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

Last updated: June, 2008
 

Overview
 

Until quite recently, nations which had abolished the death penalty could elect to deny extradition or deportation of detainees facing capital sentencing 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, 128 S.Ct. 1346, 1364 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. 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).



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:  http://www1.umn.edu/humanrts/undocs/829-1998.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, Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Bulgaria, Canada, Cape Verde, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Ecuador, Estonia, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Mexico, Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Norway, Panama, Paraguay, Philippines, Portugal, Romania, San Marino, Serbia, Seychelles, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Turkey, Turkmenistan, Ukraine, United Kingdom, Uruguay, Venezuela
(total: 66)

Signed but not ratified: Argentina, Chile, Guinea-Bissau, Nicaragua, Poland, Sao Tomé and Principe
(total: 6)

Protocol to the American Convention on Human Rights

States parties: Brazil, Costa Rica, Ecuador, Mexico, Nicaragua, Panama, Paraguay, Uruguay, Venezuela
(total: 9)

Signed but not ratified: Argentina, Chile
(total: 2)

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- Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Sweden, Switzerland, Turkey, Ukraine, United Kingdom
(total: 40)

Signed but not ratified: Armenia, Italy, Latvia, Poland, Spain
(total: 5)
 

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:
 

(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."

 

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 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 U.S. extradition treaties:
 

Argentina, Australia, Austria, Belgium, Bolivia, Brazil, British Virgin Islands, Canada, Cayman Islands, Colombia, Costa Rica, Cyprus, Denmark, Finland, France, Germany, Gibraltar, Hungary, India, Ireland, Isle of Man, Israel, Italy, Korea, Lithuania, Luxembourg, 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,  (48 jurisdictions)

The extradition treaty with the European Union also provides for satisfactory assurances and applies to all 25 member States, including 7 that would not otherwise be covered by extradition assurances provisions: the Czech Republic, Estonia, Greece, Latvia, Malta, Slovakia and Slovenia.
 

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). In general, defense counsel in cases of capital extradition to the USA should consider the following: