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Extradition and International Law

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 31-Dec-2024

Source: The Hindu  

Introduction 

In December 2024, Bangladesh formally requested India to extradite former Prime Minister who had sought exile in New Delhi following anti-government protests in August 2024. The extradition request stems from charges of conspiracy, mistreatment, and alleged crimes against humanity related to student protests. While Bangladesh has initiated legal proceedings through diplomatic channels, India faces complex legal considerations regarding the extradition request under both domestic and international law. 

What Led to Bangladesh's Extradition Request for Sheikh Hasina? 

  • 5th August, 2024: Prime Minister left Dhaka and fled to New Delhi seeking exile 
  • 13th August, 2024: First Information Report (FIR) was filed against her and associates 
  • 17th October, 2024: Dhaka-based International Crimes Tribunal issued arrest warrants for Hasina and 45 others 
  • 18th November 2024: Tribunal gave investigation authority one month (until December 17) to complete investigation 
  • 23thDecember, 2024: Bangladesh formally requested India to extradite Hasina 

Key  Statements: 

  • Conspiracy to eliminate students involved in protests 
  • Mistreatment and killing of hundreds of protesters (labeled as genocide and crimes against humanity) 
  • She was declared an absconder for not surrendering after leaving Dhaka 
  • Bangladesh Press Secretary stated: "We want our relations with India to be based on fairness, equality and dignity" 

What are the Legal, Constitutional, and International Dimensions of Prime Minister Extradition Case? 

  • India's Position: 
  • The Indian government has not yet officially commented on Bangladesh's extradition request 
  • Legal Options Available to India: 
    • India can invoke two main defenses to bar Bangladesh's extradition claim:  
      • Political offense exception (though article suggests this may not be plausible) 
      • Rule of non-inquiry (executive discretion in extradition matters) 
  • Constitutional Protection Position:  
    • PM, though not an Indian citizen, is protected under Articles 20 and 21 of Indian Constitution 
    • Based on Supreme Court ruling in National Human Rights Commission vs State Of Arunachal Pradesh & Anr. (1996), non-citizens are entitled to Article 21 protection 

ICC Position  

  • ICC's Jurisdictional Basis: "Bangladesh is the 111th state party to the Rome Statute of the ICC" 
  • ICC's Jurisdiction Criteria Statements: The case meets ICC's four jurisdictional criteria: 
  • "Material: being a 'crimes against humanity', it passes the threshold of gravity" 
  • "Personal: committed by a citizen of a state party" 
  • "Territorial: committed in the territory of Bangladesh" 
  • "Temporal: occurred after 2002" 
  • Current Position on Intervention: "The ICC is a court of last resort, and it must supplement, rather than supplant, national jurisdiction" "As Bangladesh has started this trial at the domestic level, the ICC has no reason to intervene" 
  • Potential Grounds for ICC Involvement: Under Article 53 and 17 of Rome Statute, ICC can intervene if: 
  • "Accused's rights are in danger" 
  • "Proceedings are not conducted independently and impartially" 
  • Proceedings are "inconsistent with an intent to bring the person concerned to justice" 
  • Alternative Solutions Involving ICC: Two possible routes suggested: 
    • "Under Article 14 of the Rome Statute, Bangladesh can refer this matter to the ICC" 
    • "Under Article 15 there can be a proprio motu preliminary examination by the OTP" 
  • Recent ICC Precedent Cited: "On October 29, 2024, its Pre-Trial Chamber III issued a decision to hold a confirmation of charges hearing for suspect Joseph Kony in his absence" 
  • Rights Protection Statement: "Ms. Hasina will not be able to get her rights of impartial and independent judicial authority under Article 14 of the ICCPR read with Article 21(3) of the Rome Statute" 
  • Final Position Option: "Ms. Hasina can surrender to the ICC with an assurance that she must not be extradited to Bangladesh" 

What are the Legal Frameworks Governing Sheikh Hasina’s Extradition and Rights Protection in India, Bangladesh, and the ICC? 

  • Indian Legal Provisions: 
    • Constitutional Provisions: 
      • "Articles 20 and 21 of the Indian Constitution" protect non-citizens 
      • Supreme Court precedent: "National Human Rights Commission vs State Of Arunachal Pradesh & Anr. (1996)" 
    • Extradition Framework: 
      • "Indian Extradition Act 1962" - provides framework for extradition 
      • "Bilateral extradition treaty with Bangladesh (2013)" 
    • Executive Powers: 
      • "Rule of non-inquiry" - extradition is executive's discretion 
      • Municipal court intervention traditionally not allowed 
  • ICC Legal Provisions: 
    • Jurisdictional Provisions: 
      • "Articles 5, 11 and 12 of the Rome Statute" - establish ICC jurisdiction 
      • "Article 17" - principle of complementarity 
    • Investigation and Prosecution: 
      • "Article 15" - proprio motu preliminary examination by OTP 
      • "Article 53" - grounds for ICC intervention 
      • "Article 14" - state referral to ICC 
    • Rights Protection: 
      • "Article 21(3) of the Rome Statute" - judicial authority rights 
      • "Article 14 of the ICCPR" - rights to impartial and independent judicial authority 
    • Trial Provisions: 
      • Pre-Trial Chamber III precedent for trials in absentia 
      • "Article 17" read with "Article 53" - protection of accused's rights 
  • Bangladesh Legal Provisions: 
    • Criminal Procedure: 
      • "Section 339 B of the Code of Criminal Procedure 1898" - allows trial in absentia 
      • International Obligations: 
      • "Aut dedere aut judicare principle" - obligation to "either extradite or prosecute" 
      • Member state obligations u
      • under "Article 2(4) of the UN Charter" 

Conclusion 

The resolution of Sheikh Hasina's extradition case requires a balanced approach that considers both legal obligations and humanitarian concerns. While India has valid grounds to deny extradition under political offense exceptions and constitutional protections, a middle-ground solution involving virtual trial participation from India could satisfy both countries' interests. This approach would uphold principles of justice while maintaining diplomatic relations between India and Bangladesh, with the ICC remaining a potential alternative forum for adjudication if domestic proceedings prove inadequate.