Extradition and the politics of violence

Continued from yesterday ...

K C Kamalasabayson PC Memorial Oration delivered at Law College Auditorium, Hulftsdorp recently

It may not be so plainly a matter of right that the refusal to grant it should subject a nation to the penalty of War, but such refusal is so clearly injurious to the country which refuses and to the whole world, that it is a serious violation of the moral obligations which exist between civilized communities.”

Given this ‘neutral’ attitude of customary international law to extradition, bi-lateral treaties became the legal mechanism for the extradition of fugitive offenders between States. However, since the extradition process affected the rights of private individuals within a State, as well as the Sovereign powers of that State in surrendering individuals within its territory to another State, such treaties also preserved the discretionary nature of extradition and recognised a number of conditions and well defined exceptions, including the well-known and much debated ‘political offence exception’ is of particular relevance to the issue of extradition and violent crime, and gave full play to the exercise of the Sovereign discretion of the requested State.

Non-extradition of political offenders

The close nexus between law and politics is nowhere better reflected than in the well established ‘Principle of Non-Extradition of Political Offenders’ or the ‘Political Offence Exception.’

The principle rooted in the European extradition practices of the 18th and 19th centuries was the outcome of the growth of liberalism and the widespread acceptance of the doctrine of political asylum in Europe during this era. It provided a safeguard that a fugitive offender accused or convicted of a ‘political offence’ will not be extradited even where a request of extradition may otherwise comply with the substantive and procedural requirements of extradition law.

This was in recognition of the fact that circumstances may exist under which in the interest of free expression of political dissent, acts which might normally be the cause for extradition, should be exempted from the extradition process.

In examining the nature and scope of the Principle of Non-Extradition of Political Offenders, however, one should not lose sight of the historical perspective, which reveals that the surrender of political offenders was the primary objective of extradition as reflected in early extradition practice.

The earliest known extradition treaty, the Egyptian-Hittite Peace Treaty of 1280 BC is reputed to have included an extradition agreement for the surrender of ‘political enemies.’

In the 17th Century, Hugo Grotius - described as a ‘political refugee’ himself, in his classic exposition on extradition propounded that extradition was granted, in most cases, for crimes against the State described as “crimes which affect public order or which are atrociously criminal.”

It has been said “Nations felt little need to co-operate in the suppression of ordinary crime, while political and religious dissidents remained a threat to the sovereign’s power, as long as they found sanctuary elsewhere.”

The principal historic development which brought about a change of approach and a liberal attitude towards political violence, was the French Revolution of 1789 and its aftermath, the accompanying rise of revolutionary ideology and liberal thinking of this era. Consequently, a fundamental change came about in the application of the concept of ‘political offences’ - a change described by leading jurists such as Bassiouni as “the transformation of what was the extraditable offence par excellence to what has since become the non-extraditable offence par excellence.”

From the perspective of the interests of the State concerned, namely, the requesting State and the requested State, the Principle of Non-Extradition of Political Offenders could be viewed as the application of the Principle of Neutrality in the field of extradition. This would imply that an inquiry into the extraditability of an offender who has committed a political crime against the State, would involve the determination and rendering of a ‘political judgment’ on a sensitive domestic situation prevailing in the requesting State. Accordingly, it was felt that it would be prudent in such situations for the requested State to invoke, a priori, the Principle of Non-Extradition of Political Offenders and determine the extradition request ‘in limine’, rather than venturing down a path which could in effect become a ‘political trial’ which inevitably could strain the bi-lateral relationship between the States concerned.

The growth and spread of political violence, often involving indiscriminate acts of terrorism, once again brought about a fundamental change of perception towards the Principle of Non-Extradition of Political Offenders. The rise of anarchism in the latter part of the 19th Century, which constituted a grave threat to the established legal and socio-political order of the day, brought about a change of attitude regarding the accountability of the ‘political offender’ to be extradited, notwithstanding his -so-called ‘political motivation’ for the crime.

As aptly observed by one writer” .... during the eighteenth century, there was a romantic glorification of political offenders. This was based on a native identification of political offenders with the liberal revolutionary. Those supporting this concept did not realise that the political offender might eventually attack the new liberal legal order itself. During the last half of the nineteenth century, the rise of anarchist revolutionaries posed a serious threat to precisely this legal order.”

Present day manifestations of terrorism

The nature of acts of terrorism which confronted European States in the 1970s was something distinctly different in form and content to what had been experienced by these countries in the 19th Century. Contemporary forms and manifestations of terrorism confronting these States involved a grave threat to the safety of innocent persons who were not involved in any political uprising or a power struggle.

These acts of terrorism frequently took the form of use of explosive devices in public places such as supermarkets, airport terminals etc (Rome and Vienna airport attacks), hijacking of aircraft (spate of aircraft hijackings in the Middle-East) and the kidnapping a arbitrarily selected victims (Munich Massacre)

Thus, the ‘innocent civilian’ randomly selected, unconnected with a particular political struggle or cause, became the prime target of the present day terrorist. This was the point of departure from the strategy of his 18th Century counterpart who resorted to political violence against targeted political figures.

It was against these developments that the European States were compelled to further re-examine their traditional liberal approach towards the Institution of Political Asylum and the related Principle of Non-Extradition of Political Offenders.

The Principle of the Non-Extradition of Political Offenders, due to the lack of any agreed definition of the term ‘political offence’, was found to protect as many criminals or terrorists, as they sought to protect political refugees and so-called ‘freedom fighters.’