Extradition practice and the 1874 Extradition Treaty

Extradition is a legal process by which a state jurisdiction ensures the return of a person convicted or accused of a crime to another jurisdiction, which holds/claims the right of trial. As a political tool and courteous gesture between rulers, the practice has existed – albeit irregularly – since ancient times.Footnote ¹¹ While it maintained a bilateral approach, extradition proceedings were far from a well-established practice in the nineteenth century.Footnote ¹² The domicile determined a person’s legal status before the law and remained legally binding for jurisdictional and civil matters. In addition to this, judicial variances and the territorial law meant that extradition proceedings often faced difficulties.Footnote ¹³ After all, extradition was an issue of territorial sovereignty.Footnote ¹⁴ However, the practice remained a diplomatic linchpin that encouraged many states to implement an international penal code and extradition legislation. In the case of the Kelly affair, which occurred in an age that faced “a crisis of mobility,”Footnote ¹⁵ transnational crimes were considered an abuse of justice and a crime against humanity.Footnote ¹⁶

The Ottoman Empire had no extradition agreement with Europe as the latter relied on their consular jurisdictions. Several European states erroneously believed that the empire had been blind to the territoriality of law and unaware of the encroachments on its jurisdiction system.Footnote ¹⁷ As such, they believed they had to secure the rights of their nationals. However, this belief existed alongside the problems created by the capitulations. The European states frequently faced a dilemma when trying to define the capitulatory regime. Were they the basis of centuries-long relations with Europe, which determined the reciprocal rules of law and diplomacy, or were they the regulations whose “peculiar features revealed an anomalous and inferior form of interstate law?”Footnote ¹⁸ Ultimately the legal discourse formulated as customary practice generated a more powerful consensus on the capitulations. The extraterritorial jurisdiction in the Ottoman lands also added a distinct dimension to the idea of the fugitive in extradition practice. Extradition was possible if there was a fugitive, and the principal purpose of surrendering her/him was to punish the criminal in the place the crime was committed. If there was no escape, there was no need for an extradition. Lack of reciprocity arrangements excluded any solutions in the cases where an Ottoman criminal had escaped to another country.

Despite the absence of a treaty Ottoman officials had a keen interest in extradition. The state had engaged in a series of abortive attempts to reclaim fugitive criminals and prevent impunity.Footnote ¹⁹ Rich in content, the diplomatic correspondence in the Ottoman archives contains various debates related to extradition.Footnote ²⁰ Most of them reveal the complexity of considering extradition, jurisdiction, and capitulations.Footnote ²¹ Ottoman legal scholars demonstrated similar arguments. Kirkor Zohrab, for example, treated the extradition under the penal codes.Footnote ²² On the other hand, Servet believed that the absence of legislation and a treaty left the extradition practice in an ambiguous state.Footnote ²³

The 1874 Extradition Treaty was the only agreement officially signed by the Ottoman state in the nineteenth century.Footnote ²⁴ Comprising eight articles, the treaty existed within the same context as the treaties signed by the European powers in the same epoch. The Ottoman government had previously agreed on protocols for prisoner exchange, as demonstrated in the 1774 Treaty of Küçük Kaynarca with Russia and the 1746 Treaty of Kurdan with Iran. However, they were substantially different in form and content compared to the nineteenth-century treaty models.Footnote ²⁵

The 1874 Treaty of Extradition had deep historical roots in US–Ottoman relations. Extradition negotiations first came up in the context of the issue of subjecthood. The increasing number of Ottoman subjects, mainly from the Armenian population, who sought US naturalization while keeping their Ottoman identity by birth, posed a threat from the Ottoman perspective. Several felons, who were judicially in limbo on both sides due to their ambiguous legal status, avoided punishment. For this reason an extradition treaty was enacted alongside the 1874 Naturalization Act, which intended to resolve the nationality problem for American and Ottoman subjects. The 1874 Naturalization Act was drawn up in striking resemblance to the similar agreement between the USA and Germany.Footnote ²⁶ The extradition treaty, remodeled after the American–Italian treaty example in 1868, came into force quickly.Footnote ²⁷

However, the US Senate never ratified the 1874 Naturalization Act officially, due to long-term disagreements regarding the treatment of subjects naturalized before the 1869 Ottoman Nationality Law.Footnote ²⁸ Instead, both states recognized it informally until the Ottomans unilaterally reneged on the convention in the early 1890s. Paradoxically the large number of migrants who had been the pressing reason for the convention became the biggest political obstacle in the way of its enactment.Footnote ²⁹ The abeyance of the naturalization question directly affected the fate of the extradition treaty. After the Kelly affair Ottoman resentment regarding the failed negotiations on naturalization persisted. The procedural requirements imposed by Washington only continued to prevent a successful extradition practice. Ad hoc political actions further complicated the negotiations.

Legal battle over extradition

The conversation between the US secretary of state, William Evarts, and the Ottoman minister in Washington, Grégoire Aristarchi (Aristarchi Bey), is testament to the sophisticated diplomatic advances and parries employed by both states during the Kelly affair. When referring to the threat of naval bombing against Tripoli, Aristarchi Bey referenced the series of conflicts that had come to a head in two wars fought near North African shores between the US and the suzerain powers of the empire. Known as the Barbary Wars in the West, these campaigns took place between 1801–5 and 1815–16.Footnote ³¹ The larger-scale imperialist ventures the United States would undertake overseas in the future had not yet taken place. Additionally, the threat of bombing can be attributed to instances of American captains’ imprudent blustering, instead of a general US policy of encroachment. However, it was apparent to Ottoman observers that American diplomacy was utilizing the carrot-and-stick policy as a strategic tool throughout the world at the close of the century.Footnote ³² Aristarchi Bey’s emphasis on the Barbary Wars, which had occurred more than half a century earlier, should therefore be read in this light.

His words were also testament to his discretion as a seasoned Ottoman diplomat who had weighed the strengths and weaknesses of his opponent. He acknowledged the need for a delicate balance in the Ottoman state’s diplomacy with the USA. It would not be incorrect to situate Aristarchi Bey as a key actor in the Kelly affair. Serving as the Ottoman representative in Washington (1873–83), he was an Ottoman diplomat of Greek descent and had many years of experience.Footnote ³³ Aristarchi Bey was more than a career diplomat, however, and he also undertook education as a jurist and served in various provinces.Footnote ³⁴ He was also the author of the legal collection Législation ottomane. Footnote ³⁵

The Ottomans did not sweep the Kelly affair under the diplomatic rug due to fear or threats. On the contrary, the Sublime Porte conducted a long-winded and efficient campaign of legal diplomacy that reflected their confidence in the developing judicial system.

It is crucial to remember that the initial conflict had erupted over the jurisdictional right of trial. The Ottoman state had granted the United States the most favored nation title, much like their European counterparts, and the US claims rested upon it. Where Ottoman subjects were part of criminal cases, however, the so-called privilege of extraterritoriality was never officially accorded to American nationals, in a manner similar to the way it was withheld from other European powers. Aristarchi Bey referred to it as an “imaginary feature” in one of his dispatches, implying that the supposed privilege was not reflecting practice in the least.Footnote ³⁶ In any case, the American consular representatives attempted to distort the terms of the capitulatory agreement. They solicited every means to push the extraterritorial limits, occasionally by referencing the discrepancies in Article 4 of the 1830 treaty.

This article appeared differently in the Ottoman-Turkish and English treaty versions. Whereas the English translation stated that the rights of trial and punishment were the judicial prerogative of the American consul-general, the original Ottoman-Turkish text touched only slightly upon the point of judicial competency, thus leaving the door open to American claims of Ottoman misinterpretation.Footnote ³⁷ Using the excuse of difference in translations, the American authorities pressed their right to try Kelly.

Smithers articulated another excuse for freeing Kelly. Refusing to acknowledge the Ottoman legal competency, he added: “I wish your excellency to understand that I claim not only to be present at the Tribunal regularly instituted but also claim an indispensable right to give my voice to the judgment.”Footnote ³⁸ He rendered this justification apparent by demanding an “extraordinary” tribunal rather than leaving the case to the Ottoman court of appeal (Temyiz Mahkemesi).Footnote ³⁹ The attitude of the American representative reflects a widely shared European bias against the Ottoman judiciary system. Most thought that the concept of territorial sovereignty had not yet entirely established the power of sanction in the Ottoman lands, which frequently brought extraterritoriality into question.Footnote ⁴⁰ As Shih-Shun Liu argues, “extraterritoriality was nothing but a legacy of the undefined or vaguely defined status of the alien in the ancient world, and a survival of the medieval theory of the personality of laws, which was once prevalent everywhere in Europe.”Footnote ⁴¹ However, its centuries-long survival as a legal phenomenon was particular to a select few countries, among which the Ottoman Empire was the most prominent.Footnote ⁴²

Smithers’ excuse did not have any proper legal basis in the Ottoman justice system. First, the other European powers mostly conformed to the Ottoman juridical approach, albeit with reluctance.Footnote ⁴³ Additionally, the investigative courts (tahkik meclisleri) were established in 1854 to function similarly to that of a mixed court, hearing correctional and criminal cases involving Ottoman and foreign subjects in the provinces. These trials would begin in the presence of a dragoman and continue in line with the existing treaties.Footnote ⁴⁴ The consuls had only limited adjudication for criminal matters, especially for those involving Ottoman subjects. The Ottoman legal experts ardently supported the Ottoman penal codes, which were emblematic of territorial law. According to Zohrab, the penal codes were the sole authority in criminal cases and needed to be implemented in every corner of the empire, including consular institutions.Footnote ⁴⁵ As Hüsrevyan Hamayak argued, they knew that the European powers flouted the jurisdictional rights of the European subjects. The lack of regulations in the codes concerning territorial jurisdiction eventually presented occasions in which justice could be manipulated.Footnote ⁴⁶

In the Kelly affair the question of who had the right to preside over a trial ended in deadlock over the controversial Article 4. The Ottoman government was insistent on its jurisdictional rights. The situation compelled Washington to seek other legal openings through which to maneuver, and they proposed extradition. The proposal took the Ottoman authorities by surprise, as the relevant treaty terms were not applicable to the case. The extradition proceedings initially required that Kelly be sent back to the empire for a fair trial, but they could not find him anywhere. Additionally, no country would extradite their own citizen. For these reasons the Ottoman authorities had already written off the notion of extradition as a diplomatic solution.

Instead the Ottoman officials laid out a strategy to adhere to a strict interpretation of the treaty stipulations. The Ottoman minister for foreign affairs, Mehmed Esad Safvet Pasha, issued a rather shrewd answer, stating that they could not extradite the accused as he was not legally defined as a fugitive. He was a suspect under charge who had been released by the American consular agents in an action of malfeasance. Only Kelly’s intent to escape had made the extradition demands negotiable. Safvet Pasha was directly quoting the relevant articles of the 1874 Extradition Treaty. He further strengthened his claims by highlighting another obstacle to the notion of extradition. Even if Patrick Kelly had fled by his own means, his extradition would not have been a viable legal option as there was no intentional murder. Supporting this argument, Article 2 of the treaty reads as follows:

Safvet Pasha pointed out that the murder of Tahir did not conform to the treaty stipulations. Patrick Kelly was very inebriated on the day of the attack and had smashed a bottle on Tahir’s head, who eventually died. The circumstances of the incident clearly demonstrated that it was not a premeditated crime. Instead it fell within the purview of involuntary homicide. Thus, the extradition process could not be started as there was no mention of involuntary homicide in the treaty.Footnote ⁴⁸

The criminal’s current whereabouts was also an important prerequisite for an official extradition request. Only after Kelly’s location had been established could the authorities begin the process. What happened then, in accordance with the regulations, when a suspect or convict had escaped from the Ottoman Empire? If the crime was committed in a province, the claim of extradition would come from the district (liva) of that province. Once the authorities had determined the fugitive’s whereabouts abroad, the local public prosecutor (müdde-i umumi) would submit an official request to the public prosecutor at the court of appeal (istinaf müdde-i umumisi). The public prosecutor would then send the official reports from the district administration, which were attached to the court order (mahkeme ilâmı) and the arrest warrant (tevkif müzekkeresi) of the investigating judge, to the Ministry of Justice as a last resort. Only after the legal arrangements had been completed would the Ottoman representatives abroad resort to diplomacy.Footnote ⁴⁹

In the case of Patrick Kelly the Ottoman authorities could not enforce these regulations. As made clear by Aristarchi Bey, the convict had not yet set foot on American soil. The rumors that he was traveling onboard the USS Vandalia offered additional proof of this. This American warship had become internationally famous for its expedition along the Mediterranean shores between 1876 and 1878.Footnote ⁵⁰ While the implicit threat of an attack by unruly American captains prevented the Ottomans from chasing Kelly via the ports, the presence of American President Ulysses Grant on the ship might be another reason for the Ottoman hesitations. Importantly, his visit to İstanbul was a grand occasion, as evinced by the foreign press of the time.Footnote ⁵¹ Adherence to the treaty would not support any chance of extraditing Kelly as there were no regulations allowing an arrest of the convict on the open seas.Footnote ⁵² Evarts also clarified that they would not attempt to reclaim Kelly if he took refuge in a third state.Footnote ⁵³

Perceiving the difficulties of arresting Kelly and the procedural obstacles preventing his extradition, İstanbul at last turned to diplomatic means. It is particularly clear that they were determined to handle this conflict by adopting the legal parlance of the time, and the language used in their correspondence is indicative of this. As Maurus Reinkowski has aptly remarked, the regular flow of Ottoman correspondence was a remarkable manifestation of the imperial “political idiom” and “rhetoric of power” of its time.Footnote ⁵⁴ Reflective of Reinkowski’s words, one of the most effective weapons of the nineteenth century were the references made to international law. Although the European states frequently bent international law to extend their reach overseas, the Ottoman Empire, similarly and to the best of its abilities, made use of the same tool.Footnote ⁵⁵

The Ottoman government learned through bitter experience how the European powers had intervened in the affairs of the Ottoman Empire throughout the previous hundred years. Using the euphemism of humanitarian intervention, European nations frequently cried out when Ottoman domestic crises (often instigated by foreign agents) erupted, including the Cretan Question and the 1860 Intervention in Lebanon.Footnote ⁵⁶ The Bulgarian massacres of 1876 and the forthcoming Berlin Conference certainly further enhanced the Ottoman understanding of nineteenth-century international politics, increasingly guided by Machtpolitik. Pushing back against this order, Ottoman officials availed themselves of the international law the European powers used to carry out their “dual civilizing mission,” which brought “peace and order within the European system” but used “force to (civilize) outsiders.”Footnote ⁵⁷ Ottoman legal advisors had been advising the state departments since the Crimean War. The establishment of the Ottoman Office of Legal Counsel (Hukuk Müşavirliği İstişare Odası) in 1883 ushered in a new era for scholarly discussions in law. Despite criticisms that the Ottoman state was not an acknowledged member of the family of nations, the office resorted to the formidable legal corpus they had accumulated over years.Footnote ⁵⁸ By 1908 there was a significant proliferation of publications in international law in the Ottoman state.Footnote ⁵⁹ In this way Ottoman bureaucrats increasingly leveraged international law in their foreign relations.Footnote ⁶⁰

From the earliest days of the Kelly affair, Safvet Pasha claimed that due to the international character of the crisis it could not remain among only the American and Ottoman parties.Footnote ⁶¹ Aristarchi Bey shared the same opinion and did his best to draw the attention of an international audience. The illegal attempt to judge and release Kelly was against the principles and spirit of the highly esteemed law of nations.Footnote ⁶² The US government ignored the protests and cloaked their arguments behind a mask of so-called amicable relations maintained reciprocally between the two governments. Aristarchi Bey remarked that if the American government insisted on referring to extradition, then the Ottomans would appeal to the Ottoman parliament (Meclis-i Mebusan). He asserted that the American government, a burgeoning constitutional power, would be embarrassed by the resulting international reactions. Founded just two years earlier, the parliament already symbolized widely held hopes for a representative government. Ottoman officials were eager to prove both “the actual value of Ottoman institutions” and expose “the abuses of foreign agents” in the empire. Aristarchi Bey blamed the consulate agents, who made claims without any concrete evidence or consulting lawyers.Footnote ⁶³

The Ottoman engagement in international legal discourse and holding forth the treaty text indicated a novel diplomatic direction. Aristarchi Bey noted that there was an official Ottoman trust in the judiciary system and domestic legal formalism. His point was egregious, however, since the Ottoman state had relied considerably on the opinions of the lawyers as of late. Nevertheless, neither the Ottoman nor the American officials spoke or acted without prior consideration in the Kelly affair. The Sublime Porte pursued legal diplomacy only to the extent permitted by pragmatic concerns. While rebuffing the extradition demands with the excuse that the 1874 Extradition Treaty was inapplicable to involuntary homicide, they were primarily occupied with the costly consequences the extradition process would engender. Amounting to 40,000 to 50,000 francs, these expenses were too high to cover for each extradition proceeding. Aristarchi Bey reported that many other states also abandoned reclamations of even the most offensive fugitives out of economic concerns.Footnote ⁶⁴

Washington remained distrustful of the Ottoman state’s judicial competency. Otherwise, knowing as they did that it could not be applied under the circumstances, they would not have insisted on the extradition. Within the American system official treaties were highly valued as they were Congress Acts. The extradition treaties, in particular, were drafted to conform to the principles of statutory laws.Footnote ⁶⁵ Thus, they could have surrendered Kelly to the Ottoman authorities rather than essentially warding off the extradition treaty. In the same decade Horace Maynard stated that there would be an “unwillingness [to depart] from this policy of jurisdiction” in negotiating with non-Christian powers, “whose modes of justice and forms of punishment” were unlike theirs. He was elucidating the US policy adopted generally for those countries at the time.Footnote ⁶⁶

The obstacles barring extradition and a just trial of Kelly proved to be a considerable vexation for the Ottomans, who feared that this incident would cause impunity. In the end the American government assented to give $1,200 to Tahir’s family in 1878. Aristarchi Bey stated that they would accept the payment to end the crisis.Footnote ⁶⁷ However, the reasons the Ottoman state spent so much time and effort waging a legal battle against the American legation only to accept a pecuniary compensation at the expense of a territorial right of jurisdiction should be considered within the broader historical framework of US–Ottoman interstate politics.

Ottoman justice on the slippery grounds of foreign politics

Montesquieu’s words refer to the perception that Europe had long held regarding the Eastern societies. According to this understanding, the rule of law, necessary for the advancement of an ideal state, was one of the ultimate criteria for civilization. The Ottoman Empire, which was deemed semi-civilized by the Europeans, was supposedly devoid of the traits attributed to the rule of law. An assumed arbitrariness of justice and inefficient legal system was the best evidence for such European accusations. Unfamiliarity with an empire perceived as alien due to geographic and cultural differences only exacerbated the assumptions and criticisms. According to most European legal scholars the Ottoman Empire fitted perfectly into the picture of Oriental despotism.Footnote ⁶⁹

As the Kelly affair demonstrates, one should approach these self-evident truisms with a great deal of caution, if not eschew them altogether. Undeterred by occasional failures along the way, the empire refashioned its judicial system along modern lines by enacting a series of legal reforms that arrived in leaps and bounds. The Penal Codes of 1840, 1851, and 1858, the Civil Code of 1877, the new courts and tribunals, the 1876 Constitution, and procedural laws do not even scratch the surface of the reforms.Footnote ⁷⁰

By introducing international law the Ottoman Empire built further upon the aforementioned legal reforms. Just a few decades earlier European diplomats had looked down on Ottoman officials for their ignorance. In 1836 William Churchill, an English journalist living in İstanbul, killed an Ottoman boy by accident in the Belgrade forest. His arrest and trial were hotly disputed among diplomatic circles. When Yusuf Halis Efendi, an official of the Translation Office, mentioned a famous book on the law of nations during one of these discussions, Frederick Pisani, the chief dragoman of the English embassy, turned a deaf ear to the comments, determined that international law was not fit for the Ottomans.Footnote ⁷¹ A lot changed after the Crimean War. In 1856 the Ottoman state’s participation in the Paris Peace Conference and the Reform Edict (Islahat Fermanı) redefined its position in the international arena. The increasing engagement with international law transformed the state’s asymmetrical relations with Europe. However, the capitulations, like the sword of Damocles, remained ever-present. During the Paris Peace Conference Ali Pasha indignantly blamed the extraterritorial evil, which “constitute[d] a multiplicity of governments within the government, and an insuperable obstacle to all improvements.”Footnote ⁷²

The American policy adopted during the Kelly affair was reminiscent of a power long accustomed to capitulatory relations. In this respect, the US–Ottoman dispute allows the rapid change in American standpoints in the international arena to be traced. The founding fathers of the country had the foresight to forge a political system that relied on constitutional principles of a territorially defined power. The formation of the American state was fine-tuned to what Westphalian sovereignty envisioned.Footnote ⁷³

This legalist approach did not last long. The aggressive efforts to claim a place in the international political order reflected the vision of an aspiring world power, desirous of catching up with Europe. For the young republic, the Ottoman Empire ostensibly could have served as one of the best arenas to test its strength and forcefully assert its overseas interests. The US was determined to compel the Ottomans to grant the same privileges accorded to Europeans under the guise of immunity. However, the American imperial gaze was not unique to the Ottoman Empire, and one can likewise point to the US influence that had already emerged in distant regions. A session of Congress, held on June 22, 1860, laid out the principles of foreign jurisdiction in China, Japan, Siam, and Iran. It specifically stated that,

For those aforementioned countries, the civilization criteria seemed to determine the course of the US jurisdictional encroachment. In fact, the Europeans also felt the rising challenge posed by American statecraft. In the same decade as the Kelly affair another dispute over extradition, the Lawrence case (1876), created similar tensions between the US and British governments. Washington demanded Charles Lawrence’s extradition, whom they accused of fraud against American interests. Ireland had extradited the convict earlier according to the 1842 Extradition Treaty. Yet his trial for more than one offense was against the treaty obligations and caused controversy regarding the agreement. Ignorant of British protests, the US authorities ardently supported the exceptionality of the Lawrence case. They strove with the same vigor to prevent British intervention. Unlike the Kelly affair, where the accused eluded justice, the British–American legal battle resulted in the severe punishment of Lawrence by the American justice system.Footnote ⁷⁵

The spirit of American diplomacy in the Lawrence affair bore a striking resemblance to the attitude adopted during the Kelly affair a year later. When analyzed through a comparative lens, the two cases demonstrate how the power structures in the international arena should be reevaluated beyond the established hierarchies which had for so long secured and defined their power in Europe.

After the Kelly affair the Ottoman government put aside the option of extradition due to the resentment directed at the unresolved naturalization question. In one of his dispatches Naum Pasha explicitly remarked that the treaty was not in use due to the naturalization quagmire, and the American side did not encourage any cooperation either.Footnote ⁷⁶ When the Lebanese citizen Tammous Elias Fares killed another Lebanese citizen and escaped to the United States in 1893, Washington automatically rejected the Ottoman demands of delivery without resorting to the treaty. By raising additional procedural difficulties they evaded full implementation in a manner similar to the Kelly affair.Footnote ⁷⁷ Two decades later the same problems arose again. In 1912 a certain Dikran from the Diyarbekir province killed another Ottoman and fled to New York. The Ottoman government, who demanded the return of the fugitive via diplomatic means, received the same reply.Footnote ⁷⁸ While officially embracing the extradition treaty the US government again strayed from its regulations by demanding a court trial before an American magistrate.Footnote ⁷⁹ Eventually these legal conflicts resulted in impunity. The 1874 Extradition Treaty officially remained in force yet was rarely used until the Republican period.Footnote ⁸⁰