Sau rupye ki ghadi churayi…..ab toh jail mei jaana padega?? (Stole watch worth Rs. 100, and now has to go to prison). But what if after stealing the watch, the thief evaded to another country? Are Indian laws only applicable to Indian territory? What about those who run away? Is it that easy……commit a crime and run away beyond the boundaries to never get caught or face the punishment? There is this concept of extradition in International Law which allows bringing such criminals back to the land in order to face the criminal trial. This is just the broader picture, and we are going to explore the intricacies of extradition law in this blog. Let’s take one step ahead.
What is Extradition in International Law?
Simply put, to bring back a criminal from another country to face the trial or serve the sentence is termed as extradition. Formally speaking, extradition in law is the formal process where one country requests another seeking the return of a person accused or convicted of a crime. The purpose of bringing back such a person is to conduct the trial or for such person to serve the punishment decided by the Court. Extradition in International Law.
The place where the crime was committed is termed as the Requesting State. On the other hand, the place where such accused/convict fled away and was found is termed as the Territorial State or Treaty State. Serious offenses like murder, human trafficking, rape, terrorism, drug trafficking, kidnapping, organized crime, and white-collar crimes are said to be extraditable. On the other hand, political offenses, military offenses, and religious offenses are usually exempt from extradition in International Law.
Extradition Agreements
While extradition is a concept in International Laws, some people confuse whether it fits among the two types of international laws or a subject of another category. It may be noted that extradition falls under the public international law only. Though it mostly sprouts through bilateral treaties among two countries. However, multilateral agreements are not rare but beneficial for common definitions and procedural aspects. The norms are similar, but mostly dependent upon what’s duly stated on the said extradition agreements of such treaties. Even if such a treaty does not exist at the time when an extradition request is made by one State towards another, the Organized Crime Convention may come handy if it pertains to one of the extraditable offences.
Requisites of Extradition Law
- Dual Criminality
For requests of extradition to be accepted, the criminal act for which a person is to be extradited should be an offence in both the countries. If it is a crime at the State requesting extradition, and a civil action or omission at the country whereby an extradition request is made, chances are that it may not succeed. For example, bigamy is an offence in India, but owing to personal laws, Muslim men married to 2 or more women are an exception. So if a country makes an extradition request to India for a Muslim guy who married twice and fled to India to avoid legal consequences, there are chances that India may not allow such a request.
- Rule of Specialty
This rule restricts the State to proceed with the extradited person strictly as per the offence he/she committed earlier and has been extradited for. It makes it clear that the extradited person cannot be tried, detained, or re-extradited to another country for allegations of some other offence. It ensures a safeguard against prosecutions for political offences or other principles of extradition in international law.
- Non-Extradition of Nationals
Many countries follow the non-extradition of nationals. In other words, if an extradition request is made to a country for extradition of a citizen of that very country, the said request may be refused. Though this is a clear discrimination based on nationality, where the crime is the same but the protection is biased. The general principle for extradition in international law seeks to extradite or prosecute those who commit serious international crimes.
- Risk of Persecution OR Non-Discrimination Clause
If there is a risk of a person being persecuted on account of gender, race, religion, nationality, ethnic origin or political opinion, there is no obligation to honour such a request for extradition.
- Risk of Unfair Trial
A fair trial lays the foundation of the criminal justice system in any country. If there are grounds to believe that the Requesting State may not extend a fair trial, or the basic rights of the accused person in criminal proceedings, the extradition request may be refused. For example, if there is risk of torture, inhuman treatment, lack of legal representation, etc., it may be an exception to honouring the request for extradition in international law.
- Double Jeopardy OR ne bis in idem
The rule of double jeopardy lays that a person cannot be prosecuted twice for the same offence. The same is applicable in rules of extradition in international laws. Regardless of whether the said accused person was convicted or acquitted or discharged, another trial is not the option for extraditing a person.
- Exception to Political Offence
Political offenders are usually not extradited but given asylum in another country. Political ideology is made an exception to extradition laws. However, what constitutes “political offence” attracts controversy because there are no set measures. In fact, recent developments hint at restricting the exception to political offence.
Importance of Extradition
Criminal justice is important for maintenance of law and order in a society. Similarly, extradition policies are important to uphold criminal justice so that crossing borders does not license fugitive behaviours. International collaboration to extradite criminals for the purpose or prosecution or conviction promotes a sense of justice and discourages criminal activities.
FAQs on Extradition Law
- What is the rule of extradition under international law?
In international laws, extradition allows a State to bring back a fugitive criminal from another State for prosecution or conviction. It helps uphold criminal justice across international borders.
- What country cannot you be extradited from?
Where there is a bilateral or multilateral treaty between the country where a crime is committed, and the one where the accused/convict fled to, extradition may be pursued.
- Is extradition legal in India?
Yes, extradition is totally legal in India. In fact, the Extradition Act of 1962 lays the law relating to the extradition of fugitive criminals. It clarifies when extradition may be done, the role of specific authorities, and the procedure to be followed.
- Which ministry is responsible for extradition?
The Ministry of External Affairs is responsible for extradition procedures in India and with other countries.
- Which country has no extradition treaty with India?
As per the list of countries with which India has Extradition Treaties/Arrangements published on the website of Ministry or External Affairs, China, Myanmar, North Korea are some of the countries with whom India has no extradition treaty or arrangement. The list can be accessed here.
