The Principle of Specialty: A Bifurcated Analysis of the Rights of the Accused
![handle is hein.journals/cjtl29 and id is 415 raw text is: Notes
The Principle of Specialty: A Bifurcated
Analysis of the Rights of the Accused
INTRODUCTION
The principle of specialty provides that a state may not prosecute
a person extradited from another country for an offense other than
the one for which the extradition was granted.' When a state disre-
gards this restriction and proceeds to prosecute the person on a differ-
ent charge, a question often asked is who has the right to challenge
that violation? There is no dispute that the state that delivered the
accused individual has the right to interpose a challenge. But there is
less certainty as to whether the accused also has standing to assert the
violation as a defense to the disputed prosecution.
In the United States, this question seemed to have been conclu-
sively answered over 100 years ago. In United States v. Rauscher,2 the
Supreme Court expressly granted the defendant access to the courts
to seek a remedy for a violation of the principle.3 But in recent years,
the authority of Rauscher has been inexplicably eroded. Some circuit
courts have suggested in dicta that the right to object to a violation of
the principle belongs exclusively to the asylum state.4 These courts
1. Under most international agreements, state laws, and state practice:
(1) A person who has been extradited to another state will not, unless the requested
state consents,
(a) be tried by the requesting state for an offense other than the one for which
he was extradited; or
(b) be given punishment more severe than was provided by the applicable law
of the requesting state at the time of the request for extradition.
(2) A person who has been extradited to another state for trial and has been acquit-
ted of the charges for which he was extradited must be given a reasonable opportu-
nity to depart from that state.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 477
(1986) [hereinafter RESTATEMENT (THIRD)].
2. 119 U.S. 407 (1886).
3. Id. at 430-31.
4. See United States v. Kaufman, 874 F.2d 242, 243 (5th Cir. 1989) (only an offended
nation can complain about the purported violation of an extradition treaty) (per curiam)
(denying rehearing); Demjanjuk v. Petrovsky, 776 F.2d 571, 584 (6th Cir. 1985) (The right to
insist on application of the principle of specialty belongs to the requested state, not the individ-
ual whose extradition is requested.), cert. denied, 475 U.S. 1016 (1986). See also United](ViewImageLocal?handle=hein.journals/cjtl29&div=24&collection=&method=preview&ext=.png&size=3)
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The Principle of Specialty: A Bifurcated Analysis of the Rights of the Accused
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