Chapter 2: The Anatomy of Extradition: Its Elements, History andDevelopment.
2.1.1. AncientTimes
The law and practice of extradition is an interesting andimportant branch of law. It is a concept
that has existed for thousands ofyears although not known by that term. The earliest known
extradition agreementwas in a peace treaty between the Pharaoh Rameses II of Egypt and King
Hattushilish of theHittites in 1280 B.C[1].It provided in ten articles, for the extradition of ‘Great
Men’, Noble Men and‘Unknown Men’, the latter referring to common people. ‘Great Men’ referred
topolitical offenders mainly.
The provisions covering the extradition of ‘great men’ were:
"Ifa great person flees from the country of Hatti and if he comes to Reamasesa,the great king,
king of the country of Egypt, then Reamasesa, the great king,the king of the country of Egypt,
has to take hold of him and deliver him intohands of Hattusili, the great king, the king of the
country of Hatti. "
"Ifa great person flees from the country of Egypt and he escapes to the country ofAmurru or a
city and he comes to the king of Amurru, then Benteshina, king ofthe country of Amurru, has to
take hold of him and take him to the king of thecountry of Hatti; and Hattusili, the great king, the
king of the country ofHatti, shall have him to be taken to Reamasesa, the great king, the king of
thecountry of Egypt."[2]
These provisions indicate that the political offence was alreadyan area of interest even in these
early civilizations and continued for thousandsof years till about the end of the middle ages in
Europe[3].Political offences were the main issue in extradition in this period of time assovereign
rulers sought to defeat their opponents who might have taken refugein foreign lands.
Proof of extradition in these early times is also found in ancientIsraeland the Hindu Code of
Manu where procedures existed for the return of commoncriminals and ‘Great Men[4].The
Romans did practice extradition at least up to 100 B.C.[5]
2.1.2 The MiddleAges
In more recent times, in the 10th century, there was anextradition treaty between the rulers at
Byzantiumand the Princes of Kiev.[6] In 1303, Franceand Englandhad a treaty allowing for
handing over of political opponents of the ruler ofthe requesting State.[7]In 1174 England and
Scotland made asimilar extradition arrangement.[8] As early as 1376, Francewas providing for
the extradition of common criminals as opposed to earlierarrangements which focused on the
extradition of political offenders in theFranco – Savoyan treaty.[9]
A feature of these early extradition agreements is that theyfocused on the extradition of political
offenders, people involved in rebellionsor uprisings against the State. In the mid sixty’s (1661
and 1662), the Anglo – French and Anglo – Dutch treaties still provided for the extradition
ofpolitical offenders.[10]This is opposed to extradition in the 19th and 20thcenturies when
political offences became expressly non-extraditable offences. [11]With the advent of terrorism
in the late 20th and now in the 21stcentury typically political offences are no longer always non-
extraditable.[12]
The modern system of extradition started developing in the 18thcentury in Europe.[13]Amidst all
the ancient systems of extradition, the European system has had theheaviest if not the sole
contribution and influence on the present dayextradition system.
France is credited with having founded the modern system of extradition.[14]She was properly
placed to evolve such a system as being in continental Europethat is she was subject to the
flight of criminals through its borders ascompared to less accessible countries like the United
Kingdom which are surroundedby water.
By the end of the 18th century and the early part ofthe 20th century, about 100 extradition
treaties were made. [15]
2.1.3 Growth of theConcept of Extradition
Extradition has evolved over thousands of years to what it istoday, from ancient times till now
there are some of its typicalcharacteristics and objects that have remained unchanged while
others have beencompletely transformed.
From the times of the Aegypto – Hittite Treaty,[16]the need to have offenders punished was
evident because one unchanged object ofextradition is the need to avoid the escape of
punishment by offenders becauseof want of jurisdiction.[17]Therefore extradition became a
means of securing an offender in one State fortrial or punishment in another State hence
eliminating the want ofjurisdiction.
Inearlier times as stated above, extradition was primarily a tool for securing fugitiveswho had
committed political offences. This can be understood in the contextthat many governments then
,were monarchical and hence the Monarchs did not wishfor dissidents to escape to another
country from where they could organizecoups and other stratagems to destabilize the
Monarch’s government.
However towards the end of the middle Ages and with the advent ofthe Renaissance, the
revolutionary thought
, grew in Europeand common people started rebelling against the feudal system which was a
yokeon them. [18]New ideas of government took root in which the individual took
precedencebefore the State. As new laws were crafted to accommodate these new
ideas,extradition was also affected. It was sought in extradition not to have peoplethat had been
involved in revolutions be punished therefore.[19]
Hence the political offence exception took root in extraditionjurisprudence at around this time.
Gilbert gives an explanation as to why extradition emerged as thepreferred means of dealing
with transnational fugitives as opposed to othermodes of rendition like kidnapping and
deportation.[20]He attributes this preference to two movements; firstly, the emergence of
thenation-state and the concept of co-equal sovereignty in Europein the 18th and 19th centuries.
The emerging statespromulgated treaties on various matters including extradition to
assertindependence, authority and equality in all matters.
Secondly he attributes it to the development of an emerging law ofhuman rights. The emerging
states had broken away from the aristocratic systemsof government so as to assert individual
freedoms; extradition and extraditiontreaties were a means of protecting the rights of fugitives
as their surrenderwould then be governed by law.
The principle of specialty was fully worked out in the 1850Franco-Saxon treaty of 1850.[21]
The development of extradition philosophies in the 18thcentury were under the parameters of
the emerging international law system.[22]In the 18th century, the superiority of extradition as
the preferredmeans of rendition was assured while in the 19th century,Liberalism, which was a
popular culture in Europe,people revolted against the yoke of aristocracy which later developed
thedetail of the modern extradition process.[23]
2.1.4 Extraditionin Modern Times.
The extradition system developed by the late 19thcentury remained unchanged for quite a long
time until the past two or sodecades where terrorism has caused a need for many nations to
reconsider someaspects of extradition.
The strengthening of the human rights regime has also led to manynations refusing to extradite
on the basis of the offender being possiblyliable to capital punishment in the requesting country.
[24]
With the consequent integration of geopolitical regions like theEuropean Union and Globalization,
extradition procedures between States withinsuch integration arrangements have been simplified.
2.1.5 HowExtradition Arises
It may be asked that, since a criminal who commits a crime in aState upon apprehension will be
taken through the criminal justice systemwithout much ado, why should there be elaborate
extradition proceedings whenthe criminal is outside the area of jurisdiction of a state secondly
why notsimply pursue him to his place of refuge or have him handed over by the stateof refuge
without asking questions?
Both questions have answers. Firstly, one country may not enterinto the country of another to
exercise its jurisdiction without injuring thesovereignty of the State entered.[25]It is therefore
mandatory that before such a criminal is pursued or apprehendedin any way in the host country,
the pursuing country must get the permission ofthe host state.
In the Savarkar Arbitrationcase,[26]an Indian fugitive was being extradited from Englandto
Indiaunder the then Fugitive Offenders Act 1881. The fugitive jumped ship and swamashore in
Marseilles.Thinking that he was a member of the crew, a French policeman arrested him
andhanded him over to the British police officer who was accompanying him back to India.
Subsequently,the French authorities discovered the true situation and sought reparation forthe
alleged violation of France’sterritorial integrity by the way of the return of Savarkar. The Perm
Court ofArbitration held that on the facts it had been an honest mistake by allconcerned and that
the British officers had acted in good faith. The judgmenthowever suggests that if the fugitive’s
return had been obtained by force or deception,then it would have been possible for France to
demand his return becauseof the violation of her sovereignty.
Secondly, the criminal is not simply handed over because as wehave seen earlier, extradition is
meant to protect the human rights of thefugitive. Therefore the state of refuge should not hand
him over withoutfollowing proper extradition procedures to ensure that the fugitive’s rightsare
not dispensed with.
Thirdly the requesting state may not have jurisdiction over thecriminal or there may be more
than one state claiming jurisdiction over thefugitive e.g. imagine a situation where a Kenyan robs
a bank in Uganda andwires the money to an account in London before taking a flight to South
Africaon a false South African passport obtained in China. He is then arrested byZimbabwean
2.1.1. AncientTimes
The law and practice of extradition is an interesting andimportant branch of law. It is a concept
that has existed for thousands ofyears although not known by that term. The earliest known
extradition agreementwas in a peace treaty between the Pharaoh Rameses II of Egypt and King
Hattushilish of theHittites in 1280 B.C[1].It provided in ten articles, for the extradition of ‘Great
Men’, Noble Men and‘Unknown Men’, the latter referring to common people. ‘Great Men’ referred
topolitical offenders mainly.
The provisions covering the extradition of ‘great men’ were:
"Ifa great person flees from the country of Hatti and if he comes to Reamasesa,the great king,
king of the country of Egypt, then Reamasesa, the great king,the king of the country of Egypt,
has to take hold of him and deliver him intohands of Hattusili, the great king, the king of the
country of Hatti. "
"Ifa great person flees from the country of Egypt and he escapes to the country ofAmurru or a
city and he comes to the king of Amurru, then Benteshina, king ofthe country of Amurru, has to
take hold of him and take him to the king of thecountry of Hatti; and Hattusili, the great king, the
king of the country ofHatti, shall have him to be taken to Reamasesa, the great king, the king of
thecountry of Egypt."[2]
These provisions indicate that the political offence was alreadyan area of interest even in these
early civilizations and continued for thousandsof years till about the end of the middle ages in
Europe[3].Political offences were the main issue in extradition in this period of time assovereign
rulers sought to defeat their opponents who might have taken refugein foreign lands.
Proof of extradition in these early times is also found in ancientIsraeland the Hindu Code of
Manu where procedures existed for the return of commoncriminals and ‘Great Men[4].The
Romans did practice extradition at least up to 100 B.C.[5]
2.1.2 The MiddleAges
In more recent times, in the 10th century, there was anextradition treaty between the rulers at
Byzantiumand the Princes of Kiev.[6] In 1303, Franceand Englandhad a treaty allowing for
handing over of political opponents of the ruler ofthe requesting State.[7]In 1174 England and
Scotland made asimilar extradition arrangement.[8] As early as 1376, Francewas providing for
the extradition of common criminals as opposed to earlierarrangements which focused on the
extradition of political offenders in theFranco – Savoyan treaty.[9]
A feature of these early extradition agreements is that theyfocused on the extradition of political
offenders, people involved in rebellionsor uprisings against the State. In the mid sixty’s (1661
and 1662), the Anglo – French and Anglo – Dutch treaties still provided for the extradition
ofpolitical offenders.[10]This is opposed to extradition in the 19th and 20thcenturies when
political offences became expressly non-extraditable offences. [11]With the advent of terrorism
in the late 20th and now in the 21stcentury typically political offences are no longer always non-
extraditable.[12]
The modern system of extradition started developing in the 18thcentury in Europe.[13]Amidst all
the ancient systems of extradition, the European system has had theheaviest if not the sole
contribution and influence on the present dayextradition system.
France is credited with having founded the modern system of extradition.[14]She was properly
placed to evolve such a system as being in continental Europethat is she was subject to the
flight of criminals through its borders ascompared to less accessible countries like the United
Kingdom which are surroundedby water.
By the end of the 18th century and the early part ofthe 20th century, about 100 extradition
treaties were made. [15]
2.1.3 Growth of theConcept of Extradition
Extradition has evolved over thousands of years to what it istoday, from ancient times till now
there are some of its typicalcharacteristics and objects that have remained unchanged while
others have beencompletely transformed.
From the times of the Aegypto – Hittite Treaty,[16]the need to have offenders punished was
evident because one unchanged object ofextradition is the need to avoid the escape of
punishment by offenders becauseof want of jurisdiction.[17]Therefore extradition became a
means of securing an offender in one State fortrial or punishment in another State hence
eliminating the want ofjurisdiction.
Inearlier times as stated above, extradition was primarily a tool for securing fugitiveswho had
committed political offences. This can be understood in the contextthat many governments then
,were monarchical and hence the Monarchs did not wishfor dissidents to escape to another
country from where they could organizecoups and other stratagems to destabilize the
Monarch’s government.
However towards the end of the middle Ages and with the advent ofthe Renaissance, the
revolutionary thought
, grew in Europeand common people started rebelling against the feudal system which was a
yokeon them. [18]New ideas of government took root in which the individual took
precedencebefore the State. As new laws were crafted to accommodate these new
ideas,extradition was also affected. It was sought in extradition not to have peoplethat had been
involved in revolutions be punished therefore.[19]
Hence the political offence exception took root in extraditionjurisprudence at around this time.
Gilbert gives an explanation as to why extradition emerged as thepreferred means of dealing
with transnational fugitives as opposed to othermodes of rendition like kidnapping and
deportation.[20]He attributes this preference to two movements; firstly, the emergence of
thenation-state and the concept of co-equal sovereignty in Europein the 18th and 19th centuries.
The emerging statespromulgated treaties on various matters including extradition to
assertindependence, authority and equality in all matters.
Secondly he attributes it to the development of an emerging law ofhuman rights. The emerging
states had broken away from the aristocratic systemsof government so as to assert individual
freedoms; extradition and extraditiontreaties were a means of protecting the rights of fugitives
as their surrenderwould then be governed by law.
The principle of specialty was fully worked out in the 1850Franco-Saxon treaty of 1850.[21]
The development of extradition philosophies in the 18thcentury were under the parameters of
the emerging international law system.[22]In the 18th century, the superiority of extradition as
the preferredmeans of rendition was assured while in the 19th century,Liberalism, which was a
popular culture in Europe,people revolted against the yoke of aristocracy which later developed
thedetail of the modern extradition process.[23]
2.1.4 Extraditionin Modern Times.
The extradition system developed by the late 19thcentury remained unchanged for quite a long
time until the past two or sodecades where terrorism has caused a need for many nations to
reconsider someaspects of extradition.
The strengthening of the human rights regime has also led to manynations refusing to extradite
on the basis of the offender being possiblyliable to capital punishment in the requesting country.
[24]
With the consequent integration of geopolitical regions like theEuropean Union and Globalization,
extradition procedures between States withinsuch integration arrangements have been simplified.
2.1.5 HowExtradition Arises
It may be asked that, since a criminal who commits a crime in aState upon apprehension will be
taken through the criminal justice systemwithout much ado, why should there be elaborate
extradition proceedings whenthe criminal is outside the area of jurisdiction of a state secondly
why notsimply pursue him to his place of refuge or have him handed over by the stateof refuge
without asking questions?
Both questions have answers. Firstly, one country may not enterinto the country of another to
exercise its jurisdiction without injuring thesovereignty of the State entered.[25]It is therefore
mandatory that before such a criminal is pursued or apprehendedin any way in the host country,
the pursuing country must get the permission ofthe host state.
In the Savarkar Arbitrationcase,[26]an Indian fugitive was being extradited from Englandto
Indiaunder the then Fugitive Offenders Act 1881. The fugitive jumped ship and swamashore in
Marseilles.Thinking that he was a member of the crew, a French policeman arrested him
andhanded him over to the British police officer who was accompanying him back to India.
Subsequently,the French authorities discovered the true situation and sought reparation forthe
alleged violation of France’sterritorial integrity by the way of the return of Savarkar. The Perm
Court ofArbitration held that on the facts it had been an honest mistake by allconcerned and that
the British officers had acted in good faith. The judgmenthowever suggests that if the fugitive’s
return had been obtained by force or deception,then it would have been possible for France to
demand his return becauseof the violation of her sovereignty.
Secondly, the criminal is not simply handed over because as wehave seen earlier, extradition is
meant to protect the human rights of thefugitive. Therefore the state of refuge should not hand
him over withoutfollowing proper extradition procedures to ensure that the fugitive’s rightsare
not dispensed with.
Thirdly the requesting state may not have jurisdiction over thecriminal or there may be more
than one state claiming jurisdiction over thefugitive e.g. imagine a situation where a Kenyan robs
a bank in Uganda andwires the money to an account in London before taking a flight to South
Africaon a false South African passport obtained in China. He is then arrested byZimbabwean
