Dear Students

I am going to cover our syllabus of Public International Law through providing written
notes. Hope it will helpful in preparation for your exams. We will start with our topic which was
going on in the class when the classes were called off.

Extradition

Dear students, the term extradition literally means handing over of the fugitive, a culprit,
suspected criminal to the country in which has committed the crime.

Where a person who has committed an offence in one country escapes to another, what is
the duty of the country with regard to this? Should the country of refuge try him in its own
courts, according to its own laws or deliver him up to the country whose law he has broken?

International Law actually gives no certain answer of this question. But it depends upon
the mutual understanding of the States, in their interest for the maintenance of law and order,
demands that nations should cooperate with one another in surrendering criminals to the State in
which crime has been committed.

Moreover, it is also technicality of the criminal law which provides that a criminal should
have been prosecuted in the country where the crime has been committed owing to availability of
the evidence as well as grounds of defense if available.

In International law, rules regarding extradition are not well established mainly because
extradition is a topic which does not come exclusively under the domain of International Law.
Extradition or Non-extradition of a person is to be determined by the municipal courts of a state.
But it is also a part of International Law because it governs the relations between two States over
the question whether or not a given person should be handed over by one State to another state.
This question is decided by the national courts but on the basis of international commitments as
well as the rules of international law.

Definition

Lawrence defines extradition as “the surrender by one State to another of an individual

who is found within the territory of one State and is accused of having committed a crime within
the territory of another State”.

According to Oppenheim, “extradition is the delivery of an accused or a convicted

individual to the State on whose territory he is alleged to have committed or to have been
convicted of, a crime, by the State on whose territory the alleged criminal happens for the time to
be.
 Extradition is the official process where one nation or state surrenders a suspected or
convicted criminal to another nation or state. Between nation states, extradition is regulated by
treaties.

Extradition Treaties or Agreement

The first and the foremost important condition of extradition is the existence of an
extradition treaty between the territorial State and the requesting State. For the treaty of
extradition there require two States: one, the requesting State which demands for the surrender of
an accused is known as Requesting State. Two the territorial State a State where an accused or a
convict or fugitive is found is known as Territorial State.

Some states, such as the United States, Belgium and Netherlands require a treaty as an
absolute pre-condition for extradition of an accused. The strict requirement of an extradition
treaty may be regarded as the most obvious obstacle to international co-operation in the
suppuration of crimes. Since an extradition treaty are politically sensitive and requires careful
and lengthy negotiations, states have few extradition treaties with very small number of states
and the criminal can usually find a safe haven, that is a state which requires a treaty for
extradition and has no such treaty with the state within whose jurisdiction the crime was
committed. Therefore, it is desirable that states conclude extradition treaties with as many states
as possible to suppress crime.

The consensus in international law is that a state does not have any obligation to
surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state
has legal authority over the people within its borders. Such absence of international obligation
and the desire of the right to demand such criminals of other countries have caused a web of
extradition treaties and or agreements to evolve. Most countries in the world signed bilateral
extradition treaties with most other countries. No country in the world has an extradition treaty
with all other countries; for example, the United States lacks extradition treaties with several
nations, including the People’s Republic of China, Namibia, the United Arab Emirates and North
Korea.

In order to provide assistance to states interested in negotiating and concluding bilateral

extradition agreements, the General Assembly on December 1990 adopted a Model Treaty on
Extradition by adopting a resolution. It is to be noted that in the absence of any treaty
arrangements a person may be extradited in exceptional cases on the principle of reciprocity.
Germany and Switzerland extradite a person apart from a formal treaty if their governments and
the requesting state have exchanged declaration of reciprocity. India does not have extradition
treaty with Portugal. When Abu Salem an accused of 1993 Mumbai Bomb blast case and an
underworld don fled to Portugal along with his wife Monica Bedi, in the absence of a treaty
extradited to India after India have given an assurance that he would not be given death sentence.
Subsequently, High Court of Portugal passed an order on July 2004 along with reasons for his
extradition to India.

Purposes of Extradition

A criminal must be extradited to the country which seeks the apprehension of the accused
for the following reasons:

(1) Extradition is a process towards the suppression of crime. Normally a person cannot
be punished or prosecuted in a state where he has been 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) Extradition acts as a warning to the criminals that they cannot escape punishment by
fleeing to another state. Extradition therefore has a deterrent effect.
(3) Criminals are surrendered as it safeguards the interest of 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 would become a place for international criminals, which
would be dangerous for that state, because the criminals may commit crime in that
state.
(4) Extradition is based on principle of reciprocity. That means a state requested to
surrender the criminals today may have to request for extradition of a criminal on
some future date.
(5) Extradition is done because it is a step towards the achievement of international co-
operation in solving international problems of a social character.
(6) 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.

Principle behind the extradition of an accused

A number of parameters or they may be known as restrictions on extradition, are working

behind the extradition. The first and foremost necessary principle behind the extradition, there
should have an extradition treaty between the two nations. The other ones are as follows:

(A) Extradition of political offenders

It is a customary rule of International Law that political offenders are not extradited. In
other words they are granted asylum by the territorial state. During the days of monarch
extradition of political offenders was very common. They used to prefer extradition so as to
avoid intervention in the affairs of another state. But the practice has gone under a complete
change with the beginning of the French Revolution. The French Constitution made a
provision for granting asylum to those foreigners who exiled from their home country for the
cause of liberty. Later on, other states followed the principle of non-extradition of the
political offenders gradually. Indian Extradition Act, 1962 also lays down a similar provision
under section 31(a). At present non-extradition of the political has become a general rule of
International Law and therefore it is one of the exceptions of extradition.

The rule is based on the elementary consideration of humanity. No state would like to
extradite a person if he is not criminal. If it does, it will not be in compliance with the law of
natural justice. If political offenders are extradited, it is feared that they would not be treated
fairly. It is the duty of territorial state to ensure safeguards to the surrendered fugitives for a
fair trial in the requesting state. Since it is a difficult task, they are not extradited. The rule
also protects the political offender from any measure of extra-legal character which the
requesting states might attempt to take against them. Political offenders are not dangerous for
the territorial as may be in the case of ordinary criminals.

(B) Doctrine of Double Criminality

The crime must be an offence in both the states. This is based on the principle of double
criminality. No person is to be extradited to, whose deed is not a crime according to the
criminal law of the state which asked to extradite as well as of the state which demands
extradition. In simple words, the act for which extradition sought must constitute a crime
punishable by some minimum penalty in both the requesting state and the requested state.

(C) Possibility of certain forms of punishment

Some countries refuse extradition on grounds that the person, if extradited, may receive
capital punishment or face torture. A few states go as far as to cover all punishments that they
themselves do not administer.

(D) Rule of Specialty

According to this principle, a fugitive may be tried by the requesting State only for that
offence for which he has been extradited. In other words, the requesting state is under a duty
not to try or punish the criminal for any other offence than that for which he has been
extradited, unless he has given an opportunity to return to the territorial state. The rule has
been made to provide safeguard to the fugitive against fraudulent extradition. The rule is
incorporated generally in the extradition law of a state and in the extradition treaties. Indian
Extradition Act, 1962 has incorporated this principle under section 21. Article 14 of the
extradition treaty between India and U.K. and Article 17 of the extradition treaty between
India and U.S.A provides for the rule of specialty.

(E) Prima Facie Evidence

There should be a prima facie evidence of the guilt of the accused. Before a person
extradited, the territorial state must satisfy itself that there is a prima facie evidence against
the accused for which extradition is demanded. The purpose for laying down the rule of
prima facie evidence is to check the fraudulent extradition.
(F) Extradition of own Nationals

In many cases a person after committing a crime in a foreign country flees back to his own
country. Whether a state would extradite such person, i.e. its own national, to a state where
crime has been committed is a controversial point. Many countries such as the Netherland,
Belgium, Italy, Germany, Switzerland and France have adopted a principle for not
extraditing their own national to a foreign state. Those who support the view give arguments
that foreign judges cannot be trusted. Moreover, it is not dignified for a state to extradite its
nationals for conducting a trial in foreign country. However, they prefer to inflict punishment
to such persons in their own states. On the other hand, Great Britain, the United States and
India have favoured the practice of extraditing them, if a treaty provides for extradition of
such persons. Nationals of the states of the former category therefore attempt to flee back in
their own country in order avoid extradition, though they may be punished there for the
crimes committed in foreign country. It is desirable that a person should be given punishment
by the state where the crime has been taken place. It remains in better position to try the
offender in view of the fat that witnesses are readily available in that country alone.
Extradition treaties therefore should contain a clause for the extradition of all or any person
so as to include their own nationals as well.

Extradition of Military offenders

Extradition treaties generally exclude military offences. Broadly, military offences fall into
two categories, 1) those which constitute offences under ordinary criminal law, and 2) those
which relate specifically to military matters. Only the second categories qualify as military
offences in respect of which extradition will not apply. Desertion is an example of the second
category. Model treaty on extradition also lays down under article 3 para (c) that extradition
shall not be granted if the offence for which extradition is requested is an offence under
military law, which is not also an offence under ordinary criminal law. Military offenders are
granted asylum by the territorial state on legal and extra-legal grounds.

Extradition treaty between India and Canada of 1987 also provides under article 52(a) that
extradition shall be refused if the offence, in respect of which it is requested, is considered by
the requested state to be a purely military offence. But the practice of non-extradition for
military offenders has not gained universal acceptance. For example, a person committing
war crimes is extradited to the requesting state.

Extradition of foreign nationals for crime committed in foreign country

Foreigners are not extradited for the offences committed in foreign countries. They may be
tried and punished only in that state where the crime has been committed. Their extradition
cannot take place even in a state where the crime has grave or immediate consequence. It so
because of the jurisdictional problem.
Extradition law in India

In India for the first time an Extradition Act was enacted in 1902. Prior to the enactment of
the Act of 1962 extradition in India was regulated on the basis of the United Kingdom
Extradition Act, 1870. The 1870 Act was a law for whole of the British Empire. The Indian
Extradition Act, 1903 was enacted to provide for more convenient administration in British
India. This Act of 1903 continued to be in force after India became independent.

The expression ‘extradition treaty’ has been defined under section 2(d) of the Indian
Extradition Act, 1962 to mean, a treaty (agreement or arrangement) made by India with a
foreign state relating to the extradition of fugitive criminals and includes any treaty relating
to the extradition of fugitive criminals made before the 15th of August 1947 which extends to
and is binding on India. Thus, all those extradition treaties which were concluded by the
British India before 1947 were also continued by India. In accordance with the provision of
section 3(1) of the Act, 1962, the Government of India is required to make notification to all
those states with which it had extradition treaties before independence. In the absence of such
notification, continuance of the pre-independence treaties would not be of any practical
utility. It is desirable that it should be done by the government to remove doubts and
uncertainty without waiting for such a need which may arise in individual cases.