Extradition Under International Law: Overview of Basic Principles
This article is written by Yash Sharma, a student of the University College of Law, Mohanlal Sukhadia University, Udaipur. This article comprehensively deals with the concept of extradition in International Law, its principles, and the extradition laws in India.
Extradition Under International Law
“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 be eventually brought to Justice; this is the assurance that is given by the Law. With globalisation and interconnectedness between the countries, it has become easier for the offenders in India to travel abroad and try to safeguard themselves against the prosecutions faced in India.
Extradition is an essential legal mechanism through which individuals suspected or convicted of a crime can be transferred from one country to another to face trial or punishment. It forms a crucial part of public international al law, aiming to promote cooperation and maintain justice and security among nations.
The term extradition has derived from two Latin words ex and traditum. Ordinarily it may mean ‘delivery of criminals’, ‘surrender of Fugitive’, or ‘handover of fugitives
According to Oppenheim, “Extradition is the delivery of an accused or a convicted individual to the state where he is accused of, or has been convicted of, a crime, by the state on whose territory he happens for the time to be”.
Purpose of extradition
A criminal is extradited to the requesting state for the following reasons:
1. Suppression of crime- Extradition is a process towards the suppression of crime. Normally a person cannot be punished or prosecuted in a state where he has fled away because of lack of jurisdiction or because of some technical rules of criminal law. Criminals are therefore extradited so that their crimes may not go unpunished
2. Deterrent effect- Extradition acts as a warning to the criminals that they can’t escape punishment by fleeing to another state. Extradition therefore has a deterrent effect.
3. Safeguarding the interests of the Territorial state- Criminals are surrendered as it safeguards the interest of the territorial state. If a particular state adopts a policy of non-extradition of criminals they would like to flee to that state only. The state therefore would become a place for international criminals, which dangerous for it, which indeed would be dangerous for it because they may again commit a crime there if they were left Free.
4. Reciprocity – Extradition is based on reciprocity. A state which is requested to surrender the criminal today may have to request for extradition of a criminal on some future date.
5. International co-operation- Extradition is done because it is a step towards the achievement of international co-operation in solving international problems of a social character. Thus it fulfils one of the purposes of UN as provided under Para 3 of article 1 of the charter.
6. Evidence- The state on whose territory the crime has been Committed is in a better position to try the offender because the evidence is more freely available in that state only.
Basis of the principles of extradition:
Double criminality: Double criminality refers to the characterization of the relator’s criminal conduct in so far as it constitutes an offence under the laws of the two respective states. It applies the principle of dual criminality which means that the offence sought to be an offence in the national laws of requesting as well as requested country,
Extraditable offence: The very first requirement for a successful extradition is that the offence committed must be an extraditable offence. Extradition is a procedure appropriate only for the more serious offences and accordingly the national extradition law of most States limits the number of extraditable offences either to certain specific offences or to offences subject to a specified level of punishment
Double Jeopardy: The most basic understanding of double jeopardy is that it refers to prosecuting a person more than once for the same offense. Once you are acquitted or convicted of a specific instance of violating the law however, you cannot be prosecuted (or punished again, if convicted) on that same charge by the same government for that same instance of violating that law.
Rule of Speciality: This doctrine is premised on the assumption that whenever a state uses its formal processes to surrender a person to another state for a specific charge, the requesting state shall carry out its intended purpose of prosecuting or punishing the offender only for the offence for which the requested state conceded extradition. The doctrine of speciality was developed to protect the requested country from abuse of its discretionary act of extradition
Rule of Reciprocity: Reciprocity is one of the legal basis for extradition in the absence of a treaty which is a part of international principles of friendly cooperation amongst nations. Reciprocity, as a substantive requirement of extradition (whether based on a treaty or not) arises with respect to various specific aspects of the process.
Extradition of nationals: In principle, any individual, whether he is a national of the requesting State, or of the requested State, or of a third State, may be extradited. Many States, however, never extradite one of their nationals to a foreign State Does it means the offender goes unpunished? The answer is negative. In such a case the requested party has to initiate criminal prosecution against any such person for the same offence according to its laws.
Political or Military Character: There is an important principle in international law that the political criminal shall not be extradited. For example: Re Meunier case in which the accused was an anarchist and was charged with causing two explosions in para café and two barracks. After committing the offence, he fled to England. France demanded his extradition. The accused contended that the nature of his crime was political and therefore be could not be extradited. The practice of non-extradition for political crimes began with French Revolution of 1789. It is also a restriction on the scope of extradition. Military criminals shall also not be extradited who have not been charged of war crimes
Law of Extradition in India
In India, the Law that governs extradition matters is known as “The Extradition Treaty, 1962”. This law extends to the whole of India and has applied to India since 15th September 1962. This law is for extraditing persons to India and from India to foreign countries. The basis of the extradition could be a treaty between India and another country.
Section 2 (d) of the Extradition Act, 1962 defines the term “Extradition Treaty”. It says, “Extradition treaty” means a treaty, agreement or arrangement made by India with a foreign State relating to the extradition of fugitive criminals and includes any treaty, agreement or arrangement relating to the extradition of fugitive criminals made before the 15th day of August 1947, which extends to, and is binding on, India.
At present India has an Extradition treaty with 43 countries and Extradition agreement with 11 countries.
Extradition treaties are the agreements between Countries that govern the matters of extradition of persons. India currently has extradition treaties with 48 countries. The nodal government body for the extradition matters of India is the Ministry of External Affairs. It provides a detailed account of the number of fugitives surrendered from different countries.
India is a signatory to a number of multilateral treaties that offer a legally enforceable framework for extradition in order to combat international crimes, including drug trafficking, terrorism, and the hijacking of aeroplanes. Fugitive prisoners may also be demanded to be turned over to non-treaty governments. With the promise of reciprocity from India, these requests may be taken into consideration in line with the rules and regulations of the foreign state.
Importance of extradition
Contemporary society with all its technological developments has become a play field to criminal activities. Easier transportation and communication are aiding criminals to easily flee from the jurisdictional clutches of victim states. This increases the importance of extradition treaty/arrangements
- Sovereign constrain: Since the sovereign constraints stop the victim state to effectively exercise their jurisdiction, extradition alone offers the legal avenue to overcome the jurisdictional hardship.
• To provide justice and grievance redressed: Bringing back offenders from foreign countries is essential for providing timely justice and grievance redressal.
• Provides sense of gratification: Punishment of the criminal in the same country in which the crime is committed provides sense of gratification and security of the public of that country.
• Act as deterrence: It serves as a deterrent against offenders who consider escape as an easy way to subvert India’s justice system.
• International cooperation: Extradition is step towards the achievement of international cooperation in general required for solving international problems of a social character
Extradition cases in international law
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 harboured 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.
Vijay Mallaya’s case
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 Mallya v. State Bank Of India (2018)). He owed a whopping debt of over ₹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.
Nirav Modi’s case
Mr Nirav Modi was a luxury diamond jewellery 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, of fraudulently obtaining fake Letters of Understanding (LoU) worth ₹11,400 crores. The money was then channelised 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.
The Mehul Choksi Case:
The case involving Mr. Choksi was one that stirred great controversy in India. Mr Choksi is wanted in India for counts of criminal conspiracy, corruption, money laundering and criminal breach of trust on account of the Punjab National Bank Loan Fraud.
After being accused of his crimes, Mr. Choksi fled to Antigua, where he purchased citizenship under am investor scheme, in light of avoiding deportation to India for his Trial.
The Antiguan authorities are naturally reluctant to extradite one of their citizens as they believed he would be subject to inhumane conditions in India. Thus, India is facing a difficult time retrieving Mr. Choksi from Antigua.
The Ravi Pujari Case:
Ravi Pujari was a popular gangster in the early 2000s who was known for threatening eminent personalities in the film and real estate industries. He was wanted by officials on counts of murder of Mr. Kukreja, a popular builder and on attempt to murder charges by Mr. Suresh Wadhwa.
Mr Pujari fled India and remained a fugitive in numerous countries such as Australia, The United Arab Emirates, Burkina Faso and Senegal. His threat calls to a Kerala MLA traced his location to Senegal, where he lived under the alias of Anthony Fernandez.
The fact that India had extradition arrangements with Senegal allowed Mr Pujari to be extradited to Bangalore in the subsequent days.
Extradition is an essential tool not only to render justice but also to test diplomatic ties. However, the absence of extradition treaties with many countries becomes the loophole that fugitive criminals exploit. There is a need to bring about a comprehensive international law relating to extradition. It is this lacuna which may not only cause economic or judicial issues in the fugitive’s origin country but also pose far-fletching implications like security threats in the country where takes refuge.
- Gurdip Singh, International Law [ Edition 2021]
- Dr. S. K. Kapoor, Human Rights under International Law & Indian Law (2017)
- S.K Raghuvanshi, Public International law (2016)