Dr.

Ram Manohar
Lohiya National Law
University
Public
International Law
Final Draft
Semester IV
Reconciling Extradition with
Human Rights

Submitted to : Submitted by :
Mr. Manwendra Kumar Tiwari Pranav Bhansali
Assistant Professor (Law) 160101109
B.A. LL.B (Hons.)

PRELUDE

In this reconciliation we look at the effect of human rights on removal. The

incremental also, casuistic reaction of removal law to this improvement neglects
to give an appropriate lawful system for the adjusting of the human privileges of
the criminal and the intrigue of states in the concealment of transnational
wrongdoing. Worldwide criminal law authorization isn't all around served by a
framework that endures the refusal of removal now and again where the human
privileges of the outlaw are in danger in the asking for state yet neglects to give
the chiefs of the asked for state with clear gauges or rules by which to settle on
such a choice.

The human rights development, which has had such an intense effect on
universal law and relations in the post-World War II period, has lately turned its
regard for removal.

Settlements, official acts and legal choices on removal have all been
Influenced. In the meantime, transnational and global wrongdoing has
expanded. The global group has reacted by making new establishments' and
extending the system of reciprocal and multilateral settlements intended to ban
transnational wrongdoing, advance removal, and approve shared help.
Unavoidably, there is a pressure between the case for the incorporation of
human rights in the removal procedure and the interest for more compelling
universal participation in the concealment of wrongdoing, which looks like the
strain in numerous national legitimate frameworks between the "peace" and
human rights ways to deal with criminal equity. As in household society, it is
important to strike a harmony between the two to set up a framework in which
wrongdoing is stifled and human rights are regarded.

Extradition law is a blend of international and national law. Treaties may

provide for the rendition of criminal fugitives between states, but it is for
municipal law to determine whether the fugitive is to be surrendered in
accordance with the extradition treaty. National extradition laws differ
fundamentally in respect of a wide range of matters, including the incorporation
of extradition treaties, the respective roles of the executive and the judiciary in
the extradition process, the quantum of proof required for extradition, and the
extradition of nationals. Furthermore, in some states extradition laws may be
subject to constitutional provisions guaranteeing human rights and to
international human rights conventions incorporated into municipal law, while
in other states no such restraints apply. The present study approaches the subject
of extradition and human rights from the perspectives of international and
comparative law. The comparative dimension examines judicial decisions in
various legal systems but makes no attempt to provide a comprehensive picture
of any particular system. Comparative trends are more important than national
detail at this stage of evolution of the subject.

LINKAGE OF HUMAN RIGHTS AND EXTRADITION

The Soering Case

The sensational "achievement" for removal and human rights on the worldwide
scene accompanied the Soering instance of the European Court of Human
Rights. Soering, a West German national, killed his better half's folks in
Virginia and fled to the Joined Kingdom, from which his removal was asked for
by the United States. After the United Kingdom requested his removal, he
appealed to the European Commission of Human Rights, which alluded the case
to the European Court of Human Rights.

The Court held that the United Kingdom was required by Article 3 of the
European Tradition on Human Rights,which disallows torment and barbaric or
debasing treatment or discipline, not to remove Soering to the United States
where there was a genuine hazard that he would be subjected to barbaric or
debasing treatment by being kept waiting for capital punishment for a drawn out
period in the territory of Virginia. The court found that the truth that the real
human rights infringement would happen outside the domain of the asked for
state did not exonerate it from duty regarding any predictable outcome
of removal endured outside its jurisdiction. In such a case the asked for state
causes duty since it has sensible grounds to predict that an infringement of
human rights will happen in the asking for state and, regardless of this, removes
the criminal.

Extradition treaties linking certain Human Rights to Extradition

The linkage of extradition and human rights predates Soering. Since World War
II, opposition to the death penalty has resulted in a common clause in bilateral
treaties that excludes extradition where the requesting state retains the death
penalty and is unwilling to provide assurances that this penalty will not be
implemented if the fugitive is extradited. Article 11 of the 1957 European
Convention on Extradition confirms this practice. In addition, the European
Convention excludes extradition where the requested state has substantial
grounds for believing that a request for extradition for an ordinary criminal
offence has been made for the purpose of prosecuting or punishing a person
on account of his race, religion, nationality or political opinion, or that that
person's position may be prejudiced for any of these reasons. This clause,
modeled on the non-refoulement provision in the 1951 Convention Relating to
the Status of Refugees, has been adopted in other extradition agreements,
including the controversial United States-United Kingdom Supplementary
Extradition Treaty of 1985.The International Convention against the Taking of
Hostages of 1979, the Inter-American Convention on Extradition and the
Commonwealth Scheme for the Rendition of Fugitive Offenders of 1990
contain similar provisions. The international condemnation of torture has also
had an impact on extradition. The 1984 Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment prohibits the
extradition of a person to a state "where there are substantial grounds for
believing that he would be in danger of being subjected to torture." In 1990
the United Nations General Assembly sought to ensure that human rights
would receive full respect in the extradition process when it gave approval to
the UN Model Treaty on Extradition proposed by the Seventh and Eighth UN
Congresses on the Prevention of Crime and the Treatment of Offenders in 1985
and 1990.This model prohibits removal, not just if there are significant reason
for trusting that the individual will be arraigned or rebuffed in the asking for
state because of his race, religion, nationality, ethnic cause, political sentiment,
sex or status, or subjected to torment or on the other hand remorseless, cruel
or debasing treatment, yet additionally "if that individual has not gotten or on
the other hand would not get the base certifications in criminal procedures, as
contained in the International Covenant on Civil and Political Rights, Article 14.
These arrangements subsequently expand the "center human rights" with the
end goal of removal to incorporate the privilege to a reasonable trial. From
that point forward some two-sided removal understandings have additionally
accommodated the avoidance of removal where a reasonable trial is unlikely.

Domestic Legislation

As of the mid 1980s, some European states have made express authoritative
arrangement for the refusal of removal where human rights will be abused in
the asking state. Even before 1981, when the Swiss governing body received
another removal statute that explicitly connects human rights and removal,
Swiss courts had chosen that human rights commitments took need over the
removal statute. In the Dharmarajah case,

the Swiss Federal Tribunal held that the adherence of Switzerland to the
European Tradition on Human Rights had certainly adjusted the 1892 removal
statute to the degree that Switzerland, in the event that it chose to remove a
criminal, was required to guarantee that removal would not bring about an
infringement of the rights ensured under the Convention.

The Soering case has added to an adjustment in mentality toward removal on

the some portion of courts in some states, while in different states a
household bill of rights has given the reason for legal activism.
Notwithstanding, by and large a more extensive worry for human rights and
equity has been in charge of the choice to deny removal.
The Netherlands v. Short demonstrates the impact of Soering. Short was an
American trooper associated with having killed his better half; his surrender
was asked for as far as the 1951 NATO Status of Forces Agreement between
the Netherlands and the United States.

At the point when the U.S. experts declined to give any confirmation that
capital punishment would not be forced or completed, the trial court held that
there was a beyond reconciliation strife of worldwide commitments between
the NATO Status of Forces Agreement and the Sixth Protocol (nullifying capital
punishment) to the European Convention on Human Rights, to which the
Netherlands was a gathering. Despite the fact that the High Court (Hoge Raad)
was not set up to find that the Sixth Protocol came first, it held that it was
important to adjust the contending interests of the gatherings. On this
premise, it held that Short's enthusiasm for not being given over ought to beat
the Government's advantage in removing him to the United States.

The Basis for Priority of Human Rights over Municipal Law and Extradition
Treaties

At the point when a metropolitan court denies Extradition on the ground that
the essential privileges of the outlaw will be damaged by the asking for state in
the event that he is removed, or when a universal court or other establishment
observes a state to be in rupture of its commitments under a human rights
arrangement for having removed an outlaw, supremacy is in actuality
concurred to a human rights standard over the removal arrangement. Courts
have given careful consideration to the reason for this supremacy.
The refusal of extradition for reasons influencing human rights isn't
consequently provoked exclusively by worry for the welfare of the person. In a
few cases a residential court will be required to pick between contending
settlement commitments, as in The Netherlands v. Short, the enthusiasm of
the asked for state in consistence with its settlement commitments will be the
definitive factor.
The issue of picking between clashing extradition commitments is one that
does not stand up to universal human rights courts and observing bodies, for
example, the UN Human Rights Committee, as they apply the bargain to which
they owe their reality.

WHICH HUMAN RIGHTS IMPEDE EXTRADITION

The three premier non-governmental international law associations- the
Institute of International Law, the International Law Association and the
International Association of Penal Law70 -have approved reports
recommending that both executive and judicial authorities should refuse
extradition where there is a real risk that a fugitive's human rights will be
violated in the requesting state.

Death Penalty

It is hard to contend that standard worldwide law contains an administer

disallowing the demise penalty. No human rights tradition bans capital
punishment, in spite of the fact that conventions to the International Covenant
on Civil and Political Rights the European Tradition on Human Rights and the
American Convention on Human Rights do so. All Western European states
have abrogated this punishment true or by right, yet it is still a legal
punishment in numerous states. Neither usus nor opinio juris consequently
bolsters such a restriction under universal law. In Soering the European Court
of Human Rights was obliged to construct its finding in light of the death row
wonder as opposed to on capital punishment itself in light of the fact that the
last isn't banned by either the European Convention or standard law, while the
previous as a type of barbaric and debasing treatment is so precluded
As international law does not prohibit the death penalty, the fact that the
fugitive will be executed if returned to the requested state cannot per se
obstruct extradition. The manner of execution, however, may constitute cruel
or inhuman punishment, in which case extradition should be refused,

Torture

There can be little doubt that customary international law recognizes a

prohibition on torture. Every human rights convention prohibits such conduct,
as do the constitutions of many states. Furthermore, there are special
conventions aimed specifically at this prohibition-the 1984 Convention against
Torture and Other Cruel, Inhuman or De grading Treatment, the 1985 Inter-
American Convention to Prevent and Punish Torture, and the 1987 European
Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment.
Cruel, Inhuman or Degrading Treatment or Punishment

The status under standard universal law of the restriction on savage, brutal
or on the other hand corrupting treatment or discipline, which happens in each
broad human rights tradition, isn't clear a result of its expansive nature. It is in
this way important to inspect diverse types of treatment and discipline in this
class have been or are liable to be progressed as obstructions to removal
keeping in mind the end goal to learn the weight to be joined to each frame
when conjured in that unique circumstance.

Prison sentences and conditions

Certain forms of prison sentence are viewed as inhuman and degrading

punishment. Life imprisonment has been replaced by a fixed-term sentence in
Spain and Portugal and is under constitutional attack in other countries. That
some states are unlikely to extradite to states that impose this sentence is
confirmed by Article 9 of the Inter-American Convention on Extradition of
1981, which prohibits extradition where the offense is punishable by life
imprisonment. Mandatory prison sentences also present difficulties, although
attempts to prevent extradition from Canada to the United States on this
ground have failed. In the case of Geller v. The Netherlands, the European
Commission on Human Rights found that the expected length of a prison
sentence is, in itself, not sufficient to constitute a violation of Article 3 of the
European Convention.

Corporal Punishment

This form of punishment has been abolished in many countries and is contrary
to Article 31 of the UN Standard Minimum Rules for the Treatment of
Prisoners. Moreover, it has been held to be in violation of the prohibition on
inhuman or degrading treatment by the European Court of Human Rights and
by the domestic courts of countries with constitutions modeled on Article 3 of
the European Convention on Human Rights."' Although corporal punishment is
still practiced in many countries, there is no doubt that its prospect may
prompt states that have abolished corporal punishment to refuse extradition
on this ground, despite the fact that extradition treaties do not provide for its
refusal in such cases. This, too, seems to be a subject on which there is a need
for assurances from the requesting state if extradition is to be effective.

Right to Fair Trial

The privilege to be attempted by an appropriate courtroom and the privilege

to a reasonable trial are among the most critical common and political rights.
On a few events the European Court of Human Rights has held that these
rights hold such a conspicuous place in a fair society that they can't be yielded
to practicality, not even on account of intense wrongdoings, for example, fear
mongering 215 or sorted out violations.
The direct of criminal procedures is acknowledged as an issue falling inside the
domaine hold of states. While there is a close accord that specific types of
treatment and discipline are in opposition to worldwide standards, there is less
understanding about the universal standards of decency in criminal trials since
criminal procedures are essentially the result of a country's history, customs
and lawful culture. Thus, requested states will regularly accord a wide edge of
thankfulness to the asking for state at the point when allegations are leveled at
its guidelines of criminal equity, and courts of the requested state will likely
decline removal just where there is clear confirmation of a blatant and orderly
refusal of reasonable trial rights in the asking for state.

Right To Privacy

Removal will much of the time meddle with the criminal's entitlement to
security, particularly whenever his or her family life is in the asked for state.
Not at all like the human rights talked about above, nonetheless, the privilege
to security isn't an unfit directly under either the European Convention on
Human Rights or the International Covenant on Civil and Political
Rights. Though the privilege to protection is ensured as an issue of guideline by
these traditions, legal limitations of this privilege are conceivable given that
they are based on law, fill a real need, and are important in a just society.
Infringements of the privilege to security are not along these lines inconsistent
in essence with the litigant's human rights. Besides, wrongdoing aversion is
one of the honest to goodness purposes for which the privilege to security
might be limited.

Discrimination

The prohibition against discriminatory treatment was first recognized for the
purposes of extradition law by Article 3(2) of the European Convention on
Extradition of 1957. As noted above, that provision states that a person shall
not be extradited if the requested state "has substantial grounds for believing
that a request for extradition for an ordinary criminal offence has been made
for the purpose of prosecuting or punishing a person on account of his race,
religion, nationality or political opinion, or that that person's position may be
prejudiced for any of these reasons. This provision is repeated in the 1990 UN
Model Treaty on Extradition, which adds ethnic origin, sex and status to the list
of prohibited categories of discrimination. Despite the fact that European
states do not, in principle, practice the rule of noninquiry, their courts have not
applied Article 3(2) in practice, as far as the authors are aware. One of the
reasons may be that it is very difficult for requested persons to prove that they
are likely to be prosecuted for reasons not relating to the offense for which
they are sought, but for other reasons.

THE SUPRESSION OF CRIME AND HUMAN RIGHTS

In spite of the fact that extradition law and practice don't perceive a general
exemption to extradition where the human privileges of the outlaw are
undermined in the asking for state, complaints to extradition in light of human
rights grounds have turned out to be typical in extradition procedures. In these
conditions it is important to give careful consideration to systems and implies
that could add to accomplishing a superior harmony between the assurance of
human rights and the concealment of wrongdoing. One arrangement may be
to make more prominent utilization of restrictive extradition, which would
enable an asked for state to screen the treatment of extraditees after their
arrival to the asking for state. Another arrangement may lie in the
advancement of the system of aut dedere aut judicare, which would enable
states to reject extradition on human right grounds without letting the outlaw
go unpunished. In spite of the fact that these procedures may be proper at
times, they can't be connected in all cases. Therefore, it will normally still be
occupant on local courts to discover an answer in singular cases by adjusting
the privileges of the litigant with the group enthusiasm for the concealment of
wrongdoing. Such adjusting will involve a refinement of the criteria on which
they base their discoveries.
Contingent extradition isn't new to the extradition procedure. The rule of
unique specialty, which requires the asking for state to arraign the extraditee
just for the wrongdoing or on the other hand violations for which he has been
removed, forces a condition on the give of extradition. Failure to agree to this
condition will bring about a rupture of the treaty. The capital punishment
special case is likewise a type of restrictive extradition expresses that have
received this special case in their extradition arrangements or statutes will
regularly secure agreeable affirmations from the asking for state, as an express
precondition to extradition, that the individual won't be executed. Another
sort of restrictive extradition that isn't extraordinary requires the asking for
state to attempt to return extraditees to serve their sentence in the asked for
state when they are nationals of that state.
States of the above kind are not dubious, as they don't consider the nature of
criminal equity in the asking for state. Be that as it may, when an asked for
state subjects extradition to the express condition that the extraditee be
concurred a reasonable trial or then again be given a discipline that isn't cruel
or corrupting, the asking for state is probably not going to be satisfied.
However by and by such conditions are settled upon by states. At the point
when the United States removed Ziad Abu Eain to Israel in 1982, the Executive
secured an undertaking from Israel that he would be attempted by a non
military personnel court, not a military court, what's more, that he would be
agreed all the reasonable trial rights required by human rights convention.
The situations in which conditional extradition may be used vary. In some cases
it may be easy for the requesting state to verify whether the conditions have
been met and no monitoring will be necessary. If the condition is that a certain
punishment will not be imposed (for example, no capital punishment or no
mandatory life sentence) or that the extraditee, previously tried in absentia,
will be given a new trial, there will be no need for monitoring. There are many
examples of successful conditional extradition of this kind, such as the cases in
which the United States as a requesting state has undertaken not to enforce
the death penalty. However, if the condition is that the extraditee will be tried
according to certain minimum standards of fair proceedings, the requested
state may wish to monitor the case.
Conventions providing for the punishment of international crimes, such as hi
jacking, hostage taking, attacks on diplomats and torture, rely largely on the
procedure of aut dedere aut judicare (aut punire) as a means of enforcement.
This procedure, which requires contracting parties either to extradite or to try
offenders, is made possible by the generous jurisdictional clauses contained in
these treaties. The Rome Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation of 1988, for example, confers
jurisdiction to try offenders on the flag state of the ship seized, the state of
which the offender is a national, the state whose nationals are victims, and the
state at which the seizure is directed "to compel that State to do or to abstain
from doing any act”. Purely national crimes are generally not subject to
prosecution in a multiplicity of jurisdictions, particularly in common law
countries that recognize territoriality as a basis for criminal jurisdiction, which
makes the principle of aut dedere aut judicare less useful as a means of
enforcing transnational (as opposed to international) crimes. There is,
however, some scope for the application of this principle in such cases. Most
civil law states are prepared to exercise jurisdiction on grounds of both
territoriality and nationality. Moreover, common law countries have in recent
years extended their extraterritorial jurisdiction to cover crimes committed by
and against their nation.

CONCLUSION

Human rights law is a noteworthy element of contemporary universal law.

Extradition isn't insusceptible from the effect of this branch of the law.
Progressively, governments and courts are acting as per this reality. The dread
that acknowledgment of this reality in extradition bargains will block the
requirement of transnational criminal law is justifiable however unjustifiable.
As has been appeared, in proper conditions states do deny extradition in light
of a legitimate concern for human rights, even where such refusal brings about
an infringement of their commitments under an extradition settlement. New
extradition settlements and supplementary conventions to existing settlements
should assess the human rights factor and control it with the goal that courts
and administrators can practice their forces in an intelligible way that adjusts
the enthusiasm of the criminal's human rights with that of law authorization.
The authorization of universal criminal law is ideally serviced by an extradition
law that explicitly suits the interests of human rights than by one that neglects
to recognize the degree to which human rights law has reshaped this branch of
global participation.

Cases Cited:
Soering v. United Kingdom 2161 Eur. Ct. H.R. (ser. A) para. 89 (1989).

Dharmarajah v. Ministere Public Federal, Arrets du Tribunal Federal Suisse

[ATF] 107 lb 68 (1981)

Netherlands v. Short 48 HR 30 Mar. 1990, NJ 249