On November 12, Bangladesh’s special International Crimes Tribunal asked Interpol to issue a red notice for the arrest of former Prime Minister Sheikh Hasina in connection with the deaths of hundreds of protesters. This comes a few weeks after it issued an arrest warrant for the veteran leader, who is staying in India after her ouster by student groups. The protest which initially began to challenge and question the affirmative action policies of her government in jobs and education turned into a call for her resignation. Being wanted for alleged crimes against humanity, there is a pressing demand that she should be extradited to Bangladesh.
This demand seems legitimate and is a quite acceptable practice in any democratic country. At least this is how the Ukrainian president was ousted in 2014 with similar examples in several other countries. Important in this case is that Bangladesh is a member of the International Criminal Court (ICC). When it comes to international crimes, it has strong precedent to show the international community that it genuinely believes in the end of impunity and seeks culture of accountability, as it has established the Bangladesh War Tribunal to punish perpetrators of 1971’s crimes of genocide. It is important to note here that international criminality for international crimes is based on command responsibility and it does not require an act to be committed by the accused herself.
Existing data suggest that many students carrying out a peaceful protest were killed by state officials. At first blush, such an act committed by the government comes under the category of crimes against humanity under article 7 of the Rome Statute. Violence which was committed by the Hasina government falls under many headings of enumeration such as torture, murder, enforced disappearance of person, prosecution and other acts of like nature. Widespread and systematic attack against the civilian population and the gravity and scale of these offences do make a prima facie case against Hasina very strong and demonstrate that the state apparatus was deeply involved.
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Since Bangladesh is an ICC member, it is important to mention the three ways in which ICC’s jurisdiction can be activated — by the state, by the Office of the Prosecutor (OTP), and by a United Nations Security Council (UNSC) referral. ICC jurisdiction is not an abstract power, but a real one. The ICC complements national jurisdiction, and it is a court of last resort. Considering so, the arrest warrant issued against Hasina has significant implication under international criminal law.
Extradition
Although the accused is harbouring in India, there is no declaration on behalf of the Indian government that it has given asylum to Hasina. Bangladesh has made formal request to India for Hasina’s extradition. Interestingly, the extradition request stands at the crossroads of domestic and international law. Traditionally, there is no obligation on the state to extradite an individual. However, based on state practice, it has evolved as a complex regime of legal space.
Three things are important here, namely: double criminality, rule of speciality and political offences exceptions. Double criminality means an act for which extradition is sought must be criminal in both jurisdictions. Rule of speciality means a person who has been extradited must be prosecuted and punished for the specific offences for which the extradition was granted and cannot be re-extradited without the approval of the requested state.
In addition to this, there is a general rule that for political offences extradition cannot be given. Further, the criminal extradition treaty signed in 2013 between India and Bangladesh is an executive act whereas the Indian Extradition Act (IEA) is a Parliamentary statute. So, as a matter of rule, the treaty must be read harmoniously with IEA and section 31 of IEA provides exception to political offences.
In international law, there is no convention on extradition. However, there exists the aut dedere aut judicare (“either extradite or prosecute”) principle, which is a part of treaty law as well as customary international law. It says that in case of certain grave international crimes like genocide, war crimes, crimes against humanity and torture, the state under whose jurisdiction the accused is residing must either extradite or punish them. Further, under Article 3 (2) of the draft articles on Prevention and Punishment of Crimes Against Humanity, 2019, there is a general obligation on each state to prevent and to punish crimes against humanity, which are crimes under international law, whether or not committed in time of armed conflict.
Either extradite or prosecute
The State in the territory under whose jurisdiction the alleged offender is present shall, if it does not extradite or surrender the person to another State or competent international criminal court or tribunal, submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State. The precedent here is the International Court of Justice judgment on Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).
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In this case, on 19 February 2009, Belgium filed an application instituting proceedings against Senegal relating to Hissène Habré, the former President of Chad and resident in Senegal since being granted political asylum by the Senegalese Government in 1990. In particular, Belgium submitted that, by failing to prosecute Habré for certain acts he was alleged to have committed during his presidency, including acts of torture and crimes against humanity, or to extradite him to Belgium, Senegal had violated the so‑called obligation under aut dedere aut judicare principle provided for in Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary international law.
The court found that, by failing to comply with its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, Senegal had engaged its international responsibility. Therefore, it was required to cease that continuing wrongful act, and to take, without further delay, the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it did not extradite Habré. Consequently, the Extraordinary African Chamber started the trial in Dakar and sentenced Habré to life imprisonment after he was found guilty of crimes against humanity, war crimes and torture committed in Chad between 1982 and 1990.
India’s options
India, which is aspiring to be a UNSC permanent member, should not support impunity of an alleged perpetrator of crimes against humanity, based on its state practice. However, it may opt for some alternatives. Article 17 of the Rome Statute says the ICC shall determine that a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. Considering the widespread clampdown on Hasina’s party in Bangladesh, a case could arguably be made that she will not get a fair trial in Bangladesh as matters stand today. So, Article 17 itself bars the jurisdiction of Bangladesh.
Moreover, based on apprehension of torture and degrading and inhuman treatment, India could argue that it is not in a position to extradite Hasina back to Bangladesh. In the landmark judgments of the European Court of Human Rights such as Saadi v. Italy (2008) and Soering v. UK (1989), the court has held that if there is an apprehension of torture, the accused person shall not be extradited. However, India’s responsibility towards international community requires a rule-based approach. India could possibly either extradite Hasina to a third country as happened in the context of the Lockerbie case or it can hand her over to the ICC with the assurance that Hasina must not be extradited back to Bangladesh.
Aklavya Anand is an assistant professor at the Faculty of Law, University of Delhi.
Shailesh Kumar is a lecturer in Law at the Department of Law & Criminology, Royal Holloway, University of London, and a commonwealth scholar.