Extradition without a treaty? Here's how Pakistan can hand over Hafiz Saeed, Masood Azhar to India and why it won't

When Pakistan former foreign minister Bilawal Bhutto suggested that Islamabad could extradite terrorists Hafiz Saeed and Masood Azhar to India as a “goodwill” gesture, it sparked a moment of clarity in Pakistan’s muddled stance on terror. His remarks, coming from the son of former Prime Minister Benazir Bhutto who was assassinated by terrorists, have stirred fresh debate in both countries.

While critics were quick to dismiss it as political posturing, Bhutto's statement is not just symbolic; it’s legally and diplomatically possible. Despite the absence of a formal extradition treaty between India and Pakistan, international law does allow for the extradition of terrorists, provided there’s enough political will. The ball is squarely in Pakistan’s court.

Treaty not a legal necessity for extradition

It’s true that India and Pakistan do not have a formal bilateral extradition treaty. India proposed one back in 2004, but Pakistan never responded. Still, that hasn’t stopped countries in the past from extraditing individuals under international legal principles, customary practices, and reciprocal understandings.

India submitted a formal extradition request in 2023 for Hafiz Saeed and Masood Azhar, both of whom are responsible for some of the deadliest terror attacks on Indian soil, including the 2008 Mumbai attacks and the 2001 Parliament attack. Pakistan has acknowledged receipt of this request but is hiding behind the excuse of “no treaty.”

Here’s the truth: a treaty is not a legal necessity for extradition. There are clear precedents under international law where countries have cooperated on criminal extradition without any formal agreement.

What the law says

Even in the absence of a formal treaty, countries can still extradite fugitives if key legal conditions are met:

Double Criminality: The offence must be a crime in both countries. Terrorism is a recognised crime under both Indian and Pakistani law. Even Pakistan’s former president and Army chief, Pervez Musharraf, publicly admitted that people like Masood Azhar and Hafiz Saeed were responsible for cross-border terrorism.

Reciprocity: Countries can act on the principle of reciprocity—essentially saying, we’ll do it if you’d do the same. India doesn’t have any terrorist on its soil wanted by Pakistan, but it has extradited criminals to other countries before based on this principle.

Customary international law: International legal norms allow extradition even without treaties, especially in cases involving terrorism, which is a global threat. Pakistan has no legal barrier stopping it from handing over these terrorists—it’s only the lack of political courage.

So, what’s the process?

Here’s how Pakistan can extradite these terrorists to India:

Formal request: India has already submitted this through diplomatic channels, including detailed dossiers on both men.

Verification: Pakistan’s legal system would need to verify the identity and location of the accused and confirm that the offences fall under its own criminal code (which they do).

Judicial scrutiny: An inquiry magistrate in Pakistan would evaluate the legal grounds and pass it on to the government.

Final decision: The Pakistani government would make the final call on extradition, essentially a political decision.

Surrender: If approved, the individuals would be handed over at a designated point, usually via air transfer with Indian authorities.

Why Pakistan won’t do it

Pakistan’s power structure is controlled by its army, which has built its legitimacy and dominance on anti-India rhetoric. Hafiz Saeed and Masood Azhar are not just terrorists, they are strategic assets for the Pakistani military establishment. They serve a purpose: stoking cross-border terrorism in Kashmir and keeping anti-India sentiment alive at home.

Extraditing them would mean admitting they were state-supported all along – a move that would damage the army’s credibility and weaken its grip over Pakistan’s failing civil institutions.

Even if the civilian government wanted to hand them over, the military wouldn’t allow it. And without the generals' blessing, no major foreign policy decision – let alone one involving India – can go through.