Extradition from/to Japan and how Nationality matters

♪ Bad girls, bad girls
Whatcha gonna do, whatcha gonna do
When they come for you ♪

Hopefully, very few people plan to get into trouble with the law, either in Japan or overseas, after they naturalize. After all, in order to naturalize in the first place, your record (even for driving offenses), including immigration record, needs to be almost flawless. Both inside Japan and outside of Japan.

However, the real meaning of becoming legally Japanese isn't about speaking or acting Japanese or even living in Japan forever (it's perfectly possibly to gain Japanese nationality then live as a Japanese expat elsewhere in the world). Naturalizing and becoming Japanese is about establishing a legal permanent link between you and the sovereign state of Japan.

When the Constitution of Japan says "sovereign power resides with the people" (『主権が国民に存すること』 {"shuken ga kokumin ni son suru koto"}) in the preamble, by "people" — a constitutional law term that means the nationals/citizens of a country; it doesn't mean everybody in the world — the constitution is talking about you. Your nationality, and the laws of your new country, are attached to you forever. When you naturalize to Japanese, you don't take an oath to the Emperor, becoming a subject. You take an oath to the Constitution of Japan and the laws made under it.

So what happens when you, as a new naturalized Japanese national, break Japanese law in a foreign country? If Japanese law enforcement is aware of the crime, you'll probably be arrested once you return to Japan.

But what if you never return to Japan? Depending on many variables, Japan can request that foreign countries extradite you back to Japan to face justice. If you're on the run jumping from country to country, they can cancel your passport to impede your ability to travel/flee (much like what happened to Edward Snowden).

Can Japan extradite a Japanese National living legally overseas for Arrest, Trial, & Punishment in Japan?

Whether or not a naturalized Japanese person can be extradited back to Japan depends on many factors:

• Japan may need to have an extradition agreement with that country. There is no such thing as a universal UN international law that says countries are required to extradite foreigners to other countries. Countries are sovereign, and what they wish to do to its nationals and foreign residents (within the context of human rights and international law) is their business if they don't have a treaty. If Japan does not have a treaty with a country, its rules for extradition default to its 1953 Extradition Act (Act #68).

  

  The U.S. has no extradition treaty with Russia. The U.S. asked for him, but Russia said no.
  America cancelled Snowden's U.S. passport, so Russia gave Snowden a travel document.

  The phase "may need" was used above because Japan not having an extradition agreement with a country doesn't mean Japan can't extradite you. It simply means that without a treaty, Japan has to ask the country, and most likely that country would need to deliberate it on a one-off basis (and/or refer to default laws of extradition) and judge whether to allow it by the merits of the case. The reason the United States can not extradite Edward Snowden is because they don't have an extradition agreement with the Russian Federation.
• Unless there's an extradition treaty with Japan that overrides the below criteria, the alleged crime committed has to meet the following criteria:

  • 

    Perhaps not in good taste, but
    not illegal in the U.S. or Japan

    The offense must be illegal in both countries (known as "dual criminality"). For example, a warrant for arrest was put out for actor Richard Gere (for obscenity/lewdness) in India for kissing a Bollywood star in public. The United States would never extradite somebody for that because kissing somebody in public (PDA) is not a crime in America.
  • The crime must be serious enough. The minimum punishment usually has to be a few years or more in both countries. No country is going to extradite somebody for shoplifting or any crime that has a prison sentence of less than a year.
    
    By Japanese law, unless there's a treaty that says otherwise (see below), Japan will not allow the extradition of any legal foreign resident in Japan if the crime carries less than a minimum three (3) year punishment either in Japan or in the country requesting extradition.
  • The punishment can't be too severe; countries don't extradite if the person would face the death penalty (unless there's a treaty that says otherwise; see below) or would be tortured.
• The crime can't be considered to be a political crime.

Hanging is the only execution method used by Japan.

An interesting paradox to the above is that even Japan will not extradite foreign residents if they were to face the death penalty in a foreign country (unless there's a treaty that says otherwise; see below), even though Japan itself uses capital punishment (death by hanging) as the maximum punishment for first degree murder.

Murder is currently the only crime eligible for capital punishment in Japan, and it must either be a multiple murder or a first degree murder that is particularly cruel and brutal.

Can Japan extradite a Dual National (Japanese National) living legally overseas for Arrest, Trial, & Punishment in Japan?

The possession of an additional nationality only affects extradition if both of the following two conditions are true:

1. The multi-national is in one of the countries or territories that he/she is a national of.
2. One of the two countries has an extradition policy/law prohibiting the extradition of its own nationals from its sovereign territory to other countries, such as:
   • Japan
   • Austria
   • Brazil
   • Czech Republic
   • Germany
   • People's Republic of China
   • Republic of China (Taiwan)
   • France

A killer criminal with clear skin.

To use a recent example, dual national (natural-born American + French nationality from his mother due to jus sanguis) Hans Peterson, a "pro" Internet gambler, stalked and threatened before gruesomely murdering his dermatologist, Dr. David Cornbleet, by viciously stabbing him to death in Chicago, Illinois in 2006. His motive was dissatisfaction with his what he believed to be side effects of the prescribed controversial acne drug Accutane® (アキュテインAkyutein) aka isotretinoin. He claimed the drug made him sexually impotent.

Peterson fled to the French-controlled side of St. Martin, a Caribbean island, before the United States authorities could arrest him in America.

So, the United States requested that France extradite Peterson back to Illinois to face American justice. The late doctor's friends and family as well as the state prosecution feared that the French justice system was too lenient compared to the the United States. Their maximum for murder is 20 years and he would serve 16. That's unacceptable, said Cook County prosecutor Bob Milan. Both Illinois senators pleaded with the French Embassy in Washington, D.C. The prosecution even agreed to not press for (Illinois') death penalty, which hasn't been used since the year 2000. Instead, they wanted Illinois' penalty of life imprisonment without the chance of parole.

However, the French government was firm. No matter how evil Peterson was, French law prohibited the extradition of those possessing French nationality — even if he held U.S. citizenship and committed the crime on U.S. territory and he didn't even manage to flee all the way to the mainland of France but rather a French territory.

The Master Nationality Rule

In the case where a natural born or naturalized citizen has more than one nationality and they happen to be on the soil of a country that they have a citizenship for, they can't nor should they expect that any of the consular protections that normal citizens would receive will apply to them. Additionally, when the laws of two or more countries of which you have a nationality for conflict with each other (and they often do, especially with regards to things like family divorce and custody and tax law), the country that one is physically in takes precedence, and the other country's laws and international courtesies can be ignored in the name of sovereignty.

The United States Department of State FAM advises this with regard to dual nationality [emphasis added]:

While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government does not endorse dual nationality as a matter of policy because of the problems which it may cause. Claims of other countries upon dual-national U.S. Citizens often place them in situations where their obligations to one country are in conflict with the laws of the other.

In addition, their dual nationality may hamper efforts to provide diplomatic and consular protection to them while they are abroad. It generally is considered that while a dual national is in the other country of which the person is a citizen, that country has a predominant claim on the person. In cases where a dual national encounters difficulty in a foreign country of which the person is a citizen, the ability of the U.S. Government to provide assistance may be quite limited since many foreign countries may not recognize the dual national's claim to U.S. Citizenship.

Nevertheless, Japan has shown considerable generosity with dual national Japanese (even those who have flaunted the nationality law and not properly completed the naturalization process by renouncing their other nationalities when they could) in the past, and allowed the consulate/embassy officials from the detained person's other countries to visit and talk with them. Legally speaking, though, Japan is under no obligation by international law to do this.

Japan's extradition treaties and agreements which override or complement its Law of Extradition

Japan has only done this twice for extradition

The above conditions regarding the death penalty and minimum sentence apply to cases where the terms for extradition are not spelled out in a separate treaty.

Amazingly, as of 2014, Japan only has TWO (2) extradition treaties with other nations!

1. The Republic of Korea Extradition Treaty (2002)
2. The United States of America Extradition Treaty (1980)

Japan's treaties with these two countries are "dual criminality" treaties that override the standard 1953 Extradition Act/Law in three fundamental ways:

1. Japan will extradite non-Japanese to the US or ROK even if the crime carries the death penalty in these countries (South Korea, Japan, and U.S. federal as well as some state laws have the death penalty for some crimes). Without a treaty, Japan will not extradite foreign residents if the death penalty applies.
2. Japan will extradite non-Japanese to the US or ROK if the crime carries a penalty of one (1) year or more. Without a treaty, Japan will not extradite foreigners unless the potential penalty would be for a minimum of three (3) years or more.
3. In the United States treaty, the crimes that one may be extradited for are spelled out (broadly) in the treaties. Most of the crimes are obvious. Some of the crimes are surprising (i.e. bigamy).

To compare Japan's two treaties with other ~190 countries (2007 data) in the world:

Formal Extradition Treaties with Countries

• UK: 115 treaties
• FR: 96 treaties
• US: 69 treaties
• KR: 25 treaties
• JP: 2 treaties

Although Japan does not have a formal extradition treaty with Brazil, the foreign ministries of both countries, since 2013, have begun cooperating with each other regarding criminal prosecution, civil justice, fugitives, and prisoner transfer.

Additionally, Japan has made separate mutual bilateral agreements with other countries to request or provide evidence for criminal court cases or investigations. Japan currently has these "MLAT/MLAA" forms of legal cooperation with the following countries:

• United States
• South Korea
• People's Republic of China
• Hong Kong
• European Union
• Russia

Japan will still provide and request "Mutual Legal Assistance" with countries that it does not have a specific agreement or treaty with, but the MLA process is more complicated with a higher chance of rejection. The country requesting assistance must make a formal request.

Serving justice for crimes you commit overseas in foreign countries & territories

As a Japanese national, no matter where in the
world you break Japanese law, you will get your
day of judgement in a Japanese court.

Just because France (and Japan) and other countries like PRC and ROC won't surrender their nationals on their turf doesn't mean someone can go wild in a foreign country and as long as they make it back to their home they won't face justice.

These countries that do not extradite its own try you for the crime committed overseas as if you had committed the crime on its own soil: "aut dedere aut judicare" in legalese — Latin for "extradite or prosecute". If you happen to be in a third country and for some inexplicable reason no other 3rd country has extradited you — this is merely a theoretical example, Japan will/can even extradite its own nationals, naturalized or natural-born, back to Japan to face the Japanese justice system.

Embassies & Military Bases: not foreign soil or territory

Japan's "foreign soil" on 18th & 19th floors in Manhattan.

Contrary to popular assumption, an embassy/consulate in Japan or anywhere else in the world is not "foreign soil" or territory. For instance, when you're inside the U.S. Embassy in Tokyo, you're not, from a jurisdiction point of view, on American soil. This should be obvious as there are many consulates in the world (such as the Japan Consulate in New York City) which are exclusively on upper levels of tall buildings and skyscrapers.

The reason people mistakenly believe this is because local law enforcement cannot enter an embassy without the express permission of the embassy's ambassador — even if they have a legal search warrant or order from a court. People assume the reason this is so is because it is "foreign soil" and the host country does not have jurisdiction. The actual reason they can't enter, however, is because the Vienna Convention On Consular Relations explicitly prohibits a hosting country from entering a consulate or embassy. It also obliges the host country to protect the embassy. This is why you see a 24/7 police presence in front of the embassies of countries that attract a lot of political demonstrations and protests (ex. the United States, Russia, South Korea, People's Republic of China, …).

To give an example: pretend two Americans, inside the U.S. Embassy in Tokyo, get into a fight in the American Citizen Services waiting area. One kills another. What happens? No, they don't put them on a helicopter to a military base then plane and whisk them to the U.S. for trial or put them in a court or jail inside the embassy. What happens is the U.S. calls the Japanese police. The Japanese police can't go inside the embassy without permission, so either the U.S. Ambassador invites the Japanese police in to take the perpetrator and body away or they boot both the victim and perpetrator to the curb outside. Providing America does not extradite them to the United States, they will be arrested, sentenced, tried, and serve time in the Japanese system.

This box really should have air holes.

If you end up running from the law in Japan and somehow end up in an embassy, the police can't follow you in due to the Vienna Convention, but you're stuck there (like Julian Assange), unless the Ambassador decides you've overstayed your welcome or they get creative using methods of transportation that the law can't touch (such as a huge/human-sized diplomatic "bag"/pouch and vehicles with diplomatic plates).

A similar agreement exists for military bases. When a child is born on an American military base, they are not becoming a natural-born American because of jus soli (by the soil); they are becoming a natural-born American because of jus sanguis: one or both of their parents, probably serving with the military, are U.S. citizens.

Epilogue & Summary

The jury in French-controlled Guadeloupe (グアドループ {Guadorūpu}) found French-American Hans Peterson to be guilty of "murder with acts of barbarianism". After listening to the victim's family testify and observing Peterson display no remorse for his crime — he said in court that he "got his revenge" — the jury sentenced Peterson to the harshest penalty under French law: life in prison with the possibility of parole in 22 years. Peterson is currently filing an appeal as of March, 2014.

In summary, an additional (and hopefully rarely needed) benefit of becoming legally Japanese is that you're protected (so long as you're on Japanese territory) from facing the justice system of other counties. If you do commit a serious crime overseas, and are arrested in Japan, you will face the courts of Japan and face punishment inside Japan. After one is punished, you stay in Japan, because unlike permanent residents, naturalized Japanese can not be deported as they are legal nationals/citizens and they have the absolute right of abode in Japan. You can be fined, you can be imprisoned, and you can even be executed. But you can't be deported.