EXTRADITION AND ITS PURPOSE
The term extradition has been derived from two Latin terms ex and traditum. Extradition may be defined as surrender of an accused or a convicted person by the State on whose territory he is found to the State on whose territory he is alleged to have committed or convicted of a crime. According to 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. The above definition makes it clear that where extradition is involved there are two States involved as well. Firstly, the territorial state i.e., a state where an accused or a convict is found and secondly, the requesting State i.e., a State where the crime has been committed. Request of extradition is made through a diplomatic channel. The request of extradition is different from other measures such as banishment, expulsion and deportation where an undesirable person is removed by force.
Purpose of Extradition:
A criminal is extradited because of the following reasons:
- It is process towards the suppression of crime. Ideally a person will not be punished or prosecuted in a State where he has fled away because a lack of jurisdiction or because of some technical rules of criminal law. Criminals are extradited so that their crimes may not go unpunished.
- Extradition acts a warning to the criminals that they cannot escape the punishment by going to a different state. Extradition has a deterrent effect.
- Criminals are surrendered as it safeguards the interest of the territorial State. If a State adopts a non-extradition policy of 0criminals, then the criminals would flee to that State only. Therefore, the State would become a place for international criminals which is very dangerous because they may again commit a crime if they were left free.
- Extradition Is based on reciprocity. A State which is requested to surrender the criminal may have to request for extradition of the criminal on some future date.
- Extradition is done because it is a step towards the achievement of international co-operation in solving International Problems of a social character. Thus, it fulfills one of the purposes of the United Nations.
- The State on whose territory the crime has been committed is in a better position to try the offender because the evidence is more freely available in that State only.
It is to be noted that extradition of fugitive criminals is mutually beneficial for all the States or the international community as a whole. Extradition can play a major role in eliminating crimes if it works effectively through international cooperation.
Is Extradition a Legal Duty of a State?
In modern times, a criminal is not surrendered in the absence of extradition treaties and thus a state does not have a legal duty to surrender the criminal un absence of any treaty. The Supreme Court of the United States of America in Factor v Labubenheimer clearly stated that: “International Law recognizes no right to 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 its extradition and the correlative duty to surrender him to the demanding country and exist only when created by treaty”. A legal duty to surrender a criminal therefore arises only when treaties exist between states and the formalities have taken place which are mentioned in the extradition treaties. Only in certain exceptional cases a state extradites a person based on reciprocity.
Extradition and Deportation: Extradition and Deportation are both methods which a citizen or an alien citizen is required to leave the territory. However, there are differences in both.
- While extradition is performed in the interests of the requesting state, deportation is performed exclusively in the interest of the expelling state.
- Extradition needs the consensual cooperation between two states at least while deportation is a unilateral action apart from the receiving state to accept its own national.
- Extradition applies to criminal prosecutions and thus suppress criminality; expulsion order may be issued to any foreign national on a number of grounds.
- Extradition takes place only on the request of another State, expulsion is an order of a State which prohibits a person to remain inside the territory of a State.
