St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago and Zimbabwe explicitly prohibit denial of extradition on nationality grounds. Treaties with Australia, Malaysia, Hong Kong, and South Korea, like treaties with Japan and Thailand, leave the requested state with discretion whether to grant or deny extradition on nationality grounds, but in each instance, the treaty partner has indicated that it will grant such extradition where possible. Israel, which for over twenty years had an absolute statutory ban on extradition of nationals despite language in the treaty contemplating the extradition of nationals, changed its domestic law in 1999 to permit the extradition of nationals for trials outside of Israel.
We have made fewer advances on this issue in Europe, but some progress has been made. Our extradition treaties with Ireland, Italy, and the Netherlands permit the extradition of nationals in some circumstances, and our recent treaty with Switzerland contemplates extradition of nationals whenever the requested state is unable to prosecute in lieu of extradition. However, most recent treaties with European countries such as Austria, Cyprus, France, and Luxembourg permit but do not require extradition of nationals, and those countries currently have no discretion under their internal law to extradite their nationals. These new treaties do recognize that if either treaty partner denies extradition solely on nationality grounds, it is obligated to submit the case to its competent authorities for purposes of prosecution under its domestic laws if requested.
-- Death Penalty Assurances
Some of our treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out.9 Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere that oppose the death penalty as a fundamental human rights issue, and have abolished the death penalty domestically, routinely refuse to extradite fugitives to countries that impose the death penalty, absent such assurances that the death penalty will not be carried out. Sometimes these provisions are included in the treaties at the United States’ request, in order to retain sufficient flexibility to ensure that we are not obliged to surrender persons for execution for relatively less serious crimes.
-- Statutes of Limitations
Many of our treaties also bar extradition if the relevant statute of limitations of the Requesting State, the Requested State, or both, would bar prosecution. Absent a
9 Less frequently, countries seek assurances on the particular length of sentence a fugitive will receive (e.g., no “life sentences”). The United States generally resists including provisions along these lines in our extradition treaties (or granting such assurances in practice), although we note there is such a provision in our 1922 treaty with Venezuela permitting a Party to deny extradition if it seeks but does not obtain such assurances.