What Is Extradition? Definition and Considerations

In international law, extradition is a cooperative process in which one country surrenders an individual to another country to be prosecuted for crimes committed in the requesting country’s jurisdiction. Typically enabled by bilateral or multilateral treaties, extradition has become more important because of the growth of transnational criminal organizations, such as those responsible for terrorism, drug and human trafficking, counterfeiting, and cybercrime.

Extradition Definition

Extradition becomes necessary when a criminal fugitive flees from one country to another to avoid facing trial or punishment. Persons who may be extradited include those who have been tried and convicted but escaped custody by fleeing the country, and those convicted in absentia—a trial in which the accused person is not physically present. Extradition is distinguished from other methods of forcibly removing undesirable persons from a country, such as exile, expulsion, and deportation.

Extradition procedures are usually determined by the terms of treaties between individual countries or by multilateral agreements between groups of countries, such as the countries of the European Union. The United States has extradition treaties with more than 100 countries.

The basic extradition process as practiced in the United States is typical. When the United States government determines that a person residing in a foreign country should be returned to face trial or punishment, a complaint stating the charges and the extradition treaty requirements involved is filed in any U.S. federal court. If the court determines the complaint to be justified, a warrant for the person’s extradition is then sent to the foreign government.

The receiving government then refers to its laws and its treaty-specified obligations to the requesting nation and decides whether or not to extradite the person named in the warrant. Between nations without treaties, extradition may still be accomplished through negotiation and diplomacy. 

Bars to Extradition

Typically, countries will grant extradition only if the alleged crime is punishable in both countries. Additionally, most countries refuse to extradite persons accused of certain political crimes such as treason, sedition, and espionage. Some countries also apply double jeopardy exceptions, refusing to extradite persons who have already been punished for the crime involved.

A growing number of nations refuse to extradite people who may face torture, execution, or other human rights violations in the requesting nation. For example, when then suspected serial killer Charles Ng fled from the United States to Canada, which had banned capital punishment in 1976, Canada hesitated to extradite him to the United States, where he could be sentenced to death. In 1991, after a lengthy dispute, Canada agreed to extradite Ng to California, where he was tried and convicted of 11 murders.

Several countries refuse to extradite their own citizens. For example, when movie director Roman Polanski—a French citizen—fled back to France after being convicted in 1978 of drugging and having sexual intercourse with a 13-year-old girl in the United States, France refused to extradite him. These countries often prosecute, try, and punish their citizens accused of crimes committed abroad as if the crime had occurred within their own country.

Lack of reciprocal treaties can pose another roadblock to extradition. For example, in countries that do not have an extradition treaty with the United States, while extradition is still possible, it often requires weeks of diplomacy and compromise. In all cases, countries without treaties have the right to refuse extradition.

Controversies and Other Considerations

International relations are often strained when the extradition of criminals or suspected criminals is refused. Countries to which extradition is refused often—correctly or not—claim the refusal was based on politics rather than law.

Ira Einhorn

In 1977, for example, when radical environmentalist Ira Einhorn, now remembered as the “Unicorn Killer,” was accused of murdering his ex-girlfriend in Philadelphia, Pennsylvania, Einhorn fled the country, married a Swedish heiress, and spent the next 24 years living lavishly in Europe. After being convicted in absentia in the U.S. and arrested in France in 1997, Einhorn’s extradition seemed inevitable. However, the extradition treaty between France and the United States allows either country to refuse extradition under certain circumstances. In 2001, after more than two decades of convoluted extradition negotiations involving French law, the European Court of Human Rights, and the Pennsylvania state legislature, France finally agreed to extradite Einhorn to Philadelphia. Though he had become a star of the human rights cause in France and a counter culture folk hero in the United States, a Philadelphia jury quickly convicted Einhorn and sentenced him to life in prison, where he died on April 3, 2020.

Edward Snowden

In May 2013, Edward Snowden, a former subcontractor working for the U.S. National Security Agency (NSA), leaked highly classified NSA information. First published in the British newspaper The Guardian, the leaked documents revealed potentially damaging details of global personal surveillance programs run by the United States and certain European governments. On June 14, 2013, the U.S. government ordered Snowden arrested on charges of violating the Espionage Act of 1917.

Vowing to fight any U.S. attempts to extradite him, Snowden attempted to fly from Hawaii to Ecuador. However, during a stopover in Russia, he became stranded in Moscow's Sheremetyevo Airport when customs authorities learned that the U.S. government had annulled his passport. After virtually living at the airport for over a month, Snowden decided to remain in Russia seeking asylum and eventual citizenship.

Today, Snowden continues to live in Moscow, having been granted extended temporary asylum. Since Russia does not have an extradition treaty with the United States, the Kremlin has denied all U.S. requests to extradite him.

Without a treaty, extradition becomes more of a political than a legal process, so the chances of Snowden’s eventual return to the United States remain unpredictable, depending on the results of diplomatic and foreign policy negotiations.

The 2019 Hong Kong Extradition Bill

The former British colony of Hong Kong became a semi-autonomous city state within the People’s Republic of China in 1997. Under the 1997 agreement, Hong Kong retained many of the democratic features that distinguished it from the strictly communist controlled Chinese mainland. However, Hong Kong’s autonomy and individual freedoms were progressively weakened by the encroachment of China’s ruling Communist Party over the ensuing years.

Missing from the 1997 agreement was any form of an extradition treaty. Proposed by Hong Kong’s Legislative Council in April 2019, the Hong Kong Extradition Bill would have allowed Hong Kong to detain and transfer people wanted in countries and territories with which it had no formal extradition agreements, including Taiwan and the Chinese mainland. Hong Kong’s chief executive said at the time that the law was urgently needed to prosecute a Hong Kong resident wanted in Taiwan for murder.

Outraged, critics of the law contended it would allow anyone in Hong Kong to be detained and tried in mainland China, where judges are controlled by the Communist Party. They argued that this would lead to the prosecution of political activists, as well as criminals. Though the bill specifically excluded political crimes, critics feared the law would virtually legalize the then increasingly frequent abduction of suspected anti-communist activists in Hong Kong to mainland China.

Many everyday Hong Kong residents detested the extradition bill, seeing it as a final defeat in their long battle to protect dissent and anti-communist political opposition in their city. In October 2019, after six months of often bloody protests against it, the extradition bill was formally withdrawn by Hong Kong’s legislature.

Sources and Further Reference

• Masters, Jonathan. “What Is Extradition?” Council on Foreign Relations, January 8, 2020.
• Sadoff, David A. “Bringing International Fugitives to Justice: Extradition and its Alternatives.” Cambridge University Press, (December 24, 2016), ISBN 9781107129283
• Johnston, P. “The Incorporation of Human Rights Fair Trial Standards into Australian Extradition Law.” Australian Institute of Administrative Law Forum, (2014)
• Crawford, Jamie. “U.S. criticizes China's handling of Snowden case.” CNN, July 12, 2013.
• “Hong Kong protests against Chinese extradition bill draw 1 million demonstrators.” CBS News, June 10, 2019.
• Henning, Matthew W. “Extradition Controversies: How Enthusiastic Prosecutions Can Lead to International Incidents.” Boston College International Law Review, May 1999.