Many countries with restrictions on the extradition of their nationals have jurisdiction under their domestic laws to try their nationals for major crimes regardless of where the offense was committed and sometimes undertake to pursue such prosecutions. This would typically be the case in countries with civil law systems, including the majority of countries in Europe and South America, and not in countries with common law legal systems, including the United States. The U.S. Government’s bilateral extradition treaty in such cases often provides that if extradition is refused solely on the basis of nationality, the case must then be submitted by the foreign government to its authorities for prosecution if we so request. Having a fugitive tried in his home country under these circumstances is a far less desirable outcome than having the fugitive returned to the U.S. for trial and punishment, but U.S. law enforcement authorities sometimes view a foreign trial as the best alternative when extradition is not possible.8
The Departments of Justice and State have been pursuing vigorous, across-the-board efforts to convince individual countries and the world community that refusal of extradition on the ground of nationality is no longer appropriate, given the ease of flight and the increasingly transnational nature of crime. In addition to pursuing this issue vigorously in our treaty negotiations, U.S. diplomats and U.S. law enforcement officials, with the active personal leadership of Attorney General Reno, have made eliminating restrictions on the extradition of nationals a high priority in our bilateral dialogues with other countries. These efforts have already had notable successes, beginning to achieve what we hope will be an overall reversal of a well-entrenched and long-standing tradition in many countries, often enshrined in constitutions and national law.
Recent U.S. treaties with countries in South America, such as Bolivia, Argentina and Paraguay, for example, restrict or eliminate obstacles to the extradition of nationals. We have also had some success in persuading states to rethink their policies on extradition of nationals without revision of the treaty language. Largely as a result of our efforts, the Dominican Republic repealed its law prohibiting the extradition of nationals, leading to the extradition to the United States of a number of Dominican nationals on murder and narcotics charges. Mexico has exercised discretion under its law to extradite some Mexican nationals, and we are encouraging the Mexican Government to extradite more in the future. Colombia has also begun to exercise discretion under its domestic law to extradite nationals.
A number of the U.S. Government’s recent treaty relationships outside Latin America also show the influence of this line of thinking. Our new treaties with Antigua and Barbuda, Barbados, Grenada, India, the Philippines, Sri Lanka, St. Kitts and Nevis,
8 Sometimes the foreign government’s prosecutorial efforts are not as vigorous as we would like, for reasons including the following: it is difficult and expensive to bring witnesses to the foreign courts to testify; evidentiary and procedural differences in our systems make such prosecutions difficult; foreign prosecutions are far less desirable from the perspective of U.S. victims and the communities where the crimes took place; and the punishment imposed is substantially less than what would have been imposed in the United States.