In principle, extraditions can be carried out between states without a treaty. For this purpose, each state has its regulations determining the conditions for extradition. Since the countless national regulations would make it unclear when an extradition request can succeed, extradition treaties are concluded.
These agreements are intended to facilitate extradition and make international criminal prosecution more effective. They regulate the conditions for extradition similarly for all signatory parties. This creates, on the one hand, understanding for decisions in extradition proceedings and, on the other hand, mutual reliability that, in principle, extraditions will take place between the signatory parties.
The Contracting Parties
As a rule, extradition treaties are concluded bilaterally, i.e., between two states. However, several states can also be signatories. As the European Convention on Extradition shows, associations of states can also be a party to such treaties.
Regulatory Content – The Common Requirements
Regulations under international law take precedence over national regulations. In Germany, this is explicitly laid down in the Law on International Mutual Assistance in Criminal Matters (IRG), Section 1 III IRG.
According to the national provisions, a foreigner suspected of a criminal offence in another state can be extradited. The purpose of the extradition treaty is to make extradition obligatory insofar as the conditions set out in the treaty are met.
Extradition agreement between Germany and Canada
“The Contracting Parties undertake, subject to the provisions and conditions prescribed in this treaty, to extradite to each other any person found within the territory of the requested state…”
The respective agreement usually defines which offences are extraditable. It is common to include those acts that are punishable in all signatory states. Some treaties also stipulate a minimum penalty for the offence or list the extraditable offences exhaustively.
Furthermore, it is common practice not to allow extradition on the grounds of political offences. Political offences are directed against the state as such or against holders of state power. Similarly, extradition requests can be refused if there is a presumption that the person concerned will be punished because of their ethnicity, religion or political opinion.
It should be noted that there are regulations that declare persecution based on political offences as an obstacle to extradition, as well as those that merely grant the requested state the option of rejecting the extradition request.
Extradition treaty between the United States of America and Germany
“Extradition shall not be granted if…”
Extradition agreement between Germany and Canada
“Extradition may be refused if…”
As a rule, an exception to the obligation to extradite is also made for military offences. The extradition request based on a military offence may not be granted on a regular basis. This is a mandatory obstacle to extradition.
As a rule, the parties exclude in the respective agreement having to extradite their citizens. However, these provisions do not constitute a mandatory obstacle to extradition. Own citizens may be extradited but do not have to be.
Regulatory Content – Special Requirements
Some extradition treaties name the threat of the death penalty as a possible reason for refusing an extradition request. This provision is found in particular in agreements in which at least one of the parties does not apply the death penalty while one of the other parties does.
The usual rule here is that extradition can be refused if the death penalty is threatened in the requesting state, but the same act is not punishable by death in the requested state. It should be noted that the death penalty does not constitute a mandatory obstacle to extradition but merely gives the requested party the option of rejecting the extradition request.
Extradition treaty between the United States of America and Brazil
„When the commission of the crime or offense for which the extradition of the person is sought is punishable by death under the laws of the requesting State and the laws of the requested State do not permit this punishment, the requested State shall not be obligated to grant the extradition unless the requesting State provides assurances satisfactory to the requested State that the death penalty will not be imposed on such person.“
States without Extradition Treaties
Since extradition treaties are mostly concluded bilaterally, the total number of treaties is immensely high. It is very unlikely that there is a state entirely without an extradition treaty.
Of course, not all states have concluded agreements with each other, so there are supposedly states that do not extradite to certain states. However, an extradition treaty does not ensure that extraditions cannot be made without it. Without an agreement, extradition can occur without a treaty based on national regulations. The extradition treaty merely creates an obligation to extradite.
Whether a state ultimately complies with the extradition request of another state does not depend on the existence of an extradition treaty but on the existence or non-existence of specific preconditions, which are examined on a case-by-case basis.
For example, the member states of the Council of Europe, which the ECHR binds, do not extradite in principle if the person to be extradited is threatened with torture or similar inhuman treatment, Art. 3 ECHR. This does not mean that certain states are not extradited across the board, but rather that the risk of torture is examined on a case-by-case basis. Only then is a decision made on whether extradition can be declared permissible.
Practice Group: German Extradition & Interpol Law
Practice Group:
Extradition & Interpol Law
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