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EXTRADITION UNDER INTERNATIONAL LAW: AN OVERVIEW OF BASIC PRINCIPLES, APPLICATIONS, AND CHALLENGES IN EXTRADITION LAW
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EXTRADITION UNDER INTERNATIONAL LAW:
AN OVERVIEW OF BASIC PRINCIPLES, APPLICATIONS, AND CHALLENGES IN EXTRADITION
LAW
AUTHORED BY - SRILAKSHMI KARAMPUDI
ABSTRACT
The Fugitive Offenders Act is
currently gaining significant global attention due to the rapid increase in international
crime and transnational organized crime. Extradition, derived from the Latin
phrase "aut punier aut dedere" meaning "punish or
surrender," forms the basis of this act. The importance of extradition
laws lies in their role in extraditing and bringing to justice fugitive
criminals who attempt to evade legal consequences. These laws are primarily
based on bilateral or multilateral treaties, as well as specific domestic laws
enacted by individual countries. This research primarily focuses on examining
the fundamental principles and practical application of extradition law, as
well as its position within international law. The study undertakes a critical
analysis of the current progress of India's extradition law, its
implementation, and the challenges it faces within the criminal justice system.
Key words- Extradition, International Law,
Fugitive criminals, Treaties, India
INTRODUCTION
Extradition refers to the process of
transferring individuals accused or convicted of a crime from one jurisdiction
to another. According to the definition provided by the Oxford Law Dictionary,
extradition is when one state, under certain conditions, agrees to surrender a
person accused or convicted of committing a crime within its territory to
another state that has the authority to try and punish them. This involves the
requested state complying with the demand for surrender. The jurisdiction where
the suspect is located is commonly referred to as the "territorial
state," while the jurisdiction where the crime was committed is known as
the "requesting state." It is important to note that extradition is
not exclusively governed by international law, but instead relies on bilateral
and multilateral treaties as well as domestic legislation.
Extradition law can be considered
dual in nature, as it is enforced through both domestic and international legal
mechanisms. Decisions regarding the extradition of refugees are typically made
by the domestic courts of the territorial state. However, these decisions have broader
implications on the relationships between multiple states and, therefore, can
be regarded as part of international law.
TREATIES AND NATIONAL LAWS
Extradition law derives its
principles from various sources, including conventions, regional treaties, and
national legislation. While bilateral treaties have historically been utilized
for extradition, the use of multilateral and regional treaties for this purpose
has become increasingly common. A bilateral treaty refers to an agreement
between two parties, which can be two states, two international organizations,
or one state and one international organization. On the other hand, a
multilateral treaty involves three or more sovereign states, wherein all
parties make similar commitments. Furthermore, many states have enacted their
own domestic extradition laws.
Extradition agreements are
categorized based on the types of offenses for which individuals can be
extradited. The first type is known as a "list treaty," which
includes a specific list of offenses for which suspects can be extradited. This
is the conventional and traditional approach. The second type is the "dual
criminality treaty," which emerged in the 1980s. Under these agreements,
individuals can be extradited if the offense carries a sentence of at least one
year in both the requested and requesting countries.
PRINCIPLES OF EXTRADITION
The law of extradition is governed by
three major principles:
Principle of double criminality (dual criminality):
According to this principle, the
alleged act for which extradition is sought must be considered a criminal
offense in both the territorial state (where the suspect is located) and the
requesting state. The purpose of this principle is to ensure that if the act is
not deemed an offense in the territorial state, extradition may be refused. It
is not necessary for the offense to have the same name or identical elements in
both states, but it should be recognized as a crime in both jurisdictions.
Principle of Specialty:
Under the principle of specialty, the
extradited individual should only be prosecuted or tried for the alleged
offense(s) specified in the extradition request. In other words, the requesting
state must clearly mention the specific offense(s) committed by the fugitive in
the territorial state for the extradition to be valid. This principle prevents
the requesting state from trying the individual for unrelated offenses or
extending the scope of prosecution beyond what was initially agreed upon.
Political Offense Exception:
Extradition generally does not apply
to political offenses. Offenses committed for political purposes, motivated by
politics, or connected to political activities are typically considered
non-extraditable. This exception is recognized in many extradition treaties and
domestic laws. The prohibition of extradition for political offenses is
primarily based on human rights considerations. Human rights conventions, such
as the Universal Declaration of Human Rights (UDHR) and the International
Covenant on Civil and Political Rights, explicitly state that political opinion
should not be a basis for discrimination. The right to seek asylum is also
provided to individuals who are considered fugitives of political crimes under
Article 14 of the UDHR.
In summary, the principles of double
criminality, specialty, and the political offense exception play significant
roles in the law of extradition, ensuring that extraditions are based on
recognized criminal offenses, have clear limitations on prosecution, and
respect human rights.
EXTRADITION LAW IN INDIA
In India, the extradition of fugitive
criminals is regulated by the Indian Extradition Act of 1962, which provides a
comprehensive legal framework for both inbound and outbound extraditions. This
legislation ensures that the entire extradition process adheres to established
procedures and principles.
The extradition process in India
primarily relies on bilateral extradition treaties that have been established
between India and other countries. These treaties form the foundation for
cooperation and mutual legal assistance in matters of extradition. Currently,
India has entered into extradition treaties with a substantial number of
nations, totaling 48 countries. These treaties delineate the specific terms and
conditions under which fugitives can be extradited between the respective
countries.
The Indian Extradition Act of 1962
outlines the legal requirements and procedures that must be followed when
making extradition requests. It encompasses aspects such as the formal
submission of requests, the evaluation of evidence, and the issuance of arrest
warrants. The Act also includes provisions for conducting extradition hearings,
allowing for judicial review, and safeguarding the rights of the accused
throughout the extradition process.
By adhering to the Indian Extradition
Act and the bilateral extradition treaties, India actively contributes to
international endeavors aimed at combating transnational crimes and ensuring
that fugitive criminals face justice. The Act, along with the existing
treaties, serves as essential instruments in facilitating the extradition
process, fostering collaboration among nations, and upholding the fundamental
principles of justice and the rule of law.
CHALLENGES IN EXTRADITION LAW
The Extradition Act remained
unchanged until the onset of World War II. However, the subsequent rise in drug
trafficking, transnational crime, terrorism, cybercrime, and white-collar
crime, coupled with advancements in mass media and transportation, has
significantly impacted the global landscape. In order to address these
challenges and combat transnational crimes effectively, it has become crucial
to establish robust extradition laws. These laws are developed and widely
accepted through bilateral and multilateral treaties, regional agreements, and
domestic legislation.
In contemporary times, the evolution
of international law and the emphasis on human rights present various
challenges to the extradition process. These challenges can be categorized as
follows:
(A) Political Offences:
Extradition treaties typically
include an exception for "political crimes," but the lack of a clear
definition for such offenses makes it difficult to distinguish between acts of
terrorism and political crimes. This poses challenges for the judiciary in determining
the extradition eligibility of individuals involved in politically motivated
acts.
(B) Granting Asylum:
Territory states often grant asylum
to individuals involved in political, military, or religious crimes, which can
hinder the indirect extradition process. Granting asylum may be perceived as a
means of shielding criminals from justice. Additionally, individuals who are
nationals of the country providing asylum are generally not extradited, in line
with principles recognized by public international law.
(C) Irregular Rendition (Extraordinary Rendition or Forced
Rendition):
The United States government has
engaged in irregular rendition practices with the cooperation of other
countries. This involves the extrajudicial transfer of fugitives or suspects from
one state to another. Informal extradition methods are employed, bypassing
normal judicial procedures under international law. Such practices have been
used to extradite individuals without adhering to the established extradition
processes, leading to concerns regarding due process and human rights.
(D) Human Rights Issues:
While extradition itself is not
considered a violation of human rights, human rights violations can occur
during detention, prosecution, and sentencing in the extradition process.
Striking a balance between national sovereignty and the protection of individual
human and civil rights is paramount. Extradition treaties often incorporate
mechanisms to safeguard human rights, such as prohibiting the imposition of the
death penalty on extradited individuals. Exceptions to the political crimes
doctrine, as well as the principles of double criminality and specialty, are
also considered safeguards for the rights of extradited individuals. However,
once extradited, the trial and sentencing fall under the jurisdiction of the
requesting country, limiting the ability of sovereign states to ensure the
protection of the rights of extradited criminals.
It is incumbent upon all states to
uphold and protect the human rights and dignity of extradited individuals
throughout the extradition process, recognizing their responsibility to
maintain justice while respecting individual rights.
LANDMARK CASES
v Dr. Vijay Mallya v. State Bank of India
One of the most prominent extradition
cases in India involves Vijay Mallya, the businessman and owner of Kingfisher
Airlines and United Breweries Holdings, Inc. Mallya had outstanding debts of
over ?6,000 crores to several Indian banks, including the State Bank of India
and the Indian Overseas Bank. Fearing arrest, he fled from India to the United
Kingdom in 2016. In 2017, India made an extradition request to the UK
authorities to bring Mallya back to India to face legal proceedings.
The extradition case of Vijay Mallya
was presented before the Westminster Magistrate's Court in London. In 2018, the
court ruled in favor of Mallya's extradition to India. Despite his subsequent
appeal to the High Court of London, his appeal was dismissed. However, due to
ongoing legal proceedings, Mallya has not yet been extradited back to India.
It is worth mentioning that in 2019,
Mallya was designated as a "fugitive economic criminal" under the
Fugitive Economic Criminals Act of 2018, highlighting the legal status assigned
to him in India.
v Nirav Modi’s case
Nirav Modi, a renowned luxury diamond
jewellery merchant, was at the center of a high-profile case in India. The
Punjab National Bank (PNB) lodged a complaint with the Central Bureau of
Investigation (CBI) in 2018, alleging that Mr. Nirav Modi and his wife, Mrs.
Ami Modi, had engaged in fraudulent activities by obtaining fraudulent Letters
of Understanding (LoUs) valued at ?11,400 crores. These funds were subsequently
transferred to fifteen fictitious overseas companies associated with him. The
CBI conducted an investigation into the matter, and the Enforcement Directorate
(ED) took possession of Nirav Modi's assets in India.
To evade legal proceedings, Nirav
Modi fled to the United Kingdom and sought asylum there. In response to a
request from India, Interpol issued a Red Corner Notice against him in 2018.
Following this, a Westminster Court issued an arrest warrant for Nirav Modi,
marking a significant step towards his extradition to India. The court has
ordered his extradition, and it is expected to take place in 2021, subject to
the legal process.
CONCLUSION
The extradition process is renowned for
its intricate and time-consuming nature, encompassing a range of legal and
procedural complexities. Although binding treaty mechanisms provide a
foundational structure, the practical implementation of extradition is often
influenced by the domestic laws and policies of the requesting country. This is
to be expected, as extradition ultimately rests on the sovereign decisions of
individual states. Nevertheless, India retains the authority to address
specific facets of the extradition process. By placing emphasis on these areas
and enacting necessary reforms, India has the potential to enhance its success
rate in extraditing individuals sought for criminal offenses. Potential
measures include streamlining procedures, ensuring adherence to international
standards, and fostering closer collaboration with relevant authorities. Such
actions can contribute to a more streamlined and efficient extradition system,
bolstering India's capacity to bring fugitive criminals to justice.
Article Information
EXTRADITION UNDER INTERNATIONAL LAW: AN OVERVIEW OF BASIC PRINCIPLES, APPLICATIONS, AND CHALLENGES IN EXTRADITION LAW
Authors: SRILAKSHMI KARAMPUDI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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