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As part of an international investigation between Morocco and the FBI, the 21-year-old Frenchman was arrested and jailed in Morocco. He is wanted by the United States for his alleged involvement in cybercrime against companies, some of which are American.

source: The Press Stories

This led me to wonder about extraditions when law differs between countries.

Imagine a country A where activity X is illegal. A person P has done this action against the interests of country A. This person is a national of C.

Country A wants to prosecute P and requests extradition. What happens when P is in a third country B?

  • will C, on request, have a "right of priority" to request extradition and judge P at home?
  • what happens if the law in B does not perceive X as illegal?

I am interested in the purely legal aspect, not "behind the scene" activities where A can bully B or C, or B does not have extradition arrangements with A.

phoog
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WoJ
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1 Answers1

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In general the act must be a crime in both countries for an extradition to proceed, but the extradition treaty between countries A and B likely has more specific provisions as well.

C's involvement is generally limited to consular assistance, but there have been instances where countries have offered to incarcerate their citizens for convictions in other countries. The country of citizenship certainly does not have priority to extradite or try its citizens, and it is unlikely that the country seeking to prosecute would have much interest in another country taking over the case.

phoog
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  • Thank you for the comprehensive answer. When you write (emphasis mine) (...) certainly does not have priority to extradite or try* its citizens (...)* - do you mean that if P is in his home country C and A wants an extradition, C would be legally forced to extradite their own citizen (and not try them at home)? – WoJ Aug 02 '22 at 17:43
  • @WoJ many countries refuse to extradite their citizens to foreign juridictions, and their extradition treaties typically reflect this. If not, well, then, if the extradition request is approved by the courts then yes, they would extradite their citizen. I would hesitate to use the word "forced" since extradition is either voluntary or governed by an extradition treaty that was concluded freely and voluntarily. But a country that refuses to extradite its citizens has little leverage to prevent its citizens from being extradited from and to other countries. – phoog Aug 02 '22 at 17:48
  • Thank you for the update. I used "legally forced" to highlight the legal aspect of the extradition (through the mechanisms you mentioned), as opposed to what I call "behind the scene arrangements" (where a country puts pressure on another one, especially when there is a vast difference in power). Your update was very clear. – WoJ Aug 02 '22 at 17:51
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    "many countries refuse to extradite their citizens to foreign jurisdictions" More like a handful of countries. This is very much an extreme position and a minority rule. – ohwilleke Aug 02 '22 at 20:18
  • @ohwilleke perhaps it's selection bias: I only hear about countries taking this position when a country taking this position is in the news. Are you aware of any list or other accounting of how common this position is? – phoog Aug 03 '22 at 09:42
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    @WoJ another point I've glossed over here because I suspect you're probably aware of it is that there may be other conditions. For example, countries that do not have the death penalty typically refuse to extradite people for prosecutions where they might face the death penalty. Sometimes prosecuting countries guarantee not to impose the death penalty in an extradition case in order to obtain extradition of the suspect who would normally face the death penalty for the alleged crime in that jurisdiction. – phoog Aug 03 '22 at 09:47