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William Julié
WJ Avocats, Paris
wj@wjavocats.com

Juliette Fauvarque
WJ Avocats, Paris
juliette.fauvarque@gmail.com

 

The astonishing escape of Carlos Ghosn from Japan to Lebanon in January 2020 has renewed attention to the rule against the extradition of nationals, a principle that unequally applies across states’ extradition laws and practices.

Japan did not seek the billionaire’s extradition from Lebanon following the incident. Although the two states have not signed a bilateral extradition request, Japan could have lodged an ad hoc extradition request with Lebanese authorities, as Lebanon may examine and accede to an extradition request without a treaty, on the basis of its national legislation. However, Carlos Ghosn’s Lebanese nationality and Lebanon’s strong commitment to the ban on the extradition of nationals made it pointless for Japan to issue a request.^[1]

Yet several press articles reported that in 2019, Lebanon had granted the extradition of a dual American-Lebanese citizen, Ali Salameh, to the United States. When asked about the potential consequences of this precedent for Carlos Ghosn, the Lebanese Minister of Justice, Albert Serhan, declared that the extradition of Ali Salameh was justified by the fact that ‘Salameh held dual nationality, Lebanese and American, while Carlos Ghosn is not Japanese’,^[2] thereby suggesting that the rule against the extradition of nationals could be excluded when the requested person is also a national of the requesting state. This instance appears as an unprecedented situation in the modern practice of states which, like Lebanon, have been committed to the rule against the extradition of nationals.

Many other states are known to oppose the extradition of nationals, primarily in civil law countries. The nationality ban is considered a constitutional principle in some civil law jurisdictions (eg, in Austria, Estonia, Germany, Greece, Poland and Portugal), and a legislative principle in others (eg, in Chile, France, Lebanon, Qatar, Slovenia). By contrast, common law jurisdictions, including Australia, the United Kingdom, and the US, do not oppose extradition on the ground of nationality. As a result of these differences in domestic legislations and state practices, international treaties pertaining to extradition generally leave contracting states a right not to extradite their nationals, so as to accommodate each state’s legal tradition and custom.

The nationality exception to extradition has experienced a significant decline with the coming into force of the European Arrest Warrant (EAW) framework decision in 2004. The framework decision has effectively abolished the possibility for Member States to refuse surrender on the ground of nationality when the EAW is issued for the purpose of prosecution, as opposed to executing a custodial sentence, where nationality remains an optional ground for non-execution.^[3] As a result, many civil law jurisdictions execute requests for surrender pursuant to EAWs against their own citizens. Nevertheless, the EU-UK Trade and Cooperation Agreement, which came into force on 1 January 2021, has reintroduced the possibility for states to deny extradition on the ground that the requested person is a national of the requested state, along with the resurgence of the political offence exception.

More surprisingly, some civil law jurisdictions have also excluded the nationality exception in extradition treaties signed with non-European states. Italy, for example, as a civil law jurisdiction, has a tradition of refusing the extradition of its citizens, yet in 1983 it signed an extradition treaty with the US which provides that ‘[a] Requested Party shall not decline to extradite a person because such a person is a national of the Requested Party’.^[4] This treaty-based exception appears compatible with the practice of states which do not confer the protection of nationals from extradition constitutional status. It is noteworthy in this regard that the French Conseil d’État has specifically recognised that even though France has not extradited a French citizen since the 19th century (outside of the EAW framework), the rule against the extradition of nationals, does not, per se, constitute a constitutional principle.^[5]

We may, therefore, ask whether the rule against the extradition of nationals constitutes a binding principle of law, or whether it must be regarded as a political principle guiding inter-state extradition matters. In the latter scenario, the rule could well come to be ignored in the future, even by civil law jurisdictions, without triggering any breach of domestic or international norms.

This article intends to reflect on the nature of the rule against the extradition of nationals, by looking first at its origins, followed by its evolution. Its final part will then explore the strengths and limits of the principle under French extradition law. In doing so, it will endeavour to outline some of the legal weaknesses of the rule, so as to conclude that there is no absolute, legal ban on the extradition of nationals under French law.

Nationality as a ban on extradition: a historical division between common law and civil law jurisdictions

The observance of the rule against the extradition of nationals appears as a distinctive feature of civil law jurisdictions, as opposed to common law jurisdictions. Typically, the Australia, the UK and the US, do not oppose the extradition of their citizens. By contrast, countries such as Austria, Cyprus,^[6] Estonia, Germany,^[7] Greece, Poland and Portugal, have inscribed the rule in their national constitutions. Others, such as Chile, France, Lebanon, Qatar and Slovenia, have codified the principle in their domestic legislation. As a result, most international treaties pertaining to extradition signed between civil law jurisdictions generally contain a clear rule against the extradition of nationals.^[8]

Yet civil law jurisdictions have not always refused the extradition of nationals. In fact, Roman law actually imposed that native Roman citizens be surrendered to foreign prisons or justice in some circumstances.^[9] The history of international relations during The Middle Ages or the Modern Times does not suggest a trend against the extradition of nationals either, as may be demonstrated by a 1765 Convention between France and Spain, or a 1777 Convention between France and Switzerland, which both allowed for the extradition of nationals.^[10]

The first application of the rule against the extradition of nationals can be traced back to an extradition request made by King James II of England to Holland in respect of a naturalised Dutch citizen, on the basis of a bilateral treaty concluded between England and the Dutch Republic in 1662. But it is not until the 19th century that the nationality exception to extradition effectively spread across continental Europe. In France, it was affirmed for the first time in an 1834 bilateral treaty with Belgium. The principle was then included into domestic law for the first time in 1941 by a ministerial decree.

Behind this emerging protection of nationals from extradition was the idea that one had a fundamental right to be tried by the judge of one’s own country. When the Dutch Republic refused to grant the United Kingdom’s extradition request in 1662, it precisely justified this denial on the ground that only national judges had jurisdiction to prosecute a case against a Dutch national. This theory, which made jurisdiction conditional on nationality, did not find much support in positive law as the principle of territorial jurisdiction was rapidly asserted by every state. The development of bilateral and multilateral extradition treaties in the 19th century also made it clear that there was no such thing as a right to be tried by one’s national courts, but that jurisdiction was mainly territorial instead. The prevalence of territorial jurisdiction therefore justified the development of extradition treaties, in the name of inter-state cooperation, as each state was willing to recognise the legitimacy for a sovereign state to assert its criminal jurisdiction over any person who was alleged to have committed a crime on its territory, irrespective of their nationality.

In this regard, the fact that a state would refuse to extradite its nationals is not self-evident. This opposition, between the well-established principle of territorial jurisdiction on the one hand, and the legitimate interest for a state to protect its citizens from foreign justice on the other, explains why there is no uniform rule prescribing or banning the extradition of nationals in international law or state practice.

As a matter of fact, different international treaties pertaining to extradition bring different solutions to the question of whether a state should extradite its nationals, and under which conditions. International treaties ratified between two civil law states, which traditionally refuse the extradition of nationals, generally contain a clear rule to that extent.^[11] By contrast, international treaties signed between a civil law and a common law state often resort to an optional formula, in deference to each contracting party’s legal tradition. Typically, Article 3 of the Extradition Treaty between France and the US^[12] provides that ‘[t]here is no obligation upon the Requested State to grant the extradition of a person who is a national of the Requested State, but the executive authority of the United States shall have the power to surrender a national of the United States if, in its discretion, it deems it proper to do so […]’.

The same can be said of multilateral agreements, such as the European Convention on Extradition 1957,^[13] Article 6 of which gives contracting states a ‘right to refuse extradition of its nationals’.^[14] Declarations made by states in respect of this provision clearly allude to the variety of approaches towards the status of nationality in extradition matters. For example, in its instrument of ratification, deposited on 10 February 1986, France made the following declaration pursuant to Article 6: ‘Extradition shall be refused when the person sought had French nationality at the time of the alleged offence’. Many states have made similar declarations, although some have adapted – by way of extension or restriction – the scope of the rule. For example, Poland has declared that ‘it will under no circumstances extradite its own nationals’, and that ‘for the purposes of this Convention, in accordance with paragraph 1 (b) of Article 6, persons granted asylum in Poland will be treated as Polish nationals’. By contrast, the Netherlands declared that nationals may not be extradited ‘for the purposes of the enforcement of penalties or other measures’, but may be extradited ‘for purposes of prosecution if the requesting State provides a guarantee that the person claimed may be returned to the Netherlands to serve his sentence there if, following his extradition, a custodial sentence other than a suspended sentence or a measure depriving him of his liberty is imposed upon him’. Finally, states such as the Republic of Ireland or the UK have simply not indicated their intention to avail themselves of the right to refuse the surrender of nationals under Article 6. These examples show that different states have different conceptions of the principle against the extradition of nationals: its application may be excluded, extended to non-nationals who are residents or refugees in the requested state, but it may also be restricted to a specific type of request, namely an extradition request for the purpose of implementing a custodial sentence.

As a result, there can be no clearly defined rule pertaining to extradition of nationals under international law. The better proposition is rather that international treaties are careful to leave states with an option to refuse the extradition of nationals, and that civil law states have, for the most part, remained faithful to the rule against the extradition of nationals.

The progressive decline of the nationality ban on extradition between EU Member States

European Union Member States have long sought to go further than the European Convention on Extradition 1957 in an effort to facilitate extradition and other aspects of criminal cooperation.

In 1992, the signature of the Maastricht Treaty led to the creation of the three pillars structure of the EU. Within the framework of the third pillar, which concerned judicial cooperation in criminal matters, several EU Member States signed the Convention of 10 March 1995 on simplified extradition procedure,^[15] and the Convention of 27 September 1996 relating to extradition between EU Member States.^[16] Article 7 of the 1996 Convention abolished, for the first time, the nationality exception: ‘[e]xtradition may not be refused on the ground that the person claimed is a national of the requested Member State within the meaning of Article 6 of the European Convention on Extradition.’ This provision represented a major breakthrough as most contracting parties had a long-term practice of refusing the surrender of nationals to other sovereign states, whether for the purpose of prosecution or execution of a custodial sentence. The same convention also abolished the political offence exception and outlawed the possibility for a state to refuse extradition on the ground that the prosecution or punishment of the person would be statute-barred according to its legislation.

The 1996 Convention was replaced by the European Arrest Warrant Framework Decision of 13 June 2002, which came into force on 1 January 2004 and binds all EU Member States. The EAW not only replaced the former rigid, political extradition procedure with a speedy, judicial extradition procedure, it also excluded a number of traditional grounds for non-execution such as nationality, and, to a large extent, lack of dual criminality. Member States, therefore, surrender their own citizens to other Member States pursuant to the EAW Framework Decision. Noteworthy examples include the 2014 surrender of Mehdi Nemmouche, perpetrator of the Brussels Jewish Museum attack, by French to Belgian authorities, and the 2010 surrender of Aurore Martin, who was accused of terrorist offences in relation to the Basque conflict, by French to Spanish authorities. She became the first French citizen to be surrendered to foreign authorities for the purpose of prosecution.

Nonetheless, the surrender of nationals is not self-evident, even within the EU. First, several Member States such as Cyprus, Germany and Poland have had to amend their national constitutions to introduce an exception to the constitutional ban on the extradition of nationals. Second, some states continue to apply the nationality ban when the EAW is issued for the purpose of execution of a custodial sentence as opposed to prosecution. This is typically the practice of the Dutch State, which avails itself of Article 4.6 of the Framework Decision not to surrender Dutch nationals for the purpose of executing a custodial sentence. The fact that the Netherlands observes the same practice with regards to extradition of nationals in their relations with Member States of the EU and third countries shows that the protection of nationals from extradition may still override the mutual trust which underlies criminal cooperation in the EU. Third, even executing authorities of Member States who do not, in theory, oppose the surrender of their nationals for the purpose of executing judgments, generally request the issuing authority’s permission to execute the sentence in a national prison instead.

The best illustration of this attachment to the protection of nationals in international criminal matters is probably the resurgence of the nationality ban in the EU-UK Trade and Cooperation Agreement, which came into force on 1 January 2021. Even though the first paragraph of Article 83 provides that ‘[t]he execution of an arrest warrant may not be refused on the grounds that the requested person is a national of the executing State’, the second paragraph goes on to explain that ‘[t]he United Kingdom, and the EU, acting on behalf of any of its Member States, may each notify the Specialised Committee on Law Enforcement and Judicial Cooperation that that State’s own nationals will not be surrendered or that the surrender of their own nationals will be authorised only under certain specified conditions’. It is highly likely that in accordance with this provision Member States with a civil law tradition will shortly notify the Specialised Committee on Law Enforcement and Judicial Cooperation of their intention not to surrender their nationals (or to do so under conditions) pursuant to the agreement.

In fact, a notice of the French Minister of Justice has recently announced that the French government will issue such a declaration shortly.^[17] The fact that the French government and others will put an end to the surrender of nationals to the UK under the new cooperation agreement is arguably a significant step backwards and shows that civil law jurisdictions retain a strong attachment to the protection of their citizens from extradition, even in their relations with countries who share equivalent (or even higher) human rights standards.

The possible limits of the nationality ban under French law

It is a well-known fact that France does not extradite its citizens. When the two French pilots involved in the ‘Air Cocaine’ smuggling scandal escaped from the Dominican Republic to France, it was clear that they would not be extradited back to Santo-Domingo. The two pilots had been held for 15 months pending trial in the Dominican Republic before being convicted and sentenced to 20 years imprisonment. Released pending their appeal, they were able to escape in mysterious circumstances to the French Caribbean territory of Saint Martin. They were arrested a few days after their arrival in mainland France and the government made it clear that they would be tried in France, as they were protected from extradition on the ground of their citizenship.

The ban against the extradition of nationals is based on Article 696-4 of the French Code of Criminal Procedure, which states that extradition shall not be granted when the requested person is a French national and that nationality shall be assessed at the time of the facts in respect of which extradition is sought (‘Extradition is not granted: 1. When the person sought has the French nationality, the latter being assessed at the time of the offence for which extradition is requested’).^[18] The rule under Article 696-4, like other provisions of the Code governing the procedure and effects of extradition, only applies ‘in the absence of an international convention stipulating otherwise.’^[19] Therefore, international agreements may, in theory, provide otherwise and allow the French government to grant extradition requests in respect of French citizens.

The majority of bilateral international agreements pertaining to extradition signed and ratified by France contain a clear rule against the extradition of French citizens.^[20] As regards multilateral agreements, France has made the following declaration pursuant to Article 6 of the European Convention on Extradition 1957, which gives Contracting States the right to refuse extradition of nationals: ‘Extradition shall be refused when the person sought had French nationality at the time of the alleged offence’.^[21] Therefore, France does not surrender French citizens under the European Convention on Extradition.

These international agreements must be distinguished from a number of other treaties signed and ratified by France, which, by contrast, do not contain such a clear ban on the extradition of French citizens, but merely state that there is ‘no obligation’ on the requested state to grant the extradition of a person who is a national of the requested state. Typically, Article 3(1)of the above-mentioned Extradition Treaty between France and the US provides that ‘[t]here is no obligation upon the Requested State to grant the extradition of a person who is a national of the Requested State, but the executive authority of the United States shall have the power to surrender a national of the United States if, in its discretion, it deems it proper to do so. The nationality of the person sought shall be the nationality of that person at the time the offense was committed.’ If extradition is refused solely on the basis of the nationality of the person sought, Article 3(2) requires the requested state to submit the case to its authorities for prosecution, if so requested by the requesting state. In a similar vein, Article 3 of the Extradition Treaty between Canada and France, signed in Ottawa on 17 November 1988, provides that: ‘[t]he requested State shall not be bound to extradite its own nationals. Nationality shall be determined as of the date of the offence for which extradition is requested.’

The phrasing of these international agreements, which do not contain a clear ban on the extradition of nationals, raises some important questions. In particular, could France decide to extradite its nationals on the basis of these international agreements without breaking applicable international law, EU law or French constitutional law? How likely is it that the French government would overturn its policy and decide to issue an extradition degree against one of its own citizens under Canadian or US treaties?

As outlined in Part I, there is no uniform rule or practice regarding the extradition of nationals under international law. Therefore, if France were to order the extradition of a French citizen to Canada or the US, the requested person could not challenge that order on the basis of international law.

The same applies to EU law. We saw above, that Article 6 of the European Convention on Extradition 1957 provides states with a discretionary right on whether or not to extradite their own citizens. As regards EU law, it is clear that it does not ban the extradition of nationals but contains a reversed principle instead: the nationality ban cannot be invoked where the EAW is issued for the purpose of prosecution, and it may be invoked when the European Arrest Warrant is issued for the purpose of executing a custodial sentence. It follows that EU law does not prohibit the extradition of nationals.

As regards the status of the protection of nationals from extradition under French law, the fact that France did not have to change its Constitution or domestic laws to incorporate the possibility of surrendering French nationals pursuant to the EAW Framework Decision effectively means that the ban on the surrender of a French citizen to foreign authorities does not constitute an absolute prohibition under French law.^[22] The French Constitutional Court has long considered that France could not ratify an international amendment which went against the Constitution, thereby necessitating a modification of the text of the Constitution prior to the ratification of the purported international treaty.^[23] For example, the French Constitution had to be amended prior to the ratification of the Rome Statute, to create an exception to the rule that the President of the Republic cannot be found criminally liable in respect of acts committed during their mandate. By contrast, the provisions of the Rome Statute which require Contracting Parties to surrender their nationals when the jurisdiction of the International Criminal Court is established did not trigger an amendment of the Constitution. Like the EAW Framework Decision, the Rome Statute example must be taken as evidence that there is no constitutional principle against the extradition of nationals in France.

The Conseil d’Etat (Supreme French Administrative Court) was once asked by the French government to deliver an opinion precisely on this point. It stated that even though the French government has not extradited a French citizen for more than a century, the government’s practice of refusing the extradition of nationals ‘finds no basis in a principle of constitutional value. None of the rights and liberties of the citizen, as proclaimed by the Declaration of the Rights of Men and Citizens of 1789 and by the preamble of the Constitution of 1946, implies that nationals cannot be extradited […] No doubt the laws adopted and the international conventions signed by France attest to the authority of the rule that nationals are not extradited. But, in support of this rule, there are no grounds for considering it as a fundamental principle recognised by the laws of the Republic, having constitutional value by virtue of the Preamble to the Constitution of 1946.’^[24]

Therefore, the French Constitution does not prevent the executive from extraditing French citizens. It follows from the above that the decision to apply the principle against the extradition of nationals is a matter for the executive and could be reversed without breaching French constitutional law, EU law or international law.