FOLLOWING months of speculation, the government of Bangladesh finally announced on October 30, 2024, its intention to initiate the extradition process for Sheikh Hasina, contingent on her conviction verdict, presumably by the International Crimes Tribunal-Bangladesh. Generally, Bangladesh could, as per the India-Bangladesh Extradition Treaty 2013 (amended in 2016), request her extradition from India with an arrest warrant, which it already has at its disposal. It has instead opted to wait for a trial conviction before formally approaching India. Though there may be some policy considerations behind this strategy, its legal implications cannot be ignored.

The delay in requesting extradition may have two potential drawbacks: compromising the due process of the trials and complicating the extradition process. Both are closely interlinked.

The ICT has already issued an arrest warrant against Sheikh Hasina, and the government’s stance suggests regarding her extradition that the Tribunal may proceed with a trial in absentia. Though trial in absentia is not a common law tradition, Bangladesh introduced it through a 1982 amendment to the Code of Criminal Procedure of 1898. Subsequently, the International Crimes (Tribunals) Act 1973 was amended to accommodate trials in absentia in 2012. It is notable that Bangladesh made a reservation to Article 14 (related to the right to a fair trial) of the International Covenant on Civil and Political Rights 1966, presumably to retain that judicial practice.

The earlier ICT prosecutors employed the policy of trials in absentia, resulting in about two-fifths of the total convicted being tried without their presence. In fact, ICT trials in absentia policy attracted considerable criticism due to procedural shortcomings. It is highlighted by the Mueen-Uddin vs Secretary of State for the Home Department of the UK Supreme Court decision on June 20, 2024. The UK Supreme Court criticised ICT trials in absentia due to the lack of a full opportunity to contest the case, the effectiveness of court-appointed counsel, the prospect of retrials, and the absence of constitutional safeguards. These criticisms are likely to resurface if Bangladesh proceeds without addressing these concerns in the ICT framework.

The publicly available ICT amendment proposals do not address the issues surrounding trials in absentia. Should the government proceed with its plan to seek extradition only after a conviction, it must seriously consider aligning ICT’s in absentia proceedings with international standards. In that case, the government may take notes from the practices of the UN Special Tribunal for Lebanon, the sole international tribunal that allows trial in absentia. However, Bangladesh can avoid all these criticisms if it decides to try Sheikh Hasina in person. Hence, it would be better to initiate the extradition process pending the final trial.

An extradition request following a final conviction verdict may itself fit within the grounds for refusal of extradition, as stipulated in Article 8 of the 2013 Extradition Treaty. It states, inter alia, that ‘[a] person may not be extradited if… he satisfies the Requested State that it would, having regard to all the circumstances, be unjust or oppressive to extradite him by reason of… the accusation against him not having been made in good faith in the interests of justice.’ Given the Awami League leadership’s strong denials of responsibility for the July massacre, as evident in their public statements, an extradition request accompanied by a conviction verdict rendered in an in-absentia proceeding will provide Sheikh Hasina with sufficient grounds to convince India to trigger Article 8 grounds to reject Bangladesh’s extradition request.

It is likely that India may rely on the procedural differences between in-person and in-absentia trials to substantiate the Article 8 grounds, arguing that the trials in absentia would produce an unjust or oppressive outcome for Sheikh Hasina, undermining the interest of justice. Such a stance would complicate Bangladesh’s ability to advance counterarguments in favour of extradition.

The existence of capital punishment in Bangladeshi law in general and in the ICT Act in particular may offer India an additional tool for interpreting Article 8 of the 2013 Extradition Treaty. While the appropriateness of the death penalty in the transitional justice context is still debated, it has been seen as a hurdle in extraditing individuals, even between countries that retain the death penalty. It is important to note that the existence of the death penalty as a form of punishment and as the specific sentence of an individual under an extradition request are distinct issues, with the latter being particularly problematic in this context. Though both Bangladesh and India have not abolished the death penalty, the imposition of this penalty on a high-profile political leader may present additional challenges.

Given the death penalty as the ICT Act’s highest punishment, the severity of charges against Sheikh Hasina and the availability of evidence against her, it would not be surprising if the ICT — based on its prior sentencing patterns — were to sentence her to death for her alleged role in the July massacre. In that case, India may interpret an extradition request with a conviction verdict containing the death penalty as potentially punitive, arguing that it falls under the Article 8 exceptions. This could make Sheikh Hasina’s extradition nearly impossible.

One of the major shortcomings of the 2013 Extradition Treaty is its absence of a mandatory dispute settlement procedure, which will prevent Bangladesh from resolving any potential disputes related to an extradition request with India. Consequently, both nations may need to engage in diplomatic negotiations to resolve the dispute. To ensure a favourable outcome — namely, the extradition of Sheikh Hasina — Bangladesh should remain vigilant about these issues.

The author has argued elsewhere that Bangladesh should devise proper strategies for providing ‘diplomatic assurances’ to the individuals under the extradition requests in accordance with international best practices. Such measures could help mitigate any due process deficiencies in Bangladesh’s justice system and could be crucial in countering any arguments India may make under Article 8 of the 2013 Extradition Treaty.

For ‘diplomatic assurances’ to be effective, it is recommended that they should be extended to India before the commencement of the trials of an extraditable individual. Even if the ‘diplomatic assurances’ are made after the completion of the trials of Sheikh Hasina, Bangladesh may ultimately need to assure India of her retrial as part of these assurances.

Based on these considerations, initiating the extradition process before trial proceedings begin may be essential for Bangladesh, as a conviction verdict would likely preclude her extradition under the 2013 Extradition Treaty.

Quazi Omar Foysal is an international law expert, currently working at American International University-Bangladesh.