Extradition and Asylum: Concept and Important Case Laws

Extradition and Asylum are political acts of States and it differs from state to state depending upon treaties, internal and external policies.

Introduction

It is quite possible for a person to escape to another State after committing a crime in his own State. Such cases have started occurring more frequently with the result of the development of air traffic. A question arises as to whether fugitive shall be tried in the country where he has fled away or in the State where the crime has been committed.

Normally, a State finds itself in a difficult situation to punish a person who has committed a crime elsewhere primarily because of the lack of jurisdiction, and therefore, such persons are sometimes surrendered to the State where the crime has been committed. Surrender of an accused or of a convict is referred to extradition. Surrender of a person is opposite to the traditional practice of the States to grant asylum.

Thus, in those cases where the tradition of granting asylum is not followed, it is known as extradition. Thus, the surrender of a person is against the established and traditional practice of the States which started since the last quarter of the eighteenth century.

The term extradition has been derived from two Latin words ex and traditum. Ordinarily, it may mean ‘delivery of criminals’, ‘surrender of fugitives’ or ‘handover of fugitives’. Extradition may be defined as the surrender of an accused or a convicted person by the State on whose territory he is found to the State on whose territory he is alleged to have committed or to have been convicted of a crime. According to Oppenheim extradition is the delivery of an accused or a 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 above definition makes it clear that in extradition two states are involved. They are: firstly, the territorial state, i.e., a State where an accused or a convict is found, and secondly, the requesting State, i.e., a State where the crime has been committed. A state which demands the surrender is known as requesting State because a person is surrendered by the territorial State only upon a request by another state. A request is made normally through the diplomatic channel. The request for extradition of a person distinguishes extradition from other measures such as banishment, expulsion, and deportation where an undesirable person is forcibly removed.

I. Extradition

Purposes of Extradition

A criminal is extradited to the requesting State because of the following reasons:

1. Extradition is the process towards the suppression of crime. Normally a person cannot be punished or prosecuted in a State where he has fled away because of lack of jurisdiction or because of some technical rules of criminal law. Criminals are therefore extradited so that their crimes may not go unpunished.
2. Extradition acts as a warning to the criminals that they can not escape punishment by fleeing to another State. Extradition, therefore, has a deterrent effect.
3. Extradition is based on reciprocity. A State which is requested to surrender today may have to request for extradition of a criminal on some future date.
4. Extradition is done because it is a step towards the achievement of international cooperation in solving international problems of a social character. Thus, it fulfils one of the purposes of the United Nations as provided under Para 3 of Article 1 of the Charter.

Law of Extradition

In International law, rules regarding extradition are not well established mainly because extradition is a topic that does not come exclusively under the domain of international. The Law of extradition is dual law. It has operation national as well as international. Extradition or non-extradition of a person is determined by the municipal courts of a State, but at the same time, it is also a part of international law because it governs the relations between two States over the question of whether or not a given person should be handed over by one state to another.

This question is decided by the national courts but on the basis of international commitments as well as the rules of international law relating to the subject.

A number of attempts have been made to conclude a convention governing extradition requests among nations. In 1935, the Harvard Law School prepared a draft convention on the subject. The International Law Associated has also considered legal problems relating to extradition in the Conference held in Warsaw.

In 1928 the Draft Convention on extradition was approved but nothing has materialized in concluding a universal convention on extradition. International Law Commission has also not yet taken the topic for its consideration for codification despite the inclusion of the topic of extradition in 1949, in its provisional list of fourteen topics for its codification. It is desirable if a multilateral convention is concluded so that general rules of International Law may be settled regarding extradition.

Bilateral treaties, national laws of several States, and the Judicial decisions of municipal courts led to developing certain principles regarding extradition which are deemed as general rules of International Law. Important amongst them are as follows:

1. Extradition Treaties: the first and foremost condition of extradition is the existence of an extradition treaty between the territorial state and requesting state. Some states such as the United States, Belgium, and the Netherlands, require a treaty as an absolute pre-condition. The strict requirement of an extradition treaty may be regarded as the most obvious obstacle to international cooperation in the suppression of crimes.

   Since extradition treaties are politically sensitive and require careful and lengthy negotiations, States have few extradition treaties and the criminal can usually find a safe haven- that is a state which requires a treaty for extradition and has no such treaty with the State within whose jurisdiction the crime was committed.it is therefore desirable that states conclude extradition treaties with as many States as possible to suppress the crime.

2. Extradition of Political Offenders: it is a customary rule of International law that political offenders are not extradited. In other words, they are granted asylum by the territorial state.
3. The doctrine of 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. Rule of Speciality: according to this principle, a fugitive may be tried by the requesting state only for that offense for which he has been extradited. In other words, the requesting state is under a duty not to try or punish the fugitive criminal for any other offense than that for which he has been extradited unless he has given an opportunity to return to the territorial state. The rule has been made to provide safeguard to the fugitives against fraudulent extraditions.
5. Time-barred crimes: a fugitive criminal shall not be surrendered if he has been tried and has served sentence for the offense committed in the territorial state. Thus, extradition is not granted if the offense for which extradition has to be made has become time-barred.
6. Extradition of own Nationals: In many cases, a person after committing a crime in a foreign country flees back to his own country. Whether the State should extradite such persons, i.e., its own nationals, to a state where crime has been committed is a controversial point and practice of states considerably differs on it. Many counties such as the Netherlands, Belgium, Italy, Germany, Switzerland, and France have adopted a principle for not extraditing own nationals to a foreign state.

II. Asylum

The word Asylum is Latin and derives from the Greek word ‘Asylia’ which means inviolable place. The term is referred to those cases where the territorial State declines to surrender a person to the requesting state and provides shelter and protection in its own territory. Thus asylum involves two elements, firstly, a shelter which is more than a temporary refuge; and secondly, a degree of active protection on the part of the authorities in control of the territory of asylum.

Historically the concept of asylum is very old and traditional and is opposite to the notice of extradition. Where traditional hospitality is not offered to an alien, the act is known as extradition.

III. Cases relating to Extradition and Asylum

1. Re Castioni Case [1891]

in the last decade of the nineteenth century a leading case was decided by the British Court i.e; Re Castioni[1]. In this case, Castioni who had returned to Switzerland from abroad joined the revolutionary movement in the Canton of Ticino (Switzerland), and in the course of it, he committed the murder of Rossi, a member of the Government.

It was pleaded on behalf of Castioni in the writ of habeas corpus that his offense was a political offense for which extradition was not available. He claimed protection under section 3 of the Extradition Act, 1870.

Lord Denman, J. laid down that in order to bring the case within the scope of the Act, and for an offence to be political, it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act, in course of acting in a political matter, apolitical rising, or the dispute between two parties in the State as to which is to have the Government in its hands. His extradition was refused on the finding that his motive for the act was political.

2. Abu Salem’s Extradition Case

India does not have any extradition treaty with Portugal. However, when Abu Salem, an accused in 1993 Mumbai blast and an underworld don fled to Portugal along with his wife Monica Bedi, Portugal, in the absence of a treaty, extradited Abu Salem to India after latter gave an assurance that he would not be given a death sentence.

Later, the High Court, of Portugal passed an order on July 14, 2004, along with reasons for his extradition to India. His wife has also been extradited to India.[2]

3. United States v. Raucher (1886)

In this case[3] wherein the accused was extradited on the charge of murder, but he was tried and convicted in the USA, on a minor charge of causing cruel and unusual punishment on a member of the crew.

He made an appeal before the Supreme Court of the United States which quashed the conviction and ordered the release of the prisoner on the ground that unless otherwise provided for by the treaty, the prisoner could not be charged with the offense for which he was extradited unless he was given a reasonable time to return to the country which surrendered him.

4. Dalai Lama’s Asylum

India in the year 1959 gave territorial asylum to the Dalai Lama and his followers who were oppressed by the repressive policies of China.[4]

Although their asylum was criticized by China on the ground that India by granting asylum has interfered in its internal affairs, India was competent enough to do so because of the principle of territorial sovereignty. The grant of asylum should not be considered an unfriendly act by China.

IV. Conclusion

Starke has stated that asylum stops where extradition begins. 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.

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Sources

1. Dr. H. O. Agarwal, International Law, And Human Rights.
2. (1891) IQB 149
3. (1886) 119 US 407

[1] [1891] 1 QB 149,

[2] Abu Salem’s case shifts to terms of extradition with Portugal, The Economic Times, Available Here

[3] 119 U.S. 407 (1886)

[4] Bérénice Guyot-Réchard, 1959: The Year the Dalai Lama and Thousands of Tibetan Refugees Fled to Arunachal, Available Here

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