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Should he stay or should he go?

  • Published at 08:18 am May 31st, 2013
Should he stay or should he go?

On April 25, 2013, nearly 42 years after the infamous December of 1971, prosecutors at International Crimes Tribunal 2 (ICT2) formally pressed charges against Chowdhury Mueenuddin and Ashrafuzzaman Khan, alleged to be key enforcers in the devious plan to rid Bangladesh of its brilliant minds,  right at the doorstep of securing victory after nine months of bloody struggle against Pakistan. 

Formal charges describe Mueenuddin as being the “operation-in-charge of Al-Badr” who led an Al-Badr force and “directly took part” in the abduction, torture and killings of 18 people between December 10 and 15 1971. Among the 18 the duo is alleged to have killed, nine were teachers of Dhaka University, six were journalists and three were doctors. Detailed information about the killings alleged to have been perpetrated by Mueenuddin and the evidence gathered against him so far by independent sources can be found in the website of Bangladesh Genocide Archive.

The investigation agency probe report also states that Mueenuddin has been living in London for decades, while Ashrafuzzaman now resides in New York. The relevant laws permit the ICT to hold trials against any accused in absentia. However, even if Mueenuddin and Ashrafuzzaman are tried in absentia, convicted and then sentenced, they must nonetheless be brought back to Bangladesh if they are to face the consequences of justice.

 It has therefore become extremely important to start the process of bringing Mueenuddin and Ashrafuzzaman back from London and New York respectively. The process which governs this transfer is called “extradition”. This article only deals with the applicable law for extraditing Mueenuddin from UK. I will deal with Ashrafuzzaman’s possible extradition from USA in a separate piece. 

Extradition is the name given to the formal legal process by which persons accused or convicted of crimes are surrendered from one state to another for trial or punishment. It is generally governed by bilateral treaties or multilateral conventions entered into by sovereign states, which impose an obligation on the requested country to surrender to a requesting country, a person charged with or convicted of an offence of a certain specified gravity in that country, subject to conditions and exceptions.

Since, Mueenuddin is based in UK and is a British citizen, the applicable law which will determine his extradition is that of the UK, not Bangladesh. The UK law of extradition is governed by the Extradition Act (EA) 2003 (as amended). The EA 2003 creates two distinct extradition regimes: Part 1 applies to category 1 territories (essentially referring to the Member States of the EU and Gibraltar) while Part 2 deals with category 2 territories. Bangladesh falls under the latter category [Clause 2(2) of the Extradition Act (Designation of Part 2 Territories) Order 2003].

Countries falling under category 2 are themselves divided into two groups: the territories which must provide a prima facie evidential case and those which are not required to do so. Since Bangladesh is not a signatory to the European Convention on Extradition 1957, it must show a prima facie case against Mueenuddin. A prime facie case refers to “whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him” [S.84 EA 2003]. It is submitted that the information based on which the charges have been brought in the ICT-2 will suffice to overcome this procedural hurdle.

Mueenuddin’s extradition process to Bangladesh will involve the following stages:

An extradition request is made to the secretary of state

The secretary of state issues a certificate and sends request to court (if request is valid)

Preliminary hearing followed by extradition hearing at court 

Secretary of state decides on extradition

Appeal to the High Court

Appeal to the Supreme Court (if allowed). 

Thus, Bangladesh would firstly have to submit an extradition request to the UK. If the request conforms to certain requirements, and unless certain conditions apply, it would be certified by the secretary of state and sent to a judge. The judge then issues a warrant for the requested person’s arrest. Following arrest, an extradition hearing is held where the judge decides whether extradition is barred for any statutory reason. The judge would also need to consider whether the requested person’s extradition would be compatible with the European Convention of Human Rights (ECHR) as required by the Human Rights Act (HRA) 1998.

This is where the judge would consider the general human rights record of the country seeking extradition, and any particular concerns regarding this specific accused or this particular trial. The judge would therefore not only look into Bangladesh’s general reputation for protecting human rights but also what kind of a trial the extradited accused is likely to get in this particular instance. In my opinion, any UK judge would need a lot of convincing in this segment, given our not-so-enviable record for human rights protection generally, and the specific concerns regarding the ICT itself, no matter how open to arguments those concerns may be.

However, I am optimistic that given the consistent diplomatic support that UK has been pledging to these trials since their very inception and the incremental yet substantial reforms which have been introduced by amending the International Crimes (Tribunals) Act 1973 and the Rules of Procedure promulgated there under to establish due process, the judge in question in a UK court may be convinced that Mueenuddin is likely to receive a fair trial in Bangladesh if extradited.

 However, as I said, UK judges are extremely mindful of protecting human rights even if the accused is a particular notorious one, as evident from the long and arduous drama that has been played centring on the extradition of radical cleric, Abu Qatada to Jordan from UK.           

When the matter reaches the secretary of state, he must decide whether he is prohibited from ordering extradition by any of the matters stated in S. 93(2) EA 2003. If any such matter is present, then the requested person must be discharged. If not, then the order for extradition must be given. It has to be remembered that the secretary of state has no general discretion to decline to order an extradition. One of the matters stated in S.93 (2) EA 2003 for which extradition ‘MUST” be refused is the possibility of death penalty for the accused if convicted in the country seeking extradition. S. 94(1) EA 2003 provides that the secretary must not order a person’s extradition to a Category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the Category 2 territory.

Although the use of the word “MUST” gives a mandatory connotation, one loophole which can be utilised for our purposes is given in S.94(2), which provides that extradition can be ordered if the Secretary of State is satisfied after receiving a written assurance from the country seeking extradition that sentence of death will not be imposed or will not be carried out (if imposed).

Thus, in conclusion it is submitted that under the current UK extradition law it appears that, unfortunately, Bangladesh will have to forego its desire to see Mueenuddin receive capital punishment and be content with seeing him lamenting behind bars for the rest of his life, if it wants to realistically see him being extradited. This point was also highlighted recently by Mueenuddin’s lawyer, Toby Cadman, who said to AFP: “They (Bangladesh) will … be required to give an undertaking that Mr Mueenuddin will not receive the death penalty.” (Daily Telegraph, May 2, 2013).

However, this would not be an easy choice, as seeking the death penalty is Bangladesh’s sovereign right and giving it up, especially for someone who is alleged to have committed crimes against humanity, will not fare well with most, including those campaigning hard for securing the highest punishment for all war criminals.

Thus, although the mechanism is strictly legal, the considerations and ramifications remain very political. If the government does not want to go through the aforementioned legal procedure, it can look into the possibility of entering into a special extradition treaty with UK solely for the purpose of extraditing Chowdhury Mueenuddin, in which case all the legal requirements can be superseded in favour of the political solution.

For instance, Bangladesh recently entered into a bilateral extradition treaty with India. It can use that expertise to open up channels of diplomacy with a view to securing a specific treaty with the UK for the extradition of war criminals. If indeed the government goes that way, then the success of the process would completely depend on the diplomatic and political pressure that Bangladesh can exert on UK.

Given the universal sensitivity of crimes like genocide, war crimes and crimes against humanity, it is plausible to envisage such a special bilateral treaty being actually entered into by Bangladesh and UK sometime in the near future. Whichever gateway the Bangladesh government opts for, the process should be started immediately, in my opinion, as none of the processes are expeditious but rather long and arduous.