Law Optional (Extradition and Asylum) by Rajnish Jindal

Model Answer

Question #1. Asylum stops, as it were, where extradition or rendition begins. 10 marks (150 words)

Extradition and Asylum are two sides of the same coin. As a concept, they do not exist together. However, they cannot be considered in isolation from one another. For instance, when any person is given Asylum in a Foreign State, the state actively protects the accused or convict from getting captured by the Home State. This comes in between the process of Extradition by the Home State. 

The term asylum is derived form the Latin word “Asylia” which means inviolable space. This term is referred in those cases where the territorial state refuses to surrender a person to the state which is requesting, and provides shelter & protection in its own territory. Thus, asylum involves two elements:

1. A shelter which is more than just a temporary settlement,
2. Protection of the person from the authorities in control of asylum 

In a nutshell, asylum is granting protection to a person of another state in one’s territory and being protected by its laws. There are no specific laws based on asylum, however there are various conventions and treaties which provides certain rights to people which can be exercised, for example:

1. Article 14 of the Universal Declaration of Human Rights provides the right to seek asylum in any country to protect them from persecution.
2. Article 33(1) of Refugee Convention 1951 prohibits the expulsion or return of refugees and asylum seekers if their life is in danger.
3. Article 18 of the Charter of Fundamental Rights of the European Union also provides that the right to asylum is guaranteed as per the rules of the Geneva convention.

The articulation of the right to asylum signifies that it is not the right of an individual, but the right of the state to grant asylum. It is discretion of the state to grant asylum or not. The benefit of asylum is basically that it saves the lives of the people form the authorities’ jurisdiction when the person fears that he/she might not be given a fair trial and would have to face persecution.

For a state to punish a person who has committed a crime elsewhere is difficult because of lack of jurisdiction. In such cases these persons are surrendered to the state where the crime has been committed, this is called extradition.

The term extradition has been derived from two Latin words- ex and traditum, which collectively means “delivery of criminals”. According to Oppenheim, “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. The objective of extradition is to prevent criminals who fled from jurisdiction to escape from the country in which they have been accused or convicted crime.

Reasons to extradite a person:

1. Jurisdiction: A person cannot be punished or prosecuted in a state where he has fled away due to lack of jurisdiction.
2. Extradition has a deterrent effect as it gives a warning to the criminals that they cannot escape law.
3. The most important one is that it is a step towards international co-operation. Thus, it fulfils one of the purposes of U.N. as given under Para 3 of Article 1 of the charter.

Extradition generally depends upon the treaties bilateral between two countries. If there isn’t any treaty between the concerned countries then it would totally depend upon the security and law & order of the country in which person is residing for the time being to be extradited or not.

Law of extradition is a dual-law, it has national as well as international operation. Extradition of a state is decided by municipal courts of a state, it is also part of international law as it governs the relations between two states. Bilateral treaties, national laws of states and judicial decisions have led to developing certain principles regarding extradition which are considered as general rules of international law. They might be classified as following:

1. No extradition of political criminals- it is a rule of international law that political offenders shall not be extradited. The practice of non-extradition for political crimes began with the French Revolution of 1789 which was later adopted by all the countries. The problem to define who a political criminal is, is still prevalent. A political crime is sometimes considered if committed from a political motive or if committed for apolitical purpose, or it may be confined to certain offences like treason.
2. The rule of speciality: an accused is extradited for a particular crime, and the country to which the accused is extradited can only prosecute the person for the crime for which he was extradited. The same law prevails in India under section 31(a) of Extradition Act 1962.
3. Double criminality: the doctrine of double criminality denotes that a crime must be an offense recognized in the territorial as well as in the requesting state. No person is extradited unless this condition is fulfilled.
4. Crime should appear prima facie: There should be sufficient evidence for crimes relating to extradition.
5. Terms and conditions: In case of Sarvarkar (1911), who was being brought to India to be prosecuted, escaped at port of Marseille but was later apprehended by French police and was given to British police. Later, government of France requested the British to return Sarvarkar as the rules in relation to his extradition was not fulfilled. The court decided that international law does not impose any obligation upon the state whereby on the ground that criminal may be returned.
6. Treaty- extradition is a matter of bilateral treaties. It has been held that there must be a formal treaty, not just an agreement or notification. This point was also given in the Tarashov Extradition case (1963).
7. No extradition of their own citizens- generally states do not allow the extradition of their own citizens. In Regine v. Wilson, it was observed that where the high contracting parties expressly provide that their own subject shall not be delivered up as in case of treaty between England and Switzerland.

Conclusion: To sum up, it can be said that asylum stops where extradition begins. Extradition and Asylum are related and are intertwined. Extradition refers to the process in which an accused of a crime of one country has been captured in a foreign country and has been surrendered back to the Home State. Asylum on the other hand means the active shelter and protection of an accused by a country against the country trying to prosecute him. The grant of Extradition and Asylum are very subjective in nature. Every case requires its own analysis and therefore every country should look into the pros and cons before granting them. Extradition and Asylum are political acts of States and it differs from state to state depending upon treaties, internal and external policies. Extradition and Asylum both have pros and cons before taking any decision States should vividly ponder on their decisions.

Question #2. The law of extradition has obstructed international reaction against terrorism though all States agree that terrorism should be effectively suppressed. Critically examine the problem of dealing with terrorism under international law keeping in view the above statement. 15 marks (250 words)

Terrorist crimes, like all criminal acts, pose a serious menace to innocent victims and societal interests. The transnational character of terrorist activities raises yet another obstacle to efforts to bring legal sanctions to bear against criminal offenders. The extradition of apprehended terrorists, of course, is one legal means by which to respond to this situation. The apparent consensus among the courts of the world community is that the political offense exception is not designed and should not be interpreted or modified to cover such acts. While most national and international treaties admit to the need to extradite terrorists, the treaties define 'terrorists' so diversely that uniform practices are impossible. The definition of terrorists is crucial because political prisoners have long enjoyed a special status in the international community and extradition of terrorists is frequently refused on the grounds that they are political refugees. Extradition agreements are designed to assure the protection of the separate states and of individuals from such offenses as air piracy and violent criminal acts against life and limb. However, existing agreements do not permit generalization of the extradition rule because of the wide range of exceptions possible for 'political offenders.' To resolve the difficulties, the relationship between terrorism and political offenses must be more clearly defined.

Solutions may be:

1) to establish a category of partially political offenses which may or may not warrant extradition,

2) to reject terrorism as a political offense and place it in the category of regular offenses, and

3) to give terrorists special status taking into considerations the specificity of terrorist actions.

At the present time, extradition in cases of terrorist acts depends on the seriousness of the act and whether the act fits into the list of recognized terrorist activities. This list includes airplane hijacking, offenses against individuals protected by diplomatic immunity, hostage taking, offenses involving bombs or automatic weapons, and severe property damage while performing an act seriously dangerous to human lives. Persons subject to extradition in existing treaties are individuals know to have commited acts of international terrorism, to have attempted to commit acts of international terrorism, or to have aided and abetted terrorist acts, at least in some cases. Most states, except for Great Britain and the United States refuse to extradite nationals. This is regrettable, because criminals can escape by becoming citizens of countries without extradition agreements, prompting the countries seeking extradition to resort to illegal practices to gain custody of the criminal. The most immediate means of facilitating extradition of terrorists is for separate states to ratify existing conventions and for the separate states to cooperate in bringing their internal laws on extradition into agreement.