The legal challenges to bring Sheikh Hasina back from India

There is a demand to bring SEikh Hasina back to Bangladesh and try her for all the crimes that took place under her leadership. Photo: Rajib Dhar

The immediate past Prime Minister Sheikh Hasina has taken shelter in India since 5 August, when she was compelled to step down due to a mass movement led by the students against discrimination demonstrators.

According to a UN report, nearly 650 people were killed from 16 July to 6 August. Unarmed civilians, children, and students were indiscriminately and brutally killed by law enforcement agencies throughout the protests. 

Family members of the victims, protesters, and students alleged that many of them were shot by the police on her orders, and consequently the first criminal case was filed against her on 13 August in a Dhaka Metropolitan Magistrate court.

Since then, more than 100 criminal cases have been lodged against her, along with her cabinet members, partymen and aides, for murder, torture, enforced disappearance, abduction, attack, etc. in ordinary criminal courts, including a few in the International Crimes Tribunal (which was actually constituted during her regime to try the war criminals of 1971) for genocide and crime against humanity.

However, there was a demand from the beginning when she escaped to India to bring her back to Bangladesh and try her for all the crimes that took place under her leadership. The demand gained momentum again when these criminal cases were being filed against her. 

Moreover, the law adviser of the newly formed interim government also confirmed that they would go to the International Crimes Tribunal (ICT) to try her offences during the protest.

Thus, the question of Sheikh Hasina's extradition from India comes into the fore, although both the criminal courts and the ICT have jurisdiction to try people in absentia. However, a trial without bringing her back to the country will only be symbolic.

Nonetheless, extradition is a complex process that not only involves legal issues, but is also associated with international, political, diplomatic, and human rights concerns. 

Hasina's status in India

This is the first time in the history of Bangladesh when a former prime minister was forced to resign through a mass uprising and fled directly to India. It is not clear whether Sheikh Hasina is going to seek political asylum in India or anywhere else yet.

The situation became more complex when the present interim government of Bangladesh revoked the diplomatic passport of Hasina, her advisers, cabinet members, all the members of the dissolved 12th national parliament, their spouses, and their children, on 22 August.

She went to India under the privilege of that red passport, which allows her to stay there for up to 45 days without having a visa. Although Indian officials remained silent from the beginning about the status of the ex-premier in India, now it will be more difficult for her to flee elsewhere after the cancellation of her diplomatic passport. 

However, the current interim government has not taken any visible action to bring Hasina back from India as of today, whereas the adviser responsible for foreign affairs told the press that they will initiate the process and ask their Indian counterpart to return her if the government decides to do so.

In the meantime, if she seeks political asylum in India or elsewhere, then the discussion of the extradition of Hasina from India will be pointless. Sheikh Hasina had previously sought and obtained political asylum from India in 1975 after the assassination of her father.

What is extradition?

Extradition is a legal agreement between two countries where both countries sign a treaty to hand over a fugitive, accused, or convict, to the requesting state for prosecution or punishment for crimes committed in the requesting country's jurisdiction.

Extradition treaties between countries vary from one another; some may enumerate what is an extraditable crime, while some have provisions where extradition can be denied.

Authorities generally refuse to extradite individuals for military or political offences, with exceptions for terrorism and other violent acts. Some states do not extradite to jurisdictions with capital punishment or life imprisonment under any circumstances, or unless the requesting country pledges not to impose those penalties.

Can Bangladesh ask for the return of Hasina from India?

New Delhi and Dhaka have an extradition treaty signed in 2013 during Hasina's regime and subsequently amended in 2016. 

Within its legal framework, the extradition treaty between Bangladesh and India gives Bangladesh the scope to ask for Hasina's extradition, although there are provisions to deny that appeal under the same treaty.

According to the treaty, the requested state shall extradite the fugitives found in its territory who have been proceeded against for, have been charged with, have been found guilty of, or are wanted for the enforcement of a judicially pronounced penalty for committing an extraditable offence (Art. 1(1)). 

Only crimes that carry a punishment of a minimum of one-year imprisonment can be extraditable offences, including those relating to financial irregularities (Art. 2(1)). In addition, the principle of dual criminality must be satisfied for an offence to be extraditable (Art. 1(2)). This means that the offence should be punishable in both countries.

According to Art. 2(4), extradition shall also be granted with respect of an attempt to commit or aiding, abetting, inciting, or participating as an accomplice in the commission of an extraditable offence.

Art. 10(3) makes it even easier for the requesting country, which states that furnishing the proof of crime will not be mandatory; an arrest warrant issued from a court of law will be sufficient for the extradition.

Hence, the 'theoretically' issuance of a mere arrest warrant by a magistrate court against Sheikh Hasina is enough to ask for her extradition without furnishing concrete proof of evidence against her.

What are the exceptions?

Nevertheless, the treaty itself contains several provisions (Art. 6-8) where India can refuse the appeal of extradition of Sheikh Hasina on the grounds of offences having political character, being oppressive in nature, or unjust, or if the offence is purely a military offence.

Additionally, India has the option to reject the request if a case has been filed against Sheikh Hasina in India (Art. 7(1)). Albeit no case has been lodged against the former Bangladeshi leader until today and nor there is any reasonable possibility of doing so in India shortly.

However, Art. 6(2) stipulates the following offences shall not be regarded as offences of a political character: (a) any acts or omissions which are punishable as a criminal offence according to the obligations under multilateral treaties to which both contracting states are parties; (b) murder; (c) manslaughter or culpable homicide; (d) assault occasioning actual bodily harm, or causing injury, maliciously wounding or inflicting grievous bodily harm whether by means of a weapon, a dangerous substance or otherwise; (e) the causing of an explosion likely to endanger life or cause serious damage to property; (f) the making or possession of an explosive substance by a person who intends either himself or through another person to endanger life or cause serious damage to property; (g) the possession of a firearm or ammunition by a person who intends either himself or through another person's to endanger life; (h) the use of a firearm by a person with intent to resist or prevent the arrest or detention of himself or another person; (i) damaging property, whether used for public utilities or otherwise, with intent to endanger life or with reckless disregard as to whether the life of another would thereby be endangered; (j) kidnapping, abduction, false imprisonment, or unlawful detention, including the taking of a hostage; (k) incitement to murder; (l) any other offence related to terrorism that, at the time of the request, is, under the law of the requested party, not to be regarded as an offence of a political character; (m) an attempt or conspiracy to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.

Interestingly, so far, the allegations brought against Hasina mostly fall under the above categories, which are not political in nature as per the treaty.

Despite that, the treaty states denial can be made if the accusation has not been made in good faith in the interests of justice (Art. 8(1)(iii)). Moreover, India can reject the extradition request if it is feared that Hasina may be treated badly or denied justice. 

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 Advisor Salman F Rahman were humiliated in an overly crowded courtroom, thrown eggs by BNP-supporting lawyers, and not given the opportunity to be presented by their lawyer, and former judge of the Appellate Division AHM Shamsuddin Chowdhury Manik was attacked while being produced in the court after their arrest recently.

Some of their longer remands granted by the court were also criticised by the rights bodies. As a result, anyone can naturally raise concerns about the security of Sheikh Hasina and the fairness of her trial.

What should the interim government do?

Therefore, the interim government must ensure Hasina's safety, security, human rights, right to be heard, consult and be represented by a lawyer, fair treatment, impartial and fair trial, no political motive, etc. convincingly to India while requesting her extradition under the treaty.

Otherwise, India can reject the request on these grounds. Besides, many loopholes in the treaty can be invoked by India to delay the process for a long time.

Even the extradition request would go through India's judicial system, where the courts would assess the validity of the extradition request based on the treaty's terms and the evidence provided by Bangladesh. This process can be lengthy and involve significant legal debate over the nature of the charges and the applicability of any exceptions.

The courts might deny extradition if they believe that the former head of government would face political persecution, unfair trial, or inhumane treatment upon return to their home country. This is particularly relevant if the individual claims asylum or refugee status on these grounds.

Comprehensive and compact record of evidence that substantiates the charges against Hasina are necessary, ensuring that the offences are criminal and not merely political. This would strengthen the case against the application of the political offence exception. Strong and solid legal interpretations and arguments are essential to counter the claims that the charges are politically motivated.

This might include evidence of a fair and neutral investigation by a credible and impartial body like the UN, maintaining full fairness in each step of the legal proceedings initiated in Bangladesh, robust application of all standards of justice, implementation of all rights of the accused, overseeing the judicial process through reputed international human rights organisations and fulfilling their recommendations, etc.

Extradition must comply with international legal standards, including respecting the principle of non-refoulement (not extraditing individuals to a country where they might face torture, inhumane treatment, or persecution).

The political offence exception, judicial intervention, concerns about human rights and fair trial, and the complexity of political and diplomatic relations between India and Bangladesh, could all pose significant obstacles to her extradition.

The ultimate decision may rest more on diplomatic negotiations and the political will of both governments, than purely on legal arguments. The Bangladesh government will have to credibly assure the Indian government that Sheikh Hasina will receive a fair trial and humane treatment in Bangladesh. If necessary, they have to offer guarantees and provide them opportunities to observe the process closely. 

We must not forget that an existing extradition treaty between the two countries only provides a legal framework for mutual cooperation; several other non-legal challenges could arise, particularly regarding the political nature of the charges, human rights considerations, and the potential for unfair treatment. Hence the treaty itself cannot guarantee extradition in all cases, especially if the complaint is against an influential person like a former head of the government. Then its political nature, intention, justness, neutrality, etc. become significant indicators.

So, political will, mutual trust, friendly relations, effective cooperation, respect for democracy, international norms and rule of law, effective diplomatic negotiations, and respect for people's aspirations can be the only way to truly solve the problem.

Sketch: TBS

RaisuL Sourav is a Doctoral Researcher in Law at the University of Galway School of Law, Republic of Ireland, a Lawyer and a Rights Activist. He can be reached at M.SOURAV1@universityofgalway.ie. His X Handle: @RaisuLSourav

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.