Public International Law Project Work

Violation of Extradition Treaty: With reference to USA

Submitted To
Mr. Indranath Dey
Faculty of Public International Law

Submitted By
Talib Mustafa
B.A.LL.B. (Hon.)
Semester IX, Section A, Batch XII
Roll no. 164

Date of submission: 18th October, 2016

Hidayatullah National Law University

Raipur, Chhattisgarh, India
 ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty.

This research venture has been made possible due to the generous co-operation of various
persons. To list them all is not practicable, even to repay them in words is beyond the domain of
my lexicon.

May I observe the protocol to show my deep gratitude to the venerated Faculty-in-charge Ms.
Anukriti Mishra for her kind gesture in allotting me such a wonderful and elucidating research
topic. Maam, your sincere and honest approach have always inspired me and pulled me back on
track whenever I went astray.

Last, but by no means the least, I would like to thank all the members of HNLU family in
general and my blooming and charismatic friends in particular for their wholehearted co-
operation throughout the odyssey
Introduction
The easiest solution to solve a problem is to run away from it. A food for thought however,
human beings tends to think the same and many instances from world history are evident that
many a times a convicted felon in order to run away from the system escapes his country to
another. Here comes the concept of extradition in international law. Before beginning with the
research work on how extradition treaty works and how it can be violated or has been violated it
is important to discuss about the concept. Extradition is the term given to an inter states relation
where one state, generally the state which has the location or possession of the convict, hands
over the fugitive to the state where he has committed a crime. One might be intrigued as to why
cant the state, where such a fugitive is found, try him for the crimes committed by him? The
answer lies in the fact that such a state doesnt have jurisdiction to do so. Thus, as a solution to
this problem is to handover such a convict back to the nation which would have jurisdiction over
the matter and might give out justice to the one needing it.

The concept of extradition, by many jurists is considered as that of opposite to the concept of
asylum, thus this research paper tends to point out the difference between the two with special
reference to Julian Assange and Edward Snowden, the two convicts from United States who have
been granted Asylum in different countries. Further another interesting concept arises when one
of the two nations disagrees to grant extradition of one of the convict to another nation. In this
situation what can the other resort to is another aspect of this research paper.

This research paper further investigates into various decisions of the courts of the United States
of America in the matters where the nation has resorted to methods like abductions, weather
these methods are justified and are there any violations of human rights in these methods
according to them? Further the research paper tends to provide with a comparative analysis
between the decisions and other authorities in this matter.

United States of America is one of the most powerful nations in the world and the question arises
that does this fact gives it a right to violate the sovereignty of other nations is another fact
discussed in depth in this research paper.
Objectives
1) To discuss the concept of extradition in brief.
2) To discuss the rule of extradition as followed in the United States of America.
3) To discuss about Edward Snowden and Julian Assange controversies.
4) To discuss about various treaties and conventions worldwide on extradition.

Research Methodology and Type of Data

The methodology adopted for this research paper is Doctrinal method of research. The purpose
of this research is to solve the legal problem with a new output within a short period of time with
less expenses by closely examining and analyzing the legal doctrine, legal framework and case
laws in a logical, systematic and scientific way. The data utilized in making this research paper is
secondary in nature i.e. data has been cited from preexisting articles, text books and other
sources.
 CONTENTS

Chapter one: The concept of Extradition 01

Is extradition a legal or moral duty? 01

Chapter two: Extradition and abduction in\by 03

The United States of America

Chapter three: Edward Snowden and Julian

Assange Controversy 06

Stand on Extradition by International

Organizations and Conventions 08

Conclusion 10
11
Bibliography
12
Annexures
Chapter one: The concept of Extradition

The term extradition has originated from two Latin words ex and traditum. Ordinarily it may
mean delivery of criminals. However, according to renowned German jurist Lassa Francis
Lawrence Oppenheim extradition is the delivery of an accused or a convicted individual to the
state where he is accused of, or has been convicted of, a crime, by the state on whose territory he
happens for the time to be.

Thus, from above definition it is pretty much clear that extradition is a bilateral agreement i.e.
involving two states one where the convict was found and another where the convict is to be
surrendered for trial of his crimes. The mechanism of extradition functions in a reciprocal way
i.e. the state asking extradition of a criminal now might be requested to surrender a criminal,
escaping the other state, in future.1The purpose of extradition is nothing but is an attempt to
suppress the rate of crimes committed worldwide. With extradition as an option the states might
function in a coordination to bring down the criminals and thus cause a decrease in rate of crimes
committed.

Extradition due to the technicalities involved in it might sound a modern concept however, its
not, and its an ancient mechanism dating back to at least the 13th century BC, when an Egyptian
Pharaoh, Ramesses II, negotiated an extradition treaty with a Hittite King, Hattusili III. 2
However, in the modern era the concept has proved really helpful in post-World War II era where
a lot of Nazi war criminals were wanted by countries worldwide.3

Extradition: a legal obligation or a moral duty?

Hugo Grotius, a renowned Dutch Jurist was of the opinion that state a state of refuge has a duty
either to punish the offender or to surrender him to the state seeking his return. The principle of
prosecution or surrender was recogised by him as a legal duty where the offender is found. This

1DR. H.O AGARWAL, INTERNATIONAL LAW AND HUMAN RIGHTS, 271 (20thed, Central Law Publication).

2http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2211219&download=yes (last accessed on Feb. 16th,

2015).

3Henry Friedlander and Earlean M. McCarrick, The Extradition of Nazi Criminals: Ryan, Artukovic, and
Demjanjuk(http://motlc.wiesenthal.com/site/pp.asp?c=gvKVLcMVIuG&b=395075) (last accessed Feb.
15th, 2015).
duty, according to him is based on natural law. This notion of Grotus was supported by another
Swiss jurist Emer De Vettle. 4The maxim autdedereautpunaire i.e. extradition or surrender
clarifies the stance of law on extradition according to this maxim it is a duty of states under
public international law to prosecute persons charged with severe crimes, if no other state
demands extradition.5 However, this maxim is not followed by states and therefore it has not
became a part of public international law.6 Still, there are various international documents and
treaties in which reference to this maxim has been made in order to establish a clear norm for
extradition. These include all four 1949 Geneva Conventions, the U.N. Convention for the
Suppression of Terrorist Bombings, the U.N. Convention Against Corruption, the Convention for
the Suppression of Unlawful Seizure of Aircraft, the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, the Convention for the Protection of
Cultural Property in the Event of an Armed Conflict, and the International Convention for the
Suppression and Punishment of the Crime of Apartheid.

The Supreme Court of the United States of America has clearly stated in Factor v.
Labubenheimer7that International law clearly recognizes no rights of extradition apart from a
treaty. While a government may, if agreeable to its own Constitution and laws voluntarily
exercise the power to surrender a fugitive from justice to the country from which he has fled, and
it has been said that it is under a moral duty to do so. The legal duty to demand his extradition
and the correlative duty to surrender him to the demanding country exist only when created by
treaty.

Thus, in modern time a legal duty to surrender a criminal arises only when treaties are signed by
the states and after formalities have taken place which are stipulated in the extradition treaty.
With only exceptions in certain cases where the process is avoided and the criminals are
extradited only on a promise of reciprocal behavior in future from the requesting state.

4 Supra 1 at 271.

5Id 2.

6 Supra 1 at 272.

7 290 U.S. (1933) p. 287.

Chapter two: Extradition and Abduction in\by The United States of America.

United States of America (or America) being a federal nation has a different system of
extradition. Unlike many nation where the concept is limited to transfer of criminal to or from
other nations, America practices extradition with various nations and among its states too. When
said that it practices extradition among its states too it mean that to transfer a criminal from one
state to another the process of extradition is followed which is mandated by Article 4, Section 2,
Clause 2 of the United States Constitution. According to which A person charged in any state
with treason, felony, or other crime, who shall flee from justice, and be found in another state,
shall on demand of the executive authority of the state from which he fled, be delivered up, to be
removed to the state having jurisdiction of the crime.

In Kentucky v. Dennison8decided in 1860, the Supreme Court held that, although the governor
of the asylum state had a constitutional duty to return a fugitive to the demanding state, the
federal courts had no authority to enforce this duty. As a result, for more than 100 years, the
governor of one state was deemed to have discretion on whether or not he/she would comply
with another state's request for extradition. In this case A, a slave master belonging to
Kentucky, along with one of his slaves, was visiting the state of Ohio. In Ohio the slave met one
Mr. B who convinced her that slavery is an offence in the state of Ohio and she was indeed free.
Subsequently, he took the slave along with him to the trial court where the court ruled her to be a
free citizen. Mr. A in agony filed a complaint against B against theft to which the court ruled that
since in Ohio slavery is not permissible Mr. B cannot be charged with the offence of theft.
Aggrieved by this decision Approached the Governor of the State of Kentucky who wrote a letter

8 65. U.S. 66 (1861).

to Governor of Ohio, for extradition of Mr. B to which the Governor of Ohio responded in an
unfavorable manner. With not being able to get Mr. B extradited, the State of Kentucky
approached the Honorable Supreme Court to which the Court ruled the aforementioned ruling.

However, in a 1987 case, Puerto Rico v. Branstad,9 the Court overruled Dennisonjudgement, and
held that the governor of the asylum state has no discretion in performing his or her duty to
extradite, whether that duty arises under the Extradition Clause of the Constitution or under the
Extradition Act and that a federal court may enforce the governor's duty to return the fugitive to
the demanding state. In this case A, a Puerto Rican citizen struck a married couple with is
automobile in Puerto Rico. The husband survived but the wife couldnt. Mr. A was arrested on
charge of culpable homicide and was released only upon paying a preliminary bail of 5000 US
Dollars. In furtherance of which Mr. A was supposed to attend every preliminary hearing in his
case to which he failed to attend. Later the authorities of Puerto Rico came to know that Mr. A
was absconding from the state and it was later revealed that Mr. A has fled to his hometown i.e.
Iowa. The Governor of Puerto Rico demanded extradition of Mr. A to which the authorities in
Iowa denied. In order to get As extradition done the state of Puerto Rico approached the
Honorable Supreme Court of the United States to which the court gave the aforementioned
verdict.

However, another notion can be added to this principle if followed by the ruling of Supreme
Court of America in case of Frisbie v. Collins10, where it held that kidnapping of suspects by
State authorities is constitutional. For the purpose of further investigation. Thus according to
this ruling a state official might abduct a person from any other state and try him for the crimes
committed by him in its own state. In this case a person serving time in Chicago was abducted
and was taken to the state of Michigan for the crimes committed by him in the states of
Michigan. This decision of the Supreme Court coupled with the ruling in case of Ker. v.
Illinois11led to establishment of Ker-Frisbie doctrine according to which criminal defendants
may be prosecuted in United States courts regardless of whether their presence has been

9 483 U.S. 219 (1987).

10 342 U.S. 519 (1952).

11 Infra at 12.
obtained through the use of applicable extradition treaties. In case of Ker. v. Illinois12the
Supreme Court of America held that a fugitive kidnapped from abroad could not claim any
violation of the Constitution, laws or treaties of the United States. In this case a detective
agency agent, Mr. A was hired by the federal government to collect a larcenist, Mr. B, who had
fled to Peru. Although A had the necessary extradition papersthe two governments had
negotiated an extradition treaty a decade earlierhe found that there was no official to meet his
request due to the Chilean military occupation of Lima. Rather than return home empty-handed,
A kidnapped the fugitive, with assistance from Chilean forces, and placed him on a U.S. vessel
heading back to the United States.

This doctrine was further adopted in case of United States v. Alvarez-Machain13, after it was
overruled in case of United States v Rauscher14, in Alvarez case the defendant, a Mexican
physician, was allegedly involved in the 1985 kidnapping, torture, and murder of DEA agent by
"prolonging the Agent life so that others could further torture and interrogate him."

The physician was abducted from Mexico by a private citizen hired by DEA agents, and brought
to trial in the United States over the protest of Mexican officials. Legal action reached the United
States Supreme Court. Despite vigorous protests from the Mexican government, the physician
was tried in United States of America.

The process of violating of extradition treaty or treaty gone wrong by way of extraditing the
individual without the permission of the other state, by the state demanding such extradition has
been seen as abduction in public international law. Famous case of such abduction was the
abduction of Adolf Eichmann, the notorious Nazi, from Brazil to Israel by Mossad.15

Other such abductions performed by the United States of America involve the abduction of
Morton Sobell and Aafia Siddiqui.

12 119 U.S. 436 (1886).

13 504 U.S. 655 (1992).

14 119 U.S. 407 (1886).

15http://www.theguardian.com/world/2012/feb/15/adolf-eichmann-exhibition-tel-aviv (last accessed on

Feb. 16th 2015).
Abduction of Morton Sobell

Morton Sobell was an American engineer, who was convicted of spying on America for the
Soviets. Sobell was tried and convicted of espionage in 1951, and sentenced to 30 years in
prison. He was released in 1969 after spending 17 years and 9 months in Alcatraz and other high
security prisons. In his interview with the New York Times 16, Sobell disclosed the fact that he
was indeed a soviet spy, a charge he was constantly denying earlier. Sobell was guilty of
disclosing the designs of atomic bombs, built by United States of America to USSR, disclosing
the designs of sensitive machinery used by the United States of America to USSR. He was held
guilty of espionage along with the Rosenberg duo.17 After his secret came out and he was held
guilty of espionage, Sobell, along with his family, ran away to Mexico from where he was later
abducted by armed men and was turned over to the Federal Bureau of Investigation.

Abduction of Aafia Siddiqui

Aafia Siddiqui was a student of neuroscience in USA, after completion of her course she went
back to her Country, Pakistan. In 2003 she was placed on the list of potential suspects by FBI due
to her connections with Al- Qaeda. In 2008 she was arrested by Afghanistan police for carrying
blue-prints for making a bomb and was subsequently flown to America on charges of conspiracy
and of shooting at a US military personnel.18

Chapter three: The Julian Assange and Edward Snowden Controversy

Edward Snowden

Edward Joseph "Ed" Snowden is an American computer professional who leaked classified
information from the National Security Agency (NSA) to the mainstream media, starting in June
2013. Describing himself as a system wizard Snowden was intrigued by the use of computers
and mass media by the espionage agencies. Which led him to apply for a position in Central

16http://www.nytimes.com/2008/09/12/nyregion/12spy.html?pagewanted=all (last accessed on Feb. 16 th

2015).

17Id at 16.

18https://draafia.wordpress.com/who-is-dr-aafia-siddiqui-and-what-happened-to-her-and-her-loved-ones/
(last accessed on Feb. 17th 2015).
information Agency (CIA) in a job fair. Snowden, was thought as a bright employee as he made
his was to one of the higher rungs in the Agency in nick of a time.19

In 2014, while working for a consultancy firm Booze Allen, Snowden under a pseudonym
Citizenfour leaked various classified information involving the surveillance programs
conducted by the government of United States, United Kingdom and Australia. According to
him, these information were rights of the people to know the extent to which government has
been intruding in the private lives of individuals without their permissions. After disclosure of
this information Snowdens citizenship to the United States was declined by the authorities
following which he was termed a fugitive by the United States, charged with crimes of espionage
which can result in imprisonment of upto thirty years.20

After his identity was revealed Snowden left his Havana home, in fear of extradition, and went to
Hong Kong from where is consulted various human rights lawyers to prevent any extradition to
the United States. After his departure from Hong Kong Snowden tried to seek asylum in Russia
which was denied to him, however he was allowed to stay on the airport for 39 days, it was when
he rose to worldwide fame.21

Only after thirty nine days stay at Moscows Sheremetyevo Airport Snowden was granted a
temporary asylum at Russia for three years. Various International Organizations and NGOs have
come out since in support of Snowden and are protesting against the demands of USA to
extradite him back to nation.22

Julian Assange

Julian Paul Assange, is an Australian publisher and journalist. He is known as the editor-in-chief
of the website WikiLeaks, which he co-founded in 2006 after an earlier career in hacking and

19 https://edwardsnowden.com/frequently-asked-questions/ (last accessed on Feb. 17 th 2015).

20Id at 19.

21Id at 20.

22http://www.theguardian.com/world/2014/aug/07/edward-snowden-permission-stay-in-russia-three-
years (last accessed on Feb. 17th, 2015).
programming. WikiLeaks achieved particular prominence in 2010 when it published U.S.
military and diplomatic documents leaked by Private Chelsea Manning.23

After WikiLeaks released the Manning material, U.S. authorities began investigating WikiLeaks
and Assange personally with a view to prosecuting them under the Espionage Act of 1917.In
December 2011, prosecutors in the Private Chelsea Manning case revealed the existence of chat
logs between Manning and an alleged WikiLeaks interlocutor they claimed to be Assange.
Assange was being examined separately by "several government agencies" in addition to the
grand jury, most notably the FBI. Court documents published in May 2014 suggest that Assange
was still under "active and ongoing" investigation at that time.24

While the ongoing trial in the United States Assange is wanted for questioning over one count of
unlawful coercion, two counts of sexual molestation, and one count of lesser-degree rape in
Sweden.The allegations are of "non-consensual behaviour within consensual sexual
encounters."Assange denies the allegations. On 7 December 2010, Assange was remanded in
custody at London's Wandsworth Prison after a judge denied bail at a hearing considering his
extradition to Sweden for criminal investigation into the sexual assault allegations against him.
On 16 December 2010, he was released on bail after another appeal.25

On 19 June 2012, Ecuadorian Foreign Minister Ricardo Patio announced that Assange had
applied for political asylum, that his government was considering the request, and that Assange
was at the Ecuadorian embassy in London.On 16 August 2012, Foreign Minister Patio
announced that Ecuador was granting Assange political asylum. Assange has been there since
then. In protest against the demands of Sweden and the United States there has been worldwide
requests from various organizations and individuals.26

On 18 August 2014, Assange announced that he would be leaving the Ecuadorian embassy
"soon." While acknowledging that his health had "deteriorated," he emphasised that the

23 http://www.bbc.com/news/world-11047811 (last accessed on Feb. 17 th, 2015)

24Id at 23.

25 Id at 24.

26Id at 25.
announcement was prompted by "a range of important legal developments in the United
Kingdom.

Chapter four: Stand on Extradition by International Organizations and Conventions.

A number of attempts have been made to conclude a convention governing extradition request
among other nations. In 1935, the Harvard Law School prepared a draft convention on the
subject. The International Law Association has also considered legal problems relating to
extradition in the Conference held at Warsaw. In 1928, the Draft Convention on extradition was
approved but nothing has been materialized on it since then.27

Simultaneous attempts have been made by various states to conclude regional conventions on the
subject, like the Pan American Conference of 1902, which was signed by twelve states but has
not been ratified. Similarly the Asian-African Legal Consultative Body also prepared a draft
Convention on extradition at its meeting in Colombo in 1960. In the year 2004, the United
Nations Organizations made a Model Law on Extradition according to which a proper extradition
should take place worldwide however, this model law has not been ratified yet. 28

The problem which arises here is that these conventions and treaties havent been ratified by
many states which leave the fate of extradition in hands of various domestic laws to which the
nation is subjected to. The problem of lack of an international procedure or law to govern
extradition has proven to be harmful for many individuals as they are subjected to torture by the
hands of requesting state after their extradition or abduction as well as many nations due to
absence of a substantial law on this topic has proven to be havens for many absconding
criminals. A stance can be brought here from an English motion picture title the Fast five
where the protagonist is a fugitive from the United States, in a scene from the motion picture he
is seen to interact with love interest and in process of wooing her promises her to take places like
Moscow, Goa, Bali, Hong Kong just for one single reason, the places doesnt have any
extradition treaty with the United States.

27Supra 2 at 273.

28 Id at 27.
The absence of any such uniform treaty worldwide, has proven to be a curse for rendering justice
to the party affected and due to absence of any such treaty many a times sovereignty of a nation
is affected due to abductions by the powerful nations.
Conclusion

As discussed in the previous chapters that United States holds its law to be supreme i.e. instead
ob being a party to any of the global treaty on extradition, America believe in extradition by hook
or by crook, in various judgements cited above it has been clearly proven that the United States
of America can violate the sovereignty of a nation to get a fugitive out from that state. In case of
Snowden or Assange, the point holding us back is the world wide support which these two
whistleblowers have. In case of abductions of fugitive many websites as well as articles have
claimed Central Intelligence Agency of the United States to be on the top notch, defeating
Mossad of Israel.

What can be made evident from this point is a two faced identity of America on first side it
proves that it believe in providing justice to its citizens against all odds, and the second is the
dominating America which has proven in time and time again that it stands above all the nations
in the world. Thus, the cost for proving the supremacy of the law of the land of the States, United
States has authorized itself to violate laws of similar nature of other nations.

The research paper isnt based on the idea that America is a nation ruled by egoistic people with
ambiguous laws but is just an evidence of how a nation may violate or rather bend laws just to
protect the laws of one owns nation.
 BIBLIOGRAPHY

BOOKS REFERRED

DR. H. O AGARWAL, INTERNATIONAL LAW AND HUMAN RIGHTS (Central Law

Publication, Allahabad) 20th edition.

WEBSITES REFERRED

1) http://papers.ssrn.com.
2) www.theguardian.com.
3) www.nytimes.com.
4) http.draafia.wordpress.com.
5) http.edwardsnowden.com.
6) www.bbc.com.
 ANNEXURE

LIST OF CASES REFERRED

1) Factor v. Labubenheimer 290 U.S. (1933) p. 287.

2) Frisbie v. Collins 342 U.S. 519 (1952).
3) Kentucky v. Dennison 65. U.S. 66 (1861).
4) Ker. v. Illinois 119 U.S. 436 (1886).
5) Puerto Rico v. Branstad 483 U.S. 219 (1987).
6) United States v Rauscher 119 U.S. 407 (1886).
7) United States v. Alvarez-Machain 504 U.S. 655 (1992).