Legal processes in way of getting ‘wanted’ from Pak

3 January 2002
The Times of India

Legal processes in way of getting ‘wanted’ from Pak

BY SIDDHARTH VARADARAJAN
TIMES NEWS NETWORK

New Delhi: By formally asking Pakistan to hand over 20 terrorist suspects, the Indian government has chosen to go beyond the four demands conveyed to Islamabad on December 14.

In its demarche, India had asked for the arrest of terrorist leaders, a ban on their finances and activities, and the closure of their offices. Now that Pakistan, after some initial hesitation, says it has acted, the extradition demand is a logical next step, say Indian officials. However, unlike the earlier demands which MEA officials had said were ``consistent with Pakistan's obligations under international law'' and also with UN Security Council resolution 1373, the extradition request takes india into uncharted legal territory.

Moreover, say international law experts, the world may be more tolerant of Islamabad's attempt to parry India's latest move since the extradition demand, in some cases, seems to be ``a political rather than a judicial initiative''.

In the past, Pakistan has waived normal extradition procedures to deliver two men, Ramzi Yousef and Mir Amal Kansi wanted by the US for terrorist crimes. But on tuesday, Pakistani foreign minister Abdus Sattar said the 20 suspects would be handed over under the SAARC regional convention on suppression of terrorism only if India meets the necessary ``legal obligations''.

India should initiate a case against each person in its own courts, indict them and then ask for their extradition. At that point, said Sattar, ``Pakistan will consider the request and if the person is genuinely required for the prosecution, (he) will be handed over''.

An international law expert here told The Times of India that Sattar's statements are ``procedurally correct'' and that it was not ``politically feasible'' for the Indian government to do to Pakistan what the US did to the Taliban in regard to the case against bin Laden.

Article VIIIi of the Saarc convention obliges countries to provide ``all evidence at their disposal necessary for the (legal) proceedings'' and though the evidentiary standard need not be high, ``extradition requests have to be accompanied by specific judicial documents'', the expert noted.
As for Jaish chief Masood Azhar, who was freed by the Kandahar hijacking, ``we have not helped our case by failing to prosecute him during the five years he was held under TADA'', the expert said.

Though New Delhi has never formally invoked 1373, the UN resolution asks states to act against terrorists but does not oblige them to hand over suspects to other countries. In an interview with CNN, in fact, Sattar said Azhar had been arrested pursuant to UN resolutions and that prosecutions for terrorism would be initiated only after India provided evidence.

Under international law, extradition presupposes the consent of the `host' government's judicial institutions.

The only exceptions in recent years have involved the US demand that Libya hand over two men wanted for the Lockerbie disaster and Afghanistan deliver Osama. The US was able to get the UN to impose sanctions on both countries. Though Libya was eventually compelled to extradite the men, the US had to compromise by agreeing to have them tried in the Netherlands under Scottish rather than US law.

India could also approach the Security Council but the outcome is uncertain, say lawyers.