Mexico vs. "Dog The Bounty Hunter", Part II

As promised last month (what exactly does "in the next few days" really mean?), what follows is an overview of extradition law generally, and in particular as applied to U.S.-Mexico relations and the Chapman case.

First, some terminology: extradition is the process by which one country obtains a suspected or convicted criminal who is located in another country. In the field of extradition, the “requested state” is the country of which a request for extradition is made, the “sending state” is the country of which the person requested is a national, and the “requesting state” is a country seeking to have a person sent to it from a requested state. These labels may overlap, or they may apply to the relationship between more than two countries; for instance if Countries A and B request the extradition of a national of Country C, who is arrested in Country D.

The terms "extradition" and "surrender" are sometimes used interchangeably, but their definitions vary from country to country and treaty to treaty. Typically, surrender should be thought of as the process that takes place after a request for extradition has been granted; this distinction will be further explained below.

Extradition has been a part of treaties for centuries; they are one of the oldest examples of international cooperation. Since all countries have territorial sovereignty over matters within their borders, extradition is a voluntary and treaty based process. The terms of each extradition treaty control the rules between the requested, requesting and sending states in question, but the terms of these treaties are themselves generally subject to the domestic and international obligations of each country involved. For example, countries that have abolished capital punishment will not extradite a person to a country that intends to seek the death penalty, and a national requirement of due process will prevent an extradition to a country that will not adequately provide it. Most countries require assurances of some sort prior to honoring an extradition request. These assurances may include a showing that the request is supported by sufficient evidence of the individual’s guilt, or that the crime involved is one for which extradition would be appropriate under the law.

Many countries, particularly those with civil law systems, have provisions prohibiting the extradition of their own nationals. This is done in order to protect the due process of nationals; if an offense is extraditable it will also likely be criminal under the requested country's laws, making domestic prosecution an alternative to extradition. Some of these countries make a distinction between extradition and surrender, and this distinction can result in exceptions to the general practice of not extraditing nationals. As stated earlier, extradition and surrender are not always synonymous, and a good example of this is found in Part IX of the Rome Statute for the International Criminal Court.

The treaty establishing the ICC reserves the term surrender for the sending up of an individual to the Court, while transfers between countries are called extradition. When states ratify the Rome Statute they assume an obligation to ensure that their laws are conducive to cooperation with the Court. Countries have resolved this conflict in different ways: Costa Rica determined that nonextradition of its nationals depends on efforts to prevent it but is not a guarantee, Ecuador that extradition and surrender are legally different enough that the latter is allowed, and Ukraine, Honduras, and Guatemala determined that nonextradition to another State does not prevent surrender to an international tribunal. The distinction for the latter countries seems to lie along the lines of jurisdiction: if a State forms a special court with jurisdiction over nationals in its custody, then surrendering a national to an international court to whose jurisdiction the State has consented seems no different than surrendering him to such a special national court.

On a concluding note about extradition generally, and as a transition to some of the public criticisms of the Chapman case, some mention should be made of nonreciprocal treaties between countries that do not extradite their own nationals and countries that do. Nonreciprocity goes directly to what some of Chapman's most outspoken supporters wonder: how the US could consider extraditing "Dog" when Mexico failed to extradite Luster.

Treaties between countries in this situation generally contain neutral language on the obligation to surrender nationals (something to the effect of "Neither of the Contracting Parties shall be bound to extradite its own nationals"). This allows countries with provisions against surrendering their citizens to cooperate more fully than they could if there were no treaty in place at all. The US has traditionally complied with foreign extradition requests for American citizens, even if the requesting country would not reciprocate in kind. Because of criticism of this practice, the US Code provisions on extradition were amended to give the US discretion on whether or not to comply with requests for the extradition of American citizens. The main effect of this change in the law is to calm fears that a treaty could impose a nonreciprocal obligation on the US; we comply by choice.

The next part in this series of posts will examine the particulars of the US-Mexico extradition relationship, including the politics involved as a result of nonreciprocity. This part will delve further into the particulars of the Chapman case, as will the final installment dealing with trials in absentia.