1. Can Zimbabwe have lion's killer extradited?
Story highlightsZimbabwe wants the U.S. to hand over Dr. Walter Palmer to stand trial for killing
Cecil the lionLegal analyst Danny Cevallos says U.S. extradition treaty with that nation seems to
mandate it, if requestedPalmer has little legal ground to fight extradition, Cevallos says, but reality
comes down to politics and powerThe short answer: Under the mandatory terms of the extradition
treaty between Zimbabwe and the United States, the United States must initiate extradition
proceedings and give over a citizen to a foreign country for prosecution ....
Unless the U.S. just doesn't feel like it.
Extradition is the formal surrender of a person by a "requested" state to another "requesting" state
for prosecution. Extradition to or from the United States is a creature of treaty, which means it is
little more than a contract -- one that may be ultimately unenforceable, if push comes to diplomatic
shove.
The United States has had an extradition agreement with Zimbabwe since 2000.
A country typically begins the extradition process by submitting a request to the State Department;
this may be accompanied by a simultaneous request for arrest of a fugitive at risk of flight.
If the secretary of state decides to do so, he forwards the matter to the U.S. Attorney's Office to
commence the legal proceeding.
From there, the case goes to federal court, and a judge makes a threshold determination: Is there
probable cause that the offense charged is extraditable, and that it satisfies the requirement of "dual
criminality"?
It's similar to a preliminary hearing or "probable cause" hearing in American criminal law, which
means that the burden is light, the rules of evidence are relaxed, and the odds are in favor of
extradition. The test is whether there is evidence to justify having a trial, not whether the evidence
is sufficient to justify a conviction.
What about the fact that the United States would be turning over a citizen to a country with an
abysmal human rights record? Shouldn't the court be concerned
http://mindrush12345.jimdo.com/2015/05/26/oral-hygiene-for-the-family-some-tips/ that the
defendant will receive a fair trial, a lawyer, and three hot meals a day? It isn't. The established "rule
of noninquiry" prohibits the judge from examining Zimbabwe's criminal justice system or taking into
account the possibility that the extradited person will be mistreated.
2. This is important because it limits the judiciary's discretion in extraditing -- for the most part, if
there's sufficient evidence to find probable cause, the judge has to certify the matter for extradition.
What about a defense on the facts? The dentist's defense should center on the absence of "dual
criminality" between the crime charged: that there is no comparable crime.
The United States-Zimbabwe extradition treaty of 2000, instead of listing specific extraditable
crimes, requires only dual criminality of the extraditable offense.
The principle of dual criminality means the extraditable offense must be a serious crime -- rather
than a mere "peccadillo" -- punishable under the criminal laws of both the requesting country and
the requested country.
That means there are two ways to attack the dual criminality here: First, that the crime of hunting
lions in the way charged has no parallel in the United States. The second attack is that the charged
crime is not serious enough. They are both arguments that will likely fail.
On one hand, a prosecutor might argue that our hunting laws are very similar in that they limit game
hunting by geographic location, licenses, permits and even weapons. Every hunter in Michigan
knows the difference between "bow season" and "black powder" season.
On the defense side, the dentist would argue that we don't have lion hunting laws or permits here in
the United States that are comparable to Zimbabwean law. As for the seriousness of the crime, that
this crime is punishable for years means it is more than a parking ticket, and more than a mere
"peccadillo."
Here, the dentist probably loses.
The principle of dual criminality does not demand that the laws of the countries be carbon copies of
one another, or that they have have identical elements. Instead, dual criminality is satisfied when the
two countries' laws are substantially analogous. Moreover, our courts must give the benefit of the
doubt, and defer to the foreign court's decision that the offense is extraditable.
So, the courts and even the Department of Justice, under extradition treaties, are little more than
rubber-stamping functionaries -- under the treaty, it appears that once demanded, extradition is
practically mandatory ... as a legal matter.
But what about a political matter?
After all, international law at its core is only as enforceable as the most powerful country wants it to
be. Sure, the treaty may direct the requested country (here, the U.S.) to do something for the
requesting country (Zimbabwe), but what recourse does Zimbabwe have if the U.S. refuses?
Twisted logic behind lion hunts
The Latin term for this concept is "Ubi jus ibi remedium" -- "there is no right without a remedy."
Zimbabwe really has no remedy against the U.S. if it refuses to extradite. In that way, international
law is no more than playground law on a grand scale: If Zimbabwe has a problem with the U.S.
breaching an agreement to extradite, and if Zimbabwe wants to "make something of it," then
Zimbabwe can just meet the United States after the 3 p.m. bell behind the schoolyard ... and bring
your aircraft carriers.
3. Which means Zimbabwe would have no recourse other than sulking. That's why extradition is so
often more a political issue than a legal issue. Politics is why countries enter into treaties in the first
place, and war -- or the threat of war -- just extends politics to its extreme end. Zimbabwe cannot
really "force" the U.S. to do anything, including abide by an extradition treaty.
In domestic law, the victor is ideally the party in the superior legal (and hopefully moral) position. In
international law, make no mistake about it, the victor is often simply the one ... with the most
aircraft carriers.
Opinion: Miss Cecil the lion? End trophy hunting
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