§ 331. Unless a State is restricted by an extradition law, it can grant extradition for any crime it thinks fit. And unless a State is bound by an extradition treaty, it can refuse extradition for any crime. Such States as possess extradition laws frame their extradition treaties conformably therewith and specify in those treaties all those crimes for which they are willing to grant extradition. And no person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition. As regards Great Britain, the following are extraditable crimes according to the Extradition Act of 1870:—Murder and manslaughter; counterfeiting and uttering counterfeit money; forgery and uttering what is forged; embezzlement and larceny; obtaining goods or money by false pretences; crimes by bankrupts against bankruptcy laws; fraud by a bailee, banker, agent, factor, trustee, or by a director, or member, or public officer of any company; rape; abduction; child stealing; burglary and housebreaking; arson; robbery with violence; threats with intent to extort; piracy by the Law of Nations; sinking or destroying a vessel at sea; assaults on board ship on the High Seas with intent to destroy life or to do grievous bodily harm; revolt or conspiracy against the authority of the master on board a ship on the High Seas. The Extradition Acts of 1873 and 1906 added the following crimes to the list:—Kidnapping, false imprisonment, perjury, subornation of perjury, and bribery.
Political criminals are, as a rule, not extradited,[678] and according to many extradition treaties military deserters and such persons as have committed offences against religion are likewise excluded from extradition.
[678] See below, §§ [333]-340.
Effectuation and Condition of Extradition.
§ 332. Extradition is granted only if asked for, and after the formalities have taken place which are stipulated in the treaties of extradition and the extradition laws, if any. It is effected through handing over the criminal by the police of the extraditing State to the police of the prosecuting State. But it must be emphasised that, according to most extradition treaties, it is a condition that the extradited individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted, or for those at least which the extradition treaty concerned enumerates.[679] If, nevertheless, an extradited individual is tried and punished for another crime, the extraditing State has a right of intervention.[680]
[679] See Mettgenberg in the "Zeitschrift für internationales Recht," XVIII. (1908), pp. 425-430.
[680] It ought to be mentioned that the Institute of International Law in 1880, at its meeting in Oxford (see Annuaire, V. p. 117), adopted a body of twenty-six rules concerning extradition.
An important question is whether, in case a criminal, who has succeeded in escaping into the territory of another State, is erroneously handed over, without the formalities of extradition having been complied with, by the police of the local State to the police of the prosecuting State, such local State can demand that the prosecuting State shall send the criminal back and ask for his formal extradition. This question was decided in the negative in February 1911 by the Court of Arbitration at the Hague in the case of France v. Great Britain concerning Savarkar. This British-Indian subject, who was prosecuted for high treason and abatement of murder, and was being transported in the P. and O. boat Morea to India for the purpose of standing his trial there, escaped to the shore on October 25, 1910, while the vessel was in the harbour of Marseilles. He was, however, seized by a French policeman, who, erroneously and without further formalities, reconducted him to the Morea with the assistance of individuals from the vessel who had raised a hue-and-cry. Since Savarkar was prima facie a political criminal, France demanded that England should give him up and should request his extradition in a formal way, but England refused to comply with this demand, and the parties, therefore, agreed to have the conflict decided by the Court of Arbitration at the Hague. The award, while admitting that an irregularity had been committed by the reconduction of Savarkar to the British vessel, decided, correctly, I believe, in favour of Great Britain, asserting that there was no rule of International Law imposing, in circumstances such as those which have been set out above, any obligation on the Power which has in its custody a prisoner, to restore him on account of a mistake committed by the foreign agent who delivered him up to that Power.[681] It should be mentioned that the French Government had been previously informed of the fact that Savarkar would be a prisoner on board the Morea while she was calling at Marseilles, and had agreed to this.
[681] See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil général de Jurisprudence, de Doctrine et de Législation coloniales," 1911), who defends the French view. The award of the Court of Arbitration has been severely criticised by Baty in the Law Magazine and Review, XXXVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp. 202-211; Strupp, "Zwei praktische Fälle aus dem Völkerrecht" (1911), pp. 12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel in R.I. 2nd Ser. XIII. (1911), pp. 370-403.