Navigating jurisdictional complexities in the Anwarul Azim murder case

Recently, there has been significant press coverage in Bangladesh and India regarding the heinous murder of Bangladeshi Member of Parliament Anwarul Azim in India. The majority of the accused individuals are of Bangladeshi origin and have been apprehended in Bangladesh. However, the primary culprit, who happens to be a Bangladeshi American, escaped to the United States. Therefore, three countries are now involved with this case, prompting a discussion on jurisdiction over crimes in international context.

Section 3 of the Penal Code of Bangladesh establishes the principle of extraterritorial jurisdiction, asserting that the Code applies to any person liable, by any Bangladeshi law, who commits an offence outside the country as if the act had been committed within Bangladesh. This provision allows Bangladeshi authorities to prosecute its nationals for offences committed abroad. Moreover, the Passive Nationality principle is a doctrine that confers a state with the authority to prosecute specific crimes committed beyond its borders against its citizens by individuals who are not citizens of that state. Essentially, it grants a country the authority to pursue legal action for offences committed against its citizens, even if such offences took place beyond its borders.
Bangladesh can invoke this doctrine to assert jurisdiction over the offender since the victim is Bangladeshi.

India would likely have primary jurisdiction because the crimes were committed within its territory. According to section 2 of the Indian Penal Code, anyone who performs an action or fails to perform an action that is against the rules of the code will be subject to penalty. In this context, any individual who commits an offence is held accountable for punishment regardless of their nationality, social status, caste, or religious beliefs. The sole prerequisite for incriminating an individual under this section is that they must engage in the act or omission within the geographical boundaries of India. Therefore, a non-native individual who commits an offence within the borders of the country cannot claim unfamiliarity with the legal system of India.

Again, the principle of territoriality is the dominant principle of criminal jurisdiction that allows states to exercise jurisdiction over crimes committed on their territory. Moreover, the principle of subjective territorial jurisdiction allows states to exercise legal authority over actions initiated within their territory but completed or having effects elsewhere.

The United States v Yousef (1996) is a pivotal case demonstrating the application of the subjective territorial principle in criminal law. The court upheld the conviction of Ramzi Ahmed Yousef, a mastermind behind the 1993 World Trade Center bombing and the Bojinka plot. Despite Yousef's argument that much of his planning and preparatory actions occurred outside the United States, the court affirmed US jurisdiction based on the principle of subjective territorial jurisdiction. This case is significant as it reinforced the ability of the United States to prosecute international terrorists whose actions, though initiated abroad, have direct and harmful consequences within the US borders.

Therefore, while India has clear territorial jurisdiction over crimes committed within its borders, Bangladesh may also have an interest based on the nationality of the principal accused and the victim. On the other hand, the primary assailant and alleged mastermind of the crime escaped to the United States. It is imperative to bring him and ensure his presence for trial to conduct a thorough investigation and uphold justice. Obtaining custody of him in Bangladesh will be challenging since there is no extradition treaty between Bangladesh and the USA. However, the current extradition relationship between India with the USA gives them an advantageous position in apprehending the culprit. Even if the offender flees to Bangladesh, India may request extradition under the extradition treaty between India and Bangladesh. Bangladesh would then need to decide whether to extradite or prosecute the accused under its laws.

In conclusion, the complex case surrounding the murder of Anwarul Azim in India has brought to light intricate jurisdictional challenges involving multiple countries. While Bangladesh asserts extraterritorial jurisdiction over offences committed by its citizens abroad, India maintains primary jurisdiction due to the location of the crimes. The application of principles such as the Passive Nationality principle and Subjective Territorial Jurisdiction further complicates the matter, highlighting the need for careful analysis and diplomatic cooperation.

The writer teaches law at the University of Chittagong.