Many countries now refuse to extradite fugitives to retentionist states in the absence of assurances that the death penalty will not be sought. This practice derives from two separate, but related developments. First, international tribunals and national courts have issued a series of decisions condemning the extradition of suspects from abolitionist countries to retentionist countries. Second, inter-governmental organizations such as the European Union (“EU”) and individual nations such as Mexico have long opposed the death penalty as a matter of principle. The EU, Mexico, and many other abolitionist nations have made abolition of the death penalty one of the key items on their foreign policy agenda.
The European Court of Human Rights was one of the first international tribunals to address the legality of extraditing fugitives to face the death penalty. In Soering v. United Kingdom, the court held that the United Kingdom’s extradition of a German national to face capital murder charges in Virginia would violate its obligations under article 3 of the European Convention on Human Rights, which prohibits cruel, inhuman, or degrading treatment or punishment.1 The Court’s decision was based on its review of death row conditions and the anticipated time that Soering would have to spend on death row if sentenced to death. In compliance with the Soering decision, the U.K. sought and received assurances from the United States that the state of Virginia would not impose a death sentence. Soering was extradited, convicted, and sentenced to life.
In Judge v. Canada, the Human Rights Committee found that Canada had violated article 6 of the International Covenant on Civil and Political Rights (ICCPR) by deporting Roger Judge to the United States to face a death sentence in 1998.2
Roger Judge had been sentenced to death in Pennsylvania, but escaped from prison and fled to Canada. While there, he was convicted of two robberies and sentenced to ten years. In 1998, Canada deported him to the United States to serve his death sentence. The Committee concluded that an abolitionist country violates the right to life protected by article 6 when it deports a detainee to the United States without seeking assurances that the death penalty will not be carried out. The Committee’s decision did not consider whether incarceration on death row was cruel, inhuman, or degrading.
National courts, such as the Supreme Court of Canada, have likewise held that extraditions of suspects to face the death penalty are constitutionally prohibited.3 Burns and Rafay are both Canadians who were 18 years old at the time they allegedly murdered Rafay’s parents and sister in the state of Washington. They then fled to Canada. Washington charged them with first-degree murder, a capital crime.
The Canadian Minister of Justice signed an extradition order for both men, refusing to seek assurances that the death penalty would not be imposed upon Burns’ and Rafay’s return to the United States. Burns and Rafay appealed. After commenting on recent exonerations of death row inmates in the United States, reviewing the “international trend against the death penalty,” and other practical problems in the administration of the death penalty, the Supreme Court of Canada ultimately held that article 7 of the Canadian Charter of Rights and Freedoms precluded the defendants’ extradition, absent assurances that the United States would not seek the death penalty.
National courts in The Netherlands, Switzerland, and South Africa have likewise required assurances that the nation requesting extradition would not impose the death penalty. Indeed, the Italian Constitutional Court has gone one step further, refusing to extradite suspects even in the face of assurances. In the case of Pietro Venezia, the Italian Constitutional Court held that under no circumstances would Italy extradite an individual to a country where the death penalty existed, despite the United States’ assurances.4
The policies of foreign governments in relation to extradition have spawned a vitriolic debate in the United States. Mexico has been the most frequent target of politicians’ rancor. Article 8 of the 1979 Extradition Treaty Between the United States of America and the United Mexican States provides that Mexico may refuse extradition to the United States unless the requesting party provides assurances that the death penalty shall not be imposed.5
Mexico has unfailingly sought such assurances in recent years. In May 2002, the Los Angeles District Attorney stated, “A terrorist can commit a horrendous act. . . and Mexico would be a haven. It’s inevitable. It’s happening. It’s becoming a haven for murderers.”6
In the so-called “war on terrorism,” European countries have stood firm in their refusal to extradite suspected terrorists to the United States in the absence of assurances that death will not be imposed.
Soering v. United Kingdom, 11 European Ct. of Human Rights 439, European Ct. of Human Rights, 1989.
Minister of Justice v. Burns, 2001 SCC 7, Supreme Ct. of Canada, Mar. 22, 2001.
Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998, 2003.
Venezia v. Grazia, Corte coste, 79 Rivista di Diritto Internazionale 815, Jun. 27, 1996.
Tsebe v. Minister of Home Affairs, Case No. 27682/10, S. Gauteng High Ct., Sep. 22, 2011.
Amnesty Intl., No Return to Execution – The US Death Penalty as a Barrier to Extradition, AMR 51/171/2001, Nov. 29, 2001.
Stephan Breitenmoser & Gunter E. Wilms, Human Rights V. Extradition: The Soering Case, 11 Mich. J. Intl. L. 845, 1990.
Alan Clarke, Terrorism, Extradition, and the Death Penalty, 29 William Mitchell L. Rev. 783, 2003.
Andrea Cortland, United States v. Burns: Canada’s Extraterritorial Extension of Canadian Law and Creation of a Canadian “Safe Haven” in Capital Extradition Cases, 40 U. Miami Inter-Am. L. Rev. 139, 2008.
Mark E. DeWitt, Extradition Enigma: Italy and Human Rights Vs. America and the Death Penalty, 47 Cath. U. L. Rev. 535, 1998.
John Dugard & Christine Van Den Wyngaert, Reconciling Extradition with Human Rights, 92 AM. J. Intl. L. 187, 1998.
Robert Gregg, The European Tendency Toward Non-Extradition to the United States in Capital Cases: Trends, Assurances, and Breaches of Duty, 10 U. Miami Intl.& Comp. L. Rev. 113, 2002.
Robert Harvie & Hamar Foster, Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law and the Future of the Death Penalty, 40 Gonz. L. Rev. 293, 2005.
Michael J. Kelly, Aut Dedere Aut Judicare and the Death Penalty Extradition Prohibition, 10 Intl.Legal Theory 53, 2004.
Michael J. Kelly, Cheating Justice By Cheating Death: The Doctrinal Collision for Prosecuting Foreign Terrorists – Passage of Aut Dedere Aut Judicare into Customary Law & Refusal to Extradite Based on the Death Penalty, 20 Ariz. J. Intl. & Comp. L. 491, 2003.
Kathryn F. King, The Death Penalty, Extradition, and the War Against Terrorism: U.S. Responses to European Opinion about Capital Punishment, 9 Buff. Human Rights L. Rev. 161, 2003.
Donald A. MacIntosh, Human Rights in the Context of Extradition and Deportation, 8 Can. Crim. L. Rev. 169, 2003.
Ved P. Nanda, Bases for Refusing International Extradition Requests Capital Punishment and Torture, 23 Fordham Intl. L.J. 1369, 2000.
C.R. Roecks, Extradition, Human Rights and Death Penalty: Where Nations Must Refuse to Extradite a Person Charged with a Capital Crime, 25 Cal. W. Intl. L.J. 189, 1994.
Thomas Rose, A Delicate Balance: Extradition, Sovereignty, and Individual Rights in the United States and Canada, 27 Yale J. Intl. L. 193, 215 n.95, 2002.
Last updated on October 31, 2011.
1 Soering v. United Kingdom, 11 European Ct. of Human Rights Rep. 439, 1989.
2 Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998, 2003.
3 Minister of Justice v. Burns and Rafay, 2001 SCC 7, S.C. Canada, Mar. 22, 2001.
4 Venezia v. Grazia, 79 Rivista di Diritto Internazionale 815, Jun. 27, 1996.
5 Extradition Treaty Between the United States of America and the United Mexican States, 531 U.S.T. 5059, T.I.A.S. No. 9656, 1979.
6 Jessica Garrison, Killers Slip Away to Mexico, Los Angeles Times, May 27, 2002.