NDIA is pressing Pakistan hard I

to extradite the persons allegedly behind the Mumbai carnage of November 2008. New Delhi has also presented Islamabad “evidence” in support of the involvement of the accused in the dastardly incident. The Indian demand for extradition has two aspects legal and political. We begin with the legal aspect.

Extradition refers to handing over by one state to another of a person charged with or convicted of committing or abetting an offence in the territory of the latter. The basis of extradition is the apprehension that domestic or international peace and order may be endangered if an accused or convict is not brought to justice due to the inability of one state to exercise its jurisdiction within the territory of another state. Since extradition involves relations between two states, it brings into application international law.

The obligations and rights created by international law stem essentially either from treaties or customs. Treaties are binding only on states which are parties to them. Hence, a state is neither under an obligation to give effect to the provisions of a treaty nor entitled to claim that another state acts similarly if it has not adhered to that treaty. On the other hand, customary rules of international law generally practised in inter-state relations are widely believed to be binding on all states. For instance, rights, duties and immunities of diplomats originated in customs before they were codified in the Vienna Convention of Diplomatic Relations, 1961 and even today several matters relating to foreign diplomats are governed by the customary rules.

It follows that if extradition is governed by customs, a state will be under the obligation to hand over the persons wanted by another state whether or not the two states have an extradition treaty. However, if it is the other way round, the obligation to extradite will arise only in the presence of an extradition treaty between the states. The fact is that states generally do not accede to extradition requests in the absence of a treaty to that effect. This means that international law does not create a general extradition obligation on a state. Rather the obligation arises only if the two states have an extradition treaty.

Thus, the legal basis of extradition is treaty rather than customs. In such an event, no state is entitled to have an extradition claim on another if the two do not have a bilateral treaty. However, this does not mean that in the absence of a treaty, extradition is not possible. A state, subject to its laws and for reasons of political expediency, may accede to the request for extradition from another state. But in that case, extradition will be a matter of expediency or goodwill rather than a legally binding obligation.

Thus, the extradition regime of a state consists of treaty obligations and domestic laws. These together define under what conditions accused or convict wanted by another state will be handed over. Generally, extradition of persons implicated in political crimes is not allowed.

In Pakistan, extradition is governed by the Extradition Act, 1972 (as amended). The Act applies both to a state with which Pakistan has an extradition treaty (the treaty state) and a state with which there is no such treaty (non-treaty state). Extradition is defined as an act the commission or omission of which constitutes an offence specified in the Act occurring within the jurisdiction of Pakistan and also deemed to be an offence against domestic laws. The list of extradition offences is fairly long including culpable homicide, arson, abduction, drug trafficking, illicit dealings in arms and piracy — to give a few examples. Abetment to any of the listed offences also constitutes an extradition offence. The list of extradition offences or any other part of the Act may be modified to give effect to extradition treaty with another state. The federal government is also competent to extend the provisions of the Act to a non-treaty state if it deems it 'expedient' that a person charged with or guilty of an extradition offence should be handed over to that state.

Under the Act, on a requisition for extradition from another state, the federal government may depute a judicial officer to inquire into the extradition offence. If the inquiry concludes that no prima facie case has been made in support of the requisition, he shall discharge the accused. Conversely, if the inquiry report confirms a prima facie case against the accused, he may be extradited to the requisitioning state if the federal government deems it fit.

Pakistan has concluded extradition treaties with several countries, which do not include India. In the absence of a bilateral extradition treaty, Pakistan is under no legal obligation to extradite persons wanted by India. However, the absence of an agreement in itself does not rule out the extradition either.

India also claims that under the SAARC Regional Convention on Suppression of Terrorism, 1987, Pakistan has the obligation to extradite the alleged masterminds of the Mumbai attacks. Is it so? Under Article III, in the absence of an extradition treaty between two parties, the Convention may serve as the basis of extradition. However, this is subject to the willingness or laws of the state to which an extradition request is made. Article VI provides that on receiving a request for extradition, a contracting state shall take appropriate measures for extradition or prosecution of the accused, again subject to its domestic laws.

Under Article IV, the state receiving an extradition request is required to submit the case to its 'competent authorities', which means initiating an inquiry into the matter. Article VII exempts a contracting state from any obligation to extradite an accused if it is of the opinion that the request for surrender is mala fide or it will be unjust or inexpedient to accede to the request. Article VIII makes it obligatory on contracting states to provide one another “the greatest measure of mutual assistance” in respect of extradition offences' proceedings.

It follows that under the SAARC Convention as well, it is not mandatory for Pakistan to extradite persons wanted by India. All that is mandatory for Pakistan is to prosecute the accused as per its domestic laws.

In the absence of a legal obligation on Pakistan to surrender the persons allegedly involved in Mumbai killings to India, the extradition decision will essentially be a political one. Islamabad's stand so far has been that it will track down the culprits and bring them to justice once New Delhi shares evidence; however, it will not extradite them, as there is no extradition agreement between the two countries. India has already shared what it calls compelling evidence regarding the involvement of Pakistan-based militants in the Mumbai incident. Admission by the authorities that Ajmal Kasab, the only surivor among Mumbai attackers, is a Pakistani national prima facie strengthens Indian claim about the involvement of Pakistanis in the killings.

In the past, persons wanted by the USA were handed over to that country. However, the US example can be misleading for more than one reason. In the first place, Pakistan and the USA have an extradition treaty, while India and Pakistan have no such agreement. As mentioned in a preceding paragraph, extraditing persons wanted by a treaty state is an obligation, while those demanded by a non-treaty state is merely an option, which is exercised one way or the other subject to political expediency.

In the second place, while India is speaking the language of the US, the political weight of Washington is much heavier than that of New Delhi and the former can dictate things in a manner which the latter can only dream of. It is quite conceivable that Pakistan might

have extradited the accused to the USA even if the two countries did not have an extradition agreement.

In the third place, popular sentiments involved in Pak-India relations make extradition politically a very difficult decision for a democratically elected government. If the government accedes to India's request to surrender the alleged masterminds of the Mumbai incident in the absence of an extradition treaty between the two countries, it will have to face an exceedingly strong reaction domestically at a time when it is already under fire due to terrorism campaign in the north-western part of the country, poor state of the economy and the energy crisis. Hence, political expediency does not make a strong case for extradition of the Mumbai accused to India.

The West, particularly the US, shares the Indian perception that Pakistani citizens or residents masterminded the Mumbai killings and wants it to crackdown on them and bring them to justice. This is corroborated by the Security Council Resolution of December 10, 2008 which outlawed Jamaat-ud-Dawa, an offshoot of Lashkar-i-Taiba whom India holds responsible for the Mumbai killings and which was banned by Pakistan in 2002. In compliance with the SC resolution, Pakistan's security forces launched a crackdown on the Jamaat. It will be unfortunate, however, if the West does not appreciate the potential political problems in extraditing the culprits and pushes Pakistan hard for their surrender to India.

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