2. Fundamental Principles

Definition

The removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. [Philippine Extradition Law, Section 2(a)]

Extradition means the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment.

Fundamental Principles

General Rule: There can only be extradition if there is a treaty between the States. (Philippine Extradition Law, Sec. 3) Outside a treaty, there is no rule in international law compelling a State to extradite anyone.

Under international practice, some states may extradite as a matter of comity without a treaty, if the states concerned are willing to allow it, although this has occasioned protests from a third state whose nationals are extradited in such circumstances [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, pp. 951-952] The Philippines, however, may grant extradition only pursuant to a treaty or convention. (Philippine Extradition Law, Sec. 3)

Limitations on extraditable offenses: Under applicable extradition treaties, political criminals are, as a rule, not extradited, and according to many extradition treaties, military deserters and persons who have committed offences against religion are likewise excluded from extradition; and many states refuse extradition if the death penalty will be enforced for the crime. [Oppenheim’s International Law, Vol. 1 Peace (9th Ed.), 2008, p. 959]

In general, IHL defines the following obligations:

• Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.
• It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
• The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the red cross or the red crescent is the sign of such protection and must be respected.
• Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
• Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
• Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives. (Basic Rules of International Humanitarian Law in Armed Conflicts, ICRC, Dec. 31, 1988)

The ICCPR, particularly its protection on the right to life, does not determine the legality of the use of nuclear weapons in an armed conflict. What applies is the lex specialis, which is the IHL. It determines whether the taking of life in times of war has been arbitrary.