Extradition Processes under different Legal Systems

Under the international legal cooperation systems, extradition is regarded as one of the highest forms of good faith in the fight against international crime(Subramanian, 2014). The process refers to the surrendering of a person or people who are either suspected or accused of a certain crime to another state. Extradition treaties are made between the state which has held the criminal and the home state of the criminal. If surrendering of the criminal is done, the criminal may be tried in the receiving country or convicted there under the same legal conditions as the extraditing country. In most cases, when foreigners are arrested in a country, the law allows their home state to request for their extradition to be tried and possibly convicted at home(Wouters & Naert, 2004).

The process, however, is very different under different legal systems. Under the international law, for instance, any country that has foreigners as prisoners or accused cannot be obliged to extradite all to a foreign state(Fitzpatrick, 2002). This is because as a sovereign state, the country already has legal authority over all the people within its borders. However, extradition can still happen under a treaty between the two countries(Subramanian, 2014). The Sharia law, however, has a different process. Suspects under the Sharia law cannot be tried and convicted in a legal system that does not have Sharia law as a component. This paper will explore and compare the extradition processes in the Sharia Law and the Common Law legal systems. This topic is of importance because it helps understand more about the application of international law and its concepts. Secondly, understanding the extradition process will allow better comprehension of the possibility, or lack of, of extradition cooperation between countries. Thirdly, it is a very important topic in understanding the differences between the Sharia Law and other legal systems and therefore form a basis for future research into the legal systems.

Articles Review

Article 1.

Wouters, J., &Naert, F. (2004). Of arrest warrants, terrorist offenses, and extradition deals: An appraisal of the EU’s main criminal law measures against terrorism after “11 September.” Common Market Law Review.

This article focuses on the review of the criminal law measures in the European Union, a common law country, against terrorism especially after the terrorist attack in the USA. The process of extradition according to this review of systems was based on the need for countries to cooperate in criminal matters. The European Union declared the need to share legal assistance with all other countries with similar and congruent legal systems. However, the provisions of this review do not consider countries with divergent or special legal systems such as Sharia Law. This indicates the possible difficulty in cooperation between EU and such countries.

Article 2.

Fitzpatrick, J. (2002). Extradition, Politics, and Human Rights. The International Migration Review, 36, 259. Retrieved from http://search.proquest.com/docview/60282633

The article shifts the focus from the provisions of major extradition laws and focuses directly on the political and human rights implications of extradition processes as practices in various countries. This article is very important in understanding the differences in human rights implications of extradition under different legal systems. In this article, the author calls for a rethinking of major extradition processes based on ethical and political considerations. In the article, the author relates extradition to slavery and compares its application in various incidences in America and beyond.

Article 3.

Rebane, K. I. (1995). Extradition and Individual Rights: The Need for an International Criminal Court to Safeguard Individual Rights. Fordham International Law Journal, 19(4), 1635–1685.

This article clearly demands the interventions of the International Criminal Court as a move to safeguard the rights of individuals put under extradition process. The article focuses on several occasions where individual rights in the common law, Sharia law, and Civil law legal systems have failed to take into serious consideration the rights of individuals. The article, therefore, provides a deeper insight into the human rights perspectives of extradition and helps to further compare the different legal systems.

Article 4.

Riaz, S. (2013). Transformation of extradition to rendition a critical legal history. HamdardIslamicus, 36(2), 75–102. Retrieved from http://www.scopus.com/inward/record.url?eid=2-s2.0-84879911970&partnerID=tZOtx3y1

The purpose of this article is to review the historical perspective of extradition from the various legal systems perspectives. The article explains how extradition in most countries have transformed into rendition with some diverse legal and criminal implications. The article is important because of its focus on extradition transformation and its impact on international peace and order.

Article 5.

Subramanian, S. R. (2014). The role of human rights in extradition: the imperatives of reforming the Indian extradition law. Commonwealth Law Bulletin, 40(2), 233–253. http://doi.org/10.1080/03050718.2014.902321

This article is quite specific in its focus on human rights. The author attempts to use the case of India extradition law, and the part played human rights in the process of extradition. India is a common law country, and the focus will, therefore, increase the understanding of the common law practices regarding the process of extradition. The article is, therefore, very important in comparing the common law process of extradition to that of other legal systems.

Article 6.

Piel, J., Finkle, M. J., Giske, M., & Leong, G. B. (2015). Determining a Criminal Defendant’s Competency to Proceed with an Extradition Hearing. J Am Acad Psychiatry Law, 43, 201–9.

This article is very important in understanding the processes of extradition by exploring the competency tests of the criminal defendants. Different legal systems have different ways of determining how competent their legal personnel are regarding the extradition laws and their hearing. From the article, different methods of determining this competence are explored from the perspective of Sharia law, Common criminal law and the Civil law. All this is done under the limelight of international law.

Article 7.

Urbas, G. (2012). Cybercrime, jurisdiction, and extradition: the extended reach of cross-border law enforcement. Journal of Internet Law, 16(1), 1–17.

The purpose of this article is to explore the contemporary and rather current issues in extradition and legal cooperation between countries. The issue at stake here is cybercrime and the application of the extradition law in different legal systems to deal with the crime. This article is not only current but provides a better understanding of the evolution of extradition laws in diverse countries and under the different legal system.

Research Aims

The broad objective of this research is to compare the process of extradition in two legal systems applied and recognized in the world. The two systems to be focused on are Common law and Sharia law. The specific aims of the research are;

  1. To explore the human rights implication in the process of extradition in the two legal systems.
  2. To identify the major similarities and differences between the extradition process in the two legal systems.
  3. To explore how the process of extradition in the two legal systems determine the international relations between applicants of the two legal systems.
  4. To find out the evolution trends in extradition process in the two legal systems and predict the direction for the future of extradition.

Methodology

This comparative research will seek to establish the relationship between meta-theory and research implications. The research will make use of comparative research methodology. The research will make use of meta-analysis and systematic review as the research method. In this method, the researcher will explore the different articles published on both the common and sharia legal systems. More specifically, the research will systematically review the articles written regarding extradition and the legal cooperation between sovereign states.

The articles will be obtained from credible legal and political science journals with specific search terms and keywords. The databases to be used are CINHAL, EBSCO-HOST, and CENGAGE among other credible databases with peer reviewed articles. All the articles to be used will span from the 1990s to current and recently published articles. This will enable the research to focus on the historical perspective and the future projections regarding extradition. The articles that qualify for use in this research will be reviewed under the already specified research aims. Each of the aims will be explored separately and a conclusion made from the discussion that emanates from this review.

The keywords used in the search for articles are; extradition, human rights in extradition, Sharia versus common law, extradition in sharia law, and legal systems comparison.

Conclusion

From a legal perspective, the legal system regarded as common law is law developed by courts of justice, tribunals, and judges and is therefore characterized by case law. Every individual case under common law has an effect on the future cases of the same or related nature. In Sharia law, however, the law is dependent on revelations and not on the historical application of justice for similar cases(Rebane, 1995).

Through primary and secondary legislations, the common law derives the power to suspect, try and convict criminals in their sovereignty and jurisdictions. This ensures that all the countries that subscribe to common law have the uniformity in their ability to arrest and even try people who commit crimes within their jurisdictions(Riaz, 2013). In addition, this commonality allows for easy application of extradition treaties within these countries and also help the nation focus on a more elaborate and active legal cooperation. The Sharia legal system is however very different. In more than one area of application, Sharia law is guided by the authority that emanates from revelations by Allah and as communicated to The Prophet through the Quran and Sunnah. As a legal basis for dealing with issues relating to Muslims in the Islamic states and unofficially in other countries, the Sharia courts are rather incongruent to the common law that is applied in most other countries. These differences also exist in the extradition process which in Sharia law is based on the same authority. The difference lead to difficulties in establishing extradition treaties across the legal systems.

The articles reviewed demonstrated that there are differences between the Sharia and Common law legal systems regarding their application, regard to the international human rights recognition as well as in their implication to the sociopolitical environment in the world(Urbas, 2012). The extradition process under the two legal systems is also very different this leads to the differences in the application of law across the systems and also implicate on the legal cooperation expected especially with the increase in incidences of international crimes especially in drug and human trafficking and terrorism(Namli, 2013).

A better comparative understanding of the two legal systems is, therefore, necessary to establish the major similarities and differences between the legal systems and hence come up with the best strategies for the application of law peacefully across borders(Rehman, 2007). With the comparison mentioned in the broad objective of this research, it is possible to legally understand the extradite relationships between countries and achieve a better focus on the possibility of increased and enhanced international legal cooperation to counter terrorism and other international crimes.

 

 

 

 

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