Extradition and Asylum: All

you must know about

Procedures, Rules &
Differentiation
January 31, 2020

Introduction
Extradition is needed when an individual charged with a crime in one state
flees to another. In this case, the requesting state requests its citizen to be
sent back so that he/she can stand trial for their crimes.

Asylum is when a person, who is afraid of being prosecuted in his home

state, runs away to another state for protection.

In the case of Colombia vs Peru (1950), it was held by the court that they
are exclusive. There is either extradition or asylum.                                    

What is Extradition?
Extradition is the process of bringing back a criminal to the state where he
has committed the crime when he has absconded for such a country. 

Many may ask the question of why it is important to bring him back to the
country where he has committed the crime. Why can’t he just be tried in the
country he has been caught in? The reason, it is important to bring him back
is because there are different legal proceedings in different countries.

The country in which he has committed the crime may try him differently. It
may also be the case that he had absconded or run away in the middle of
legal proceedings. Thus it is essential to bring him back in order to finish the
trial. The evidence and the witnesses are also present in that country.

This is also to prevent the trend of international criminals. Some criminals

hop from country to country committing crimes. Through extraditions, justice
 can be brought by bringing them back to the countries they have committed
the crime and punishing them.

It is also imperative for that country to get rid of that certain individual for
security. 

Difference between Expulsion and Extradition

Extradition  Expulsion or Deportation

Happens when a country requests for a fugitive to be Happens when an individual violates
returned. immigration laws.  

Government is subject to certain rules such as treaties, The Government has the unrestricted right
rule of speciality and double criminality.  They also have to expel. They don’t need to serve a show-
the right to reject a request of extradition. cause notice to the foreigner.

In India, extradition is governed by the Extradition Act of In India, expulsion is governed by

1962.  the Foreigners Act of 1946. 

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 trend of no extradition of political criminals started during the French
revolution. After that, other countries followed suit.

No commission or organization has defined what a political crime is. This

word is also not defined under international law. But in our own words, we
can say that if a person commits a crime with political motives, then that
crime can be said to be a political crime.

In the case of  Re Castioni case (1891), a prisoner was charged with the
murder of Luigi Rossi. The murderer escaped from Switzerland to England.
The government of England rejected Switzerland’s request for extradition.
The court held that the accused murdered in order to cause political
disturbance and is thus a crime of political nature. Due to the fact, he was a
political criminal and England was not obliged to extradite him. 

But on the contrary, In Re Meunier 1894, a fugitive who blasted a bomb in a
public place in Paris, fled to England. Paris wanted him back but England
refuses their request to extradition. The court ruled his intentions were not
purely political and he had thus, not committed a political crime. 

D’attentat clause
The d’attentat or the clause Belge states that murders of heads of
governments or states will not be considered as a political crime and they
can be extradited for such a crime. 

Rule of Speciality
The doctrine of speciality is a doctrine under international law. It states that
a person who is extradited to a country to stand trial for certain criminal
offences may be tried only for those offences and not for any other pre-
extradition offences.

This principle was restated in the case of U.S. vs Rauscher (1886), which
stated that he can only be tried for offences which have been criminalised by
the treaty and/or the offence for which extradition has been requested for. 

Double criminality 
Double criminality is a principle that states that a criminal can only be
extradited to another country if the offence he has committed is criminalized
by the laws of both the countries involved. For example, if a murderer has
run away from Bangladesh and is hiding in India, he can be extradited as the
laws of both the countries criminalize murder. 

Position of the State in International Law

It must be noted that the state has no duty to extradite an individual. But,
there can be a treaty between that states that they will extradite any
criminals that run away to their country and vice versa. They can also
voluntarily extradite a person without any treaty. States should keep in mind
that during extradition, they should not violate their own municipal laws i.e-
the laws of their own countries and international conventions. 
However, countries do not have to give the fugitive back if proper extradition
procedure was not followed. In the case of Sarvarkar (1911), Mr Vinayak
Donador Savarkar was under french navy custody. He was then extradited to
England, but England obtained him through incorrect extradition procedures.
Due to the violation of procedures, the French wanted him back. The court
held that there is no provision under international law that states if
extradition procedures are not followed then the country must return him
back.

The state can also not extradite citizens of their own state. So, if a citizen of
England comes to India and commits a crime and then runs off to England
then it is very difficult to get the citizen back. They usually ensure that they
will punish the criminal according to their own laws.

In Regina vs Wilson (1878), a treaty can happen between the two states,
states will not extradite people and the fugitive that will be punished
according to their own laws.

India
Usually, each country has its own laws regarding the process of extradition.
In India, The Extradition Act of 1962 governs the process of extradition. It
was amended in 1993 by Act 66. 

Section 2(d) of the Act talks about treaties fo extradition and allows foreign
states to make such arrangements with India. These treaties are usually
bilateral in nature i.e- they are between two countries, not more. These
treaties embody five principles-

 Extradition of a fugitive will happen for offences set down by the treaty.
 The offence must be criminalized under the laws of both countries, not
just one.
 There must be a prima facie case made.
 The country should try the criminal for only the offence he was
extradited for. 
 He must be tried under a fair trial. 
Usually, requests for extradition on behalf of India can only be made by
the Ministry of External Affairs and not anyone in the public.

Countries who have a treaty with India can request for extradition of
someone from India. A non- treaty country must follow the procedures set
down by Section 3(4) of the Extradition Act of 1962. 
According to the page of The Ministry of External Affairs, below are the
following bars or restrictions to extradition- 

 India is not ‘obliged’ to extradite someone unless there is a treaty.

 India is not ‘obliged’ to extradite someone unless that offence
constitutes a crime under the treaty. 
 Extradition may be denied for purely political and military offences. 
 The offence must constitute a crime in both India and the country
requesting extradition. 
 Extradition may be denied when the procedure set down by Section
3(4) of the Extradition Act of 1962 is not followed. 

Asylum

What is asylum?
Asylum is when a country gives protection to individuals who are being
prosecuted by another sovereign authority. Most of the times, it is their own
government. While everyone has the right to seek asylum, asylum seekers
do not have the right to receive it. 

It must be noted that asylum deals with refugees (individuals who are being
prosecuted by their own government).

Article 14 of the Universal Declaration of Human

Rights
Article 14 of the Universal Declaration of Human Rights recognises the right
of individuals to seek protection from prosecutions of the sovereign
authorities. Everyone can go to another country and seek asylum. This right
is also available for fugitives who have committed political crimes. But this is
subjected to the condition that if your crime is against the principles of the
UN, then you do not have the right to asylum. It also must be noted that one
has the right to seek asylum but you do not have the right to receive asylum.

Types of asylum

Territorial Asylum
Territorial asylum is granted within the territorial boundaries of the country
offering asylum. This is most commonly used for people accused of offences
of political nature such as treason and sedition. It must be noted that
murderers of heads of states, criminals accused of certain terrorist activities
and people accused of war crimes are some examples where one can not be
offered asylum.

Extra-Territorial or Diplomatic Asylum

Extraterritorial asylum refers to asylum granted in embassies, legations,
consulates, warships, and merchant vessels in foreign territory and is thus
granted within the territory of the state from which protection is sought.

International law has not recognised diplomatic asylum as a right as it can be

areas for dispute.  For example, the asylum was granted to József Cardinal
Mindszenty during the uprising against the communist government in 1956.
He refused to Roman Catholic schools to be secularized which prompted him
to be arrested but he got protection from the government of the United
States for 15 years. This caused great controversy. 

Neutral Asylum
This type of asylum is shown by neutral states during times of war. These
countries may be considered asylum places for prisoners of war. It provides
asylum to troops of countries who are a part of the war. This is under the
condition that they are subject to internment during the time. It is important
to note that while troops may be allowed, airforces of such countries cannot
land in these areas and will be subjected 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
Thus, in this article, we have discussed the difference between extradition
and asylum, their processes, the various rules they are subjected to, and
how they are executed in India. These processes play a great part in
international relationships. The topics discussed above are also very essential
to understand international law.