Wednesday, May 09, 2012

INTERNATIONAL EXTRADITION PROCESS



INTERNATIONAL EXTRADITION PROCESS - POLITICAL WILL COUPLED WITH INTERNATIONAL CO-OPERATION IS VITAL IN BRINGING CRIMINALS TO JUSTICE. – A CRITIQUE [i]
By Dr T Padma.,
 LLM., Ph D (Law)
LLD Scholar
(A P Law University)
kethepadma@gmail.com
1.   INTRODUCTION

Extradition may be briefly described as the surrender of an alleged or convicted criminal by one State to another. More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State.

The purpose of extradition is to bring the individual within the requesting country’s boundaries in order to make a determination of guilt or innocence, or to impose punishment. Extradition plays an important role in the international battle against crime. It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished.

Efforts made by India have been consistently failed to bring International Criminals to justice through the process of International Extradition, in number of cases. This Article focuses on the short comings in the International Extradition Process in bringing the criminals to justice.

Some of the cases which are in news in the recent times are discussed below:

a)     Abu Salem’s case

Abu Salem was an absconding accused in serial Bombay Bomb Blast cases of 12th March, 1993. He was an active member of criminal conspiracy, hatched by Dawood Ibrahim Kaskar (a Global Terrorist), Tiger Memon, Mohd. Dossa and others, the object of which was to commit various terrorist acts including bomb blasts. Abu Salem actively participated in transporting and distribution of smuggled sophisticated arms and ammunitions which, were smuggled into the country in the beginning of 1993. The bomb blasts took place on 12th March, 1993 resulting in loss of lives, injuries to several innocent citizens of Mumbai and destruction of properties.

After the blasts, Abu Salem left India after obtaining a passport in an assumed name from the Passport Office, Lucknow and joined Anees Ibrahim Kaskar and others at Dubai. In the charge sheet filed in the Designated Court, Mumbai, he was shown as an absconder. The Court declared him a Proclaimed Offender and also issued Non Bailable Warrant of arrest against him. The Interpol also issued Red Corner Notice against Abu Salem.
Abu Salem was detained in Lisbon (Portugal) on 18th September, 2002 and thereafter a request for his extradition was made by the Govt. of India in nine cases which were pending against him. After long drawn legal battle, Abu Salem was extradited to India in November, 2005.

Abu Salem was put to trial in serial Bombay Bomb Blast cases pending in the Designated Court, Mumbai. The Court framed charges against him, keeping in view the provision contained in the section 21(b) of Extradition Act, 1962. The Court also charged him for some of the offences, which were not included in his extradition order, as framing of charges for lesser offence is permissible u/s. 21(b) Extradition Act, 1962.

Abu Salem challenged the framing of charges for the said lesser offences in the Supreme Court of India alleging that there has been violation of ‘Rule of Speciality’. The Hon’ble Supreme Court of India pronounced its judgment on 10.09.2010 and rejected the petition filed by Abu Salem. The Hon’ble Supreme Court considered the ‘Rule of Speciality’ as available in the laws of US, UK and Portugal and India Extradition Act and held that there has been no violation of ‘Rule of Speciality’, since the additional charges framed against Abu Salem are made out from the same facts, which were considered for his extradition and provide lesser sentence as compared to the sentence provided for the offences for which his extradition was granted.

Abu Salem had also filed a petition in the High Court of Lisbon alleging violation of ‘Rule of Speciality’. The High Court of Lisbon has pronounced its judgment and has held that there has been violation of ‘Rule of Speciality’ in the case of Abu Salem. This is a matter of interpretation of ‘Rule of Speciality’ by the highest Court of India, which is binding on all the subordinate Courts in the country. On the other hand the High Court of Lisbon has interpreted the ‘Rule of Speciality’ differently.

Keeping in view the facts and circumstances, the CBI is examining the order of High Court of Lisbon so as to file an appeal against it in the Supreme Court of Justice, Portugal. [1]

b)     David Coleman Hadley’s Case

David Coleman Headley is a Chicago-based Pakistani American, who conspired with Lashkar-e-Taiba and, he claims, Pakistani military officers to launch the 2008 Mumbai attacks and other terrorist activity. He changed his Islamic name to a Christian name to hide his Pakistani-Muslim identity to make travel to India easier.

Between 2002 and 2005, Headley made several trips to Pakistan for terror training, and was in fact working as a Drug Enforcement Administration informant at the same time. Between 2006 and 2008, he did five spying missions in Mumbai scouting targets for the 2008 Mumbai attacks on behalf of Lashkar-e-Taiba and Pakistani ex-military officers. The attacks killed 168 people. In 2009, Headley traveled to Britain to help plan an attack against a Danish newspaper that had published cartoons of the prophet Muhammad. He was arrested in October 2009 on his way to Pakistan. Since his arrest and guilty plea, Headley has been cooperating with U.S. and Indian authorities, and has yielded much information about his associates.

The National Investigation Agency (NIA) registered a case against Headley and Rana for allegedly plotting the 2008 Mumbai attacks in India. After having interrogated Headley in Chicago for a week, the NIA has requested a Delhi court to issue non-bailable warrants to arrest Headley and others.[2]

c)     Warren Anderson's case

The CBI moved during March 2011 a Delhi court to obtain a Letter Rogatory to the US authorities for extradition of former Union Carbide Corporation Chairman Warren Anderson to stand trial for his criminal culpability in the 1984 Bhopal gas leakage tragedy, which had left over 15,000 people dead and maimed several thousands.

The application submitted to the court sought Anderson should be extradited from the USA to face the trial which is pending against him in the court of Bhopal chief judicial magistrate.

"Warren M Anderson is liable to be prosecuted on extradition to India for offence under section 304 IPC (culpable homicide not amounting to murder)," said the CBI referring to the extradition treaty of September 14, 1999 between the US and India. As per the provision contained in the extradition treaty dated September 14, 1999 between the USA and India, reciprocity has been granted for the extraditable offence punishable for a period of more than one year or by a more severe penalty.

"The offence involved in under section 304, 326 IPC which entails more than one year imprisonment are covered under the provision of dual criminality as these offences are punishable in India as well as in the USA," the CBI said in its plea.

Anderson, 90, never faced trial for his role in triggering the world's worst Industrial disaster over 26 years ago and was declared a proclaimed offender by the court of Bhopal chief judicial magistrate in 1993. Arrested on December 7, 1984, within days after the December 1984 tragedy, Anderson was granted bail by a Bhopal court. But he flew back to the US and never returned to India to stand trial in the case.[3]

d)     Ottavio Quattrocchi’s case

Ottavio Quattrocchi is an Italian businessman who was being sought until early 2009 in India for criminal charges for acting as a conduit for bribes in the Bofors scandal.

Quattrocchi's role in this scandal, and his proximity to Indian prime minister Rajiv Gandhi, is thought to have contributed to the defeat of the Congress Party in the 1989 elections. Ten years later (1999), the Central Bureau of Investigation (CBI) named Quattrocchi in a chargesheet as the conduit for the Bofors bribe. The case against him was strengthened in June 2003, when Interpol revealed two bank accounts, held by Quattrocchi and his wife Maria with the BSI AG bank, London, containing Euros 3 million and $1 million, a "curiously large savings for a salaried executive". In January 2006, these frozen bank accounts were unexpectedly released by India's law ministry, apparently without the consent of the CBI which had asked for them to be frozen.

On 6 February 2007, Ottavio Quattrocchi was detained in Argentina on the basis of the Interpol warrant. The Indian investigating agency CBI came under attack for putting up a half-hearted effort towards his extradition and India lost the case for his extradition in June 2007, the judge remarking that "India did not even present proper legal documents". Embarrassingly, India was asked to pay Ottavio's legal expenses.

In April 2009, The Interpol removed the red-corner notice issued against Ottavio Quattrocchi after a request from the Central Bureau of Investigation.

In sharp contrast to a nearly two-decade-long investigation by the CBI, an income tax tribunal bench has ruled that ` 41 crore was paid in bribes to Ottavio Quattrocchi, an Italian businessman once considered a friend of the Gandhi family, and Win Chadha, the Bofors agent in India.

A major chapter in the 25-year-old Bofors saga was closed with a Tis Hazari court discharging Italian businessman Ottavio Quattrocchi from the payoffs case after allowing the CBI to withdraw prosecution against him.

Chief Metropolitan Magistrate, in his 73-page order, noted that the CBI, despite “spending through the nose for about 21 years, has not been able to put forward legally  sustainable evidence with regard to conspiracy in the matter. Further, in the case of Mr. Quattrocchi, as against the alleged kickback of ` 64 crore he received, the CBI had by 2005 already spent around ` 250 crore on the investigation, which is sheer wastage of public money.”[4]

These four cases speaks volumes about the efficiency of our investigation mechanism in the country we have.

2.      INTERNATIONAL EXTRADITION PROCESS

With the backdrop of the cases explained above, let us understand the International Extradition Process and how it operates.

Extradition is the process by which a person charged with or convicted of a crime under the laws of one state is arrested in another state and returned to the former state for trial or punishment. Although states have no general obligation in international law to extradite persons, the practice has become widespread and is nearly universal. Even so, the process of international extradition has serious defects. Due to so many unique legal systems throughout the world, no single set of rules is available to govern the process of international extradition.

Consequently, the conditions upon which extradition may be granted vary widely. Most states require that fugitives can only be extradited from their territory pursuant to authorization by statute or treaty. Virtually all extraditions take place pursuant to bilateral
extradition treaties or conventions, although certain excepted conditions can complicate the process between states. Extradition is vital for enforcing international legal rules and compelling respect for law and order. Without the political capability or legal means to extradite accused criminal offenders to states where they can be investigated, prosecuted, convicted, and appropriately punished, those persons will remain at large, the beneficiaries of impunity. Thus, extradition becomes neither a diplomatic game nor trivial activity in seeking to apprehend international criminals. It is an international process that is essential today for bringing international fugitives to justice in states where their alleged criminal offenses were committed.

Extradition procedures thus provide a necessary conduit for bringing to justice individuals accused of international criminal offenses, including of terrorist activities. A criminal who succeeds in placing himself outside the territory of the state where he committed the crime also places himself beyond the reach of the law that he has violated. Through the formal process of extradition, one government transfers the accused individual to the custody of another government. This process is usually done by treaty, reciprocity, or comity. Indeed, four centuries ago, Hugo Grotius asserted that it was a state’s duty either to extradite or prosecute accused criminals found within its territories if a second state requests extradition. That vital role is highlighted by key provisions in contemporary legal instruments to suppress international terrorist activities, as extradition is used to facilitate the apprehension, prosecution, trial, and punishment of individuals who commit acts of terrorism. Additionally, if vigorously exercised and enforced, extradition may serve as a viable deterrent to the commission of criminal terrorist acts.

Historical experience, however, demonstrates that a treaty agreement providing for the extradition process between states, while necessary, may not be sufficient. Under contemporary international law, no universal rule obligates governments to extradite, or even prosecute, alleged offenders who hide in their territory. Indeed, the international extradition process today operates almost entirely through bilateral treaties, and certain conditions such as the nationality of the offender, concern over the fairness of a foreign trial, or the supposed political nature of the offense can obstruct the extradition process. Moreover, the international extradition system is neither comprehensive nor complete. No state has extradition treaties with every other state.

Perhaps most problematic for extradition cases involving acts of terrorism is the political offense exception. Many modern extradition treaties specifically exempt political offenses from extradition, since liberal and democratic governments developed a strong antipathy toward the idea of surrendering dissidents into the hands of a despotic government. There are, however, no recognized criteria as to what constitutes a “political” offense, nor is there a rule of international law prohibiting the extradition of political offenders. As a result, the decision whether to extradite rests on subjective criteria, as determined by the holding government. Accordingly, the bilateral extradition system can provide only partial remedies for bringing international terrorists to justice. The consequence is that, while governments might agree that terrorist acts rise to being criminal offenses against the international community, strict multilateral enforcement through extradition in prosecuting such acts may still be lacking.

Since 1970, the threat of various international terrorist activities prompted the ad hoc negotiation of a series of special multilateral agreements dealing with criminal activities, nearly all of which contain specific extradition provisions. These instruments contribute much to expanding the opportunities for governments to extradite accused offenders to other states, even in the absence of specific bilateral treaties. Preeminent among the concerns for which multilateral agreements have been negotiated are the international criminal offenses associated with terrorist acts.

The United Nations assumed the lead role as convener and sponsor of the various diplomatic conferences that negotiated these anti-terrorism instruments. The rationale for this U.N. strategy is plainly evident. Terrorist activities challenge in many ways the core principles and mandates of the organization. Terrorist acts are intended to be assaults on the principles of law, order, human rights and peaceful settlement of disputes on which the world body was founded. In addition, the effectiveness of any international legal regime depends on its implementation and support by participant governments.

The U.N. system must therefore strive to raise awareness of the various threats posed by terrorism. To meet this goal, it stipulated that certain terrorist acts rise to the level of international crimes. Between 1963 and 1999 the United Nations sponsored and promoted the promulgation of twelve law-making instruments relating to international terror violence. Further, the United Nations today is promoting the negotiation of two other prominent international instruments, a convention to suppress acts of nuclear terrorism and a comprehensive convention on the suppression of international terrorism. In nearly all of these instruments, extradition is assigned the central role in law enforcement. For extradition of an accused terrorist to proceed, however, the government of a state must establish lawful jurisdiction over that offender.

3.      JURISDICTIONAL FRAME WORK

Jurisdiction is critical as a legal ingredient to the extradition process. For extradition to occur legally, a state must establish lawful jurisdiction over both the criminal offense and an accused offender. International law sets limits on a state’s jurisdiction to apply its statutes extraterritorially. Traditionally, a state may not prosecute a criminal seized beyond its borders unless it has both lawful jurisdiction over the committed act and has gained jurisdiction over his person. Similarly, for governments to exercise extradition under international law, lawful jurisdiction must be secured by those states over an offender. In effect, the jurisdiction to prescribe must exist before the jurisdiction to adjudicate and enforce.

Obtaining extraterritorial jurisdiction for extradition involves a two-step process. First, it must be determined whether the requesting state’s domestic law covers the offensive act, i.e., whether there are grounds for exercising national jurisdiction.

Second, a sovereign state must ascertain whether it may proscribe such conduct extraterritorially under international legal rules. For this second criterion, governments can apply any of international law’s five theoretical constructs for exercising prescriptive jurisdiction: (1) the territorial principle; (2) the nationality principle; (3) the protective principle; (4) the passive personality principle; and (5) the universality principle.[5] To facilitate broader enforcement opportunities, these jurisdictional constructs are integrated, to a greater or lesser degree, into special provisions of the ’twelve U.N. anti-terrorist conventions. Therefore, each merits brief comment.

a)     Territorial Principle

The territorial principle determines jurisdiction according to the location of the crime and holds that a state may punish crimes committed within its territory. A variant of this, the theory of “floating” territoriality, recognizes the jurisdiction of a state for criminal acts committed aboard its flag vessels and aircraft. This notion assumes that all flag-bearing air and sea vessels are detached pieces of a state’s territory. Any harm to its vessels constitutes an offense against the state itself. Thus, criminal jurisdiction for terrorist acts committed against these vessels anywhere in the world attaches to the flag state. Of the jurisdictional principles for extradition, the territorial principle remains the most widely accepted and most traditionally applied. [6]

b)     Nationality Principle

The generally accepted nationality principle allows a state to prescribe laws that bind its nationals, regardless of the location of either the national or the offense. The nationality principle extends a state’s jurisdiction to actions taken by its citizens outside its territorial boundaries. The government is expected not only to protect its citizens when they are abroad, but it may also punish its citizens’ criminal conduct, regardless of where it occurs.

c)      Protective Principle

The protective principle concerns acts abroad that are considered prejudicial to the state’s security interests. Under the protective principle, a state may exercise jurisdiction over certain acts that take place outside its territory, when such acts threaten the security, territorial integrity, or political independence of the state. Moreover, the protective principle permits governments to prosecute nationals of other states for their conduct outside the offended state.

d)     Passive Personality Principle

The passive personality principle gives a state extraterritorial jurisdiction over offenses committed against its nationals, regardless of where the crime occurs. Jurisdiction is based on the nationality of the victim. The passive personality principle has not been widely used, mainly because it is controversial and often conflicts with the territorial principle. Passive personality implies that people carry the protection of their state’s law with them beyond the state’s territorial jurisdiction. This assertion challenges the fundamental premise of a state’s sovereign jurisdiction over its own territory, which would undercut the fundamental principle of territorial sovereignty.

e)      Universality Principle

The principle of universal jurisdiction recognizes that certain acts are so heinous and widely condemned that any state may prosecute an offender once it obtains custody. Such crimes are of universal interest to states and their perpetrators are considered to be the enemies of all humanity. Since acts of terrorism are universally recognized as international crimes, any government may extend jurisdiction over terrorists under the universal principle on the basis of hoste humani generis.[7] A person accused of such a crime can be arrested and tried by any state without concern for the nationality of the accused or the location of the offense, and without establishing any link between the accused offender and the prosecuting state. The only requirement is that the crime qualifies as being universally condemned.[8]

Extraterritorial Jurisdiction

Three of the above international law principles specifically support the legal theory of extraterritorial jurisdiction needed to extradite terrorist offenders. In order of practical legal priority, these are the universality principle, the protective principle, and the passive personality principle. First, the principle of universal jurisdiction holds special standing, as it asserts that certain acts of terrorism are crimes against humanity and as such, any state is permitted to arrest, prosecute or extradite accused offenders on behalf of the international community. The United Nations, by codifying such terrorist acts as international offenses through these prominent multilateral conventions, effectively rendered these offenses international crimes and activated the application of the universality principle for all state parties.

Second, the protective principle justifies a state’s right to punish offenders for crimes deemed harmful to the security or vital interests of the state. This notion provides jurisdiction on the basis of a perceived threat to national security, integrity, or sovereignty by an extraterritorial offense. Since many terrorist activities are intended to sway the foreign policy of a state, vital interests of that state may be affected. Extending protective jurisdiction may therefore be lawful, and thus exterritorial claims for extradition acquire standing.

The third principle on which extradition may be premised— passive personality—represents the most polemical basis on which to assign state jurisdiction over an offender. This view permits jurisdiction for extradition to be extended over persons who victimize citizens of the particular state seeking jurisdiction. Though passive personality remains controversial, the Third Restatement of Foreign Relations Law of the United States specifically recognizes this principle when applied to terrorist and other organized attacks against a state’s citizen by reason of their nationality. It seems reasonable that, if used in conjunction with other jurisdictional principles, the passive personality principle can bolster claims for extraterritorial jurisdiction which may be needed to exercise the extradition process in U.N. counter-terrorism conventions.

These five principles provide a framework for states to establish jurisdiction over acts of international terrorism, and to subsequently follow through by extraditing or prosecuting the accused offenders. Few restrictions are imposed on the use of extraterritorial jurisdiction. Therefore, governments have the opportunity to expand their law enforcement internationally to exercise extradition proceedings. These legal principles provide grounds for governments to extend their scope of jurisdiction over terrorists abroad to secure their extradition. Important in this regard is the fact that all of these jurisdictional principles are incorporated to varying degrees into the U.N.’s counter-terrorism instruments.

Process of Extradition in India

In India the extradition of a fugitive from India to a foreign country or vice-versa is governed by the provisions of Indian Extradition Act, 1962. The basis of extradition could be a treaty between India and a foreign country.        Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified. 

Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities.

The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant:

i)       Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions which includes receipt of the request through diplomatic channels only and under the warrant issued by a Magistrate having a competent jurisdiction.
ii)    Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.

In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.

As India has not been successful in getting criminals who have taken refuge in Western countries returned to the subcontinent, there is a growing feeling in government circles that those countries are siding with the accused.

India has so far signed Extradition Treaties and Agreements with 28 countries and Extradition arrangements with 10 countries.[9]

4.      PROVISIONAL FRAMEWORK

a)      Extradition Process Vs. U.N. Conventions

Even before the United Nations was founded, the extradition of persons accused of committing terrorist activities was formally recognized as a means of international law enforcement. During the League of Nations era, an unsuccessful Convention for the Prevention and Punishment of Terrorism was drafted in 1937 for international legal consideration (1937 Convention). Prompted largely by the assassination of King Alexander of Yugoslavia, this abortive instrument obligated parties to prevent and punish offenders who committed “acts of terrorism.” The convention went further as it imposed a duty on parties to criminalize certain specific acts amounting to terrorist offenses. To that end, Article 2 mandated that: Each of the High Contracting Parties shall, if this has not already been done, make the following acts committed on his own territory criminal offences if they are directed against another High Contracting Party and if they constitute acts of terrorism within the meaning of Article 1:

1)     Any willful act causing death or grievous bodily harm or loss of liberty to:

a)       Heads of States, persons exercising the prerogatives of the head of State, their hereditary or designated successors;
b)       The wives or husbands of the above-mentioned persons;
c)        Persons charged with public functions or holding public positions when the act is directed against them in their public capacity.

2)     Willful destruction of, or damage to, public property or property devoted to a public purpose belonging to or subject to the authority of another High Contracting Party.
3)     Any willful act calculated to endanger the lives of members of the public.
4)     Any attempt to commit an offense falling within the foregoing provisions of the present article.
5)     The manufacture, obtaining, possession, or supplying of arms, ammunition, explosives or harmful substances with a view to the commission in any country whatsoever of an offence falling within the present article.

The instrument also would make conspiracy, incitement, willful participation and assistance given in the commission of such criminal offenses illegal.

The 1937 Convention explicitly included extradition as the principal means for bringing alleged offenders to justice. The instrument asserted that any of the offenses in Articles 2 and 3 shall be deemed as extradition crimes for extradition treaties that are already in force or may be concluded between contracting parties. Moreover, offenses committed within the territory of a contracting party may be regarded as extraditable crimes, and parties were required to prosecute nationals when national law prevented their extradition. This draft text contributed to the contemporary law against terrorism. It represented the first serious attempt to criminalize acts of terrorism. Moreover, its language contributed to various principles and provisions that were incorporated into subsequent U.N. counter-terrorism conventions that today are part of modern international law.

International anxieties over global terrorism grew sporadically. Certain events gave rise to harmful activities that prompted the international community to take action to prohibit
those activities and punish the offenders. The forums for creating and instituting these new international legal rules were special organs and agencies within the U.N. system. Since 1960, four specific issue-areas tended to dominate international concern over global terrorism.

(1)  Crimes Against the Safety of International Aviation
The first U.N. effort to criminalize terrorist activities internationally dealt with threats to the safety of international aviation. During the 1960s, the international community became seriously concerned over the unlawful seizure of aircraft flying international routes. To suppress these dangerous activities, the principal U.N. agency concerned with safe and secure global air transportation, the International Civil Aviation Organization (ICAO), sponsored the promulgation of following four prominent international legal instruments.

i)       The Tokyo Convention
ii)    The Hague Convention
iii)  The Montreal Convention
iv)   The Montreal Convention Refined

(2)  Crimes Against the Safety of Individual Persons
In the early 1970s, the international community became acutely concerned over threats that serious harm or injury might be inflicted on diplomats and individual persons taken hostage by groups of terrorists. A principal catalyst for this apprehension came in March 1973, when U.S. Ambassador Cleo Noel and Charges d’Affaires George Curtis Moore, along with Belgian diplomat Guy Eid, were kidnapped and murdered in Khartoum, Sudan, by Palestinians terrorists.[10] This tragic event prompted the United States to introduce in the General Assembly the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.[11]

i)        Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons
ii)    Convention Against the Taking of Hostages

(3)  Crimes Against the Safety of International Maritime Navigation

Over the last two decades, terrorist threats to maritime security became a serious international concern. Accordingly, the United Nations adopted two special legal instruments dealing with crimes affecting the safety of international maritime navigation consequent to the Convention for the Suppression of Unlawful Acts against the Safety of International Maritime Navigation.

(4)  Crimes Associated with Violent Terrorist Activities
Four special U.N. conventions have been negotiated to deal with particular activities associated with destructive terror violence. The first of these was negotiated under the auspices of the International Atomic Energy Agency (IAEA) to prevent international smuggling of nuclear materials. In the post-Cold War world, serious concern arose over the possibility that nuclear material might be smuggled from Russia, or other nuclear states, into the hands of potential nuclear weapons states, or even terrorist organizations. The major instruments are:

i)          The Convention on the Physical Protection of Nuclear Materials
ii)       The Convention on the Making of Plastic Explosives
iii)     The International Convention for the Suppression of Terrorist Bombings
iv)      The International Convention for the Suppression of the Financing of Terrorism

b)     The Rule regarding Extradition   

  The most important of all aspects of the enforcement of rules on terrorism is the rule regarding Extradition. On this particular type of judicial process hinges the success or failure of the efforts of the States in securing the prosecution and punishment of the alleged offenders.
           
The Convention on Offences and Certain other Acts committed on board the Aircraft signed at Tokyo on 14th September, 1963 contains the following rule regarding extradition:
           
“Offences committed on aircraft registered in a Contracting State shall be treated, for the purposes of extradition, as if they had been committed not only in the place in which they have occurred but also in the territory of the State of registration of the aircraft.”[12]
           
The Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16th December, 1970 provides that:
           
“Upon being satisfied that the circumstances so warrant, any Contracting State in the territory of which the offender or the alleged offender is present, shall take him into custody or take other measures to ensure his presence.  The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted.”[13]
           
Providing teeth to the provision stated above, the Convention says,
           
“The offence shall be deemed to be included as an extraditable offence in any extradition treaty existing between Contracting States. Further it is provided that the contracting States undertake to include the offence as an extraditable offence in every extradition treaty to be concluded between them”.[14]
           
Sub-Article 2 of this Article provides that “If a contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offence. Extradition shall be subject to the other conditions provided by the law of the requested State.”

Sub-Article 3 of this Article provides that “Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offence as an extraditable offence between themselves subject to the conditions provided by the law of the requested State. The offence shall be treated, for the purpose of extradition between Contracting States, as if it had been committed not only  in the place in which it occurred but also in the territories of the States required to establish their jurisdiction in accordance with Article 4, paragraph 1..”
           
The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1973 contains the following principles with regard to Extradition:

1)     “The offences shall be deemed to be included as extraditable offences in any extradition treaty existing between Contracting States; Contracting States undertake to include the offences as extraditable offences in every extradition treaty to be concluded between them.

2)     If a Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

3)     Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.”[15]

The International Convention for the Suppression of Terrorist Bombings, 1998 provides that

“The offences set forth in Article 2 shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them.”[16]

To overcome the difficulty arising from the condition of having an  Extradition Treaty which is  created by certain bilateral treaties, sub-article 2 of Article 9 provides that “when a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party, may at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in Article 2. Extradition shall be subject to the other conditions provided by the law of the requested State.

Sub-article 3 of Article 9 of this Convention contains the rule that:

“States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offence set forth in Article 2 as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.”

Article 11 of the  International Convention for the Suppression of the Financing of Terrorism provides the following as regards extradition of  persons alleged to be involved in terrorism:-

1)     The offences set forth in Article 2 shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them.

2)     When a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party may, at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in Article 2. Extradition shall be subject to the other conditions provided by the law of the requested State. 

3)     States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences set forth in Article 2 as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.

c)      The Rule regarding Mutual Assistance

Almost all conventions on Terrorism require that the States Parties to the International Conventions on Terrorism shall afford assistance to each other in criminal proceedings. This rule appeared first in the 1970 Convention for the Suppression of Unlawful seizure of Aircraft. It has been repeated since then in all of the subsequent instruments.

Article 10 of the Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 lays down the rule that the Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offence and other acts mentioned in Article 4.  The law of the requested state shall apply in all cases.

Article 11 of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1973 lays down the following rule:

Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offence. The law of the requested State shall apply in all cases.

In the immediate aftermath of the terrorist attacks of 11th September 2001, the chief executives of a number of States issued decrees instructing governmental bodies to increase their involvement in international cooperation. Since much non-judicial cooperation can be accomplished by the executive branch within its existing powers, these orders may be an expeditious and effective means of implementing basic mutual assistance requirements. More formal and binding arrangements can be secured by ratification and implementation of the universal anti-terrorism Conventions and by negotiation of bilateral or multilateral mutual assistance treaties.

Besides the International Conventions referred to above, certain Regional Conventions on Terrorism also lay down the rule that States should afford mutual assistance to each other in matters of preventing and punishing the crime of Terrorism. The following are some of the Regional Conventions which provide for mutual assistance among the Contracting Parties:-

1)     The European Convention on the Suppression of Terrorism, (1977) provides that “the contracting States shall afford one another the widest measure of mutual assistance in criminal matters in connection with proceedings brought in respect of the offences mentioned in Article 1 or 2. The law of the requested State concerning mutual assistance in criminal matters shall apply in all cases. Nevertheless this assistance may not be refused on the sole ground that it concerns a political offence or an

2)     The SAARC Regional Convention on Suppression of Terrorism, 1987 provides for the following as regards mutual assistance between the Contracting States.

“The Contracting States shall, subject to their national laws, afford one another the greatest measure of mutual assistance in connection with proceedings brought in respect of the offences referred to in Article 1 or agreed to in terms of Article II, including the supply of all evidence at their disposal necessary for the proceedings.”

Further, it is provided that the Contracting States shall cooperate among themselves, to the extent permitted by their national laws, through consultations between appropriate agencies, exchange of information, intelligence and expertise and such other cooperative measures as may be appropriate, with a view to preventing terrorist activities through precautionary measures.

3)     The Arab Convention for the Suppression of Terrorism, 1998 contains detailed   provisions regarding Cooperation between the Contracting States. These provisions may be classified as those falling within the categories of preventive measures and  the measures of suppression, which read as follows:-

(a)      Preventive Measures

Contracting States undertake not to organize, finance or commit terrorist acts or to be accessories thereto in any manner whatsoever.  In their commitment to the preventing and suppression of terrorist offence in accordance with their domestic laws and procedures, they shall endeavour:

1)     To prevent the use of their territories as a base for planning, organizing, executing, attempting or taking part in terrorist crime in any manner whatsoever. This includes the prevention of terrorists; infiltration into, or residence in their territories either as individuals or groups, receiving or giving refuge to them, training, arming, financing or providing any facilitation to  them;

2)      To cooperate and coordinate action among Contracting States, particularly neighbouring countries suffering from similar or common terrorist offences;

3)     To develop and strengthen systems for the detection of the movement, importation, exportation, stockpiling and use of weapons, munitions and explosives and of other means of aggression, murder and destruction as well as procedures for monitoring their passage through customs and across borders in order to prevent their transfer from one Contracting State to another or to third-party States other than for lawful purposes;
  
4)     To develop and strengthen systems concerned with surveillance procedures and the securing of borders and points of entry overland and by air in order to prevent illicit entry thereby;

5)     To strengthen mechanisms for the security and protection of eminent persons, vital installations and means of public transportation;

6)     To enhance the protection, security and safety of diplomatic and consular persons and missions and international and regional organizations accredited to Contracting States, in accordance with the relevant international agreements, which govern this subject;

7)     To reinforce security-related information activities and to coordinate them with those of each State in accordance with its information policy, with a view to exposing the objectives of terrorist groups and organizations, thwarting their schemes and demonstrating the danger they pose to security and stability;

8)     To establish, in each Contracting State, a database for the accumulation and\ analysis of information relating to terrorist elements, groups, movements and organizations and for the monitoring of developments with respect to the terrorist phenomenon and of successful experiences in counter-terrorism, and to keep such information up to date and make it available to the competent authorities of Contracting States, within the limits established by the domestic laws and procedures of each State.       

(b)     Measures of Suppression

The following measures of suppression are provided by the Convention:

1)           To arrest the perpetrators of terrorist offences and to prosecute them in accordance with national law or extradite them in accordance with the provisions of this Convention or of any bilateral treaty between the requesting State and the requested State.

2)           To provide effective protection for those working in the criminal justice field;

3)           To provide effective protection for sources of information concerning terrorist offences and for witnesses thereof;

4)           To extend necessary assistance to victims of terrorism;

5)           To establish effective cooperation between the relevant agencies and the public in countering terrorism by, inter alia, establishing appropriate guarantees and incentives to encourage the reporting of terrorist acts, the provision of information to assist in their investigation, and cooperation in the arrest of perpetrators.

The Contracting States agreed to cooperate for the prevention and suppression of terrorist offences, in accordance with the domestic laws and regulations of each State, as set forth hereunder:

i)       Exchange of Information

1)     Contracting States shall undertake to promote the exchange of information between and among them concerning;

a)     The activities and crimes of terrorist groups and of their leaders and members; their headquarters and training; the means and sources by which they are funded and armed; the types of weapons, munitions and explosives used by them and other means of aggression, murder and destruction;

b)     The means of communication and propaganda used by terrorist groups, their modus operandi; the movements of their leaders and members; and the travel documents that they use;

2)     Each contracting State shall undertake to notify any other Contracting State in an expeditious manner of the information it has concerning any terrorist offence that takes place in its territory and is intended to harm the interest of that State or of its nationals and to include in such notification statements concerning the circumstances surrounding the offence, those who committed it, its victims, the losses occasioned by it and the devices and methods used in its perpetration, to the extent compatible with the requirements of the investigation and inquiry.

3)     Contracting States shall undertake to cooperate with each other in the exchange of information for the suppress in of terrorist offences and promptly to notify other Contracting States of all the information or data in their possession that may prevent the occurrence of terrorist offences in their territory, against their nationals or residents or against their interests.

4)     Each contracting State shall undertake to furnish any other Contracting State with any information or data in its possession that may :

a)     Assist in the arrest of a person or persons accused of committing a terrorist offence against the interests of that State or of being implicated in such an offence whether by aiding and abetting, collusion or incitement;

b)     Lead to the seizure of any weapons, munitions or explosives or any devices or funds used or intended for use to commit a terrorist offence.

5)     Contracting States shall undertake to maintain the confidentiality of the information that they exchange among themselves and not to furnish it to any State is not a Contracting State or any other party without the prior consent of the State that was the source of the information. (Article 4)

ii)    Investigation

Contracting States shall undertake to promote cooperation among themselves and to provide assistance with respect to measures for the investigation and arrest of fugitives suspected or convicted of terrorist offences in accordance with the laws and regulations of each State.

iii)     Exchange of Expertise

1)     Contracting States shall cooperate in the conduct and exchange of research studies for the suppression of terrorist offences and shall exchange expertise in the counter-terrorism field;     
2)     Contracting States shall cooperate, within the limits of their resources, in providing all possible technical assistance for the formulation of programmes or the holding of joint training courses or training courses intended for one stat e or for a group of Contracting States, as required for the benefit of those working in counter-terrorism with the aim.

iv)   Judicial Co-operation

Section III of the Arab Convention contains detailed provisions with regard to judicial cooperation as can be seen from the following:-

Each contracting State shall provide the other State with all possible and necessary assistance for investigations or prosecution relating to terrorist offences; [17]

Where any of the Contracting States has jurisdiction to prosecute a person suspected of a terrorist offence, it may request the State in which the suspect is present to take proceedings against him for that offence, subject to the agreement of that State and provided that the offence is punishable in the prosecuting State by deprivation of liberty for a period of atlas one year or more. The requesting State shall, in this event, provide the requested State with all the investigation documents and evidence relating to the offence. The investigation or prosecution shall be conducted on the basis of the charge or charges made by the requesting State against the suspect, in accordance with the provisions and procedures of the law of the prosecuting state.[18]

The procedures for judicial delegation, as contained in Article 29 read as follows:

Request relating to judicial delegations shall contain the following information: 

a)     The authority presenting the request;
b)     The subject of and reason for the request;
c)     An exact statement, to the extent possible, of the identity and nationality of the person concerned;
d)      A description of the offence in connection with which the request for a judicial delegation is being made, the legal designation, the penalty established for its commission, and as much information as possible on the circumstances so as to facilitate the proper functioning of the judicial delegation.

The request for a judicial delegation shall be addressed by the Ministry of Justice of the requesting State to the Ministry of Justice of the requested State and shall be returned through the same channel.

In case of urgency, the request for a judicial delegation shall be addressed by the judicial authorities of the requesting Stat e directly to the judicial authorities of the requested State, and a copy of the request shall be sent at the same time to the Ministry of Justice of the requested State. The request, accompanied by the documents relating to its implementation shall be returned through the channel stipulated in the preceding paragraph. The request for a judicial delegation may be sent by the judicial authorities directly to the competent authority in the requested Stat e, and replies may be forwarded directly through this authority.[19]
     
d)      Measures for the Protection of Witnesses and Experts   
  
The following provisions of the Arab Convention for the Suppression of Terrorism, 1998 lay down the measures to be adopted by the Contracting States for the protection of Witnesses and Experts:
          
If, in the estimation of a requesting State, the appearance of a witness or expert before its judicial authority is of particular importance, it shall indicate this fact in its request. The request or summons to appear shall indicate the approximate amount of the allowances and the travel and subsistence expenses and shall include an undertaking to pay them. The requested State shall invite the witness or expert to appear and shall inform the requesting State of the response. [20]

A witness or an expert shall not be prosecuted, detained or subjected to any restrictions on his personal liberty in the territory of the requesting state in respect of any acts or convictions that preceded the person’s departure from the requested State, regardless of his nationality, as long as his appearance before the judicial authorities of that State is in response to a summons.[21] (Article 36)

The Convention provides that the requesting State shall take all necessary measures to protect witnesses and experts from any publicity that might endanger them, their families or their property as a result of their provision of testimony or expertise and shall, in particular, guarantee confidentiality with respect to:

a)     The date, place and means of their arrival in the requesting state;
b)     Their place of residence, their movements and the places they frequent;
c)     Their testimony and the information they provide before the competent judicial authorities.

The requesting State shall undertake to provide the necessary protection for the security of witnesses and experts and of members of their families that is required by their situation, the circumstances of the case in connection with which they are sought and the types of risks that can be anticipated.[22]  

Rogatory Commissions

Article 9 of the Convention of the Organization of the Islamic Conference on Combating International Terrorism, 1999 contains the following rules with regard to the system of Rogatory Commission:

Each contracting state shall request from any other contracting state to undertake in its territory rogatory action with respect to any judicial procedures concerning an action involving a terrorist crime and in particular :

1)     To hear witnesses and testimonies taken as evidence;
2)     To communicate legal documents;
3)      To implement inquiry and detention procedures;
4)       To undertake on the scene inspection and analyse evidence
5)     To obtain necessary evidence or documents or records or their             certified copies.[23]
    
Further, the Convention provides that each Contracting State shall implement rogatory commission’s related to terrorist crimes and may reject the request for implementation with respect to the following cases:

1)     If the crime for which the request is made, is the subject of a charge; investigation or trial in the country requested to implement rogatory commission;
2)     If the implementation of the request prejudices the sovereignty or the security or public order of the country charged with this mission.[24] .

The request for rogatory mission shall be implemented promptly in accordance with the provisions of the domestic laws of the quested state and which may postpone its implementation until its investigation and prosecution procedures are completed on the same subject or until the compelling reasons that called for postponement are removed. The request for a rogatory commission related to a terrorist crime shall not be refused on the grounds of the rule of transaction confidentiality for banks and financial institutions. And in the implementation of the request the rules of the enforcing State are to be followed.  [25]

The Annex to the Convention of the Organization of Islamic Conference contains the following rules with regard to the system of Rogatory Commissions:
  
Rogatory Commission requests must specify the following:

1)     The competent authority that issued the request;
2)     Subject of the request and its reason;
3)     The identity and nationality of the person being the subject of the rogatory commission (as may be possible);
4)     Information on the crime requiring rogatory commission, its legal definition and penalty inflicted on its perpetrators along with maximum available information on its circumstances in order to ensure the efficient implementation of the rogatory commission.[26]

Further the Annex provides that the request for rogatory commission shall be forwarded by the Ministry of Justice in the requesting State to the Ministry of Justice in the requested State and returned in the same way.  In case of expediency, the request for rogatory commission shall be directly forwarded by the judicial authorities in the requesting State to the judicial authorities in the requested State. A copy of this rogatory commission shall also be sent at the same time to the Ministry of Justice in the requested State. The rogatory commission shall be returned together with the papers concerning its implementation in the way stipulated in the previous item.  The request for rogatory commission may be forwarded directly from the judicial authorities to the competent authority in the requested country. Answers may be sent directly through the said authority.[27]

Yet another regional Convention on Terrorism which contains elaborate rules on the subject of Rogatory Commission is the Convention of Organization of the African Unity (OAU Convention) on the Prevention and Combating of Terrorism, 1999.  It is provided as follows:

Any State Party may, while recognizing the sovereign rights States Parties in matters of criminal investigation, request any other State Party to carry out, with its assistance and cooperation, on the latter’s territory, criminal investigations related to any judicial proceedings concerning alleged terrorist acts and, in particular:
 
a)     The examination of witnesses and transcripts of statements made as evidence;
b)     The opening of judicial information.;
c)     The initiation of investigation processes;
d)     The collection of documents and recordings or, in their absence, authenticated copies thereof;
e)     Conducting inspections and tracing of assets for evidentiary purpose;
f)       Executing searches and seizures; and
g)     Service of judicial document;

The extra-territorial investigation (commission rogatoire) shall be executed in compliance with the provisions of national laws of the requested State. The request for an extra-territorial investigation relating (commission rogatoire) relating to a terrorist act shall not be rejected on the grounds of the principle of confidentiality of bank operations or financial institutions, where applicable.

The States shall extend to each other the best possible mutual police and judicial assistance for any investigation, criminal prosecution or extradition proceedings relating to the terrorist acts.[28]

5.      CONCLUSION

The 2008 Mumbai attacks (often referred to as 26 November or 26/11) which killed 160 innocent people in Taj Complex, Oberios, Shivaji Terminal and Nariman House dramatically crystallized the pervasive threat of global terrorism. In the wake of the carnage and destruction from these acts of terrorism are no longer viewed as contained, selective, minor threats. Such acts now are seen as global, omnipresent, and incredibly destructive. In the minds of the public and statesmen alike, the danger of terrorism escalated from a localized, low intensity conflict phenomenon to a pervasive world-wide war, with military countermeasures to be waged accordingly.

The internationalization of law enforcement activities remains a vital strategy for governments in combating global terrorism. The key to this law enforcement process is having special international instruments that designate certain acts as criminal offenses and provide for the extradition of accused offenders to states having jurisdiction over the offense for trial and prosecution. Since 1963, the U.N. agencies have sponsored, adopted, and promoted implementation of a combination of conventions that criminalize certain terrorist acts as offenses under international law and facilitate extradition or prosecution of the perpetrators. The Sixth Committee of the U.N. General Assembly, as well as ICAO, IMO and the IAEA, contributed immensely to this lawmaking process. In this connection, governments now realize that the fight against global terrorism necessitates a multifaceted response that must incorporate improved law enforcement procedures, including further widespread use of extradition. Governments should be given wider legal scope for bringing alleged terrorist perpetrators to trial, and extradition practice should be reformed such that more restrictions are placed on using the political offence exception. Accordingly, more effective measures to promote international cooperation in the prevention of terrorist violence and the prosecution of its perpetrators must be developed at the international, regional and bilateral levels. These U.N. conventions facilitate that process, especially by criminalizing certain offenses and highlighting extradition as an integral means for multilateral law enforcement.

The U.N. counter-terrorism instruments address the question of extraditable offenses and proffer mandatory requirements for extradition with few grounds for refusal to do so. Considered collectively, they provide a wider basis for extradition arrangements by eliminating the list-of-specific-offenses approach in favor of a more generalized, indeed, universal jurisdictional approach for extraditing terrorist offenders. Further, where no bilateral treaty exists between states, extradition traditionally could be premised upon the customary international law principles of reciprocity and comity. The constellation of U.N. agreements gives formal structure and direction for using the extradition process over a broad multilateral jurisdictional scope. In addition, these instruments aim to coordinate and enhance mutual assistance among parties with the goal of combating serious transnational terrorist crimes.

The most recent of these instruments seeks to impose limits on the mandatory political offense exception by excluding terrorist acts that are recognized in multilateral conventions as being especially grave criminal offenses. Indeed, the political offense exception is specifically declared not to be a bar to extradition for crimes of terrorist violence. Yet, it is important to realize that a government’s decision to extradite is still subjective because extradition can be denied if government officials believe the prosecution of an accused offender might be motivated by that person’s race, religion, nationality, ethnic origin, or political opinion. The problem with such a prophylactic stipulation seems plainly obvious. Persons might commit terrorist acts in violent reaction to a government’s policies that affect their racial, religious, ethnic, or national minority group in that state. This situation therefore might qualify for a denial of extradition from another government, even though the person sought was not attempting to change the political system of the requesting state.

It is true that the series of U.N. counter-terrorism instruments were negotiated piecemeal and do not create a fully integrated anti-terrorist legal system. Still, these instruments establish a framework for international cooperation among states that is designed to prevent and suppress international terrorism. This is to be accomplished by requiring states to cooperate in the prevention and investigation of terrorist activities, to criminalize terrorist acts, to assist other states in the prosecution of terrorists, and either to extradite or to prosecute alleged offenders found in their territory. The end goal is to ensure that accused terrorists are apprehended, prosecuted, and punished. In this manner, the United Nations have instituted a patchwork quilt of international legal commitments to stem terrorism. These conventions build on each other as they incorporate the process of extradition among states parties as the principal means for international enforcement.

At the heart of these anti-terrorism conventions is the “extradite or prosecute” requirement. This principle imposes upon each state the obligation either to extradite an offender to one of the states that has jurisdiction under the convention, or to submit the case to its authorities for prosecution. Since the Hague Convention, this choice has been provided in every U.N.- sponsored agreement that seeks multilateral cooperation in law enforcement to suppress international acts of terrorism.[29]

It is clear that contemporary global terrorism involves criminal acts usually perpetrated by nonstate actors. It is also apparent that the appropriate response of a victim state in defense against such acts is to seek the assistance of law enforcement. Preeminent is the obligation of states party to U.N. counterterrorism instruments to extradite or prosecute. All nonstate actors, however, operate within the sovereign territory of a state, thus creating the potential for conflicts of legal jurisdiction. When a government is unwilling or unable to cooperate in the suppression of such terrorism, or when it is covertly supporting such terrorist activities, then law enforcement fails as an option.

The international legal authority for a government to respond to acts of international terrorism remains dependent on other international actors. States must rely on each other to combat international terrorism effectively through means of extradition. To strengthen international criminal law against terrorist activities, states parties to an international agreement must be obligated to prosecute an offender if the holding government decides against extradition. The obligation to prosecute or extradite persons accused of terrorist offenses underscores the pervasive recognition that governments are duty-bound to act, either through prosecution or extradition, to make certain that persons who perpetrate injury or damage to the fundamental interests of the international community are apprehended, prosecuted, and brought to justice. Yet, the legal obligation for governments to extradite or prosecute, while necessary, is not sufficient.

The force of legal obligation may motivate governments to move toward enforcing legal rules that punish terrorists, but the critical ingredient for that process is political will. Governments must have the political resolve to fully implement obligations into policy action and must be willing to make international extradition law function as it is intended. International statesmen crafted and implemented these U.N. instruments to outlaw various acts of global terrorism and to facilitate means for punishing the offenders. But if governmental officials are not willing to convert these laws into actual practice, those legal obligations will be nothing more than words on paper.

Legal obligations must be transformed into policy actions. However, if the past is prologue, that recognition should give pause for concern. States are not only legal entities, but also political creatures. Their governments are overtly sensitive to both domestic and international political pressures. In a world earmarked by conflicting political, ideological, and economic tensions at home and abroad, governments will have difficulty in mobilizing the political will to make the international extradition process work more effectively in apprehending and prosecuting terrorist offenders. In the end, the critical challenge for governments in this era of global terrorism will be to discover how they can resolutely and consistently marshal the necessary political will to prosecute accused offenders, particularly their own nationals, for their alleged terrorist offenses abroad.

[This material is put online to further the educational goals of ‘Study in Law’. This material may be used freely for educational and academic purposes. It may not be used in any way for profit.]





[1] Press release; CBI Website-New Delhi , 27-09-2011
[2] Times of India; 4th September, 2011
[3]Times of India; Mar 22, 2011
[4] The Hindu; March 4th, 2011
[5] The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption Against Extraterritoriality, 21 HASTINGS INT’L & COMP. L. REV. 177 (1997).
[6] Christopher L. Blakesley, United States Extradition Over Extraterritorial Crime, 29 J. CRIM. L. & CRIMINOLOGY 1109, 1118–19, 1123 (1982).
[7] Christopher L. Blakesley, Jurisdictional Issues and Conflicts of Jurisdiction, in LEGAL RESPONSES TO INTERNATIONAL TERRORISM; US PROCEDURAL ASPECTS 142– 53 (M. Cherif Bassiouni ed., 1988).
[8] M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 VA. J. INT’L L. 81, 106–108 (2001);
[9] Source: Central Bureau of Investigation
[10] On March 1, 1973, “eight members of Black September, part of Arafat’s Fatah organization, stormed the Saudi embassy in Khartoum, [sic] took Noel, Moore, and others hostage. A day later . . . Noel, Moore and Eid were machine-gunned to death .
[11] Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167 (entered into force Feb. 20, 1977)
[12] Article 16 of the Convention.
[13] Article 6 of the Convention.
[14] Article 8 (1) of the Convention.
[15] Article 8 of the Convention.
[16] Article 9 of the Convention.
[17] Article 13 of the Convention.
[18] Article 14 of the Convention.
[19] Article 30 of the Convention.
[20] Article 34 of the Convention.
[21] Article 36 of the Convention.
[22] Article 37 of the Convention.
[23] Article 9 of the Convention.
[24] Article 10 of the Convention.
[25] Article 12 of the Convention.
[26] Article 29 of the Convention.
[27] Article 30 of the Convention.
[28] Articles 16 and 17
[29] M. Cherif Bassiouni & Edward M. Wise, AUT DEDERE AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW (1995). Given the persuasive importance of the principle of aut dedere aut judicare for the enforcement of contemporary international criminal law, some highly respected commentators have suggested that this obligation has today attained the level of a rule of general international law.



[i] This article is based on the Research paper of the Author titled ‘A critical study of the Anti Terrorism Laws of India.  Acharya Nagarjuna University (ANU), Guntur has awarded PhD  in Law (2009) to the Author based on this thesis.

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