Extradition
It is an ancient mechanism, dating back to at least the 13th century BCE, when an Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with a Hittite king, Hattusili III.
Such absence of international obligation, and the desire for the right to demand such criminals from other countries, have caused a web of extradition treaties or agreements to evolve.
Parties to the European Convention also cannot extradite people where they would be at significant risk of being tortured inhumanely or degradingly treated or punished.
These courts may impose certain restrictions on extradition, or prevent it altogether, if for instance they deem the accusations to be based on dubious evidence, or evidence obtained from torture, or if they believe that the defendant will not be granted a fair trial on arrival, or will be subject to cruel, inhumane or degrading treatment if extradited.
Several countries, such as France, the Russian Federation, Austria, China and Japan, have laws against extraditing their respective citizens.
By enacting laws or in concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests.
[4] Such bars can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence.
Therefore, human rights recognised by international and regional agreements may be the basis for denying extradition requests.
Countries may refuse extradition to avoid becoming involved in politically motivated cases, or gaining a bargaining chip over a rival state.
Israeli law permits the extradition of Israeli citizens who have not established residency in Israel; resident citizens may be extradited to stand trial in a foreign country, provided that the prosecuting country agrees that any prison sentence imposed will be served in Israel.
[34][35] In a limited number of cases Article 8 of the European Convention on Human Rights has been invoked to stop extradition from proceeding.
This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement.
[11] In the case of FK v. Polish Judicial Authority the court held that it would violate article 8 for a mother of five young children to be extradited amidst charges of minor fraud which were committed a number of years ago.
[36] This case is an example of how the gravity of the crime for which extradition was sought was not proportionate to protecting the interests of the individual's family.
However the court in this case noted that even in circumstances where extradition is refused a custodial sentence will be given to comply with the principles of international comity.
In the case of Norris v US (No 2) a man sought to argue that if extradited his health would be undermined and it would cause his wife depression.
[42] These standards have been reflected in courts who have shown that subjective considerations should be made in determining whether such trials would be ‘unjust’ or ‘oppressive’ by taking into account factors such as the duration of time since the alleged offences occurred, health of the individual, prison conditions in the requesting state and likelihood of conviction among other considerations.
Article 6 of the ECHR also provides for fair trial standards, which must be observed by European countries when making an extradition request.
[44] This was held to be a violation of Article 6 ECHR as it presented a real risk of a ‘flagrant denial of justice’.
[45] Evidence obtained by way of torture has been sufficient to satisfy the threshold of a flagrant denial of justice in a number of case.
Therefore, human rights protected by international and regional agreements may be the basis for denying extradition requests, but only as independent exceptions.
Professor Michael Kelly, citing Israeli and Austrian judicial decisions, has noted that "there is some supporting anecdotal evidence that judges within national systems are beginning to apply the doctrine on their own".
Typically, in such countries, the final decision to extradite lies with the national executive (prime minister, president or equivalent).
[54] They took place three days before the Hong Kong government planned to bypass the committee process and bring the contentious bill straight to the full legislature to hasten its approval.
While the Beijing-friendly ruling party maintains that the proposal contains protections of the dual criminality requirement and human rights, its opponents allege that after people are surrendered to the mainland, it could charge them with some other crime and impose the death penalty (which has been abolished in Hong Kong) for that other crime.
[56] Experts have noted that the legal systems of mainland China and Hong Kong follow 'different protocols' with regard to the important conditions of double criminality and non-refoulement, as well as on the matter of executive vs. judicial oversight on any extradition request.
The United States' Central Intelligence Agency (CIA) allegedly operates a global extraordinary rendition programme, which from 2001 to 2005 captured an estimated 150 people and transported them around the world.
[65] In June 2021, CNN reported testimonies of several Uyghurs accounting for the detention and extradition of people they knew or were related to, from the United Arab Emirates.
[66] In 2019, UAE, along with several other Muslim nations publicly endorsed China's Xinjiang policies, despite Beijing being accused of genocide by the US State Department.
Neither Dubai authorities nor the foreign ministry of UAE respond to the several requests for comment made by CNN on the detention and extradition of Uyghurs.
