(MENAFN- Live Mint)

India has an 'obligatory duty' to extradite former Bangladesh Prime Minister Sheikh Hasina, claims Mohammed Yunus, chief adviser to the country's interim government, following her conviction.

Hasina, who has lived in exile in New Delhi since her August 2024 ouster after months-long student protests, was on Monday sentenced to death by the International Crimes Tribunal (ICT) on charges of crimes against humanity.

Although the ICT verdict remains pertinent from the perspective of accountability and post-transitional justice in the neighbouring country, New Delhi is unlikely to extradite her, even as it reaffirms its commitment to the people of Bangladesh.

An exception clause in the 2013 extradition treaty could provide the legal basis for the Indian government to allow Hasina to continue living in exile. Mint explains:

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What is the ICT, and its verdict?

Hasina set up the ICT in 2009 to probe crimes against humanity committed during the 1971 war that secured Bangladesh 's independence from Pakistan. The tribunal, since its establishment, has been the subject of criticism from her political rivals as well as human rights organizations.

In the current case, Hasina, former Bangladesh home minister Asaduzzaman Khan Kamal, and former inspector general of police Chowdhury Abdullah Al-Mamun were accused of crimes against humanity during the 2024 July uprising, which left nearly 1,400 protesters dead.

The Dhaka court has awarded the death penalty, in absentia, to Hasina on charges of inciting violence, ordering killings, and allowing lethal force to be used against protesters, mostly students.

What is the significance of the verdict in post-Hasina Bangladesh?

From a justice perspective, the verdict holds both symbolic and substantive value. Bangladesh's interim leader Muhammad Yunus has hailed the verdict, stating that it was a moment of justice that recognized the suffering of the student protesters.

It also shapes the narrative on holding powerful leaders accountable and underscores the independence and autonomy of the judiciary in post-Hasina Bangladesh.

Still, the fairness of the trial remains in question, particularly as it was conducted in absentia and may not have been entirely free from political influence. It is worth noting that Bangladesh is headed for elections early next year, and Hasina continues to be a polarizing figure.

While the due process is under scrutiny, there is no denying the existence of substantial evidence of mass atrocities during Hasina's tenure. Ensuring accountability through fair and independent judicial processes remains crucial.

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How has Hasina responded?

Hasina has called the judgment biased and politically motivated. She slammed the ICT, calling it a“rigged tribunal established and presided over by an unelected government with no democratic mandate". In her statements, she said while the situation went out of control last July, what happened cannot be characterized as“premeditated".

She defended her tenure in office and reiterated her strong record in terms of human rights, as well as her government's role in accelerating economic growth and prosperity for the country.

How has India responded?

In a 17 November statement, India has stated that it has noted the verdict announced by the“International Crimes Tribunal of Bangladesh" concerning Hasina.“As a close neighbour, India remains committed to the best interests of the people of Bangladesh, including in peace, democracy, inclusion, and stability in that country. We will always engage constructively with all stakeholders to that end," it said.

The official response has been measured, and New Delhi has followed a wait-and-see policy with regard to its closest neighbour. However, it will need to be mindful of the fact that regime-centric support may not augur well for its long-term interest in Dhaka. With public anger against Hasina still high, India must adopt a pragmatic approach, as it has rightly emphasized, in the interest of the people of Bangladesh.

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Is India under an 'obligatory duty' to extradite Hasina?

The ICT conviction meets the minimum procedural condition for extradition under the 2013 treaty. However, India is not under an 'obligatory duty' to extradite Hasina and can invoke exceptions under the following clauses.

First, Articles 1 and 2 hinge on the case of dual criminality. This means that the alleged offence-in this case, crimes against humanity-must be recognized under the domestic laws of both countries. This gives India room to deny extradition on the grounds that the charged offence doesn't fit within the template of India's domestic law.

Second, India can refuse extradition under Articles 6(1) and 8(3). Article 6(1) explicitly allows refusal if the alleged offence is of a 'political character'. Article 8(3) strengthens this by stating that extradition can be denied if the request is not made in good faith or not in the interests of justice.

India can invoke both provisions and claim that the charges are politically motivated and not made in good faith. In such a scenario, it will be incumbent on the Yunus regime to prove that charges were made in good faith. Further, India's own Extradition Act, 1962, provides supportive legal barriers against surrendering individuals charged in politically sensitive cases.

While anger and emotion have little space in diplomacy, a people-centric approach requires India to assess its position in terms of 'good faith' across both sides.

Shweta Singh is an associate professor in the department of international relations at South Asian University.

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