Dhaka formally writes to Delhi seeking Hasina’s repatriation
Foreign Affairs Adviser Touhid Hossain confirmed the development today (23 December) while talking to reporters at the ministry in Dhaka
Highlights
- A note verbale has been sent to the Indian government
- Hasina faces over 60 cases, including charges of murder and genocide
- The ICT has requested Interpol to issue a Red Notice against Hasina
- Bangladesh may rely on the 2013 extradition treaty for her repatriation
- Growing demands call for Hasina's repatriation
The Ministry of Foreign Affairs has formally written to the government of India to facilitate the return of ousted prime minister Sheikh Hasina to Bangladesh.
Foreign Affairs Adviser Touhid Hossain confirmed the development today (23 December) while talking to reporters at the ministry in Dhaka.
Keep updated, follow The Business Standard's Google news channel
Tauhid Hossain said, "We have clearly informed India of our position. We have conveyed that we want her [Hasina] back for judicial process."
When asked about the procedure for requesting the repatriation, he explained, "We have sent a note verbale [a formal diplomatic letter] to the Indian government."
Earlier in the day, Home Affairs Adviser Lt Gen (retd) Jahangir Alam Chowdhury had said that his ministry has sent a letter to the foreign ministry, urging it to contact India to facilitate Hasina's return.
Talking to reporters at an event in the capital, he said there was no bar to bringing Sheikh Hasina back following the extradition treaty.
Hasina fled to India with her sister Sheikh Rehana on 5 August in the face of a mass uprising led by students. She has been in India since then.
After the fall of the Awami League (AL) government, at least 60 cases or complaints of enforced disappearances, killings, genocide, and crimes against humanity were lodged at the International Crimes Tribunal, accusing Sheikh Hasina, leaders of the Awami League and 14 party alliance, and senior officials of different law enforcement agencies.
Numerous cases on various charges, including murder and attempt to murder, have also been filed against the ousted prime minister, who ruled the country with an iron fist for 15 years, and AL leaders.
Since she fled to India, the demand has been growing to have her repatriated to the country and face trial for the crimes committed by her administration during the July-August uprising.
At the end of the day, the call on Hasina's extradition is about politics, not so much about law. But whatever decision India takes, it should dexterously employ international law language to serve its political needs and justify its decision.
On 12 November, the ICT chief prosecutor's office sent a letter to Interpol, urging it to issue a Red Notice against Hasina to facilitate her arrest and repatriation for orchestrating the killings, genocides and crimes against humanity committed during the student-led mass-uprising in July and August.
Addressing the nation on 17 November, Chief Adviser Prof Muhammad Yunus said that the interim government will seek the repatriation of Hasina from India and assured that all crimes committed over the past 15 years would be prosecuted.
"Not only for the murders of July and August, but we'll prosecute all the crimes committed over the past 15 years. Many people have been subjected to enforced disappearance and murdered during this time," said Yunus, who took charge of the government three days after the AL government was toppled.
After the Foreign Office Consultation (FOC) meeting in Dhaka earlier this month, Foreign Affairs Secretary Jashim Uddin told reporters that Bangladesh would ask India to send back Hasina after following due legal process.
Is Sheikh Hasina at risk of extradition?
Sheikh Hasina, according to government sources, holds no other passport besides the now-revoked diplomatic one.
Under Indian visa policy, Bangladeshi citizens holding diplomatic or official passports are eligible for visa-free entry and can stay in the country for up to 45 days. Hasina has already spent four and a half months in India.
The cancellation of her diplomatic passport and its associated visa privileges could lead to the risk of extradition to Bangladesh, where she faces more than 50 cases, including dozens for murder.
The extradition of Hasina would fall under the legal framework of the 2013 extradition treaty between Bangladesh and India, which was amended in 2016. While the treaty allows for the refusal of extradition if the charges are of a political nature, it explicitly excludes crimes such as murder from being considered political.
However, one of the grounds for refusal of extradition is if the charges being pressed have not been "made in good faith, in the interest of justice", reports BSS.
Bangladesh may rely on the 2013 extradition treaty
Article 1 of the treaty obligates Bangladesh and India to extradite not just those individuals in their territories who have been found guilty of committing an extraditable offence (an offence punishable under the Indian and Bangladeshi laws by at least a one-year jail term) in the other country's territories. But it also extends to those individuals who have been charged with committing crimes. Thus, Hasina can be extradited even if she is yet to be proven guilty in the Bangladeshi courts. Charging her of these crimes is sufficient to trigger the process of her extradition from India.
Moreover, under Article 10(3) of the India-Bangladesh Extradition Treaty, to seek extradition, it is sufficient for the requesting State to produce a warrant of arrest issued by a competent authority. There is no need to share the evidence of the crime committed with the requested State. It is critical to note that this is due to an amendment made to the treaty in 2016. The original treaty required the requesting State to share the evidence along with the arrest warrant with the requested State. The requirement to share the evidence of the offence was done away with in 2016 to expedite the extradition of the accused.
Thus, India is under a legal obligation to extradite Sheikh Hasina if Bangladesh makes such a request. However, the India-Bangladesh Extradition Treaty mentions certain exceptions to extraditing an individual. First, Article 6 provides that extradition may be refused if the offence is of a political character (the political exception). Section 31(1) of the 1962 Extradition Act also provides for this political exception. So, can India rely on these provisions to deny Hasina's extradition? The answer is no because Article 6(2) of the treaty specifically excludes crimes like murder and other crimes that international law recognises such as genocide and crimes against humanity from political offences.
Second, Article 7 allows the requested State to refuse the extradition request if that person would be tried in its courts for the extradition offence. This provision too will not apply to Hasina because there is nothing to show that she will face trial in Indian courts.
Third, Article 8(1)(a)(iii) of the treaty states that a person may not be extradited if "he satisfies the requested State that it would, having regard to all the circumstances, be unjust or oppressive to extradite him" because "the accusation against him" has not been made "in good faith in the interests of justice". The same principle is reflected in Section 29 of the 1962 Extradition Act. This provision may apply to Hasina's case. Given the circumstances in which she was unseated from power and the fact that her political opponents are running affairs in Bangladesh and baying for her blood, it can be argued that the charges levelled against her are influenced by vendetta and political hostility. If she is returned to Bangladesh, arguably, there is a high risk of her not getting a fair trial. Thus, her extradition will be oppressive and unjust. This interpretation may not be acceptable to the Bangladeshi side who would claim that holding Hasina to account for her autocratic rule is in the interest of justice. The India-Bangladesh Extradition Treaty does not provide for any binding adjudicatory mechanism. Thus, both sides can stick to their legal interpretations of Article 8(1)(a)(iii), without any dispute settlement body deciding whose interpretation is correct.
India has another legal option, which will be an extreme one. Article 21(3) of the treaty empowers India to terminate this treaty at any time by giving a notice. The treaty shall cease to have effect six months after the date of the notice. There is nothing in the treaty which says that extradition requests received before the termination will have to be processed by the requested State after the treaty ceases to exist. Whether India will exercise this option would depend on how much India values Hasina, who has been a friend of New Delhi. While New Delhi would like to stand with Hasina, unilaterally terminating the treaty might sour its relations with Dhaka, which India can ill-afford for a variety of strategic and diplomatic relations.
