Former Bangladesh prime minister Sheikh Hasina.
Credit: Reuters File Photo
On November 17, marking 100 days in power, Bangladesh’s interim leader Muhammad Yunus announced plans to extradite former prime minister Sheikh Hasina from India, posing a diplomatic, legal, and political challenge for India that could even reshape bilateral ties.
Bangladesh’s ‘Iron Lady’ who oversaw economic progress and lifted millions out of poverty, is now in exile in India, and faces a striking twist of fate. The very ‘war crimes tribunal’, which is now pushing for her extradition, was established by Hasina’s government in 2010 to prosecute 1971 liberation ‘war criminals’.
Ironically, the 2013 India-Bangladesh extradition treaty as amended in 2016, signed under her leadership, is also being wielded against her. The treaty targets insurgency and terrorism along the shared border, streamlining ‘reciprocal extradition’ of fugitives and criminals, particularly those threatening national security.
The legal complications
International law does not compel states to extradite, as established in the early 20th-century Savarkar case. However, countries often honour extradition requests to uphold ‘international peace’ and prevent criminals from escaping justice, unless valid grounds for refusal exist under treaties. Notably, the 2013 treaty mandates extradition for individuals charged, convicted, or wanted in requesting state for crimes with a minimum punishment of one year.
The allegations against Hasina are staggering, with accusations of her involvement in over 600 deaths in the recent unrest and serious charges including murder, torture, enforced disappearances, and even genocide. These charges clearly fall within the treaty’s scope, compelling India to extradite, if requested.
However, Article 6 of the treaty provides a defence, permitting denial of extradition if the offence is considered ‘political in character’. Yet, this will not come to Hasina’s rescue as Article 6(2) limits this exception by specifying that the ‘political character’ of an offence cannot be claimed if the acts involve ‘serious crimes’ such as murder, incitement to murder, manslaughter, unlawful detention, among others. Analysing the allegations against Hasina in this light indicates that the ‘political character’ defense may not hold.
The 2016 amendment to Article 10(3) of the treaty which lowered safeguards by eliminating the need for evidence, relying solely on an ‘arrest warrant’ from a competent court for extradition from the requesting country i.e., Bangladesh, raises concerns about politically motivated request and risk of misuse of judicial power. This will enable Bangladesh to pressure India with mere arrest warrants, denying the opportunity to scrutinise evidence and challenge political motivations.
Options with India
Nevertheless, Article 8 of the treaty offers a potential basis for refusal. It allows denial of extradition if the charges lack ‘good faith’ or involve military offences not recognised by general criminal law.
India could argue that the charges against Hasina are ‘politically motivated’ rather than pursued in ‘good faith’, especially given the current polarised political environment that forced many high-ranking officials to step down. Recent changes in Bangladesh’s apex judiciary, including the resignation of Chief Justice Obaidul Hassan and key judges, have raised concerns.
The swift replacements, such as Syed Refaat Ahmed as new chief justice and Tajul Islam as chief prosecutor to the International Crimes Tribunal (ICT), evoke doubts about the tribunal’s impartiality and the judiciary’s independence in ensuring ‘due process’ and a fair trial. Surprisingly, the resignations of all members of Bangladesh’s NHRC including the chairman, few days after its report highlighted a rise in mob violence in the country, also raises questions.
Simultaneously, India could highlight the ICT’s controversial history. Many international human rights bodies have raised apprehensions about the tribunal’s fairness, alleging the ICT as an instrument of political retribution.
Further, Article 21(3) of the treaty offers an intriguing possibility: India can terminate the treaty by providing notice. The treaty would cease to exist six months after such notice, and there’s nothing within it that requires India to process pending extradition requests once the treaty ends.
What next?
Historical precedents reveal that political and human rights considerations like poor prison conditions and security concerns, among others, often outweigh strict legal obligations, as witnessed in the Vijay Mallya and in the Julian Assange’s cases. Beyond the legal intricacies, Hasina’s potential extradition must be viewed through a geopolitical lens.
India faces a complex balancing act: refusing extradition could be seen as a diplomatic slight to Bangladesh’s interim government, while granting the request might risk losing credibility as a partner country and will alienate the Awami League, a longstanding ally with deep roots in the nation.
It must be kept in mind that in South Asia, leaders often lose power, only to return after some time, emphasizing the need for India to never forget its friends. While Hasina’s prolonged stay could complicate matters, she must be afforded the necessary time to determine her next course of action.
As India weighs in its options, it must balance legal obligations, political optics, diplomatic ties, and regional stability.
(Sangeeta Taak is an Assistant Professor of Law, Rajiv Gandhi National University of Law (RGNUL), Patiala, Punjab, and Kartikey Singh is a final year student, RGNUL)