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India-Pakistan Extraditions After the Mumbai Attacks
India-Pakistan Extraditions After the Mumbai Attacks

JURIST Special Guest Columnist Materneau Chrispin, PhD candidate in International Law at the University of Lausanne, Switzerland, says that Pakistan's refusal to extradite two of its citizens to India where they are wanted in connection with the November terrorist attacks on hotels in Mumbai may be valid under international law if Pakistan commits to prosecuting them itself….

Tensions have been brewing between India and Pakistan following the murderous terrorist attacks that took place in Mumbai on November 26-29, 2008. The situation has escalated lately due to a demand put forward by India that Pakistan extradite or otherwise deliver two of its nationals suspected of involvement in those attacks. Pakistan has been refusing to give in to India’s demand, claiming its right to have the alleged terrorists tried by its own courts. While India’s demand is understandable, Pakistan’s refusal is not lacking legitimacy under pertinent international law rules that govern the subject of extradition.

Indeed, the crux of the matter is whether there exists an absolute obligation under international law binding the requested State to defer to an extradition demand that has been put to it by a requesting State. In other words, does the requested State have an unconditional duty to extradite upon a request to do so? The obligation to extradite under international law is generally construed in accordance with the principle aut dedere aut judicare (extradite or prosecute). The latter means that any State facing an extradition request is obligated either to acquiesce to it or to institute criminal proceedings against the individual(s) whose extradition is sought.

This principle is contained in various international instruments on the matter of extradition or cooperation for the fight against terrorism. Many are binding on both India and Pakistan. This is the case of some important conventions in the field of terrorism such as the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973 (article 3.2); the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979 (article 5.2); the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997 (article 6.4) or the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999 (article 7.4. Pakistan is not party to this convention).

Some similar regional instruments feature the same reference to the aut dedere aut judicare principle. Among them, the SAARC Regional Convention on Suppression of Terrorism, signed in Kathmandu, Nepal on November 4, 1987, is of particular relevance (particularly its article IV). It was drafted in the framework of the South Asian Association for Regional Cooperation, in which India and Pakistan are members and is thus binding on both countries.

Equally, several of the core resolutions adopted by the UN Security Council in the fight against terrorism also make explicit references to the aut dedere aut judicare principle while laying out the main obligations of States to combat terrorist activities. This is true for Resolution 1456 (2003) of January 20, 2003 or Resolution 1624 of September 14, 2005. Thus it can be contended that this principle is well grounded in international law and should be the starting point in any legal analysis of this issue. However, its exact status remains a topic of debate among scholars. Some contend that it has achieved the status of customary international law and can even be regarded as a jus cogens norm (Bassiouni, for instance holds such view), while others are reluctant to go that far and consider the principle as being only one of the general principles of international law.

One of the questions scholars have concerned themselves with as regards the nature and scope of this principle, revolves around the issue whether the two elements of the principle are distinct, separate (dedere on the one side and judicare on the other) or are to be construed as an alternative, whereby it is the unwillingness to perform one (dedere) that triggers the other (judicare). The other issue has been to determine whether some form of hierarchy exists between the two. Although the debate is still open on these issues, as reflected, among others, in the Second Report of Mr. Zdzislaw Galicki, Special Rapporteur of the International Law Commission (ILC) on the aut dedere aut judicare principle, submitted to the Commission at its 2945th to 2947th meetings, from 31 July to 3 August 2007, it is safe to affirm that no authoritative basis can be invoked in current international law to substantiate a claim of primacy of one of the two elements of the principle.

Against this background, Pakistan would be right to assert that it has no obligation to extradite the requested individuals to India if it commits itself to prosecute them in its own criminal jurisdictions. This position is even reinforced by the fact that the alleged terrorists whose extradition is requested by India are nationals of Pakistan. Indeed, some international instruments as well as state practice in this field show that the fact that the individuals to be extradited are nationals of the custodial State can be a legitimate ground to refuse extradition.

If the standoff between the two countries is analyzed from the perspective of the legal bases for States to claim jurisdiction over certain crimes and their perpetrators, the conclusions are not substantially different. There exist four bases for claiming jurisdiction: the active and the passive personality principles, the principle of territoriality and finally the principle of universal jurisdiction. India has a clearly lawful claim of jurisdiction under the passive personality principle, since most of the victims of the terrorist attacks were Indians nationals. Pakistan, conversely, has a similar lawful claim under the active personality principle, because the alleged perpetrators sought by India are its nationals. Since there is once again no hierarchy between these two principles, Pakistan seems to hold a slight advantage for it has custody of the presumed criminals.

Under the principle of territoriality, the situation remains ambiguous. Indeed the latter principle can be invoked not only by the State on the territory of which the crime effectively took place, but also by a State where such crime has been planned and organized. Thus both India and Pakistan could claim jurisdiction over the crime(s). Again, Pakistan can argue an additional right flowing from the fact that the alleged perpetrators are also presumed to be members of terrorist groups or organizations based on its territory. Moreover, the planning and organization of those attacks against India are criminal offences of their own under Pakistani law, which would give an additional title to Pakistan to exercise its jurisdiction over those acts and the terrorist attacks in Mumbai.

One way for India to solidify its claim would be to show conclusive evidence that Pakistan would be unable to effectively prosecute the crimes, because its judicial system does not offer the minimal guarantees required by the rule of law. However considering that Pakistan has consistently handled criminal proceedings a
gainst terrorist groups and activities, it would not be easy for India to build an overwhelming case resting on such argument.

Materneau Chrispin is a PhD candidate in International Law at the University of Lausanne, Switzerland

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