SWAYAM COURSE TITLE : HUMAN RIGHTS, INTERNATIONAL LAW &

INTERNATIONAL HUMANITARIAN LAW

COURSE CO-ORDINATOR : Prof. (Dr.) G. B. REDDY

University College of Law,
Osmania University, Hyderabad.

SUBJECT EXPERT & AUTHOR : Prof. (Dr.) S. B. DWARAKANATH

TEACHING ASSISTANT : Dr. S. B. Md. Irfan Ali Abbas

SCRIPT

LESSON-16: EXTRADITION

A person after committing a crime may flee to another State. The State has territorial
sovereignty and it may permit an alien to stay on its territory. Such a criminal shall not be
arrested or prosecuted by the State, where he happens to reside since he has not committed
any crime on the territory of that state. The first State where he is alleged to have committed
the crime cannot arrest and prosecute him due to the territorial sovereignty of the other
State. But the aim of the law is to punish the criminal. Therefore, the State on whose territory
the criminal has committed the offence may request the State on whose territory the criminal
is physically present or residing to deliver him for his trial and prosecution. Such a process
of demanding the criminal from the latter State by the former is called extradition.

Definition of Extradition:

Extradition is the formal surrender of a person by one state to another state for
prosecution or punishment. Oppenheim has defined it as follows, "Extradition is the delivery
of an accused or 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." "Extradition" means
the delivery of a person by one State to another as provided under a treaty, convention or
national legislation. Customary international law does not impose any duty on States to
surrender criminals. States have, in the absence of a treaty, upheld their right to grant asylum
to foreign individuals on the basis of territorial sovereignty.

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Extradition Treaties

Modern civilization demanded extradition of criminals as a rule and, as such, prior

treaties between States were concluded. In the beginning, initially there were bilateral
treaties which gradually have been extended as multilateral. American States have entered
into bilateral treaties in 1889 and 1902 and ultimately in 1981 the Inter-American
Convention on Extradition was adopted. Similarly, European Convention on Extradition
1957 with four additional protocols has been adopted.

Extradition and Expulsion

Extradition is different from expulsion and deportation. Extradition procedure is

based on international co-operation in criminal matters. Such procedure is usually laid down
in treaties. Expulsion and deportation procedures are mainly based on National Legislation
related to immigration. Such procedures are unilateral by nature. Extradition provides the
individual with certain safeguards (e.g. Rule of Speciality, Double Criminality) which are
lacking in case of deportation or expulsion. Expulsion focuses more on the sovereign right of
the State. In case of expulsion, the person lives as a free man. In extradition it is not so. After
formalities of extradition law are completed, he is handed over by one set of police to the
other. Extradition involves complaints with an international obligation and is performed in
furtherance of the suppression of transnational crimes and the elimination of safe heavens.
Expulsion is a unilateral action of a State which is designed to protect its national interests.

Municipal Legislation

Various States have enacted extradition laws which lay down the procedure and a list
of extraditable crimes. Belgium was the first country which enacted such legislation in 1833.
The UK enacted the Extradition Act, 1870 which has been replaced by the Extradition Act,
1989. Extradition Act, 1903 was modeled on the British enactment. Now, the Extradition Act,
1962 is on the Indian statute book.

Grant of extradition and procedure are generally matters of national law and,
therefore, there is no uniformity in such laws. But certain principles are now established.

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The law of extradition is a dual law. It is ostensibly a municipal law, yet it is a part of
international law also. Request for extradition is made through the diplomatic channel.
There should be an extraditable person as well as an extraditable crime.

A warrant of arrest was issued by the competent magistrate against J.K. More, under
the Fugitive Offenders Act, 1881. More was living in Hong Kong. The arrest warrant was sent
through diplomatic channels of the government of India. More was arrested, however in the
meantime the Calcutta High Court quashed the warrant and all subsequent proceedings on
the ground that Fugitive Offenders Act had ceased to operate after the commencement of the
Constitution of India. On appeal to the Supreme Court, it was held that the fact that India is
now a sovereign republic did not by itself render the Fugitive Offenders Act, 1881
inapplicable to India. It further held that the government of India could secure through
diplomatic channels, the extradition of an offender for trial of an offence committed within
the territory of India, notwithstanding the Indian Extradition Act, 1962.

Extraditable Persons

Generally a State may obtain the surrender of its own nationals or nationals of a third
state. Some States, such as France and Germany, never surrender their own nationals to a
foreign state. The states themselves may prosecute and punish the offenders for serious
offences committed by them on foreign territory.

Extraditable Crimes

There is no legal prohibition in extraditing a person for any crime. However, in

general, extradition is made in respect of crimes of a more serious nature. It is evident from
the common practice of the states to list such crimes in a bilateral extradition treaty.
Generally the following crimes are not subject to extradition proceedings under customary
rules of international law, crimes such as Political Crimes, Military Offences, for example
desertion, and Religious Offences.
• Political crimes: The concept of political crimes or offences came into vogue after
the French Revolution. There is no agreed definition of political crime under international

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law. The definition of such a crime has been left to the national laws. The States now accept
the rule that political criminals should not be extradited. But the experts of international law
have expressed doubts regarding the existence of any rule of customary international law
which prevents a State from extraditing political offenders. As already noted, the main issue
raised by international law is the definition of the term political crime. Various criteria have
been adopted to define a political crime such as:
§ The motive behind the crime.
§ The circumstances under which it was committed.
§ It would embrace specific offences such as treason or attempted treason.
§ The act should be directed against any political organization on the territory of the
requesting State.
§ There should be political unrest and the existence of two political parties striving for
establishment of political control in the State.

The difficulty in defining a political crime or offence is inherent in the very nature of the
concept. A group of States may consider a particular movement for achieving political ends
as deserving protection; while another group of states may consider the members of such a
movement as a "band of criminals" deserving punishment. Sometimes ordinary criminals
might be sought in extradition by a State on political considerations. Mutual relations
between the demanding state and the extraditing State may also play a significant or
important role. This is evident from the decisions of courts of law. Some of the landmark
cases are discussed below.

• Castioni, Re (1891) 1 QB 149: In the instant case, the prisoner was a Swiss
national, who was arrested by the British authorities on a warrant for his extradition to
Switzerland. He was accused of the charge that he had in an uprising, shot a member of the
member of the Council of the Canton of Ticino in the course of seizing the municipal Palace.
The British court discharged the prisoner on the ground that his crime was of a political
nature. The court noted three things for a political crime namely: (1) acting in pursuance of
political ideals (2) political unrest, and (3) a conflict between two or more political parties
in the State trying to establish a Government.

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• Meunier, Re (1894) 2 QB 415: According to the facts of this case, the prisoner
was an anarchist who had caused two bomb explosions in a military barrack in France in
which two individuals were killed and who fled to England. However, the British court
refused to accept his crime as political by excluding anarchist and terrorist acts from the
category of political crimes.

• France v. Great Britain (Reports of International Arbitral Awards, Vol.11, 24-2-

1911, 243-55) Savarkar Case: Savarkar, a freedom fighter from India was being
brought to India from Britain. While the British ship was anchored at a French port, Savarkar
jumped from the ship and swam ashore in Marseilles Harbour. A French policeman arrested
him and handed him over to the British ship captain. French authorities realized that there
was no obligation on their part to return Savarkar and therefore asked for the return of
Savarkar. The British ship captain refused to return Savarkar, giving rise to a dispute
between the two countries. The permanent Court of arbitration decided in favour of Great
Britain. It observed, "while admitting that an irregularity was committed by the arrest of
Savarkar and by his being handed over to the British police, there is no role of international law
imposing, in circumstances such as those which have been set out above, any obligation on the
Power which has in its custody a prisoner, to restore him because of a mistake committed by
the foreign agent who delivered him up to that Power."

• R. v. Governor of Brixton Prison, Ex parte Kolczynski & others (1955) 1 QB 540:

In this case the facts are as follows. Seven Polish seamen had overpowered the captain and
other members of a Polish vessel and had brought it to England and sought asylum. The
government of Poland initiated extradition proceedings and requested the British
government to extradite them. The English court refused the extradition on the ground that
the act of the seven crewmen was of a political nature. In this case, the court did not follow
Castioni re case because in Poland there was no struggle between two political parties for
political power. The court, instead observed that the words “offence of a political character”
must always be considered according to the circumstances existing at the time when they
have to be considered.

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• Govt. of India v. Mubarak Ali Ahmed (1952) 1 All ER 1060: In the instant case,
the prisoner had committed forgery and crossed over to Pakistan. India could not get the
accused extradited from Pakistan. Subsequently the prisoner left Pakistan and went to
England. India requested for his extradition. He pleaded that he would not get a fair trial in
India for political reasons. The court, however refused to treat him as a political criminal.
The court further observed that the fact that the prisoner has been a subject of a cute political
controversy in the requesting State, does not make him a political offender. International law
leaves it to the States to determine whether a particular act is of political nature or not. But,
it seems reasonable that the discretion of the States in this regard would be restricted by the
general rules of international law. Therefore, States will be under pressure to extradite
persons who have committed acts of genocide, war crimes, crimes against humanity and
terrorist acts. Such offenders cannot be protected under the category of political offenders.

• Abu Salem Extradition case: Abu Salem was charged for various offences
including the 1993 Mumbai bomb blasts. After the blast he left India and subsequently
located himself in Portugal. India did not sign an extradition treaty with Portugal. However,
India sought extradition under the United Nations Convention on Suppression of Terrorism,
2000. Since India and Portugal are parties to this Convention they are under an obligation to
help each other in the war against terrorism. Meanwhile, Abu Salem and his girlfriend
Monica Bedi were prosecuted and sentenced by the court of Law in Portugal. The court also
ordered the extradition of both the fugitives to India after completion of the sentence. Abu
Salem and Monica Bedi moved the European Court of Human Rights against extradition,
which refused to intervene in the matter. They were extradited on the assurance of the
government of India that they would not be sentenced to death. However, in India, the CBI
included a new charge, which was against the Rule of Speciality. On Salem's application, the
Supreme Court of Portugal terminated his extradition to India. On a direction given by the
Supreme Court of India, the CBI dropped the additional charge against Abu Salem. His trial
is in progress. In CBI v. Abu Salem Abdul Kayyam Ansari i.e. (Pradeep Jain's murder case), Abu
Salem has been sentenced to life imprisonment.

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Initiatives to Restrict the Scope of Political Offences

The term "political offence" has been vague. There is no internationally agreed
definition of this term. It is argued that the most heinous crimes such as genocide, war crimes
and crimes against humanity, are not political crimes for refusing extradition. International
law has, however, made various efforts to limit the meaning and scope of this term. Some of
these initiatives are listed below:

• Attentat clause: It originated in 1856 in Belgium and was followed by other States. This
clause provides that a murder of the head of a foreign State or of a member of his family
should not be considered as a political crime.

• Genocide Convention, 1948: Under Article 7 of this Convention states that the crime
of genocide is not to be considered as a political crime as it is excluded from the category
of political offences for the purposes of extradition.

• The European Convention for the Suppression of Terrorism excludes terrorist acts
from the ambit of political crimes.

• The Statute of the International Criminal Court, 1998 puts a general obligation on the
States parties to the convention to "cooperate fully with the court in its investigation and
prosecution of crimes within the jurisdiction of the court". Crimes within the jurisdiction
of the court are the crimes of genocide, crimes against humanity, war crimes and the
crime of aggression.

Principle of Double Criminality

States refuse to grant extradition under this rule which is normally incorporated in
the extradition treaties. Under this principle extradition is granted only when the act
committed constitutes an offence under the laws of both the requesting and the requested
States. In Factor v. Laubenheimer, (1933), 290 US 276 British authorities sought the
extradition of Factor on the charge of receiving in London money which he knew to have

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been fraudulently obtained. When extradition was initiated, Factor was residing in the State
of Illinois in the US. The offence for which Factor was charged was not an offence in Illinois.
The US Supreme Court held that this did not prevent extradition if, according to criminal law
generally of the US, the offence was punishable.

The above being the first dimension of the principle, a second dimension was added
to the principle which stated that even the punishment for the offence committed must be
the same under the laws of both the requesting and the requested states. This dimension
was the result of the Soering case., (1989) 11 ECHR 439 where Mr. Soering, a German
national while pursuing higher studies in an American university fell in love with an
American girl who was his classmate. Both wanted to get married but, the parents of the girl
were against the marriage which prompted them to murder the parents of the girl.
Subsequently both fled to U.K. and when U.S. government initiated proceedings for their
extradition the U.K. government stated that even the punishment must be the same. Since
punishment for murder under U.K. law was imprisonment for life because the European
Union and many countries have abolished death penalty as punishment and in United States
it is death penalty, the British government refused to extradite. However, the British
government tried and punished Soering and his girlfriend under British criminal law.

Rule of Specialty

This rule also finds place in the extradition treaties and national laws. According to
the rule, the requesting State can punish the extradited person only for the offence for which
he was extradited and for no other offence. If a person is extradited for murder, he shall not
be tried for causing grievous hurt.

Rendition

The States on the basis of reciprocity may make ad hoc arrangements under which an
offender may be returned to a State to be tried by that State. This is called Rendition.

Conclusion

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 The concept of extradition is one of the principal concepts that was developed by
International jurists for the purpose of proper administration of criminal justice. A person
who commits an offence on the territory of one State and escapes to another State, the State
on whose territory the offence was committed is unable to punish him. The State on whose
territory the offender resides through the concept of extradition should surrender him to the
other State. If due to restrictions imposed by international law the State is not in a position
to extradite, then it has to punish him under its own laws. Therefore no offender shall go
unpunished in the world.

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