There is a fine line within the judicial world between philosophy and ethics that has been contended within several controversial cases. The ethical dilemma has often been derived from whether the individual facing charges has been adequately protected as per the rights of which he/she is entitled to. This dilemma often arises in cases of extradition, an act in which one jurisdiction, usually a state, requests another jurisdiction to turn over an individual in order to stand trial or serve a sentence for crimes committed against that jurisdiction. It is a cooperative legal process that takes place on an international scale, and is determined by the arrangements made between the two nations. The extradition process begins with a formal request made by a sovereign jurisdiction to another. The fugitive is then arrested and subjected to an extradition process that has been established between the two jurisdictions in the form of a treaty. One of the fundamental principals in sovereignty is that the state has legal authority over people within its borders; therefore a natural accord is that the state is under no obligation in turning over an alleged criminal to a foreign country. Since no international obligations are enforceable, treaties or agreements of some kind have evolved and outlines specific terms and conditions for which an individual can be subjected to extradition.
The UK and US have an implemented a treaty known as the UK-US Extradition Treaty of 2003, which has been in use since 2007, however there have been controversies surrounding this agreement, notably as critics argue that certain articles are one sided. The treaty allows the US to extradite UK citizens even if the alleged crimes have been committed within UK borders, however this right is not reciprocated in favour of the UK. The second controversial aspect of the treaty is the level of proof required by each state to surrender an individual. The US has no requirement to present prima facie (sufficient corroborating) evidence in demanding extradition, requiring instead only reasonable suspicion. On the other hand, the UK is required to present probable cause in order to attain an extradition order, a step above reasonable doubt. Another concern, which plays a substantial role in protecting the individual being extradited, is his inability to gain legal aid that will provide him with an adequate defense against the criminal charges after being extradited.
Critics argue that ‘nations, in the zeal to prosecute terrorists and pursue fugitives, are trampling on the same fundamental human rights they espouse in the international forum’ (Rebane 1995). Various international agreements, embedded in our history, have propelled the importance of human rights across a variety of nations. The Council of Europe set up the European Convention on Human Rights in 1953 with the aim of reducing the atrocities and protecting humans in the post World War 2 era, and it consists of articles protecting the fundamental freedoms of all individuals. The war and the rise of National Socialism had severely impaired the protection of human rights. All 47-member states of the Council of Europe are party to convention and were enforced to secure these rights and freedoms to everyone within its jurisdictions.
In 1998, the UK issued a parliamentary act in which the goal was to incorporate the rights contained in European Convention of Human Rights within it’s domestic British law. This act of parliament was known as the Human Rights Act of 1998, and serves as a platform for UK citizens whose rights have been breached. Within the Convention, numerous of it’s articles can serve as adequate protection for an individual facing extradition. Article 2 of the Human Rights Act is the right to life, in which the law will protect everyone’s life. When it comes to extradition, this article is vital in a case, which includes a jurisdiction where the death penalty is still practiced. The majority of the States in the US still use the capital punishment, which poses an issue when facing possible extradition from jurisdictions in which it is abolished such as the UK, as they are party to the Convention. The Convention, as well as the Human Rights Act of 1998, also contains protocols, which are obligatory to all members of the council of Europe. Protocol 6 covers the abolishment of the death penalty with immediate effect.
The most pivotal aspect of the Human Rights Article 1998, in regards to extradition, is Article 3, a common defense strategy for individuals facing extradition. This article states that no individual shall be subjected to torture or to inhuman or degrading treatment. Extradition is an act that can have serious mental repercussions on the individual facing it, as well as facing possible physical forms of inhuman treatment once extradited. Article 3 serves as a protection from facing these challenges as seen in specific cases. Gary McKinnon, for instance, is a British hacker who stood to be extradited to the US facing charges related to his gaining access to Pentagon and NASA computer systems, a crime for which he could be charged up to 70 years in a US high security prison. Even though the criminal acts were conducted within UK Borders, the UK-US Extradition Treaty of 2003 disregards that factor as mentioned before, hence an extradition order was set out. His actions had cost the US government $700,000 in repairs, furthermore he had caused significant disruption to US networks, rendering them unreliable and ‘affecting the integrity of operational systems’. Gary McKinnon had admitted to gaining unauthorized access to these networks, however with the sole intention of gathering information on UFOs. A long legal battle took place with McKinnon attempting to evade extradition, however lost in various different courts in the UK and the European Court of Human Rights. The case took a turning point when he was diagnosed with Asperger’s Syndrome, a form of autism and had also been previously known to suffer from depressive illness. Additionally, threats of rape had allegedly been made towards McKinnon if he were to be extradited. Upon reviewing the case and information that has been brought light over the years, British Home Secretary Theresa May decides to block extradition for Gary McKinnon on that basis that he is seriously ill and an extradition could engrave his danger, further pose a high risk of him ending his life. Public authorities are prevented to perform an act deemed incompatible with Convention rights. The act of extradition, in this case, is incompatible with McKinnon’s human rights, specifically Article 3 of the Human Rights Act of 1998.
Another recent case where the Gary McKinnon case was used as a principal precedent was the Lauri Love case. Lauri Love, a British national, was accused with indictments that he conducted a series of cyber attacks against official US government agencies including the US Department of Defense and the US Army. He did so with the intention of extracting confidential information for public distribution. He was facing a jail sentence of up to 99 years, with a chance of solitary confinement. Love, as does Gary McKinnon, has Asperger’s Syndrome, which could potentially put his life at risk if he were to be extradited. He also suffered from eczema and certain mental conditions related to depression. His lawyers used the argument that extradition would violate Article 3 of the Human Rights Act of 1998 in light of his health and conditions he would be up against in the US and Article 8 as well. Article 8 includes the ‘right of respect for private and family life’. Love’s lawyers argued that denying him of home support and treatment is a substantial violation of his rights whilst his under these health conditions. He did not request to be exempted from all his charges, however an act of extradition would be detrimental for him, to the point of death. Love won his appeal against the United States Government, and the extradition was blocked. Further inquiry went on whether he would face trail for his crimes in the UK, however since all the evidence is found in US jurisdiction, the case was dropped.
In a slightly different case, Haroon Rashid Aswat, a British with origins in the Indian Subcontinent, had alleged ties to terrorist organization al-Qaeda, therefore American officials, with the full support of the UK, attempted to extradite him to the US. A judge had disregarded his risk of facing inhumane treatment while in the US and granted his order of extradition. However, Aswat was transferred to a high security psychiatric hospital after being diagnosed with paranoid schizophrenia therefore the extradition order was blocked. The European Court of Human Rights intervened due to his aggravated mental state, and prohibited his extradition, as he would be subjected to inhumane treatment under these conditions. The UK further appealed to have him extradited however he was under protection of his human rights.
In conclusion, individuals faced with extraditions could creating appalling circumstances which would just endanger or aggravate their conditions and should be provided with adequate protection from such atrocities. The Human Rights Act of 1998, a derivative of the European Convention on Human Rights, was formulated for the betterment of each individual regardless of their situation, and has aided in various cases of extradition such as Gary McKinnon and Haroon Rashid Aswat. If they were to be extradited, their conditions could have deteriorated severely. The specific parts of the Human Rights Act of 2008 that provides protection is mainly Article 3, the prohibition of torture, inhumane or degrading treatment, which can be in both physical and mental forms. The establishment of the act has ensured safety in various ways for different individuals that have needed it.