This paper argues that applying the rule of non-inquiry to the issue of whether the requested person has been charged is analytically incorrect where the relevant treaty defines as extraditable persons who have been charged or convicted of certain offenses, thus requiring a judicial determination as to whether the person requested has been charged as part of the initial inquiry into extraditability. By contrast, the rule of non-inquiry is typically used to reject arguments of persons who are otherwise extraditable. This issue has not received much analysis perhaps because federal courts are reluctant to look beyond an arrest warrant issued by a foreign judge for fear that they lack the knowledge needed to evaluate such an order. This paper argues several reasons why courts should consider whether the person to be extradited will face trial proceedings. In addition to this procedural analysis regarding at what point the rule of non-inquiry is applicable, this paper also stresses why it is necessary for U.S. federal judges to understand the criminal justice systems of other countries, and to engage in an analysis of such systems.
This paper first discusses the importance of understanding the criminal justice systems of other countries to explain why, as a matter of general policy, the rule of non-inquiry should not apply. Next, this paper briefly outlines the extradition process and asserts that as a matter of method of analysis, the question of whether the relator has been charged for purposes of the extradition treaty must be answered as a first step in determining whether the relator is extraditable at all, thus before the rule of non-inquiry enters the analysis. The focus of this paper then shifts to the meaning of the word charged in extradition treaties, and whether, as a matter of treaty interpretation, that term includes one who is sought by a foreign country for the purpose of preventive detention. The point of this paper is not necessarily to criticize the code provisions permitting preventive detention in certain countries, but rather to demonstrate that an order of preventive detention does not constitute a charge under U.S. extradition treaties, and further that U.S. federal courts should make an effort to examine the procedure of the requesting country to determine whether the requested person has been charged. Finally, this paper discusses some recent cases which indicate that federal courts might be beginning to seriously consider the issue raised in this paper.
13 Temple Int'l. & Comp. L. J. 27 (1999)