Length: 31543 words article: (non-)extradition of nationals: a neverending story? Michael Plachta Chair of Criminal Procedure, Gdansk University. The author wishes to thank Mrs. Sara Criscitelli, U. S


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Copyright (c) 1999 Emory University School of Law

Emory International Law Review

Spring, 1999
13 Emory Int'l L. Rev. 77

LENGTH: 31543 words

Michael Plachta *

* Chair of Criminal Procedure, Gdansk University. The author wishes to thank Mrs. Sara Criscitelli, U.S. Department of Justice, for her help in researching this Article.

... Moreover, while the international community and the international legal order have radically changed over the last century, the content of this debate has not. ...



There is little exaggeration in asserting that the problems surrounding the non-extradition of nationals are as old as extradition itself. Its origin can be traced to ancient times. Whether consistently or not, the practice of refusing to surrender one's nationals has been maintained by many countries for centuries. Notwithstanding all of the convincing arguments against it, as well as the proposals to modify states' policies with respect to this form of international cooperation in criminal matters, there is nothing to indicate that it will soon be abandoned. Most states seem to be unmoved by the compelling arguments proposed by international criminal law scholars in favor of relaxing the strict prohibition of the extradition of nationals by either allowing a "conditional surrender" or even a total departure from this practice.

The controversies regarding the nationality of the requested person as grounds for refusing to extradite range from the scope of the rule's application ratione personae, n1 to the validity of its justification, and finally to the rule's status in international law. As for the status of the rule in international law, some scholars argue that the non-extradition of nationals is not a universally recognized principle of international law, n2 while others believe that, at [*78] least in civil law jurisdictions, this concept has been elevated to a rule of international law. n3 The latter view was endorsed by the Austrian Supreme Court in 1961:

It may ... be observed that in criminal matters there is a generally recognized rule of international law (Article 9 of the Federal Constitution) that a State's own nationals must never be extradited to another state in whose territory they have committed a criminal offence. n4

Interestingly, each and every question pertaining to this problem is extremely sensitive and controversial, whether it concerns one of the issues just mentioned or whether it concerns the character (mandatory or optional) of the refusal to extradite one's nationals, the treaty stipulations and legislative pronouncements in which this rule appears, or the date on which the fugitive offender's nationality - a possible bar to extradition - is assessed by the requested state authorities. n5 Truly, since the nineteenth century the principle has evolved from a mere rule of custom to an emotionally charged conviction, despite strong opposition originating mainly, although not exclusively, n6 from the common law [*79] legal system, where the rule is perceived as a "creature of national distrust, a relic of a more primitive order of civilization." n7

On many occasions, countries that oppose the extradition of their nationals have been called upon to reevaluate their justifications for this rule, to reexamine its validity, and to reconsider their further adherence to this system. n8 However, even if not rejected outright, such demands have been almost completely ignored by the governments for reasons relating to their domestic policy, political considerations, and sovereignty; their national interests clearly outweigh any inter- or supranational ones. n9 Therefore, in sharp contrast to the considerable evolution over the last few decades of almost all other forms of international cooperation in criminal matters, including extradition itself, the gap between the two approaches to the problem of surrendering nationals has not been closed. A global trend in the attitude toward the non-extradition of nationals is difficult to [*80] discern. Overall, the traditional stance against the extradition of nationals has prevailed.

Given the recent developments in both international relationships and international criminal law, most notably the establishment of two international criminal tribunals, one for Yugoslavia and the other for Rwanda, followed by the work to create a permanent international criminal court, the question arises as to whether the rule of non-extradition of nationals should be challenged again. Should it be abandoned altogether, or would a mere concession to the opposite principle be sufficient? This Article seeks to answer this and other relevant questions through the examination of the origin and development of the rule of non-extradition of nationals in Part I and the validity of its justification in Part II. Two dominant approaches (along with their variants) will be considered in Part III. In addition, the non-extradition of nationals will be analyzed in the context of human and constitutional rights in Part IV. Finally, in Part V, an inquiry will be made into the possible solutions to the problem of negative effects produced by the policies of civil law countries that refuse to surrender their citizens. Given the history, development, and rationale of the rule, this Article concludes by asserting that, although a "frontal attack" against the non-extradition of nationals is not promising, there are other ways to escape from the stalemate it creates.

I. Origin and Development

Although there is ample evidence of the practice of non-extradition of nationals in ancient times, n10 an examination of the pertinent documents warrants caution, or even re [*81] serve, due to their diametrically different ideas of statehood, sovereignty, law, and the relationship between a government and its subjects. These concepts contributed to the doctrine of extradition as it was then understood. Specifically, extradition was more a matter of grace than of obligation. Moreover, given the hostility between nations and tribes, as well as disparities in levels of civilization, the surrender of a subject to a foreign state was in many situations tantamount to permanent exile, if not death. n11 Therefore, any conclusions drawn from ancient times regarding the justification of the rule of non-extradition of nationals must take this into account.

In ancient Greece, instead of surrendering citizens, the competent authorities exercised jurisdiction forum patriae over the offender. n12 In ancient Rome, purely national law precluded the extradition of citizens to foreign states; n13 based on a treaty, however, extradition was possible under very exceptional circumstances. n14 Among the Italian city-states, the practice varied, but to the extent that extradition was based on the statutory interpretation elaborated by post-glossators, the extradition of nationals was allowed and encouraged due to the exclusive jurisdiction of the forum loci delicti commissi. n15 The practice of mutual surrender of offenders, including the transfer of prisoners, was facilitated not only by geographic proximity, but also by cultural, economic, social, and legal similarities - a tenet that is reflected in the contemporary practice between some closely linked countries, such as the Nordic states.

[*82] The modern practice of non-extradition of nationals dates back to medieval times, and it is rooted in the relationship between the feudal ruler and his subjects. While the former owed protection to his "subditos" for their allegiance, work, and contribution to his wealth and power, the latter were entitled to the "ius de non evocando," the right not to be withdrawn from the jurisdiction of their local courts. Thus, the "Treupflicht" n16 was a corollary of the ius de non evocando. The latter was formulated as a privilege that was given by the ruler in a special decree, called a "Bull." The first Bull may have been issued in 1290 by the German Kaiser for the inhabitants of Mhlhausen. n17 However, the best known privilegium de non evocando was granted in the Golden Brabantine Bull to the Lothars who resided in Brabant and Limburg in 1349. n18 Unfortunately, through repression and excessive fines, that privilege was gradually abused. n19

The continental practice developed under the predominant influence of France. In 1736, France and the Netherlands adopted reciprocal arrangements that were extensions of the provisions of the Brabantine Bull. n20 However, between 1765 and 1834, French treaty practice demonstrated a flexible approach to the extradition of nationals, which reflected a wide variety of political and practical considerations. n21 For example, while France in 1765 concluded an extradition treaty with Spain that specifically applied to [*83] nationals, in 1777 France and the Helvetic League agreed that each party would not deliver up its own citizens except for a crime "grave et public." n22 Even though France is looked upon as the "cradle" of the rule of non-extradition of nationals, its extradition policy was extremely unsettled until the 1830s or 1840s. In addition, there was also a disparity between the official pronouncements regarding non-extradition of nationals and the practice thereof. In 1803, Mr. Jollivet declared in the Council of State that the non-extradition of nationals was established by the universal usage of nations. n23 In 1811, Napoleon issued his famous decree permitting the extradition of nationals. n24 This decree was supposed to have been abrogated by the Constitutional Charter of 1814, but in 1820, J. Machon, a Frenchman, was delivered up for trial in Switzerland. n25

It was not before 1834 that a French extradition treaty clearly stated that French nationality was a bar to surrender. n26 Since that date, however, French policy has been consistent for the most part. The only deviation from strict adherence to the rule of non-extradition of nationals after 1834 occurred in 1843, when separate treaties concluded with Great Britain and the United States provided for the extradition of "all persons" without exception. n27 The deviation was more formal than substantive because no French national was ever surrendered under these treaties. n28 Well-established in French public law, the rule of non-extradition of nationals was purely a customary norm until [*84] 1927, when the Extradition Law was adopted, providing that extradition cannot be granted when the requested person is a French "ressortissant," that is, anyone who is subject to French sovereignty as a national, protege, or inhabitant of a territory under mandate. n29

Notwithstanding some variants and modifications, the rule of non-extradition of nationals has developed along similar lines in other European countries. Whether acting under treaties or on the basis of reciprocity, most European countries adopted the rule by the middle of the nineteenth century; the rule has persisted in Europe and has spread to Latin America. n30 With the exception of the Netherlands and a specific situation between the Nordic states, no countries have abandoned the doctrine. Two more states should be mentioned in this context: Switzerland and Italy. While the old Swiss Extradition Law of 1892 contained an absolute prohibition of the extradition of Swiss nationals, the 1981 Law on International Cooperation in Criminal Matters has made surrender possible on the condition that the person gives his consent in writing. n31 In 1947, the Italian Constitution was amended to generally permit the surrender of Italian nationals: "Extradition of a national shall be granted only where it is expressly provided for in an international treaty." n32


II. Rationale: A Thorny Issue

A. Methodological Issues

Justifying the rule of non-extradition of nationals presents several problems. First and foremost, the arguments advanced in its favor developed in the nineteenth century, and some of them are based on an even earlier era. In contemporary writing, no one has proposed a new rationale; the same is true with respect to the domestic legislative practice in the last half of the twentieth century. Today's purported justification may be based, at best, on the recapitulation of old arguments. n33 The rule is often formulated in a somewhat dogmatic style, without any satisfactory basis of reasoning other than its mere existence. n34 Sometimes it is stated as a political axiom hardly open to discussion. n35 Because modern legislators refrain from specifying reasons for maintaining this rule, those who vehemently oppose it look much like Don Quixote fighting with a phantom; it is difficult to argue against something that, first, has not been expressly nor clearly defined, and, second, that may or may not be tacitly accepted by the opposite party. Typically, to make a case for the extradition of nationals, one must, somewhat arbitrarily, advance the traditional reasons in favor of non-extradition, which presumably might have been considered valid if ever expressly admitted by the governments, and then demonstrate that they are ill-founded, inadequate, or outdated. n36

[*86] Worse still, given that arguments pro and con are rooted in the political, practical, and legal interests of a state, n37 including the considerations of its domestic policy, there is no guarantee that both parties of the dispute follow the same methodological regime. As a result, while the arguments generally raised against this rule operate on an international level and emanate from the notions of world legal order, fundamental justice, and the need to strengthen the international solidarity and spirit of cooperation in the suppression of criminality, the counterarguments point almost exclusively to the domestic matters of a state. An interesting question arises as to whether the paucity, or lack, of arguments on one side can be compensated by arguments from the other. Finally, it may also be that the authority of the doctrine that exempts a national from extradition resides less in the force of the arguments employed to justify it than in the unanimity of international treaties that have accepted it. n38

B. Specific Arguments

In Great Britain, a Royal Commission was appointed in 1878 to inquire into all aspects of the law of extradition. n39 Lord Cockburn, who in the previous year had declared in court that the exception of nationals from the treaty with Switzerland was a "blot upon the law," n40 was chairman of the Commission. The Commission summarized the arguments in favor of exempting nationals as follows: first, a subject ought not to be withdrawn from his natural judges (ius de non evocando); second, the state owes its citizens the protection of its laws (Treupflicht); third, it is impossible to [*87] place entire confidence in the justice of a foreign country; and fourth, it is a serious disadvantage for a man to be tried in a foreign language, and where he is separated from his friends and his resources and from those who could bear witness to his previous life and character. n41

The Commission rejected these arguments and concluded that a person residing abroad owes obedience to the laws of his country of residence - a consideration which overrides the arguments mentioned above. n42 This rationale was later reflected in a ruling of the United States Supreme Court, where Justice Harlan, speaking for a majority of the Court, stated authoritatively that the American citizenship of an offender grants him neither an immunity for offenses committed abroad, nor a right to demand all of the procedural guarantees existing under the law of the United States:

When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such modes of punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. n43

The rationale for exempting nationals from extradition rests on the notion that the offender is likely to receive ill treatment or an unfair trial in the requesting state. n44 To that extent, it is discriminatory treatment that differenti [*88] ates between nationals and non-nationals. n45 The justification of the rule of non-extradition of nationals largely derives from a jealously guarded conception of national sovereignty, and it presupposes the existence of sharp contrasts in the administration of criminal justice between states, resulting in potentially unfair treatment. However, as Harvard Research in International Law pointed out, "if justice as administered in other States is not to be trusted, then there should be no extradition at all." n46 Other arguments advanced against the surrender of a national are the following: (1) fundamental right of asylum; (2) popular instinct of society; (3) disparity in domestic legal systems with respect to both substantive law and procedure; and (4) potential for bias and prejudice against the surrendered person, based solely on his foreign origin and nationality. n47

C. Liaison Intime Between a State and Its Subject: The Bottom Line?

The modern formulation of the ius de non evocando has its origin in France and was based on the declaration in Article 62 of the French Constitutional Charter of 1814 that "nul ne pouvra etre distrait de ses juges naturels." n48 Its in [*89] terpretation among scholars and writers was not unanimous. n49 Specifically, it was unclear whether "juge naturel" should be understood as "juge national." A powerful argument favoring this interpretation can be found in an even earlier treaty stipulation adopted in the 1781 convention between the King of France and the Prince of Basel regarding crimes committed on the frontiers of the two countries; its Article 2 provided:

In the case of a crime calling for corporal punishment [or capital punishment], the court of the place of the crime [(court exercising jurisdiction ratione materiae)], after carrying the procedure to the point of definitive judgment, will transfer the case to the natural judges of the accused who will pronounce the sentence according to the laws and ordinances of their country. n50

Today, interpreting "juge naturel" as "juge national" is viewed more as a rule of good politics than as a rule of law. n51

There is considerable confusion regarding the role and significance of the "natural judge" as a motive for refusing to extradite nationals. It seems that the misunderstanding has been caused by the failure to make a clear distinction between the competence of courts of a given state to hold trial and the competence of the actual venue within the territory of that state. Chronologically, one must first establish whether the domestic courts have jurisdiction over the case before a specific court can claim competence. It is a universally recognized rule of criminal procedure that jurisdiction belongs to the court loci delicti commissi. n52 The [*90] notion of the "natural judge" points to the venue, rather than the national jurisdiction, n53 and in this sense it is similar to the origin of the jury of neighbors of the accused in early English practice. They were both witnesses and representatives of the community. n54 Therefore, it is very doubtful whether an extrapolation of this concept to the notion of a national judge is valid. From the point of view of the administration of justice, the juge naturel is not the juge national. For instance, allowing the accused to invoke a nationality exception to be judged in his home country, rather than the forum delicti, might lead to "unnatural" results, where the determination of the truth is very difficult. n55 To summarize, the "natural judge" of the accused is he who has jurisdiction ratione materiae.

If it is agreed that the reason for not surrendering nationals is a special relationship between them and their home country, this is where the Treupflicht comes into play. This theory was developed and advanced by German writers, although its meaning remains somewhat unclear. n56 Recently, it has been criticized for being devoid of any practical significance. n57 This concept was not completely unknown in the common law countries. For example, in an English case, the counsel for the extraditee argued, "As a British subject the prisoner owes allegiance to the Queen, in return for which he is entitled to her protection, for nationality involves a "duplex ligamen.'" n58 On the other hand, the rule of non-extradition of nationals may be perceived as a manifestation of "solidarite mal placee" between the state and its citizens. n59

[*91] If there is a grain of truth in the assertion that the link between the requested state and its national may justify non-extradition, then it will be difficult to agree upon the criterion, especially because the basis of such a link has changed dramatically in the course of history. The problem is that both formal criteria (papers or documents stating nationality) and material or substantive ones (domicile, work, business, family ties) n60 lead to unacceptable consequences. The use of substantive criteria would mean that the same "protection" has to be granted to persons other than nationals when they have genuine and long-standing ties to the requested state, while formal criteria might produce an obvious absurdity, which the following hypothetical illustrates. Suppose that X acquired double nationality: State A by ius soli and State B by ius sanguinis. X has lived in the territory of State A for some forty years and has never even set foot on the soil of State B. However, after committing a fraud (together with several other persons based on a sophisticated scheme), X fled to State B, whose passport he legally obtained. State A sought X's extradition, and State B, which does not recognize multiple nationality, refused to extradite on the grounds that X is a national of State B. Due to the nature of the offense and evidentiary considerations, the trial in State B was not feasible even though State B had jurisdiction, the rule of mandatory prosecution applied, and StateB was eager to initiate criminal proceedings.

This case also illustrates that the rigidity of the traditional concept of non-extradition of nationals could produce further undesirable effects. Assume that after some time X decided that he would like to return to his true home country and that, consequently, he does not raise any objection [*92] to his surrender to State A; rather, he requests his extradition. It turns out that he lacks standing in such a case, and his request cannot even be taken into account by the executive. Consequently, as a national of the requested state, he cannot be delivered up - whether with his consent or without it - unless, of course, State B happens to be Switzerland, whose 1981 Law on International Cooperation in Criminal Matters allows the surrender of nationals with their written consent. n61 Switzerland's flexible solution warrants serious consideration by other countries.

III. Approaches: An Irreconcilable Disparity?

A. Differing Perspectives on Sovereignty and the Status of Citizens

The role of nationality in extradition is one of the issues that illustrates an almost bottomless precipice between common law and civil law countries. Moreover, while the international community and the international legal order have radically changed over the last century, the content of this debate has not. Let us compare the proceedings of the meeting of the Institute of International Law at Oxford in 1880 n62 with the documentation of the 1989 International Conference on Extradition in Siracusa, Italy. n63 The starting point for the participants at both gatherings was the international community's distinct extradition practices: the vast majority of states that refuse to surrender their nationals and the minority of states that extradite their nationals. n64 At both meetings, the rule of non-extradition was [*93] challenged and criticized for being incompatible with the fundamental premises of justice and extradition. One could sense some reticence founded on an unenthusiastic acceptance of the status quo. Nevertheless, Resolution VIII, adopted at the Oxford meeting, called upon states to abandon their policy of non-extradition, n65 while the participants at the Siracusa conference showed an inclination to give a restrictive reading to the nationality exception. n66

An analysis of the role of national dignity in the context of extradition demonstrates the fundamental differences in the two approaches to surrendering nationals. In nineteenth century Europe, it was argued that such a surrender constituted an indignity to the State. For example, in 1881, the commission appointed by the Italian government to report on extradition concluded that the rule against the surrender of nationals was required because Italy

owes protection to its sons, and cannot abandon them to their lot, if charged with crime, to the mercy of foreign law and judges. The national dignity cannot consent that a citizen, a member of the state, should be compelled to bow his head in obedience to the commands of a foreign authority. n67

A direct response to this statement can be found in an opinion handed down by Lord Cockburn, who addressed this issue from the perspective of the common law:

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