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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 2 The objects of international law, Ch.8 Individuals, Principle of Non-Extradition of Political Criminals

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Extradition and mutual assistance — Aut dedere aut judicare

Principle of Non-Extradition of Political Criminals

Carlton Hall, Political Crime (1923) Herbold, Das politische Asil im Auslieferungsrecht (1933) Harv Research (1935), pp 107–19 Walker, ZöR, 4 (1924–25), pp 335–49 Kraus, RI, 3rd series, 8 (1927), pp 161–81 Poittevin, Répertoire, viii, pp 202–14 Mettgenberg, ZöV, 16 (1931–32), pp 731–41 Deere, AJ, 27 (1933), pp 247–70 Mannheim, Grotius Society, 21 (1935), pp 109–25 Reale, Hag R, 63 (1938), i, pp 541–61 Hambro, Western Political Quarterly, 5 (1952), pp 1–19 Gutteridge, BY, 31 (1954), pp 430–36 Garcia-Mora, Vir Law Rev, 48 (1962), pp 1226–57 Evans, AJ, 57 (1963), pp 1–24 Amerasinghe, Studies in International Law (1969), pp 164–201 Shearer, Extradition in International Law (1971), pp 166–93 Foighel, Israel YB on Human Rights, 1 (1971), pp 51–60 Wortley, BY, 45 (1971), pp 219–53 Defensor-Santiago, Political Offences in International Law (1977) Epps, Harv ILJ, 45 (1979), pp 61–88 van den Wijngaert, Rev Belge, 17 (1983), pp 741–54. Many of the general works on extradition (see § 415) contain passages on political offences. See also § 122, n 42, for literature on international terrorism, and § 402, n 2, on territorial asylum, much of which touches on questions of political crimes.

§ 421  Origin of the principle

Before the French Revolution1 the term ‘political crime’ was unknown in both the theory and the practice of international law, and the principle of non-extradition of political criminals was likewise non-existent.2 It was indirectly due to the French Revolution that matters gradually underwent a change.3 During the nineteenth century the principle of non-extradition of political criminals was gradually adopted. It is due to the firm attitude of the United Kingdom, Switzerland, Belgium, France and the United States that the (p. 963) principle has become general.4 Its existence is a necessary condition for an effective concept of political asylum.5

§ 422  Difficulty concerning the concept of political crime

Although the principle is now widely accepted that political criminals should not be extradited, there is probably no rule of customary international law which prevents their extradition.1 However, serious difficulties exist concerning the concept of ‘political crime’.2

(p. 964) A crime is sometimes considered ‘political’ if committed from a political motive;3 or if committed for a political purpose;4 or if committed both from a political motive and for a political purpose; or the term ‘political crime’ may be confined to certain offences against the state only, such as high treason, lèsemajesté, and the like.5 So far all attempts to formulate a satisfactory and generally agreed definition of the term have failed. The difficulty lies in large part in there being no general agreement as to what degree of politicisation is needed in order to classify an act as ‘political’, or indeed whether the act is to be regarded as political at all: what in the eyes of one state is a political movement seeking to achieve political ends within a state and as such deserving of protection, may be, in the eyes of another, a band of criminals deserving punishment.6 Since a (p. 965) political offence will usually be at the same time an ordinary crime such as murder, arson, theft and the like, the practical difficulty in any particular case is to determine whether the alleged political element is sufficient to give the ordinary crime a sufficient political colour to ensure to the perpetrator protection from extradition.7 This balance is, in the first place, to be struck by the state from which extradition is requested, in applying its laws as to the non-extradition of political offenders.

A further factor to be taken into account is that there may be fugitives who are wanted for ordinary crimes which they have committed but whose punishment for those crimes would be affected by political considerations. In modern circumstances the safeguard formerly afforded by the principle of specialty may not always be effective.8

§ 423  National law and the concept of political crimes

The definition of a political crime has been left primarily to the internal law of each country. In the United Kingdom the Extradition Act 1870 simply adopted the phrase ‘offence … of a political character’, without attempting to define that phrase, and the same language is used in the Extradition Act 1989.1 There have been a number of judicial decisions on the meaning of these words, but it cannot be said that their significance has yet been definitely established.2 The 1989 Act now includes (p. 966) provisions3 to protect a person from extradition where, although the offence is an ordinary offence, the request for his return is made for the purpose of prosecution4 or punishing him on account of his race, religion, nationality or political opinions, or where if returned his trial might be prejudiced, or he might5 be punished, detained or restricted in his personal liberty for those reasons.

The return of fugitives from the United Kingdom to other parts of the Commonwealth originally took place under the Fugitive Offenders Act 1881, and this Act, being based on the assumption (true at the time) that all the territories concerned were part of the same empire, contained no exception for political offenders.6 With the development of independent Commonwealth (p. 967) countries the need for the same kind of exception as occurs in ordinary extradition treaties became apparent. The Fugitive Offenders Act 1967, accordingly, introduced a prohibition7 against the return in circumstances substantially the same as those now set out in s 6(1) of the Extradition Act 1989, which provision applies in respect of return to Commonwealth states as it does in respect of return to foreign states. However, even where the courts have rejected a plea that a fugitive should not be extradited because of the allegedly political character of the offence, the executive may still refuse to surrender him if, in its discretion, it considers in all the circumstances that it would be wrong to do so,8 although in exercising this discretionary power the executive must pay due regard to any treaty obligations requiring extradition to be granted.9

The laws of many other states contain provisions which, while differing in some respects, particularly on matters of procedure, are broadly to similar effect in acknowledging the non-extraditability of those charged with political offences.10 The United States of America, on the other hand, has not enshrined (p. 968) the principle of non-extradition of political offenders in statute law, but allows extradition treaties embodying that principle to apply as part of the law of the land. American courts have tended to regard an offence as political if it is part of an organised form of disruption of the political structure of the state (as distinct (p. 969) from the promotion of social chaos), as where the act is ‘committed in the course of or furthering of civil war, insurrection or political commotion’.11

§ 424  International attempts to limit the meaning of ‘political offence’

International solutions to the difficulty of defining political offences have primarily taken the form of excluding from the concept certain categories of offences. The first attempt was the enactment of the so-called attentat clause, to the effect that murder of the Head of a foreign Government or of a member of his family, should not be considered a political crime. Although the attentat clause originated in Belgium in 1856, it has since been widely adopted.1

After the assassination of King Alexander of Yugoslavia in France on 9 October 1934, the Council of the League of Nations, in pursuance of a proposal made by France, took steps to bring about an international convention for the prevention and punishment of crimes of a political character described as acts of (p. 970) political terrorism.2 In the Convention signed at Geneva on 16 November 1937,3 23 states undertook to treat as criminal offences acts of terrorism — including conspiracy, incitement, and participation in such acts — and, in some cases, to grant extradition for such offences. In a supplementary Convention, signed on the same day, ten of the signatories of the principal Convention agreed to the creation of an International Criminal Court to which the parties would be entitled to hand over the accused if they decided not to extradite them or try them before their own courts. The Conventions have not entered into force.

More successful was the Genocide Convention 1948,4 Art 7 of which provides that the crime of genocide shall not be considered a political crime for the purpose of avoiding extradition in accordance with laws and treaties in force.

Article 3 of The Council of Europe Convention on Extradition 19575 prohibits extradition in respect of offences regarded by the requested state as a political offence or as an offence connected with a political offence; extradition is also to be refused if the requested party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that the person’s position may be prejudiced for any of these reasons. The Arab League Extradition Agreement 19526 prohibits surrender in the case of political offences; but this prohibition on surrender for political offences expressly excludes, in addition to the attentat clause, premeditated murder and acts of terrorism. The Inter-American Convention on Extradition 1981,7 Art 4.4, provides for extradition to be denied in respect of ‘a political offense, an offense related thereto, or an ordinary criminal offense prosecuted for political reasons’, but it does not give further definition of the (p. 971) term ‘political offense’. There is a close connection between such provisions (particularly those relating to the possibility of a person extradited for an ordinary offence being punished or prosecuted on account of his race, religion, nationality, or political opinion) and the Convention on the Status of Refugees 1951, Art 31 of which prohibits the return of a refugee to territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.8

International concern over the indiscriminate danger to innocent people caused by offences against aircraft prompted an attempt in the negotiation of the Convention for the Suppression of Unlawful Seizure of Aircraft 19709 and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 197110 to exclude those offences from the notion of political offences. This did not, however, prove possible, and the compromise adopted in both conventions11 was to establish the offences in question as extraditable offences, and to oblige the contracting state in whose territory an alleged offender is found to submit the case to its competent authorities for the purposes of prosecution if it does not extradite him, this obligation being expressly stated to be ‘without exception whatsoever and whether or not the offence was committed in its territory’.

This principle of aut dedere aut judicare has been adopted in other multilateral treaties dealing with serious offences which are generally condemned by the international community.12 One of these was the European Convention for the Suppression of Terrorism 1977,13 Art 1 of which, however, also reverted to the practice of excluding from the concept of a political offence (or an offence connected with a political offence, or inspired by political motives) certain violent crimes of a kind typically committed by terrorists, namely offences within the scope of the 1970 and 1971 Civil Aviation Conventions just referred to, serious offences involving an attack against the life, physical integrity or liberty of internationally protected persons including diplomatic agents, offences involving kidnapping, hostage-taking or serious unlawful detention, offences involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if that use endangers persons, and attempts to commit any such offences or being an accomplice of a person committing or attempting to commit them. By Art 2 other serious offences involving acts of violence against the life, physical integrity or liberty of a person, or involving an act against property if (p. 972) the act created a collective danger for persons may, at the discretion of contracting parties, be treated as not constituting a political offence. These provisions have proved influential for bilateral treaties concluded between parties to the Convention and non-parties,14 and between two non-parties.15

Footnotes:

Note, however, an anticipation by Francis Hutcheson, System of Moral Philosophy (1755), Book 3, ch 10, § 9, p 105, where he asserts the principle of the non-extradition of ‘State criminals’ as he describes them.

Martitz, International Rechtshilfe in Strachsachen, ii (1897), pp 177, gives a list of important extraditions of political criminals which took place between 1648 and 1789.

Which country first prohibited the extradition of political criminals is a controversial question: see Mettgenberg in ZV, 14 (1927), pp 237–47. In 1829 a celebrated dissertation by a Dutch jurist made its appearance, in which the principle of non-extradition of political criminals was for the first time defended with juristic arguments, and on a juristic basis: H Provo Kluit, De Deditione Profugorum.

But it may be noted that treaties of extradition between the Soviet Union and Eastern European states do not make any exception for political offences: see BY, 36 (1960), p 429. The position was similar as between Commonwealth countries under the Fugitive Offenders Act 1881: see § 423.

For a rejection of the view that there exists a right of political asylum see Chandler v United States, where the Court affirmed a conviction for treason committed by an American citizen who broadcast in the German interest in Germany during the Second World War and was subsequently arrested in Germany by American military authorities and brought to the United States: (1948) 171 F (2nd) 921; AJ, 43 (1949), p 804; AD, 15 (1948), No 97. The Court held that even assuming that there was a valid extradition treaty between Germany and the USA, it applied only to fugitives who, unlike the accused, had fled the country where the crime was committed.

Even though an extradition treaty might not allow for the extradition of persons accused of political offences, that does not prevent a party requesting the other party to grant extradition in such a case; and if the request is granted, the person thus extradited cannot on his return to the requesting state assert a right not to be tried for the allegedly political offence. See Spanish-German Extradition Treaty Case, AD, 3 (1925–26), No 234; ‘Baader-Meinhof’ Group Terrorist Case (1977), ILR, 74, p 493.

See § 402, and, in relation to refugees generally, § 399; and see also § 424, n 8. For a consideration of various arguments concerning the exclusion from extradition of offences having a political character, see Chs VI and VII of the Report of the Law Enforcement Commission appointed by the British and Irish Governments in 1973 (Cmnd 5627).

See The State (Duggan) v Tapley, ILR, 18 (1951), No 109; State of Japan v Mitsuyo Kono and Takao Kono (1971), ILR, 59, p 472; In the Trial of F E Steiner (1971), ILR, 74, p 478.

As to the extradition of ‘war criminals’ see Art 228 of the Treaty of Peace with Germany (1919), Art 112 of the German (Weimar) Constitution, and vol II of 7th ed of this work, p 569, n 3. As to the extradition of persons accused of war crimes after the Second World War see vol II of 7th ed of this work, § 257a and H Lauterpacht, BY, 21 (1944), pp 86–95. See also In re Koch (1959), ILR, 30, at pp 507–8, 510.

On the question whether ‘war crimes’ (see below, vol II of 7th ed of this work, §§ 251–7) should be considered as political crimes or not, and on the refusal of the Netherlands to surrender the ex-Kaiser William, see Fauchille, § 469 (1), and Travers, RI, 3rd series, ii (1921), pp 125–50. In Re Colman the Paris Court of Appeals in 1947 decided that a fugitive from Belgium accused of intelligence with the enemy and carrying arms against Belgium could be extradited on the ground that such offences were common and not political crimes: AD, 14 (1947), No 67. See also, to the same effect, the judgment of the Court of Appeal of Nancy in Re Spiessens: AD, 16 (1949), No 89, and Revue critique de droit internationale privé, 40 (1951), p 487; The State v Schumann (1965), ILR, 39, p 433; Re Bohne, AJ, 62 (1968), p 784; Kroeger v Swiss Federal Prosecutor’s Office (1966), ILR, 72, p 606; see also Demjanjuk v Petrovsky (1985), ILR, 79, p 535. See on the other hand, the contrary decision of the Supreme Court of Brazil in Denmark (Collaboration with the Enemy) Case, AD, 14 (1947), No 71; Re Kahrs, AD, 15 (1948), No 99; Re Van Bellinghen, ILR, 17 (1950), No 88; Re de Serclaes, ILR, 19 (1952), No 78; Re Spiessens, ILR, 20 (1953), p 369; Residence Prohibition Order Case (2) (1968), ILR, 61, p 433. See also the various stages of the Artukovic case in the USA, cited at § 423, n 11. See also Morgenstern, BY, 25 (1948), pp 382–6; Neumann, AJ, 45 (1951), pp 495–508; Green, ICLQ, 11 (1962), pp 329–54; and Garcia-Mora, Mich Law Rev, 62 (1964), p 927.

In 1946 the UN General Assembly adopted a resolution urging all states to arrest war criminals and cause them to be sent back to the countries where their deeds were committed: Res 3(I). The General Assembly adopted later resolutions on international cooperation in apprehending persons guilty of war crimes, including cooperation over their extradition: see, eg GA Res 3074 (XXVIII) (1973). The Genocide Convention provides that genocide is not a political crime for purposes of extradition: see § 424, at n 4. Extradition may be refused for offences connected with rendering assistance to an enemy on the grounds that the offence, irrespective of its political content, is not listed in the relevant extradition treaty: see re Talbot, AD (1947), No 68. Article 5(3) of the French Extradition Law of 1927 (Harv Research (Extradition, 1935), p 380) provides that acts committed in the course of an insurrection or civil war may not be grounds for extradition unless they constitute acts of odious barbarism and vandalism prohibited by the laws of war. See also, § 402, n 2, for the Resolution of the First Assembly of the UN as to so-called ‘quislings and traitors’. In the various peace treaties concluded in 1946, provision is made for the apprehension and surrender, on the part of the defeated states, of nationals of any Allied Power accused of having violated their national law by treason or collaboration with the enemy during the war (see, eg Art 45 of the Treaty with Italy). See also generally, § 435.

The Convention on the Status of Refugees 1951 (§ 399) does ‘not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes …’ (Art 1.F). See also, similarly, Art 1.2 of the Declaration on Territorial Asylum 1967 (GA Res 2312 (XXII) (1967)).

While political motive is probably a necessary element, it is not sufficient by itself to characterise as political an offence not intrinsically having that character: Re State of Wisconsin and Armstrong (1973), ILR, 69, p 240; ‘Baader-Meinhof’ Group Terrorist Case (1977), ILR, 74, p 493.

In the Fort case in Germany in 1921 two persons who were accused of having murdered the Spanish Prime Minister Dato in 1921, and had fled to Germany, were extradited, although the German-Spanish Treaty precluded extradition for political offences, on the ground that the alleged murder was an act of revenge, possibly arising out of a political motive but not committed with a view to achieving a political object: see Mettgenberg, ZV, 12 (1923), pp 200–21. In ‘Baader-Meinhof’ Group Terrorist Case (1977), ILR, 74, p 493, it was held that membership of a criminal association (a terrorist gang), even if motivated by political notions, did not constitute a political offence. See generally on the ‘political offence’ defence in relation to terrorism, § 424, n 2.

In Re Pavelic and Kwaternik the Court of Appeal, Turin, in 1934 refused to extradite to France the persons accused of participating in the assassination of the King of Yugoslavia: see AD, 7 (1933–34), No 158, and Philonenko, Clunet, 61 (1934), pp 1157–69. Similarly, extradition of a person accused of attempting to assassinate President de Gaulle of France was refused by Switzerland: Watin v Ministère Public Fédéral (1964), ILR, 72, p 614. As to the deportation in 1972 from Gibraltar to Morocco of two persons who had attempted to assassinate the King of Morocco, see § 414, n 7, para 3.

The difference in approach in the UK and the USA to the characterisation of offences committed by the ‘Provisional Irish Republican Army’ in Northern Ireland and other parts of the UK is illustrative. For the UK the IRA members have committed terrorist offences which are crimes under the local law, while the US courts have denied their extradition in several cases as being wanted for political offences: see, eg In the Matter of the Extradition of McMullen, AJ, 74 (1980), p 434; United States v Mackin (1981), ILR, 79, p 459; In the Matter of the Requested Extradition of Doherty (1984), ILR, 79, p 475. However, in Quinn v Robinson (1986), ILR, 79, p 490, extradition to the UK of a person wanted on IRA terrorist charges was allowed. The attitude of US courts in these cases may be contrasted with their dismissal of the political offence defence to extradition in relation to members or supporters of the PLO: see Abu Eain v Wilkes (1981), ILR, 79, p 439. In relation to this case see also GA Res 36/171 (1981).

See eg Art 3(1) of the Swiss Law on International Judicial Assistance in Criminal Matters (§ 423, n 10), which prohibits extradition in proceedings which have a ‘predominantly’ political character. The same test of predominance of the political elements of an offence was applied by, eg the Netherlands Supreme Court in Folkerts v Public Prosecutor (1978), ILR, 74, p 498.

See § 420, n 7. See also Extradition of Member of Algerian Irregular Army Case (1961), ILR, 32, pp 294, 297. Note the presumption of good faith in application of the specialty principle by the requesting state, § 420, n 9 and § 423, n 2.

Section 6(1)(a).

English courts are reluctant to conclude that a state requesting extradition is doing so otherwise than in good faith and in the interests of justice, or that it will not honour its treaty obligations which require it to observe the principle of specialty: see Zacharia v Republic of Cyprus [1962] 2 All ER 438, 445; R v Governor of Brixton Prison, ex parte Kotronis [1971] AC 250, 278, 280, in both of which cases the House of Lords rejected on that ground the fugitive’s contention that if returned to the requesting state he would suffer on political grounds (see also § 420, n 9).

Two early cases in which English courts had to consider the nature of political offences were Ex parte Castioni [1891] 1 QB 149, and Re Meunier [1894] 2 QB 415. In the case of Castioni, a Swiss who had taken part in a revolutionary movement in the canton of Ticino and had incidentally shot a member of the Government, the Court refused extradition because the crime was considered to be political. On the other hand, in the case of Meunier, a French anarchist who was prosecuted for having caused two explosions in France, one of which resulted in the death of two individuals, the extradition was granted because the crime was not considered to be political. In Ex parte Kolczynski [1955] 1 QB 540, it was held that seven Polish seamen, who had overpowered the captain and other members of the crew of a Polish vessel in order to bring the vessel to England and there seek asylum, should not be extradited to Poland as they had shown that the request had been made with a view to trying or punishing them for an offence of a political character. This conclusion was reached notwithstanding that there was no political conflict in Poland between different parties contending for power there, as Ex parte Castioni had suggested was necessary: ‘the words “Offence of a political character” must always be considered according to the circumstances existing at the time when they have to be considered’ (per Cassels J, [1955] 1 QB 540, 549). For comment on the Kolczynski case see Gutteridge, BY, 31 (1954), pp 430–36; Denny, MLR, 18 (1955), pp 380–85. In Schtraks v Government of Israel [1962] 3 All ER 529, the House of Lords refused to regard as a political offence the offence of perjury and child-stealing allegedly committed in Israel in connection with circumstances concerning the control, education and religious upbringing of a child: despite strong religious factors in the political life of Israel, the offences in question were not committed as a demonstration against the policy of the government of Israel, nor was Israel pursuing the accused for reasons other than the enforcement of its criminal law in its ordinary aspect. So too in Re Government of India and Mubarak Ali Ahmed [1952] 1 All ER 1060, it was held, with regard to a request for extradition for forgery, that the Court could not inquire into the allegation that the case had political implications and that the accused would not receive a fair trial. This aspect of the decision probably had reference to the particular circumstances of the case. The possibility of a political presentation being instigated under the colour of a common law crime cannot, in principle, be ruled out. To be a political offence the conduct in question must occur in order to challenge the political control or government of a state, not just the government’s policy towards a particular private group or institution: R v Governor of Pentonville Prison, ex parte Budlong [1980] 1 All ER 701. The fact that a person will, if extradited, be tried by special courts does not necessarily establish that the offence for which his extradition is sought is a political offence: R v Governor of Winson Green Prison, Birmingham, ex parte Littlejohn [1975] 3 All ER 208. In that case Lord Widgery CJ concluded that the weight of authority showed that a political offence was such ‘either because the wrongdoer had some direct ulterior motive of a political kind when he committed the offence, or because the requesting State is anxious to obtain possession of the wrongdoer’s person in order to punish him for his politics rather than for the simple criminal offence referred to in the extradition proceedings’ (at pp 211–12). The fact that a person has been the subject of acute political controversy in the requesting state, although without himself having entered the political arena, does not constitute him a person whose punishment would be sought on account of his political views: R v Governor of Pentonville Prison, ex parte Teja [1971] 2 QB 274, 288–9.

To be a political offence for purposes of extradition laws the offence must have that character as against the requesting state, so that an offence which might have a political character in relation to a third state only is not one for which extradition will be refused: Cheng v Governor of Pentonville Prison [1973] AC 931, on which see Cotterell, LQR, 89 (1973), pp 476–9. A Dutch court reached a similar conclusion in J v The State [1974] NJ 97.

Section 6(1)(c) and (d).

Possibly only in respect of past, rather than future, conduct. See Keane v Governor of Brixton Prison [1972] AC 204 (although relating to the slightly different provisions of the Backing of Warrants (Republic of Ireland) Act 1965).

As to the test to be applied in determining how likely it is that political or other factors would affect the issue, see R v Government of Singapore, ex pa. te Fernandez [1971] 2 All ER 691.

Zacharia v Republic of Cyprus [1963] AC 634; and see UK Contemporary Practice (1962-I), pp 1–2. However, cf Re Government of India and Mubarak Ali [1952] 1 All ER 1060; Re Application by Chifunda (1961), ILR, 32, p 299.

Section 4. As regards extradition to the Republic of Ireland, s 2(2) of the Backing of Warrants (Republic of Ireland) Act 1965 also incorporates a ‘political offence’ exception. And see Keane v Governor of Brixton Prison [1972] AC 204.

The Home Secretary’s general discretion in this matter is recognised as a matter of English law in s 12 of the Extradition Act 1989. See also Atkinson v Government of the United States of America [1971] AC 197, 232–3, 239, 247; R v Governor of Brixton Prison, ex parte Kotronis [1971] AC 250, 281; Zacharia v Republic of Cyprus [1963] AC 634. For a discussion of the nature of the Home Secretary’s discretion under the Fugitive Offenders Act 1881 in relation to the return to Nigeria of Chief Enaharo, see O’Higgins, ICLQ, 12 (1963), pp 1364–78. After the decision of the House of Lords in the Zacharia and Kotronis cases, rejecting their appeals against return to the requesting country, the Home Secretary exercised his discretion in their favour and declined to order their return: The Times, 2 May 1962 and 10 December 1969.

The Home Secretary’s refusal, in the exercise of his discretion, to order the return of Kotronis in 1969 is believed to be the only instance of an executive decision not to extradite a fugitive, in apparent conflict with a treaty obligation to grant extradition: but see § 418, n 4. Other cases, such as that involving Zacharia, related to Commonwealth countries and thus did not involve treaty obligations.

10 

  1. (1)  Thus, the Swiss Law on International Judicial Assistance in Criminal Matters (ILM, 20 (1981), p 1339) provides for non-extradition if the subject of the proceedings has a predominantly political character (Art 3(1)), and excludes from acts of a political character certain serious offences affecting the freedom or life of individuals (Art 3(2)); it also protects fugitives from extradition to face prosecution, punishment or prejudice on account of political beliefs, race, religion, social grouping or nationality (Art 2(b), (c)). Under the earlier Swiss law enacted in 1892 the non-extradition of political criminals was similarly recognised, but political criminals were nevertheless to be surrendered if the chief feature of the offence wore more the aspect of an ordinary than of a political crime. In Re Kaphengst the Swiss Federal Court granted extradition of a person accused of having committed bomb outrages of a purely terrorist character: AD, 5 (1929–30), No 188. In the Pavan case the same Court granted extradition (to France) of a person accused of killing an Italian fascist in France: AD, 4 (1927–28), No 239. The same Court refused extradition for homicide in a case in which a member of the German Social-Democratic Party killed a member of the National-Socialist Party. The Court held that the alleged offence took place in the course of a political struggle approaching a civil war: Re Ockert, AD, 7 (1933–34), No 157. See also Re Ficorilli, ILR, 18 (1951), No 110; Re Peruzzo, ILR, 19 (1952), No 79; Re Nappi, ILR, 19 (1951), No 881; Della Savia v Ministère Public de la Confédération (1969), ILR, 72, p 618 (requiring, in a case concerning anarchist conduct, that to constitute a political offence conduct must be committed in the course of a struggle for power in the state, must have a close and direct relationship with the political purpose in view, and must be proportionate to the object pursued). Swiss courts have also required that in order to be characterised as political the means used must not be disproportionate in relation to the political end sought by the fugitive: see Re Kavic, ILR, 19 (1952), No 80; Ktir v Ministère Public Fédéral (1961), ILR, 34, p 143; Watin v Ministère Public Fédéral (1964), ILR, 72, p 614; Kroeger v Swiss Federal Prosecutor’s Office (1966), ILR, 72, p 606.

  2. (2)  In the Federal Republic of Germany the Law on International Assistance in Criminal Matters (ILM, 24 (1985), p 945) provides for extradition to be refused for a political act or an act connected with such an act, although it is to be granted in relation to acts of genocide, murder or manslaughter (s 6(1)); it is also not to be granted if the accused, if extradited, would be persecuted, punished or prejudiced because of his race, religion, citizenship, social grouping or political beliefs (s 6(2)). The Law is to be read subject to provisions of treaties which have become part of the law of the Federal Republic. The Law must also be read with Art 16(2) of the Basic Law which provides that the politically persecuted shall enjoy the right of asylum. This constitutional guarantee has been liberally interpreted, and a person within its protection may not be extradited. See, eg Extradition (Ecuadorian National) Case, ILR, 20 (1953), p 370; Extradition of Greek National (Germany) Case, ILR, 22 (1955), p 520; Extradition (Yugoslav Refugee in Germany) Case (1959), ILR, 28, p 347; Extradition of Member of Algerian Irregular Army Case (1961), ILR, 32, p 294. See also, generally, ‘Baader-Meinhof’ Group Terrorist Case (1977), ILR, 74, p 493; Yugoslav Terrorism Case (1978), ILR, 74, p 509.

    As to other states, see:

  3. (3)  as to France, the law of 10 March 1927 (RG (1927), p 544) which forbids extradition when the offence is of a political character or it is reasonably suspected that extradition is requested for political purposes, and gives a liberal definition of ‘political crime’; see generally on this law Travers, Clunet, 54 (1927), pp 595–610, and Saint-Aubin, RG, 35 (1928), pp 10–31; and see Re Colman, AD, 14 (1947), No 67; Re Giovanni Gatti, AD, 14 (1947), No 70; Re Inacio da Palma, ICLQ, 18 (1969), p 230; Re Piperno, AJ, 74 (1980), p 683; Affatigato case, RG, 87 (1981), pp 154–6; and statements on behalf of the French Government, RG, 87 (1983), pp 408–10, and RG, 90 (1986), pp 213–14;

  4. (4)  as to Belgium, see Re Barrantini, AD, 9 (1938–40), No 159; Re Zaouche (1960), ILR, 31, p 386; In re Talbi, (1961), ibid, p 387;

  5. (5)  as to the Republic of Ireland, see Bourke v Attorney-General (1970), ILR, 55, p 558 (holding the escape of a convicted spy to be a political offence, and the aiding of such an escape, while not itself a political offence, therefore connected with such an offence and thus non-extraditable); and McGlinchey v Wren (1982), ILR, 79, p 49 (in which the Supreme Court declined to treat as a political offence any act which ‘reasonable, civilised people would not regard as a political activity’, thereby departing from the previous judicial tendency to construe ‘political offence’ leniently in favour of the fugitive). See also Shannon v Fanning (1984), ILR, 79, p 89; McMahon v Leahy (1984), ILR, 79, p 54; Quinn v Wren (1985), ILR, 79, p 108; Harte v Fanning (1987), ILR, 79, p 129; Russell v Fanning (1988), ILR, 79, p 134; and generally, Kelly, ZöV, 45 (1985), pp 44–59; Denny, ZöV, 51 (1991), pp 46–66. But in two decisions in 1990, Re Finucane and Re Carron (13 March and 6 April respectively: The Guardian (London), Law Report, 14 June 1990 and 20 June 1990), the Supreme Court overruled the stricter view of ‘political offence’ adopted in Russell v Fanning, and accordingly disallowed the return to Northern Ireland of the people concerned (both associated with IRA activities) since their offences were, or were connected with, politically motivated offences where the objective was to secure the ultimate unity of Ireland;

  6. (6)  as to Chile, see Re Campora, ILR, 24 (1957), p 518; Re Garcia Zepeda, ILR, 22 (1955), p 528;

  7. (7)  as to Argentina, see Re Peyre, ILR, 22 (1955), p 525; Re Bressano (1965), ILR, 40, p 219; Re Bohne, AJ, 62 (1968), p 784;

  8. (8)  as to Italy, see Re de Serclaes, ILR, 19 (1952), No 78; Public Prosecutor v Zind (1961), ILR, 40, p 214;

  9. (9)  as to Ghana, see The State v Schumann (1966), ILR, 39, p 433;

  10. (10)  as to Canada, see Re State of Wisconsin and Armstrong (1973), ILR, 69, p 240 (holding arson and murder not to be political offences where they are committed as part of an essentially peaceful movement designed to bring about a change in government policy, but committed not against government property or the lives of government personnel and not as part of a rebellion against the authority of the government and not in the course of political tumult or revolution).

11  Re Ezeta (1894) 62 F 972, 978. See also Ramos v Diaz (1959), ILR, 28, p 351; the various stages of the Artukovic case (ILR, 21 (1954), p 66; ILR, 24 (1957), p 510; (1959), ILR, 28, p 326; and (1985), ILR, 79, p 383); Jimenez v Aristeguieta (1962), ILR, 33, p 353; Re Gonzalez (1963), ILR, 34, p 139; Garcia-Guillern v United States (1971), ILR, 51, p 270; Escobedo v United States (1980), ILR, 79, p 430; Abu Eain v Wilkes (1981), ILR, 79, p 439 (in relation to this case see also GA Res 36/171 (1981)). See also the US cases referred to at § 422, n 6. See generally Hackworth, iv, pp 45–52; Whiteman, Digest, 6, pp 799–857; Bassiouni, International Extradition: United States Law and Practice (1983); Restatement (Third), i, pp 556, 571.

The attentat clause was enacted by Belgium in 1856, following the case of Jacquin in 1854, who tried to cause an explosion with the intention of murdering the Emperor Napoleon III. The Belgian Court of Appeal had to refuse extradition to France on account of the Belgian extradition law prohibiting the surrender of political criminals. It was to provide against such a situation in the future that Belgium in 1856 amended its extradition law by the addition of the attentat clause.

A Russian attempt in 1881 to convene a conference to consider the proposal that no murder or attempt to murder ought to be considered a political crime was unsuccessful, and the conference did not take place. But see now n 13, as to the European Convention for the Suppression of Terrorism 1977.

For a survey of treaties and a criticism of the attentat clause see Harv Research (Extradition 1935), pp 115–18, and Bourquin, Hag R (1927), i, pp 212, 213. The French Law of 1927 (see § 423, n 10(3), did not adopt the attentat clause, but many other European states have adopted it, and it appears in Art 3.3 of the Council of Europe Convention on Extradition 1957 (§ 416, n 6) and in Art 4 of the Arab League Extradition Agreement 1952 (§ 416, n 7). Although the UK has not adopted the clause in a general form, a restricted form of it, limited to offences against the life or person of the Head of the Commonwealth appeared in s 4(5) of the Fugitive Offenders Act 1967; this provision was not included in the Extradition Act 1989.

The purpose of the attentat clause is only to a limited extent met by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons 1973 (see generally § 492), which applies to Heads of State as well as to other persons. It obliges parties either to extradite the offender or submit the matter to their competent authorities with a view to prosecution (Art 7), and lays down special rules as regards extradition (Art 8). Extradition, however, remains subject to the procedural requirements and other conditions of the law of the requested state (Art 7.2 and 3), and these are likely to include a prohibition on the extradition of political criminals.

See generally on terrorism § 122. On political offences in the context of terrorism in particular, see Kittrie, YB of World Affairs, 32 (1978), pp 208–36; Gilbert, ICLQ, 34 (1985), pp 695–723; Richard, AFDI, 34 (1988), pp 652–76; Green, Germ YBIL, 31 (1988), pp 337–71; and § 422, n 6, and § 423, n 10. See also the Draft Articles on Extradition in Relation to Terrorist Offences approved by the ILA in 1988, Art IV of which would exclude the ‘political offence’ exception in relation to certain specified terrorist offences: Report (63rd Conference, 1988), pp 39, 1034. See also Report (62nd Conference, 1986), pp 559–74. For differences between France and Spain over a series of cases in which requests for extradition of alleged terrorists were rejected, inter alia, on grounds that their offences were political, see RG, 85 (1981), pp 554–5. See also the decision of the French Conseil d’Etat of 23 September 1988 that where a fugitive was wanted in Spain for certain serious offences connected with the activities of the Basque separatist movement, the fact that those offences, which were not themselves political, had been committed in the context of the fight for the independence of the Basque country and within an armed organisation was not sufficient for them to be treated as having a political character; and given the gravity of these non-political offences, the accused could not be considered a refugee so as to be non-extraditable on that ground.

See § 122, n 43;

See generally, § 434.

See § 416, n 6. As the Convention does not define ‘political offence’, the criteria developed in the municipal law of a requested state can continue to apply: Delia Savia v Ministère Public de la Confédération (1969), ILR, 72, p 618.

See § 416, n 7.

ILM, 20 (1981), p 723. Article 4 of the Inter-American Convention on Territorial Asylum 1954 excludes extradition of persons who are ‘sought for political offences, or for common offences committed for political ends, or when extradition is solicited for predominantly political motives’ (BFSP, 161 (1954), p 566).

See generally § 399, nn 10, 15a. See also Folkerts v State-Secretary of Justice (1978), ILR, 74, p 472. See also Art 3(1) of the Declaration on Territorial Asylum 1967 prohibiting return ‘to any State where he may be subjected to persecution’: GA Res 2312 (XXII).

Note also Art 1 F(b) of the Convention on the Status of Refugees 1951, which excludes from the scope of the Convention any person who ‘has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee’. See also Nicosia v Wall (1971), ILR, 51, p 372.

TS No 39(1972). For the exclusion of aircraft hijacking from the concept of a political offence in a bilateral treaty see, eg Art V.C of the USA-Spain Extradition Treaty 1971 (AJ, 65 (1971), p 914).

10  TS No 10 (1974).

11  Articles 7–8 of both the 1970 and the 1971 Conventions.

12  See § 416, nn 18–27.

13  Article 7. See generally on the Convention, § 122, n 52.

14  Eg Art I of the UK-USA Supplementary Extradition Treaty 1985 (TS No 6 (1988); ILM, 24 (1985), p 1104). See also the testimony of the State Department Legal Adviser (Sofaer), AJ, 80 (1986), pp 338–41; Lowe and Warbrick, ICLQ, 36 (1987), pp 404–10; Plender, AFDI, 34 (1988), pp 635–51.

15  Eg Art IV of the Protocol of 1988 amending the USA-Canada Extradition Treaty 1971 (ILM, 27 (1988), p 422); Art 2 of the USA-Federal Republic of Germany Supplementary Extradition Treaty 1986 (see AJ, 81 (1987), pp 935–7).