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Extradition in International Law

June 13, 2022

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This article is written by J Jerusha Melanie, a student of SRM School of Law, Tamil Nadu. This article comprehensively deals with the concept of extradition in International Law, its principles, and the extradition laws in India.

It has been published by Rachit Garg.

Table of Contents

Introduction

A person who committed or allegedly committed an offence is usually tried in the country where it is committed or allegedly committed. However, what happens when the person flees such a country to evade facing the trial? Or, what if a convict runs from the territory of such a nation to escape the conviction? In such cases, the country from which the convict or accused fled officially requests the country to which fled to return him. The process of returning the convict or accused to the nation he escaped from is called extradition.

What is extradition

The term ‘extradition’ originates from two Latin words- ‘ex‘ meaning ‘out’ and ‘tradium‘ meaning ‘give up’. It is based on the Latin legal maxim “aut dedere aut judicare” meaning “either extradite or prosecute”.

As Oppenheim defined, “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 he happens for the time to be”.

As Chief Justice Fuller observed in the case of Terlinden v. Ames (1902), “extradition is the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory and within the territorial jurisdiction of the other which, being competent to try and punish him demands the surrender”.

There are two states involved in extradition- the territorial state and the requesting state. The “territorial state” is where the accused or convict flees to escape the trial or punishment. On the other hand, the “requesting state” is the one where the offence is or is allegedly committed. The requesting state formally demands the surrender of the accused or convict through diplomatic channels and in conformity with any treaty.

The philosophy behind extradition

The concept of extradition is based on the contention that an accused or convict can be tried or punished with utmost efficacy at the place where the cause of action arose or the crime took place. This is because it is much more advantageous to prosecute the offender in the country where he committed the offence; for instance, procuring the relevant evidence is more convenient in the country where the offence was committed than in any other country. Also, such a country has a significant amount of interest in punishing the offender.

Moreover, the concept of state sovereignty kicks in while dealing with extradition. State sovereignty refers to the ultimate authority of the concerned state over its own citizens and territorial jurisdiction. So, technically speaking, no state is required or bound to hand over to another state any person (either its own citizen or a non-citizen) currently present within its territorial jurisdiction.

However, the mutual interests of both the territorial state and the requesting state for the maintenance of law and order and the administration of justice require that the nations should cooperate with each other in returning the accused person or convict to the requesting state. Hence, to avoid the clash between state sovereignty and administration of justice, most states enter into various treaties governing extradition. Also, various countries incorporate provisions for extradition in their penal codes.

As far as India is concerned, the Indian Penal Code, 1860 does not explicitly mention extradition but implies it in the Sections related to jurisdiction. The Extradition Act, 1962 explicitly deals with it.

Purpose of extradition

An accused or convict is extradited by the territorial state to the requesting state for the following purposes:

To prevent escape from punishment

Most fugitive convicts or accused persons run from the competent jurisdiction to other countries hoping to escape from the impending punishment for the offence they are convicted or accused of. Such unjustifiably motivated accused persons or convicts should be extradited so that their offences may not go unpunished.

Extradition as a deterrence

Every successful extradition acts as a red flag to the criminals intending or planning to flee from the territory of the juridically competent state. So, extradition has a deterrent effect on criminals.

To maintain peace in the territorial state

If the convicts or accused persons are not extradited by the territorial state, it will send a wrong message to the criminals intending or planning to escape from the territorial clutches of the juridically competent state. If the territorial state refuses to extradite the convicts or accused persons residing within its territory, it will further motivate more such persons to flee into it. Thus, such a country may end up becoming a haven for international criminals, ultimately threatening the safety and peace within its territory.

To reciprocate diplomatic kindness

Extradition is also one of the best ways to reciprocate the diplomatic support of the requesting state. It welds diplomatic ties between the territorial and requesting states.

To enhance international cooperation

The extradition through bilateral or multilateral treaties on extradition act as examples of international cooperation in international dispute resolution.

Principles of extradition

There are generally four principles of extradition, as explained below:

Principle of Reciprocity

The principle of reciprocity is well-founded under various aspects of international law. It provides that every act of favour, respect, benefit or penalty that a country bestows on the citizens or legal entities of another country, should be returned (reciprocated) in the same manner. It provides for the mutual expression of international support. As far as extradition is concerned, the principle of reciprocity applies that the territorial state must extradite the accused persons or convicts in exchange for any diplomatic kindness shown by the requesting state. Such diplomatic kindness may be any act, ranging from tariff relaxations or enforcement of foreign judgments to military or economic aid. This principle may also operate for the mutual extradition of accused persons or convicts of the respective countries.

Principle of Double Criminality

The principle of double criminality provides that the act for which the accused person or convict is requested to be extradited by the requesting state, must be a crime in the territorial state as well. Meaning, the fugitive’s activity must constitute a crime in both the territorial state and the requesting state. For instance, if an individual is convicted of ‘perjury’ under English Law, but his acts do not constitute ‘perjury’ under American Law, then America can reject the request by England to extradite him.

Principle of Double Jeopardy

The principle of double jeopardy is also called ‘non-bis in-idem’. It provides that a person who had already been tried and punished can not be extradited if the request pertains to the same crime. No criminal tried and convicted once can be extradited for the same offence, except for the expired period of punishment.

Principle of Speciality

The principle of speciality provides that the requesting state is bound to try or punish the extradited offender only for the offence for which he is extradited. For instance, in the case of United States v. Rauscher (1886), a fugitive offender was extradited from Great Britain to the United States of America to be tried for a murder committed on board an American ship. Upon the extradition, the offender was convicted for the offense of grievously hurting a man, and not for the alleged murder for which he was extradited. This was because there was no substantial evidence to prove him guilty of the alleged murder. The Supreme Court held that it was a violation of the Extradition Treaty and set aside the conviction.

Prerequisites for extradition

The following conditions must be satisfied to grant extradition:

Extraditable persons

The accused persons or convicts must not fall under the ambit of the following three categories to be extraditable.

Territorial state’s own nationals

Most countries refuse to extradite their own nationals allegedly committing a crime in the requesting State; such countries claim their right to exercise State sovereignty over their nationals, even though the offence was committed in another country.

Political offenders

One of the most controversial aspects of extradition is that many countries refuse to extradite political offenders.

Persons already punished

Most countries follow the principle of double jeopardy and refuse to extradite the persons tried and punished for the same offence for which the extradition is requested.

Extraditable crimes

The principle of double criminality applies to determine the extraditable crimes; meaning, the fugitive’s activity must constitute a crime in both the territorial state and the requesting state. Generally, except for the following categories of offences, most crimes specifically mentioned in the extradition treaty existing between both the states are extraditable.

Religious offences

Religious offences including religious disrespect are not extraditable.

Military Offences

Military offences like desertion, disobedience of higher officials’ orders, etc. are non-extraditable.

International Model Laws on extradition

The Geneva Conventions and their Additional Protocols (1949) were some of the earliest conventions that dealt with extradition to some extent; it recognised the state’s cooperation in extradition. Thereafter, most countries have signed several multilateral and bilateral treaties on extradition. For instance, the United States of America has signed extradition treaties with over 100 countries. Various countries have also incorporated provisions for extradition in their penal codes.

The United Nations Model Treaty on Extradition (1990)

The UN Model Treaty on Extradition firmly emphasised international cooperation in extradition-related matters. It has 18 Articles, dealing with the grounds for refusal of extradition requests, Rule of Speciality, etc. However, it prioritises the discretion of the territorial State.

The United Nations Model Law on Extradition (2004)

The UN Model Law on Extradition is inspired by the UN Model Treaty and aims to enhance international cooperation in extraditions. It also aims to act as a supplementary statute in cases of countries where extradition treaties are absent. Sections 5 and 6 of the Model Law explicitly provide that extradition shall not be granted if, in the view of the territorial State, the extradition is requested for torturing or punishing the fugitive on the basis of his caste, ethnic origin, race, etc.

Challenges in Extradition Law

The following are some of the challenges in extradition law:

The requirement of double criminality is often misused by fugitive criminals. They usually flee to a country where their act does not constitute an offence.
Most fugitive offenders who are connected to politics in some way use it as an excuse to escape extradition, as most countries avoid extradition of political offenders.
Extradition procedures are highly time-consuming due to the requirement of various paperwork.
As far as India is concerned, one of the major challenges is that India has extradition treaties with only a limited number of countries.

Extradition under Indian Laws

In British India, extradition was regulated by the United Kingdom’s Extradition Act (1870), followed by the Extradition Act (1903). Presently, the Extradition Act (1962) (hereinafter referred to as ‘the Act’) regulates extradition in India.

The Extradition Act (1962)

The Act provides for the extradition of fugitive criminals both from and to India. The extradition may take place in accordance with any extradition treaty with the requesting or territorial state. However, the Act also provides that, in absence of any such treaty, any Convention to which India and such requesting or territorial state are parties can be treated as the extradition treaty for that matter. (Section 3)

The Act imposes no explicit restriction on the extradition of Indian nationals to the requesting State; however, the bar on extradition varies from treaty to treaty.

Currently, India has extradition treaties in force with the following 48 countries:

S. NO.	COUNTRY	YEAR OF TREATY
1.	Afghanistan	2016
2.	Australia	2008
3.	Azerbaijan	2013
4.	Bahrain	2004
5.	Bangladesh	2013
6.	Belarus	2003
7.	Belgium	1901
8.	Bhutan	1996
9.	Brazil	2008
10.	Bulgaria	2003
11.	Canada	1987
12.	Chile	1897
13.	Egypt	2008
14.	France	2003
15.	Germany	2001
16.	Hong Kong	1997
17.	Indonesia	2011
18.	Iran	2008
19.	Israel	2012
20.	Kuwait	2004
21	Lithuania	2017
22.	Malaysia	2010
23.	Malawi	2018
24.	Mauritius	2003
25.	Mexico	2007
26.	Mongolia	2001
27.	Nepal	1953
28.	Netherlands	1898
29.	Oman	2004
30.	Philippines	2004
31.	Poland	2003
32.	Portugal	2007
33.	Russia	1998
34.	Saudi Arabia	2010
35.	South Africa	2003
36.	South Korea	2004
37.	Spain	2002
38.	Switzerland	1880
39.	Tajikistan	2003
40.	Thailand	2013
41.	Tunisia	2000
42.	Turkey	2001
43.	UAE	1999
44.	UK	1992
45.	Ukraine	2002
46.	USA	1997
47.	Uzbekistan	2000
48.	Vietnam	2011

Further, currently, India has extradition arrangements with the below-mentioned 12 countries. Extradition arrangements refer to the agreements between the requesting and territorial states, wherein it is agreed that the extradition will take place as per the local laws of the territorial state and international regulations instead of the local laws of the requesting state.

S. NO.	COUNTRY	YEAR OF ARRANGEMENT
1.	Antigua & Barbuda	2001
2.	Armenia	2019
3.	Croatia	2011
4.	Fiji	1979
5.	Italy	2003
6.	Papua New Guinea	1978
7.	Peru	2011
8.	Singapore	1972
9.	Sri Lanka	1978
10.	Sweden	1963
11.	Tanzania	1966
12.	New Zealand	2021

Restrictions on surrender under Indian Law

As per Section 31 of the Act, the fugitive criminal shall not be surrendered:

If the offence committed or alleged to have been committed by him is of political nature;
If the offence committed or alleged to have been committed by him is time-barred as per the requesting state’s laws;
If no provision exists in the extradition treaty or arrangement stating that he shall not be tried for any offence other than for which he is extradited;
If he has been accused of any offence in India not being the one for which is extradition is sought; and
Until after fifteen days from the date of his being committed to prison by the magistrate.

Procedure for extradition in India

Procedure for extradition from India

The process for the extradition of a fugitive criminal from India begins when the requesting state sends a request along with relevant evidence through diplomatic channels to the Consular, Passport and Visa (CPV) Division of the Ministry of External Affairs (MEA), Government of India (GOI). Upon receiving it, the GOI requires the Magistrate of Extradition (usually a Magistrate of First Class) to issue an arrest warrant.

The Magistrate issues the arrest warrant on the conclusion of the following aspects, based on the evidence put forth before him:

Establishment of the fugitive criminal’s identity;
That the fugitive criminal is extraditable; and
That the crime committed or alleged to have been committed is extraditable.

Upon the arrest, the fugitive criminal undergoes judicial inquiry, the report of which is submitted to the GOI. If satisfied by the report, the GOI may issue a warrant for the custody and removal of the fugitive criminal. He is then delivered to the requesting State at the place specified in the warrant.

Procedure for extradition to India

The process for the extradition of a fugitive criminal to India from the territorial state begins when the juridically competent Magistrate in India sends a request to the CPV Division of MEA, GOI, upon the prima facie establishment of a case against the fugitive criminal. The Magistrate sends the request along with relevant evidence and an open-dated arrest warrant.

The request is then formally sent to the territorial state through diplomatic channels, from where it is forwarded to an Inquiry Magistrate. Such a Magistrate will ascertain:

The identity of the fugitive criminal;
Whether the offence committed or alleged to have been committed is extraditable;
Whether the fugitive criminal is extraditable.

Upon such determination, the Inquiry Magistrate in the territorial state issues a warrant to arrest the fugitive criminal. His arrest is intimated to the CPV/ Indian Embassy. Finally, concerned Indian law enforcement personnel travel to the territorial state to escort the fugitive criminal back to India.

Landmark cases on extradition

Savarkar’s case

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.

Re Castioni’s case

In this case of 1891, a murderer escaped from Switzerland to England. The government of England rejected the extradition request of Switzerland. The court held that the accused murdered in order to cause political disturbance, which constitutes a crime of political nature. Hence, England was not obliged to extradite him.

Re Meunier’s case

In this case of 1894, a fugitive criminal escaped from Paris to England after blasting a bomb in a public place in Paris. The government of England refused France’s request for extradition. The court ordered the government of England to accept the request for extradition, as the fugitive was not a political offender.

Conclusion

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.

Frequently Asked Questions (FAQs)

What is the difference between extradition and asylum?

The process of returning the convict or accused to the nation he escaped from is called extradition. Asylum is when a country gives protection to individuals who are being prosecuted by another country.

Can a country extradite its own nationals?

Most countries refuse to extradite their own nationals, unless and until agreed upon in the extradition treaty.

References

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