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Introduction

Extradition becomes necessary when a person accused of committing a crime in one state seeks refuge in another. In such situations, the state where the alleged offense occurred requests the return of the individual, typically its own citizen, in order to face criminal charges.
On the other hand, asylum is a legal status granted to an individual who fears persecution in their home country and seeks refuge in another state for protection.
In the 1950 case of Colombia vs. Peru, the court ruled that these two concepts, extradition and asylum, are mutually exclusive. It's a matter of either granting extradition or providing asylum; both cannot coexist in the same situation.

What is Extradition?

  • Extradition is the process of returning a criminal to the state or country where they committed a crime after they have fled to another country.
  • One might wonder why it's necessary to return the criminal to the country where the offense occurred rather than trying them in the country where they were apprehended. The reason is that different countries have varying legal procedures and ways of handling criminal cases. The country where the crime was committed may have its own legal system and process for trying the individual. In some cases, the criminal may have fled while legal proceedings were underway, making it crucial to bring them back to complete the trial. Additionally, important evidence and witnesses are typically located in the country where the crime occurred.
  • Extradition is also a means to combat the activities of international criminals who move from one country to another to commit crimes. By extraditing them to the countries where they committed their offenses, justice can be served by holding them accountable for their actions.
  • Furthermore, it's essential for the security and well-being of the country where the crime took place to remove the individual in question.

Difference between Expulsion and Extradition

Extradition and Asylum | Law Optional Notes for UPSC

It was the case of Hans Muller of Nuremberg vs. Superintendent Presidency jail Calcutta and others (1955) that stated extradition and expulsion are two different processes. The courts also held that the government has the right to reject a request for extradition. If also have the right to choose the less cumbrous process of expulsion to remove a foreigner from the country.  

No extradition of a Political Criminal

  • The practice of refusing to extradite individuals involved in political crimes began during the French Revolution and has been adopted by other countries over time.
  • There isn't a universally accepted definition of what constitutes a political crime, and international law does not provide a clear definition for this term. However, in simple terms, a crime can be considered political if it is committed with political motives.
  • In the Re Castioni case (1891), a person was accused of murdering Luigi Rossi and fled from Switzerland to England to evade extradition. The English government declined Switzerland's extradition request, arguing that the accused had committed the murder with the intention of causing political unrest, making it a political crime. Therefore, England was not obligated to extradite the individual due to his status as a political criminal.
  • Conversely, in the Re Meunier case (1894), a fugitive who detonated a bomb in a public place in Paris sought refuge in England. Paris requested his extradition, but England refused, stating that his actions were not purely politically motivated, and therefore, he had not committed a political crime.

D’attentat clause

The "d'attentat clause" or the Belge clause specifies that the assassination of heads of governments or states is not considered a political crime, and individuals involved in such crimes can be extradited to face charges.

Rule of Speciality

The doctrine of speciality, as per international law, stipulates that an individual who has been extradited to a country for the purpose of facing trial for specific criminal offenses can only be prosecuted for those particular offenses and not for any other crimes committed prior to extradition.
This principle was reaffirmed in the case of U.S. vs. Rauscher (1886), which clarified that the individual can only face trial for offenses that are explicitly criminalized by the relevant treaty and/or the offense for which the extradition was sought.

Double criminality

Double criminality is another legal principle that mandates that an individual can be extradited to another country only if the crime they have committed is considered a criminal offense under the laws of both the requesting and the requested countries. For instance, if a murderer has fled from Bangladesh and is found in India, extradition can take place because the laws of both countries criminalize murder.

Position of the State in International Law

  • The state does not have an inherent duty to extradite individuals, but extradition can occur through treaties between states, where they agree to extradite criminals who have fled to their respective countries. Extradition can also take place voluntarily without a treaty. However, states must ensure that the extradition process complies with their own domestic laws and international conventions.
  • It's important to note that countries are not obligated to return a fugitive if proper extradition procedures were not followed. For example, in the case of Sarvarkar (1911), extradition procedures were not correctly followed when Mr. Vinayak Donador Savarkar was extradited to England from French custody. France wanted him back due to the procedural violation, but the court ruled that international law does not require returning a fugitive if extradition procedures were not followed.
  • States are generally not allowed to extradite their own citizens. If a citizen of one country commits a crime in another and then returns to their home country, it can be challenging to extradite them. Instead, the home country typically prosecutes the citizen according to its own laws.
  • Treaties can be established between states to agree not to extradite individuals, and the fugitive can be punished under their own country's laws. An example is Regina vs. Wilson (1878).

India

In India, the Extradition Act of 1962 governs the extradition process, with amendments made in 1993 by Act 66. The Act allows for treaties of extradition between foreign states and India, typically bilateral agreements.
These treaties are based on five principles:

  • Extradition occurs for offenses specified in the treaty.
  • The offense must be criminalized under the laws of both countries.
  • A prima facie case must be established.
  • The individual should be tried only for the offense they were extradited for.
  • A fair trial must be ensured.

Requests for extradition on behalf of India are generally made by the Ministry of External Affairs, not by the public. Countries with extradition treaties with India can request extradition, while non-treaty countries must follow the procedures outlined in Section 3(4) of the Extradition Act of 1962.

According to The Ministry of External Affairs, there are several restrictions or bars to extradition:

  • India is not obliged to extradite someone unless there is a treaty.
  • Extradition is not obligatory unless the offense is a crime under the treaty.
  • Extradition may be denied for purely political and military offenses.
  • The offense must constitute a crime in both India and the requesting country.
  • Extradition may be denied if the procedures specified in Section 3(4) of the Extradition Act of 1962 are not followed.

Asylum

What is asylum?

Asylum is a form of protection granted by one country to individuals who are facing persecution by another sovereign authority, often their own government. While seeking asylum is a right recognized under international law, it does not guarantee that asylum will be granted.

Article 14 of the Universal Declaration of Human Rights

Article 14 of the Universal Declaration of Human Rights acknowledges the right of individuals to seek refuge from persecution by sovereign authorities, including those accused of political crimes. However, this right is subject to certain conditions. If an individual's actions are in violation of the principles of the United Nations, they may not be eligible for asylum. It's important to emphasize that individuals have the right to seek asylum but not an automatic right to receive it.

Types of asylum


There are different types of asylum:

  • Territorial Asylum: This form of asylum is granted within the territorial boundaries of the country offering protection. It is commonly provided to individuals accused of political offenses like treason and sedition. However, individuals involved in certain activities, such as the assassination of heads of state, certain terrorist acts, and war crimes, may not be eligible for territorial asylum.
  • Extra-Territorial or Diplomatic Asylum: This type of asylum is granted within foreign territory, often within embassies, legations, consulates, warships, or merchant vessels. International law does not universally recognize diplomatic asylum as a right, and it can be a source of contention. For instance, the case of József Cardinal Mindszenty, who sought refuge in the United States embassy during the 1956 uprising against the communist government, generated controversy.
  • Neutral Asylum: Neutral states may provide asylum during times of war, typically to prisoners of war. This asylum may be granted to troops from countries involved in the conflict, with the condition that they are interned during their stay. However, it's essential to note that air forces from such countries are generally not allowed to land in these neutral areas and may be subject to interrogation.

Asylum in India

Different countries have different laws about asylum-seeking. India has laws regarding immigration and asylum-seeking. The most recent law with asylum seeking that has caused the most controversy is the Citizen Amendment Act with regards to refugees.
Organisations like the UNHCR, help individuals register for asylum. People who wish to apply must come for registration with all of your family members who are present in India.
According to them, the following documents are needed:

  • Case numbers of immediate family members who have been registered with UNHCR (in India or elsewhere),
  • Passport/nationality document/identity document,
  • Birth certificates/vaccination cards for children,
  • Marriage/divorce/death certificates,
  • Any other documents you may have.

The candidate will be asked to explain why you left your country and why you cannot go back on a form. They will be interviewed by a Registration Officer. 

Conclusion

In summary, this article has covered the distinctions between extradition and asylum, their respective processes, the applicable regulations, and how these processes are implemented in India. These mechanisms hold significant importance in the realm of international relations, and understanding them is crucial in the context of international law.

The document Extradition and Asylum | Law Optional Notes for UPSC is a part of the UPSC Course Law Optional Notes for UPSC.
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