Extradition
Extradition is the
process by which one country or state transfer a person who is wanted for a
crime by another country or state. In other words, it is the legal process of
surrendering an individual who has been accused or convicted of a crime, to the
authorities of another country or state, where they are required to face trial
or serve a sentence.
Extradition is
typically governed by treaties between countries which outline the legal
procedures that must be followed in order for a person to be extradited. These
procedures often involve a formal request from one country to another along
with documentation supporting the charges and evidence of the accused person’s
identity.
Extradition can be a
complex legal process, as it involves the cooperation of multiple legal system
and the protection of the individual’s rights. Some countries have extradition
agreements with many other nations while others have only a few and some countries
do not extradite people at all.
According to J. C.
Starke, The term 'extradition' denotes the process whereby under treaty or upon
a basis of reciprocity one state surrender to another state at its request a
person accused or convicted of criminal offences committed against the law of
requesting state. And according to Oppenheim, Extradition is the delivery of an
accused of or has been convicted of a crime, by the state whose territory he
(the alleged) happens to be for the time being.
Generally, extradition
is the surrender of a person by one state to another, the person being accused
of a crime in the requesting state. The general desire of all state is to
ensure that serious crimes do not go unpunished. A state in whose territory a
criminal has taken refuge cannot prosecute or punish him properly because of
some technical rule of criminal law or lack of jurisdiction. Therefore
international law accepts that the offender must be punished by the state where
he/she committed crime against the law, for this he/she must be surrendered to
the requested state for punishment. The necessity of extradition is due to – a
desire that no crime should go unpunished, - it would be better if the criminal
is punished where he committed the crime.
Though, general
principles are in exercise but without some formal authority either by treaty
or by statute fugitive offenders would not be surrendered nor would their
surrender be requested. There is no obligation to surrender or not to surrender
of the fugitive offenders at IL. Two contrary statements are seen that there is
no duty to extradite in the absence of a treaty and on the other hand, there is
no rule of international law which prevents states from extraditing in the
absence of treaty. So extradition is called as imperfect obligation. In
the absence of the treaty extradition depends upon reciprocity or courtesy and
the surrender of the fugitive offender is demanded through diplomatic channel.
Following offences
shall not be considered as political offences: Genocide, crimes against
humanity, war crime, violent crime, manslaughter, malicious wounding,
kidnapping, abduction, unlawful detention, hijacking, bombing, use of explosive
and destructive device, anarchist and terrorist acts.
Asylum is a legal
status that is granted to a person who has fled their home country due to a
well-founded fear of persecution, violence or discrimination based on their
race, religion, nationality, political opinion or membership in a particular
social group. It is a form of protection granted by a country to individuals
who cannot safely return to their home country.
In order to be granted
asylum, an individual must apply for it in the country they have fled to and demonstrate
that they meet the legal criteria for refugee status. The asylum process can be
lengthy and complex and may involve interviews, background checks, medical
examinations and other assessments to determine the credibility of the
applicant’s also lead to permanent residence or citizenship in some cases.
The right to asylum was recognized as the principle
of international law by UDHR (Universal Declaration of Human Rights) in 1948. In
its article-14 it is stated that everyone has a right to seek and enjoy the
asylum in other countries to be safe from persecution. But that does not mean
any state is obliged to grant asylum. In other words, there is no binding
treaty or convention in international law which obliges a state to provide
asylum at the request of an individual. Likewise, according to article-3
everyone has the right to life, liberty and security of person. Article-5
states no one shall be subjected to torture or to cruel inhuman or degrading
treatment or punishment. According to article-6 everyone has the right to
recognition everywhere as a person before the law. Article-13 (i) everyone has
the right to freedom of movement and residence within the borders of each state.
(ii) everyone has the right to leave any country including his own and to
return to his country.
Thus, these provisions of UDHR for an individual
help to seek asylum while he/she feels unsecure by his home state. Only the
seeking for asylum is individual's right but not the right to get it. Asylum
depends only on the will of the state that have been acquired through its
sovereignty.
There are following
types of asylum
(i)
Territorial Asylum:
When asylum is granted
by a state on its territory is called territorial asylum. It has a long history
and is widely practiced form of asylum. Generally, every state has the right to
provide territorial asylum but for this, the states must strictly follow the
international obligation to extradite person involving particular types of
crimes.
Political
asylum: (serious, non-political crime)
No
any institution exists so far in international law for asylum because any
political asylee has no legal right in international law to enjoy asylum. Only
international right belongs to the state to provide asylum. eg. Dalai Lama, Tek
Nath Rijal. The individual so far is not granted by international law the
enforceable right to asylum. There is no any binding convention to grant
asylum. Thus, asylum is discretionary right of a state decided on the basis of
their municipal law, practices and and policies. Hence, the fugitive has the right
of asylum is inaccurate, though a political fugitive is no extradited on the
basis of the state's acceptance.
Refugee
asylum:
Refugees
are those who are outside their country of origin or habitual residence because
they have suffered persecution on account of race, religion, nationality,
political opinion or because they are member of persecuted social group. In
other words, refugees are those persons who have left their country because
their lives, security or freedom have been threatened by generalized violence,
foreign aggression, internal conflict, massive violation of human rights or
other circumstances which have seriously disturbed public order, or those
persons who are compelled to leave their habitual residence with well-founded
fear and seeking refuge in another countries are refugees. Their asylum in
another country is refugee asylum.
General
asylum:
Those
persons who have fled from their country to seek economic betterment and other
opportunities that are not in their home land and don't have the status of
immigration can seek asylum in another country that is called general asylum.
(ii)
Extra-territorial Asylum:
When
asylum is granted by a state with the areas of its jurisdiction but outside its
territorial boundaries is called extra-territorial asylum. Diplomatic mission,
consular premise, warship/governmental vessels, international institutions etc.
are its examples.
Diplomatic
missions:
According
to Vienna conventions on diplomatic relation 1961 diplomatic missions are
enjoying certain immunities and privileges. Therefore receiving state has no
authority to interfere the inside of mission so that diplomatic missions are
safe place for asylum. Temporary protection to persons who are in danger from
mob violence or is in risk due to political offence in the local state is
called diplomatic mission asylum.
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