Source: DNA India

It Won't be Easy to Extradite AndersonIndia’s renewed effort to secure former Union Carbide CEO Warren Anderson’s extradition has the potential to strain relations with Washington. The subtle message Indian ministers visiting Washington heard from the state department on the Bhopal gas tragedy is “case closed.”

“I don’t think the issues of extradition are ever purely legal. They are invariably political. The US will seek first and foremost to protect its own interests,” said Ashley J Tellis, a senior associate at the Carnegie Endowment for International Peace, in Washington.

Mumbai-born Tellis was intimately involved in negotiating the US civil nuclear deal with India as an adviser to former US undersecretary of state Nicholas Burns. He tells DNA in New York that although Anderson has become a lightning rod for a general feeling of injustice on the Bhopal case, the US is unlikely to act on an extradition request.   

Dow Chemical bought Union Carbide in 1999 and says all accident liabilities were cleared in a $470 million settlement reached out of court in 1989.

India’s request for Anderson’s extradition in May 2003 was rejected by the US but do you think it has a better chance now?

I don’t think the odds of Anderson being extradited are particularly high. I don’t think they were high in 2003 and I don’t think they are any higher today. Part of it has to do with the lack of clarity about what legal liability Union Carbide — as the former parent in Danbury, Connecticut — has for the accident in Bhopal. The other part of the problem of course is politics.

US opinion usually treats accidents of this nature as a problem of civil liability rather than criminality. Unless one can show prima facie evidence that the events in Bhopal were triggered by criminal actions and that the chain extends clearly from the operator in India all the way to the leadership of the parent corporation in Connecticut, it will be hard for the US government to accept an extradition request.

So India’s fury at president Obama’s tough stance against BP and accusations that the US has double standards over industrial accidents will not cut any ice?   

Obama has obviously reacted vigorously to BP’s role in the Gulf accident but at this point there is no effort to bring criminal proceedings against the BP leadership. It is being handled primarily as a problem of environmental damage which involves civil liabilities. So the president has been insistent that BP keep aside $20 billion as a reserve fund for compensation. It is being treated as a tort case as opposed to a criminal one, whereas the issue of Anderson’s extradition shades into the questions of criminality. I think that would be a harder argument to sustain. 

I understand the Indian public’s fury and frustration that there hasn’t been satisfaction with regard to the way the whole Bhopal disaster was handled but that does not constitute sufficient legal grounds for the US government to sustain an Indian extradition request. 

Would India be able to get Anderson if it mounted a big lobbying and diplomatic push?     

I seriously doubt it. There has to be prima facie evidence that Anderson had effective responsibility for what happened in Bhopal. I’m not saying that such a contention can never be proven in a court of law through a process of trial. It is just that India bears the burden of proof, which is high.   

While recommending extradition an Indian government panel noted that there were testimonies that Carbide’s bosses knew of the Bhopal plant’s faulty design.

This could well be true, but this involves a factual claim which has yet to be established indisputably. Unless that occurs, I am not sure the US would be able to act on an extradition request. It is not enough just to table an extradition request because there is a bilateral treaty — the factual basis for the request would have to be supported by a serious investigation.   

The executive branch cannot simply go out and apprehend an American citizen and have him extradited — the individual has strong constitutional rights. India will have to provide evidence that could hold up in American courts because Anderson will challenge any US extradition order if it were to be issued.

The US has extradition treaties with friendly countries but is it a reliable extradition partner? It extradited British executives on Enron charges but Britain has accused America of being unhelpful when it comes to handing over US citizens to foreign courts.

I don’t think the issues of extradition are ever purely legal issues. They are invariably political. The US will seek first and foremost to protect its own interests so it is really the balance of interests in any given extradition request that will determine the outcome. If the balance of interests is not in favour of the US, I find it hard to believe that the US government would act on an extradition request. 

Hypothetically speaking, it would be easier to extradite a person involved in a terrorist attack in India because there would presumably be enough palpable evidence against him. When you are talking of Bhopal, however, you are talking of a US multinational corporation where the relationship between parent and subsidiary is quite murky. It is hard to believe the US will respond in this case as it might in the case of extraditing a terrorist. It is these complexities that make the difference and they shade quickly into politics before you know it.

Has the Bhopal disaster hurt America’s corporate image abroad? 

Part of the problem is that it happened 25 years ago. If the issues had been elevated at the time when the accident occurred, the consequences would have been more serious. Everyone recognises that Union Carbide bears some responsibility but how much is unclear; how that translates into American governmental responsibilities is also unclear. 

The US is obviously motivated to protect its citizens’ interests in the BP case because it happened on US soil. The Bhopal accident, in contrast, occurred abroad. One can argue about moral responsibility, but it’s hard to expect the US president today to show the same level of indignation in regard to Anderson’s extradition as he has shown in the BP case. There are crucial differences. 

If the Indian government had taken a more vigorous position in the civil and criminal process then, you might had a different outcome. The moment for getting the kind of satisfaction from the United States that the Indian public is now demanding, I think that moment has passed.