The Relationship between Extradition and Asylum

Traditionally, extradition emerged as a political concept. But with the development of Human Rights jurisprudence and the need for inter-jurisdictional cooperation in the international arena, it has assumed a more important role especially in effective dispensation of criminal justice. The concept of extradition underwent a huge change in the late 18th and early 19th century when its focus shifted from political crimes to common ordinary crimes. It is in this regard that the protection of rights of an individual assumes importance in extradition proceedings while also ensuring that the safeguards provided for an asylum seeker or a refugee are strictly adhered to.

Extradition and Asylum – Meaning

Extradition simply means surrender or delivery of accused or a convict to the state where he is accused or convicted of a crime. The state where accused is found or to whom extradition request is made is called territorial state or requested state and the state which requests extradition is called requesting state. On the other hand, Asylum means shelter and protection (not mere temporary refuge) granted to an individual from another state by the state admitting him on his request. Such person is usually someone fleeing from persecution. Asylum can be territorial, i.e., asylum granted by a state in its own territory or extra-territorial, i.e, asylum granted by state in its embassy, public vessels etc. in foreign countries.

Essentials of Extradition

There is no legal duty to extradite in absence of an agreement or treaty. The following conditions must exist for extradition of an individual:-

  • Rule of Specialty: It means that the person extradited can be convicted or tried for only that offence for which his extradition was sought and he cannot be re-extradited to a third country without the agreement of the requested state.
  • Double Criminality: The offence for which extradition is demanded must be an offence in both the states-the requesting state and the requested state.
  • Extraditable offence: Offence for which extradition is sought must be an extraditable offence according to the extradition treaty or national legislation of the country. For instance,  Section 2(c) of Indian Extradition Act 1962 defines ‘extradition offence’ as an offence provided for in the extradition treaty in relation to a treaty state and an offence punishable with imprisonment for a term which shall not be less than one year in relation to a non-treaty state.
  • Political offence exception: A political offender cannot be extradited. A political offence can be a purely political offence or it can be a related political offence.

Similarly, person accused of military or religious crimes are also not extradited.

Other conditions for extradition involve existence of  prima facie case against the accused.

How do Extradition and Asylum Interact?

On the face of it, extradition and asylum seem to be two opposite concepts having no inter-relation whatsoever. But, they are not poles apart and overlap and intersect at various points. For example – asylum intervenes in extradition process when the person whose extradition is sought is an asylum seeker or when the wanted person files asylum application after he learns about request for his extradition. It is pertinent to note that while extraditing such individuals the safeguards put in place for asylum seekers and refugees in various conventions like the Refugee Convention of 1951, the 1967 Protocol relating to Status of Refugees have to be followed.

Extradition and Asylum are not Mutually Exclusive

Extradition has its basis in bilateral agreements and multilateral treaties whereas the basis of asylum lies in international refugee law, humanitarian grounds and international customary law. The two concepts are not mutually exclusive. Asylum does not stand in way of extradition and neither opposes legitimate prosecution but only protects an individual from persecution. The requested state may extradite an asylum seeker if it is established that he would have access to an asylum procedure keeping with the principles of 1951 Convention in the requesting state and the latter assumes responsibility for his claim or they agree to return  asylum seeker to requested state after completion of criminal proceedings[1]. The Refugee Convention of 1951 dealing with the rights of  refugees provides various safeguards for them like Principle of  Non-Refoulement. A ‘Refugee’ is a individual who has been granted asylum whereas an asylum seeker is a person who has not yet attained the status of  a refugee .

The Principle of Non-Refoulement

It has been recognised under Article 33 of the 1951 Refugee Convention.It provides that:

No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The prohibition of refoulement is binding on all state parties to 1951 convention and 1967 Protocol[2]. As a principle of customary international law, it is also binding on states which have not yet become parties to these instruments.[3] Article 33(2) of the Convention provides an exception to this principle that it will not apply when there are there are reasonable grounds for regarding the refugee as a danger to the security of the country or to the society by reason of conviction for a  serious offence.

While applying this exception the principles of justice, fairness, due process of law, doctrine of proportionality, necessity and availability of  sufficient evidence for regarding the person as a threat to national security have to be ensured. It is also pertinent to note that the regional refugee instruments and International human rights law do not consider any exception of any sort to the principle of non refoulement.

Extradition of Refugees and Asylum Seekers

Right to Asylum as provided for in Article 14 of Universal Declaration of Human Rights is a historic right. France was the first country which recognized the right to asylum in its constitution. Many countries like Switzerland and Brazil have express provisions in their laws for non-extradition of  refugees. For individuals seeking asylum the usual course adopted is to suspend the extradition process till asylum application is disposed of. In some countries, extradition and asylum are conducted either independently or parallelly. Sometimes, information revealed during extradition process may affect the request of an asylum seeker or refugee status of an individual bringing  him within the exclusionary clause of Article 1F of the 1951 Convention which provides that:

The provisions of this Convention shall not apply to any person with respect to  whom there are  serious reasons for considering that:

( a ) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Thus, such information may lead to revocation or cancellation of  refugee status of the individual concerned.

Some other aspects which are considered while making extradition decisions are as follows:

  • Human Rights’ bar to extradition: A person is in no case to be extradited to a state where there is a danger to his life and liberty or where he would be subjected to torture, cruel or inhumane treatment.
  • Discrimination clauses: It applies to refugees, asylum seekers and persons who are excluded from refugee protection under the 1951 Convention. The discrimination clauses added in extradition instruments provide for non extradition when there is a danger of prejudice at trial or when there are reasons to believe that extradition is sought with discriminatory motive or to convict for a political offence.
  • Justice and fairness: Extradition is to be refused if persons to be extradited will not get a just and fair trial in the requested country. Asylum is not to be granted to person accused of war crimes, crimes against humanity like genocide. Every state is under an obligation to prosecute, punish and extradite such persons.
  • Principle of  Non-Enquiry should not be blindly adhered to: Principle of non-enquiry envisages extradition on basis of extradition agreements without assessing the motive for extradition request or the quality of justice in the requesting country. This traditional principle must not be blindly adhered to and this practice of irregular extradition must be given up all together.

What Procedure Should be Followed?

Different countries follow different extradition procedures and the process of decision making also vary among different countries. It is very difficult to come up with a uniform procedure given the various systems of law and justice prevailing in different countries. However, some procedural safeguards must be in place to avoid the negative interplay between asylum and extradition so as to limit the safeguards available to asylum seekers during determination of their refugee status which are as follows:

  1. The question of granting asylum must be decided prior to decision on extradition – Extradition proceedings should not be ordered while the asylum proceedings are pending including appeal or revision. Whether the person sought to be extradited is at risk of persecution in the requesting country must be assessed as a matter of priority before proceeding to examine the extradition request.
  2. Examination of asylum claim and extradition request must be done separately – Asylum requests are in one way or another considered in extradition proceedings. Extradition authorities are not experienced in matters of asylum which must be undertaken separately by authorities having expert knowledge in the field. The consideration of asylum related requests in extradition proceeding can in no way become a substitute for asylum procedure. The asylum seeker has a right to have access to a fair and separate mechanism where his claim is to be examined.
  3. Submission of asylum application subsequent to  extradition request is not sufficient to reject or declare the application as inadmissible – Sometimes it is only after an extradition request is made that a person realizes the fear of persecution he may have to face in the in the requesting country. So, the application of asylum made after the extradition request is not to be viewed with suspicious eyes from the outset.
  4. Confidentiality – The fact that the individual has applied for asylum or his refugee status must not be revealed to the requesting state unless the individual concerned gives his consent.

The effect of Interpol Red-Notices

Interpol refers to International Criminal Police Organization which was established in 1923 to promote international cooperation between police authorities and to ensure safety of humans all over the world. Interpol red-notice is an international “wanted” notice issued for arrest of fugitives accused in a criminal case. Refugees who are arrested on basis of these notices while they are in a country other than the country of asylum often find themselves in a very difficult situation. To resolve such issue the state in which refugee is arrested must consult with the country of asylum and other countries, if any, who have refused extradition request of the person concerned on past  occasions. Interpol does not intervenes in activities of political, military, religious or racial character[4].

Indian Position

The Indian Extradition Act of 1962 is the national legislation dealing with extradition in India. Presently, India has extradition treaties with 43 countries and extradition arrangements with 11 countries. India is not a party to the 1951 Refugee Convention but it recognizes territorial asylum. For example, in 1959 India granted territorial asylum to the Dalai Lama and his followers. However, India does not recognize the grant of extra-territorial asylum.

Conclusion

It can be observed that it is not possible to put extradition and asylum into two watertight compartments as both, while interdependent, overlap each other. States, while considering questions of extradition and asylum, must balance the need for protection of human rights of an individual on one hand and the need to suppress transnational crimes on the other.


[1] UNHCR Research Paper on “The Interface between Extradition and Asylum” November 2003

[2] 1967 Protocol Relating to Status of Refugees

[3] UNHCR Research Paper on “The Interface between Extradition and Asylum” November 2003

[4] Article 3 of the Constitution of Interpol

Nidhi Bajaj from Guru Nanak Dev University, Punjab


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