below are the typical types of qualifications on the obligation to extradite. When these limitations are triggered in particular cases, some might say that the U.S. or the foreign country (at least temporarily) becomes a “safe haven” from extradition, even though the reason for non-extradition is consistent with the terms of the applicable treaty and in some cases a prosecution in a country other than the United States might occur.
As the discussion below reflects, there are a number of reasons that international extraditions are delayed or denied, some less problematic than others from a policy perspective. In some cases, most notably with respect to the extradition of nationals, foreign laws and policies can present undesirable impediments, and these cases will be discussed first. In these circumstances, the United States has embraced a broad and aggressive “nowhere to hide” policy in its relations with other countries to attempt to break down these barriers to international extradition. In other cases, extradition may be delayed or impeded by the courts of our treaty partners, either by virtue of lengthy judicial proceedings or in rare cases because foreign courts have questioned the validity of the relevant extradition treaties. In these cases, we seek to work closely with our treaty partners to address the judicial impediments. In still other scenarios, extraditions are impeded in some way, either for the United States or our treaty partners, because of reasons that are understandable and not necessarily objectionable, such as an inability to locate a fugitive, an inability to extradite because crimes are not covered under a particular treaty, a lack of sufficient evidence to sustain a judicial finding of extraditability in the Requested State, or simply an erroneous adverse decision on dual criminality or other grounds by an independent foreign judge charged with handling a U.S. request for extradition.
Impediments to Extradition
-- Restrictions on the Extradition of Nationals
Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their nationals. The United States makes no distinction between extraditing its own nationals and nationals of other countries. We advocate that all countries adopt the same policy. However, a number of our major treaty partners, such as France, Germany and Brazil, cannot extradite their nationals by virtue of their constitutions or domestic laws. In some cases, such as Mexico and Bolivia, the executive branches have been given discretion under domestic legislation to extradite their nationals, but only under specified circumstances. In Israel, current law allows persons who are nationals and residents of Israel at the time extradition is sought to be extradited so long as the requesting country promises that any sentence imposed on the fugitive as the result of the extradition will be served in Israel. Non-resident Israelis may be extradited for trial without the restriction of having to be returned for service of sentence.7
7 At the time of the high-profile Samuel Sheinbein case, in which Maryland authorities sought a fugitive for trial in Montgomery County on murder charges, nationality was an absolute bar to extradition under Israeli law.