The Hindu : Extradition & international law

Online edition of India's National Newspaper
Tuesday, Dec 17, 2002

Opinion

Opinion - Leader Page Articles

Extradition & international law

By V. S. Mani

International law does not impose any obligation on states to extradite... Extradition treaties are traditionally bilateral in nature.

INDIA HAS had some disappointments in its recent attempts to get fugitives extradited from other countries. It hurts us more when some of these countries happen to have `friendly' relations with India. The cases of Anees Ibrahim and Ottavio Quattrocchi need to be looked at from this perspective.

This is an area where political considerations play a prominent role, unless there is an applicable bilateral extradition treaty. Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can, if it wants to, take that decision without any treaty obligations whatsoever, even by exercise of executive discretion. Where there is a bilateral extradition treaty, the states party to it normally go by its terms.

The process of extradition usually involves interposition of the Judiciary in both countries, and this has permitted the emergence of some discernible principles of international law governing extradition.

International law recognises four points as a basis of exercise of criminal jurisdiction by a sovereign state, namely, territoriality (the state where the offence has been committed), nationality (the national state of the offender or the accused), the protective principle (the state whose essential economic or other interests have been directly and adversely affected by the offence), and universality (the offence being an international crime).

Terrorism has added one more — the passive personality principle, i.e., the need for a state to seek justice for its own national or property who/which has been the victim/target of the offence. These often give rise to overlapping claims of two or more states to jurisdiction over the same offence. In a friendly and cooperative environment of bilateral relations, these competing claims are generally resolved through diplomacy leading to extradition. India got, without difficulty, the Britannia tycoon, Rajan Pillai, and the gangster, Babloo Srivastava, extradited from Singapore with which it has no extradition treaty. Indeed, extradition can take place without a treaty obligation, purely as a voluntary act.

Extradition involves handing over of an offender or a person accused of an offence by the country where he is found to another country that requests his extradition. International law does not impose any obligation on states to extradite. Nor does it set out any special procedure for handing over the person concerned to the requesting state — this has been made clear since the Savarkar case between France and Britain before the Permanent Court of Arbitration at the turn of the 20th century.

Hence, the development of extradition treaties since the late 18th century. Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody at least five principles, as endorsed by many judicial pronouncements and state practice in respect of domestic extradition legislation. First, the principle of extraditable offences lays down that extradition applies only with respect to offences clearly stipulated as such in the treaty. Second, the principle of double criminality requires that the offence for which the extradition is sought be an offence under the national laws of the extradition requesting country as well as of the requested country. Third, the requested country must be satisfied that there is a prima facie case made out against the offender/accused. Fourth, the extradited person must be proceeded against only against the offence for which his extradition was requested. Finally, he must be accorded a fair trial (this is of course part of international human rights law now). Judiciary and other legal authorities are likely to apply these principles equally to situations where no extradition treaty exists.

While these are situations largely governed by the political relations between the two countries involved, yet even a political/administrative decision to extradite or deport is likely to go before the law dispensing authorities including the judiciary in the extradition-requested state.

Traditional bilateral extradition treaties, however, incorporated a `political offences' exception, for protection of the individual against possible persecution at the hands of the requesting state. On the basis of this clause, the requested state could refuse extradition on ground of the offence being a political offence.

The Anees' extradition is governed by the Indo-UAE Extradition Treaty, in force with effect from May 29, 2000.

The treaty provides for extradition of persons accused of an offence punishable with imprisonment for at least one year or more. The extraditable offence of this nature may include an attempt or conspiracy to commit or incite or participate in the commission of the offence. The treaty applies regardless of whether the offence was committed outside the territory of the extradition-requesting state, or whether the whole or part of it was committed from the territory of the requested state. But in such a case, the requesting state must have a legitimate basis for exercise of its jurisdiction.

The Indo-UAE treaty provides that a request for extradition may be refused (1) if the offence is a "political offence"; (2) if the person concerned had already been tried for the same offence and acquitted or convicted; (3) if the request relates to an offence the prosecution of which is time-barred; (4) if the request relates to an offence committed by an alien outside the territory of the requesting state but violates the principle of double criminality; or (5) if the requested state prosecutes the person concerned for the extraditable offence committed within its territory, or is being investigated or tried by the requested state. The treaty, however, considerably reduces the impact of the "political offences" exception, by saying that the exception would not apply to (i) assault against high political functionaries of either state, murder, culpable homicide, or robbery, (ii) "offences relating to terrorism", (iii) any offence under international treaties under which India and the UAE have an obligation to prosecute or extradite; and (iv) any attempt, conspiracy, incitement, or participation in these offences.

Evidently, the political relations between India and the UAE must ultimately inveigh such decisions.

The CBI and the Home Ministry will be well advised to seek the assistance of some eminent criminal lawyers specialised in criminal trial, on matters relating to evidential requirements of a prima facie in extradition cases, rather than exclusively relying on police investigative experience.

In all cases of extradition, it is best to approach the appropriate Indian court first, get the accused declared a proclaimed offender by the court, and then seek extradition in a foreign country.

The judiciary of the extradition-requested country is most likely to respect these judicial proceedings establishing prima facie case against the fugitive.

(The writer teaches International Law at the School of International Studies, JNU.)

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