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Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION


UNIVERSITY

Lucknow

Faculty of Law

PROJECT ON

[EXTRADITION]

For

COURSE ON ‘Public International Law’

Submitted by

[Vidita Katyayini Pandey]

Academic Session: 2018-19

Under the Guidance of

Dr. Gulaab Rai


Prof. in Law & Faculty for Public International Law
Dr. Shakuntala Misra National Rehabilitation University
Table of Content

TABLE OF CONTENTS ......................................................................................................................2

1. Introduction.............................................................................................3
2. Gains of Learning ..................................................................................5
3. Gains of Learning Act 1930....................................................................7
4. Salary and Remuneration.......................................................................9
5. Income of joint family fund allotted to member for his maintenance.11
6. Conclusion..............................................................................................13
7. Bibliography .........................................................................................13
Introduction

The practice of extradition enables one state to hand over to another suspected or convicted
criminals who have fled abroad.1 It is based upon bilateral treaty law and does not exist as an
obligation upon states in customary law.2 It is usual to derive from existing treaties on the subject
certain general principles, for example that of double criminality, i.e. that the crime involved
should be a crime in both the states concerned,3 and that of specialty, i.e. a person surrendered may
be tried and punished only for the offence for which extradition had been sought and granted. 4 In
general offences, offences of a political character have been excluded, but this would not cover
terrorist activities.5 It is common for many treaties laying down multiple bases for the exercise of
jurisdiction to insist that states parties in whose territory the alleged offender is present either
prosecute or extradite such person.6 Many treaties include the automatic inclusion within existing
bilateral extradition treaties which states parties to such treaties of the offence concerned. 7 Many
states will not allow the extradition of its nationals to another state,8 but this usually in
circumstances where the state concerned has wide powers to prosecute nationals for offences
committed abroad. Once must also note the relevance of Human Rights law to the process of
Extradition?9

The following rational considerations have conditioned the law and practice to extradition:

a) The general desire of all states to ensure that serious crimes do not go unpunished.
Frequently a state in whose territory a criminal has taken refuge cannot prosecute or punish
him purely because of some technical rule of criminal law or for lack of jurisdiction.
Therefore to close the net round such international offenders, international law applies the

1
Refer Oxford Dictionary & Thesaurus, Julia Elliot, 13 th edn, p.265
2
See the joint declaration of judges Evenson , Tarassov, Guillaume and Aguilar Maudsley, the Lockerbie case ICJ
Reports, 1992pp3,24
3
See, Government of Denmark v .Neilsen [1984]2AllER81; United States Government v. Mc Caffey[1984]2AllER570
4
See, Oppenhaim’s International Law, p.961
5
See, the European Convention on the Suppression of Terrorism, 1977; the McMullen Case,74 AJIL 1980, p.434,
also note the Times, 25 June 1985, p.1 which said political offences has a loophole known as terrorism.
6
See Home Office Press Release (UK).
7
See the Hague Convention for the Suppression of unlawful Seizure of Aircraft, 1970 (article 8)
8
See the French Extradition Law of 1927, article 3(1), Basic Law of the Federal Republic of Germany, article 16
9
See the Soering case, the European Court of Human Rights, 1989, Series A,No.161
maxim ‘aut punier aut dedere’ – the offender must be punished by the state of refuge or
surrendered to the state which can and will punish him.

b) The state on whose territory10 the crime has been committed is best able to try the offender
because the evidence is more freely available there, and that the state has the greatest
interest in the punishment of the offender, and the greatest facilities for ascertaining the
truth. It follows that it is only right and proper that to the territorial state should be
surrendered such criminals as have taken refuge abroad.

There are two types of extradition treaties: list and dual criminality treaties. 11 The most
common and traditional is the list treaty, which contains a list of crimes for which a suspect will
be extradited. Dual criminality treaties, used since the 1980s, generally allow for extradition of a
criminal suspect if the punishment is more than one year imprisonment in both countries.12
Occasionally the amount of the time of the sentence agreed upon between the two countries is
varied. Under both types of treaties, if the conduct is not a crime in both countries then it will not
be an extraditable offense.

An extradition treaty requires that a country seeking extradition be able to show that:13

 The relevant crime is sufficiently serious.

 There exists a prima facie case against the individual sought.

 The event in question qualifies as a crime in both countries.

 The extradited person can reasonably expect a fair trial in the recipient country.

 The likely penalty will be proportionate to the crime.

10
See, J.G.Strake, Intoduction to International Law, p.352, 10 th edn, Aditya Books Butterworths, “ territory can cover
for this purpose, also ships and aircraft registered with the requesting state”; also see Art icle 16 of the Tokyo
Convention of 14 September 1963 on “Offences and Certain Other Acts Committed on Board Aircraft”
11
en.wikipedia.org/wiki/Extradition
12
https://www.ag.gov.au/www/agd/agd.nsf/Page/Extradition_and_mutual_assistanceExtradition
13
Refer, Malcolm N Shaw QC, International Law, 5th edition, Cambridge University Press,
TERRITORIAL ISSUES WITH EXTRADITION:-

With the increasing rapidly and facility of international transport and communications,
extradition began to assume prominence in the nineteenth century, although actually extradition
14
arrangements date from the eighteen century. Because of the negative or neutral attitude of
customary international law on the subject, extradition was at first dealt with by bilateral treaties.
These treaties, in as much as they affected the rights of private citizens, required in their turn
alterations to the laws and statutes of the states which had concluded them. Hence the general
principle became established that without some formal authority either by treaty or by statute,
fugitive criminals would not be surrendered nor would their surrender be requested.15

Issues of international law relating to extradition have proven controversial in cases where
a state has abducted and removed an individual from the territory of another state without
previously requesting permission, or following normal extradition procedures. Such abductions
are usually in violation of the domestic law of the country in which they occur, as infringements
of laws forbidding kidnapping. Many also regard abduction as violation of international law — in
particular of a prohibition on arbitrary detention. A small number of countries have been reported
to use kidnapping to circumvent the formal extradition process

Notable or controversial cases involving abduction of foreign citizens:

 Morton Sobell from Mexico by the United States in 1950 Engineer

 Adolf Eichmann from Argentina by Israel in 1960

 Isang Yun from West Germany by South Korea in 1967[5] compose

 Ronnie Biggs from Brazil by independent bounty hunters in 1981 thief train robrary

 Mordechai Vanunu from Italy by Israel in 1986 nuclear technicisn

14
See, J.G.Strake, Intoduction to International Law, p.352, 10 th edn, Aditya Books Butterworths, “On the one hand
international customary law imposed no duty upon states to surrender alleged or convicted offenders to another state,
while on the other hand it did not forbid the state of refugee to deliver over the alleged delinquent to the state requesting
his surrender”
15
Ibid,p.353
 Manuel Noriega from Panama by the United States following a US invasion in 1989
(although this was arguably taking an enemy head of state as a prisoner of war) politician
and soldier

 Humberto Álvarez Machaín from Mexico by the United States Drug Enforcement
Administration in 1990

 Mir Aimal Kansi from Pakistan by the CIA in 1997

 Martin Mubanga from Zambia to Guantanamo Bay by the United States in 2002

Many claims have arisen in the context of economic issues whereby some states, particularly
the United States, seek to apply their laws outside their territory16 in a manner which may
precipitate conflicts with other states. Where the claims are founded upon the territorial and
nationality theories of jurisdiction, problems do not often arise, but claims made upon the basis of
the so called ‘effects’ doctrine have provoked considerable controversy. This goes beyond the
objective territorial principle to a situation where the state assumes jurisdiction on the grounds that
the behavior of a party producing ‘effects’ within the territory. This is so even though all the
conduct complained of takes place in another state.17 The effects doctrine has been energetically
maintained particularly by the U.S in the area of antitrust regulation.18 The classic statement of the
American doctrine was made in US v. Aluminum Co. Of America,19 in which the court declared
that:

“Any state may impose liabilities, even upon persons not within its allegiance, for conduct outside
its borders that has consequences within its borders which the state reprehends.” 20

16
See Holmes v. Bangladesh Biman Corporation [1989]1AC1112; Air India v. Wiggins [1980]1WLR815; EEOC v.
Arabian American Oil Company and Aramco Services 90ILR,pp.617.622, note the above cases portray that there is a
general presumption against the extraterritorial application of legislation
17
See U.S. v. Noriega 99ILR,p.143-“ the true ‘effects’ doctrine approach should be distinguished from other heads of
jurisdiction such as the objective territorial principle, where part of the offence takes place within the jurisdiction”
18
See, A.V.Lowe, Public International Law and the Conflict of Laws, 3ICLQ,1984, p.575; the US Sherman Antitrust
Act 1896
19
148F.2d416(19450
20
Ibid,p.443 . This approach was reaffirmed in a series of later cases : see US v. Timken Roller Bearing Co.
83F.Supp.284(1949), US v. The Watch makers of Switzerland Information Center, Inc 82F.Supp.40, US v. General
Electric Co.82F.Supp753
INTERNATIONAL STRAINS:-

The refusal of a country to extradite suspects or criminals to another may lead to


international relations being strained. Often, the country to which extradition is refused will accuse
the other country of refusing extradition for political reasons.

Some U.S. political observers and officials of the state of Pennsylvania accused the government
of France, including Jacques Chirac in particular, of wanting to make a point about justice in the
United States21 and the death penalty by refusing to extradite Ira Einhorn despite the facts that an
independent court (rather than the French president or prime minister) decides extradition cases in
France and that French executives cannot intervene. Einhorn was extradited after three years.

The matters are often complex when the country from which suspects are to be extradited is a
democratic country with a rule of law. Typically, in such countries, the final decision of extradition
lies with the national executive (prime minister, president or equivalent). However, such countries
typically allow extradition defendants recourse to the law, with multiple appeals. These may
significantly slow down the procedures. On the one hand, this may lead to unwarranted
international difficulties, as the public, politicians and journalists from the requesting country will
ask their executive to put pressure on the executive of the country from which extradition is to take
place, while that executive may not in fact have the authority to deport the suspect or criminal on
their own. On the other hand, certain delays, or the unwillingness of the local prosecution
authorities to present a good extradition case before the court on behalf of the requesting state,
may possibly result from the unwillingness of the country's executive to extradite.

For example, there is at present a disagreement between the United States and the United Kingdom
about the Extradition Act 2003 (text here) that dispenses with the need for a prima facie case for
extradition.

21
One famous example of the French custom in practice is the case of the director Roman Polanski. Polanski was
convicted of statutory rape of a 13 year old in the United States in 1977 but fled to France before sentencing. From
there, as a French citizen, he cannot be extradited to the United States. The French government has pointed out that
Polanski could be prosecuted in France if the U.S. authorities so requested. U.S. authorities declined that possibility
It is important to emphasise, however, that even had the treaty been ratified by the U.S., the treaty
would still be one-sided, because it stipulates that extradition requests from the UK to the U.S.
must show a "reasonable case" that the suspect committed the offense, but requests from the U.S.
to the UK have no such requirement imposed on them.22

This came to a head over the extradition of the Natwest Three from the UK to the U.S., for their
alleged role in the Enron fraud, with various British political leaders weighing in to attack the
British government's handling of the issue. The former leader of the UK's Liberal Democrat party,
Sir Menzies Campbell, had argued that the U.S. had not ratified the treaty primarily due to the
influence of what he calls the "Irish lobby" — which, he said, is opposed to the treaty because it
could make it easier for Britain to have alleged IRA terrorist suspects extradited from the U.S.

The precedent of the Natwest Three may also be used to extradite/prosecute Philip Watts in
connection with the Royal Dutch Shell reserves scandal. The press has carried vocal criticisms of
the present extradition arrangements from the UK's business community, some of whom stated
that they were avoiding doing business with or in the U.S., because of legal concerns such as the
extradition treaty, among other concerns.

22
http://en.wikipedia.org/wiki/Treaty
INDIAN CASES WITH REGARD TO EXTRADITION:-

Ram Babu Saxena v. State23:- The provision in question is the Section 7 of the Indian
Extradition Act, 1903. Dr.Ram Babu Saxena was an employee under the UP Civil Service and was
deputed to Tonk state. Tonk was an Indian state and it had an extradition treaty with the British
government according to which both states were bound to extradite certain persons who were
accused of certain specified crimes. Dr. Ram Babu Saxena was later on living in Nainital. It was
contented that while serving Tonk state he committed crimes of extortion under section 383 and
cheating under section 420. Dr.Ram Babu agreed in defense that the British government had an
extradition treaty with the Tonk state and that treaty did not provide for crimes for which his
extradition``n was being claimed. Hence he could not be extradited under section 7 of the
Extradition act 1903.

The Supreme court held “ the act does not derogate from any such treaty when it authorizes the
Indian Government to grant extradition for some additional offences, thereby enlarging, not
curtailing, the power of the other party to claim surrender of criminals. Nor does the act derogate
in the true sense of the term from the position of an Indian subject under the treaty of 1869.”

Dharam Teja’s Case:- Dahram Teja was a managing director of Jayanti Shipping
Corporation, committed embezzlement and bungling of croces of rupees. He fled from one country
to another to escape his arrest. When he was in Ivory coast the Government of India requested the
Government of Ivory Coast to extradite Dharam Teja so that proceedings against him could be
started in India. The Government of Ivory Coast refused to extradite Dharam Teja on the ground
that there was no extradition treaty with India. Later on when Dharam was in London the Indian
Government requested his extradition as Indian had an extradition with England under which both
countries are bound to extradite the accused of each other who runs away after committing crimes
in either country. Consequently Daram Teja was extradited to India where he was convicted for
embezzlement and bungling of crores of rupees of Jayanti Shipping Corporation.

Naval Officer Extradition Case:- Commander Elijah Ebrahim Jhirhad of Indian Navy was
charged by the government of India with misappropriating Rs.13lakhs of the Naval Prize Fund

23
AIR1950SC155
while he was functioning as the Judge Advocate- General of the Indian Navy in the early 1960.
The matter was referred to the Central Bureau of Investigation in 1966. Jhirhad had the
responsibility of administering Rs.70 lakhs of prize fund. An ex sailor made an complaint that he
had not received his share of the prize money. On enquiry the misdeed of Jhirhad had come in to
light. Jhirhad had fled from India. The C.B.I had come in touch with the Interpol which had him
arrested in April 1972 in New York. In July 1972 extradition orders were passed against him
thereby accepting Indian governments pleas in this regard.

Narang Brothers Extradition Case:- In October 1976 the Indian Government successfully
concluded extradition proceeding in London against Manmohar Narang and his brother Om
Prakash Narang who were wanted in India on charges of cheating, forgery and smuggling in
connection with two stolen antique pillars known as Amin pillars in a village in Kurukshetra in
Haryana. The Londan magistrate held that the case was a prima facie case for their trial and allowed
the extradition application of the Government of India. The pillars were also recovered from a
local warehouse in London.
Conclusion

Extradition is the official process by which one nation or state requests and obtains from
another nation or state the surrender of a suspected or convicted criminal. Between nation states,
extradition is regulated by treaties. Between sub-national regions (for example, the individual
states of the U.S.), where extradition is required by law it is more accurately known as rendition

Aristotle said man is gregarious, if he can stay alone he must either be a god or a beast. In the same
way state is gregarious in nature. It must depend on its fellow states to survive. As said before that
many tensions have been created in regard to extradition of nationals, especially politically
powerful nationals, to another state for prosecution. Every state is dependent on another for some
reason or another.

Abducting a national from their state for purposes of committing a crime in another state is
violation of rules of customary international law. Even the US has soften its position in Antitrust
laws in Laker Airways v. Sabena.The subject of every state is its subjects. It is a matter of fact that
the state is duty bound to protect its subject matter or its nationals.

The consensus in international law is that a state does not have any obligation to surrender an
alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal
authority over the people within its borders. No country in the world has an extradition treaty with
all other countries; for example, the United States lacks extradition treaties with over fifty nations,
including the People's Republic of China, Namibia, and North Korea.
Bibliography

 A.V.LOWE, Public International Law and the Conflict of Laws, 3ICLQ,1984, p.575
 J.G.STRAKE, Intoduction to International Law, p.352, 10th edn, Aditya Books
Butterworths
 MALCOLM N SHAW QC, International Law, 5th edition, Cambridge University Press