Human Rights Considerations in Extradition

• Author: Frédéric Mégret
• Profession: Full Professor and Dawson Scholar, Co-director Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University
• Pages: 425-447

425

eighteen

Human Rights Considerations in

Extradition

FRÉDÉRIC MÉGRET*

A. INTRODUCTION

Extradition is traditionally conceived as an inter-state process designed to

deal with the problem of fugitives. It is only relatively recently that human

rights concerns have come to the foreground. is is particularly the case

in Canada where the Charter has arguably signicantly transformed the

framing of extradition, albeit with occasionally limited practical impact.

e constraints that weigh on the desirability of extradition are

multifaceted. States are evidently interested in enforcing their laws and

asserting their criminal jurisdiction, and so have a strong interest in

addressing the problem of fugitives. ere are also certain inbuilt inter-

national limitations to any extradition scheme. States can only expect

other states to accept their extradition requests to the extent that they

are willing to honour similar requests. is is the basic quid pro quo of

international law. States that do not comply with their extradition treaty

* Full Professor and Dawson Scholar, Co-director Centre for Human Rights and

Legal Pluralism, Faculty of Law, McGill University. anks to Isabella Spano for

her invaluable assistance.

 John D ugard& Christine Van den Wyngaert, “Reconciling Extradition with Human

Rights” () : American Journal of International Law .

 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, , being

Schedule B to the Canada Act  (UK), , c  [Charter].

 

426

obligations will also nd that their treaty partners will be disinclined

to respect theirs. In other words, states’ interest in extradition is based

on their own, homegrown interest in securing custody over criminal

suspects abroad, reinforced by the necessarily reciprocal nature of inter-

national treaty arrangements. To make matters more complicated, extra-

dition regimes have increasingly been mandated through international

law. is turn to international law occurs especially in relation to what

one might broadly characterize as transnational or supranational crimes

(a reality spectacularly illustrated by simplied regimes of surrender to

international criminal tribunals, but also in eorts to deal with terrorism).

ese domestic and international factors suggest that, all other things

being equal, states have a strong interest in implementation of and com-

pliance with extradition obligations.

At the same time, there is no denying that extradition implicates

human and Charter rights. It threatens those who are targeted with

both forced removal from Canadian territory and prosecution (as well

as, possibly, punishment) in a foreign land. is sort of judicial uprooting

has severe consequences on all aspects of persons’ lives, implicating, for

example, sections , , or . Just as it has often been said that the Charter

has profoundly reshaped criminal justice in Canada in general, it has also

had an impact on extradition proceedings, which are a complex and unique

mix of executive discretion, judicial scrutiny, and international comity.

is chapter rst describes the basic conceptual framework wherein

Charter and human rights claims in relation to extradition arise in Canada.

It then looks more specically at the sort of rights concerns that arise at

various stages of the extradition process.

B. THE BASIC FRAMEWORK

1) The Constitutional Equation

Extradition is based on principles of comity and mutual cooperation that

are central to international law as well as to Canadian foreign policy. e

Canadian government freely negotiates and raties extradition treaties,

susceptible to a range of limitations often associated with treaty-making

in Canada, including limited involvement of Parliament or the provinces.

It is important to stress that in complying with its extradition obligations,

Canada is not doing other states’ bidding, but participating in the very