Building on a practice dating back to antiquity, states forge extradition treaties so they can pursue fugitives and other wanted individuals in faraway jurisdictions. Extradition has become ever more important given the spread of transnational criminal organizations, including those involved in terrorism, drug trafficking, counterfeiting, and cybercrime.
The United States has extradition treaties with more than a hundred countries. But even with treaties in place, extraditions are often contentious and sometimes become embroiled in geopolitical friction, as with a recent case involving a Turkish cleric, Fethullah Gulen, living in the United States. Instances in which countries have no extradition treaty often stir the most public interest, as was the case with former U.S. security contractor Edward Snowden, who fled to Russia to avoid prosecution.
What is extradition?
Extradition is the formal process of one state surrendering an individual to another state for prosecution or punishment for crimes committed in the requesting country’s jurisdiction. It typically is enabled by a bilateral or multilateral treaty. Some states will extradite without a treaty, but those cases are rare.
What is in an extradition treaty?
Treaties signed in recent decades tend to take a “dual criminality” approach, classifying as extraditable all crimes that are punishable in both jurisdictions. Older extradition treaties, by contrast, tend to list covered offenses. For instance, the treaty between Albania and the United States, signed in 1933, includes an inventory of more than two dozen crimes, including murder, rape, arson, and burglary. Many extradition treaties only allow extradition for crimes that carry a punishment of more than one year.
Treaties also define instances when extradition is to be denied. For instance, authorities generally cannot extradite individuals for military or political offenses, with exceptions for terrorism and other violent acts. Some states will not extradite to jurisdictions with capital punishment or life imprisonment under any circumstances, or unless the requesting authority pledges not to impose those penalties.
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Other common provisions deal with nationality (many states will not extradite their own citizens, or will only do so on a limited basis), double jeopardy, statutes of limitations, administrative expenses, legal representation, and transfer of evidence.
How does the U.S. extradition process work?
Extraditions from the United States. The process generally begins with a foreign government making a request to the U.S. State Department with treaty-required paperwork, which often includes details on the person sought, the offenses alleged, charging documents, arrest warrants, and evidence. When foreign authorities believe there is a flight risk, they can request a provisional arrest and detention while they assemble the required material. From there, the secretary of state decides whether to pass the request on to the Justice Department, which reviews the case for treaty compliance, obtains an arrest warrant, and arrests the fugitive, who then goes before a federal judge or magistrate. The court then decides whether there is probable cause to believe the person committed the offense covered by the applicable treaty. (An individual’s rights in these hearings are more limited than in regular trials. They cannot appeal the court’s ruling, but they may contest the court’s jurisdiction.) If the court finds probable cause, it certifies the extradition and passes the case back to the secretary of state, who has final say on the matter. This certification procedure is not a fact-finding endeavor or an independent evaluation of the evidence, as would be done in a trial; rather, it determines whether the facts alleged constitute a crime in the prosecuting country.
Extraditions to the United States. A state or federal prosecutor meets with the relevant law enforcement agency to learn about the crime and decide whether an extradition is worth the significant costs. (The requesting state or federal attorney’s office covers translation costs.) Prosecutors then prepare an application to the Justice Department, which reviews it for sufficiency. If approved, Justice forwards it to the State Department. Upon its approval, the State Department sends the request to the relevant U.S. embassy, which forwards it to authorities in the country of refuge. From there, the process varies by country, but it tends to follow a path similar to that in the United States. Suspects are able to contest or appeal extradition in many countries. Upon the approval of the country of refuge, the U.S. Marshals Service will most often escort the fugitive to the United States.
Interpol red notice. Any of the international police organization’s nearly two hundred member countries can, with a valid arrest warrant or court order, request what is known as a red notice for a wanted individual. This notice serves as an alert to police and border agents worldwide. Member countries may, at their discretion, arrest the subject of the notice and initiate legal proceedings over extradition.
How long does the process take?
Timing varies widely from case to case, but the average extradition involving the United States takes more than a year from request to surrender. Some have taken more than a dozen years, while many cases are closed without a fugitive’s capture.
Which countries have extradition treaties with the United States?
The United States has extradition treaties with more than one hundred countries, some dating back more than a century. It does not have treaties with dozens of others, including China, Iran, North Korea, and Russia, as well as many African, Middle Eastern, and formerly Soviet countries.
However, the United States does collaborate with some of these countries on law enforcement matters, including on transfers of persons in custody, on a case-by-case basis. For instance, the United States returned two corruption suspects to China ahead of a high-profile summit between Presidents Barack Obama and Xi Jinping in 2014.
How many people are extradited to the United States annually?
It is difficult to obtain complete data on extraditions, because different agencies have different reporting standards. Additionally, law enforcement or political sensitivities preclude many extraditions from being recorded. Analysts estimate that the U.S. Marshals Service, which handles the great majority of international extraditions, have managed between 350 and 600 extraditions to the United States each year for the past dozen or so years.
Do political considerations play a role?
Even when a treaty is in place, many factors influence bilateral cooperation on extraditions, including law enforcement priorities, bureaucratic resources, and commercial and political relations between countries. For instance, despite signing an extradition treaty in 1978, Mexico and the United States quarreled over extraditions for more than a decade after, culminating in the Camarena affair in the late 1980s, when American bounty hunters abducted a Mexican physician suspected of aiding in the torture and murder of a U.S. drug enforcement agent. The episode poisoned extradition cooperation between the two countries for several years.
“Mexico has been historically reluctant to extradite its citizens to the United States, particularly in the face of several perceived trespasses on Mexican sovereignty by U.S. law enforcement in the pursuit of suspects,” wrote Emily Edmonds-Poli and David Shirk in a 2018 law journal article [PDF].
Extraditions from Mexico to the United States then surged in the early 2000s, from just twelve in 2000 to more than one hundred in 2009. Analysts attribute the uptick to warming ties and counternarcotics cooperation between the administrations of Presidents Felipe Calderon and George W. Bush, and later, Barack Obama.
What are some recent high-profile extradition cases?
Meng Wanzhou. Canadian authorities arrested Meng, an executive of the Chinese telecom giant Huawei, in December 2018 at the request of the United States. U.S. prosecutors have charged her with bank and wire fraud related to Huawei’s business with Iran. The extradition proceedings have garnered significant media attention given the status of the suspect and the backdrop of delicate U.S.-China trade talks. In the days following Meng’s arrest, China detained two Canadians in what many commentators characterized as political retaliation.
Fethullah Gulen. In 2016, Turkish prosecutors filed an extradition request for the cleric, who has lived in the United States for more than fifteen years. Ankara alleges that Gulen leads a terrorist organization that was behind the 2016 coup attempt against President Recep Tayyip Erdogan. The Justice Department rejected Turkey’s request, saying it failed to meet “the legal standards for extradition.” However, Presidents Trump and Erdogan reportedly discussed the extradition question in late 2018, raising questions about Gulen’s fate.
Julian Assange. The WikiLeaks cofounder has been living in the Ecuadorian embassy in London since 2012, when the United Kingdom’s top court ordered his extradition to Sweden to face rape and other allegations. The Ecuadorian government granted Assange asylum that year and then citizenship in 2017. He could have faced further extradition pressure from the United States, but the Obama administration decided not to charge him for publishing classified data.
Joaquin “El Chapo” Guzman Loera. The Mexican government extradited Guzman, the former kingpin of the Sinaloa Cartel, to the United States in 2017 to face multiple drug-related charges. Prior to his transfer, he twice escaped maximum-security prisons in Mexico, prompting concerns about the integrity of the Mexican judicial system. In February 2019, he was convicted in a New York federal court after a three-month trial that provided deep insights into the workings of one of the most lucrative transnational criminal enterprises in history.
What are the alternatives to extradition?
Waiver. In what is the least controversial alternative, a fugitive can waive the formal extradition process and agree to be transferred to foreign authorities.
Deportation. Rather than extradite nonnationals, some countries agree to deport them, sometimes outside of any formal administrative process. For instance, in cooperation with U.S. border agents, Mexican authorities have informally deported many individuals, often suspected in narcotics crimes, to the United States.
Extraordinary rendition. With extraordinary or irregular rendition, a fugitive is typically spirited from a country of refuge and denied access to its judicial process. U.S. authorities have used the practice to bring suspected terrorists and other criminals to the United States or to third countries for detention, interrogation, or prosecution. Sometimes the government of the country of refuge consents to the rendition, sometimes it does not. The U.S. Supreme Court has ruled that a defendant can stand trial even if they were forcibly abducted and brought to the United States. Human rights groups have claimed that extraordinary renditions are illegal, particularly those intended to subject detainees to harsh interrogation techniques in foreign countries.
Foreign prosecution. A final option is for the foreign government to prosecute the individual, which often occurs when the individual is a national of that country and therefore not extraditable. For instance, after a high-profile extradition battle, Samuel Sheinbein was tried and convicted in Israel for committing murder in Maryland in 1997. Israel’s Supreme Court ruled that Sheinbein, who claimed Israeli citizenship, could not be extradited, despite the wishes of both the Israeli and U.S. governments. Israel subsequently passed a law allowing extradition of its nationals.