India has extradition treaties with 31 countries but still can’t get hold of criminals and terrorists who have harmed it. For any treaty to be successful, both parties have to be willing
By Papia Samajdar
Early in January, Mexico agreed to immediately extradite Mexican drug lord Joaquín Guzmán Loera, famously known as El Chapo, to the US. This was the third time he was captured by Mexican authorities. In February 2014, after El Chapo’s capture then, the Enrique Pena Nieto government had promised to extradite him to the US after 300 years or so, post settling all the criminal cases against him in the home country. Running one of the deadliest drug cartels, El Chapo is wanted in the US on charges of drug trafficking, money laundering and murder. But he escaped in July 2014, causing major embarrassment to the Mexican authorities and this convinced them to hand over this slippery man directly to the US. This high-profile extradition by the Mexican government is seen as a major effort in rebuilding strained relations with the US.
This should be emulated by other countries. Extradition treaties, in fact, are not only meant to be strong international legal instruments, but also political tools to enhance regional cooperation in curtailing crime and combating terrorism. These treaties are usually bilateral agreements between two countries, but suffer perils just like other international instruments. As the current international regime is that of consent, there is no obligation on the requested party to carry on the extradition.
India has extradition agreements with 31 countries, which means that there can be an exchange of a convict between India and these countries, at least on paper. However, these agreements are conditional to refusal clauses, and to a large extent, political will. Take the Italian marines case. While India and Italy have an extradition arrangement (2003), there is no incentive for the Italian government to extradite the marines to be tried in an Indian court. According to a spokesperson in the legal department of the Ministry of External Affairs, which handles extradition requests, though a legal instrument is present in principle, there is no compelling reason for states to abide by these legal rules. In the end, it is the underlying political motive which would ultimately dictate the success of such a request.
In the case of the murder of Gulshan Kumar in 1997, music director Nadeem Saifi, who was implicated, lies low in exile in the UK. Saifi escaped extradition from the UK by appealing in the UK court against the evidence provided by the Mumbai police. To prove his innocence, Saifi must return to India as the murder case is registered in an Indian court. However, UK has declined India’s request for his extradition.
An interesting case was the request by the Indian government in 1995 to extradite Liberation Tigers of Tamil Eelam (LTTE) leader Velipillai Prabhakaran from Sri Lanka in the Rajiv Gandhi assassination case. Despite the extradition arrangement between India and Sri Lanka as of 1978, the CBI was not convinced if the documentation and proof required by the Sri Lankan court would suffice for the extradition of Prabhakaran. Once India puts a request for extradition to any state, it has to be passed by the court of that country first. The fact that the Sri Lankan government would want to keep its option of conducting peace talks open with the rebel group also delayed India’s request for extradition from 1992 till 1995. Colombo did cooperate initially but eventually backtracked and asked India to file a formal extradition request. At the same time, India was conscious of the fact that it had also delayed Sri Lanka’s request to extradite Prabhakaran (who was in India then) in the Pondy Bazar shoot-out incident in Chennai in 1982. The Sri Lankan government maintained that it would consider India’s extradition request if the LTTE chief was caught. Prabhakaran was finally caught and killed in 2009 by the Sri Lankan army squashing the 25-year-old rebellion.
The UN charter encourages regional economic and geopolitical cooperation, and a regional body to push forward its agenda of economic and social development. In the sub-continent, there is the South Asian Association for Regional Cooperation (SAARC), a body of eight member states set up in 1985, which is dedicated to economic, technological, social and cultural development, with its headquarters in Kathmandu.
Since its inception, the need for collective mechanism to counter terrorism has been high on SAARC’s agenda, as it was seen as one of the biggest hindrances to stability in the region. In 1987, the SAARC Regional Convention on Suppression of Terrorism was the first attempt to set up a legal tool to address security matters. Article 1 of this Convention tries to define terrorist acts to be included within the scope of other international treaties as follows:
– Convention for the suppression of Unlawful Seizure of Aircraft, Hague, 1970
– Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Montreal, 1971
– Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Domestic Agents, New York, 1973
– Any Convention to which the SAARC member states are parties and which obliges the parties to prosecute or grant extradition
– Murder, manslaughter, assault causing bodily harm, kidnapping, hostage-taking and offences relating to firearms, weapons, explosives and dangerous substances when used as a means to perpetrate indiscriminate violence involving death or serious bodily injury to persons or serious damage to property
– An attempt or conspiracy to commit an offence described in the above paragraphs, aiding, abetting or counseling the commission of such an offence or participating as an accomplice in the offences so described
Despite this Convention, there has not been any concerted effort to use SAARC as a platform to actually suppress terrorism. In fact, Article 7 of the Convention is weak and thwarts any attempt towards a robust extradition regime. It says: “Contracting States shall not be obliged to extradite, if it appears to the requested State that by reason of the trivial nature of the case or by reason of the request for the surrender or return of a fugitive offender not being made in good faith or in the interests of justice or for any other reason it is unjust or inexpedient to surrender or return the fugitive offender.”
In 1995, the SAARC Terrorist Offences Monitoring Desk (STOMD) was established in Colombo, Sri Lanka, to collate, analyze and disseminate information about terrorist incidents and the tactics used, funding mechanisms and strategies. However, STOMD was handicapped due to the lack of information flow from member countries.
In 2004, at the 12th SAARC summit in Islamabad, member states signed the Additional Protocol to SAARC Regional Convention on Suppression of Terrorism. This was done following the September 2001 terror attack on the US. In 2008, SAARC member heads signed the Convention on Mutual Assistance in Criminal Matters for investigating and prosecuting crimes linked to terrorism. Despite a strong international legal regime being in place long before terrorism became the main agenda at the global level, counter-terrorism efforts by SAARC seem to be weighed down by trust deficit and mutual suspicion among member states.
India has bilateral extradition treaties with four countries in the region: Nepal (1963), Bhutan (1997), Sri Lanka (1978) and Bangladesh (2013). India’s role in pushing the anti-terrorism agenda will not only give it an upper hand in terms of its economy and defense power, but would also ensure economic stability of the whole region.
India’s extradition treaty with Bangladesh needs special mention. Recognizing the rise of Islamic fundamentalists, leaders of India and Bangladesh rejected terrorism, violence and illegal activities by entering into a bilateral agreement. This has helped India. For the last two decades, India had requested the extradition of Anup Chetia, general secretary of the separatist United Liberation Front of Assam’s (ULFA), who was nabbed in Bangladesh in 1997. Bangladesh had rejected India’s plea citing the absence of an extradition treaty. Chetia was finally deported by Bangladesh in November 2015 following the 2013 bilateral extradition agreement. This political move has definitely improved India’s relations with the Sheikh Hasina regime.
Extradition treaties, therefore, can help all countries and the sooner they are done, the better it is for them to combat terrorism, drugs and other nefarious activities.
(This article features in India Legal March 31 issue)