State Jurisdiction, Extradition, State Immunity

11 March 2024 11:33

Jurisdiction is an essential attribute of sovereignty - legal limit of the state to make and
apply laws

• Jurisdiction to prescribe - bring any law within my territory

• Jurisdiction to enforce - enforce any law within my territory
• Jurisdiction to adjudicate

2 views:
States can exercise jurisdiction as they deem fit, unless there is a prohibitive rule to the
contrary

States cannot exercise jurisdiction as they see fit, unless there is a permissive rule to the
contrary

Lotus Case -
Jurisdiction cannot be exercised by a state outside its territory except by virtue of
permissive rule derived by virtue of CIL

If you have to exercise a jurisdiction in other state - permissive rule should exist
It clearly provided the distinction between the enforcement jurisdiction and prescriptive
jurisdiction - even if you can prescribe beyond your territory, you cannot enforce it

As per the SS Lotus case - states can prescribe in the absence of a prohibition but
enforcement can only take place by virtue of permissive rule

The principles were widely criticised and are today obsolete - State practice of CIL turns it
down.
Under CIL - extra territorial prescriptive law is not permitted.

1935 - Harvard Research on IL -

• Territorial jurisdiction = fundamental principle of IL
• Sovereign equality of states - principle of non-intervention - laws trying too regulate
the conduct of foreigners in foreign terr. Are unlawful

Nexus doctrine - if the legislation is based on practices in conformity to CIL

6 basis of jurisdiction in IL:

1. Subjective territoriality - subject was on the territory
2. Objective territoriality - objective of crime was in your territory (effects doctrine - US
courts - object)
3. Nationality:
• Active - an Indian national commits crime in foreign territory
• Passive nationality/ personality - if the attack was on your nationals
4. Protective principle - if the security of the state is compromised
5. Universality - IL allows the state to take jurisdiction of certain categories of crime
without any linkage - erga omnous obligations
Ex. Piracy
India - permission from the central government

Territorial Jurisdiction - (S+O)

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Territorial Jurisdiction - (S+O)
• Criminal + civil
• Territory = land, dependent territories, airspace, aircraft, ships, territorial sea,
certain jurisdictional rights in Contagious zone, EEZ, Continental shelf
Limitations:
• Customs and Int. treaties
Doctrine of State immunity is founded on maxim par in parem non habet imperium
i.e. an equal has no power over an equal)
• But immunity is also restricted as per the
UN Convention on Jurisdictional Immunity of States and their Property
adopted on Dec 2, 2004

Article 5 - State immunity

A State enjoys immunity, in respect of itself and its property, from the
jurisdiction of the courts of another State subject to the provisions of the
present Convention.

Exceptions to the TJ
• Diplomatic Agents
• Embassies
• Foreign sovereign
• Property of FS
• Foreign Armed forces
• Foreign warships and crews

Nationality principle
- State may prosecute its nationals for the crimes prosecuted anywhere in the world
Civil law states - all the types of crimes
Common law states - only heinous crimes

India? Yes - asserts jurisdiction on the basis of nationality

- Permission from the central government is needed in such situations

Problem - dual jurisdiction

Terrorism:
UNSC terrorism and Nationality link - denial of nationality removing citizenship

Protect principle - when the state assumes jurisdiction to protect its nationals
Trial of Adolf Eichmann (Supreme Court of Israel)
• Attorney General of Israel v. Adolf Eichmann (Supreme Courtof Israel)
Austrian by birth , volunteered to work for Security in Berlin - became HoD for Jewish
matters
MOSAD abducted him from Argentina and placed before Israel SC
• Crimes against jews, crimes against humanity, war crimes etc.
• Sentenced to death

Jurisdiction on the basis of protective principle as well as universal jurisdiction

At the time the crimes were committed - the state of Israel did not exist
A group of people at a later point in time acquire sovereignty - they can exercise
jurisdiction
It is not the states to go on a war but it is the governments - individual responsibility for
war

Passive personality principle

- Acts committed against its nationals - punish aliens
Civil law countries - claim jurisdiction on this ground

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Civil law countries - claim jurisdiction on this ground
Common law + US - contrary to IL till torts; Terrorist activities = can exercise
Hijacking and hostages cases
- US Torture Victim Protection Act 1991 - claim against alien

Universal jurisdiction principle

Certain crimes are very destructive for the international order
- Piracy
- Slave trade, crimes against humanity, genocide, terrorism
When extra-territorial acts are lawful when
• Substantial and bona fide connection
• Principle of non-intervention should not be compromised
• Elements of accommodation, mutuality and proportionality

Treaty implementation-
• Drug trafficking
• Hijacking and sabotage of aircraft
• Apartheid
• Attack on diplomat
• Taking of hostages
• Torture

EXTRADITION
Extradition - it is a dual process - national + international - extradition treaties
International law - bilateral as well as multilateral

Look at the domestic regulations regarding extradition in the specific countries and the
relationship between them - national + international

Origin:
Extra + tradition - against the traditional norms of hospitality

Definition:
1. Article 102 Rome Statute ICC: delivering of a person by a state to Another

2. UN Model Law on Extradition : surrender of any person who is sought by the

requesting state for criminal prosecution of an extraditable offence or for the
imposition or enforcement of a sentence in respect of such an offense.

Criminal is necessary

Different from Deportation:

Deportation Extradition
Interest of the expelling state Interest of the requesting
Unilateral action Consensual cooperation between
states
Expulsion on any ground Criminal prosecution
Order of a state - prohibit a person from living on the Request of the other state
territory

Normally, in the absence of an extradition treaty, the act is called deportation

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Extradition as a tool to facilitate criminal justice
• Unpunished
• Deterrence
• International Security
• Reciprocity

Obligation to extradite
• There is no CIL for extradition
• Only 2 situations
○ RECIPROCITY
○ TREATY - BILATERAL OR MULTILATERAL

Sources
- Bilateral agreement (extradition treaty)
- Multilateral conventions
- National extradition acts - precedence depends on the domestic law (In European
states extradition takes precedence over domestic law)

Section 44 A - execution of decrees from the reciprocating territories

What takes precedence?

No definite answer - look at the domestic law of the state

Principles:
Extraditable offence:
• Enumeration method -
• Elimination method
• Accessory extradition
India-Netherlands 1898

Extradition treaty entered by India with Bangladesh in the year 2013

Dual criminality rule (contrary to unilateral jurisdiction) - the act shall not be extraditable
till it is an offence in both the states A. 2(1,3) Bangladesh Extradition treaty

For the purpose of nature of the act in dual criminality rule - in abstracto should be taken
and not in concreto

Evidence of guilt
Common law - prima facie case of guilt
Civil law - may require the use of evidence

Reciprocity: It highlights the entire structure of extradition

It has now turned into a political tool rather than a legal provision - more and more
treaties are creating exceptions to the double criminality rule

Specialty rule:
An alleged offender cannot be detained, tried, punished in the requesting state for any of
the offence except what was provided in the extradition treaty - otherwise it will amount
to breach of rule of specialty
- Protects the alleged offendor
- Reinforces the rule of double criminality

Denial of extradition request

In general - the extradition treaties allow the right to deny request of extradition of its
nationals if the domestic law provides - some treaties also put a restriction on the

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nationals if the domestic law provides - some treaties also put a restriction on the
requested state to naturalise the offendor after request of extradition

Abu Salem case:

• India and Portugal - there was no extradition treaty but they agreed on reciprocal
basis - description of charges by India - both were parties to the terror bombings

• Portugal is party to the Human rights convention under which capital punishment is
prohibited - extradition could not have been for capital punishment - 25 years of
max
Obligation of portugal.

• Special court -
CBI slapped additional charges on ABU Salem like TADA etc. and the court agreed.
Abu filed a WP to the Supreme court saying that you are breaching international law
and rule of specialty - additional charges cannot be put.

• India: Additional charges do not breach until they increase the overall punishment -
it is inconsequential
Portugal: India is breaching as they are putting additional charges.
ABU Salem asked for reparation.

• CBI went to the SC and asked to take back the additional charges.
SC - questions
- Can it allow the withdrawal of charges - yes
- Does Abu Salem need to be sent back - no; now the position has been sorted.

Difference in interpretation of the rule of specialty in the Indian and Portugal courts.

Can state deny Extradition:

1. Nationals - many states are not open to extradite their own nationals; India - rule of
reciprocity and dual system
2. Capital Punishment - soring - German national - studying in US - Elizabeth's parents
were against the marriage so they decided to kill E's parents. In UK they were held
for some other crime - US requested extradition. Soring went to Human rights court
and capital punishment was not allowed therein as he was a German national - UK
will be breaching international law if they allow extradition.
3. Procedural defects - like the Kulbhushan Jadhav case
4. Humanitarian grounds
5. Military offences
6. Fiscal offences
7. No bin idem
8. Political offence
- Pure/ absolute = sedition, espionage etc.
- Relative political offence = Common crime with political intent - link between
political crime and the offence

India and Extradition

• Allows the extradition of its own nationals
• Dual system and principle of reciprocity
• However by virtue of treaty, extradition of nationals with some countries is barred

Shift of trends - genocide etc. they do not constitute to be political offence - it will not go
unnourished

Exceptions in treaties -
Very few treaties and statutes expressly exclude genocide, murder, manslaughter, or

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Very few treaties and statutes expressly exclude genocide, murder, manslaughter, or
related crimes in general from the concept of political offences.

Law of Extradition in India

Extradition Act 1962 - amended in 1993

History - Act 1870, 1903

Section 2(d) Extradition treaty defined -

• Treaty / agreement / arrangement - with foreign countries for the extradition of
fugitive criminals.

Arrangement - chapter 3 applies

2(c) - extradition offence means -

- Offence provided in extr. Treaty
- Punishment not less than 1 year under Indian or foreign law

2(f) - fugitive criminal means;

accused/ convicted of an extraditable offence
A person who, while in India
Conspires,
attempts to commit
Incites
Participates as an accomplice in the commission of an extradition offence in a foreign
state

Chapter 3 - simplified less time consuming procedure - existing extradition arrangement

• Starts with extradition arrangement
• CG merely endorses the warrant
• The Magistrate will authenticate the warrant
• Prison/ Bail
• Sends the report to the CG
• CG - issues warrant of custody or removal

Chapter 2 - detailed - no extradition arrangement/ treaty

• First request of surrender to be received by the central government
• once it receives it will order for a Magisterial Inquiry
• Warrant
• Procedure
• Whether the offence is Extraditable or not and then submit a report
• Prima facie case - Yes/No?
• Power to move bail application (S.25)
• Discharge or Prison - Show cause notice
• Send both to the Central Government
• CG decides whether the fugitive has to be extradited or not
• Warrant of custody or removal

Section 21 - Rule of Specialty

21. Accused or convicted person surrendered or returned by foreign State not to be tried
for certain offences.
Whenever any person accused or convicted of an offence, which, if committed in India
would be an extradition offence, is surrendered or returned by a foreign State, such
person shall not, until he has been restored or has had an opportunity of returning to that
State, be tried in India for an offence other than

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State, be tried in India for an offence other than
(a) the extradition offence in relation to which he was surrendered or returned; or
(b) any lesser offence disclosed by the facts proved for the purposes of securing his
surrender or return other than an offence in relation to which an order for his surrender
or return could not be lawfully made; or
(c) the offence in respect of which the foreign State has given its consent.

Section 31 - restrictions on extradition

• Political offence
• Barred by time
• Affirms the rule of speciality
• Undergoing trial 15 days in prison

SCHEDULE - offences which are not regarded as offences of political character

Immunity
• States
• IO
• Officials (special status - subject of IL)

Immunity is a procedural impediment to the jurisdiction

1. Jurisdictional immunity
2. Enforcement immunity

Immunity is different from privileges (exemption from local laws) and inviolability

State*
State official*
IO
IO officials
Diplomats - VCDR

By a treaty system the immunity can be changed - alter the immunity structure based on
mutual consent - even the interpretation of HRs may alter the immunity

State immunity
based on the principle of sovereign equality
Dates back to 1648
Par in parem non habet imparium
CIL
• European Convention on State Immunity 1972
• UN Convention on the immunities of states and their property 2004 - not yet
entered into force

Modern law - state immunity is not absolute

jure imperii act (sovereign acts of the state) - immunity given
Acta jure gestionis (Managerial or commercial acts) - state immunity is not allowed

Ratione materia - functional immunity which all states enjoy

Ratione persone - high ranking officials till the time they are in that position they will enjoy
immunity even for their non official acts

Enrica Lexie Award

Enrica Lexie - Italian Ship and St. Anthony - Indian
Italian marines shot because they thought it was a pirate ship - the Italians were captured -

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Italian marines shot because they thought it was a pirate ship - the Italians were captured -
went to SC
Arbitral Tribunal -
Question:
1. Whether India can validly take up the jurisdiction over Italian marines for killing their
fishermen.
India: jurisdiction allowed as per the Maritime zones Act
(many of the provisions of MZ Act are in contravention with the UNCLOS)
India went back to the Fundamentals - the Arbitral tribunal looked into the principles
a. Passive personality principle - not decided
b. Objective territoriality principle - Indian ship was attacked

Even though India won over the principle of objective terr. But the Italian marines enjoyed
immunity
Had it been a commercial ship they would have taken jurisdiction

The Pinochet case - UK National Bench

• Pinochet - overthrew the elected pressident of Chile
• 3000+ people killed - 17 year dictatorship
• After his rule - he went to Britain for medical assistance but was arrested on the very
next day by British auth. On a Spanish Warrant
• Spain asserted Universal Jurisdiction - crimes against humanity
• European Convention on Extradition - Extradition act - 1989
• The divisional court upheld Pinochet's claim to state immunity

1988, UK ratified CAT (legislation) providing Act of Torture as Crime on the basis of UJ

CAT provides Immunity for Former heads of state for official acts. UK requires dual
criminality rule for extradition

Pinochet cases
1. Pinochet 1 - R v. Bow Metropolitan - conflict of interest of one of the 5 judges -
universal jurisdiction - acts of torture is based on CIL - immunity ratione materia is
limited to acts legitimate and in official exercise of power
Universal jurisdiction will apply - torture, murder etc.
Denied immunity

2. Pinochet 2 - Lord Hoffman did not disclose that he was the director of Amnesty Int.
therefore conflict of Interest

3. Pinochet 3 - acts of torture based on treaty and not CIL

• Universal Jurisdiction - only on the basis of treaty and not CIL (not even on jus
cogens)
• Dual Criminality rule applies - date of operation - acts of torture before 1988 cannot
be charged
• After 1988 - he is liable

Court held:

Murder - immunity exists

Acts of torture - does not exist
Acts before 1988 do not need to be punished at dual criminality was not satisfied then
Extradition to be allowed for acts after 1988
1975-96 - conspiracy to commit murder in Spain - immunity allowed
No immunity for the three remaining charges of torture after 1988
Conclusion
House of Lords - Recognized and applied UJ based on CIL

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House of Lords - Recognized and applied UJ based on CIL

Activity

A. 1975 - murder - can take up jurisdiction by Universality principle - State officials

enjoy immunity for murder - NO

B. Before 1988 - acts of torture - date of crime to be seen - dual criminality to be

satisfied - if you have signed a treaty but not incorporated it into your domestic
legislations the national courts will not apply it. - NO
CIL does not need legislation - the national courts can give effect without it.

C. After 1988 - acts of torture -

1988 - UK ratifies the convention against torture = act of torture as a crime - No
Immunity

ICJ - Arrest warrant case (DRC v. Belgium)

Belgium court issued warrant against Foreign Minister of Congo for racial hatred which led
to riots
Belgian auth. Initiated proceedings in Belgian courts - Universal Jurisdiction - immunity
attached to his official capacity should not act as a hindrance

- Congo requested the ICJ to annul the arrest warrant of Belgium

- Claim:
○ Principle of sovereign equality Art. 2(1) UN charter - violated by this UJ
exercise by Belgium
○ Disregarded the immunity of FM as per CIL

How does universal jurisdiction affect the sovereignty of a state

Non ultra petita rule - the focus of Belgian court will be limited to the things mentioned in
the final submission of Congo

ICJ -
The immunity of FM is not defined by treaties
FMs have immunity under CIL - allowed immunity in the present case

Wrt war crimes and crimes against humanity -

- There is no exception to the immunity of FMs under CIL/ State practice till date
- Arrangements under treaties etc. did not effect the immunity under CIL

4 cases where the foreign incumbent minister would not enjoy the immunity
- Criminal prosecution on their own state
- If the state waives their immunity
- If they hold office in private capacity
- ICC setup

But the head of the state can be charges for offences other than State acts

Draft articles on immunity from foreign criminal jurisdiction

Draft article 7 - immunity ratione materia not to apply for the following crimes
a. Genocide
b. Crimes against humanity
c. War crimes
d. Apartheid

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d. Apartheid
e. Torture
f. Enforced disappearances

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