Arrest warrant issued against Hasina. What will happen now?

The International Crimes Tribunal today (17 October) issued an arrest warrant against Awami League President and former prime minister Sheikh Hasina for genocide during the protests of anti-discrimination student movement.

It was a move months in the making, the wheels set in motion when she fled on 5 August.

The case filed with the ICT against her came on 14 August.

What happens now?

It is known that Hasina has sought refuge in India, where she has been staying since fleeing.

At the moment, India has not officially given Hasina an asylum status.

What Dhaka will seek to do now is extradite Hasina from India.

For this, Dhaka will make a formal request to New Delhi under the India-Bangladesh Extradition Treaty.

This treaty, ironically, was signed by the Hasina government in 2013.

But does the instrument have the necessary legal basis that needs to be established?

Article 1 of the treaty obligates Bangladesh and India to extradite not just those individuals in their territories 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, this also extends to those accused of such crimes.

Hasina has been made accused in a number of criminal cases, alongside complaints filed against her for committing genocide and crimes against humanity.

For the treaty signed between India and Bangladesh, the onus isn't on the Bangladeshi courts to prove Hasina's guilt for the crimes she has been accused of. It is enough for them to charge her of the crimes.

Article 10(3) of the treaty doesn't require sharing evidence either; an arrest warrant – which has already been issued – is acceptable for beginning the legal proceedings of extradition.

In another twist of fate, before an amendment made during the AL tenure in 2016, the extradition treaty required sharing of evidence, but this was done away with to expedite the process. 

Meanwhile, the ICT has already asked that Hasina be produced before it on 18 November.   

Speaking about the issue last month, Foreign Affairs Adviser Md Touhid Hassan said, "There are legal processes. If our legal system wants, we will definitely try [to bring her back]."

He, however, also noted that it was up to India whether they would hand her over or not, but noted that there was an agreement regarding extradition.

In the present circumstances, India is under a legal obligation to extradite Hasina if Bangladesh makes the request.

But this comes with a caveat.

Exceptions to the rule

The treaty signed between the two countries mentions a few exceptions, which just may come into play.

For instance, Article 6 grants refusal of an extradition request if the offence in question is of a political nature.

This, however, may not apply as Article 6(2) exclvides crimes like murder and internationally-recognised violations like genocide and crimes against humanity – all of which Hasina has been accused of.

The extradition request can also be refused if Hasina was to be tried in Indian courts for an extradition offence, but this also does not apply as she isn't set to face trial in Indian courts.

What can apply, however, is Article 8(1)(a)(iii) of the treaty.

This part allows denial if the accusation has not been made in good faith in the interests of justice

It states that a person may not be extradited if she "satisfies the requested State that it would, having regard to all the circumstances, be unjust or oppressive to extradite her" because "the accusation against her" were not made "in good faith".

It is to be noted that former Social Welfare minister Dipu Moni and deputy sports and youth minister Arif Khan Joy were physically assaulted by mobs, whereas former law minister Anisul Huq and industrial adviser Salman F Rahman were thrown eggs on by BNP-supporting lawyers in court, while not given the opportunity to be presented by their lawyer.

Former judge of the Appellate Division AHM Shamsuddin Chowdhury Manik was also attacked while being produced in the court after his arrest recently.

The nature of Hasina's deposement does warrant concerns whether  Article 8 could be made applicable in the case.

Already murmurs abound about a vengeful nature of politics prevailing in the country, another remnant of the AL tenure.

It is also to be noted that the extradition treaty does not provide for binding adjudicatory mechanism, which allows  parties to present their dispute to an independent third party for a decision.

In this case, a stalemate can be reached if both stick to their interpretation, specifically of Article 8.

For Bangladesh, it is also important to take into consideration that the existing extradition treaty serves as a legal framework of cooperation.

There can be other non-legal challenges that arise, specifically around the political nature of charges and human rights.

The way forward then would have to be one of effective cooperation between the two countries.

While Hasina's diplomatic passport has been revoked, she can still apply for an asylum.

Is asylum an option?

It has been reported that Hasina has sought asylum in different countries, including the UK, UAE and Saudi Arabia.

Asylum seekers have no legal right to the claim and no country has an obligation to grant it.

There are four categories of asylum: territorial, extraterritorial, neutral and temporary.

Territorial asylum deals with granting shelter within the geographical borders of the country offering asylum, protecting an individual from extradition to the home country to face charges of political offenses  such as treason, desertion, sedition, and espionage. This asylum is known as a political asylum.

Extraterritorial asylum refers to sanctuaries granted in embassies, consulates, warships, and merchant vessels in a foreign territory, also known as diplomatic asylum.

Neutral asylum is often granted by countries maintaining non-involvement during a war to offer sanctuary within its territory to troops of belligerent states on condition that the troops agree to confinement for the duration of the war.

Temporary asylum, meanwhile, is a provisional form of protection granted to individuals who are fleeing immediate danger but may not qualify for full refugee status. This type of asylum is typically granted in situations of mass displacement, such as during armed conflicts or natural disasters, where the host country provides shelter until it is safe for the individuals to return home.

Another category of asylum, known as criminal asylum, is defined as an "inviolable place of refuge and protection giving shelter to criminals and debtors."

It is expected that Hasina might seek the above form of asylum.

How that could play out remains to be seen.