Extradition — Public International Law Notes

Extradition

In 1961, Israeli agents seized Adolf Eichmann in Argentina — without Argentina’s consent — and flew him to Jerusalem to stand trial for the Holocaust. He argued the court had no power over him because he had been kidnapped. The court disagreed: male captus bene detentus — “wrongly captured, properly detained” — an illegal seizure does not defeat the court’s jurisdiction. Eichmann and the older Savarkar case (1911) are the two lines every extradition problem tests.

What extradition is, and the conditions that govern it

Extradition is the formal surrender by one State (the requested/asylum State) to another State (the requesting State) of a person accused or convicted of a crime, so that he may be tried or punished in the requesting State. Its purpose is to deny fugitives a safe haven, on the principle aut dedere aut judicare [either extradite or prosecute].

Extradition is not automatic; it rests on conditions. Learn them in a fixed order:

1. An extradition treaty (or statute / reciprocity) — there is, in general, no duty to extradite in the absence of a treaty. Extradition is a matter of comity and agreement; a State may extradite on reciprocity or under its own extradition statute, but it is not bound to without a treaty.
2. Double criminality — the act must be an offence in both the requesting and the requested State. If it is a crime in one country only, there is no extradition.
3. The rule of speciality — the surrendered person may be tried only for the offence for which he was extradited, not for some other offence committed before surrender. (This protects the fugitive and the requested State’s conditions of surrender.)
4. Sufficiency of evidence — a prima facie case must usually be shown.
5. Non-extraditable offences — certain offences are excluded:
   • Political offences are not extraditable (protecting political refugees). But the attentat clause carves out an exception: the murder or attempted murder of a head of State or a member of his family (or a senior minister) is NOT treated as a political offence, so it is extraditable.
   • Military offences (e.g. desertion) are generally not extraditable.
   • Religious offences are generally not extraditable.

Two lines of problem authority to know:

• Speciality problems — surrendered for X, tried for Y: a breach of the rule of speciality.
• Irregular rendition problems — a fugitive seized abroad without extradition proceedings: Savarkar (1911) and Eichmann (1961–62) apply male captus bene detentus, though the seizure itself violates the other State’s sovereignty.

⚠️ DON’T CONFUSE — extradition vs asylum

Extradition is surrender of a fugitive to the requesting State — the requested State gives him up. Asylum is shelter — the State takes him in and refuses to surrender him. They are two answers to the same fact (a fugitive on the territory): extradition hands him over; asylum keeps him. A State with no extradition treaty is under no duty to extradite, and granting territorial asylum instead is a normal exercise of its sovereignty. Do not write that a State “must extradite” — absent a treaty, it may lawfully grant asylum.

🧩 WORKED EXAMPLE — surrendered for murder, tried for hurt (speciality)

Facts. State T obtains S’s extradition from State R for the murder of a shipmate. Once S is surrendered, T tries him not for murder but for causing grievous hurt.

Rule. The rule of speciality: the requesting State may try the surrendered person only for the offence for which he was extradited.

Apply. The decoy is that the substituted charge (hurt) is lesser, so it “feels harmless”. Irrelevant — speciality is breached by trying him for any offence other than the one for which he was surrendered, greater or lesser. T is in breach.

Conclusion. T cannot try S for grievous hurt; it must either try him for the murder for which he was extradited or seek R’s consent to the new charge.

flowchart TD
    A["Extradition (surrender of a fugitive)"]
    A --> B["Needs a treaty (no general duty)"]
    A --> C["Double criminality"]
    A --> D["Rule of speciality"]
    A --> E["Non-extraditable offences"]
    E --> E1["Political — but attentat clause: killing a Head of State IS extraditable"]
    E --> E2["Military (desertion)"]
    E --> E3["Religious"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,B,C,D,E,E1,E2,E3 box;

Case Laws

• Attorney-General of Israel v. Eichmann (1961–62) — male captus bene detentus: an unlawful abduction does not oust the court’s jurisdiction; universal jurisdiction over crimes against humanity.
• Savarkar Case (France v. Great Britain, 1911) — an escaped prisoner recaptured through an irregularity need not be returned merely because of the irregularity in his re-arrest.
• Re Castioni (1891) — an offence is “political” if committed in the course of and incidental to a political disturbance (the political-offence test).

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