Extradition under International Law

Sanchit Gupta, a 3rd-Year student, from Chandigarh University, has written this Article ”Extradition under International Law”

Introduction

Extradition under International Law is an important aspect. No one can outrun the long arms of law. This adage illustrates the true nature and objective of the legal system. Upon committing an offence, the person will eventually be brought to justice; this is the assurance that is given by the law. With globalization and interconnectedness between countries, it has become easier for offenders to travel abroad and try to safeguard themselves against prosecutions, but if the person is truly guilty, they would be brought even several miles away from the state or country where they committed the crime. This is also described in detail under the term “Extradition” and its related laws.

Origin

The term ‘extradition’ originates from two Latin words- ‘ex, meaning ‘out, and ‘tradium, meaning ‘give up’. It is based on the Latin legal maxim “aut dedere aut judicare” meaning “either extradite or prosecute”. Extradition is, in international law, the process by which one state, upon the request of another, affects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge. Through the extradition process, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (“the requested state”). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process. The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.

Need for Extradition Under International Law

Crime is increasingly turning international. Many serious offences now have cross-border implications. Even in cases of traditional crime, criminals frequently cross borders in order to escape prosecution. According to the traditional principle of territoriality in criminal law, a state will not usually apply its criminal law to acts committed outside its own boundaries. However, there is a growing recognition that states should show solidarity in the repression of criminality and cooperate in the international battle against crime.

An accused or convict is extradited by the territorial state to the requesting state for the following purposes:

To maintain peace in the territorial state

If the convicts or accused persons are not extradited by the territorial state, it will send the wrong message to the criminals intending or planning to escape from the territorial clutches of the juridically competent state. If the territorial state refuses to extradite the convicts or accused persons residing within its territory, it will further motivate more such persons to flee into it. Thus, such a country may end up becoming a haven for international criminals, ultimately threatening the safety and peace within its territory.

To prevent escape from punishment

Most fugitive convicts or accused persons run from the competent jurisdiction to other countries, hoping to escape from the impending punishment for the offence they are convicted of or accused of. Such unjustifiably motivated accused persons or convicts should be extradited so that their offences may not go unpunished.

To enhance international cooperation 

Extradition is also one of the best ways to reciprocate the diplomatic support of the requesting state. It welds diplomatic ties between the territorial and requesting states. Extradition through bilateral or multilateral treaties on extradition acts as an example of international cooperation in international dispute resolution.

Extradition under Indian Laws

The Extradition Act (1870) and Extradition Act (1903) of the United Kingdom regulated extradition in British India. Presently, the Extradition Act (1962) (hereinafter referred to as ‘the Act’) regulates extradition in India. The Act provides for the extradition of fugitive criminals from and to India. In India, the extradition of a fugitive criminal is governed by the Indian Extradition Act, 1962. This is for both the extradition of persons to India and from India to foreign countries. The basis of the extradition could be a treaty between India and another country. Currently, India has extradition treaties in force with the following 48 countries, given in the link.

Further, currently, India has extradition arrangements with the below-mentioned 12 countries.  Extradition arrangements refer to the agreements between the requesting and territorial states, wherein it is agreed that the extradition will take place as per the local laws of the territorial state and international regulations instead of the local laws of the requesting state. 

Example, underworld don Abu Salem was extradited from Portugal to India to face charges. He, along with his wife, was extradited on the conditions that they would not be given the death penalty in India. This was so because European law prevents extradition to a country where capital punishment is in practice.

Principles of Extradition under International Law

Extradition is usually permissible only for relatively more serious offenses and not for trivial misdemeanors or petty offenses. For instance, the extradition treaty between the US and India permits extradition only for those offenses that are punishable by more than one year of imprisonment. Furthermore, some of the key principles are:

Principle of Double Criminality

The crime must be an offence in both the requesting as well as the surrendering state. This is based on the principle of Double Criminality.

Existence of prima facie case against the fugitive

There must be prima facie evidence of the guilt of the fugitive criminal before he is surrendered to the state demanding his extradition. The requested state must satisfy itself that there is prima facie evidence of the guilt of the fugitive. If there is no such evidence, the fugitive cannot be extradited.

Principle of Reciprocity

The principle of reciprocity is well-founded in various aspects of international law. It provides that every act of favor, respect, benefit, or penalty that a country bestows on the citizens or legal entities of another country should be returned (reciprocated) in the same manner. It provides for the mutual expression of international support. As far as extradition is concerned, the principle of reciprocity applies: the territorial state must extradite the accused or convicts in exchange for any diplomatic kindness shown by the requesting state. Such diplomatic kindness may be any act, ranging from tariff relaxations or enforcement of foreign judgments to military or economic aid. This principle may also operate for the mutual extradition of accused persons or convicts between the respective countries.

Rule of speciality

When a fugitive is extradited for a particular crime, he can be tried only for that crime. If the requesting state deems it desirable to try the extradited fugitive for some other offence committed before his extradition, the fugitive has to be brought to the status quo ante, in the sense that he has to be returned first to the state that granted the extradition, and fresh extradition has to be requested for the crime for which the fugitive is sought to be prosecuted.

Prerequisites for extradition under International Law

The accused persons or convicts must not fall under the ambit of the following three categories to be extraditable. 

• Most countries refuse to extradite their own nationals allegedly committing a crime in the requesting state; such countries claim their right to exercise state sovereignty over their nationals, even though the offense was committed in another country.. 
• Most countries follow the principle of double jeopardy and refuse to extradite the persons tried and punished for the same offence for which the extradition is requested.
• One of the most controversial aspects of extradition is that many countries refuse to extradite political offenders. 

In 1910, Vinayak Damodar Savarkar was being brought to India from Britain via a vessel named Morea, for his trial on a charge of treason and murder (Emperor v. Vinayak Damodar Savarkar (1910)). He escaped to France while the vessel was harbored at Marseilles. However, a French policeman, in a mistaken execution of his duty, caught and surrendered Savarkar to the British authorities without following the extradition proceedings. Later, France demanded Britain hand over Savarkar to formally carry out his extradition procedure. Britain refused France’s demand, and the case was laid before the Permanent Court of Arbitration in Hague. The Court agreed with the happening of irregularity on the part of the French policeman. However, France’s demand for a fresh extradition procedure was rejected owing to the absence of international law regarding such circumstances.

Procedure for extradition in India

An extradition request should be submitted to the CPV Division in the Ministry of External Affairs, which is the central authority in extradition matters. The request is examined in the Ministry, and taking into account the relevant extradition treaty or arrangement, if it considers it fit, an inquiry magistrate may be appointed to inquire into the case. If, on the basis of the extradition request, the proof of identity of the fugitive, the supporting evidence, the provisions of the relevant treaty, and the Extradition Act, the Inquiry Magistrate considers that it is a fit case for the surrender of the fugitive criminal pursuant to the request, the Magistrate may in its report recommend extradition of the FC and may commit him to prison to await the orders of the Central Government.

While submitting his inquiry report to the Central Government, the Magistrate shall forward, together with such report, any written statement that the fugitive criminal may desire to submit for the consideration of the Central Government. If, upon receipt of the inquiry report and statement of the FC, the Central Government is of the opinion that the fugitive criminal ought to be surrendered to the foreign state, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery to the requesting state at a place and to a person to be named in the warrant.

Case Law

The case of Mr. Vijay Mallaya, the business tycoon and owner of Kingfisher Airlines and United Breweries Holdings Ltd., is arguably the most well-known extradition case in India (Dr Vijay Mallaya v. State Bank of India (2018)). He owed a whopping debt of over Rs. 6,000 crores to 17 Indian banks including the State Bank of India and the Indian Overseas Bank. Fearing an impending arrest, Mallaya fled from India to the United Kingdom in 2016. His extradition was sought by India in 2017. Mallya’s extradition case was laid before the Westminster Magistrate’s Court in London. In 2018, the Court ordered his extradition to India.

His appeal at the High Court in London was rejected; however, he has not been brought back to India yet due to ongoing legal procedures. It’s also worth noting that in 2019, he was declared a ‘Fugitive Economic Offender’ under the Fugitive Economic Offenders Act, 2018.

In another case, Mr. Nirav Modi was a luxury diamond jewelry merchant. In 2018, the Punjab National Bank (PNB) filed a complaint before the Central Bureau of Investigation (CBI), alleging Nirav, along with his wife, Mrs. Ami Modi, fraudulently obtained fake Letters of Understanding (LoU) worth Rs. 11,400 crores. The money was then channeled to his fifteen overseas sham companies. Following a CBI probe, the Enforcement Directorate (ED) confiscated Nirav’s assets in India. He fled India and sought asylum in the United Kingdom. Interpol issued a red corner notice against him in 2018. Following an extradition request from India, a Westminster Court issued an arrest warrant against Nirav. The court ordered his extradition to India in 2021.

India & U.K Extradition treaty

An extradition treaty was signed between India and the U.K. on September 22, 1992, and ratified on November 15, 1993. The extradition treaty requires certain preconditions, Firstly; dual criminality means that the offense under which a person is being extradited should be a crime in both countries. Secondly, the punishment for the crime in the requesting state should be more than one year. Thirdly, the punishment should not be the death penalty (in that case, the requesting state can give a commitment that the death penalty will not be imposed). Fourthly, the charge sheet in court should have been filed in the requesting state, and the court should have issued an arrest warrant.

Challenges in Extradition Law

• Extradition procedures are complicated by unreasonable delays and variances in the documentary requirements of foreign countries. The first step of the extradition process is to transmit a formal extradition request through diplomatic channels to the foreign government. Once investigations are completed by state or central agencies, they forward a request containing full details of the case accompanied with translations (where required) detailing the offenses charged with, witness testimonies, an arrest warrant, and documents establishing the identity of the requested person.
• Newer treaties adopt the “dual criminality” approach, which provides that a fugitive will be extradited for an offence, only if it is a crime in both countries. The dual criminality approach is more convenient than the list system and ensures that newer offences such as cybercrime, will be given due recognition in both countries and will not require renegotiation of treaty terms. However, the principle of “dual criminality” is not without its challenges. To begin with, it is difficult to establish treaty principles for crimes peculiar to India’s socio-cultural conditions, such as dowry harassment, for instance.
• The principle of the “rule of specialty” which requires that the accused when extradited can only be tried for the offences he was accused at the time of extradition. An example highlighting this principle is the case of ‘Abu Salem from Portugal,’ where additional charges framed by the enforcement agencies were criticized by the Supreme Court in Lisbon as a violation of extradition rules.
• In addition to the situations mentioned above, human rights issues also pose significant challenges in India when dealing with extradition cases. India has lost several extradition cases in foreign courts based on human rights concerns and inappropriate living conditions.

Conclusion: Extradition under International Law

Extradition is an essential tool not only to render justice but also to test diplomatic ties. The idea of instilling fear of legal action against a criminal regardless of their location is the basic idea behind the development of this field of law. It is evolving with time, working for the betterment of society, and also bringing all countries on par in various fields of law. Apart from its loopholes in treaties, there are several other factors that slow down the process of extradition for any country, which is still an effective mechanism to bring criminals under the hammer of justice. The unreasonable procedural delay is due to extensive compulsory documentary and evidentiary requirements, as well as the burden of bilateral relations and the pressure of domestic politics.

Rather, the doctrine of extradition is based on some general, universal principles. And it arises from the provisions of treaties between the nation-states. If there is no treaty between nation-states for extradition, the country that asserts jurisdiction over the criminal is bound to extradite him to the affected country. In other words, extradition is the product of the treaties between the nation states, but it may not be said that without any treaty there would be no extradition. Jurisprudence in the area of extradition law is evolving at a rapid pace, and it is hoped that the Indian Judiciary will match up to global standards and resolve the extremely vexing legal challenges posed to it.

References: Extradition under International Law

• Bare Act
• https://indiankanoon.org/
• http://www.legalserviceindia.com/articles/hmcp_adopt.htm
• https://blog.ipleaders.in/hindu-adoption-maintenance/
• https://www.indiafilings.com/learn/hindu-adoptions-and-maintenance-act/
• https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/hindu-adoptions-and-maintenance-act-1956

                                                                                                                                         Sanchit Gupta

      Chandigarh University