Legal framework

Extradition is a legal process between two states during which one state formally requests the return of an individual (citizen or not) to put that person on trial for crimes under the requesting state’s laws. Individuals requested for extradition are generally charged with a crime but have yet to be tried; they can also include those who have been tried and escaped, or those convicted in their absence.

The validity of an extradition request relies on a few factors. Generally, extradition procedures rely on treaties between countries or multilateral agreements. When an individual is arrested for extradition in a host country, that country’s judicial system reviews the extradition to verify the request complies with any extradition treaty between it and the requesting country as well as the host country’s own laws.

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Extradition request assessment principles

Extradition requests are usually also assessed through the following principles:

  • Double (dual) criminality
  • The rule of specialty
  • The non-extradition of nationals
  • Risk of persecution in the requesting State
  • The political offense exception
  • Risk of unfair trial in the requesting State
  • Double jeopardy (ne bis in idem)
  • The non-discrimination clause

Theoretically, those extradited are then given a fair trial by an independent judiciary in the requesting country and sentenced accordingly. But in practice, the system can be wrought with abuse especially when states request individuals back for political reasons disguised as crimes, or when states request individuals and upon extradition of the individual, ignore rule of law processes and commit abuses like torture to guarantee a guilty conviction or ignore diplomatic assurances and use the death penalty. In doing so, this undermines fundamental principles of rule of law for all States involved. 

A core aspect of extradition is not sending any individual – guilty of a crime or not – to a place where there is a likelihood of torture. The fundamental prohibition against torture is part of customary international law and thus binding on all States. Torture is defined and prohibited in the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Second Optional Protocol, the Universal Declaration of Human Rights (UDHR, Article 5), the International Covenant on Civil and Political Rights (ICCPR, Article 7) and its Second Optional Protocol. Torture is also defined and prohibited in numerous supranational conventions and regional declarations, including the ASEAN Human Rights Declaration (ASEANHRD, Article 14), the European Convention on Human Rights (ECHR, Article 3), the American Declaration of Human Rights (ADHR, Article 5) and the Inter-American Convention to Prevent and Punish Torture (IACPPT).

The corollary principle of non-refoulement prohibits, under all circumstances, the transfer or removal of an individual from one State to another where there are 

substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violation (OHCHR).

The principle of non-refoulement forms a foundational cornerstone of international human rights, refugee and customary law. Non-refoulement is non-derogable, meaning there are no exceptions, and international law has established the absolute prohibition of refoulement, even in the face of national security.

To determine the existence of substantial grounds (i.e., likelihood of abuse or torture) that would amount to a violation of non-refoulement, the UN Committee Against Torture’s General Comment No. 4, para. 29, lays out the conditions States should consider for the purpose of extradition (among other issues):

  1. The right to a fair trial
    1. The right to a public hearing
    2. The independence of the judiciary
    3. The independence of lawyers
    4. The right to a lawyer of one’s choice
    5. The right to the presumption of innocence
  2. Torture / cruel, inhuman, or degrading treatment
  3. The death penalty / enforced disappearances
  4. Reprisals to family and others (i.e., collective punishment)
  5. Slavery or forced labor

Non-refoulement thus becomes an issue when there are substantial grounds for believing someone is at risk of abuse, including torture, either as an individual or as a member of a group – regardless of their standing as a refugee, pending criminal charges, or any other factors. According to the UN Committee Against Torture (CAT), evidence for substantial grounds for concern of abuse, include: 

the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.  (CAT)

Notably, in extradition cases, the potential culpability or alleged crime of the individual in question is not the principle crux of cases in international law here; rather it is the analysis and judgement through international law on the principle of torture and non-refoulement – i.e., would the individual be harmed upon return to the point of violating international law?

There is no legal requirement to comply with an extradition request; instead, it is a legal requirement for the country requested to extradite an individual to properly analyze the request and ensure adherence to international law, specifically on torture and non-refoulement. Extradition requests by China are often denied in different jurisdictions due to the PRC’s systematic risk of torture and the death penalty, but other reasons include the nationality of the defendant (China doesn’t recognize dual citizenship but will often request extradition of its former citizens who have new citizenship status in other countries, PRC Nationality Law, Article 9), and the lack of fundamental rights like the right to a fair trial and independent judiciary.

When countries skirt the legal process in extraditions to the PRC (or anywhere else), those countries participate in undermining international law and the rule-based system of human rights. By ensuring extraditions are dealt with according to international standards and not as favors to the PRC, countries hold the PRC accountable to international law, rather than bending themselves to fit lower standards.

Safeguard Defenders has not, and does not, directly take on any extradition case on behalf of any individual. We do however support legal counsel working on extradition cases to protect internationally recognized judicial safeguards. and adherence to the rule of law and universal human rights. 

The elements of a fair trial are further delineated by the following: the right to a public hearing, the independence of the judiciary, the independence of lawyers, the right to effective access to a lawyer of one’s choosing, and the presumption of innocence.

InstrumentFair trialPublic hearingJudicial independenceIndependence of lawyersCounsel of choosing / accessPresumption of innocence
UDHRArt 10Art 10Art 10——Art 11(1)
American DeclarationArt XVIIIArt XXVI———Art XXVI
ASEAN HRDArt 20Art 20(1)Art 20(1)——Art 20(1)
ICCPRArt 14Art 14(1)Art 14(1)—Art 14(3)(b–d)Art 14(2)
ECHRArt 6Art 6(1)Art 6(1)—Art 6(3)(c)Art 6(2)
American ConventionArt 8Art 8(5)Art 8(1)—Art 8(2)(d)–(e)Art 8(2)
African CharterArt 7Art 7Arts 7 & 26—Art 7(1)(c)Art 7(1)(b)
EU CharterArt 47Art 47Art 47——Art 48(1)
Arab CharterArt 16Art 13(1)Art 13(1)Art 16(3)Art 16(3)–(4)Art 16
UN Basic Principles (Lawyers)———Principle 5Principles 15–16—

 

Other guidance relating to the right to a fair trial:

  • UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, 23 August 2007. 
  • Office of the High Commissioner on Human Rights, Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Source. 
  • UN Office of Drugs and Crime, The Bangalore Principles of Judicial Conduct 2002, Values 1.1 and 1.3.

Core treaties and guidance

  • Convention against Torture (CAT): non-refoulement to risk of torture (Article 3) and obligation to prevent cruel, inhuman or degrading treatment or punishment (Article 16)

  • CAT Optional Protocol: prevention system (international and national visits) for places of detention

    … unlike over 120 States, the Government of China has not issued a standing invitation to UN independent experts to conduct official visits. In the last decade, despite many requests by Special Procedures, the Government has permitted only five visits by independent experts (pertaining to rights involving food, discrimination against women and girls, foreign debt, extreme poverty and older persons). (UN experts, 2020)

  • ICCPR: absolute ban on torture/CIDT (Article 7) and humane treatment of detainees (Art. 10).

Regional human rights instruments and declarations

Detention-condition benchmarks 

  • UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)—GA A/RES/70/175
  • Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment—GA 43/173

Core treaties and guidance

  • ICCPR: Right to life (Article 6). States must not expose someone to a real risk of violations of Article 6 through removal. The Human Rights Committee’s General Comment No. 36 (2018) makes this explicit for extradition.
  • Second Optional Protocol to the ICCPR (1989) — treaty obligation to abolish the death penalty; reinforces that abolitionist States must not be complicit in executions abroad. 
  • CAT: non-refoulement — while not a per se death-penalty ban, CAT bars removal where the manner or conditions (e.g., death-row phenomenon, execution methods) would amount to torture/cruel, inhuman or degrading treatment.
  • UN Economic and Social Council: Safeguards guaranteeing protection of the rights of those facing the death penalty (1984/50) — authoritative minimum standards for capital cases; often cited to show heightened risk where the receiving State falls short.
  • UNGA Moratorium on the use of the death penalty (A/RES/62/149, 2007): Expresses deep concern about the continued application of the death penalty and calls on States that have abolished the death penalty not to reintroduce it (occasionally cited in extradition cases to note risks of death penalty). 

Regional human rights instruments

  • ECHR Protocol No. 6 (1983) and Protocol No. 13 (2002): abolition of the death penalty (No. 13 in all circumstances) across the Council of Europe space. 
  • ECHR, Article 3: (absolute ban on inhuman/degrading treatment) as applied in Soering v. UK (1989): extradition to face the death-row phenomenon would violate Article 3. Al-Saadoon & Mufdhi v. UK  (2010) also confirms that transfers are barred where there is a real risk of execution.
  • EU Charter of Fundamental Rights, Article 2(2): prohibits the death penalty; Article 19(2): no removal/extradition to a State where there is a serious risk of the death penalty, torture, or cruel, inhuman or degrading treatment.
  • American Convention on Human Rights, Article 4: (limits capital punishment and requires amnesty mechanism) and the Protocol to Abolish the Death Penalty (1990). [Note: The Inter-American Court has required robust scrutiny/assurances before extradition where death penalty is possible including to the PRC. See Judicial Precedents page, Wong Ho Wing v. Peru, 2015.] 
  • African Charter, Article 4: Right to life, as interpreted by the African Commission’s General Comment No. 3 (2015): States that have abolished the death penalty “shall not … facilitate executions in retentionist States through refoulement, extradition, [or] deportation.” 

Core treaties and guidance

  • International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), Article 16: No State Party shall expel, return (refouler), surrender or extradite a person where there are substantial grounds for believing they would be subjected to enforced disappearance. (Also defines the crime and prohibits secret detention.) 
    • Committee on Enforced Disappearances (CED), General Comment No. 1 (2023): Clarifies non-refoulement risk assessment, due diligence, and safeguards when removal is contemplated (including for extradition) 
  • ICCPR — Non-refoulement under the Covenant: States must not remove someone to a real risk of irreparable harm to Covenant rights; enforced disappearance engages Articles 6, 7, 9, 16. 
    • See Human Rights Committee (HRC) General Comment No. 31 (12: “obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial  grounds for believing that there is a real risk of irreparable harm, such as that contemplated by  Articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.”)
    • HRC General Comment No. 36 (Article 6: “The duty to respect and ensure the right to life requires States parties to refrain from deporting, extraditing or otherwise transferring individuals to countries in which there are substantial grounds for believing that a real risk exists that their right to life under article 6 of the Covenant would be violated.”), and HRC General Comment No. 35 (explains that Article 9 applies to those in extradition proceedings and guarantees liberty and security of the individual, i.e., in extradition proceedings, an individual must not be arbitrarily detained).
  • UN Declaration on the Protection of Persons from Enforced Disappearance All (1992): details State duties to prevent disappearances including in cases of extradition/returns. 

Regional human rights instruments

  • ECHR: Prevents removal where there is a real risk of treatment contrary to Article 3, and Article 5, which guarantees liberty and security (abduction and enforced disappearance violates both articles)
  • EU Charter of Fundamental Rights, Article 19(2): bars removal/extradition where there is a serious risk of torture or other inhuman or degrading treatment; used to block transfers where enforced disappearance risk is credibly shown. 
  • Inter-American Convention on Forced Disappearance of Persons (1994): regional treaty outlining legal obligations to prevent/punish forced disappearance 
  • African Charter (Articles 4, 5, 6) and ACHPR Guidelines on the Protection of All Persons from Enforced Disappearances in Africa (2022) — region-specific standards for prevention, investigation and protection (used to assess risk on return and the adequacy of proposed safeguards/assurances). 
  • ICCPR, Article 8: bans slavery/servitude/forced labor
  • UDHR, Article 4: Baseline norm against slavery/servitude 
  • Slavery Convention (1926) and Supplementary Convention (1956): Definition and prohibition of slavery, also outlines State duties when assessing return to countries with known practices of forced labor. 
  • ECHR, Article 4: (slavery/forced labor) where removal would foreseeably expose someone to such abuse, States must not transfer/extradite
  • American Convention on Human Rights (ACHR), Article 6: (slavery/forced labor); Article 22(8) (non-refoulement). These provisions support non-removal where there is a real risk of slavery/forced labor/trafficking.
  • ACHPR, Article 5: Regional baseline against slavery/ill-treatment — can be used to assess risk on returns and to frame State obligations.
  • Arab Charter on Human Rights, Article 10: explicit prohibitions on slavery/forced labor and trafficking.
  • ASEAN Human Rights Declaration, Article 13: Affirms the prohibition of slavery and trafficking.
Diplomatic Assurances

Diplomatic assurances are generally understood as state-to-state undertakings, sought in the context of a transfer (deportation, expulsion, extradition or similar), by which the receiving State promises that the person will be treated in line with conditions insisted upon by the sending State or, more broadly, with its human-rights obligations. 

CAT General Comment No. 4 defines diplomatic assurances as: “a formal commitment by the receiving State to the effect that the person concerned will be treated in accordance with conditions set by the sending State and in accordance with international human rights standards.”

For many years, commentary at the UN level cautioned against the use of assurances. As Manfred Nowak UN Special Rapporteur on Torture Manfred Nowak warned in 2010, “Diplomatic assurances related to torture are nothing but an attempt to circumvent the absolute nature of the principle of non-refoulement.” 

However, in Kim v. New Zealand, the Human Rights Committee reviewed diplomatic assurances offered by China to New Zealand. Interestingly, the case concerned the extradition of Kyung Yup Kim, a national of the Republic of Korea, not the PRC. While the Committee did not formally “authorize” extradition, it held that New Zealand’s decision to surrender Mr. Kim to China, on the basis of extensive diplomatic assurances and a detailed monitoring mechanism, did not violate article 7 ICCPR, and thus implicitly accepted the adequacy of those assurances for non-refoulement purposes, subject only to a separate finding of arbitrary detention under article 9(1) for a limited period. 
In a more recent case, however, the Committee Against Torture found a violation of CAT article 3 for Yidiresi Aishan, based both on the actual human rights situation in China and the personalized risk to Mr. Aishan. 
At the regional court level, when diplomatic assurances arise, it is where there is a precedent showing systematic torture in China.

Related links
European Convention on Extradition (1957)
ECtHR Khasanov and Rakhmanov v. Russia
ECtHR Othman (Abu Qatada) v. The United Kingdom
ECtHR Liu v. Poland
Convention against Torture
Optional Protocol to CAT
International Convention on Enforced Disappearance
European Convention on Human Rights