Investigating extradition, asylum and their intersections

This article examines the concept of extradition under international law, its general principles and Indian extradition law. In addition, the idea of ​​asylum is discussed in relation to international law. The relationship between asylum and extradition is also discussed.

Concept of extradition under international law

The word “extradition” comes from Latin, where “ex” means “out” and “tradition” means “delivery”; used together, they mean ‘the delivery of a criminal’. Extradition is the process by which a territorial state extradites a person who has fled to another state after committing a crime in its own territory.

According to Oppenheim, extradition constitutes extradition of an accused or convicted person to the state where he is accused of, or found guilty of, a crime by the state in whose territory he is at the time.

Extradition is not fully subject to international law. The municipal courts of the states determine whether a person may be extradited or not. At the same time, international law controls the connection between the territorial state and the requesting state based on whether that individual would be transferred by the state to another state; As a result, extradition laws are not well defined in international law. Many concepts of extradition have thus emerged from treaties between two state entities, or bilateral treaties, as well as from court precedents and national laws of states.

General principle of extradition

International extradition proceedings are governed by a number of broad concepts. Some of the highlighted ones are listed below:

• Specialty rule: This concept allows the requesting state to file charges against a fugitive based solely on the offense for which he was extradited. This means that a state has a duty not to prosecute an extradited person for any other crime. Ultimately, they provide the fugitive with protection against unauthorized extradition.
• Double Criminality: Extradition is often only permitted if the offense was committed within the jurisdiction of both states, i.e. the requesting and the requested state.
• Time-barred crimes: The territorial state will not extradite the fugitive if he has already been tried by the territorial state for the same offense for which extradition is requested by the requesting state.
• Non-extradition of political criminals: The extradition of political criminals is prohibited under customary international law, which is based on the principle of humanity. However, the d’attentat clause specifies that assassinations of heads of state or government should not be considered political crimes, and that such victims may be extradited.
• Someone who has committed a military crime or a religious crime cannot be extradited.

Purpose of extradition

The main purpose of extradition is to have the deterrent effect that no criminal escapes justice. Moreover, extraditing fugitives ensures that their crimes do not go unpunished and is a step toward reducing crimes. Moreover, reciprocity is the basis of extradition, which implies that the requesting state may ultimately become the territorial state in the future.

Indian law on extradition
India has bilateral treaties with about thirty-eight countries including the United Kingdom, United States of America, Germany and others. The Extradition Act, 1962 is an Indian statute that sets out the rules and processes for the extradition of fugitives from India to other countries and vice versa.

Fallen:

Factor v. Laubenheimer established that there is no universally recognized practice that extradition cannot take place except under a treaty, for some countries allow extradition without a treaty.
The Abu Salem extradition case, even though India and Portugal do not have an extradition treaty with each other. When Abu Salem fled to Portugal after the Mumbai blast, Portugal extradited Abu Salem along with his wife to India.

Fraud has caused India’s banking and financial sector to lose ₹41,000 crores. The cases of Vijay Mallya and Nirav Modi are two recent examples of those currently undergoing extradition proceedings.

Concept of asylum under international law

Concept of asylum:
The Latin term ‘asylum’ comes from the Greek word ‘asylia’, which means ‘inviolable place’. As a result, it claims to be a state-granted shelter and active protection for a person seeking such security and protection in its territory. Asylum is invoked when the territorial state refuses to transfer a person to the requesting state and provides shelter and protection in its own state.

Asylum subsidies are recognized as sovereign rights of a state under Article 1 of the 1974 General Assembly Draft Convention on Territorial Asylum.

Just as other countries have laws regarding immigration and asylum seekers, India also has laws that address these topics. The Citizenship Amendment Act, which covers refugees, was recently introduced in India.

Reasons for asylum:

A state grants someone asylum for the following main reasons:

• Primarily to protect an individual from an unjust trial in the event of extradition due to disagreements with his political and religious beliefs.
• Second, asylum is granted to prevent further human rights violations on extralegal or humanitarian grounds, to protect political perpetrators from the violent acts of irresponsible community members.
• Third, the decision to grant refuge is significantly influenced by national security. The perpetrator who is a rebel now may become the ruler in the future. If he is extradited in that scenario, the relationship will come under pressure

Case:

Asylum of the Dalai Lama, in 1959. The asylum granted by India to the Dalai Lama and other Tibetans resulted in tense relations between India and China. India, on the other hand, was competent enough to grant asylum due to the principle of territorial sovereignty.

Link between asylum and extradition

The extradition procedure differs from the usual practice of granting asylum by the state. Consequently, the state uses the extradition process in situations where the practice of granting asylum is not followed. However, extradition and asylum intersect and overlap in some respects. For example, when determining whether a refugee or asylum seeker can be lawfully extradited, the state must make a decision that is consistent with the principle of non-refoulment, as guaranteed by Article 33 of the 1951 Convention and customary international law.

Conclusion
While the primary purpose of asylum is to provide a safe haven for someone fleeing political persecution or tyranny, extradition aims to protect criminal justice. The political actions of the state as well as the former and latter vary from state to state based on their internal and external policies and treaties.

References:

• Sibylle Kapferer, The intersection between extradition and asylum, PPLA/2003/05, UNHCR.org (May 30, 2021, 9:30 PM), https://bit.ly/3fYKqlm
• Factor v. Laubenheimer, (1993) 280 US 276
• Roshni Bagai, Extradition Laws, Trials and Recent Developments, Latest Laws.com (May 26, 2021, 8:30 PM), https://bit.ly/34zz6Xn
• Debalina Chatterjee, Extradition and Asylum: Concept and Key Case Law, Legal Bites (May 27, 2021, 9:00 PM), https://www.legalbites.in/uitlevering-and-asylum

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