Extradition

What is Extradition?

The term Extradition is derived from two Latin terms ex and traditum which ordinarily is interpreted to mean the surrender of fugitives.

Oppenheim defines extradition as “delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time”.

Extradition is the official transfer or delivery of a person from one country (territorial state) to another (requesting state) so that the formal authority over the person shifts to the country where the person is transferred. The person who is transferred is either someone who is accused of a crime or a convicted criminal in the country to which he is being delivered. The crime for which the person is being transferred should also be a crime under the law of the country that is transferring the person. A country can request another country to extradite a person so that the requesting country can appropriately deal with his crimes. An extradition request for an accused can be initiated in the case of under-investigation, under-trial, and convicted criminals. It is an essential tool for international cooperation in combating transnational crime and ensuring that offenders cannot evade justice by crossing national borders.

Extradition as defined in legal instruments

The United Nations Model Treaty on Extradition (1990, amended 1997) defines extradition under Article 1 as, “Extradition shall be understood as the surrender of any person who is sought by the requesting State for criminal prosecution or the imposition or enforcement of a sentence for an extraditable offence.”

The United Nations Convention on Transnational Organised Crime, 2000 includes obligations on extradition with regards to organised crime and corruption offences and provides that the organised crime covered by the Convention shall be deemed to be an extraditable offence in any extradition treaty between State Parties. If no treaty exists, a State Party may use UNTOC as a legal basis for extradition.

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) includes obligations on extradition concerning drug trafficking and related offences. It provides that the drug-related crimes covered by the Convention shall be deemed to be extraditable offences in any extradition treaty between State Parties. If no treaty exists, a State Party may use the Convention as a legal basis for extradition, subject to the conditions set out in its domestic law.

The 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions provides that “Bribery of a foreign public official shall be deemed to be included as an extraditable offence under the laws of the Parties and the extradition treaties between them”. Furthermore it provides that, if no treaty exists for extradition, a State Party may use the Convention as a legal basis for extradition, in respect of the offence of bribery of a foreign public official.

Such similar extradition provisions are also found at the regional level such as in the European Convention on Extradition (1957) which includes obligations on extradition for a wide range of criminal offences. It provides that extraditable offences are those punishable by at least one year of imprisonment under the laws of both the requesting and requested State Parties or the Inter-American Convention on Extradition (1981) which includes obligations on extradition for criminal offences punishable by at least two years of imprisonment under the laws of both the requesting and requested State Parties. These conventions provides that offences covered by the Convention shall be deemed extraditable in any extradition treaty between State Parties and that the Conventions serves as a legal basis for extradition between State Parties, even in the absence of a bilateral treaty, subject to the conditions set out in domestic law, including grounds for refusal such as political offences and nationality exceptions. Similarly, the European Convention on the Suppression of Terrorism (1977) includes obligations on extradition concerning terrorist offences. It provides that offences listed in the Convention shall not be regarded as political offences, thereby ensuring that they are deemed extraditable in any extradition treaty between State Parties. If no treaty exists, a State Party may use the Convention as a legal basis for extradition, subject to the conditions set out in its domestic law.

Types of Extradition Treaties and Agreements

Extradition is governed by bilateral or multilateral treaties between states. These agreements outline the terms, conditions, and procedures for extradition. In the absence of a treaty, extradition may still occur based on principles of reciprocity, but this depends on the domestic laws of the requested state. Some key international agreements that regulate and govern extradition include:

• The European Convention on Extradition, 1957: This Convention is a multilateral treaty between Council of Europe member states that outlines the legal framework for extraditing individuals accused of crimes between participating countries, requiring them to surrender individuals wanted for prosecution or to serve a sentence if they are found within their jurisdiction. The Convention seeks to facilitate the extradition process between European nations by establishing common rules and procedures for requesting and surrendering individuals accused of crimes. Unlike many older extradition treaties that exclude tax-related crimes, the 1975 Additional Protocol to the European Convention on Extradition (1957) explicitly includes tax, customs, and fiscal offences (e.g., tax fraud, smuggling).

• The United Nations Convention Against Transnational Organized Crime, 2000: This Convention allows countries to work together to extradite offenders. The UNTOC is a legally binding treaty that provides a framework for countries to cooperate on a range of criminal activities, including extradition. This Convention states that any offence included in the Convention is ‘deemed to be included as an extraditable offence in any extradition treaty between State Parties’. Article 16(3) of the Convention further permits the Convention itself to be used to facilitate extradition in the absence of a treaty. Ensures extradition for crimes linked to organized crime, including, money laundering, corruption of public officials, human trafficking & migrant smuggling, participation in an organized criminal group (even without direct commission of a crime). States must recognize these offences as extraditable, even if they are not listed in pre-existing bilateral treaties.

In international law, it is not mandatory or obligatory for states to surrender alleged fugitives to foreign states, owing to the principle of sovereignty. This lack of international obligation gave way to the creation of the web of extradition treaties that exists in the international landscape currently. In the absence of a treaty, however, a state may issue a request for the extradition of an individual in line with the state’s domestic laws and procedures.

Official Databases for Extradition

Extradition cases and requests issued for extradition are often recorded in national and international databases which compile extradition requests and completed extraditions. These serve as key tools for law enforcement agencies, legal authorities, and international organizations to coordinate their efforts in cross-border criminal justice efforts:

• Interpol Red Notices: Issued by the Interpol - International Criminal Police, it alerts member states about individuals wanted for extradition. A Red Notice is essentially an alert or signal that a person may be subject to an extradition request or have committed extraditable offences. In the case of Carlos Ghosn, the former Nissan CEO who had allegations of financial misconduct mounted against him and escaped to Lebanon, was extradited to Japan. Although Japan and Lebanon did not have an extradition agreement, both Japan and Lebanon are members of Interpol and Interpol had issued a Red Notice for his arrest.
• Schengen Information System: The Schengen Information System (SIS II) which is issued by the European Union (EU) tracks individuals who are subject to be extradited within the Schengen Zone. The system is utilised by EU member states to coordinate arrest efforts and facilitate surrender under the European Arrest Warrant (EAW) Framework.
• United Nations Sanctions List: The List which is issued by the United Nations Security Council (UNSC), lists individuals who are wanted for crimes under international law such as war crimes or crimes of aggression. This is usually used as part of enforcement actions by international criminal tribunals.
• National Extradition Registers: Countries maintain their registers and databases for tracking extradition cases. The US Department of Justice maintains fugitive extradition records whereas in India the Central Bureau of Investigation (CBI) Interpol Wing manages notices relating to extradition.

Extradition in India

In India, Extradition is defined as the surrender by one State to another of a person desired to be dealt with for crimes for which he has been accused or convicted and which are justifiable in the Courts of the other States. The extradition of fugitives is done as per the provisions of the Extradition Act, 1962 and as per Extradition Treaty or other Extradition Arrangement or International Conventions signed by India with the country concerned. The Ministry of External Affairs (MEA) is the Central Authority for the requests of extradition. A request for extradition has to be made as per the provisions of the Extradition Act, 1962 and the Treaty with the Contracting State.

India has ratified several international conventions that facilitate extradition, enhancing cooperation in combating transnational crimes. Notably:

• United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)
• United Nations Convention against Transnational Organized Crime (2000)
• United Nations Convention against Corruption (2003)

In addition to these multilateral agreements, India has established bilateral extradition treaties and arrangements with numerous countries. These conventions and treaties collectively enhance India's ability to cooperate internationally in the extradition of individuals involved in serious crimes, reflecting its commitment to global justice and security, apart from its domestic framework.

The Extradition Act, 1962

The Extradition Act, of 1962, provides the legislative basis for the extradition of fugitive criminals in India. The Act applies to requests from both treaty and non-treaty countries, and it defines the procedure and conditions for extradition.

Application of the Act

Section 3 of the Act states that the Central Government may issue a notified order to direct the application of the provisions of the Act to such foreign state as may be specified in the order. The Central Government may also by way of the same, restrict the application of the Act to fugitive criminals that are found or suspected to be in such part of India as specified in the order. In case the order relates to a state with with a treaty pre-exists, then the order shall set out in full the extradition treaty and the Central Government may render the application of this Act subject to any conditions or modification that me deemed necessary for the implementation of the treaty with that State. In case, the State is one, where there is no extradition treaty entered into with India, then the Central Government may treat any Convention to which India and the foreign state are both parties as the extradition treaty to facilitate extradition in respect of the offences specified in that Convention.

Extradition of fugitive criminals to foreign states

Chapter III of the Act deals with extradition to foreign states with extradition arrangements while Chapter II deals with all other cases. In the case of Chapter II, firstly, a requisition for the surrender of such fugitive criminal is made to the Central Government either through diplomatic channels or by communication from the government of the foreign state, and on such requisition being made, the Central Government may issue an order to any Magistrate who possesses the jurisdiction to inquire into the offence, on receipt of which the magistrate shall issue a warrant for the arrest to be made. Once the fugitive criminal is produced before the magistrate, the magistrate shall conduct an inquiry and take evidence as may be produced by both sides for consideration. On consideration, if the Magistrate is of the opinion that prima facie a case cannot be made out, then such person may be discharged and if the Magistrate believes that prima facie a case has been made out in support of the requisition, then such person may be committed to prison to await further orders from the Central Government and the result of the inquiry conducted shall be communicated to the Central Government. Upon receipt of the report and statement of the Magistrate, if the Central Government is of the opinion that the fugitive criminal ought to be extradited, then a warrant is issued for the custody and removal of such person which includes the delivery information and details for surrendering this person to the requesting state.

In the case of application of Chapter III, Section 13 mandates that where a fugitive criminal is found in India, then there is a liability to apprehend and return such person to the foreign state. Such an individual may be apprehended by way of a provisional or endorsed warrant. A provisional warrant is issued by a Magistrate to apprehend a fugitive criminal who is suspected be in India or on their way to India, in such circumstances in which the issue of a warrant is justified according to the Magistrate. An endorsed warrant on the other hand is a warrant issued in any foreign state and such person is suspected to be in India, where the Central Government is satisfied that the warrant was issued by the requisite authority in the prescribed manner and such warrant so endorsed shall be sufficient to apprehend the person named in the warrant.

Surrender or Return of Fugitive Criminals from Foreign States

Chapter IV of the Act deals with the surrender or return of accused or convicted persons from foreign states and states that a person accused or convicted of an extradition offence who is suspected to be in another state can be extradited through a requisition made to the foreign state by the Central Government through diplomatic channels of communication to the government of that state. Section 20 states that such a person extradited by a foreign state may be brought into India and delivered to the proper authority under the warrant of arrest issued in such state or country. Such a person is not to be tried in India for any offence other than:

• The offence on which the extradition was based
• Any lesser offence disclosed by the facts proved for securing the extradition
• The offence in respect of which the foreign state has given its consent

The procedure for making an extradition request is as follows:

• The Investigating Agency or Court makes the Extradition Request as per the suggestive template and guidelines of MEA and forwards it through Head of Department or Ministry or Home Department of concerned State/UT to IS-II Division, MHA which examines the request and coordinates with MEA and other Investigating Agencies.
• The IS-II Division, MHA after preliminary examination of the request may send it back to the concerned Investigating Agency for rectification, or if the request is generally in order, it then forward the same to CPV Division, MEA.
• The CPV Division, MEA after examining the request may send it back to the Investigating Agency concerned, through IS-II Division, MHA, for rectification of deficiencies, or if prima facie finds it to be in order, takes necessary approval of the Competent Authority and forwards such request to the Indian Mission or Embassy of India abroad for onward transmission to the foreign country concerned.

Some important points to be considered while making the Extradition Request is:

• The extraditability of offences as per the Extradition Act, 1962 or any treaties, arrangements or international conventions applicable
• Dual criminality
• Assurances with regards to death penalty, prison conditions, sentence terms, etc
• The offences not being barred by the statute of limitations

Restrictions on Surrender

A fugitive criminal shall not be extradited to a foreign state if:

• The offence based on which extradition is sought is of a political character or that such requisition has been made to punish them for an offence of a political character
• The prosecution for the offence based on which extradition is sought is barred by time
• Any other offence they were accused of in India, other than the extradition offence, for which they are undergoing sentence under any conviction in India
• Until after 15 days from the date of his being committed to prison by the Magistrate

Processing of Extradition Requests by the Central Government

The Ministry of External Affairs (MEA), Government of India, is the Central Authority in Extradition matters, including processing of extradition requests. Within the Ministry of External Affairs, CPV Division is the nodal Division that handles extradition matters. Extradition-related matters are to be addressed to the Joint Secretary (CPV), Ministry of External Affairs, Patiala House Annexe, Tilak Marg, New Delhi – 110001.

Submission of the Extradition Request to a Foreign Country

In general, an extradition request is to be made by the Law Enforcement Agency (LIAs) concerned. The Court may also, in appropriate complaint cases, send an extradition request.

Dossier Submission Process

The originally completed extradition dossier, along with three identical photocopies of the original one and a translated version, where applicable, should be forwarded by the competent authority with the covering letter addressed to Joint Secretary (CPV), MEA for further processing. The copies are to be prepared after signatures and affixing the stamps. Since the Ministry of Home Affairs is the coordinating agency between the law enforcement agencies, the extradition dossier may be routed through the Ministry of Home Affairs for better coordination, in the future, as and when required. A soft copy of the extradition dossier/provisional arrest request may also be forwarded to JS (CPV), MEA (jscpv@mea.gov.in) for quick transmission in urgent cases as the diplomatic bag takes time to reach its destination.

Sending a Provisional Arrest Request

In urgent cases, when it is believed that a fugitive criminal located in a particular jurisdiction may flee that jurisdiction, a request for provisional arrest of the fugitive may be made pending the presentation of the formal extradition request. The provisional arrest request should be sent to JS (CPV), Ministry of External Affairs.

Contents of a Provisional Arrest Request:

Broadly, the following documents are required to be included in a provisional arrest request to be sent to a foreign country:

• A brief statement of the facts of the case, including the time and location of the offence.
• A statement justifying why the request is urgent.
• A copy of the legal provision(s) setting out the offence(s) and the penalty for the offence(s).
• Authenticated copy of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought.
• Physical description of the person, including his nationality, photograph and fingerprints, if available.
• The location of the person sought;
• A statement that if the person is provisionally arrest, India will seek extradition within the stipulated period.

Extradition Dossier Contents:

The extradition dossier should contain the following:

• The extradition request from the LEA/s should be in the form of a self-contained Affidavit by a Senior Officer in charge of the case, not below the rank of Superintendent of Police of the concerned investigating agency. The Affidavit should be sworn before the court of competent jurisdiction. This is in the form of a detailed narrative that provides an overview of the case and the allegations, with due cross-referencing of the evidence and the identity documents, intending to establish a prima facie case against the fugitive before a foreign judge/court.

Note: In cases where the Court concerned is requesting extradition, the request should be prepared in first person, i.e. by the Hon’ble Magistrate Judge himself/ herself. Requests written in the third person, received from Court officials, cannot be processed by the Ministry of External Affairs since such requests are not accepted by the requested countries.

• The template of the Extradition Dossier is attached, and the Affidavit may be modified as appropriate, depending on the facts of each case. The format and template for the same has been provided by the MEA at https://www.mea.gov.in/Images/amb1/Affidavit-template.pdf.

India’s Treaty & Non-Treaty Partners

India has extradition treaties with 48 countries and extradition agreements with 12 others. A treaty establishes mutual obligations, while an agreement may involve cooperation on a case-by-case basis. In the absence of a treaty, India may still extradite individuals under reciprocal arrangements or international cooperation frameworks. There are countries with which India has extradition treaties currently in force and countries with which India has extradition arrangements The treaties signed can be accessed on the website of the Ministry of External Affairs.

Legal framework for Extradition in International Law

Principles governing Extradition

• Double Criminality

One of the most common principles governing extradition is the principle of double or dual criminality which states that the alleged offence for which extradition is requested must be recognised and considered as a criminal offence in both the requesting and requested State. However, with recent developments in extradition law, this principle is applied with increasing flexibility to ensure that the focus is on the conduct or commission of the offence in question despite its technical denomination as an offence within the legal frameworks of the requesting and requested states.

• Principle of Reciprocity

The principle of reciprocity is rooted in various aspects of international law. It states that every act of favour bestowed by a country on the citizens or entities of another country should be reciprocated in the same or similar manner and is a promotion of the expression of international support and cooperation.

• The Rule of Specialty

This has been enshrined within several bilateral and regional extradition agreements, where an extradited person shall not be re-extradited to a third state or subjected to any restriction of personal liberty in the territory of the requesting state for any offence other than the offence on which the extradition request was granted or consented to by the requesting state. This principle governs against prosecutions that may be initiated in the requesting state for political offenses and to protect against the violations of the other principles of extradition.

• Non-extradition of nationals

As per this principle, states are not obliged to surrender their own citizens and this has been enshrined in many countries as constitutional provisions. However, despite this principle, the principle of aut dedere aut judicare places an obligation on states in crimes based on international crimes of an extraterritorial nature, to ensure that these individuals are either prosecuted or extradited.

• Non-discrimination clause

This principle stipulates that the states requesting extradition have no obligation to extradite if there are reasons to believe that the person being extradited may be persecuted in the requesting state on account of gender, race, religion, nationality, ethnic origin, or political opinion.

• Principle of Double Jeopardy

The requested state is not obliged to extradite individuals to the requesting state if such person has already been prosecuted (independently) by its authorities in respect to the offence on which the extradition request is based.

Reasons for Extradition

Generally, a criminal is extradited to the requesting State for reasons such as:

• Suppression of Crime: In case the crime committed cannot be prosecuted in the state where the offender has fled to owing to a lack of jurisdiction or technicalities within their legal framework, criminals are extradited to ensure that the crime committed does not go unpunished.
• Deterrence: The act or process of extradition serves as a warning to caution criminals from the commission of crimes by illustrating merely fleeing the state does not exempt them from punishment or prosecution.
• Safeguarding Domestic Interests: This process is in the interest of the territorial state as a state which has non-extradition policies would become a haven for international criminals and this would create an environment that is detrimental to the larger interests of the territorial state and its citizens.
• Principle of Reciprocity: Extradition is based on reciprocity as a relation is fostered between states where a state that issues an extradition request today may receive the same in the future.
• International Co-operation: As enshrined in Article 1(3) of the UN Charter, extradition also serves to fulfill the aspect of international cooperation in solving international problems.

Exemptions for Extradition

• Political Crimes: Many countries deny extradition requests if the suspect is being sought for the alleged commission of political crimes. These exceptions aim to prevent the misuse of extradition for political purposes or to protect persons from being prosecuted for their political beliefs. India in its extradition treaties with both the US and the UK has listed political offences or offences of a political character as an exception to extradition and has listed out an exhaustive list of offences that are not regarded as offences of a political character including but not limited to murder, manslaughter, causing of explosions, etc.
• Inapplicability of Dual Criminality: If the act on the basis of which extradition is sought by the requesting state is not a crime punishable by a minimum penalty (prescribed either by treaty or legal provisions) in both the requesting and territorial state, then such request fails to fulfill the criterion of dual criminality. It is a requirement in international extradition law that the offence accused of being committed is an offence under domestic law in both state parties involved.
• Certain Punishments/Penalties: Jurisdictions including Australia, Canada, South Africa, the United Kingdom, and some European Nations do not consent to the extradition of a fugitive if a possible sentence that is doled out for the offence is the death penalty, The only exception to this is an assurance from the requesting state that the death sentence will not be passed or carried out. In United States vs. Burns, the Supreme Court of Canada held that extradition to countries that pose the potential of facing the death penalty was a breach of fundamental justice as envisioned under the Canadian Charter of Rights and Freedoms. Similarly, many countries will not extradite if there is a risk of the requested person being subjected to torture, or inhumane treatment. The ECHR as well as the Convention Against Torture provides for torture as a bar to extradition and is generally understood to be a jus cogens norm under international law and therefore can be invoked despite not being explicitly provided for in extradition treaties or agreements.
• Several nations including but not limited to Brazil, France, Germany, Japan, etc have laws in place that prohibit them from extraditing their citizens to other requesting states. Instead, they have mechanisms in place to extend their jurisdiction over crimes that may be committed by their citizens abroad, by way of which they prosecute and penalise their citizens domestically as if the same was done within their own territory.

International Experiences

Extradition Law in other Jurisdictions

The London Scheme for Extradition within the Commonwealth

The London Scheme for Extradition within the Commonwealth is a framework established to facilitate extradition among Commonwealth nations, ensuring streamlined cooperation in surrendering individuals accused or convicted of serious crimes. Under this scheme, extraditable offences are defined broadly to include:

“An extradition offence is an offence however described which is punishable in the requesting and requested country by imprisonment for two years or a greater penalty.”

This definition ensures that dual criminality is maintained, meaning the act must be a crime in both jurisdictions. The London Scheme seeks to promote expedited extradition procedures, reducing delays often encountered under formal treaty-based extradition mechanisms. It provides guidance on legal safeguards, human rights considerations, and procedural requirements while allowing flexibility for member states to uphold their domestic legal principles.

Extradition in the United States: Constitutional Basis and Federal Law

In the United States, extradition operates at both the interstate and international levels. The constitutional foundation for extradition between U.S. states is found in the Extradition Clause of Article IV, Section 2 of the U.S. Constitution, which states:

“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”

This clause establishes a mandatory obligation for states to return fugitives to the jurisdiction where they are accused of committing a crime. The federal statute implementing this provision, 18 U.S.C. § 3182, outlines the procedure for issuing a governor’s warrant, ensuring that states comply with extradition requests.

At the international level, the U.S. engages in extradition through bilateral treaties, negotiated individually with foreign nations. The Department of State oversees the diplomatic aspects, while the Department of Justice ensures compliance with legal requirements. The principle of dual criminality and exceptions such as political offence exemptions and human rights concerns play a significant role in determining whether an individual will be extradited.

Research engaging with famous extradition cases

Extradition has played a crucial role in international law enforcement, with several high-profile cases shaping legal discourse and diplomatic relations. Cases such as Julian Assange’s extradition battle, the extradition of Joaquín "El Chapo" Guzmán to the United States, and the long-standing Roman Polanski case have highlighted the complexities of legal frameworks, political considerations, and human rights concerns in extradition law. Scholars and legal practitioners have extensively analyzed these cases to explore due process, dual criminality, human rights protections, and political offence exemptions in extradition proceedings. Research compiled by institutions such as the International Extradition Research Group and Reuters provides case studies, legal commentary, and comparative analyses of extradition treaties, domestic court decisions, and international norms. This helps contextualize how states navigate legal obligations, political pressure, and international cooperation when handling complex extradition requests.