Returning Prisoners to
Face the U.S. Death Penalty:
Limitations
Under International Law
Last updated: November 2012
Overview
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 binds the jurisdictional authority of a trial
court. Simply put, "specialty" refers to the principle of
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 an assurance has been provided as a condition of surrender
under an extradition treaty, that assurance acts as a jurisdictional bar
against prosecution on any charge other than the one specified in the
surrender, and then only on the agreed-upon terms and conditions. See,
e.g., 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.
See also Johnson v. Browne, 205 U.S. 309, 321 (1907)
(“most important” that extradition treaties “should be
construed in accordance with the highest good faith”); Tucker v.
Alexandroff, 183 U.S. 424, 466-467 (1902) (extradition
treaties “must be construed so as to carry out, in the utmost good faith
the stipulations therein made with foreign nations”).
While there are a number of decisions holding
that a state may circumvent an extradition treaty by securing the defendant's
return by other means (such as abduction), there is no Supreme Court
case law casting the slightest doubt on the 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. Even the most limiting Supreme Court opinion on the scope of
extradition treaties recognizes the ongoing authority of this essential
requirement first announced in Rauscher. See United States v.
Alvarez-Machain, 504 U.S. 655, 657 (1992). Indeed, the Supreme Court
recently noted that extradition treaties fall within the category of
“domestically enforceable” international agreements, reaffirming
their judicial enforceability and the defendant’s right in such cases to
vindicate the breach of an extradition assurance in the domestic courts. See
Medellin v. Texas, 552 U.S. 491, 519 n. 11 (2008) (citing United
States v. Rauscher, 119 U.S. 407 (1886)).
Since the criminal codes of executing U.S.
states clearly distinguish the procedural and legal requirements for imposing a
death sentence from other sentences for first-degree murder (see, e.g., Arizona
Criminal Code 13-703.01 et. seq.), provided
that the language of the assurance is sufficiently clear, it must be complied
with as a matter of binding federal law.
Just as importantly, where specialty has been
breached, the defendant himself 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. Rauscher, 205 U.S.
430-31. 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.
Id. at 431. Most U.S. courts of appeal have consistently and stringently
upheld these requirements. See, e.g., United States v. Andonian,
29 F.3d 1432, 1435 (9th Cir. 1994) (based on international comity, the
principle of specialty generally requires a country seeking extradition to
adhere to any limitations placed on prosecution by the surrendering
country). Courts should accord deferential consideration to the
limitations imposed by an extraditing nation in an effort to protect United
States citizens in prosecutions abroad. Andonian, 29 F.3d at
1435. “Moreover, in evaluating the exact limitations set by the
extraditing nation, courts should not elevate legalistic formalism over
substance. To do otherwise would strip comity of its meaning.” United
States v. Baez, 349 F.3d 90, 93 (2nd Cir. 2003). In the unlikely
event that a state court allowed the breach of a formal extradition assurance
against the imposition of the death penalty, it is virtually certain that the
federal appellate courts would reverse and remand with instructions to apply
the assurance to the letter.
Furthermore, the U.S. government 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. See, e.g., Sanitary Dist. of
Chicago v. U. S., 266 U.S. 405 (1925) (recognizing and applying that
injunctive power to the enforcement of a bilateral treaty with Canada).
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 a binding assurance
provided against the imposition of the death penalty in any case.
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 whenever possible. 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. See, e.g.,
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). 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. See
United States v. Campbell, 300 F.3d 202, 211 (2d Cir. 2002) (recognizing
a difference between 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). 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.
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: http://www1.umn.edu/humanrts/undocs/829-1998.html
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 http://www.unhcr.org/refworld/docid/4b98e9e12.html
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.”)
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.
Other legal sources for mandatory 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.
According to
Amnesty International, the following nations are currently parties to
abolitionist protocols:
Second
Optional Protocol to the International Covenant on Civil and Political Rights
States parties: Albania, Andorra, Argentina, Australia, Austria,
Azerbaijan, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada,
Cape Verde, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic,
Denmark, Djibouti, Ecuador, Estonia, Finland, France, Georgia, Germany, Greece,
Honduras, Hungary, Iceland, Ireland, Italy, Kyrgyzstan, Liberia, Liechtenstein,
Lithuania, Luxembourg, Macedonia, Malta, Mexico, Moldova, Monaco, Mongolia,
Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua,
Norway, Panama, Paraguay, Philippines, Portugal, Romania, Rwanda, San Marino,
Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden,
Switzerland, Timor-Leste, Turkey, Turkmenistan, Ukraine, United Kingdom,
Uruguay, Uzbekistan, Venezuela (total: 74)
Signed but not ratified: Guinea-Bissau, Poland, Sao
Tomé and Principe (total:
3)
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)
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."
(Lithuania)
"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."
(Peru)
"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
India and South Korea (both of which retain the death penalty) also contain
this provision, perhaps reflecting the fact that U.S. federal law authorizes
the death penalty for offenses other than murder. 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, Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Montserrat,
Netherlands, New Zealand, Norway, Paraguay, Peru, Philippines, Poland,
Portugal, St. Helena, Solomon Islands, South Africa, Spain, Sri Lanka, Sweden,
Switzerland, Turks and Caicos, Tuvalu, United Kingdom, Uruguay,
Venezuela, (51 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.
Conclusion
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: