June 18, 2021

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International extradition in absence of codified laws

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This article is written by Vinit Gajjar, a student of BBA-LL.B from Jindal Global Law School, O.P Jindal Global University and Nityanshi Rao.

When addressing extradition, the Latin expression “aut dedere aut judicare” is used, which translates to either extradite or prosecute. “Extradition is the legal mechanism by which a State demands that a person charged or convicted of a felony be returned to the requesting State to stand trial or complete a term in the requesting State.” Earlier, there was no basic principle to extradite. Extradition often centred on informal connections between sovereign-state officials.

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However, the growing number of such cases necessitated more formal agreements. In the 2000’s, the United Nations sponsored a multilateral treaty – the Organized Crime Convention, which addressed the principle of extradition: Article 16 of the convention, a detailed seventeen-paragraph article, dealt with extradition, explaining, on the one hand, the dynamics of international collaboration and, on the other, its significance in combating transnational organized crime. “An extradition request is the mechanism by which one state seeks the extradition of an individual from another state for the purpose of a criminal trial.” An extradition request is a complicated and a serious endeavour.

The submission and implementation of an extradition request entails the legal processes of many states: a complicated collection of rules and regulations designed to protect the integrity of the states concerned as well as the interests of the individual requested. If there are concerns over torture or cruel treatment of the individual being extradited, a country could deny the extradition request.

In some extradition requests, offence punishable with capital punishment leads into issues. States that have repealed the death penalty reject extradition to states where the death penalty may be imposed until guarantees are issued that the person in question may not be sentenced to death or that, if sentenced to death, the execution will not be carried out. However, a number of countries around the world permit extradition requests if they have signed a reciprocity declaration with the requesting state. In some cases where the extradition request is denied based on the absence of a formal international convention between the states, escapees are sometimes returned on the grounds of local statute or bonafide by the State parties.

However, this uncertainty when certain countries do not have a signed reciprocity treaty implies escapees could find non-party states (to their countries extradition treaties) and such states may provide a safe haven for such escapees. This safe haven can also be regarded as an asylum. Asylum which is defined as an inviolable place of refuge and protection giving shelter to criminals and debtors is usually granted to a person who is unable or who is not willing to return to their home nation due to the persecution or a rational fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.

This article aims to analyse whether the absence of an extradition treaty between two states is a boon or a bane, as the non-existence of an extradition treaty does provide a safe escape to innocent people who are unfairly convicted by their country, but at the same time the absence of the treaty can also be misused by several criminals to get away with a crime that they ought to be punished for, thereby threatening the overall principals of natural justice and fair trial that the laws of extraditions are rightfully based on. 

There exist multiple cases where on one hand, the absence of an extradition treaty between states has helped an innocent escape wrongful conviction while on the other hand where it has been used as a loophole to escape a well deserved punishment. For instance, the United States of America do not have a reciprocity treaty with Russia. Edward Snowden who was a former CIA Agent acted as the NSA whistle-blower. Snowden revealed regarding the issue that the CIA (US govt sponsored) was tracking people’s private data in order to maintain law and order in the country while it did claim to have stopped some terror attacks before execution however this issue posed a huge question over the right to privacy of the citizens of the country.

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Snowden was penalised by the government for espionage. However, this act done by Snowden was appreciated by some since it was done with a bonafide intention of protecting the basic rights of the US citizens, on the other hand some considered him as a spy and a traitor. Later, Snowden found shelter in Moscow, Russia where the US’s request to extradite him was rejected and Snowden was granted an asylum. Thus, there’ve been whistle-blower cases where an accused has gathered shelter while breaking laws in their country but the non-existence of the extradition law has helped protect his individual rights as well as the rights of other people as seen in the case above. 

The absence of an extradition treaty does not mean that an individual is completely untouchable by the law, the country can sign an ad hoc extradition treaty, for example: “A country that is not an extradition treaty partner with the UK can enter into ad-hoc extradition arrangements to seek the extradition of a specific person. In order to achieve this, the government of the United Kingdom and the government of the Requesting State will enter into an arrangement for the person’s extradition. The Secretary of State for the Home Department must then recognize that the two countries have entered into a ‘special extradition arrangement’.”  

But the problem with this provision for an “ad hoc treaty” is that, even though there may be well-established laws enabling such treaties in a given country, the actual reality is quiet disappointing as a request for extraditing a criminal seldom follows through. This can be seen through several examples including one from the UK itself where the Government of Rwanda applied for the extradition of 5 people held guilty of genocide from the UK but the application was rejected by the divisional court in the case of Rwanda v. Nteziryayo and ors where the judge refused to extradite the 5 criminals and stated that they are to be tried in the UK itself to avoid double jeopardy. The problem with this decision is the trend of relatively powerful countries that tend to exert their influence on smaller countries and deprive them the chance to rightfully convict criminals for their wrongdoing against the citizens of that country.

A similar issue can be noted through the case of extradition of David Headley from the United States of America to India.  “The “double jeopardy” clause, which debars punishment for the same crime twice, is the primary reason why India, has been unable to extradite David Headley from the US. Headley, an American terrorist involved in plotting the 26/11 Mumbai attacks, has already been sentenced to imprisonment by US courts, for killing six Americans. However, Headley is yet to be tried by Indian courts for the deaths of nearly 140 Indian nationals in the same attacks.” Therefore, nonexistent treaties are definitely an inconvenience and serve as a problem as they help shelter criminals. 

It should also be noted that even countries with existent treaties can choose to refuse extradition if they deem fit under the exceptions for instance, Julian Assange who was founder of Wikileaks website an organisation which was known for publishing news leaks and classified media. In 2010, Wikileaks acted as a whistle-blower regarding various confidential documents related to the US military and diplomats and thus Assange was penalised by the US govt for espionage. One of these leaked videos pointed out how innocent people were killed by the US military. However, the UK government took a stance; it stated that no journalist should be prosecuted for publishing the truth. Recently, the extradition request by the US was rejected.  

After analysing various cases relating to international extradition, it is safe to state that the absence of extradition treaties among countries causes a lot of uncertainty as to whether a criminal will be brought to justice and provides a loophole in law that can be abused by criminals and therefore it is imperative that there is a need to establish a uniform codified extradition law which governs all issues relating to extradition and India as a country, needs to negotiate extradition treaties with as many countries as possible in order to avoid the problems currently caused due to the absence of such a treaty as currently, India’s extradition rate stands to be approximately lower than 30 percent. 


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