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No extradition treaty, no problem: Pakistan can still hand over Hafiz Saeed, Masood Azhar to India
Although India and Pakistan do not have a formal bilateral extradition treaty, extradition of terrorists is possible under international law and customary practice. Two important facts before we proceed ahead: one, India proposed an extradition treaty with Pakistan in 2004, Islamabad is yet to respy; two, India made a formal extradition request for terrorists living in Pakistan in 2023, Islamabad still has an opportunity and option to respond positively to it.
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Meanwhile, Pakistan's former Foreign Minister Bilawal Bhutto, the son of former Pakistan Prime Minister Benazir Bhutto who was assassinated by terrorists, has stirred the political pot of Pakistan saying Islamabad can extradite terrorists Hafiz Saeed and Masood Azhar to India as a 'goodwill' gesture to face justice for the crimes they have committed over decades.
Hafiz Saeed is a United Nation-proscribed terrorist and Lashkar-e-Taiba founder wanted in India for the 2008 Mumbai attacks besides others. Masood Azhar, the head of Jaish-e-Mohammed, is wanted for a number of crimes of terrorism including the 2003 Parliament terror attacks.
With regard to India's extradition request, Pakistan's foreign office has acknowledged it but emphasised the absence of a formal extradition treaty between the two countries.
Despite this, international legal principles allow extradition even without a treaty, provided certain conditions are met, such as the offence being recognised as a crime in both countries (double criminality) and political considerations permitting the handover. India has submitted detailed requests with supporting documents, urging Pakistan to hand over Hafiz Saeed and Masood Azhar.
The process is complicated by political tensions, legal hurdles, and Pakistan's historical reluctance to extradite terror suspects. However, the lack of a treaty does not legally bar Pakistan from extraditing these individuals. The decision ultimately rests on Pakistan's government, balancing diplomatic pressures and internal politics, largely controlled by its army generals, who see enmity with India and jihadi propaganda to push cross-border terrorism in India as core issues linked to their survival and prominence in the country that has failed to arrest socio-economic collapse and sectarian violence in decades.
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How Pakistan can do it: It just requires some political will
The primary mechanism for bringing an accused individual from Pakistan to India for prosecution is extradition, a formal process governed by international law and treaties. This involves a request from India through diplomatic channels, followed by legal procedures in Pakistan, including verification of the offence and the individual's identity, and ultimately, a decision on whether to extradite.
Extradition process involves:
Request: The process begins with a formal request from India's Central Bureau of Investigation (CBI) or another relevant law enforcement agency to the Ministry of External Affairs (MEA). The MEA then forwards the request to the Pakistani government through diplomatic channels.
Fugitive's or accused's location and identity: The request includes information about the accused individual's location in Pakistan, the charges against them, and supporting evidence. It is crucial to establish that the offence for which extradition is sought is a crime in both India and Pakistan (principle of double criminality).
Legal proceedings in Pakistan: Once received by Pakistan, the request is forwarded to an inquiry magistrate who will assess the validity of the request, confirm the identity of the fugitive, and determine if the offence is extraditable.
Extradition decision: If the magistrate finds the request valid, they will forward it to the Pakistani government, which makes the final decision on whether to extradite the individual to India.
Surrender: If extradition is approved, the individual is formally handed over to Indian authorities, usually at a designated location such as an airport.
All this is possible within the established principles of international law, namely:
Double criminality: The offence must be considered a crime in both the requesting (India) and requested (Pakistan) countries. In this case, terrorism is a crime in both the countries. And top Pakistan functionaries, including the country's former Army chief-turned-President Pervez Musharraf, have acknowledged the role of terrorists, including those sought by India.
Sometimes, the principle of reciprocity is invoked for extradition when countries agree to extradite individuals to each other under similar circumstances. Here, the problem is there's no individual who lives in India and is responsible for a crime in India.
Absence of extradition treaty: While treaties streamline the process, extradition can still occur even without a formal treaty, based on international law and customary practices.
But there are challenges and excuses
Political relations is a big challenge in the India-Pakistan case. Pakistan's government has built its political capital on India-bashing propaganda. It will need to build a narrative that is acceptable to its army generals, more than the public. The extradition process is highly sensitive and can be influenced by the political relationship between the two countries.
Legal hurdles: The process can be lengthy and complex, involving legal challenges and appeals in both countries.
Excuse of double jeopardy: Generally, the principle of double jeopardy (being tried twice for the same offence) does not apply between different countries, unless specifically agreed upon. But Pakistan can still claim that it didn't find any evidence of terrorism against terrorists wanted by India and proscribed by the international community.
The final excuse, of human rights concerns: Extradition requests are also evaluated to ensure that the individual's human rights are protected during the extradition process and in the receiving country. Though Pakistan has dismal human rights record, repeatedly highlighted by international agencies, in Balochistan, Sindh and Khyber Pakhtunkhwa, but it can still make an excuse that it suspects human rights violation of terrorists responsible for scores of deaths in India by means of cross-border terrorism despite the fact that countries from Portugal to the US have extradited criminals to India to face the force of law.
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