Treaty of Extradition

Author: ANSHI MISHRA, 3rd Year, B.A.LL.B (Hons.), School Of Law, Jagran Lakecity University, Bhopal.
The article has been written by the author while pursuing the internship program with us.

Introduction

Every country has a different set of laws one country cannot exercise its jurisdiction over the other country by hampering its sovereignty. This can be done only through the means of an agreement between the countries. Under a situation where a person commits a crime and absconds to another country mutual cooperation between the countries are needed to punish the criminal and prevent the crimes.

Extradition is a process in which a sovereign country which has a territorial jurisdiction delivers a person who is accused or has been convicted of committing a crime in another jurisdiction. It is a type of a judicial assistance between the States where the State transfers the criminal in order to prosecute him. It is important to bring the accused back to the State where he has committed the crime. As a concept, it originated with the Ancient Egyptian and Chinese civilizations. Which was followed by an unsuccessful Hittite invasion of Egypt, an extradition agreement was made a part of a peace treaty signed between Ramses II and the Hittite King, Hattusili II. Amazingly, this text still exists. An English monarch for the first time officially made the provisions for extradition in the Treaty of Falaise in 1174AD.[1]

After the industrial revolution with the emergence of the jet era which gave an advantage to the criminal to beat the time and distance caused the development in the extradition laws. Post-1948 developments which ushered a greater concern for protecting the human rights of person and reveal awareness for the need to have international due process of law to regulate international relations.[2] In the Supreme Court case of Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra [(2011) 11 SCC 214], Justice Sathasivam was of the view that the world is witnessing a massive increase in the international transport and communication, hence extradition has taken prominence since the emergence of the 21st century.

Purpose and Process of Extradition

Witnessing the rapid increase in the rate of crime internationally, the extradition treaties are attracting more attention in the International laws. The sole purpose of extradition treaties has always been to curb the rate of crimes and punish the offender who has absconded to another State. It is important that a person who is accused of a crime should be prosecuted in the state where he has committed the crime because it makes the trial easy and efficient for collecting the evidence and witnesses. But if the state is unable to punish the accused due to the technicality of law, then he should be transferred to the state where he can be punished.

In India the extradition process is governed by the Extradition Act 1962, this act is the cluster of all the laws which are in relation to the extradition of the fugitive criminal. Here fugitive criminal means the accused who has committed an extradition crime in the jurisdiction of a foreign state and the accused who has committed the crime in India which is termed as extradition offence in the foreign state. What happens in the condition when there is no extradition treaty between the countries? It is already been discussed that the Extradition treaty is a type of legal assistance between the countries to transfer the accused. But under the condition of absence of treaty the countries which follow common law system has a general rule that they will not extradite in the absence of a treaty. The treaty has to be there in order to claim the extradition of a person. The countries which follow the civil law system are more liberal they extradite a person in the absence of the treaty in accordance with their national laws.

Basic Principles Governing Extradition Process

1. Principle of Dual Criminality: This principle states that the act for which the accused is being tried should be an offence in both the countries jurisdiction.

2. Rule of Specialty: This rule states that the fugitive who is extradited for a particular crime should be tried for that very crime and not any other crime. In the judgment given by the Apex court in the case of Daya Singh Lahoria vs. Union of India[3] it was stated that a fugitive criminal brought in India under extradition treaty should only be tried for that particular offence provided in the extradition decree and not for any other offence. The Criminal courts in India cannot try such fugitive under any offence other than the one allowed for trial.[4]

3. The Principle of Proportional Punishment: This principle is mainly concern with the protection of human rights of the accused. If the requesting countries grant death as a punishment for the offence committed by the person then the extradition treaty can be denied.

4. Opportunity for a fair trial: This principle is read with the principle of non-inquiry, where the requesting state is under no obligation to subject its judicial procedures as per the punctilious evaluation criteria of the requested state. This principle is flexible in nature but the requested state can raise the question on the judicial proceedings done by the requesting state if the same is on the face of it is against the principle of law and justice.[5]

Correlation between Extradition and Asylum

Extradition is the process of delivering the fugitive from one jurisdiction to another. Whereas Asylum deals with the refugees who are being prosecuted by their own country are offered shelter by another sovereign country. Both of the concepts have different functions and procedure. It is also said that asylum ends where extradition initiates. Asylum aims at providing a safe and secure place of living for the people who are being prosecuted by their own countries. And this right is being recognized by the Universal Declaration of Human Rights under article 14 to seek protection from the sovereign authority.

Extradition treaty between India and other countries

The government of India in order to make the extradition process more efficient fast has entered in bilateral treaty with 42 countries. To provide the legal basis for extradition in terror crime India is also a signatory to the 1997 International Convention for the Suppression of Terrorist Bombings.

  •  Treaty between India and USA- India and USA has been working together with the aim to curb the extremes and terrorism from a long time. There are multiple cases in the past where America has provided legal assistance to India for the extradition of criminals who absconded to the USA after committing the crime. On 25th June 1997, India and America entered into a treaty on extradition.[6]
  • Treaty between India and Hong Kong- this treaty was signed in 1997 when Hong Kong was not part of China. And China has announced that it will follow all the treaty that was signed during British rule. So China might abide this treaty as well.
  • Treaty between India and France- The two countries signed the treaty on 24 January 2003. Before this treaty, there were many terrorist extradited to India and might have given death punishment. But India gave an understanding stating that death punishment will not be given to the terrorist extradition.

Challenges faced by India in Implementing the Treaty of Extradition

The Indian government has made all the efforts to build up a cordial relation with many countries which have resulted in the bilateral treaties with almost 42 nations around the globe despite all these efforts there are challenges that are being faced in implementing the treaty. The process of extradition is only possible when both nations consider the act as a crime. The human rights laws in the UK are considered to be very strong law which eventually makes the extradition of a person very difficult. India and UK have signed the treaty in the year 1997 and India has requested the extradition of almost 131 accused out of which India has managed to get only one fugitive – Samirbhai Vinubhai Patel.[7]

In case of Vijay Mallya who was arrested by the Scotland Yard for the offence of fraud and money laundering charges got released on bail on the extradition request filed by India but he is still not been extradited to India and he has filed appeal against his extradition in the UK Supreme Court after losing an appeal in London High court. Apart from Mallya, cases involving Nirav Modi who is currently under arrest in the UK for the charges of fraud, corruption and money laundering is also fighting for extradition as the extradition request has been made by the Indian authority.

Case law: Lockerbie (US v Libya) ICJ 1992[8]

Facts: Two Libyans blew up a plane. The Libyan government refused to extradite the Libyans for trial.- Libya argued that under the Montreal Convention – Libya could either extradite or prosecute the suspects themselves. US went to UNSC – issued two resolutions.[9] These urged Libya to hand over the bombing suspects. UNSC also embargoes arms sales to Libya, told member states to close offices of the Libyan Airlines.

Extradition – Issue: Whether the US compel Libya to surrender its two accused national in absence of any extradition treaty between them?

Held:

  • No country is bound to extradite. Extradition is a matter of bilateral treaty. Special Extradition can be made on special circumstances.
  •  Without going into the merit of the case, the court advised Libya to follow the negotiation with the UN.

Jurisdiction – Issue: Whether ICJ can review UNSC resolutions?

Held:

  •  The I.C.J. does not perform Judicial Review of UNSC decisions. They are binding and not re-viewable. If UNSC decisions were re-viewable, it would not give the same sense of finality that is required for them to be acted upon.
  • UNSC resolutions prevail over multilateral treaties – Article 103 of the United Nations Charter says, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” and Article 25 says that member States must follow UNSC resolutions.

Debate/Analysis: Libya had no extradition treaty with the US but due to pressure for UN Libya come to an agreement to extradite.

Conclusion

From the above study, we can conclude that the extradition treaty is one amongst the important tool in International law to maintain peace and harmony in the world. This promotes the cooperation mutual understanding within the countries to prevent all the criminal activities. As this concept has roots from ancient times which is being developed according to the changing dynamics around the world. There are a set of basic principles which govern the process of extradition to make sure that the accused is being punished while protecting the human rights of the individual. Another concept which seems to be similar to extradition but has procedural and functional difference is asylum, which aims at giving shelter to the people who are being prosecuted by their own government. India is one such country on the international level which is always on upfront to give cooperation to other nation. India has entered a bilateral treaty with 42 countries which includes treaty with the USA, Hong Kong and France to make the process efficient. In order to build up cooperation with other countries at the international level.


REFERENCES: [1] Rebecca Rideal, Extradition-A very Brief History, THE HISTORY VAUL, (May 02, 2020, 03:39 PM), https://thehistoryvault.co.uk/extradition-a-history/.

[2] Historical Perspective of Extradition, SHODHGANGA, (May 02, 2020, 04:30 PM ), https://shodhganga.inflibnet.ac.in/bitstream/10603/28180/12/12_chapter%202.pdf.

[3] (2001) 4 SCC 516

[4] Priyansh Yadav, Extradition and Asylum, LEGAL BITES, (May, 03, 2020,12:23 AM) https://www.legalbites.in/extradition-and-asylum/.

[5] Ibid

[6] Abhishek Puri, Law of Extradition and Treaties with some countries at international level, LEGAL SERVICE INDIA (May, 03, 2020, 01:34 AM), http://www.legalserviceindia.com/legal/article-90-law-of-extradition-and-treaties-with-some-countries-at-international-level.html.

[7] Kanu Sarda, Vijay Mallya extradition case: India has weak extradition treaties, THE NEW INDIAN EXPRESS, (May 27, 2020, 08:43PM) https://www.newindianexpress.com/nation/2018/jul/31/vijay-mallya-extradition-case-india-has-weak-extradition-treaties-1851272.html.

[8] Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. the United States of America), Provisional Measures, Order of 14 April 1992, 1. C.J. Reports 1992, p. 1 14 [9] (UNSC Resolutions 731/748).


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