Returning Prisoners to Face the U.S. Death Penalty:
Limitations Under International Law

Last updated: April 2019 



Until quite recently, nations which had abolished the death penalty could elect to deny extradition or deportation of detainees facing capital sentencing or execution in retentionist countries, unless the receiving State agreed not to seek or impose the death penalty. While these so-called “satisfactory assurances” (or “sufficient assurances”) were increasingly sought and obtained as a routine practice, most nations were under no legal obligation to obtain assurances and did so at their own discretion.


What was once a discretionary right of abolitionist countries has now become a binding obligation under international law. Regardless of the provisions of any relevant extradition treaty or its own domestic laws, a country that has abolished the death penalty is now required not to expose any person to the risk that the death penalty will be applied, in order to meet its binding human rights obligations. This requirement applies to any nation that is a party to the International Covenant on Civil and Political Rights (ICCPR), due to a recent authoritative ruling of the UN Human Rights Committee (the body created under the ICCPR to construe and enforce the treaty’s provisions). More than 150 nations are now parties to the ICCPR, including virtually every country that has abolished the death penalty in law or in practice.

  Other provisions of international or domestic law may also be invoked to prevent the removal of any person who would face the death penalty without first obtaining binding assurances against its use.


U.S. law on extradition treaty requirements


In order to understand why it is essential to obtain assurances against the death penalty prior to the extradition of a suspect from abroad who faces capital charges, counsel should be aware of the obligatory and justiciable nature of extradition treaties under United States law.


It is black-letter law in the United States that the doctrine of specialty (also known as “speciality”) binds the jurisdictional authority of a trial court.  Simply put, “specialty” refers to the principle of international extradition law that individuals can only be tried upon return on the charge for which the sending State agreed to their extradition, or sentenced according to the limitations required by the sending State and agreed to by the receiving State.  Where a sentencing assurance has been provided by the United States government as a condition of surrender under an extradition treaty, that assurance limits sentencing to the agreed-upon terms and also acts as a jurisdictional bar against prosecution on any charge other than the one specified in the surrender. See United States v. Rauscher, 119 U.S. 407, 422 (1886) (emphasis added):


as this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his extradition. No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them.


Virtually all modern extradition treaties contain a speciality rule that prohibits prosecution or sentencing other than as provided for in the extradition order, and this general rule has also been interpreted by the Supreme Court as directly incorporated into federal law.[1] In the 130 years since Rauscher, the Supreme Court has not hesitated to enforce extradition treaty requirements on behalf of affected individuals.[2] While the Court has held that a state may obtain jurisdiction over a fugitive by other means (such as forcible abduction),[3] there is no Supreme Court case law casting doubt on the accepted legal principle that, once the requirements of an extradition treaty have been invoked and agreed to for a surrender, the courts of the receiving state are bound by those provisions. There should thus be no question that an assurance clearly prohibiting a death sentence as a condition of extradition binds the domestic courts.[4]



State court enforcement


          Many state courts in the United States long ago reached the conclusion that strict compliance with extradition assurances is required under the Supremacy Clause and that extradition treaty provisions confer justiciable rights.[5] The obligation to enforce extradition assurances has been repeatedly upheld, even in a case where the result was the quashing of a prosecution on multiple murder charges.[6]



Federal court review


          Under Supreme Court precedent, where specialty has been breached the defendant is entitled to petition for a writ of habeas corpus challenging the trial court’s jurisdiction, and the writ must then be granted if the complaint is well-founded.[7] As the Rauscher Court declared:


This is a complete answer to the proposition that the rights of persons extradited under the treaty cannot be enforced by the judicial branch of the government, and that they can only appeal to the executive branches of the treaty governments for redress.[8]  


Most U.S. courts of appeal have recognized a petitioner’s standing to raise violations of specialty, although the degree of recognition and its rationale varies by jurisdiction.[9] The scope of that review likewise applies to alleged violations of extradition assurances.[10]


The small number of appellate courts that have so far failed to recognize individual standing are in conflict with the Supreme Court’s ongoing endorsement of the plain language and intent of Rauscher.[11] In any event, a sending State that required an assurance against the death penalty as a condition of extradition would almost certainly protest the flouting of that requirement, satisfying even the most restrictive interpretation of the standing necessary to raise the issue in court proceedings.



Other means of enforcement


          The U.S. government also possesses the legal power to enforce specialty requirements. First, the government could (and very possibly would) file a letter brief with the trial court or an amicus brief supporting the defendant’s habeas application, demonstrating that the breach of an extradition assurance is both unlawful and clearly not in the national interest. Second, if that action failed to persuade state authorities, the federal government has a long-recognized right to obtain an injunction in the federal courts to halt the ongoing violation of a domestically enforceable treaty by local or state authorities.[12]


Since strict good-faith compliance with extradition assurances is essential to securing the return of future suspects from abolitionist nations, the United States has a vested interest in opposing any breach of an assurance provided against the imposition of the death penalty in any case.  After all, "[t]he doctrine of specialty embodies the principle of international comity: to protect its own citizens in prosecutions abroad, the United States guarantees that it will honor limitations placed on prosecutions in the United States.”[13] If the United States were to tolerate violations of extradition assurances, its capacity to obtain the return of fugitives from abroad would swiftly collapse.


In short, there is no known case in which a prosecutor in the United States has successfully reneged on an explicit extradition assurance, let alone in a death-eligible case. In the unlikely event that a trial court allowed the breach of a formal extradition assurance against the imposition of the death penalty, it is virtually certain that a reviewing court would reverse and remand with instructions to apply the assurance to the letter.



Assurances must be agreed to in advance


          It is also important for counsel to understand that formal and explicit assurances must be obtained prior to the extradition of the defendant to the United States. Recent case law clearly indicates that the sending State has no right to insist on retrospective assurances following the surrender, and that all assurances must be explicitly agreed to by the United States in advance.[14]  The language in the extradition assurance as to the sentencing limitation must be entirely clear, and any clarifications provided by the United States must be explicit.[15] If there is any question regarding the scope or applicability of an offered death penalty assurance, the sending State has both the right and the duty to insist on a clarification that entirely satisfies its concerns before agreeing to the surrender.


Prosecutors may also offer voluntary assurances against the death penalty to facilitate a fugitive’s return, even in the absence of a formal extradition request. In July of 2013, for example, the U.S. Attorney General assured Russian authorities that former security contractor Edward Snowden “isn’t charged with a capital crime and pledged not to seek a death sentence against him even if he is charged with additional violations that could carry the death penalty.”[16]


A sending State may also provide assurances to a third country that there will be no return of a suspect to face the death penalty. In April of 2019, for example, the president of Ecuador obtained guarantees from the UK that Julian Assange “would not be extradited to a country where he could face torture or the death penalty. The British government has confirmed it in writing, in accordance with its own rules.”[17]



Recent cases of assurances provided by U.S. prosecutors


        Out of many possible examples, here is a short list of death-eligible cases in which U.S. prosecutors provided binding assurances against the death penalty as a prerequisite to obtaining a suspect’s extradition:



Sending State


Requesting jurisdiction

Mahmoud Mahmud Salim



Federal government

Atif Rafay, Sebastian Burns



Washington State

James Copp



New York

Alejandro de Asa Sanchez

Dominican Republic


Federal government

Russell Winstead

Costa Rica



Jorge Lopez Orozco




Gabe Watson




Joaquin “El Chapo” Guzman



Federal government

Claudia Hoerig






Procedure for assurance requests


          In essence, the mechanism for requesting and providing an assurance against the death penalty is a diplomatic exchange between the two treaty parties, done with the consent of the prosecuting authority. In cases involving a return to the United States, the request for a death penalty assurance is conveyed by the sending State through diplomatic channels (i.e., through a U.S. embassy or consulate). The Office of International Affairs (OIA) at the Department of Justice reviews the request and obtains the necessary written assurance from the state or federal prosecuting authority.


Once the content of the assurance has been reviewed and approved, it is relayed back to the sending nation’s authorities by the Department of State, once again through diplomatic channels. Authorities in the sending State may accept the assurance as provided or request its modification before authorizing the extradition.


A voluntary assurance provided by a prosecutor to accelerate the extradition process works in the same manner: the assurance is reviewed by the Department of Justice and then conveyed in writing to the sending State’s authorities through diplomatic channels.



In all cases, the assurance must be written, not verbal, and must be sufficiently explicit to prevent any application of the death penalty following the fugitive’s surrender.



Discretionary assurances under extradition treaties


A specific “satisfactory assurances” clause is included in at least 49 bilateral extradition treaties ratified by the United States (out of approximately 120 such treaties in force) and covers the condition of return from at least 55 foreign jurisdictions. Although the language is usually discretionary in nature, many of these countries have a longstanding practice of always seeking and obtaining assurances against the death penalty before permitting a capital extradition to proceed. This pattern and practice may be cited as reflecting customary international law between retentionist and abolitionist countries.


A classic formulation of the assurances clause is found in Article IV of the 1972 extradition treaty with the United Kingdom:


"If the offense for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out."  


The language of the provision may vary somewhat, depending on the treaty. Several illustrating examples are included, using the texts of the explanatory letters provided by the Executive to the U.S. Senate:


"Under Article 7, when the offense for which extradition is sought is punishable by death under the laws in the Requesting State but not under the laws in the Requested State, the Requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or on the condition that if the death penalty was already imposed prior to the request, it shall not be carried out. If the Requesting State accepts extradition subject to conditions pursuant to this paragraph, it shall comply with the conditions. If the Requesting State does not accept the conditions, the request may be denied. The United States has agreed to similar formulations in other modern extradition treaties."


"Under Article V, when an offense for which extradition is sought is punishable by death under the laws in the Requesting State but not under the laws in the Requested State, the executive authority of the Requested State may refuse extradition unless the Requesting State provides an assurance that the person sought will not be executed. The United States has agreed to similar formulations in other modern extradition treaties (e.g., those with Argentina, the Republic of Korea and India). In cases in which such an assurance is provided, the death penalty shall not be carried out, even if imposed by the courts in the Requesting State."


The most comprehensive formulation of this discretionary assurance--which, in effect, is now a mandatory requirement--can be found in the recently-ratified extradition treaty between the European Union (comprising 27 member States) and the United States:


Article 13

Capital punishment


Where the offence for which extradition is sought is punishable by death under the laws in the requesting State and not punishable by death under the laws in the requested State, the requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if imposed shall not be carried out. If the requesting State accepts extradition subject to conditions pursuant to this Article, it shall comply with the conditions. If the requesting State does not accept the conditions, the request for extradition may be denied.


It should be noted that such clauses are not limited to treaties with fully abolitionist countries. The extradition treaties with Jordan, Thailand, Sri Lanka, India and South Korea (all of which retain the death penalty) also contain a satisfactory assurance provision, reflecting the fact that the laws of some countries permit the death penalty for offenses that would not be death-eligible in the United States. For example, article 8 of the treaty with India reads:


Capital Punishment

1. When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the Requested State may refuse extradition unless:

(a) the offense constitutes murder under the laws in the Requested State; or

(b) the Requesting State provides assurances that the death penalty, if imposed, will not be carried out.

2. In instances in which a Requesting State provides an assurance in accordance with paragraph (1)(b) of this Article, the death penalty, if imposed by the courts of the Requesting State, shall not be carried out.

"Satisfactory assurance" clauses are found in the following bilateral U.S. extradition treaties:

Argentina, Australia, Austria, Belgium, Bolivia, Brazil, British Virgin Islands, Canada, Cayman Islands, Colombia, Costa Rica, Cyprus, Denmark, Estonia, Finland, France, Germany, Gibraltar, Hungary, India, Ireland, Isle of Man, Israel, Italy, Jordan, Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Montserrat, Netherlands, New Zealand, Norway, Paraguay, Peru, Philippines, Poland, Portugal, St. Helena, Solomon Islands, South Africa, South Korea, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Turks and Caicos, Tuvalu, United Kingdom, Uruguay, Venezuela  (54 jurisdictions)

The provisions of the requesting State’s national laws may also provide for discretionary assurances. In 2009, for example, Thailand (which retains and uses the death penalty) amended its law to permit the granting of assurances when seeking capital extraditions.


Mandatory assurances under extradition treaties

Although the “satisfactory assurance” provisions in extradition treaties are typically expressed as a discretionary right to be exercised as the sending State sees fit, some treaties do contain mandatory language. For example, the Inter-American Convention on Extradition declares:

Article 9
Penalties Excluded

The States Parties shall not grant extradition when the offense in question is punishable in the requesting State by the death penalty, by life imprisonment, or by degrading punishment, unless the requested State has previously obtained from the requesting State, through the diplomatic channel, sufficient assurances that none of the above-mentioned penalties will be imposed on the person sought or that, if such penalties are imposed, they will not be enforced.


The Convention (OAS Treaty B-47) is open for ratification by any member State of the Organization of American States. It has been ratified by Costa Rica, Ecuador, Panama, Haiti and Venezuela (all abolitionist), as well as Antigua and St. Lucia (retentionist). Signatories that have yet to ratify it include Argentina, Bolivia, Chile, Dominican Republic, El Salvador, Nicaragua, Paraguay and Uruguay (all abolitionist).


Bilateral extradition treaties may also occasionally frame the assurances clause in mandatory language. As an example, the 1908 treaty between the United States and Portugal declares in an annex to the instrument of ratification:

"And whereas, in giving their advice and consent to the ratification of the said Convention, and as a part of the act of ratification, the Senate of the United States did, in a resolution adopted on May 22, 1908, state their understanding “that it is agreed by the United States that no person charged with crime shall be extraditable from Portugal upon whom the death penalty can be inflicted for the offence charged by the laws of the jurisdiction in which the charge is pending, and that this agreement on the part of the United States will be mentioned in the ratifications of the treaty and will, in effect, form part of the treaty."


Constitutional requirements to obtain assurances

The courts in some abolitionist countries have interpreted their national constitutions as imposing a mandatory obligation to obtain extradition assurances against the death penalty.  Examples include:


Supreme Court of Canada, United States v. Burns, [2001] 1 S.C.R. 283. (“In the absence of exceptional circumstances, which we refrain from trying to anticipate, assurances in death penalty cases are always constitutionally required.” According to all nine judges, “in the Canadian view of fundamental justice, capital punishment is unjust and it should be stopped.”)


Constitutional Court of South Africa, Mohamed and another v. President of Republic of South Africa and others, CCT 17/01 (2001). (“In handing Mohamed over to the United States without securing an assurance that he would not be sentenced to death, the immigration authorities failed to give any value to Mohamed’s right to life, his right to have his human dignity respected and protected and his right not to be subjected to cruel, inhuman or degrading punishment.”)  


Constitutional Court of South Africa, Minister of Home Affairs and Others v Tsebe and Others, CCT 110/11, CCT 126/11 (2012) (expanding the Court's previous jurisprudence by requiring “not only that the South African Government seek assurance, but also obtain that assurance” in all cases).

Mexican Supreme Court, P./J. 125/2001 (2 October 2001) (expanding the constitutional ban on extradition to face the death penalty to include mandatory assurances against life imprisonment without parole). This ruling was subsequently reversed in 2005, but the unconditional ban on extradition to face the death penalty is unaffected.



Mandatory assurances under domestic law

Reflecting the developed international consensus among abolitionist countries, some nations have amended their domestic laws to require mandatory assurances irrespective of the language contained in the relevant extradition treaty. Examples include Australia (Extradition Act 1988, Section 22(3)), Angola (Constitution, Article 27(2)); Portugal (Constitution, Article 33(3)), Panama, Azerbaijan and Paraguay.


Obtaining death penalty assurances as a human rights obligation of the sending State


On August 28, 2003, the U.N. Human Rights Committee (HRC) issued its views in the case of Roger Judge, who was deported from Canada in 1998 and returned to death row in Pennsylvania. The HRC unanimously determined that Canada had breached its obligations under article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) by deporting Mr. Judge “without ensuring that the death penalty would not be carried out.” Canada was also found to be in breach of articles 6 and 2(3) of the ICCPR for arbitrarily deciding to deport Mr. Judge “to a state where he is under sentence of death without affording him the opportunity to avail himself of an available appeal.”


In consequence, the HRC determined that Mr. Judge was entitled to an effective remedy, which would include Canada “making such representations as are possible to the receiving state to prevent the carrying out of the death penalty.” Finally, Canada was found to be under an obligation to provide the HRC, within 90 days, with “information about the measures taken to give effect to its Views.”


As the Human Rights Committee unanimously determined:


"For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence will not be carried out." [para. 10.4]


This decision marked a major departure from the Committee’s prior jurisprudence. Just a decade earlier, the HRC held in Kindler v. Canada that the deportation of a person from a country which has abolished the death penalty to a country where he/she is under sentence of death does not amount per se to a violation of article 6 of the Covenant. The terms of article 6 (as then construed) did not necessarily require Canada to refuse to extradite or to seek assurances, but such a request should at least be considered by the removing state. But as the HRC noted in Judge


"The Committee is mindful of the fact that the abovementioned jurisprudence was established some 10 years ago, and that since that time there has been a broadening international consensus in favour of abolition of the death penalty, and in states which have retained the death penalty, a broadening consensus not to carry it out... The Committee considers that the Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day conditions. [para. 10.3]


As to the State party's claim that its conduct must be assessed in the light of the law applicable at the time when the alleged treaty violation took place, the Committee considers that the protection of human rights evolves and that the meaning of Covenant rights should in principle be interpreted by reference to the time of examination and not, as the State party has submitted, by reference to the time the alleged violation took place."  [para. 10.7]


The full citation for this landmark ruling is:


U.N.H.R.C., Roger Judge v. Canada, Communication No. 829/1998 (13 August 2003), U.N. Doc. CCPR/C/78/D/829/1998.   It is available at:  


More recently, the European Court of Human Rights determined that the international prohibition on surrenders without assurances is now so well-entrenched as a European human rights norm that it extends to prisoners who are in the temporary custody of the sending State’s authorities within the requesting State itself. In the Al-Saadoon and Mufdhi case, the Court found unanimously that the surrender of individuals in the custody of British troops in Iraq for prosecution by Iraqi authorities violated the prisoners’ rights under the European Convention on Human Rights, because there was a serious risk that they would face the death penalty.


Quoting from the Court’s summary of its judgment,



The death penalty had been reintroduced in Iraq in August 2004. Nonetheless, and without obtaining any assurance from the Iraqi authorities, the UK authorities had decided in December 2005 to refer the applicants’ case to the Iraqi courts and in May 2006 proceedings commenced in the Basra Criminal Court. The Court considered that from that date at least the applicants had been subjected to a well-founded fear of execution, giving rise to a significant degree of mental suffering, which must have intensified and continued from the date they were physically transferred into Iraqi custody.


The [UK] Government had argued that they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts when so requested. However, the Court was not satisfied that the need to secure the applicants' rights under the Convention inevitably required a breach of Iraqi sovereignty. It did not appear that any real attempt was made to negotiate with the Iraqi authorities to prevent the risk of the death penalty. Moreover, the evidence showed that the Iraqi prosecutors initially had "cold feet" about bringing the case themselves, because the matter was "so high profile". This could have provided an opportunity to seek the consent of the Iraqi Government to an alternative arrangement involving, for example, the applicants being tried by a UK court, either in Iraq or in the UK. It does not appear that any such solution was ever sought.


Consequently, in view of the above, the Court concluded that the applicants had been subjected to inhuman and degrading treatment, in violation of Article 3.


Al-Saadoon and Mufdhi v. United Kingdom, 279 Eur. Ct. H.R. (2010) (Merits Judgment), available via



Other legal sources for death penalty assurances


While aspirational in nature, the Charter of the Fundamental Rights of the European Union may be cited as reflecting the consensus practises of the EU and is based largely on the jurisprudence of the European Court of Human Rights. Article 19(2)states: “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”.

In addition, although the treaties in question do not ban extradition or deportation without assurances per se, the growing body of protocols to international human rights conventions requiring the abolition of the death penalty may also be cited. Mandatory assurances prior to any removal of an individual facing capital charges or execution upon return reflects a fundamental requirement of their parties not to take any action that conflicts with the object or purpose of the treaty.


Second Optional Protocol to the International Covenant on Civil and Political Rights

States parties:

Albania, Andorra, Argentina, Australia, Austria, Azerbaijan, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Cape Verde, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Gabon, Gambia, Georgia, Germany, Greece, Guinea-Bissau, Honduras, Hungary, Iceland, Ireland, Italy, Kyrgyzstan, Latvia, Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malta, Mexico, Moldova, Monaco, Mongolia, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, San Marino, Sao Tomé and Principe, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, State of Palestine, Sweden, Switzerland, Timor- Leste, Togo, Turkey, Turkmenistan, Ukraine, United Kingdom, Uruguay, Uzbekistan, Venezuela

(total: 87)

According to Amnesty International (see ACT 50/2305/2015), the following nations are currently parties to other abolitionist protocols:

Protocol to the American Convention on Human Rights

States parties: Argentina, Brazil, Chile, Costa Rica, Dominican Republic, Ecuador, Honduras, Mexico, Nicaragua, Panama, Paraguay, Uruguay, Venezuela  (total: 13)

Protocol No. 6 to the European Convention on Human Rights

States parties: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom
(total: 46)

Signed but not ratified: Russian Federation
(total: 1)

Protocol No. 13 to the European Convention on Human Rights

States parties: Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom   (total: 43)

Signed but not ratified: Armenia, Poland (total: 2)


Many legal sources can and should be cited when opposing the deportation, extradition or expulsion of an individual from an abolitionist country when the death penalty is a foreseeable consequence. Formal and binding assurances should always be obtained whenever an individual faces extradition to the United States on a first-degree murder charge, even if the requesting U.S. state is abolitionist (to avoid a possible death penalty prosecution under federal law, for example, or inter-state extradition). In general, defense counsel in cases of capital extradition to the USA should consider the following:







[1] See U.S. v. Alvarez Machain, 504 U.S. 655, 660 (1992) (recognizing finding of the Rauscher Court that two federal statutes “imposed the doctrine of specialty upon extradition treaties to which the United States was a party.”). The specialty rule is currently incorporated through 18 U.S.C. §3192 (requiring transportation and safekeeping of extradited person “until the final conclusion of his trial for the offenses specified in the warrant of extradition”).

[2] See, e.g., Petit v. Walshe, 194 U.S. 205 (1904) (granting habeas relief on finding that failure to hold  preliminary hearing breached extradition treaty requirement); Johnson v. Browne, 205 U.S. 309, 321 (1907) (finding it “most important” that extradition treaties “should be construed in accordance with the highest good faith” and vacating conviction violating specialty rule); Valentine v. United States, 299 U.S. 5, 10 (1936) (granting habeas relief by quashing criminal warrants that breached extradition treaty). 

[3] Ker v. Illinois, 119 U. S. 436, 444 (1886); Frisbie v. Collins, 342 U.S. 519 (1952).


[4] See American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, sec. 477, comment f. (1987) (“If the requested state surrenders a person on condition that the death sentence not be imposed, the condition is binding on the requesting state.”); United States v. Sanchez, 323 F.Supp.2d 403, 404 (E.D.N.Y. 2004) (concluding that “when a person is extradited with the limitation imposed by the extraditing state that a conviction will not result in a death sentence, federal courts will honor the limitations”).


[5] See, e.g., State v. Vanderpool, 39 Ohio St. 273, 276-77 (1883) (finding extradition treaty requirement deprived court of jurisdiction and noting “the imperative duty of the judicial tribunals of Ohio to take cognizance of the rights of persons arising under a treaty to the same extent as if they arose under a statute of the state itself.”); Dominguez v. State, 90 Tex.Crim. 92, 99, 234 S.W. 79, 83 (1921) (extradition treaty obligations represent the supreme law of the land, binding upon state courts “and available to persons having rights secured or recognized thereby, and may be set up as a defense to a criminal prosecution established in disregard thereof.”).


[6]State v. Pang, 940 P.2d 1293 (Wash. 1997)(doctrine of specialty precluded prosecution on four murder charges expressly excluded in extradition order, and defendant had standing to raise extradition treaty violation).


[7] Rauscher, 119 U.S. 430-31. See footnote 2 for some examples of extradition cases where habeas relief was granted by the Court.

[8] Id. at 431.


[9] Cf. Graham v. Young, 886 F. 3d 700, 702 (8th Cir. 2018) (considering habeas petition based on alleged breach of extradition treaty requirement, noting that the federal writ of habeas corpus will issue for a person who is in state custody “ ‘in violation of the ... treaties of the United States.’ 28 U.S.C. § 2254(a).”); United States v. Najohn, 785 F. 2d 1420, 1422 (9th Cir. 1986) (extradited person may raise whatever objections the extraditing country would have been entitled to raise); U.S. ex rel. Saroop v. Garcia, 109 F. 3d 165 (3rd Cir. 1997) (asserting that individuals ordinarily may not challenge extradition treaty interpretations “in the absence of an express provision within the treaty or an action brought by a signatory nation.”).


[10] Rodriguez Benitez v. Garcia, 495 F. 3d 640 (9th Cir. 2007) (providing habeas review of claim alleging violation of extradition assurances but finding that Venezuela’s extradition condition was unilaterally imposed, rather than an assurance agreed to by the United States).


[11] See United States v. Alvarez Machain, 504 U.S. 655, 667 (1992) (observing that “it would appear that a court must enforce [an extradition treaty] on behalf of an individual” and must do so “regardless of the offensiveness of the practice of one nation to the other nation”); Medellin v. Texas, 552 U.S. 491, 519  n. 11 (2008) (citing Rauscher for its finding that an extradition treaty was “domestically enforceable”).

[12] See Sanitary Dist. of Chicago v. United States, 266 U.S. 405 (1925) (recognizing and applying injunctive power to the enforcement of a bilateral treaty with Canada). 

[13] United States v. Lazarevich, 147 F.3d 1061, 1063 (9th Cir.1998). The specialty doctrine “encourages international cooperation in the extradition system by giving assurance that, when a country gives up persons for extradition only for specified purposes or on certain conditions, those terms will not be flouted.” United States v. Trabelsi, 845 F.3d 1181, 1196 (D.C. Cir. 2017).


[14] See, e.g., Rodriguez Benitez v. Garcia, 495 F.3d 640 (9th Cir. 2007) (finding no violation of the extradition treaty where the United States did not explicitly agree to sentencing limits as a condition of extradition and the sending nation only attempted to clarify the terms of surrender after the fact). 


[15] See United States v. Campbell, 300 F.3d 202, 211 (2d Cir. 2002) (recognizing a distinction between the extradition terms limiting what sentence could be entered by the receiving state’s courts and what sentence the receiving state could require the prisoner to serve); U.S. v. Baez, 349 F.3d 90 (2d Cir. 2003) (language in U.S. clarification of offered assurance did not preclude court from imposing indeterminate life term).


[16] Mike Dorning, Holder Tells Russia Snowden Won’t Face Death Penalty, Bloomberg News (July 26, 2013).


[17] The Guardian, Julian Assange arrested at Ecuadorian embassy in London (April 11, 2019).