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Hypothetical Scenario

Let's consider a scenario where you have killed someone in China and somehow managed to evade the Chinese authorities, returning to America.

The Chinese then release irrefutable public evidence that you did, in fact, commit the crime. But, the crime occurred outside of American jurisdiction. Additionally, there is no extradition treaty between the United States and China.

Legal Questions

In this situation, would you get away with your actions without facing any consequences? Or will American prosecutors pursue charges on behalf of another country?

Are there any enshrined constitutional rights that protects you from the potential legal proceedings or judgements of another country?

4 Answers 4

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In this situation, would you get away with your actions without facing any consequences?

Just because there is no extradition treaty doesn't mean that the suspect can't be extradited (even if the suspect is a U.S. citizen). It just means that the extradition is in the discretion of the country where the suspect is located.

In all likelihood, in this situation, the U.S. would agree to extradite the suspect.

Or will American prosecutors pursue charges on behalf of another country?

They will not except in rare specialized circumstances where the U.S. asserts extraterritorial jurisdiction, such as the circumstances described in another answer.

Are there any enshrined constitutional rights that protects you from the potential legal proceedings or judgements of another country?

Generally not. But, the constitution might prohibit extraditing someone to a country where a death penalty was available when it would not be available under U.S. law (e.g. China executes public officials for purely economic corruption and the U.S. would probably be constitutionally prohibited from extraditing someone to China for that offense without assurances from China that the death penalty would not be a possible sentence).

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  • In this case, as long as you win the case against extradition (e.g. on the grounds of the illegal death penalty), you're basically in the clear, right? Since U.S. prosecutors won't pursue you, and you would also be free from the threat of deportation.
    – AlanSTACK
    Sep 4, 2023 at 0:52
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    @AlanSTACK You would certainly be subject to a civil lawsuit for wrongful death in the United States. You could also be apprehended while traveling somewhere that would extradite (or just illegally in the U.S. as the U.S. has done in the past in other countries). And, a death penalty would not be a bar to a U.S. extradition for a murder charge.
    – ohwilleke
    Sep 4, 2023 at 1:38
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    @AlanSTACK Also, countries routinely handle “we execute for this and you don’t” by just promising not to execute this particular defendant. European countries won’t extradite someone to face an American death sentence, but they’ll happily extradite a murderer if the US promises not to execute them.
    – cpast
    Sep 4, 2023 at 2:38
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    @gnasher729 No. I don't think that any of those options are available. Typically, the limitation would be enforced by limiting what the prosecution asks for, and a judge or jury can't impose the death penalty in a case where the prosecution doesn't ask for it. Of course, the U.S. could promise and then ignore its promise and sentence someone to death anyway, and if it did, France's options to do anything about it would be limited and inadequate. Most likely, it would refrain from extraditing anyone to the U.S. or cooperating with U.S. law enforcement in the future.
    – ohwilleke
    Sep 6, 2023 at 20:10
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    @ohwilleke And in that hypothetical, other countries would also reconsider whether to ever extradite to the US. There’s an element of trust that would be lost then.
    – cpast
    Sep 7, 2023 at 1:08
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For more generality, let us assume Bob committed $SOMECRIME in country A and fled to country B. For simplicity, assume that Bob was apprehended in country A and there is no risk he will escape A’s custody before extradition proceedings are over (either through legal means if they are not charged in time, or non-legal means if they break free).

Extradition: basic framework

Country A request that country B hands over Bob. (That makes A the requesting country and B the requested country, in extradition parlance.)

In theory, B could decide whether to extrade Bob in any way they please in accordance to their internal legal order. In practice, many things are similar across countries, and often codified into treaties. I will use the example of , its internal provisions for extradition from CPP 696-4, and its extradition treaty with the United States; but unless mentioned otherwise, I believe the general principles are valid in most Western jurisdictions.

  • B almost always requires that the extradition requests lists the charges that country A intends to prosecute Bob for. Recently, charges of campaign finance violations against Sam Bankman-Fried were dropped, because they were not included in the extradition request that the USA sent to the Bahamas and that the Bahamas accepted. (The US government could probably charge SBF for those charges and courts would not reject them, but then nobody would extradite anyone to the US ever again.)
  • B almost always requires that $SOMECRIME be also a crime in B’s jurisdiction, usually with a minimum sentence (one year of prison in the US-France treaty, article 2§1). Murder is a crime pretty much everywhere, but what about blasphemy? Holocaust denial? Selling food to Cuba? Selling weapons to Iran?
  • If B is a vaguely democratic country, Bob can fight extradition in B’s courts, and the judge can refuse extradition. Most (all?) democratic countries refuse extradition for political crimes: article 4 in the US-France treaty, and CPP 696-4 §2 in French law ("extradition is not granted... when circumstances show that extradition is requested on political grounds"). When it comes to extradition to China, Russia and other similar countries, France also has CPP 696-4§7 ("extradition is not granted... when the requested person would be judged (...) by a court that does not guarantee (...) the fundamental rights of defense")
  • B can sometimes request that A promise to not apply certain punishments. The typical case is death penalty (article 7 of the US-France treaty), but some jurisdictions apply corporal punishment (e.g. whipping). In , extraditing a person facing such penalties would violate CPP 696-4 §6 ("extradition is not granted... when the crime that justifies the request is punished by the requesting state by a penalty contrary to French public order").
  • A few countries (including , CPP 696-4 §1) refuse to extradite their own nationals. If you read article 3 of the US-France treaty, you might be under the impression that both countries reserve the right to refuse extradition on that basis. However, I would guess the practice is very unbalanced - if the US doesn’t care it will happily extradite its own citizens; but it knows France does care, and will not even bother requesting extradition of a French citizen.

If Bob is extradited, he will be forcibly moved back to country A, where courts can pick up the case in the usual fashion.

What if that fails?

Evading A’s jurisdiction does not always mean that Bob will go free. In the US-France case, if extradition is denied purely based on nationality, the requested country must prosecute Bob (article 3§2). (France claims a rather extensive jurisdiction, whereby anything done by a French citizen everywhere is subject to French penal law under CP 113-6. They even claim jurisdiction when the victim is a French citizen, CP 113-7! Subject to some limitations depending on gravity etc., but still.)

Prosecution in country B, willing or not, might still pose numerous practical problems, as most of the evidence of the crime is from country A:

  • country A might refuse to cooperate with country B's law enforcement;
  • forensics, witness testimony etc. might involve logistical difficulties;
  • law enforcement standards might be wildly different in country A and country B. For instance, US courts require oral evidence for testimonies; a US criminal case that goes to trial will (almost?) always testimony from a police officer, and cross-examination by the defense. French courts do not work that way at all; the vast majority of French police officers never appear at trial, and their "testimony" comes purely in the form of a police report. A French police officer testifying in US courts would probably make a fool of themselves during cross-examination; a US police report would probably be seen as too short/unclear in French courts.
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  • There's the situation if you badly injured a person who is still alive but might die, so we don't know if it's murder or not. The requesting country will often wait until the victim is dead (murder) or sure not do die. Otherwise they might not be allowed to convict a murderer for murder. Of course there is the possibility of forgetting a charge in the extradition request through incompetency.
    – gnasher729
    Sep 6, 2023 at 20:13
  • Another reason not to extradite is that the extraditing country wants to prosecute themselves. If a US citizen murders another US citizen in Germany, then both countries will want to prosecute and put the murderer in their own jail. I suppose that's a rare situation.
    – gnasher729
    Sep 6, 2023 at 20:18
  • I think you inverted A and B in sentence two of the answer.
    – RonJohn
    Oct 30, 2023 at 2:35
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, and other signatories of the Rome Convention

It depends on the crimes committed.

And a "simple" murder might not be enough.

The Rome statute is a multilateral convention that is the basis of the International Criminal Court (ICC). Signatory states have agreed that there are some crimes that should be punishable regardless of where they where committed or by whom (The relevant Swiss Law)

The crimes affected include:

  • Genocide
  • War crimes
  • Crimes against humanity
  • Starting an attack war

Anybody suspected of any of these crimes anywhere in the world can be tried in any of the signature countries. IIRC, even a diplomatic immunity is void on such an accussation.

So, while a murder is not enough to trigger the Völkerstrafrecht, the mentioned crimes can be committed and prosecuted without anybody actually dying.

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Are you American or in America and killed a diplomat?

If you can answer that question with yes, then you can be prosecuted according to the Criminal Resource Manual, at least in some cases: If you kill someone that is designated as IPP under the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, then you can be punished in the US according to the CRM.

  1. EXTRATERRITORIAL CRIMINAL JURISDICTION -- 18 U.S.C. §112, 878, 970, 1116, 1117 AND 1201

A. Murdering, kidnapping, assaulting, or threatening of an internationally protected person (IPP), is prosecutable in a court of the United States, regardless of where the crime occurred, as long as the "alleged offender is present within the United States." See, e.g., 18 U.S.C. § 1116(c) (murder of IPP); § 1201(e)(kidnapping); § 112(e) (assaults, wounds, strikes, imprisons); § 878(d) (threatens). Such extraterritorial jurisdictional provisions are predicated upon the requirements of the U.N. IPP and OAS Treaties to which the United States is a signatory. See H.R. Rep. No. 1614, 98th Cong., 2d Sess. (1976), reprinted in 1976 U.S. Code Cong. and Adm. News 4480, 4482. Under customary international law, the assertion of such jurisdiction is permissible under the "universal" principle which authorizes a state to prosecute certain extraterritorial offenses recognized by the community of nations as of universal concern. See United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991). The Yunis decision also suggests that the jurisdictional element of presence in the United States can be satisfied by the defendant's forcible rendition to the United States. Yunis, 924 F.2d at 1092; see also United States v. Rezaq, 908 F. Supp. 6 (D. D.C. 1995).

B. While Federal courts have jurisdiction over offenses against internationally protected persons solely upon the basis of the alleged offender's presence within the United States, regardless of the place where the offense was committed, they may exercise jurisdiction over similar offenses involving a foreign official or official guest only if the offense occurred when the victim was in the United States. See, e.g., 18 U.S.C. § 1116(b)(3),(6). As a practical matter, however, most foreign officials will also be entitled to protection as IPPs.

C. Section 721 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 721, 110 Stat. 1214, 1298, amended the various statutes protecting IPPs to make it clear that extraterritorial jurisdiction exists over an offense against an IPP outside the United States whenever (1) the victim IPP is a representative, officer, employee, or agent of the United States Government; or (2) the offender is a national of the United States; or (3) the offender is afterwards "found" in the United States. The effective date for the changes made by section 721 is April 24, 1996.

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  • What on earth is "an internationally protected person (IPP)"?
    – AlanSTACK
    Sep 3, 2023 at 18:06
  • @AlanSTACK a diplomat, foreign government official, international organization official, etc., so a small minority of China's population, and what's more, they only qualify as an IPP when they are outside their own country. The cited statute therefore does not apply to this hypothetical. Trish, I have therefore downvoted this answer; let me know if you change it (I think the US only claims jurisdiction if the suspect and victims were both US nationals). See law.cornell.edu/uscode/text/18/1116#b_4
    – phoog
    Sep 3, 2023 at 18:12
  • @phoog > C. Section 721 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, § 721, 110 Stat. 1214, 1298, amended the various statutes protecting IPPs to make it clear that extraterritorial jurisdiction exists over an offense against an IPP outside the United States whenever (1) the victim IPP is a representative, officer, employee, or agent of the United States Government or ...
    – Trish
    Sep 3, 2023 at 18:14
  • under that section, the US can prosecute you for killing an afghan diplomat in China, if you are US citizen or found in the US.
    – Trish
    Sep 3, 2023 at 18:16
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    @Trish yes, I misremembered the territorial aspect of the definition of IPP (and edited my earlier comment accordingly), but, regardless, the definition and this statute aren't generally relevant to "someone in China." It therefore doesn't answer the question, which is more generally still a question about any crime committed abroad. Citing a specific extraterritorial crime is less helpful than a discussion of extraterritorial jurisdiction generally, which probably already exists, though I don't have time to look just now nor to write a more general answer.
    – phoog
    Sep 3, 2023 at 18:17

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