Extradition in International Criminal Law

According to I Wayan Parthiana, 2009, the elements of extradition include:

• Subject element: the requesting state as the country that has an interest in trying or punishing the perpetrator and the requested state as the country where the perpetrator is (currently) located.
• Object element: the person/individual requested to be handed over (suspect, defendant, or convict)
• Procedure/method element: There is a request, carried out formally
• Purpose element: to try the person requested or to carry out the punishment (or the remainder of the punishment) against them.
• Basic element/legal basis: There is an extradition treaty or the principle of reciprocity

There are several extradition principles that are used as the basis for an extradition process, namely:

1. The principle of double criminality (Article 16 paragraph 1 UNTOC, Article 4 of Law No. 1 of 1979 concerning Extradition), namely that an act that is used as the basis for an extradition request must be a crime according to both the law of the requesting country and the requested country.
2. The Principle of Specialty (Article 14 of the United Nations Model Treaty on Extradition 1990) is that extradition can only be carried out if there is an act that is expressly stated as the basis for the requesting country to carry out extradition.
3. The principle of non-extradition of nationals (Article 16 paragraph 10 UNTOC, Article 7 of Law No. 1 of 1979 concerning Extradition). This is because the country where the perpetrator of the crime is located, where the perpetrator is its own citizen, has an active national principle or has the right to try its own citizens. So without the surrender or extradition of the country of origin of its citizens, it can automatically directly try them with this active national principle.
4. The principle of non-extradition of political criminals (Article 16 paragraph 14 UNTOC, Article 5 of Law No. 1 of 1979 concerning Extradition). The reason for not extraditing someone who commits a political crime is, firstly, for the sake of justice to protect human rights in politics, even if it is different from the political understanding of the legitimate ruler. This is also based on Article 5 paragraphs 1 and 3 of Law No. 1 of 1979 that if a certain crime by the requested country is considered a political crime, then the extradition request can be rejected, unless otherwise agreed by the requesting country with Indonesia.
5. The principle of nebis in idem (Article 9 European Convention on Extradition and Articles 10 and 11 of Law No. 1 of 1979) which states that the requested country can reject extradition to perpetrators of crimes who have been tried and have a final decision.
6. The Principle of Statute of Limitations (Article 10 European Convention on Extradition and Article 12 of Law No. 1 of 1979 concerning Extradition) which states that the requested country has the right to reject an extradition request if the prosecution or execution of the punishment for the crime that is the basis for the extradition request has passed (both according to the law of the requesting country and the requested country).