The United States Department of Justice (“the Department”) enforces the law and defends US interests. This includes preventing and controlling crime, and seeking punishment for those guilty of committing criminal offences.
As crimes are often committed across borders, a person wanted for a crime in the US will often be residing in another country, or may flee to another country in an attempt to evade justice. Extradition and Interpol Red Notices are often used to bring these people back to US soil to face justice. On its website, the Department sheds some light on how it views the role of these instruments in the upholding of justice, as well as the extent its law enforcement agents may go to in order to successfully extradite fugitives.
What happens when a formal extradition attempt fails?
Due to the complex nature of international criminal law, formal extradition may not always be such a viable option for law enforcement. Differing legal systems throughout the world and the potential lack of extradition treaties or other avenues for effective international cooperation can create barriers to successfully extraditing a fugitive to face prosecution. In these situations, it is possible that more coercive methods may be utilised to detain and return the person to the country in which they face criminal charges.
The Department states that:
Fugitives deported to the United States or otherwise returned under other than a formal order of extradition often claim that they were kidnapped (by United States or foreign agents) and returned illegally. The courts generally dispose of those arguments under the Ker-Frisbie doctrine, holding that a defendant in a Federal criminal trial may not successfully challenge the District Court’s jurisdiction over his person on the grounds that his presence before the Court was unlawfully secured.
One court found an exception to the general doctrine, declaring that a court could refuse to exercise its jurisdiction if the person’s presence had been secured by conduct shocking to the conscience of the court. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).
Interpol Red Notices
The Department states that “An Interpol Red Notice is the closest instrument to an international arrest warrant in use today”. When the fugitive is located in a member country which has received the notice, a formal request for extradition can be filed, and in some urgent cases a provisional arrest may be requested. A provisional arrest is appropriate when the country making the demand for extradition believes that there is a risk the fugitive will flee, and these requests must be handled quickly.
On issuing a Red Notice through Interpol, the US is required to produce all required documentation within the time limits prescribed by the relevant extradition treaty, as well as pay any associated expenses (such as document translation), in proactively seeking the extradition of the fugitive. In other words, a Red Notice cannot be issued for political reasons or to ‘inconvenience’ the person in question. The person must be wanted for a serious crime, for which extradition is required and appropriate.
Foreign extradition requests
Foreign requests to the US for extradition (and provisional arrest requests) must be submitted through the appropriate diplomatic channels, usually from the US embassy in Washington to the Department of State. The department of State reviews these requests to:
- Identify any potential foreign policy problems (for example, does the request come from a country with a poor human rights record where the ‘fugitive’ may be wanted for political reasons?)
- Ensure that there is a treaty in force between the United States and the country making the request
- Ensure that the crime or crimes are “extraditable offences”, and that the supporting documents are in order.
If the request is in proper order, it is forwarded to the Office of International Affairs (OIA). The OIA reviews requests to “verify that the request is in good order and that the documents will establish probable cause to believe that a crime was committed and that the fugitive committed it.”
The OIA works closely with prosecutors in extradition cases, who appear in court on behalf of the United States and argue that the court should order the fugitive extradited to stand trial in the country seeking extradition.