AN APPRAISAL OF THE CONCEPT AND PRACTICE OF EXTRADITION UNDER INTERNATIONAL LAW

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AN APPRAISAL OF THE CONCEPT AND PRACTICE OF EXTRADITION UNDER INTERNATIONAL LAW

ABSTRACT

Customary international law and treaties have evolved over the centuries by the willing and active commitments of nations to subdue criminals tendencies by punishing fugitive offenders who attempt to escape from justice by seeking refuge in another nations. Extradition has been adopted to effectively prosecute fugitive offenders without offending the sovereignty of a sister state, and without compromising the doctrine of inviolability under international law. One of the problems of this research is that political offence is an exception to extraditable offences, and a concept which is troublesome in the determination of extraditable offence. It is disheartening to learn that some fugitives hide under this exception to escape the wrath of the law. Another problem of this research is the reluctance of some countries to subscribe to the principle of reciprocity and international morality in considering a request for extradition. The attitude of these states has made their territoriesa Haven for fugitive criminals. Another problem of this research is the inherent loop holes in the laws of extradition with particular reference to political offence exception. It is disheartening to learn that bilateral and multilateral treaties, and municipal extradition laws of state parties have made political offence as an exception to extraditable offences, but contain no provision geared towards the ingredients of a political offence that are of universal application. This legal challenge made different nations to ascribe diverse meanings to political offence. The research, therefore, traced the history and development of the practice of extradition in international. It also appraised the nature, scope and principles of extradition in order to ascertain whether the original philosophy behind the birth and practice of extradition amongst sovereign states still exists. It also identified the definitive inadequacy of the concept of political offence, and how it has hampered the smooth practice of extradition.The methodology used in achieving this aim is doctrinal method, which is a library oriented research. It also dwelled on the practice of extradition amongst some sovereign states like England, United States of America and Nigeria. The practice of extradition from the Nigerian dimension of certain instances, like Umaru Dikko, Enahoro and Ojukwu, etcetera, were analyzed and some positive lessons discovered. The research found that political offence exception is an obstacle in the determination of extraditable offences. It has also been found that state parties to extradition agreements take undue advantage of the inherent loop holes in the laws of extradition to avoid their international obligation. It has also been found that domestic extradition laws of state parties empower the Attorneys-Generals or Foreign Ministers who are political appointees to determine which offence is of political character. The research also finds that extradition proceedings are conducted by the requested state, who is the complainant, the prosecutor and the judge. This is difficult to be reconciled with the fair hearing principle of Nemo Judex in Causa Sua. The research recommended that only the courts would be in a better position to determine whether or not a particular offence is political, and not Attorneys-Generals or Foreign Ministers who are political appointees and their judgment is likely to be influenced by politics or other extraneous considerations. The research also recommended that there is need for establishment of a neutral international judicial body to sit in a neutral state to conduct extradition proceedings. It has also been recommended that in the interest of all humanity, municipal legislation on extradition should expressly provide the ingredients that constitute the political offence and the political offence exception should not always be treated like a sacred veil because it is many times used as a shield to protect fugitive criminals.

CHAPTER ONE

1.1 Introduction

There is a universal righteous indignation against crimes as constituting a clog in the wheels of peace, security and progress of society. Consequently, the fight against international crimeshave over the years become a subject of concern amongst sovereign states.This is more particularly because these sovereigns dearly desire to develop a mechanism either in the form of bilateral or multilateral treaty that will effectively prosecute international criminals without offending the sovereignty of a sister state and without compromising the doctrine of inviolability under international law. This is the primary philosophy behind the birth of the concept and practice of extradition under international law.The word “extradition” is derived from the Latin words“ex” and “traditum” which means to “deliver from”1. It basically, involves the process whereby, under a treaty or on reciprocity, one state surrenders to another state, at its request, a person accused or convicted of a criminal offence committed against the law of the requesting state for trial or sentence2. The practice of extradition is in the interest of all nations; Lord Russell, in Re-Arton3 captures the philosophy behind the practice of extradition in the following

terms:

The law of extradition is founded upon the broad principle, that it is in the interest of civilized communities that crimes should not go unpunished, and it is part of the comity of nations that one state should afford to anotherevery assistance towards bringing persons guilty of such crimes to justice.

Fundamentally, the concept and practice of extradition under International Law was a mechanism developed by the conference of sovereign states, predicated on the notions and basic principles of neighborliness and reciprocity with the aim of combating international crimes and apprehension of fugitive offenders4.The concept and practice of extradition dates back to the ancient middle age and far eastern civilization. It was perceived as a matter of courtesy and goodwill between sovereigns5. The subject of extradition is much older than modern International law6 and pre-dates even the origin of modern concept of nation-state based on organized rules of international behavior. Without extradition, international criminal offenders would be able to escape justice by moving from one country to another as it not possible for foreign authorities to arrest a fugitive offender in another country without extradition. Extradition allows countries to make request for another country to arrest and transfer a fugitive offender in order to prosecute, convict, sentence or enforce an already imposed sentence on them.

The reality on ground is that if the ills associated with the practice of extradition internationally are not curbed in good time, diplomatic relations are most likely to become unhealthy amongst sovereign states; international criminals will surely make head-way in their nefarious activities; and the original philosophy behind the concept and practice of extradition which is to curb international crimes will be lost. This research appraises the concept, practice and procedure of extradition under International Law. It is, therefore, a modest effort to delve into the slippery legal terrain governing the trend and the various manifestations of the intricacies associated with extradition, especially in our contemporary era where there is high tendency

among our world leaders and some prominent individuals to abuse public office or commit some nauseating crimes and attempt to seek for asylum elsewhere.

1.2 Statement of the Problem

This research work has identified the following as problems associated with the concept and practice of extradition under international law.

The obligation of state parties to extradition agreements has been hampered by the political offence exception under the law of extradition. Political offence exception has a firm root and history under the law of extradition. It is good that offences with characterization of politics should not be within the extraditable offences. This is because they are not naturally or traditionally core offence with all the ingredients of what constitutes an “offence” or “crime”. However, political offence is an exception, and a concept which is troublesome in the determination of extraditable offences. It is disheartening to learn that some fugitives hide under this exception to escape the wrath of the law.

The reluctance of some countries to subscribe to the principle of reciprocity and international morality in considering a request for extradition is another challenge facing the practice of extradition. There is a misconception as to the fact that the doctrine of reciprocity is the foundation upon which a successful practice of extradition resides. As it is, the doctrine of reciprocity has less potency and minimal viability due to the reluctance of some states to subscribe to its practical operation. It is, at best, effective only in theory. The attitude of these states has made their territories a Haven for fugitive criminals. We have seen this attitude in the United Kingdom and Ivory Coast, on the extradition requests by Nigeria over Umaru Dikko7

and Ojukwu8. The recent one, is that of Buruji Kashamu, where the Nigeria government, under Jonathan administration was reluctant to extradite the fugitive to the United States of America, despite the extradition treaty between Nigeria and the United States of America9.

Another major challenge is the inherent loop holes in the laws of extradition with particular reference to the doctrine of political offence exception. It is disheartening to learn that bilateral and multilateral extraditiontreaties, and municipal extradition laws of state parties have made political offence as an exception to extraditable offences, but contain no provision geared towards the ingredients of a political offence that are of universal application.10As it is, an offence of a political character is determined by a requested state. As a result of this legal challenge, different nations ascribe diverse meanings to political offence.

Another problem facing the practice of extradition is Jurisdictional Matters. Whether extradition proceedings are to be conducted domesticallyor internationally have seriously hampered the development of this area of law. Extradition proceedings are conducted by the requested state who is the complainant, the prosecutor and the judge. This is difficult to be reconciled with the fair hearing principle of memo judex in causasua, especially where the fugitive is a national of that requested state. In this circumstance, prosecution hardly yields positive results, if the legal process of prosecution and sanction is often controlled by the fugitive‟s sympathizers.

Aim and Objectives of the Research

This research work seeks to achieve the following aim and objectives.

This research work aim at tracing the history and development of the practice of extradition under International Law and appraising the nature, scope and principles of extradition with the following objectives:

1. To ascertain whether the original philosophy behind the birth and practice of extradition amongst sovereign states still exists;

2. To trace the basis of the political offence exception. In order to identify those who have a historic claim to the political offence exception under the law of extradition,

3. To identify the definitive inadequacy of the concept of political offence and how it has hampered the smooth practice of extradition internationally;

4. Tocritically examine the concept of political offence exception under the law of extradition in order to determine its relevance in today‟s international relation with a view to ensuring that the doctrine does not become a shield to perpetrators of crimes and other illegal activities.

1.4 Justification of the Research

The research envisages a better understanding of the law and practices of extradition. It will therefore be of help and great benefit to students of law, law teachers, lawyers, legislators, governments, international and regional organizations such as the United Nations and the African Union as well as the international community at large.

1.5 Scope and Limitation of the Research

This researchwork examines the concept, practice and procedure of extradition under international law. Consequently, the research work is limited to identifying the problems associated with the practice of extradition internationally, such as the definitive inadequacy of the concept of political offence and failure of the existing legal instruments to address same. Instances will however be limited to the Nigerian experience in the practice of extradition under international law.

1.6 Research Methodology

The methodology used, is doctrinal which, is a library oriented research. Materials consultedinclude primary and secondary sources. The primary sources include: information obtained from relevant statutes and case laws, such as the Nigerian Extradition Act11 and the Pinochet‟s Case12. Secondary sources consist of information obtained from books of both foreign and local authors, journals, articles published and unpublished, conferences and resolutions of international organizations.

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