Why India won't decide on Hasina's extradition anytime soon and what's complicating the process

Bangladesh has intensified its call for the extradition of ousted prime minister Sheikh Hasina following the International Crimes Tribunal's 17 November ruling, which sentenced her to death in absentia for alleged crimes against humanity.

India's Ministry of External Affairs has acknowledged the ICT verdict and reiterated that it "remains committed to peace, democracy, inclusion and stability in Bangladesh," while refraining from commenting on any formal request for Hasina's extradition. She has been staying in India since 5 August 2024.

Since the ruling, demands for her return have grown within the interim government, as well as among BNP, Jamaat-e-Islami and the National Citizen Party (NCP), under the provisions of the bilateral extradition treaty.

The India-Bangladesh extradition treaty was signed in 2013 and amended in 2016. The extradition issue, officials and analysts note, involves two separate dimensions: legal and political.

Indian officials argue that several procedural steps must be completed by Dhaka before New Delhi can issue any formal response.

In an interview with Veena Sikri and based on an article by legal scholar Prabhash Ranjan, the legal and political complexities of Hasina's extradition were examined.

Will India risk allyship amid legal, political questions?

Former Indian high commissioner to Bangladesh Veena Sikri today (23 November) stated that the treaty includes clauses that could protect Hasina from political persecution, potentially reinforcing India's position on granting her refuge. She also noted that Bangladesh has not yet submitted a formal extradition request.

According to Sikri, a note verbale issued by the Bangladesh Foreign Ministry cannot be treated as an extradition plea. Such a request must include the full trial record and all supporting evidence before India is required to respond.

Sikri added that extradition is typically a lengthy legal process that may take months or years. She highlighted India's concerns regarding the conduct of Hasina's trial, including the appointment of three ICT judges as permanent judges – something she said may conflict with Article 98 of the Bangladesh Constitution.

She also pointed out that none of these judges have prior experience applying international legal standards for crimes against humanity trials.

Sikri further raised concerns about the tribunal's jurisdiction. The 2009 amendments to the International Crimes (Tribunals) Act, 1973, were intended for offences related to the 1971 Liberation War, while more recent amendments expanding the ICT's scope were made through an ordinance issued after 5 August last year but never approved by parliament. 

This, she said, raises constitutional questions, especially since the president's authority to issue an ordinance under Article 93 is unclear when parliamentary dissolution did not follow established procedure.

She also questioned the appointments of Mohammad Tajul Islam as chief prosecutor and Toby Cadman as special adviser to the chief prosecutor. She said Tajul Islam's appointment may raise concerns about prosecutorial neutrality, while Cadman had previously represented Jamaat-e-Islami in trials conducted under the Hasina government – potentially creating a perception of "vindictive intent" and conflict of interest.

Beyond legal considerations, Sikri highlighted a broader political dilemma: whether India would risk appearing to abandon a long-standing ally. This question is especially significant as New Delhi navigates regional unrest while seeking to recalibrate its "Neighbourhood First" policy.

On 17 November, the day Hasina was sentenced, Bangladesh urged India to immediately hand over "fugitive convicts" Hasina and Kamal after the ICT found them guilty of the July killings and handed them death sentences, according to a statement of the Ministry of Foreign Affairs, which insisted that their extradition is India's treaty-bound obligation.

The ministry further stated that granting shelter to individuals convicted of crimes against humanity would be considered an unfriendly act and a disregard for justice.

In the latest development today, Foreign Affairs Adviser Md Touhid Hossain said Bangladesh wrote to India seeking Hasina's extradition.

A diplomatic source in New Delhi told UNB that the diplomatic note (note verbale) was sent to New Delhi soon after National Security Adviser (NSA) and High Representative for the Rohingya Issue Khalilur Rahman returned home from New Delhi.

This is the second such request. In December last year, the foreign ministry had sent a letter to India's Ministry of External Affairs for Hasina's repatriation, but no response was received.

Could ICC take up Hasina's case if ICT deemed not impartial?

According to the Hindustan Times article by Prabhash Ranjan, professor and vice dean (research) at Jindal Global Law School, OP Jindal Global University, Hasina's extradition should be viewed impartially.

According to him, it is incorrect to argue that the 2013 India-Bangladesh extradition treaty requires any extradition request to be accompanied by evidence of the crime. He noted that while Article 10(3) originally included such requirements, along with provisions concerning the sharing of arrest warrants, the 2016 amendment removed them.

Ranjan wrote on 21 November that Article 10(3) now requires only an arrest warrant and evidence confirming the identity of the person sought. This amendment, made when Hasina was prime minister, was intended to expedite extradition requests. 

Ironically, he noted, Hasina found herself subject to the same amendment when Bangladesh formally requested her extradition in December 2024, based on arrest warrants issued against her.

However, Ranjan stressed that this provision does not currently apply to Hasina's case because she has already been convicted. Bangladesh must now submit a new extradition request. 

Under Article 10(4), which applies to convicted individuals, two conditions must be met: first, the requesting state must provide a certificate of conviction or sentence; second, the individual must not be able to challenge the conviction or sentence. 

Since Hasina can still appeal the ICT verdict, an extradition request under Article 10(4) cannot be made until she exhausts all legal remedies under Bangladeshi law.

Ranjan also addressed misconceptions regarding the political exception to extradition. Article 6(1) allows a request to be refused if the offence is of a political character. Many have argued that India can decline Bangladesh's request because Hasina faces politically motivated charges. 

However, Ranjan argued this is incorrect. Article 6(2) explicitly states that certain criminal offences, including murder, are not political offences. Since Hasina has been accused and convicted of crimes against humanity, her case does not fall under the political exception.

Instead, Ranjan argued that India could rely on another provision if it wished to refuse the request. Under Article 8(1)(a)(iii), extradition may be denied if the requested individual demonstrates that extradition would be "unjust or oppressive," or that accusations were not made "in good faith in the interests of justice." 

Given the alleged procedural shortcomings and political animosity surrounding Hasina's trial, he argued, her conviction appears driven by vendetta, and therefore not in good faith.

Ranjan added that although one may question the fairness of the ICT's proceedings, the unelected nature of the Yunus government does not by itself invalidate the trial under international law. 

He said Yunus's regime is the de facto government of Bangladesh, recognised by most countries, including India. Despite lacking democratic legitimacy, it effectively governs the state and is thus considered a legal government under international law.

On 20 November, the interim government said it was mulling over going to the International Criminal Court (ICC) to bring Hasina and Kamal from India. 

"We will hold a meeting soon to decide whether we can approach the International Criminal Court regarding the return of these convicted individuals," Law, Justice, and Parliamentary Adviser Asif Nazrul had said.

Regarding Hasina's call for the Yunus regime to refer her case to the ICC in The Hague, Ranjan explained that the ICC functions on the principle of complementarity under the Rome Statute: domestic courts have primary jurisdiction over international crimes. 

The ICC acts only when national courts are unable or unwilling to prosecute. Since Bangladesh's ICT was already handling the matter, the ICC could not intervene unless proceedings were shown to lack independence or impartiality. 

Given the concerns about the ICT's conduct, he argued, the case could potentially be admissible to the ICC, subject to other conditions being fulfilled.