an unrestricted aut dedere aut judicare
principle might imply that all states are obliged to prosecute any offense committed in any place by any person found in
their territories, unless an offender is extradited. n184
Notwithstanding all of the difficulties concerning the scope of application and the contents of an obligation
envisioned by the various formulas in which this principle appears, the validity of the system based on aut dedere aut
judicare has been confirmed not only by numerous international instruments, but also by the domestic jurisprudence of
many states. For example, the Austrian Supreme Court has held that, when the extradition of a national has been
refused, "the right to prosecute must, as a general rule and without prejudice to the continued existence of the right to
prosecute of the State in whose territory the offense has been committed, be offered to the home State of the of [*128]
fender." n185 On some occasions, the principle aut dedere aut judicare is relied upon to demonstrate that it works
"both ways." In Pesachovitz, where an extradition request was submitted to Israeli authorities under the European
Convention on Extradition, the court, assuming that Israel was obligated to do one of two things - either extradite
Pesachovitz or punish him n186 - ordered the extradition of the fugitive on the grounds that prosecution was
precluded under Israeli law. n187
2. Hierarchy of Obligations or a Matter of Discretion?
One of the most intriguing and delicate questions in the context of the principle aut dedere aut judicare is whether the
alternative obligations embodied in the maxim are placed on equal footing. If that were the case, then the requested
state, that is, the forum deprehensionis, would have a completely free choice as to which alternative it pursues. On the
other hand, it could be argued that dedere and judicare are not equal alternatives, such that the duty to extradite should
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be regarded as primary, while the duty to prosecute arises only if domestic legislation contains a bar to extradition. A
corollary of the latter proposition is the view that the state loci delicti commissi has the primary responsibility to
prosecute and punish the offender, whereas the prosecuting authorities and courts of the custodial state - the country in
whose territory the offender has been found - have only a secondary duty. Such a conclusion could be based on several
treaty stipulations and domestic laws making judicare conditional on: (1) the submission of the extradition request; (2)
the refusal of surrender; and (3) the requesting state's specific demand that the case be [*129] submitted to the
competent authorities of the requested state for the purpose of prosecution.
The rationale for an a priori hierarchy of the alternative obligations embodied in the principle aut dedere aut
judicare, with extradition being preferred over prosecution, seems to be founded on three considerations: (1) the state
where the offense was committed has the primary interest in seeing the offender brought to justice; (2) in most cases,
the forum delicti commissi is the most convenient place for investigation, prosecution, and trial, mainly due to
evidentiary issues; and (3) there may be cases where prosecution in the forum deprehensionis will appear to be
ineffective or unfair. Although it is argued that "whenever possible, extradition should take priority, at least in cases in
which the requesting state asserts territorial jurisdiction over the offense," n188 the formula containing the principle
aut dedere aut judicare, which can be found in almost all multilateral conventions and extradition treaties prescribing
international crimes, is expounded in language that does not seem to accord any special priority to extradition. A purely
theoretical attempt based on an interpretative distinction between the "alternative," or "disjunctive," and the
"co-existent" obligation to prosecute or extradite does not seem to be successful in this context, either. n189
Thus, absent a treaty stipulation to the contrary, the present status of this principle does not warrant an assertion
that judicare is "subordinated" to dedere to the effect that the requested state's first obligation is to deliver up the
offender sought and that it is allowed to institute its own criminal proceedings only after it has showed that extradition
is prohibited on legal grounds. n190 However, one qualifi [*130] cation must be placed on this proposition: efforts
must be made to solve the problem that arises when an offender holds the citizenship of the requested state, while at the
same time the investigation, prosecution, and trial in that state appears to be not merely inefficient, but simply
impossible, for practical, evidentiary, and political reasons.
In international practice, the only attempt to effectively end the ensuing stalemate (and the total frustration of
criminal justice) was made as part of a concerted action by the governments of the United States and the United
Kingdom in Lockerbie. Frustrated by Libya's refusal to extradite its two nationals suspected of having blown up Pan
Am Flight 103 over Lockerbie, Scotland, and determined not to submit all of the evidence that had been gathered as a
result of an extensive three-year investigation, the United States and the United Kingdom (joined by France) presented
the case before the U.N. Security Council and the General Assembly. n191 In January and March of 1992, the
Security Council adopted two resolutions in this matter: the first urged Libya to respond fully and effectively to the
requests n192 of the United States, the United Kingdom, and France, n193 while the second imposed economic
sanctions on Libya. n194 Libya brought the case before the International [*131] Court of Justice, seeking
provisional measures to prevent the United States or the United Kingdom from taking any action to compel Libya to
hand over the two suspects or to otherwise prejudice the rights claimed by that country. n195 On April 14, 1992, the
Court (by a vote of 11 to 5) confirmed the validity and binding force of Resolution 748. n196 The following are three
possible interpretations of the Security Council's involvement in Lockerbie:
a) Libya failed to demonstrate convincingly that it was capable of fulfilling the obligation which it claimed under
the Montreal Convention, that is, to make a good faith effort to prosecute the crimes itself;
b) The resolutions signaled a substantial loss of faith in the Montreal Convention's authority and efficacy in
bringing the offenders to justice; or
c) The Security Council offered an extraordinary remedy that, while upholding the existing extradition system, at
the same time supplemented the system with the recourse to that organ for intervention in exceptional situations,
especially where the traditional treaty model proves unworkable.
The latter seems to be the most persuasive. The Court's ruling means that, under Article 103 of the U.N. Charter,
Resolution 748 takes precedence over any other international agreement, including the Montreal Convention. In one
sense, the genuine choice between extradition and prosecution has been brought down to an alternative: extradite or
extradite. On the other hand, given the U.N. Charter's Chapter VII exceptions to Article 2(7), the Secu [*132] rity
Council has the authority to determine whether a situation is so severe that it constitutes a threat to the peace, a breach
of the peace, or an act of aggression. n197 Therefore, the Security Council has the authority to take up such matters.
To reconcile both the Security Council resolutions and the decision of the International Court of Justice in Lockerbie, it
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was suggested that international extradition law has not been violated or altered because in exceptional cases "the law
merely operates at a different level through the internationally sanctioned ways and means of the United Nations."
n198
It is doubtful, however, whether Lockerbie could, and should, be viewed as the most appropriate mechanism to end
the stand-off in similar cases. Rather, in seeking the solution, a rigid approach should be abandoned in favor of a more
flexible one which, in turn, should be based on modifications to judicare so that it can constitute a viable option. More
importantly, this option would also be acceptable to the requesting state. Such a system, called "substituting
prosecution," was proposed by the Institute of International Law in 1981:
1. The system of substituting prosecution should bestrengthened and amplified.
2. The system of substituting prosecution should be completed by stipulating detailed methods of legal assistance.
3. When governments act in substituting prosecution, the interested governments - and in particular the government
of the territory in which the offense was committed - should be entitled to send observ [*133] ers to the trial unless
serious grounds, particularly with respect to the preservation of state security, would justify their non-admittance.
4. In cases of substituting prosecution, if the relevant tribunal determines that the accused is guilty, an appropriate
penalty should be imposed, similar to that which would be applied to nationals in a cognate case. n199
Instead of having a fixed hierarchy of alternative obligations embodied in the principle aut dedere aut judicare, it is
more desirable to base the decision of whether to prosecute in the requested country or surrender the person sought on
mutual consultations between the appropriate authorities of the states involved. There may be cases in which it will be
preferable for the accused to be tried in a foreign state, rather than in his home country. The problem becomes even
more delicate when an offense is committed in the territory of both the requesting and the requested states, each of
which are therefore entitled to claim jurisdiction based on the principle of territoriality. A general and rigid rule of
refusing to extradite nationals in such cases would reduce the effectiveness of extradition as a major tool to combat
transnational crime. To allow an analysis of the particular circumstances of each case prior to a decision regarding the
principle aut dedere aut judicare, a Canadian court suggested that the following factors be considered:
. where was the impact of the offense felt or likely to have been felt;
. which jurisdiction has the greater interest in prosecuting the offense;
. which police force played the major role in the development of the case;
[*134] . which jurisdiction has laid charges;
. which jurisdiction has the most comprehensive case;
. which jurisdiction is ready to proceed to trial;
. where is the evidence located;
. whether the evidence is mobile;
. the number of accused involved and whether they can be gathered together for trial in one place;
. in which jurisdiction were most of the acts in furtherance of the crime committed;
. the nationality and residence of the accused;
. the severity of the sentence the accused is likely to receive in each jurisdiction.
n200
Moreover, due regard should also be given to whether prosecution in the requested state, given that state's domestic
law and international instruments for cooperation in criminal matters, would be equally effective there. n201
No matter how persuasive and reasonable such recommendations are, they seem to be followed much easier by the
common law countries than by the civil law countries. It is more doubtful whether they can become equally attractive
and compelling for countries whose domestic legislation has traditionally opposed the idea of extradition of nationals.
For example, narcotic offenses involving Colombians have often been committed in Colombia, but the effects of these
crimes have been felt in the United States and have constituted crimes under U.S. law. In such instances, the United
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States may have the greater interest in the prosecution of the crime, especially if the crime did not cause much injury in
Colombia. However, it is rather unlikely that this [*135] is a strong enough argument to convince Colombia to lift the
ban on extradition of nationals.
3. Practicality of Prosecution in Lieu of Extradition
Practical problems in fulfilling the obligation under judicare do not necessarily result from a lack of goodwill on the
part of the requested state. Rather, the impunity of the offender and the frustration of justice should be viewed, on the
one hand, as a result of the requested state's inability to break with the rule of non-extradition of nationals, and on the
other hand, its inability to overcome difficulties inherently involved in prosecuting and punishing offenders for crimes
committed abroad. Admittedly, in some instances the requested state may be unwilling or unable, because of legal or
other reasons, to prosecute a national whose extradition has been requested by another state. Moreover, even when the
requested state institutes criminal proceedings, problems may still arise. At the very least, the refusal to extradite may
strain relations between the requesting and the requested states. Furthermore, the former may believe - and the facts
may in some instances support this belief - that the latter will inadequately pursue the prosecution, with the result that
the accused will be acquitted or will receive too lenient a sentence. n202 In 1938, U.S. Secretary of State Cordell Hull
complained that
such punishment as has been inflicted upon nationals of other countries in their own lands for offenses committed in the
United States has, in general, been much lighter than the offenses committed appeared to warrant, and in many cases no
punishment at all has been [*136] inflicted and the trials held have resulted in acquittals. n203
Much earlier, one scholar held that, because a government does not have a substantial interest in punishing crimes
committed in the territory of another state, prosecution and trial in such cases will be conducted in a "careless,
indifferent and intermittent manner." n204
Even where the competent authorities of the requested state have instituted criminal proceedings against one of its
nationals whose extradition was refused, frequently they cannot carry out the proceedings because pursuing an
investigation requires evidence which, obviously, can only be found in the territory of the requesting state, where the
offense was committed. The latter, however, is either not in a position or is unwilling to put such evidence at the
disposal of the requested state. Worse still, the problem may not always be satisfactorily corrected through the use of
mutual (legal) assistance, for it may be precluded on the ground of ordre public, especially where the state seeking such
assistance exercises its own inherent criminal jurisdiction over the offense. n205 Even to the extent that seeking
evidence abroad is legally possible, that operation creates three types of problems: (1) bringing witnesses from distant
countries imposes heavy financial burdens on both them and the accused, not to mention serious practical difficulties;
(2) some evidence is not available at all, such as a viewing of the [*137] scene of the crime; and (3) if the evidence
was taken abroad, the prosecution may have difficulty using it at trial due to possible procedural restrictions. To
overcome the latter impediment, the law of evidence would have to be substantially changed, especially in common law
countries. n206 However, the possibility of such a "revamping" has been met with skepticism. n207 Generally,
government declarations and treaty (convention) stipulations notwithstanding, prosecution of nationals in lieu of
extradition is viewed as a sort of "second class" criminal proceeding, n208 although this was not always the case.
n209
D. Enforcement of Foreign Sentences: A Viable Option?
In 1978, Israel enacted a new law providing that Israeli nationals may not be extradited to foreign states. n210 At the
same time, concern was expressed about cases in which Israeli offenders, sentenced to imprisonment abroad, would
manage to escape and flee to Israel. Because their extradition was no longer possible, the enforcement of foreign penal
judgments was found to be justified. The Israeli Penal Code was amended accordingly. n211 The scope of application
of the law is not, however, limited to cases of successful escape from a foreign prison; it is applicable to any citizen of
Israel re [*138] siding or found in that country who was sentenced in a foreign state. n212
In Canada, the Supreme Court's ruling that extradition of Canadian citizens is allowed under section 6(1) of the
Charter of Rights and Freedoms n213 was based, inter alia, on the possibility that the offender sentenced in a foreign
country would be transferred back to Canada to serve his sentence.
When extradition is requested for the purpose of enforcement of a sentence and the fugitive is a national of the
requested state, rational criminal justice policy, humanitarian considerations, and the need for resocialization of the
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offender call for creating an option that would allow the sentenced person to serve imprisonment in his home country,
rather than be extradited to the country that imposed the sentence. This would require cooperation between both states
concerned. n214 The requesting state would have to be willing to entrust the enforcement of a sentence imposed by
its court with the competent authorities of the requested state, knowing not only that imprisonment will be served
pursuant to the domestic law of the requested state, but also that, once the enforcement is completed, this will be
binding on the courts and other authorities of the requesting state by creating ne bis in idem. At the same time, the
requested state would have to be ready to confer on its authorities a duty to respect and enforce a judgment rendered by
a foreign court.
One could argue that the traditional maxim aut dedere aut punire (aut dedere aut judicare) should be supplemented
by the rule aut dedere aut poenam persequi (either surrender or enforce the sanction). n215 The need for such a
supplement becomes clear in cases in which a foreign prisoner has escaped [*139] from prison and has fled to his
home country. In the vast majority of states, an extradition request submitted by the sentencing state will be refused
because the fugitive is a national of the requested state. The principle aut dedere aut judicare would mandate that he be
prosecuted in the latter state. However, because the rule ne bis in idem would be violated as a result, it might be
preferable that the requested state, rather than bring a new case against him, enforce a sanction imposed on him by the
requesting state's court.
It seems reasonable and logical to elaborate an aut dedere aut judicare system to the effect that it includes both
accused and convicted fugitives. There are no compelling reasons that would oblige the requested state to institute a
new prosecution whenever that state refused to extradite the accused. Rather, it is more rational and practical for that
state to assume enforcement of a judgment pronounced in the sentencing state, or the remainder thereof.
Adoption of the rule aut dedere aut poenam persequi would naturally require an appropriate amendment of
domestic law. Legislators should bear in mind that the advantages of this system are unquestionable. First, because no
new proceedings must be instituted, the enforcing state need not bear the cost and organizational burden of carrying out
criminal proceedings. Second, the law enforcement authorities of the enforcing state could avoid difficulties in
obtaining evidence, for the majority of evidence would probably be available abroad, i.e., in the sentencing state. Third,
as the competent authorities of the enforcing state are bound by the factual findings of the foreign forum, the risk could
be avoided that a court of this country may, on the basis of the same evidence, reach conclusions different from those
reached in the foreign judgment.
Because the aut dedere aut poenam persequi rule, similar to the maxim aut dedere aut judicare, is thought of as a
form of international commitment, enforcement of a foreign judg [*140] ment should not be subject to the consent of
the fugitive offender. n216 There are no convincing reasons for putting him on a better footing than an accused
against whom a prosecution is to be instituted in accordance with the aut dedere aut judicare rule.
It is noteworthy that the basic elements of the proposed system have been adopted in the U.N. Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 n217 and the Inter-American Convention on
Extradition of 1981. n218
E. Legislative and Treaty Stipulations: "Trick or Treat?"
When an extradition treaty is negotiated between common law and civil law countries, the question of delimiting its
scope ratione personae is usually exacerbated by the requirement of reciprocity. The situation creates an almost
insurmountable difficulty when both parties take uncompromising positions whereby one party demands that the treaty
should apply to all fugitives, including nationals, n219 and the other party claims that it is not in a position to deliver
up its own citizens. To avoid a stalemate, a solution must be agreed upon. As both the English and American
experiences demonstrate, n220 there are ways in which a rec [*141] onciliation may be reached. Generally, a
compromise has been reached at the expense of the common law partner, who not only sacrificed the criminal law
doctrine of territoriality, but also either explicitly renounced the rule of reciprocity or gave it a very broad interpretation.
In some instances, at the insistence of the civil law country, the common law country has not had much choice but to
agree to an absolute exception of nationals, especially when even a discretionary or optional clause was unacceptable to
the other negotiating country. n221
In the very few instances when a common law government has prevailed, at least on the face of the treaty
stipulations, this soon appeared to be a Pyrrhic victory. For example, France signed treaties in 1843 with both Great
Britain and the United States providing for the extradition of all persons, without an exception for French nationals.
However, the deviation from the strict policy of non-extradition of nationals in France was more apparent than real
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because these treaties had no impact whatsoever on actual practice. The French government clearly indicated that it did
not consider itself obligated to deliver up French citizens to either of these two countries. n222 As a result, no French
subject has ever been extradited under these treaties. n223
One of the dilemmas that common law states face when negotiating treaties with most civil law countries is
whether their governments should extradite their citizens to countries that are unable or unwilling to reciprocate. Strictly
interpreted, as was the case in the nineteenth century, the rule of reciprocity would strongly militate against [*142]
the surrender of nationals in a situation where there was a manifest lack of equivalence in the obligations of both
signatories. An example of such an approach can be found in the extradition treaty concluded between the United States
and Prussia in 1852, under which the former government, "with a view of making the Convention strictly reciprocal,"
was "held equally free from any obligation to surrender citizens of the United States." n224 Criticizing a similar
situation in Great Britain, one author noted that "faithfulness to the doctrine of reciprocity had created a situation in
which England found herself a slave to injustice and a servant of crime." n225 The attitude toward reciprocity, in the
context of the surrender of nationals, has changed in the United States, such that even the failure of the other party to
accord reciprocal surrender of its own nationals cannot be a ground for the refusal of the surrender of a United States
citizen when the treaty does not grant such a right of refusal. In 1913, the U.S. Supreme Court repudiated an emphasis
on reciprocity. In Charlton v. Kelly, the Court held that the Italian government's failure to extradite its own citizens to
the United States under a treaty that made no exception for nationals did not prevent the U.S. government from
extraditing its own citizens. n226 Under contemporary practice, the extradition of U.S. citizens is allowed when the
respective treaty provides for discretion in this respect or where the treaty is silent on the issue of extradition of
nationals. n227
In treaty practice, various formulas have been employed to accommodate the conflicting laws and policies
regarding the surrender of nationals, on one hand, and to "encourage" the civil law governments to deliver them up, on
the other hand. One option is a unilateral clause that exempts from extradition only nationals of one signatory state. In
an [*143] 1880 treaty with Switzerland, the British government agreed to a provision whereby British subjects would
be surrendered to Switzerland, but Swiss citizens would not be surrendered to Great Britain. Rather, Swiss citizens
would be prosecuted in Switzerland according to the laws of their canton of origin for offenses committed in British
territory. n228 However, this practice was later abandoned because both the Foreign Office and the Home Office
considered the waiver of reciprocity to be too high a price to pay in the extradition relations between Great Britain and
other countries. n229
Another formula that has been employed to accommodate conflicting laws and policies is the "optional clause,"
which provides that "neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the
stipulations of this convention." In Great Britain, this optional clause provision was held to be quite different from the
unilateral clause: a British subject might be surrendered to a foreign country notwithstanding that the government was
under no treaty obligation to do so. n230 As the Foreign Office explained, the optional clause did not express a
discretion to surrender, but rather "a discretion not to surrender." n231 A similar interpretation has been adopted in
Canada, where it is held that such a treaty stipulation, as opposed to an absolute exemption of nationals from
extradition, provides the requested state with discretion to surrender its citizens. n232 Inclusion of such a formula in
extradition treaties seems to have developed into standard practice in recent years. n233 The Mexican Supreme Court
has [*144] interpreted the optional clause as not prohibiting, but authorizing, the parties to surrender their own
citizens, in their discretion. n234 Chief Justice Vallarta pointed out that if it had been the intention of the signatory
states to prohibit their executive authorities from surrendering their own citizens, they would have employed language
whose meaning was clear, as had been done in other treaties that expressly stated that the citizens of either party state
are excepted from the obligation to extradite. n235
It seems that the United States is the only country that has adopted an expanded interpretation of the
aforementioned optional clause. Early practice and executive opinions tend to support the view that such a clause
imported no discretionary power to surrender. n236 Between 1874 and 1891, four U.S. Secretaries of State adopted
the view that the extradition treaty with Mexico, which contained such a clause, precluded the extradition of nationals.
n237 In 1891, a federal court confirmed this opinion in Ex parte McCabe, when it held that the President had no power
under the treaty to surrender an American woman charged with murder in Mexico. n238 This conclusion was based
on the assumption that, where there is no obligation to extradite, there is also no authority to do so. In 1936, the U.S.
Supreme Court addressed this issue in Valentine v. United States ex rel. Neidecker, where it held that a simple optional
clause could not be interpreted as imposing an obligation on the signatory states to surrender their nationals and that,
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without such an explicit duty to extradite, the United States had no constitutional power to deliver up its citizens.
n239
Implicit in Neidecker was the view that an expanded interpretation of the optional clause would give to the signa
[*145] tory states the discretionary power to surrender nationals, thus effectively authorizing the executive to deliver
up U.S. citizens. The expanded version appeared as a simple optional clause, supplemented by a discretionary clause:
"but the executive authority of each [party] shall have the power to deliver them [(nationals)] up if, in its discretion, it
be deemed proper to do so." n240 The new formula was adopted with the belief that it would satisfy both the
countries that are willing to surrender their nationals and those that are unwilling or unable to do so. In contemporary
practice, the United States insists on the inclusion of such a clause in extradition treaties. n241 Its significance lies in
the fact that it allows extradition despite a lack of reciprocity. n242
[*146] Treaty stipulations regarding the surrender of nationals are not of paramount importance to civil law
countries, even though these countries paradoxically place international treaties on equal footing with domestic law; in
many instances, international treaties are given priority over domestic legislation. n243 When it comes to the
surrender of nationals, the entire problem boils down to the question of whether the national law prohibits the
extradition of citizens. If it does, the ban will be enforced, a treaty clause notwithstanding. It is not even necessary that
the relevant provision be included in the constitution; a regular statute or a code will suffice. From the perspective of
civil law countries, it is not important whether a treaty has been made applicable to "all persons" or whether one or the
other optional clause has been adopted in it. By having decided in the past that they will not extradite their own
nationals, civil law countries have tied their hands in matters pertaining to extradition, and it is doubtful whether they
can be relieved from this self-imposed duty solely by virtue of an international treaty. If any change in this area is to be
expected, it has to come from within; it has to start with the general public and the legislative bodies.
The general failure of the optional clause, whether in a simple or extended version, to accomplish its goal among
civil law countries clearly supports the opinion in the preceding paragraph. Contemporary extradition practice reveals
that the optional clause has not resulted in the voluntary surrender of nationals, despite the hopes of its drafters that its
use would encourage and gradually bring about a [*147] rejection of the rule of non-extradition of nationals. A
formula that satisfies both signatory states can be found in a treaty concluded between Mexico and Italy, which provides
for the extradition of all persons whose surrender is permitted by the laws of the respective countries. n244 This
treaty formula permits Mexico to deliver up its nationals and concurrently allows Italy to refuse to extradite its citizens.
Although this particular treaty was signed almost one century ago, the extradition formula may still be a viable option
today. n245
F. Conditional (Temporary) Surrender
A state may refuse to surrender its nationals for trial in a requesting state and instead prosecute such persons itself.
However, the judgment and sentence need not be considered a satisfactory settlement of the case, particularly when the
accused has been acquitted. In such a situation, the requested state can offer to deliver up its national to the requesting
state for trial on the condition that the offender, if convicted, be transferred back to the requested state to serve his
sentence. This solution could be proposed as a modus vivendi between the conflicting interests of an effective
suppression of criminality and constitutional requirements and restrictions. It should serve as a remedy to the
inconveniences emerging from the transfer of criminal proceedings and extradition. This mechanism could operate more
efficiently if combined with a division of the criminal procedure into two stages. In the first stage, the verdict would be
de [*148] livered in the requesting state. n246 In the second stage, the penalty would be imposed in the requested
state. n247
This two-stage solution has been adopted in the Netherlands. n248 The Extradition Act, as amended in 1988,
provides that a Dutch national may be extradited to a foreign state for the purpose of standing trial in the requesting
state if the Dutch Minister of Justice has reason to believe there is a sufficient guarantee that, once sentenced to
(unconditional) custody in the requesting state for the offense for which his extradition had been granted, the offender
would be able to serve his sentence in the Netherlands. Although an offender cannot raise an objection against his
extradition to a foreign state, he can choose the country in which his sentence will be served. n249 This resembles the
solution adopted in the vast majority of prisoner transfer treaties, which make the transfer of prisoners dependent on the
consent of the sentenced person. n250
Extensive discussions on extradition and international cooperation in criminal matters within the International Law
Association (ILA) have resulted in a model convention that allows for the extradition of nationals of the requested state
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13 Emory Int'l L. Rev. 77, *
on the condition that, once convicted, they would be returned to the state of their habitual residence for purposes of
enforcement of their sentences. In 1976, the International Criminal Law Committee was created. It drafted Parts I and II
of the Model Convention on Expatriation of Accused Persons for Trial and Sentence and Repatriation for Enforcement
of Sentence, which were subsequently adopted at the 58th Conference of the ILA, held in Manila in 1978. n251
[*149] Part I of the Model Convention concerns expatriation. This term describes extradition in the context of
trial, with the condition of repatriation for the enforcement of the sentence. Part II concerns the repatriation of sentenced
persons who have been tried following either (a) their expatriation, or because (b) they were extradited unconditionally,
or (c) were, prior to their trial, already in the state in which they had been tried. It was submitted that Part II might
constitute a separate convention regarding the transfer of sentenced persons for execution of the imposed sanctions.
Expatriation-repatriation, the underlying idea of the Model Convention, was not entirely new at the time of its
drafting. The idea was proposed prior to the ILA conferences by H. Schultz and I. Shearer, in 1970 and 1971,
respectively. Schultz believed that such a solution could remedy the inconveniences relating to the transfer of criminal
proceedings and extradition. n252 Shearer pointed out that the solution should firmly rest upon the principle that the
proper court for the trial of a criminal is the court of the locus delicti. n253 He suggested, however, that the
extradition ought to be limited to the trial and judgment only; once an extradited national has been sentenced by a
foreign court, he should be returned to his home state to serve the sentence imposed abroad, but subject to the
regulations in force in the home country. n254
Expatriation-repatriation was not necessarily designed to protect extradited persons from harsh or discriminatory
treatment at the hands of foreign countries. Nor was the proposal designed to ameliorate the practical disadvantages
faced by a foreign prisoner. Its main purpose was to secure to the most appropriate forum jurisdiction over criminals
and at the same time to secure to the most appropriate organs the task of corrective punishment and rehabilitation. A sec
[*150] ondary effect of returning a convicted offender to his home country is to permit the possibility of his release
from prison in the rare case where a miscarriage of justice has occurred.
G. An International Criminal Tribunal: A Special Case?
For a variety of reasons, there has been a general dissatisfaction with the ineffectiveness of extradition. Extradition is a
cumbersome, lengthy, and difficult process. Further, there are restrictions and limitations inherent in each of the
solutions that have been thus far discussed. Hence, over the last few decades, countries have increasingly resorted to
other measures to deal with this problem. n255 Some suggest that a neutral international criminal court may help to
resolve some of the difficulties that have emerged within the framework of extradition, especially the policy of
non-extradition of nationals. n256 It is noteworthy that a number of Caribbean and Latin American countries have
indicated that that they would like to have a third option in addition to the choice between domestic trial or extradition,
as indicated in the principle aut dedere aut judicare. n257 The reluctance of such countries to extradite their nationals
to the United States is not only due to the fear of retaliation from criminal organizations. It also reflects the sentiment in
these countries that their citizens should not be extradited and tried in the United States, a country whose culture and
legal traditions substantially differ from their own. Therefore, a neutral forum may well be attractive to these countries.
Even when the idea of an international criminal court has been agreed upon in principle, n258 there are still some
re [*151] maining questions. Should such a court have the authority to compel a state to arrest, detain, and transfer
suspected criminals, notwithstanding that state's obligations under its domestic law or extradition treaties? Or, to the
extent that an international criminal court may override some traditional limitations on extradition, what issues, if any,
may the requested state raise as a basis for not surrendering the wanted person? Lastly, what is the position of the
wanted person, especially if he is a national of the requested state, in the new and substantially changed system of
offender rendition?
An opportunity to address at least some of these issues presented itself in 1993, when the Security Council
established the International Criminal Tribunal for the Former Yugoslavia under Chapter VII of the U.N. Charter.
n259 Although extradition is a universally recognized and accepted means of transferring criminal defendants from the
jurisdiction of one sovereign state to another, n260 the word "extradition" does not, however, appear in either the
constitutive documents of that Tribunal - Security Council Resolution 827 n261 and the Statute of the Tribunal
n262 - or in the Report of the Secretary-General. n263 Instead, these documents refer to "surrender" and "transfer" of
the alleged international criminals at the request of the Tribunal. This change in terminology reflects important
conceptual and [*152] operative differences between transfer or surrender under the Statute of the Tribunal and under
traditional notions of extradition.
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13 Emory Int'l L. Rev. 77, *
To determine the consequences of this change for states, it is necessary to examine the underlying ideas behind the
new solution, as well as the lines along which these mechanisms have been shaped. The Security Council has obligated
all states to "cooperate fully" with the International Tribunal and its organs, in accordance with Resolution 827 and the
Statute of the Tribunal. n264 The consequences of this decision are twofold. First, all states must take any measures
necessary under their domestic law to implement the Resolution and the Statute. Second, states are under an explicit
obligation to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute.
Paragraph 1 of Article 29 provides: "States shall cooperate with the International Tribunal in the investigation and
prosecution of persons accused of committing serious violations of international humanitarian law." n265 Paragraph 2
specifies that such assistance requires compliance with orders of the Tribunal's trial chambers, including, but not limited
to, the arrest or detention of persons and the surrender or transfer of defendants to the Tribunal. n266 In his report, the
Secretary-General stated that such an order "shall be considered to be the application of an enforcement measure under
Chapter VII of the Charter of the United Nations." n267 In view of the wording of Security Council Resolution 827
and Article 29 of the Statute of the Tribunal, as well as the explanation contained in the Secretary-General's Report, it
may be held that, from the perspective of international law, the surrender or transfer of an offender by a state to the
Tribunal substantially constitutes [*153] the granting of an extradition request under a treaty. The only question is
whether the obligation that is imposed on states is superior to domestic law in the sense that it makes any conceivable
ground for refusal inapplicable in individual cases. n268 An argument in favor of a broad interpretation of this
obligation can be found in the Rules of Procedure and Evidence: "The obligation laid down in Article 29 of the Statute
shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which
may exist under the national law or extradition treaties of the State concerned." n269 Similarly, the Secretary-General
pointed to an international obligation based on Chapter VII of the U.N. Charter. n270 If we accept that the documents
pertaining to the Yugoslavia Tribunal have removed all possible grounds for refusal, then we would have to conclude
that the authorities of the requested state, being unable to invoke any bar to "surrender" or "transfer," are placed in an
awkward position of either violating their domestic law or violating their international obligation. That would also mean
that the principle aut dedere aut judicare has been replaced by a mandatory requirement of transfer (dedere). n271 In
interpreting the pertinent stipulations, a balance should be struck between the need for the Tribunal to transcend
traditional extradition treaty limitations and its providing states with some assurance that they will not be compelled to
depart from what they consider the fundamental principles of their own domestic legal systems. Consequently, the
reasons to deny the request submitted by the Tribunal should not be based [*154] on the nonconstitutional,
nonfundamental, or discretionary grounds for refusal of extradition, such as nationality, domicile, or humanitarian
considerations.
Unfortunately, because these matters have not been clarified, states have taken it upon themselves to determine the
extent of their cooperative obligations to the Tribunal. As expected, this has led to inconsistent results with respect to
the question of the surrender or transfer of their nationals. Where the prohibition against extradition of nationals has
been incorporated into a constitution, this problem is exacerbated. The following three countries illustrate a diverging
practice in this respect:
1. Croatia
Article 9 of the 1990 Constitution provides: "No citizens of the Republic of Croatia shall be expelled from the
Republic or be deprived of citizenship, and may not be extradited to another state." n272 Based on the Constitutional
Act on the Cooperation of the Republic of Croatia with the International Criminal Tribunal of April 19, 1996, the
legislature has transferred a portion of the state's sovereignty to this supranational body. Consequently, there is no
longer a need to maintain the rule of non-extradition of nationals in relations with the Tribunal.
2. Germany
In Germany, the prohibition against the extradition of nationals is included in Article 16(2) of the Basic Law. The Law
on the Cooperation with the International Tribunal for the former Yugoslavia of April 10, 1995 n273 confirms
expressis [*155] verbis that this constitutional stipulation fully applies to the dealings with the Tribunal. n274 In
the debate on that Law, the Upper Chamber (Bundesrat) expressed its regret that German nationals could not be
surrendered to the Tribunal and requested the Government to promptly prepare the necessary legislation to amend
Article 16(2) of the Basic Law. n275 Without this change, Germany will not be able to fulfill its international
obligation.
3. Poland
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13 Emory Int'l L. Rev. 77, *
In 1997, for the first time in Poland's long history, the prohibition against the extradition of nationals was included in
the Constitution. n276 The Polish government has not submitted any proposed legislation regarding cooperation with
the Yugoslavia Tribunal. Instead, the new 1997 Code of Criminal Procedure specifically states that provisions of Part
XIII of the Code, including Chapters 64 and 65 on extradition, shall be applied mutatis mutandis in relations between
Poland and international tribunals and their organs that have been established by international treaties or conventions
ratified by Poland. n277 It follows that the requests submitted by the Yugoslavia Tribunal have neither "special
status" nor "preferential treatment," and more importantly, all domestic regulations are fully applicable to them,
including the rule of non-extradition of nationals.
The problem of the surrender of a state's own nationals to an international criminal tribunal warrants the following
general observation: given the origin and development of the rule of non-extradition of nationals, as well as the vital
interests involved in this issue, there are grounds for skepticism with respect to whether the concessions made by
[*156] governments in this area will open a floodgate in general extradition practice. There are reasons to believe that,
at least in the near future, the opposite may be true: governments and legislatures will defend this rule even more
vigorously in the remaining sphere. Even worse, to the uncompromised protagonists of the existing system, an
exception made for the international criminal court, if made at all, may become a powerful argument to claim that the
opposite - that is, non-extradition of nationals - is still a rule and, as such, has remained valid.
H. A New Ground for Refusal of Extradition?
The solution to this problem should be based on the replacement of the rule of non-extradition of nationals by the new
ground for refusal of surrender: the possible violation of procedural safeguards in the criminal proceedings carried out
against the requested offender in the territory of the requesting state. This is a more flexible solution than the old, rigid
rule. At the same time, it offers full protection to the nationals of the requested state, provided that concern regarding
the well-being of the requested state's nationals is the underlying reason for that state's refusal to extradite. Although the
ruling of the European Court of Human Rights in Soering was limited to the protection of the extraditee against torture
or inhuman or degrading treatment or punishment (Article 3 of the European Convention on Human Rights), the court
left open the possibility that an issue might be raised under Article 6 of the Convention by an extradition decision under
circumstances in which the fugitive has suffered, or risks suffering, a "flagrant denial of a fair trial in the requesting
country." n278 This way, the integrity and effectiveness of extradition would be saved. At the same time, the
requested state would not be compelled to [*157] relinquish its Treupflicht toward its citizen sought for trial in a
foreign country. n279
Conclusion
Despite a scarcity of statistical data on extradition, the available information seems to demonstrate the practical
significance of the surrender of nationals. For example, in the United States it is reported that between ten and twenty
percent of persons extradited to foreign countries are American citizens. n280 In Germany, the nationality of the
requested person was invoked in nine percent of the cases in which extradition was refused. n281 Also relevant in this
context are the numerous instances where the authorities of the loci delicti commissi, after having realistically assessed
the chances for a granting of their request for surrender of a national of another country, do not even bother to submit it,
but instead resort to alternative methods of securing the presence of an offender, such as abduction, luring, and tricking.
n282
Whether the rule of non-extradition of nationals is called "archaic" or a manifestation of "legal xenophobia" is not
[*158] that important. Undeniably, state practice based thereon frustrates international cooperation in the trial and
punishment of alleged criminals. Criminals will go unpunished not only where the scope of application of criminal law
does not extend to the acts, and where there is no jurisdiction over their perpetrators, but also where the evidence is not
available in the forum deprehensionis and where the factual and legal difficulties in obtaining them cannot be overcome.
n283 Moreover, the rule itself constitutes an unpleasant and undesirable dissonance in the relationships among countries
that strive to build close political and economic communities. However, their efforts have not reached such a level that
their governments are ready to cede all sovereign rights to a supranational entity, and, as mentioned earlier, the
non-extradition of nationals is closely and almost inseparably linked to a state's sovereignty. n284
Although sharply criticized for being a "disruptive force in the system of international criminal law" that "unsettles
the social order of the place of the crime," n285 the rule of non-extradition of nationals has survived all of the attacks
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13 Emory Int'l L. Rev. 77, *
and has emerged as a well-established principle of international extradition. Therefore, the chances of it being
completely eradicated from state practice in the near future are slim. As one scholar put it many years ago:
Before the rise of national states it was non-existent. It emerged along with, and grew along with, the growth of national
sentiment and national solidarity. It will exist so long as national groups exist, for just so long will there be love and
esteem among fellow- [*159] countrymen and distrust and ill-feeling among national groups. n286
Well over a century ago, the idea of extradition of nationals was considered a teoria prematura (premature theory)
n287 and, regrettably, has remained as such to the present day.
FOOTNOTES:
n1. This concerns whether the deciding factor should be the formal civil status of the extraditurus, or, rather,
should it be the presence of a substantive link between the offender and the requested state, such as domicile.
n2. Dominique Poncet & Paul Gully-Hart, Extradition: The European Model, in 2 International Criminal
Law 461, 468 (M. Cherif Bassiouni ed., 1986). These authors also doubt the status of the non-extradition of
nationals as a rule of customary international law. Id. at 489.
n3. Geoff Gilbert, Aspects of Extradition Law 96 (1991); 1 Ph. Francescakis, Encyclopedie Dalloz:
Repertoire de Droit International P151, at 815-16 (1968).
n4. <um O>JZ 1961/95 (Aus.), translated in 38 I.L.R. 133, 134 (1961).
n5. Given the possibility of a change in the national status of the requested person during the time period
between the commission of an offense and the surrender, one of the three following time periods may be
relevant in assessing the individual's nationality: (1) the time of the commission of an offense; (2) the date on
which the extradition request was received by the competent authorities of the requested state; and (3) the date
on which the executive makes the final decision regarding the surrender of that person. Sometimes, for the sake
of simplicity, only two criteria are distinguished as controlling in this matter: the time of the commission of an
offense (civis antiquus) and the time of making a decision on the request (civis novus). See Aristide Baltatzis, La
non-extradition des nationaux, 13 Revue Hellenique de Droit International [R.H.D.I.] 190 (1960).
n6. There is also evidence of criticism by civil law scholars. See, e.g., Claude Lombois, Droit Penal
International 458 (1971); Hans Schultz, The Principles of the Traditional Law of Extradition, in Legal Aspects
of Extradition Among European States 9, 19-20 (Council of Europe ed., 1970).
n7. Martin T. Manton, Extradition of Nationals, 10 Temple L.Q. 12, 24 (1935).
n8. Such proposals date as far back as 1880. See Institute of International Law: Oxford Session, Sept. 9,
1880, 5 Annuaire de l'Institut de Droit Internationale [A.I.D.I.] 127, Res. 6 (1880) [hereinafter Institute of
International Law], reprinted in Harvard Research in International Law, Draft Convention on Extradition, 29
Am. J. Int'l L. 15, 296 (Supp. 1935) [hereinafter Harvard Research].
n9. A prominent example that supports this thesis is Colombia, where tremendous social and political
tension, caused by treaty and domestic legal provisions that allowed extradition of Colombians to the United
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13 Emory Int'l L. Rev. 77, *
States, eventually compelled the government to cease this practice by amending the relevant domestic
legislation. See Mark Andrew Sherman, United States International Drug Control Policy, Extradition, and the
Rule of Law in Colombia, 15 Nova L. Rev. 661, 674-80 (1991). A bloody confrontation with drug traffickers
(the "Extraditables"), who rightly feared their surrender to the American authorities and who supported this
movement, ensued and culminated in the 1985 seizure of the Palace of Justice, during which half of the Supreme
Court judges were killed. Steven Y. Otera, International Extradition and the Medellin Cocaine Cartel: Surgical
Removal of Colombian Cocaine Traffickers for Trial in the United States, 13 Loy. L.A. Int'l & Comp. L.J. 955,
969-71 (1991). The devastating consequences of terror were socially unacceptable. Id. at 971 n.129. In 1991,
Colombia adopted a new constitution that explicitly prohibited the extradition of its nationals. Constitucion
Politica de Colombia art. 34.
n10. See, e.g., Heinrich Lammasch, Auslieferungspflicht und Asylrecht 380 (Leipzig, Verlag von Duncker
& Humblot 1887); Pasquale Fiore, Traite de Droit Penal International et de l'Extradition 32-34 (A. Durand ed.,
2d ed., Paris, Pedone-Lauriel 1880).
n11. This explains why, under most tribal laws, banishment was the most severe form of punishment.
n12. Donnedieu de Vabres, Introduction a l'Etude du Droit Penal International 17 (1922).
n13. Theodor Mommsen, R<um o>misches Strafrecht 108 (Graz, Akademische Druck - U. Verlogsanstalt
1955) (1899).
n14. W. Nussbaum, Geschichte des V<um o>lkerrechts 13 (1960).
n15. F. Meili, Lehrbuch des Internationalen Strafrechts und Strafprozessrechts 45 (1910); J. Kohler,
Beitrage zum internationalen Strafrecht, 5 Zeitschrift mit besonderer Ber<um u>cksichtigung der Rechtshulfe
232, 234-35 (1893).
n16. "Treupflicht" is the German legal principle that "the State has a special duty to extend its protection to
all its subjects." Ivan A. Shearer, Extradition in International Law 105 & n.5 (1971). "Applied in the field of
extradition this principle requires the non-extradition of German nationals." Id.
n17. Dietrich Oehler, Internationales Strafrecht 88 n.21 (2d ed. 1983).
n18. Id. at 89 & n.22 (issued by Charles IV on July 25, 1349). This Bull has been erroneously dated as 1355
by some authors. See, e.g., Robert W. Rafuse, The Extradition of Nationals, in 24 Ill. Stud. Soc. Sci. 75 (1939);
Shearer, supra note 16, at 95.
n19. Oehler, supra note 17, at 89.
n20. 1 John Bassett Moore, A Treatise on Extradition and Interstate Rendition 153 (Cambridge, University
Press 1891).
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13 Emory Int'l L. Rev. 77, *
n21. Shearer, supra note 16, at 103-04.
n22. A. Billot, Traite de l'Extradition 41-42 (Paris, E. Plon et Compagnie 1874).
n23. Ludovic Beauchet, Traite de l'Extradition 58 (A. Chevalier-Marescq ed., Paris, Librairie Marescq Aine
1899).
n24. 1 Moore, supra note 20, at 153.
n25. 4 M. Travers, Le Droit Penal International 23 (1922).
n26. The French included such a clause in the extradition treaty with Belgium dated November 22, 1834.
Treaty on the Extradition of Malefactors, Nov. 22, 1834, art. 1, Fr.-Belg., 12 Martens, Nouveau Receuil des
Traites 732.
n27. See Shearer, supra note 16, at 100; Convention for the Surrender of Criminals, Nov. 9, 1843, U.S.-Fr.,
8 Stat. 580.
n28. Billot, supra note 22, at 73.
n29. See Harvard Research, supra note 8, at 380-81.
n30. J.B. Morre, Report on Extradition 153 (1890).
n31. Bundesblatt [BB1] 1979 I 529 (Switz.).
n32. Constituzione [Cost.] art. 26, P 1 (Italy). It is noteworthy that a similar provision was adopted in the
Italian Criminal Code in 1930. Codice penale [C.p.] art. 13, P 4. This pronouncement not only was a
breakthrough in the rigid policy of excluding nationals from extradition, but also soon bore its first practical
fruits. In 1931, Italy signed an extradition treaty with Brazil which provided that the requested state may refuse
to surrender its nationals only when it is competent to prosecute them. Treaty for the Extradition of Offenders,
Nov. 28, 1931, Braz.-Italy, 132 L.N.T.S. 355.
n33. See, e.g., M. Cherif Bassiouni, International Extradition: United States Law and Practice 593 (3d ed.
1996).
n34. The title of the book Ein Deutscher darf nicht ausgeliefert werden! ("A German must not be
extradited!") is instructive. See Wolfgang Mettgenberg, Ein Deutscher darf nicht ausgeliefert werden! (1925).
n35. See, e.g., 1 Johan Kluber, Droit des Gens Moderne de l'Europe 66 (Paris, J.P. Aillaud 1831); M.
Bluntschli, Le Droit International Codifie 399 (Paris, Librairie de Guillaumiu 1870).
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13 Emory Int'l L. Rev. 77, *
n36. See, e.g., Oehler, supra note 17, at 181-86.
n37. Possibly, "irrational feelings" also play a significant role in perpetuating the rule of non-extradition of
nationals. Cf. 2 George Dahm, V<um o>lkerrecht 391 (1961).
n38. 2 Paul Bernard, Traite Theoretique et Pratique de l'Extradition 98 (Arthur Rousseau ed., Paris, Librarie
Nouvelle 1883).
n39. See Royal Commission on Extradition, Report of the Commissioners, 1878, C. 2039, at 3 (Gr. Brit.)
[hereinafter Extradition Report].
n40. The Queen v. Wilson, 3 Q.B.D. 42, 44 (1877).
n41. Extradition Report, supra note 39, at 6.
n42. Id.
n43. Neely v. Henkel, 180 U.S. 109, 123 (1900). In the 1980s, some appellate courts appeared to be more
receptive to human rights considerations by allowing, in exceptional situations, an inquiry into the criminal
procedure and punishment awaiting the extraditee in the requesting state. See, e.g., In re Extradition of Burt, 737
F.2d 1477 (7th Cir. 1984).
n44. In re Arevalo, 10 Ann. Dig. 329, 330 (Colom. 1942). The Supreme Court of Colombia stated, "The
reason for prohibiting the extradition of nationals on the request of another state is... the risk of possible grave
dangers in the trial abroad." Id.
n45. See M. Cherif Bassiouni, Two Models of Extradition in Law and Practice: International Extradition in
American Practice and World Public Order, in 2 A Treatise on International Criminal Law 347, 365-67 (M.
Cherif Bassiouni & Ved P. Nanda eds., 1973) (criticizing extradition of nationals as discriminatory due to its
disparate impact on nationals vis-a-vis non-nationals). To avoid possible misunderstanding, it must be made
clear in this context that, even where there is an absolute prohibition of extradition of nationals, it does not
follow that, as a corollary, there is an equally absolute obligation to surrender each and every non-national by
the requested state. Each case must be examined on its merits, and the decision must take into account both the
pertinent treaty stipulations and the domestic legislation. Cf. Otto Lagodny, Die Rechtsstellung des
Auszulieferenden in der Bundesrepublik Deutschland 52 (1987).
n46. Harvard Research, supra note 8, at 128.
n47. See Shearer, supra note 16, at 119-20; Dominique Poncet & Philippe Neyroud, L'extradition et l'asile
politique en Suisse 45 (1976).
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13 Emory Int'l L. Rev. 77, *
n48. Harvard Research, supra note 8, at 128. This provision was repeated in Article 53 of the Charter of
1830 and Article 4 of the French Constitution of 1848.
n49. 4 Travers, supra note 25, at 23. Travers argued that "natural judges" addressed judges of the place
where the offense was committed, rather than judges of the nationality of the accused. Id.
n50. 3 Martens, Nouveau Recueil des Traites 376 (emphasis added).
n51. Nicholas Kasirer, Defences, Exceptions and Exemptions to Extradition, 62 Revue Internationale de
Droit Penal [R.I.D.P.] 91, 95 (1991).
n52. See Harvard Research, supra note 8, at 128 & n.1.
n53. Id.
n54. 1 William S. Holdsworth, A History of English Law 317 (7th rev. ed. 1956).
n55. United States v. Cotroni [1989] 1 S.C.R. 1469, 1498 (Can.).
n56. Heinrich Meyer, Die Einlieferung 73 (1953); see also supra note 16.
n57. Oehler, supra note 17, at 181.
n58. In re Galwey, 1 Q.B. 230, 233 (1896).
n59. A. Huet & R. Koering-Julin, Droit Penal International 357 (1994).
n60. This "subjective criterion" was advocated in the European context by W. Duk, Principles Underlying
the European Convention on Extradition, in Legal Aspects of Extradition Among European States, supra note 6,
at 29, 33, and more recently by Bert (A.H.J.) Swart, Human Rights and the Abolition of Traditional Principles,
in Principles and Procedures for a New Transnational Criminal Law 505, 533 (Albin Eser & Otto Lagodny eds.,
1992).
n61. BB1 1979 I 529.
n62. Institute of International Law, supra note 8.
n63. Symposium, International Conference on Extradition in Siracusa, 62 R.I.D.P. 1 (1991).
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13 Emory Int'l L. Rev. 77, *
n64. A survey of international treaties published in the League of Nations Treaty Series and the first 550
volumes of the U.N. Treaty Series yielded interesting results: out of a total of 163 extradition treaties, 98 except
the nationals of the requested state absolutely, 57 give that state the discretionary right to refuse extradition, and
only eight provide for extradition regardless of the nationality of the fugitive. See Shearer, supra note 16, at 96.
n65. Institute of International Law, supra note 8, Res. 8.
n66. See Sharon A. Williams, Nationality, Double Jeopardy, Prescription and the Death Sentence as Bases
for Refusing Extradition, 62 R.I.D.P. 259, 260-66 (1991); Peter Wilkitzki, Defences, Exceptions and
Exemptions in the Extradition Law and Practice and the Criminal Policy of the Federal Republic of Germany
(Excluding the "Political Offence" Defence), 62 R.I.D.P. 280, 286-89 (1991).
n67. Atti della Commissione ministeriale per lo studio e la compilazione di un pregetto di legge sulla
extradizione, Decreto, Oct. 15, 1881 [hereinafter Atti della Commissione].
n68. In re Tivnan, 122 Eng. Rep. 971, 984 (Q.B. 1864).
n69. This kind of sentiment was also voiced in France in 1843, when the Minister of Justice said, "It is
repugnant to the national sentiment to deliver Frenchmen to foreign justice." Rafuse, supra note 18, at 79.
n70. A.L. Melai, Les conventions Europeennes et le traite Benelux d'entr'aide judiciare en matiere penale et
d'extradition, in Le Droit Penal International 91, 103 (1965).
N71. Such a formula was included in the first extradition treaty between the United States and Great Britain,
concluded in 1794. Treaty of Amity, Commerce and Navigation, Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116.
n72. Charlton v. Kelly, 229 U.S. 447, 467 (1913).
n73. Shearer, supra note 16, at 100.
n74. The Queen v. Wilson, 3 Q.B.D. 42, 42 (1877).
n75. In re Galwey, 1 Q.B. 230, 232 (1896).
n76. Id.
n77. See Ethan A. Nadelmann, The Evolution of United States Involvement in the International Rendition
of Fugitive Criminals, 25 N.Y.U. J. Int'l L. & Pol. 813, 848 (1993).
n78. Citizens: Of the Country of Refuge, 4 Moore Digest 594, at 301 (discussing the Report of Mr.
Frelinghuysen, Secretary of State, to the President, Feb. 13, 1884).
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13 Emory Int'l L. Rev. 77, *
n79. Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936).
n80. Id. at 18.
n81. For sharp criticisms of this decision, see James W. Garner, Non-extradition of American Citizens - The
Neidecker Case, 30 Am. J. Int'l L. 480 (1936); Arthur K. Kuhn, Extradition from the United States of American
Citizens Under Existing Treaties, 31 Am. J. Int'l L. 476 (1937).
n82. Extradition of United States Citizens 11(a), Pub. L. No. 101-623, 104 Stat. 3356 (codified as amended
at 18 U.S.C. 3196 (1998)).
n83. Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir. 1986).
n84. Escobedo v. United States, 623 F.2d 1098, 1106-07 (5th Cir. 1980).
n85. Letter from Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional
Relations, to Senator Lawton Chiles (May 18, 1976), reprinted in Extradition of Nationals, 1976 Digest 5, at
118.
n86. Christopher Blakesley, Terrorism, Drugs, International Law, and the Protection of Human Liberty
206-07 (1992).
n87. Agreement for the Surrender of Fugitive Offenders, Dec. 20, 1996, U.S.-H.K., 36 I.L.M. 842.
n88. Id. art. 3, P 1, 36 I.L.M. at 851.
n89. Id. art. 3, P 2, 36 I.L.M. at 851.
n90. The delegations expressed their shared intention that Article 3 would rarely be invoked. See
Department of State, Letter of Submittal (Feb. 4, 1997), reprinted in 36 I.L.M. 844.
n91. Commonwealth Scheme for the Rendition of Fugitive Offenders (as amended 1990) LMM (90)32,
Annex 2, P 2(1).
n92. Shearer, supra note 16, at 102.
n93. See, e.g., Extradition Law of 1970, no. 456, art. 2 (Fin.); Extradition Law of 1975, no. 39, 2 (Nor.);
Extradition Law of 1957 (as amended 1975) no. 668, 2 (Swed.).
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13 Emory Int'l L. Rev. 77, *
n94. See Nordic Extradition Law of 1960, 2(1) (Fin.).
n95. See Law Relating to Extradition of Offenders to Denmark, Finland, Iceland and Sweden of 1961, 2(1)
(Nor.).
n96. Similar provisions have been included in recent bilateral treaties between the Nordic countries and the
non-Nordic states.
n97. R. Lahti & P.O. Tr<um a>skman, The Regionalization of International Criminal Law and the
Protection of Human Rights in International Cooperation in Criminal Proceedings, 65 R.I.D.P. 251, 256-57
(1994).
n98. Treaty Concerning Extradition and Mutual Assistance in Criminal Matters, June 27, 1962,
Belg.-Neth.-Lux., 616 U.N.T.S. 27.
n99. Project de traite d'extradition et d'entraide judicaire en matiere penale, 36 Annales du Conseil
Interparlementaire Consultatif de Benelux 2, 5 (Oct. 28, 1962).
n100. J. Constant, Le Traite Benelux d'extradition et d'entraide judiciaire en matiere penale, 43 Revue de
Droit Penal et de Criminologie 91-94 (1962).
n101. M. Plachta, Development and Main Tendencies of the Polish Bilateral Treaties on Extradition: 1925 1989, 62 R.I.D.P. 635, 639-44 (1991).
n102. H. Fritzsche, Die Auslieferungsstraftaten im Verkehr der Deutschen Demokratischen Republik mit
den anderen Staaten des Sozialismus, 10 Staat und Recht 1314, 1321 (1961).
n103. See Schengen Convention of 1990, tit. III, ch. 4, 30 I.L.M. 68, 114-15.
n104. 1996 O.J. (C 313) 12 [hereinafter Article K.3 Convention]. The Convention was signed on September
27, 1996. See also Council Act drawing up the Convention Relating to extradition between the Member States
of the European Union, Sept. 27, 1996, 1996 O.J. (C 313) 02.
n105. Nadelmann, supra note 77, at 847.
n106. Article K.3 Convention, supra note 104, 1996 O.J. (C 313) at 14.
n107. Id.
n108. See European Convention on Extradition, art. 6, para. 1(a), Dec. 13, 1957, 359 U.N.T.S. 273, 280
(1960).
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13 Emory Int'l L. Rev. 77, *
n109. M. Plachta, Transfer of Prisoners Under International Instruments and Domestic Legislation: A
Comparative Study 187-93 (1993).
n110. Pol. Const. art 55, P 1. See Constitutions of the Countries of the World 7, 8, 12 (G. Flanz ed., 1997).
n111. Plachta, supra note 109, at 354-85.
n112. Oehler, supra note 17, at 182.
n113. Heinrich Gr<um u>tzner, Auslieferungsverbot und Asylrecht, in 2 Die Grundrechte 583, 588 (Franz
L. Neumann et al. eds., 1954).
n114. Cf. T. Vogler & P. Wilkitzki, Irg-Kommentar n.17 to 2 (1992).
n115. Treaty Establishing the European Economic Community art. 48(3)(b), Mar. 25, 1957, 298 U.N.T.S.
11, 36.
n116. Regina v. Governor of Pentonville Prison [1980] W.L.R. 1110, 1127 (Q.B.D.). See also In re
Carthage Healy [1984] 3 C.M.L.R. 575 (Q.B.D.).
n117. See, e.g., Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) at 55 (1989), reprinted in 28 I.L.M.
1063 (1989).
n118. Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms,
Sept. 16, 1963, 7 I.L.M. 978, 979 (entered into force May 2, 1968).
n119. Council of Europe, Explanatory Reports on the Second to Fifth Protocols to the Convention 47
(1971).
n120. F.G. Jacobs & R.C.A. White, The European Convention on Human Rights 280 (2d ed. 1996).
n121. A. Robertson & J. Merrils, Human Rights in Europe 232-33 (1993); P. van Dijk & G. van Hoof,
Theory and Practice of the European Convention on Human Rights 495 (1990).
n122. X v. Austria, App. No. 6189/73, 46 Eur. Comm'n H.R. Dec. & Rep. 214, 214 (1974).
n123. Br<um u>ckmann v. Federal Republic of Germany, App. No. 6242/73, 46 Eur. Comm'n H.R. Dec. &
Rep. 202, 210 (1974).
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13 Emory Int'l L. Rev. 77, *
n124. International Covenant on Civil and Political Rights, Dec. 19, 1966, arts. 9(1), 12, 13, 999 U.N.T.S.
171, 175-77, 6 I.L.M. 368, 371-73.
n125. This group of states includes in Europe: Germany, Article 16(2); Portugal, Article 33; Poland, Article
55(1); Austria, Article 12(1) of the Law of 1979; Croatia, Article 9; and other countries that emerged from the
former Yugoslavia, whose constitution also included the ban on extradition of nationals (Article 17). In Latin
America: Brazil, Article 5(LI); Ecuador, Article 48; Honduras, Article 102; Panama, Article 24; Peru, Article
109; and Colombia, Article 35. In Asia: Afghanistan, Article 35; Iraq, Article 26; Jordan, Article 21. In Africa:
Ethiopia, Articles 32-33; and Libya, Article 189. See M. Plachta, Extradition and Asylum under the New Polish
Constitution of 1997, 5 Studia Naukowe Uniw. Gdansk 1 (1998) (in Polish). For the text of certain constitutions
referenced above, see Constitutions of the Countries of the World, supra note 110.
n126. Proceedings of the Joint Committee on the Constitution of Canada, Hansard, Jan. 27, 1981, at 46:117.
n127. Federal Republic of Germany v. Rauca [1983] 41 O.R.2d 225, 240 (Ont. Ct. App.).
n128. See, e.g., In re Decter [1983] 148 D.L.R.3d 496 (Can.); In re Voss [1984] 12 C.C.C.3d 538 (Can.).
n129. United States v. Cotroni [1989] 48 C.C.C.3d 193, 221 (Can.).
n130. Id. at 203.
n131. Id. at 221 (La Forest, J.).
n132. Id. at 194. See also A.W. La Forest, Extradition to and from Canada 98-102 (3d ed. 1991); Sharon A.
Williams, Human Rights Safeguards and International Cooperation in Extradition - Striking the Balance, in
Principles and Procedures for a New Transnational Criminal Law, supra note 60, at 535, 550.
n133. Cotroni [1989] C.C.C.3d at 217 (La Forest, J.).
n134. The factors that are relevant to the decision whether to prosecute or to extradite have been elaborated
in Swystun v. United States [1988] C.C.C.3d 222, 227 (Man. Q.B.).
n135. Cotroni [1989] C.C.C.3d at 225.
n136. J.-G. Castel & Sharon A. Williams, The Extradition of Canadian Citizens and Sections 1 and 6(1) of
the Canadian Charter of Rights and Freedoms, 25 Can. Y.B. Int'l L. 263, 299 (1987).
n137. See, e.g., Lammasch, supra note 10, at 396 (various authors cited within); R. Lange, Grundfragen des
Auslieferungs- und Asylrechts 23 (1953); Dahm, supra note 37, at 290; Rafuse, supra note 18, at 53; Harvard
Research, supra note 8, at 128; Shearer, supra note 16, at 123; Oehler, supra note 17, at 186; Blakesley, supra
note 86, at 206; Lombois, supra note 6, at 293.
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13 Emory Int'l L. Rev. 77, *
n138. David D. Field, Outlines of an International Code 108, 109 n.5 (2d ed. 1876), reprinted in Harvard
Research, supra note 8, at 296.
n139. Institute of International Law, supra note 8, at 300.
n140. U.N. Doc. E/CN.15/1997/L.16/Rev.1, at 6.
n141. See Wilkitzki, supra note 66, at 281.
n142. 59 A.I.D.I. 177 (1981).
n143. As the Rapporteur general pointed out: "I do not expect that a recommendation to that effect has any
chance of being observed." K. Doehring, New problems of the international legal system of extradition, 59
A.I.D.I. 178 (1981).
n144. Plachta, supra note 109, at 191-95; M. Plachta, Report on the Proceedings of Session II, in Principles
and Procedures for a New Transnational Criminal Law, supra note 60, at 325, 333.
n145. See, e.g., Cost. art. 26; C.p. art. 13(4) (1930). Another example can be found in the 1914 Criminal
Code of Paraguay, art. 11.
n146. Such clauses are preferred by the common law countries. On their effectiveness, see S.D. Bedi,
Extradition in International Law and Practice 96 (1966).
n147. See Model Draft of an Extradition Treaty, art. 5 ("criminals constituting a special public danger"),
reprinted in Harvard Research, supra note 8, at 309, 310 (set forth by the International Penal and Prison
Commission in 1931). See also Proposal submitted by the Intergovernmental Expert Group on Extradition, U.N.
Doc. E/CN.15/1997/6, Annex I.
n148. Proposal adopted at the Preparatory Colloquium for the Tenth Congress of the AIDP. See [1968]
R.I.D.P. 857. The proposal was limited to crimes against mankind, war crimes, and serious violations of the
Geneva Conventions of 1949, Resolution VI(2). Id.
n149. See Law on International Cooperation in Criminal Matters of 1981 art. 7(1) (Switz.). The consent
must be in writing. Id.
n150. See Shearer, supra note 16, at 126-28; H. Schultz, Les formes nouvelles de la collaboration des Etats
dans l'administration de la justice penale, in L'Amelioration de la Justice Repressive par le Droit Europeen 104
(P. Vander ed., 1970); Model Convention on Expatriation of Accused Persons for Trial and Sentence and
Repatriation for Enforcement of Sentence, in International Law Association, Report of the 58th Conference,
Manila, 1978, at 380-90 [hereinafter Conference]. This system has been adopted in the Netherlands pursuant to
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13 Emory Int'l L. Rev. 77, *
Article 4(2) of the 1967 (Netherlands) Extradition Act (as amended in 1986), which allows the extradition of
Dutch nationals to stand trial in a foreign country on the condition that such country guarantees that the Dutch
nationals will be returned to the Netherlands to serve their sentences. See Bert Swart, Extradition, in
International Criminal Law in the Netherlands 107 (Bert Swart & A. Klip eds., 1997).
n151. Pursuant to Article 29(1) of the Statute of the International Criminal Tribunal for Yugoslavia, some
states have abandoned the rule of non-extradition of nationals in their relations with the Tribunal. See, e.g.,
Constitutional Act on the Co-operation of the Republic of Croatia with the International Criminal Tribunal, Apr.
19, 1996.
n152. See, e.g., Jacques Bernard Herzog, Competence des juridictions penales pour les infractions
commises a l'etranger, in Etudes de Droit Contemporain 545, 556-57 (1966).
n153. Christopher L. Blakesley, A Conceptual Framework for Extradition and Jurisdiction Over
Extraterritorial Crimes, 1984 Utah L. Rev. 685, 704-06, 719.
n154. Territorial jurisdiction is "stretched" by courts claiming jurisdiction over the offence where there is a
substantial link between the state and the activities of the accused. See, e.g., Rivard v. United States, 375 F.2d
882 (5th Cir. 1967); Libman v. The Queen [1985] S.C.R. 178 (Can.).
n155. See, e.g., Lombois, supra note 6, at 329.
n156. See Code penal art. 5 ("All Frenchmen who, outside the territory of France, commit a crime
punishable under French law, may be prosecuted and tried in France.").
n157. Le Moniteur Universal, May 31/June 1, 1866.
n158. Compare M. Alf. Le Poittevin, Rapport, in 2 Actes du Congres Penitentiaire International de
Bruxelles 263 (1900) (the principle of personality as a remedy), with Exemptions From Extradition: National of
Requested State, 6 Whiteman Digest 18, at 878 (the principle of personality as a justification).
n159. 5 Martens, Nouveau Recueil des Traites 398.
n160. See generally Plachta, supra note 125.
n161. 1978, 25 L.S.I. 32 (Isr.).
n162. An Israeli national may be extradited for an offense committed prior to the acquisition of his Israeli
nationality. The Extradition Law, 1978, S.H. 881.
n163. See C. Shachor-Landau, Extra-territorial Penal Jurisdiction and Extradition, 29 Int'l & Comp. L.Q.
274, 274-75 (1980); Theodor Meron, Non-Extradition of Israeli Nationals and Extraterritorial Jurisdiction:
Page 38
13 Emory Int'l L. Rev. 77, *
Reflections on Bill No. 1306, 13 Isr. L. Rev. 215, 222-24 (1978); M. Dennis Gouldman, Extradition from Israel,
Mich. Y.B. Int'l Legal Stud. 173, 196 (1983).
n164. This motive does not exhaust the rationale for the active personality principle, as there may be other
important reasons to adopt and retain this jurisdictional basis in domestic law, especially among civil law
countries. Yet, this subject warrants a separate study.
n165. See Council of Europe, Extraterritorial Criminal Jurisdiction 10 (1990).
n166. In German, this rule is called Legalit<um a>tsprinzip. On many occasions, this term is erroneously
translated as "the rule (principle) of legality," although in the English terminology the latter has nothing to do
with the duty to prosecute. Instead, the principle of legality refers to the maxim nullum crimen, nulla poena sine
lege. See Edward M. Wise, General Rules of Criminal Law, 13 Nouvelles Etudes Penales 267 (1997).
n167. Arthur K. Kuhn, Report on Extradition by the Committee of the League of Nations, 20 Am. J. Int'l L.
754, 756 (1926).
n168. Hugo Grotius, De Jure Belli ac Pacis, in The Classics of International Law, bk. II, ch. XXI, at 526-28
(James Brown Scott ed. & Francis W. Kelsy trans., 1925).
n169. Generally, two methods have been proposed to define an international crime. One is to use a concise
and general definition; the other is to employ a set of criteria ("penal characteristics") for identifying such
offenses. The former is advocated by Edward M. Wise, International Crimes and Domestic Criminal Law, 38
DePaul L. Rev. 923, 923-33 (1989), while the latter is supported by M. Cherif Bassiouni, A Draft International
Code and Draft Statute for an International Criminal Court 21-65 (1987).
n170. In fact, Grotius himself seems to have been cognizant of the principle of fundamental justice, for he
added the following note: "For the judicial investigation should precede the surrender; it is not fitting "to give up
those who have not been tried.'" Grotius, supra note 168, bk. II, ch. XXI, P IV(1) n.1.
n171. Bassiouni, supra note 33, at 5. See also G. Guillaume, Terrorisme et droit international, 215 Hague
Rec. 287, 371 (1989-III) ("the true option which is open to states is necessarily aut dedere aut prosequi").
n172. M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare 22-26, 51-53 (1995).
n173. U.N. Charter art. 38, para. 1(b).
n174. Joseph J. Lambert, Terrorism and Hostages in International Law 190 (1990).
n175. Bassiouni, supra note 33, at 9.
n176. Bassiouni & Wise, supra note 172, at 25.
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13 Emory Int'l L. Rev. 77, *
n177. Edward M. Wise, The Obligation to Extradite or Prosecute, 27 Isr. L. Rev. 268, 280 (1993).
n178. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial
Incident at Lockerbie (Libya v. U.K.), 1992 I.C.J. 3, 51 (Apr. 14) (separate opinion of Judge Weeramantry)
[hereinafter Lockerbie].
n179. Id. at 69.
n180. Henry Wheaton, Elements of International Law 188 (5th ed. 1916) (1836).
n181. Shearer, supra note 16, at 116-17, 124-25.
n182. See United Nations Model Treaty on Extradition art. 4, G.A. Res. 45/116, U.N. GAOR, 45th Sess.,
68th plen. mtg., U.N. Doc. A/RES/45/116 (1991) (stating the recommended formula for inclusion in bilateral
treaties).
n183. For a list of such conventions, see Bassiouni & Wise, supra note 172, at 75-287.
n184. See, e.g., N. Keijzer, Aut dedere aut judicare, in Netherlands Reports to the XIth International
Congress of Comparative Law 411, 412 (Hans Ulrich Jessurun D'Oliveira ed., 1982).
n185. <um O>JZ 1961/95 (Aus.), translated in 38 I.L.R. 133, 134 (1961).
n186. See European Convention on Extradition, Dec. 13, 1957, art. 6, 359 U.N.T.S. 273, 280.
n187. Cr.A. 308/75, 31(II) Isr. L. Rep. 449 (1977). See also Shachor-Landau, supra note 163, at 279.
n188. Bassiouni & Wise, supra note 172, at 57.
n189. Bassiouni, supra note 33, at 10.
n190. In essence, this was the position Libya held in Lockerbie. See, e.g., Letter from the Permanent
Representative of the Libyan Arab Jamahiriya to the United Nations Addressed to the President of the Security
Council (Jan. 18, 1992), reprinted in 31 I.L.M. 717, 728-29.
n191. See U.N. Docs. A/46/825-26, S/23/306-07 (1991), reprinted in 31 I.L.M. 717-22 (1992).
n192. The requests consisted of the following demands from Libya:
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13 Emory Int'l L. Rev. 77, *
. to surrender for trial all those charged with the crime and to accept responsibility for the actions of Libyan
officials;
. to disclose all it knows of this crime, including the names of all those responsible, and to allow full access
to all witnesses, documents, and other material evidence, including all the remaining timers; and
. to pay appropriate compensation.
See Joint Declaration of the United States and the United Kingdom, U.N. Doc. S/23308 (1991), reprinted in
31 I.L.M. 723 (1992).
n193. S.C. Res. 731, U.N. SCOR, 47th Sess., 3033d mtg., U.N. Doc. S/23574 (1992), reprinted in 31 I.L.M.
731 (1992).
n194. S.C. Res. 748, U.N. SCOR, 47th Sess., 3063d mtg., U.N. Doc. S/RES/748 (1992), reprinted in 31
I.L.M. 749 (1992). In 1993, the Security Council adopted another resolution, which further extended previously
imposed sanctions on Libya. See S.C. Res. 883, U.N. SCOR, 48th Sess., 3312th mtg., U.N. Doc. S/RES/883
(1993). Recently, the Security Council affirmed the measures in Resolutions 748 and 883. See S.C. Res. 1192,
U.N. SCOR, 53d Sess., 3920th mtg., U.N. Doc. S/RES/1192 (1998).
n195. Lockerbie, 1992 I.C.J. at 3, 114.
n196. Id. at 15.
n197. U.N. Charter arts. 24, 39-43.
n198. Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lockerbie: What
Lessons for International Extradition Law?, 14 Mich. J. Int'l L. 222, 256 (1993).
n199. Resolution adopted by the 12th Commission at its session in Dijon. See 59 A.I.D.I. 163, 176-77
(1981).
n200. Swystun v. United States [1988] 40 C.C.C.3d 222, 227-28 (Man. Q.B.).
n201. United States v. Cotroni [1989] 48 C.C.C.3d 193, 194 (Can.).
n202. See Michael P. Scharf, The Jury Is Still Out on the Need for an International Criminal Court, 1 Duke
J. Comp. & Int'l L. 135, 151-52 (1991).
n203. Letter from Secretary of State Cordell Hull to Robert W. Rafuse (Apr. 20, 1938), reprinted in 6
Whiteman Digest 18, supra note 158, at 883. Hull admitted that there may be "the tendency, perhaps natural, to
refrain from punishing a fellow countryman for an offense he committed in a distant country and as to which
there may be in the minds of his fellow countrymen who pass in judgment upon him a feeling that there may
have been extenuating circumstances." Id.
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13 Emory Int'l L. Rev. 77, *
n204. Sir George C. Lewis, On Foreign Jurisdiction and the Extradition of Criminals 30 (London, J.W.
Parker & Son 1859), reprinted in Harvard Research, supra note 8, at 129.
n205. See Peter Wilkitzki, Inclusion of the Principle "aut dedere aut judicare" in the European Convention
on Extradition, in Council of Europe, European Committee on Crime Problems PC-OC 9 (1987).
n206. For example, in Israel it was proposed that evidence lawfully taken abroad be accepted as prima facie
evidence and that the court not allow examination of the witnesses for the prosecution, unless the accused had
requested that such an examination be held and had established to the satisfaction of the court that it was
required to prevent a denial of justice. See Meron, supra note 163, at 221.
n207. See, e.g., Gouldman, supra note 163, at 198; United States v. Cotroni [1989] 48 C.C.C.3d 193, 224
(Can.).
n208. See Nadelmann, supra note 77, at 856.
n209. In 1910, the British Foreign Office advised the United States ambassador that "according to the
experience of His Majesty's Government, the result of the prosecution of foreign subjects by their own
Governments in lieu of surrender to this country has been, generally speaking, satisfactory." Letter from the
Foreign Office to Mr. Whitelaw Reid (July 25, 1910), F.O. 372/262.
n210. The Offences Committed Abroad (Amendments of Enactments) Act, 1978, 32 L.S.I. 63 (1978).
n211. Id. 10A.
n212. Dennis Gouldman, National Report, 55 R.I.D.P. 222 (1984).
n213. United States v. Cotroni [1989] 48 C.C.C.3d 193, 213 (Can.). See also supra notes 129-36 and
accompanying text.
n214. Plachta, supra note 109, at 128-33.
n215. Id. at 191-93.
n216. Cf. Julian J.E. Schutte, Extradition for Drug Offences: New Developments Under the 1988 U.N.
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 62 R.I.D.P. 135 (1991).
n217. The U.N. Convention Against Illicit Traffic in Narcotic and Psychotropic Substances of 1988 was
signed on December 20, 1988. See E/CONF. 82/15, reprinted in 28 I.L.M. 493 (1989).
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13 Emory Int'l L. Rev. 77, *
n218. The Organization of American States: Inter-American Convention on Extradition was signed in
Caracas on February 25, 1981. See OEA/Ser. A/36, reprinted in 20 I.L.M. 72 (1981).
n219. American insistence that nationals not be exempt from extradition led to considerable delays in
negotiating and concluding extradition treaties. See 1 Moore, supra note 20, at 159-62.
n220. See, e.g., 6 Whiteman Digest 18, supra note 158, at 865-84; Extradition of Nationals, 6 Clive Parry, A
British Digest of International Law [B.D.I.L.] 6, at 683-94 (1965); Extradition Report, supra note 39, at 806-07;
R.W. Rafuse, The Rule of Non-Extradition of Nationals 4-7 (1937); 1 Moore, supra note 20, at 174-79.
n221. For examples of such treaties concluded by Great Britain, see Shearer, supra note 16, at 100-01.
n222. Letter from Secretary of State Seward to Mr. Dix, Minister to France, No. 148 (Feb. 8, 1868),
reprinted in 4 Moore Digest 594, supra note 78, at 298.
n223. Billot, supra note 22, at 73.
n224. Wheaton, supra note 180, at 236 (emphasis added).
n225. Rafuse, supra note 18, at 63.
n226. See Charlton v. Kelly, 229 U.S. 447 (1913).
n227. Blakesley, supra note 86, at 206.
n228. Extradition of Nationals: Royal Commission of 1878, 6 B.D.I.L. 6, supra note 220, at 687. A similar
provision was included in the treaty with Luxembourg of the same year. Id.
n229. Id. at 685-87.
n230. In re Galwey, 1 Q.B. 230 (1896).
n231. Minutes, Mr. Davidson (Legal Advisor) (June 11, 1902), reprinted in Extradition of Nationals: Proof
of Nationality, 6 B.D.I.L. 6, supra note 220, at 694.
n232. La Forest, supra note 132, at 100.
n233. Id. at 99.
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13 Emory Int'l L. Rev. 77, *
n234. 1 Vallarta, Cuestiones Constitutionales 35 (1879).
n235. Id.
n236. Wheaton, supra note 180, at 236.
n237. Garner, supra note 81, at 480.
n238. Ex parte McCabe, 46 F. 363 (W.D. Tex. 1891).
n239. Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936).
n240. Id. at 12-13.
n241. In 1970, the United States persuaded France to modify Article V (simple optional clause) of the two
countries' extradition treaty concluded in 1909. Accordingly, the Supplementary Convention was signed in 1970.
Article III reads as follows:
There is no obligation upon the requested State to grant the extradition of a person who is a national of the
requested State, but the executive authority of the requested State shall, insofar as the legislation of that State
permits, have the power to surrender a national of that State if, in its discretion, it be deemed proper to do so.
The minutes of the negotiations of this Supplementary Convention are very instructive:
The United States representative explained to the French delegation the inability of the United States to extradite
its own nationals under the present Convention and expressed a strong desire to rectify this situation. He
explained that the United States Supreme Court had decided (see Valentine v. United States ex rel. Neidecker,
229 U.S. 5 (1936)) that the French Convention did not, as indirectly required by the United States Constitution,
grant the executive authority to extradite United States citizens. He noted that very few U.S. penal laws provided
any form of extraterritoriality and that therefore unless such persons were returned to France, they would not be
able to be prosecuted in the United States. The French delegation explained that their extradition law generally
prohibited extradition of nationals and expressed opposition to the formula proposed by the United States (the
formula explicitly providing for extradition of nationals). The United States representative then suggested the
article used in the United States-Brazil Treaty of 1961 (Article VII) to which the French delegation agreed.
Minutes, Treaty Supp. Negotiations (Paris, Nov. 6, 24-28, 1969) (Jan. 5, 1970), cited by Christopher Blakesley,
The Law of International Extradition: A Comparative Study, 62 R.I.D.P. 381, 454-55 n.305 (1991).
n242. Blakesley, supra note 86, at 207.
n243. The domestic extradition laws, like the French Loi Relative a l'Extradition des Etrangers (1927),
translated in Harvard Research, supra note 8, at 380-85, recognize treaties as the primary source of extradition
authority, as negotiated and ratified by the parliament in accordance with the extradition law. See, e.g., A. Merle
& R. Vitu, Traite de Droit Criminel 405, 408-09 (6th ed. 1988); 4 Travers, supra note 25, at 25-36.
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13 Emory Int'l L. Rev. 77, *
n244. 29 Martens, Nouveau Recueil des Traites 392 (2d Ser.).
n245. A contemporary version of the formula can be found in the extradition treaty between Canada and
Israel, whose Article 3 provides that the determination whether the extradition should be granted shall be made
in accordance with the domestic law of the requested state. One scholar questions, however, whether this
provision applies to the scope ratione personae of the treaty. See Meron, supra note 163, at 226-27.
n246. Schultz, supra note 150, at 119.
n247. Id.
n248. D.J.M.W. Paridaens, The Extradition of Nationals According to Dutch Law, 62 R.I.D.P. 515, 515-16
(1991).
n249. Bert Swart, Refusal of Extradition and the United Nations Model Treaty on Extradition, 23 Neth.
Y.B. Int'l L. 175, 191 (1992).
n250. Plachta, supra note 109, at 354-85.
n251. Conference, supra note 150, at 380.
n252. Schultz, supra note 150, at 104.
n253. Shearer, supra note 16, at 126.
n254. Id. at 127-28.
n255. See, e.g., Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International
Law, Continued, 84 Am. J. Int'l L. 444 (1990).
n256. Scharf, supra note 202, at 149-56.
n257. Faiza Patel, Crime Without Frontiers: A Proposal for an International Narcotics Court, 22 N.Y.U. J.
Int'l L. & Pol. 709 (1990).
n258. See, e.g., M. Cherif Bassiouni & Christopher Blakesley, The Need for an International Criminal Court
in the New International World Order, 25 Vand. J. Transnat'l L. 131 (1992); James Crawford, Prospects for an
International Criminal Court, 48 Current Legal Probs. 303 (1995).
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13 Emory Int'l L. Rev. 77, *
n259. S.C. Res. 808, U.N. GAOR, 48th Sess., 3175th mtg. at 2, U.N. Doc. S/RES/808 (1993), reprinted in
32 I.L.M. 1159, 1192-93 (1993).
n260. Bassiouni, supra note 33, at 5.
n261. S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993), reprinted in
32 I.L.M. 1203 (1993).
n262. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, U.N. Doc.
S/25704, Annex (1993), reprinted in 32 I.L.M. 1192 (1993).
n263. Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808, U.N.
Doc. S/25704 & addend. pt. 1 (1993) [hereinafter Secretary-General's Report], reprinted in 32 I.L.M. 1159
(1993).
n264. S.C. Res. 827, supra note 261, P 4, 32 I.L.M. at 1205.
n265. Statute of the International Tribunal, supra note 262, art. 29, P 1, 32 I.L.M. at 1200.
n266. Id.
n267. See Secretary-General's Report, supra note 263, P 126, 32 I.L.M. at 1188.
n268. Some scholars argue for the broadest possible meaning of this obligation. See, e.g., Kenneth S.
Gallant, Securing the Presence of Defendants Before the International Tribunal for the Former Yugoslavia:
Breaking with Extradition, 5 Crim. L.F. 557, 562 (1994).
n269. Rules P. Evid. 58 (U.N. International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991,
13th Sess., The Hague, IT/32/Rev. 11 (July 25, 1997)).
n270. Secretary-General's Report, supra note 263, P 125, 32 I.L.M. at 1188.
n271. Gallant, supra note 268, at 569.
n272. Croat. Const. art. 9.
n273. Gesetz <um u>ber die Zusammenarbeit mit dem Internationalen Strafgerichtshof f<um u>r das
ehemalige Jugoslavien (Jugoslavien-Strafgerichtshof-Gesetz), v. 10.4.1995 (BGB1. I S.485).
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13 Emory Int'l L. Rev. 77, *
n274. Id. 3(5).
n275. Deutscher Bundestag, Drucksache 13/207.
n276. Pol. Const. art 55, P 1.
n277. Code Crim. P. art. 615, P 3 (Pol.).
n278. Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989), reprinted in 28 I.L.M. 1063 (1989).
n279. Some states have already adopted such a clause in their domestic legislation. See, e.g., the Swiss Law
on International Cooperation in Criminal Matters, supra note 149, art. 2, which provides that the extradition
request shall not be granted "if there are reasons to believe that the foreign proceeding: (a) does not meet the
procedural requirements of the European Convention" on Human Rights. Article 19(1) of the Austrian Law on
Extradition and Mutual Assistance in Criminal Matters likewise obligates the Austrian authorities to refuse
extradition if they have grounds to fear that the criminal proceedings in the requesting state would not, or has
not, complied with the provisions embodied in Articles 3 and 6 of the European Human Rights Convention. See
Bundesgesetz <um u>ber die Auslieferung und die Rechtshilfe in Strafsachen, 1979 (BGBl. I S.529).
n280. Extradition Reform Act of 1981: Hearings on H.R. 5227 Before the Subcomm. on Crime of the
House Comm. on the Judiciary, 97th Cong. 36 (1982).
n281. Wilkitzki, supra note 66, at 281.
n282. See, e.g., Kidnapping Suspects Abroad: Hearings Before the Subcomm. on Civil and Constitutional
Rights of the House Comm. on the Judiciary, 102d Cong. 22, 57 (1992); Abraham Abramovsky, Extraterritorial
Abductions: America's "Catch and Snatch" Policy Run Amok, 31 Va. J. Int'l L. 151 (1991).
n283. In re Tivnan, 122 Eng. Rep. 971, 983-84 (Q.B. 1864). It seems that the evidentiary difficulties, in
addition to the political considerations, contributed to the stalemate in Lockerbie. See Lockerbie, 1992 I.C.J. at
114.
n284. This view seems to be implied in the dissenting opinion submitted by Judge El-Kosheri in the I.C.J.
decision in Lockerbie, 1992 I.C.J. at 214.
n285. Manton, supra note 7, at 24.
n286. Rafuse, supra note 220, at 15.
n287. Atti della Commissione, supra note 67, at ix.