Problems in extradition

Abstract

The origins of international co-operation in the suppression of crime go back to the very beginnings of formal diplomacy. In what has been described as the oldest document in diplomatic history, the peace treaty between Rameses II of Egypt and the Hittite prince Hattusili II (c.1280 B.C.), provision was made for the return of the criminals of one party who fled and were found in the territory of the other. Treaties including the provision for the surrender of criminals are recorded in succeeding eras of history, but the actual extent to which regular surrender of common criminals was conducted before the eighteenth century A.D. is a matter of some controversy. It would appear that most writers on the history of International Law regard international co-operation in the matter of ordinary crime as minimal before the eighteenth century; very few treaties existed, and such extradition as did take place occurred generally in the absence of treaty obligations and concerned largely the delivery of political enemies rather than ordinary criminals. The earliest major work on British extradition law listed only five treaties concluded by England between 1174 and 1794 and stated that the cases of extradition in almost every instance concerned the delivery of political offenders. Early instances of what might nowadays be called Extradition arrangements were more often concerned with political refugees than with criminals. Sir Edward Clarke in “A treatise on the Law of Extraditon and Practiceu […] gives the example of a treaty between Rome and Syria which provided for the surrender of Hannibal and quotes efforts during the English Restoration period to secure the return of regicides. Later treaties included provisions for the return of military deserters. England and France agreed in early times that each would not harbour enemies of the other. States, in the opinion of Vattel are societies which have united to procure their mutual welfare and society. States have therefore specific obligations of a positive character to the international order for the maintenance of law and order viii thin their boundaries. As no society can exist without an external authority, each state is vested with the right to exercise that authority to suppress disorder, anarchy and other disruptive elements which are regarded as anti-social acts under its own legal system. At the same time, since the accomplishment of these purposes cannot be achieved by an individual state alone, effective joint action by all of them is essentially required. History affords numerous examples of states which surrendered fugitives either as a matter of international comity or on a basis of reciprocity. Originally this was done in the case of nationals or subjects who belonged to the requesting state, but later on it was extended to every criminal irrespective of his nationality, provided the alleged offence was perpetrated within its jurisdiction or affected its social structure when committed abroad. […]