The Political Offense Exception to Extradition

Introduction 

Generally, the political offense exception is a defence against extradition. The exception provides that those who commit crimes of a political nature, in the context of a political struggle, should not be extradited as though they had committed ordinary crimes and fled the country to avoid being brought to justice. 

The original purpose of the political offense exception to extradition was to protect revolutionaries from being returned to their home countries to face prosecution for crimes committed against their governments. Since the political offense exception's noble beginnings in the 1700s, however, the world has changed greatly.

As a result, the policy rationales for allowing the political offense exception have become more complicated. Historically, the exception's functions were to protect revolutionaries and to prevent excessive involvement in the political affairs of countries requesting extradition.

Today, the exception encompasses a greater range of actors. Courts grapple with circumstances involving armed conflict, war criminals, asylum seekers, former government officials, and terrorism. In response to criticism that terrorists use the exception as a loophole to avoid extradition, extradition treaties have evolved to exclude terrorist activity from categories of crimes considered to be political offenses.

1. Historical background of the political offense exception

The political offense exception has not always been a facet of extradition. From the thirteenth century, B.C., to the eighteenth century, A.D., extradition specifically targeted individuals suspected of religious or political offenses against sovereigns. Prior to the eighteenth century, the escape of common criminals was not considered a public danger necessitating extradition. Sovereigns, however, did seek prosecution for crimes against the state and actively pursued offenders who escaped. Many fleeing offenders were captured by medieval despots, eager to surrender mutual political adversaries to solidify political power. Consequently, extradition treaties developed as a means of facilitating the return of suspected political offenders.

The historical origin of the first recorded extradition treaty dates back to 1280 B.C. This peace treaty between Ramses II of Egypt and the Hittite Prince Hattusili III provided for the return of one party's criminals who were found in the territory of the other party.

Originally, international extradition developed with the need to preserve the internal order of the respective states. Extradition was a gesture of friendship and cooperation between sovereigns. Between the sixteenth and eighteenth century, however, sovereigns used extradition for economic reasons in order to maintain channels of European commerce rather than for altruistic motives. Since the eighteenth century, the main purpose of extradition has been to serve an international means of cooperation to suppress common criminality. Extradition is no longer motivated by economic aspirations.

In international law, the duty to extradite another country's criminals has generally not been looked upon as an absolute duty. Therefore, most countries enter into bilateral treaties in order to ensure the return of their own alleged criminals.

Traditionally, the substantive requirements of extradition have been threefold: (1) the offense that the requesting state is claiming must be an extraditable act; (2) the offense must adhere to the rule of double criminality; and (3) the requesting state must comply with the principle of speciality.

Regarding the first requirement of international extradition law, there are two different methods to determine whether the offense is an extraditable act. The generally adopted method is the "enumerated method” where the treaty "specifies] by name the offenses for which extradition will be granted. The alternative development in treaty practice has been the "eliminative method. Here, "extraditable offenses are defined by reference to their punishability according to the laws of the requesting and requested states by a minimum standard of severity."

Assuming that the magistrate determines that the offense is extraditable, the second substantive requirement for extradition is double criminality. This rule requires that an act shall not be extraditable unless it constitutes a crime according to the laws of both the requesting and the requested states. 

The rule of double criminality is illustrated by Re Gerber, a decision of the German Federal Supreme Court in 1957. Switzerland requested the extradition from Germany of a defendant charged with an offense which according to German law was burglary. However, under Swiss law, the same alleged crime constituted three separate offenses: larceny, damage to property and breaking the peace of a private home. Both burglary and larceny were treaty offenses, but the other two offenses were not.

The Gerber court held that the set of facts underlying the offense charged were decisive. Thus, Germany had a duty to extradite despite the fact that the legal qualifications of the offense differed in German and Swiss law.

Finally, the principle of speciality further restrains potential extradition. Under the doctrine of speciality, a requesting state cannot try the accused for any offense other than the one for which surrender was made. If a magistrate in the requested state suspects the requesting state's intentions are corrupt, extradition will be denied.The rationale for the doctrine of speciality is to shelter the relator from unexpected prosecution even though the doctrine is mostly employed to shelter the requested state from misusing its processes.

However, the rule of speciality is restrictive; it only applies to instances that prevent the requesting state from breaking its international duties with regard to the requested state. Therefore, it is essential to determine whether the surrendering state would regard the prosecution at issue as a breach of its relations with the receiving state. 

As expounded in United States v. Rauscher, “the rule of speciality does not apply when extradition has been granted by an act of comity by the surrendering state." However, such a restrictive view of the rule of speciality must be applied in the context for which it was designed. The doctrine of speciality restricts the requesting states to only prosecute the extradition for those offenses for which the accused was surrendered.

2. The problem of defining a political offense

 

The term «political offence» does not refer to a well-determined criminal transaction which can be specified in terms of a moral and a material element. It is rather a descriptive label which can be adhered to each offence which subjectively (i.e. in the author’s intention) or objectively (i.e. as far as the nature of the interests injured or the consequences of the act are concerned) affects the polis, i.e. existing socio-political order. Therefore most definitions of the term political offence are tautologies, in the sense that the term «political» is usually defined by reference to the polis.  

Apart from this problem, which has led various authors to the conclusion that the term is indefinable, the major difficulties in using the concept in extradition cases mainly result form two elements. Firstly, extradition laws and treaties almost never define the term political offence, and consequently, the definition is invariably a matter of judicial interpretation and administrative discretion. Secondly, the decision as to whether or not a given offence qualifies as political is taken unilaterally by the requested State.

The consequence of this unilateral characterisation is that each State for itself determines the scope of the political offence exception. Accordingly, each country has developed its own judicial — but also political — criteria for defining the term political crime, with the result that the question as to whether a crime is political or non-political may be differently answered from one State to another.

In legal doctrine, a variety of terms has been devised to classify political offences. The classical distinction is that between purely and relatively political crimes. In addition, various other terms have been used, including the following: absolutely political crimes, complex and connex offences, mixed offences and predominantly political offences. With some exceptions most of these terms have remained doctrinal concepts with no fixed content and which may even vary from one author to another. They have seldom been used as such by the courts.

In the judicial interpretation of the term «political crime», various approaches can be noted. Roughly speaking, a distinction can be made between the subjective approach, the objective approach, and the mixed approach.

The subjective approach focuses on the intentions of the author. If it is established that the latter acted with a political motive or for a political purpose, his crime is deemed to be political. This theory has been followed in France for a number of cases. 

For example, in the Holder-case, an aircraft hijacking, committed by a number of American nationals who made vague allusions to Angela Davis but who, at the same time, extorted five hundred thousand dollars from the aircraft company, was considered as a political crime because the motives of the preparators were political. In the 1980 McCan-case, the same criterion was used to consider as political a bombing, committed by an IRA-member in a public cinema near the headquarters of the British army in the German Federal Republic. Extradition to the latter was refused.

The objective approach focuses on the act, without looking at the motivation of the author. Different models may be distinguished.

Firstly, the so- called «injured rights theory », followed in France during a certain period of time, which deduces the political character of the crime not from the motives for the act but from the nature of the rights injured by the act. 

Secondly, the model of « connexity », by which an ordinary crime may be considered political by reason of its being connected to (connexe) a purely political offence. This theory is followed in Switzerland and has also been applied in Ireland in the Bourke case. In that case, a person who, for Personal motives, namely friendship and compassion, had assisted a convicted spy in escaping from prison, was held non-extraditable because his act, through its connection with a purely political crime (the espionage of the person he assisted) was political. 

The most important model of the objective approach is the so-called «political incidence theory», which is being followed in the United Kingdom and the United States. In order to qualify as political according to this theory, the act must be part of an incidental to a political struggle. For example, in the 1980 Mackin-case an attempted murder of a British soldier in Northern Ireland by a member of the IRA was deemed political because of its beings connected with the overall conflict situation in Northern Ireland. In the Sindona-case, the crime of fraudulent bankruptcy was considered non-political because of the lack of a link with a political conflict situation in Italy.

Both the subjective and the objective approach have been heavily criticized because of their one-sidedness. The subjective criterion is overly broad because it renders political any crime, however serious, for which a political motivation is invoked. Moreover, the political motive underlying is not necessarily «noble»: the purpose may well be the bringing to power of a group which better serves the personal (e.g. economic interests) of the offender. 

Conversely, the objective theory has the drawback of being very radical in its category refusal to look at the motives for the act. The political incidence theory has been criticized for its over-emphasizing of the requirement that there should be a violent political struggle, and it has also been considered to be somewhat arbitrary in the sense that the question as to whether or not a given act «is incidental to» a given conflict may, in many cases, be debatable.

Reacting against such drawbacks, courts in many countries have developed an approach which can be termed mixed in that it combines the two latter, sometimes adding new criteria to the judicial interpretation of the term «political offence».

In France, some courts have recently been re-emphasizing the doctrine de gravity which had been promoted by the Institut de Droit International already at the end of the last century. According to this theory, extremely serious crimes cannot qualify as political. In some instances, the term délits sociaux is used to express the same idea. This criterion was used by the Court of Appeal of Paris in a number of German (Croissant, Winter, Hoffmann), Italian (Piperno, Pace, Affatigato, Biancorosso) and Spanish (Linzana Echevarria, Achega Aguire cases). It is, however, not consistently used by the other courts. For example, the crimes of the two Bases Azcargorta and Elorriaga whose extradition was requested by Spain, were deemed political «no matter how serious they were».

In various countries, Courts have considered that the political character of an offence should be interpreted in relationship to the Requesting State. For example, in the 1980 Escobedo-case, the attempted kidnapping of the Cuban consul in Mexico was considered non-political inter alia because extradition was requested, not by the target state (Cuba), but by a third state (Mexico). The same criterion has been used in Belgium, the United Kingdom, the Netherlands, Switzerland, Sweden and the German Federal Republic.

The most developed model of a «mixed approach» is the theory which has been developed by the Swiss courts known as the proportionality theory. Various criteria are used, the most important of which are the following : the act should be part of/linked with a political conflict situation; there should be a commensurateness between the act and the political objective of the act (extremely serious offences usually do not satisfy this criterion; for murder the courts even require that the crime should be the ultima ratio, i.e. the only possible means to reach the political goal aimed at); there should be a certain degree of effectiveness to the apt in that it should be instrumental towards attaining its political objective.

It is not surprising that the proportionality theory has appeared to be a very severe test in terrorist cases. In no such extradition case, the political offence exception has been successfully invoked by the requested person. The proportionality test has appeared to be an attractive test for courts in other countries. For example, the Netherlands Supreme Court has, under explicit reference to the Swiss jurisprudence, adopted the proportionality theory.

The proportionality theory has been criticised because of its potential for arbitrariness. Especially the requirement of the effectiveness of the act seems to be difficult if not impossible for a court to assess. On the other hand, the proportionality theory is the only one aiming at a certain balancing between various elements such as the seriousness of the act and the overall political situation in which it occurs.

One may discuss at length about the relative value of all these theories. What they have in common is that they all have as their main objective to define the term political crime. For example, the seriousness of an offence is often advanced as an element to demonstrate that it is not a political offence. Or the fact that extradition is requested by a third State, uninvolved in the conflict between the offender and the target state.

However, these characteristics do not say anything about the political or the non-political character of the act. A crime does not become more or less political because of its being serious or because of its being international. What is actually meant is that the crime concerned should be liable to extradition.

In other words, criteria such as the ones mentioned are advanced as defi- nitional criteria whereas in reality they relate to be extraditability of a given offender in a given case. As such one may have the feeling when reading cases in which the exception is raised that the court’s conclusion concerning the political or non-political nature of the act was in fact dictated by the conclusion one wanted to reach on the issue of extradition. This explains much of the ambiguities surrounding judicial interpretation of the political offence exception to extradition.

The problem becomes even more complicated if one also takes into account the executive stage of the decision-making, i.e. the final decision to grant or to refuse extradition. This stage is often less known and also difficultly researchable because the final decisions on extradition cases, rendered by the Government, are usually not published. However, considerable difference between the judicial interpretation and the final executive discretion in a par- ticular case may occur. 

In numerous cases, the Government departed from the Court’s opinion that the offences were non-political by refusing extradition on the basis of the political offence exception. A good example is the Abarca-case (1965). Abarca, a Spanish national and a militant adversary of Franco, had committed an unsuccessful attack against an Iberia aircraft in Geneva, Switzerland. To that end, he had placed a bomb in a suitcase which was about to be landed in the place when it was discovered. Abarca fled to Belgium and Switzerland requested his extradition. The Court of Appeal of Brussels before which brought did not accept Abarca’s argument that the crime was political; the court considered the crime to be a common offence because of its inherent seriousness and because of its having been committed in the territory of a neutral state against innocent victims.

Therefore, it found Abarca to be extraditable. The final decision was to be taken by the Minister of Justice. Part of Belgian public opinion was vividly interested in the case, in particular the Socialist Party, who organized demonstrations and voted an official manifest to refrain the Minister of Justice from extraditing Abarca. The Minister of Justice, who happened to be a Socialist, publicly declared that he refused the extradition on the grounds of the political offence exception. According to the Minister, Abarca’s crime was political because of its being linked with other identical attacks committed throughout Europe by the anti-Franco organisation to which Abarca belonged.

In this case, the motive underlying the ultimate decision is clear: it could be termed as domestic political pressure on decision making in extradition cases. In other cases, however, factors affecting the decision making are much less evident, and therefore often a matter of speculation. Not only domestic, but international political pressure may be of great importance. The economy or political ties with the requesting state, or the economic or military supremacy of the latter, may influence the decision of the government in the requested State. 

Understandable reasons of self-interest, wisely termed as «the wish to remain neutral» may affect the decision in cases where it is not clear who of the two contending parties within the requesting state — the government or the party to which the requested person belongs — will ultimately win.

The Abarca-case very well illustrates the drawback of the political offence exception. On the one hand, there was no risk for an unfair trial conducted by his political adversaries, extradition being requested by Switzerland and not by Spain, on the other hand the practical implication of the rule was that a potentially very serious offence remained unpunished. 

The problem raised by this case and by many other comparable extradition cases throughout the two past decades are not new. Especially the second one that of the impunity of the offender, has always existed, also when extradition had been refused on other grounds. However, in the contemporary situation of growing interdependence of nations and the relative shrinking of the globe resulting from the massive development of communications, the fight against criminality is being increasingly perceived as a problem common to mankind calling for a cooperative reaction on the part of states. In this context, the impunity of the offender as a practical result of the political offence exception, is much less acceptable that it was at the time the rule was developed.

3. Denial of Extradition: The Political Offense Exception

Even if a requesting state meets all of the substantive requirements for extradition, the requested state may still deny the request if the bilateral treaty provides any applicable exceptions. The political offense exception provided by most international extradition treaties prohibits extradition for political crimes. The standard political offense exception, exemplified in the extradition treaty between the United States and the United Kingdom, states:

Extradition shall not be granted if: (i) the offense for which extradition is requested is regarded by the requested party as one of a political character or (ii) the person sought proves that the request for his extradition has in fact been made with a view to try to punish him for an offense of a political character.

The political offense exception originated during the Enlightenment Era with the French idea of justified political resistance. In England, political philosophers, such as John Locke and John Stuart Mill, expanded upon this right of political resistance. In the late nineteenth century, this idea spread to the United States and was reflected in the political offense exception of the standard treaty clause.

The rationale of the political offense exception is premised on three interests: those of the requested person, the states concerned (requesting and requested state), and international public order. The main justifications for the political offense exception which reflect the convergence of these interests are: 1) that a belief that individuals have a right to resort to political activism to foster political change; 2) that individuals-particularly unsuccessful rebels-should not be returned to countries where they may be punished because of their political opinions; 3) and that governments-in particular, their non-political branches-should not intervene in the internal struggles of other nations.

These three justifications offered for the political offense exception reflect a widespread acceptance that political crimes have greater legitimacy than common crimes. Since most extradition treaties do not define "political offense," the task has been left primarily to judicial interpretation. Courts have developed two categories, pure and relative political offenses, for deciding when the political offender is barred from extradition.

"Pure political offenses" are political crimes such as treason, sedition, and espionage. Since these acts are directed at a particular sovereign and not against civilians, courts usually protect an offender under the political offense exception. Treason, sedition, espionage, peaceful dissent, freedom of expression and religion are considered purely political offenses, if they do not incite violence, because they lack the essential elements of common crimes. The perpetrator of the alleged offense merely acts as an instrument or agent of a political movement and is motivated by ideology that does not cause a private harm.

A proposed definition of a pure political offense is as follows: 

A purely political offense is one whereby the conduct of the actor manifests an exercise in freedom of thought, expression and belief (by words, symbolic acts or writing not inciting to violence), freedom of association and religious practice which are in violation of law designed to prohibit such conduct.

"Relative political offenses,” however, are more problematic since they encompass both political and criminal elements. A relative political offense occurs when an offender commits a common crime prompted -by ideological motives. Unlike the rule of the pure political offense, the parameters of the relative political offense are difficult to formulate because this classification intermixes political elements with criminal elements. 

Consequently, the relative political offense category is where controversy arises as nations must rely on some type of political offense test. Examples of relative political offenses include murder, bombing and skyjacking. These illustrations by themselves suggest the difficulty in applying the political offense exception.

Bibliography:

Offending Officials: Former Government Actors and the Political Offense Exception to Extradition Aimee J. Buckland

The political offence exception to extradition: Defining the issues and searching a feasible alternative. Christine Van Den Wijngaert VAN  

International Extradition Law and the Political Offense Exception: The Traditional Incidence Test as a Workable Reality. Rabia Anne Cebeci.

The Political Offense Exception: Is the United States-United Kingdom Supplementary Extradition Treaty the Beginning of the End? James J. Kinneally.