Extradition is a cooperative effort that uses international law to hand over a suspected or convicted international criminal from one state or country to another for criminal prosecution. Extradition laws define the procedure for catching a fugitive from justice.
There are two general types of extradition in the U.S.:
- Interstate extradition, which involves a demanding state and an asylum state
- International extradition, in which one country seeks to take custody of an individual in another country
Read on to find out more about the process of international extradition.
Whether someone can be extradited depends on the laws of the countries involved. Four essential questions must be addressed before extradition proceedings can occur:
- Has the foreign government provided probable cause evidence that the fugitive committed an alleged crime?
- Is it a crime that would be subject to deportation?
- Can the identity of the fugitive be confirmed?
- Do any exceptions apply, such as the United Nations' Convention Against Torture?
Extradition is regulated within nations by extradition acts and between nations by diplomatic treaties. In an extradition treaty, two countries agree to cooperate in cases where a person is charged or found guilty of an extraditable offense. The majority of these treaties are based on the concept of dual criminality.
The United States has extradition treaties with more than 100 countries. However, the existence of an applicable treaty does not mean that both countries will follow through with their end of the agreement.
The following countries usually reject extradition requests from the United States despite having a bilateral treaty in effect:
Some countries, such as Spain and Yemen, do not have an official extradition treaty with the U.S. but usually return fugitives anyway. In such cases, these countries typically require an offer of reciprocity.
Extraditable offenses are punishable by criminal law in both countries by at least one year of imprisonment. These offenses include financial crimes, such as:
- Tax evasion
- Customs duty evasion
- Currency exchange offenses
Misdemeanors usually do not qualify as extraditable offenses.
Extradition treaties often exclude the extradition of a national of the requested state. One famous example of this is Roman Polanski. The filmmaker pleaded guilty and was convicted in the U.S. for drugging and raping a 13-year-old girl. He fled to France before sentencing. Because Polanski is a French citizen, France refused to extradite him. Some countries refuse to engage in the extradition of nationals.
In some cases, the United States can and will extradite its citizens. But it depends on the circumstances and the country requesting extradition.
Federal courts in many nations refuse to extradite people who may face torture or the death penalty. The European Court of Human Rights has ruled that extradition in these circumstances violates European law. Still, it often depends on the details of the case.
For example, serial killer Charles Ng fled to Canada. His known victims included nine adults and two small children he abducted, tortured, raped, and murdered. Ng contested his extradition back to the U.S. because Canadian law had abolished the death penalty. He appealed his case to the highest court in that nation.
The Canadian Supreme Court delivered a divided ruling on the question in Ng's case. But in the end, Canada extradited Ng to California in Reference Re Ng Extradition.
That ruling was overturned in 2001 in United States v. Burns. Canada no longer extradites fugitives to the U.S. or anywhere else if they might face the death penalty.
International Extradition Process
The federal extradition statute 18 U.S.C. Section 3181 defines the extradition process. It requires action from:
- The judicial and executive branches of government
- The court that ensures the extradition complies with federal law and the U.S. Constitution
- The secretary of state, who exercises diplomatic power on behalf of the United States
In the case of international extradition, the judicial authority rules that the person may be extradited. Then the case enters the executive phase. An executive authority from the requested country determines whether they will surrender the wanted person. If so, the executive authority may issue a surrender order. In the United States, the secretary of state generally makes these decisions.
Extraditing From the United States
The legal process of extradition from the U.S. is well described in the case of Aguasvivas v. Pompeo (2021).
First, the Department of Justice (DOJ) receives a request for extradition from a foreign government.
Next, the DOJ sends a complaint to a magistrate judge in the jurisdiction where the person is thought to reside.
Then, the magistrate issues an arrest warrant for the suspect to obtain requisition.
After the warrant issuance and once the person is in custody, the magistrate will hold a limited extradition hearing.
The judge must decide:
- Whether the extradition request from the foreign government complies with U.S. treaty obligations
- Whether the evidence provided by the foreign nation is sufficient to sustain the criminal charges
- Whether U.S. extradition laws require a certain action
- Whether the fugitive has made a waiver of extradition
If the magistrate deems the requirements met, they will certify the extradition request and send it to the secretary of state.
It is ultimately up to the secretary to decide whether to extradite. The secretary of state will review the magistrate's findings and conclusions. If the secretary finds an error in the judge's finding of facts or conclusion, the secretary can reverse the certification. The secretary can also decide not to surrender the person to foreign authorities or choose to attach conditions to the surrender.
Extraditing to the United States
Let's say federal prosecutors in the United States want to request the extradition of an international fugitive. First, the U.S. attorneys will file a criminal complaint in a court with jurisdiction over the case along with an affidavit. The complaint states the criminal charges and identifies the defendant.
They might also request a warrant for the defendant's arrest. Federal criminal charges must be reviewed and approved by the Office of International Affairs (OIA), part of the DOJ's Criminal Division. Additionally, the Department of State demands that formal requests based on state charges also be reviewed and approved by OIA.
Acting either directly or through the Department of State, the OIA initiates all requests for provisional arrest of fugitives pursuant to extradition treaties through diplomatic channels.
Then, they'll contact the OIA within the DOJ. The DOJ makes a preliminary determination based on case facts.
The OIA then decides whether to ask law enforcement in the foreign country to make an arrest. It submits that request and documents to the secretary of state.
Every nation has legal protections and extradition procedures, so next steps will vary. Foreign officials may consider:
- The time and effort it would take to apprehend the fugitive
- The cost of extradition
- Any political or diplomatic concerns
- The statutes of limitations, which vary from country to country
- Double jeopardy exceptions according to the laws of the foreign nation
- Whether there is an Interpol Red Notice, the closest to an international arrest warrant
Consider WikiLeaks founder Julian Assange, a U.S. citizen who made headlines by resisting extradition for a political offense. WikiLeaks is a website that promotes leaking often-sensitive information to combat corporate and government corruption.
Assange gained notoriety in 2010 when his website published a series of leaks initiated by U.S. Army intelligence analyst Chelsea Manning. A video of an airstrike in Baghdad that killed a dozen people was among the stories leaked.
Although the U.S. government sought him, Sweden initiated Assange's extradition. Sweden sought to bring him from the United Kingdom on charges of sexual misconduct. Assange argued in court that the Swedish extradition case was a pretext for an eventual handover to the Americans. He lost his case, jumped bail, and fled to the Ecuadorian embassy in London.
Ecuador granted Assange asylum on the grounds of political persecution. The Ecuadorian government refused to extradite him, believing he would be turned over to the U.S.
After Sweden dropped its extradition request, and Ecuador withdrew its protection, London police arrested Assange, who was imprisoned for jumping bail.
Once Assange was in British custody, the DOJ unsealed an indictment against him for violating the Espionage Act. Some news organizations characterized this effort as an attack on the First Amendment.
Britain approved the extradition, but Assange submitted an appeal to the European Court of Human Rights (ECHR) in late 2022 in order to fight extradition. The appeal was still pending as of September 2023, with Assange awaiting the decision in a London prison. He has been in prison since 2019.
Usually, foreign authorities notify the OIA or U.S. Embassy that the offender is ready to be surrendered. The OIA will then inform the prosecutor.
International Extradition Without a Treaty
In countries with no extradition treaty with the U.S., bringing a fugitive back to the U.S. is still possible. The United States may try negotiating with foreign officials.
A high-profile case of the U.S. seeking international extradition without success is that of Edward Snowden. A former computer intelligence consultant with the National Security Agency, Snowden disclosed the existence of several global surveillance programs. He faces criminal charges for theft and espionage in the United States.
He fled to Russia, which has no extradition treaty with the United States. Despite the lack of a treaty, Russia could choose to extradite Snowden at any time. Instead, Russia has chosen to shield Snowden from prosecution. Years later, Snowden and his wife applied for and were granted Russian citizenship.
Snowden's case illustrates how international extradition is frequently political and diplomatic. There is no global enforcement mechanism that requires a country to extradite.
In rare cases, the U.S. has resorted to extraordinary rendition. A court oversees extradition. In contrast, an extraordinary rendition is the forcible removal of a person, usually a suspected terrorist, to another country with fewer human rights protections. Human rights advocates including the ACLU decry the practice as kidnapping that often ends in torture.
Learn More About International Extradition Laws by Talking to an Attorney
Several complex requirements must be followed with international extraditions. Extradition can be challenging to fight, but no case is a foregone conclusion. Some defenses can be utilized. Seek legal counsel from an experienced criminal defense attorney for individualized assistance.