“EXTDRADITION LAWS AS CUSTOMARY INTERNATIONAL LAW,

PAKISTAN SHOULD HANDOVER DAWOOD IBRAHIM & MASOOD

AZHAR TO INDIA”

Rustam Singh Thakur1

SYNOPSIS

As movement about the world becomes easier and crime takes on a Larger international
dimension, it is increasingly in the interests of all nations that suspected offenders who flee
abroad should be brought to justice. Conversely, the establishment of safe havens for
fugitives would not only result in danger for the state obliged to harbor the protected person
but also tend to undermine the foundations of extradition. In the current scenario, where
terrorism has set itself deep rooted globally, it is not sufficient to merely locate and identify
suspected terrorists. At this stage, it is imperative on all nations to demonstrate the will to
help in the fight against terrorism. This can be done only by handing over the wanted persons
who could be made to face fair trial and answer for the consequences of their action.

A PROLEGOMENON.

The term „Extradition‟ originates from the Latin words „ex‟ and „tradium‟. In the most
common application, „Extradition‟ means, „surrender of criminals‟, „delivery of fugitives‟ or
„handover of fugitives‟. Extradition may be defined as „surrender of an accused or a
convicted person by the State on whose territory he is found to the State on whose territory he
is alleged to have committed, or to have been convicted of a crime‟

Extradition has been defined by Oppenheim as "the delivery of an accused or a convicted

individual to the State on whose territory he is alleged to have committed, or to have been
convicted of, a crime by the State on whose territory the alleged criminal happens for the
time to be."2 The right to demand extradition and the duty to surrender an alleged criminal to
the demanding State is created by a treaty.

1
3rd year student, B.A LLB (Hons.), Hidayatullah National Law University, Raipur(C.G). The author may be
contacted via e-mail at rustam.hnlu@gmail.com.
2
Oppenheim, International Law 645-46 (H. Lauterpacht ed. 7th ed. 1948)

Electronic copy available at: http://ssrn.com/abstract=1955439

Law of extradition is a dual law i.e. consisting of and operational in national and international
law. The question of extradition is decided by the national courts but on the basis of
international commitments as well as the rules of international law relating to the subject.

THE NEED FOR EXTRADITION

In the context of organized and transnational crime, the increased recognition of this an
enhanced role for extradition is emerging in a body of multilateral and bilateral treaties
containing extradition provisions. In 1985, the Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders urged Member States to increase their
activity at the international level to combat organized crime.

“International law does not recognize right of extradition apart from a treaty. While a
government may, if agreeable to its own Constitution and laws voluntarily exercise the power
to surrender a fugitive from justice to the country from which he has fled, and it has been said
that it is under a moral duty to do so…the legal duty to demand his extradition and the
correlative duty to surrender him to the demanding country exist only when created by
treaty.”3

Extradition is a positive step towards suppression of crimes. Extradition acts as a warning to

the criminals that they cannot escape punishment by fleeing to another State. Criminals are
surrendered as it safeguards the interest of the territorial State. Extradition is based on
reciprocity. Extradition is done because it is a step towards the achievement of international
co-operation in solving international problems of social character4.

The absence of a uniform code on the principles that govern the extradition of fugitives and
criminals, have led to many problems wherein the authorities have had to face challenges in
obtaining custody of criminals who had run away from the country. One of such prime
example is that of Gangster Abu Salem, who was captured by the Portuguese Police. The

3
Factor v. Labubenheimer3, the Supreme Court of USA
4
Article 1, Para 3 UN Charter

Electronic copy available at: http://ssrn.com/abstract=1955439

Indian authorities claimed the custody of Abu Salem, which was retarded due to the lack of
consensus among the both sides in the absence of any law on extradition5.

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 unpunished6.

Traditionally, extradition law is based on treaties. Two states typically agree in a bilateral
treaty to surrender to each other fugitives charged with any offences considered extraditable
under the agreement. A state seeking extradition of a fugitive (the requesting state) addresses
its requests to the government of the state where the fugitive is present (the requested state),
and the government invariably acts upon these requests.

DAWOOD IBRAHIM

Dawood Ibrahim, is the head of the organized crime syndicate D-Company in Mumbai. He is
currently on the wanted list of Interpol for organised crime and counterfeiting. He was No. 4
on the Forbes' World's Top 10 most dreaded criminals list of 2008. Dawood Ibrahim is
accused of heading a vast and sprawling illegal empire. After the 1993 Bombay bombings,
which Ibrahim allegedly organized and financed, he became India's most wanted man.

Pakistan denies any knowledge of his existence, Indian intelligence agencies, such
as Research and Analysis Wing (R&AW), believe that one of his addresses includes White
House, Near Saudi Mosque, Clifton, Karachi, Pakistan as per Interpol, and is provided
protection, by Pakistani intelligence agency, the Inter Services Intelligence (ISI). The issue of
extradition of Dawood Ibrahim is one of the major hurdles in the frosty relations between
India and Pakistan.

5
http://in.rediff.com/news/salem05.html (on 12th,nov 2009)
6
United Nations Convention on Suppression of Terrorism of 2000.
MASOOD ANWAR

In early 1994, India arrested him in February and imprisoned him for his terrorist activities
with the groups. In 1995 foreign tourists were kidnapped in Jammu and Kashmir. The
kidnappers, referring to them as Al-Faran, included the release of Masood Azhar among their
demands. In December 1999, he was freed by the Indian government in exchange for
passengers on the hijacked Indian Airlines Flight 814 (IC814) that had eventually landed
in Kandahar, Afghanistan, which at the time the Taliban controlled.The hijackers of IC814
were led by Masood Azhar's brother, Ibrahim Athar. Once Masood Azhar was handed over to
the hijackers, they fled to Pakistani territory despite the fact that islamabad had earlier stated
that any of the hijackers would be arrested at the border. The Pakistani government also
previously indicated that Azhar would be allowed to return home since he did not face any
charges there..

MITIGATION STRATEGIES.

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. 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., 19737 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.

"It is not sufficient to merely locate and identify suspected terrorists. At this stage, it is
imperative on all nations to demonstrate the will to help in the fight against terrorism. This

7
Criminal manual 1973,universal law publishing co.
can be done only by handing over the wanted persons who could be made to face fair trial
and answer for the consequences of their action”

INTERNATIONAL OBLIGATIONS AND DIFFICULTIES

There is no extradition treaty between India and Pakistan. The absence of such a treaty
certainly creates legal difficulties. Therefore this becomes an area where political
considerations play a prominent role, unless there is an applicable bilateral extradition treaty.

Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction
should be extradited to another country that requests extradition. It can, if it wants to, take
that decision without any treaty obligations whatsoever, even by exercise of executive
discretion. Where there is a bilateral extradition treaty, the states party to it normally goes by
its terms.

The process of extradition usually involves interposition of the Judiciary in both countries,
and this has permitted the emergence of some discernible principles of international law
governing extradition.

CONCLUDING REMARKS

The lack of extradition treaty and lack of evidence are the two important issues of great
concern which has been pointed out by the intelligentsia of both the nations, There has been
11 futile attempts made with Pakistan to conclude an extradition treaty. “The Indian
government should try to persuade Pakistan to develop a cooperative relationship with India.
A treaty between both the nations will promote good neighbourly relations between the
nations. The two above mentioned criminal should be surrendered to India as they have been
found guilty in various cases in India.

As the question of surrendering an alleged criminal to the demanding State always involves
the question of human rights, therefore the essence of maintaining the sanctity of the
agreement (that Dawood Ibrahim and Masood Anwar shall not be awarded death penalty)
shall be attributed to the concept of human rights involved in extradition laws, which lays
emphasis on the law of the country in which the offender seems to be at the time of
extradition.
In spite of Pakistan's reluctance to improve relations, India's endeavour would be to continue
to impress upon Pakistan to have good neighbourly relations.