Introduction
The practice of extradition enables one state to hand over to another suspected or convicted
criminals who have fled abroad.1 It is based upon bilateral treaty law and does not exist as an
obligation upon states in customary law.2 It is usual to derive from existing treaties on the subject
certain general principles, for example that of double criminality, i.e. that the crime involved
should be a crime in both the states concerned, 3 and that of specialty, i.e. a person surrendered
may be tried and punished only for the offence for which extradition had been sought and
granted.4 In general offences, offences of a political character have been excluded, but this would
not cover terrorist activities.5 It is common for many treaties laying down multiple bases for the
exercise of jurisdiction to insist that states parties in whose territory the alleged offender is
present either prosecute or extradite such person. 6 Many treaties include the automatic inclusion
within existing bilateral extradition treaties which states parties to such treaties of the offence
concerned.7 Many states will not allow the extradition of its nationals to another state, 8 but this
usually in circumstances where the state concerned has wide powers to prosecute nationals for
offences committed abroad. Once must also note the relevance of Human Rights law to the
process of Extradition?9
The following rational considerations have conditioned the law and practice to extradition:
a) The general desire of all states to ensure that serious crimes do not go unpunished.
Frequently a state in whose territory a criminal has taken refuge cannot prosecute or
punish him purely because of some technical rule of criminal law or for lack of
jurisdiction. Therefore to close the net round such international offenders, international
1
Refer Oxford Dictionary & Thesaurus, Julia Elliot, 13th edn, p.265
2
See the joint declaration of judges Evenson , Tarassov, Guillaume and Aguilar Maudsley, the Lockerbie case ICJ
Reports, 1992pp3,24
3
See, Government of Denmark v .Neilsen [1984]2AllER81; United States Government v. Mc
Caffey[1984]2AllER570
4
See, Oppenhaim’s International Law, p.961
5
See, the European Convention on the Suppression of Terrorism, 1977; the McMullen Case,74 AJIL 1980, p.434,
also note the Times, 25 June 1985, p.1 which said political offences has a loophole known as terrorism.
6
See Home Office Press Release (UK).
7
See the Hague Convention for the Suppression of unlawful Seizure of Aircraft, 1970 (article 8)
8
See the French Extradition Law of 1927, article 3(1), Basic Law of the Federal Republic of Germany, article 16
9
See the Soering case, the European Court of Human Rights, 1989, Series A,No.161
law applies the maxim ‘aut punier aut dedere’ – the offender must be punished by the
state of refuge or surrendered to the state which can and will punish him.
b) The state on whose territory 10 the crime has been committed is best able to try the
offender because the evidence is more freely available there, and that the state has the
greatest interest in the punishment of the offender, and the greatest facilities for
ascertaining the truth. It follows that it is only right and proper that to the territorial state
should be surrendered such criminals as have taken refuge abroad.
There are two types of extradition treaties: list and dual criminality treaties. 11 The most common
and traditional is the list treaty, which contains a list of crimes for which a suspect will be
extradited. Dual criminality treaties, used since the 1980s, generally allow for extradition of a
criminal suspect if the punishment is more than one year imprisonment in both countries. 12
Occasionally the amount of the time of the sentence agreed upon between the two countries is
varied. Under both types of treaties, if the conduct is not a crime in both countries then it will not
be an extraditable offense.
An extradition treaty requires that a country seeking extradition be able to show that:13
The relevant crime is sufficiently serious.
There exists a prima facie case against the individual sought.
The event in question qualifies as a crime in both countries.
The extradited person can reasonably expect a fair trial in the recipient country.
The likely penalty will be proportionate to the crime.
10
See, J.G.Strake, Intoduction to International Law, p.352, 10th edn, Aditya Books Butterworths, “ territory can
cover for this purpose, also ships and aircraft registered with the requesting state”; also see Art icle 16 of the Tokyo
Convention of 14 September 1963 on “Offences and Certain Other Acts Committed on Board Aircraft”
11
en.wikipedia.org/wiki/Extradition
12
https://www.ag.gov.au/www/agd/agd.nsf/Page/Extradition_and_mutual_assistanceExtradition
13
Refer, Malcolm N Shaw QC, International Law, 5th edition, Cambridge University Press,
