Extradition of Criminals, A Jurisprudential and Legal Review (Book)

Extradition of Criminals, A Jurisprudential and Legal Review (Book)
Extradition of Criminals, A Jurisprudential and Legal Review (Book)
Book Information
Author	Reza Mohammadi Karaji
Subject	Criminal Jurisprudence
Style	Analytical
Language	Persian
Publication Information
Publisher	Majd

Author: Hadi Sadeqi

Extradition of Criminals, A Jurisprudential and Legal Review (استرداد مجرمان، بررسی فقهی و حقوقی), is a book by Reza Mohammadi Karaji in the field of criminal jurisprudence (*Fiqh al-Jaza'i*). Relying on jurisprudential rules, Mohammadi does not consider the extradition of a Muslim to disbelievers permissible and bases his argument on reasons such as the Rule of Negation of Authority (*Qa'idah Nafi al-Sabil*) and the prohibition of validating the judgment of disbelievers. Regarding the Dhimmi disbeliever (a non-Muslim living under the protection of an Islamic state), the author strengthens the view of choosing (*Takhyir*) between executing the Islamic punishment or handing him over to the requesting country. Concerning the Harbi disbeliever (a non-Muslim at war with Muslims), considering the reasons for the prohibition of extradition as incomplete, he applies the principle of exemption (*Asl al-Bara'ah*).

Abstract

The author considers the extradition of criminals to Islamic and non-Islamic countries as un-Islamic (contrary to Sharia), because the execution of religious rulings and the appointment of judges are among the authorities of the Guardian of the Muslims (*Wali al-Amr al-Muslimin*), which are not realized in those Islamic and non-Islamic countries. In another section of the book, he examines certain specific crimes such as fornication (*Zina*) with a Muslim woman and does not consider handing over the disbelieving fornicator permissible; however, regarding sodomy (*Liwat*) with a Muslim man, he deems the reliance on the evidence of prohibition unacceptable and considers extradition permissible. He has also considered seeking assistance (*Isti'anah*) from disbelievers to return a criminal as permissible.

Introduction to the Book

Extradition of Criminals is a Persian book in the field of criminal jurisprudence. This book was authored by Reza Mohammadi Karaji and published by Majd Publications in 2019 (1398 SH) in 198 pages. The author's motive for writing this book was a jurisprudential examination of the bill on the extradition of criminals, which the Guardian Council had deemed contrary to Sharia, while the Expediency Discernment Council had deemed it permissible from the perspective of a secondary ruling (*Hukm Thanawi*) (p. 10).

The discussions of the book are organized into three main sections. The table of contents and introduction are at the beginning, and the conclusion of the book and the bibliography are at the end. In the first section of the book, the author examines generalities, and in the second section, the principles and rules related to the criminal and the parties involved in extradition. The third section of the book is dedicated to the principles and rules related to various crimes in extradition.

Extradition of Criminals; Concepts, Classifications, and History

In the first section, spanning three chapters, the author has stated the concept of the extradition of criminals, its classification, and its history. After providing the lexical definition of extradition (*Istirdad*) and criminal (*Mujrim*), he counts the issue of extraditing a criminal among the newly emergent issues of international criminal law. According to him, this issue is not defined in jurisprudence and its ruling must be derived from jurisprudential and principial rules (p. 16). After examining the various definitions provided for the extradition of a criminal, he defines it thus: "Handing over a criminal or accused (regardless of his consent) to a country in whose territory or against whose supreme interests he has committed a crime, and who is residing in another country, for the purpose of trial or execution of a sentence" (p. 21). Then the author states the difference between the concept of extradition of criminals and related concepts, concepts such as the transfer of convicts, referral of proceedings, execution of foreign criminal sentences, judicial assistance, and the nullification of extradition (pp. 29-34).

In the second chapter, Mohammadi Karaji examines the types of extradition treaties from a legal perspective, treaties such as temporary and permanent treaties, and general and specific treaties (pp. 34-38). Further on, to clarify the jurisprudential rulings, the author has classified the countries of the world, criminals, and victims (*Majniyyun 'Alayh*) from a jurisprudential and Islamic perspective into fourteen categories; these categories have been obtained based on these classifications: classifying the countries of the world into the Abode of Islam (*Dar al-Islam*) and the Abode of Disbelief (*Dar al-Kufr*) (including the Abode of Treaty or *Dar al-'Ahd*, the Abode of War or *Dar al-Harb*, and neutral); classifying criminals into Muslim man, Muslim woman, Harbi disbeliever, and Dhimmi disbeliever; and also classifying victims into Muslim and disbeliever (pp. 38-43).

In the third chapter, the history of the extradition of criminals in the world and Iran is explained. The author has also explained the threefold approach of the Guardian Council and its reasons for approving treaties with Islamic countries, rejecting treaties with non-Islamic countries, and not commenting on international treaties (pp. 43-53). At the end of the first section's chapter, the author examines the limitations of extraditing criminals (pp. 53-59).

Impermissibility of Extraditing a Muslim to Disbelievers

In the second section, regarding the criminal or accused, the author has mentioned four legal principles, including that the criminal should not be a citizen of the country from which extradition is requested, or that the criminal is not being prosecuted or tried in the requesting country (pp. 62-66). He proceeds to examine the jurisprudential rules governing the extradition of Muslims. With the premise that the committed act is a crime in both countries, and the requesting country is non-Islamic, he examines the evidence for permissibility and impermissibility (pp. 67-68) and concludes the impermissibility of extraditing a Muslim to disbelievers (p. 86).

Evidence for Impermissibility

Reza Mohammadi initially states the arguments that might be established for the impermissibility of extraditing a Muslim:

Rule of Negation of Authority (*Qa'idah Nafi al-Sabil*); according to this rule, no ruling that causes the domination of a disbeliever over a Muslim has been established in Islam. Based on this, handing over a Muslim to a disbelieving country is not permissible, because this act provides the means for the domination of disbelievers over believers (pp. 69-72). The author considers this argument correct and has responded to the objections raised against it; including the objection that if disbelievers execute the same punishment on the criminal that is carried out in Islamic countries, extraditing the criminal does not mean the domination of disbelievers over the Muslim, because in either case, the Muslim criminal must be punished. Mohammadi considers this objection incorrect and believes that the execution of punishment is a kind of domination, and for this reason, even within an Islamic country, the execution of punishment by a disbeliever is not permissible (pp. 72-76).
Prohibition of validating the judiciary of disbelievers; relying on Verse 60 of Surah al-Nisa, it is forbidden for Muslims to refer to disbelievers for trial and arbitration. The author considers this argument correct (p. 77).
Evidence indicating the obligation of migrating from the Abode of War (*Dar al-Harb*);
The rule of the prohibition of assisting in sin (*Qa'idah Hurmah al-I'anah 'ala al-Ithm*);
Verse 10 of Surah al-Mumtahanah ("Then do not return them to the disbelievers" / Fa la tarji'uhunna ila al-kuffar); in the author's opinion, the last three reasons are incomplete for proving the claim (pp. 77-83). Of course, in the final conclusion of his discussions, the author has considered the rule of the prohibition of assisting in sin as an obstacle to the permissibility of extraditing a Muslim to disbelievers (p. 86).

Evidence for Permissibility

Some, to justify the permissibility of extraditing a Muslim criminal to a non-Islamic country, have relied on the Prophet's (PBUH) action in the Treaty of Hudaybiyyah; based on this treaty, if anyone from the Quraysh fled to Medina, the Prophet had to return him to the disbelievers of Quraysh (extradition). According to the provisions of this peace treaty, the Prophet (PBUH) returned Abu Jandal, who was heading towards Medina for asylum at the time the treaty was being written, to the disbelievers of Quraysh (pp. 83-84).

Mohammadi Karaji considers the argument based on this treaty incorrect; because, firstly, the intention behind extradition in the text of the treaty was not trial and punishment, but merely the transfer of the individual. Secondly, the treaty is more specific (*Akhas*) than the claim, because the treaty did not apply to women, while the issue under discussion also includes women. Thirdly, assuming the acceptance of the application of this treaty to extradition, the Prophet's (PBUH) acceptance of extradition might have been from the perspective of a governmental ruling (*Hukm Hakumati*) and restricted to a specific event, whereas the current research is about primary rulings (*Ahkam Awwaliyyah*), not governmental rulings (pp. 83-86).

Examination of the Opinions of Jurists on the Extradition of a Dhimmi Disbeliever

The author has examined the issue of extraditing a Dhimmi disbeliever with the premise that the act is a crime in both countries and the requesting country is a disbelieving one, and has stated the threefold opinions of the jurists:

Choosing Between Handing Over the Criminal or Executing the Punishment

Based on the viewpoint of jurists such as the author of *Jawahir al-Kalam*, Sheikh al-Mufid, Ibn Idris, Naser Makarem Shirazi, and Hussein-Ali Montazeri, in the event that a Dhimmi disbeliever commits a crime against another disbeliever, the Islamic ruler has the choice (*Takhyir*) to hand him over to his country so they may punish him, or to punish the Dhimmi disbeliever himself according to the Islamic Sharia. Those who have accepted this viewpoint are themselves divided into two groups: one group has mentioned this opinion only regarding fornication (*Zina*), sodomy (*Liwat*), and lesbianism (*Musahaqah*), but others have eliminated the specificity (*Ilgha' al-Khususiyyah*) and consider it to encompass all crimes (pp. 88-89).

For this opinion, Verse 42 of Surah al-Ma'idah and the requirement of fulfilling the covenant of the people of Dhimmah have been used as arguments. The author believes that by relying on the necessity of fulfilling the covenant of the people of Dhimmah, one cannot prove the necessity of referring them to judges. In his initial examination of the verse, he raises an objection to arguing from it, considering the aforementioned verse to be related to choosing between executing Islamic rulings and turning away (*I'rad*), not executing and handing over the criminal (pp. 90-94). He further, by considering Verse 48 of Surah al-Ma'idah and reconciling the two mentioned verses, concludes that the meaning of these verses is either choosing between executing the punishment and handing over, or choosing between executing the punishment and turning away, neither of which contradicts extradition (p. 113). By subsequently examining two categories of narrations (1. Narrations indicating the obligation of executing Islamic punishment, and 2. Narrations indicating the obligation of referring criminals to disbelievers), the author reads them as aligned with the verses and believes that the totality of verses and narrations indicates a choice (executing Islamic punishment or extraditing the Dhimmi disbeliever) (p. 114).

Choosing Between Turning Away or Executing the Punishment

Based on the viewpoint of Fadil al-Hindi, the ruler can punish the Dhimmi criminal according to the Islamic Sharia, or turn away from him and not hand him over to his country (p. 89). The basis for this opinion is considered to be Verse 42 of Surah al-Ma'idah and the handing over of the criminal being considered a wrong act (*Munkar*) (p. 95). The author considers this argument insufficient and believes that even if the verse indicates a choice between executing the punishment or turning away, turning away does not contradict extradition (p. 113). Also, he considers calling the handing over of a Dhimmi disbeliever to disbelievers a wrong act to be reasoning against the text (*Ijtihad fi Muqabil al-Nass*) (p. 96).

Precaution to Execute the Islamic Punishment

Sayyid Ruhollah Musavi Khomeini has considered the execution of Islamic physical punishments (*Hudud*) on a Dhimmi disbeliever as an obligatory precaution (*Ihtiyat Wajib*) (p. 90). The author lists the reasons for this viewpoint as follows:

Verse 48 of Surah al-Ma'idah; in Mohammadi Karaji's opinion, the aforementioned verse contradicts Verse 42 of Surah al-Ma'idah (indicating choice).
The narration of Abdullah ibn Ja'far; based on this narration, if a Dhimmi commits fornication or drinks alcohol in Islamic territory, or commits a crime in non-Islamic territory and an Islamic judge is referred to for his crime, the physical punishments (*Hudud*) of the Muslims must be executed upon him. In the author's opinion, the first and second reasons can be applied to one of the two sides of the choice; therefore, he has called reliance on these two reasons incorrect.
The narration of Abi Basir; according to this narration, if a Person of the Book (*Ahl al-Kitab*) commits an obscenity (*Fahsha'*) in Islamic lands, Islamic rulings are applied to him. The author objects to the chain of transmission (*Sanad*) of this narration and considers the argument based on it incomplete.
Disbelievers being obligated to secondary principles (*Furu'*); the author considers this reason arguable only if all the evidence for choice is invalidated. By considering the evidence for choice as correct, this reason will be useless (pp. 96-101).

Application of Religious Exemption from the Prohibition of Extraditing a Harbi Disbeliever to Disbelievers

Mohammadi Karaji has deemed the evidence for the permissibility of extraditing a Harbi disbeliever to disbelievers incomplete. The evidence for the permissibility of extradition includes:

The narration of Muhammad ibn Abi Bakr from Imam Ali (a); in this narration, the extradition of a disbelieving criminal has been commanded; therefore, the extradition of a Harbi disbeliever is not only permissible but obligatory. The author considers this narration applicable to a Dhimmi disbeliever and believes that this narration cannot be applied to a Harbi disbeliever (pp. 116-117).
Argument a fortiori (*Qiyas al-Awhlawiyyah*); in the event that the extradition of a Dhimmi disbeliever to disbelievers is permissible, the extradition of a Harbi disbeliever to disbelievers will be permissible a fortiori. In the author's opinion, the a fortiori argument is invalid (*Batil*); because the laws of the people of Dhimmah might have little difference from Islamic laws, but the laws of Harbi disbelievers have a gross difference from Islamic laws (pp. 117-118).
The correspondence of Muhammad ibn Abi Bakr with Imam Ali (a); according to this correspondence, Islamic punishment is not executed regarding Harbi disbelievers, and from this amount, the permissibility of extradition can be inferred. The author considers the chain of transmission of this narration unreliable and does not view the non-execution of Islamic punishment as a reason for the permissibility of extradition (pp. 118-119).

At the beginning of the discussion on the extradition of a Harbi disbeliever, the author considered the only reason for its prohibition to be validating the judiciary of disbelievers (p. 115), but further on, he has also examined the two reasons of the prohibition of assisting disbelievers and the prohibition of assisting in sin (p. 119). Considering these arguments incomplete, he calls the prohibition of extradition lacking evidence and the resorting to the principle of exemption (*Asl al-Bara'ah*) unproblematic (p. 120).

Impermissibility of Extraditing Criminals from Islamic Countries

In the second chapter of the second section, the author proceeds to explain the jurisprudential and legal principles governing the countries party to extradition. Some of the legal rules regarding the requesting country are as follows: 1. The requesting state must be a beneficiary, 2. In the case of multiple requestors, the right of priority should be based on factors specified in the treaty, 3. Extradition must not be carried out based on political motives (pp. 121-123).

In the jurisprudential examination of the parties to extradition, the author believes that if the country from which the request is made is Islamic, the extradition treaty is un-Islamic (contrary to Sharia); because if the requesting country is non-Islamic, due to reasons such as validating the judiciary of disbelievers and the Rule of Negation of Authority, the extradition treaty lacks religious authorization. Also, in the case of the requesting country being Islamic, since judging and executing the sentence are solely among the authorities of the Guardian of the Muslims, and their government is an instance of a tyrannical government (*Hukumah Ja'ir*), extraditing the criminal to their government will not be permissible (pp. 124-130). The author considers the aforementioned ruling as the primary ruling in the issue and believes that, in case the Islamic ruler discerns it to be expedient, the treaty for the extradition of criminals is permissible as a secondary ruling (pp. 130-133).

Jurisprudential and Legal Principles and Rules Related to Various Crimes in Extradition

In the third section of the book, the author has examined certain specific crimes for the extradition of criminals from a jurisprudential and legal perspective. Some of the rules governing various crimes in extradition that the author has examined from a legal perspective include: mutual criminalization (considering the act a crime in both countries), the principle of non-extradition in political crimes, the principle of non-extradition in military crimes, and the principle of non-extradition in minor crimes (pp. 135-153).

Impermissibility of Extraditing a Disbeliever Who Fornicates with a Muslim Woman

In examining the issue of extraditing a disbeliever who has fornicated with a Muslim woman, the author believes that the disagreements of the jurists ultimately return to one common viewpoint, which is the prohibition of handing over the disbelieving fornicator and the obligation of killing him (pp. 154-156). He has listed the reasons for this ruling as follows:

The Dhimmi exiting the Dhimmah covenant; by committing this crime, the Dhimmi disbeliever exits the Dhimmah covenant. The author does not accept this reason and does not consider this act as causing the destruction of the Dhimmah covenant (pp. 156-158).
Desecration (*Hatk Hurmah*) of Islam; the author has responded to the objections to this reason and has considered relying on it correct (pp. 159-160).
Consensus (*Ijma'*) (p. 160);
The narration of Hanan ibn Sadir; based on this narration, a disbeliever who has fornicated with a Muslim woman must be killed. After a detailed examination of the narration's chain of transmission, the author considers it authentic (*Sahihah*) and its implication complete (pp. 160-168).
The narration of Ja'far ibn Rizq-Allah; according to this narration, if a Christian man fornicates with a Muslim woman, he is struck so much that it leads to his death. The author, counting the chain of transmission of this narration as unreliable, believes that no jurist has issued a fatwa according to this narration (pp. 169-171).

Permissibility of Extraditing a Disbeliever in Case of Sodomy with a Muslim Man

In the issue of extraditing a disbeliever who has committed sodomy with a Muslim man, the author, by examining the evidence indicating the equivalence of the punishment for fornication (*Zina*) and the punishment for sodomy (*Liwat*), has concluded that the evidence related to fornication cannot be extended to sodomy and other crimes, and applying that evidence to sodomy is an instance of invalid analogy (*Qiyas Batil*). Therefore, in this case, the impermissibility of extradition is not proven (pp. 171-173).

Permissibility of Seeking Assistance from Disbelievers to Return a Criminal

The author believes that if an Islamic country wants to return a criminal from non-Islamic countries, the permissibility or prohibition of this act depends on the permissibility or impermissibility of seeking assistance (*Isti'anah*) from disbelievers. The author, who considers seeking assistance from disbelievers permissible in this issue, has considered the extradition of criminals from non-Islamic countries permissible (pp. 173-175).

Permissibility of Handing Over a Disbelieving Criminal in Case of Differing Punishments

One of the legal conditions of an extradition treaty is mutual criminalization (considering the act a crime in both countries). In the event that the Islamic punishment differs from the punishment prescribed in the non-Islamic country, from a jurisprudential perspective, the author has raised the question: is the Islamic country permitted to hand over the disbelieving criminal? He has raised the two opinions of permissibility and impermissibility in this issue. According to him, the jurists who do not consider handing over the criminal permissible have considered handing him over as enjoining wrong (*Amr bi al-Munkar*) (executing a punishment contrary to the Islamic Sharia). Also, in their opinion, if the difference in punishment is great, handing over the criminal causes the suspension of God's ruling (*Hukm-Allah*). In contrast, the author, by critiquing these arguments, relies on narrations to prove permissibility, based on which the observance of equivalent punishment is not necessary (pp. 176-180).