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]
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
[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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