India’s home minister, Mr L K Advani, in a recent interview with Newsweek magazine, has said that New Delhi could trust General Pervez Musharraf only if he handed over Daud Ibrahim to India (Mr Ibrahim is wanted by India for being the alleged mastermind behind the 1992 Bombay blasts). Mr Ibrahim is one of the 20 wanted persons on a list given by New Delhi to Islamabad, though in the interview Mr Advani chose only to focus on Mr Ibrahim.
The question is: Can India, as a matter of right, ask Pakistan to extradite any of its nationals from Pakistan? Is Pakistan legally obliged to accept India’s request in this regard?
Interestingly, until now India has not referred to any legal text or any International Law instrument on the basis of which it seeks the return of these individuals from Pakistan. The demand seems more to have a political rather than legal reason. This article will, however, look at the issue in the legal perspective.
International law does not readily allow individuals to be extradited, even if they are accused of heinous crimes. Extradition as an option has been used sparingly and the cases can be counted on one’s finger-tips. This has been the state practice. In fact, paradoxically, if the crime attributed to the individual is gruesome, then the obligation to extradite the accused is minimized further. This is because such crimes can be tried in any country in which the offender is found and brought to the book.
For example, three types of crime are accepted across the board as crimes against humanity: hijacking, genocide and piracy. Should a criminal who has committed any of these crimes and then escaped be returned to the country where he has committed the crime(s)? State practice shows that is not the case. And there is a reason for it. For instance, hijacking is a crime of universal jurisdiction. This means a hijacker can be arrested and tried in any country where he/she is found. Since the crime is universal in nature, any country can try the hijacker regardless of his/her citizenship or where the crime was actually committed. The accused cannot invoke the jurisdiction issue in his/her defence. Therefore, it should be clear that heinous crimes can be tried wherever the offender is found.
In cases of lesser known crimes, international law tends to run contrary to what one would expect. Any individual who is wanted in one country for a normal criminal case can escape to some other country and reside there. The country, in which cases are registered, may continue to ask for his return or extradition. However, it is not compulsory for the country where the offender resides to return him. Even in cases, where an extradition treaty exists between two states – which makes it obligatory on one to entertain the request of the other, and vice versa – the accused may not be extradited because the treaty does not create an exceptional obligation to do so.
A good example to illustrate the complications and complexities of extradition law relates to Altaf Hussain, self-exiled leader of MQM (Mutahidda Qaumi Movement). Hussain has nearly 30 criminal cases registered against him in Karachi. In all the cases, FIRs (First Information Report) have been lodged. The cases relate to violation of various sections of the Pakistan Penal Code, law on terrorism and perhaps some other enabling provisions of penal statutes.
Pakistan has an extradition treaty with Britain. Islamabad requested London on that basis to extradite Hussain since he is wanted in Pakistan. The UK government refused the request, saying it could not extradite Hussain unless London was satisfied that he (Hussain) had been fairly tried in the case against him and this was not just an attempt to persecute him on political grounds. Not only that, London has since accepted Hussain’s asylum request and granted him political asylum in Britain. That has also put paid to Pakistan’s efforts to get Hussain extradited.
Here is a situation in which Pakistan, despite an extradition treaty, failed to get London to extradite Hussain. The trend in international law is against extraditing the accused to other states. Having said that, we now examine the India-Pakistan state practice on extradition.
The two countries have a very poor state practice in this regard. Neither do they have an extradition treaty between them. Pakistan has never encouraged extradition of criminals who have come into Pakistan and has never offered their return. It is the same with India. In the two incidents of hijackings in the past, Pakistan refused to hand over the hijackers to India and instead tried them itself. They were given long prison sentences and at least three were awarded the death sentence in one case.
The exchange of fishermen caught on the high seas is a different issue. Fishermen on both sides can blunder into the exclusive economic zone of the other side. They are not treated as criminals. Their exchange is not in the nature of extradition but is done as mutual courtesy from a legal point of view.
Since Pakistan and India do not have an extradition treaty, there is no obligation on Pakistan to extradite any person from Pakistan to India. This is why India has been unable to refer to any international convention in this regard.
The only law that comes close to the present situation is a relatively low-profile Control of Entries Act. This Federal Statute is in place both in Pakistan and India. This law on the Pakistan side states that if an Indian crosses into Pakistan without authorisation, he shall be tried by the Court of Magistrate and sentenced to a period of three months. After that period he will be pushed back into India if he is not accepted anywhere else.
Clearly, from a legal perspective, Pakistan is not obliged to return any person on the Indian list. Also, Pakistan is spot-on legally when it asks for any evidence against these individuals. In which case, they can be tried in Pakistan if they are found here. In fact, Pakistan has gone to the extent of indicating that it might extradite these persons – despite being under no legal obligation to do so – if India furnishes substantial evidence connecting them to the crimes they are charged with.
This is as fair as fair can get. Even if it is accepted that these people are in Pakistan – about which there is no evidence – still the Pakistani state has an obligation in view of the state practice to ascertain the validity of the claims made by the Government of India and to make sure that these individuals will not be politically persecuted.
In view of the above, following are the preliminary conclusions:
- International law discourages extradition of criminals even in cases where
there are extradition treaties.
- Pakistan and India do not have an extradition treaty.
- There is no international obligation on Pakistan to extradite the requested
- Therefore, Pakistan is under no legal obligation to extradite the persons
requested by Indian.
Published in Pakistan Newspaper TheFridayTimes.