A political offence exception (or exemption) is a provision which limits the obligation of a sovereign state under an extradition or mutual legal assistance treaty or statute. Such provisions allow the state whose assistance has been requested ("the requested party") to refuse to hand over a suspect to – or to gather evidence on behalf of – another state ("the requesting party"), if the requested party's competent authority determines that the requesting party seeks assistance in order to prosecute an offence of a political character.
History
Origins The concept of an exception for political offences is a very new idea compared to the concept of extradition itself, and indeed constitutes an almost complete reversal of the original purpose of extradition. The earliest treaties for handing over criminal suspects from one country to another, dating from the 13th century BC, were aimed exclusively at fugitives who had committed political or religious crimes. Sovereigns made little effort towards the recapture of common criminals who had fled their jurisdiction, but actively pursued political criminals, to the extent of requesting aid from other sovereigns.
After the French Revolution, international attitudes towards the extradition of political offenders began a slow shift. In 1833, Belgium became the first country to legislate a prohibition against the extradition of political offenders (section 6 of the Loi du 1er octobre 1833 sur les extraditions), and included such a prohibition in its extradition treaty with France the following year. France itself began including such exceptions in its extradition treaties with various other countries over the several decades that followed. France began to include the political offence exception in its treaties later that year; the United States followed suit starting in 1843, and England in 1852. Belgium, as the first country to codify a political offence exception to extradition, was also a pioneer in efforts to define the outer limits of what exactly constitutes a "political offence". In what is now known as the clause d'attentat or the clause Belge, Belgium excluded from the definition of "political offence" crimes committed against the life of a head of state or head of government after having to refuse to extradite two persons who attempted to assassinate Napoleon III.
Narrowing the scope Throughout the twentieth century, world events forced governments to examine the concept of the political offence exception more closely, first in the 1920s and 1930s as clashing fascists and communists used methods that could be described in modern parlance as terrorism to promote their respective political aims, then after World War II as both war criminals and collaborators with occupation governments sought with much success to protect themselves behind the shield of political offence exceptions, and further into the 1960s and 1970s with members of national liberation and anti-colonialist movements whose proponents acclaimed them as freedom fighters while detractors labelled them terrorists. The result was an increasingly common limitation, in addition to the clause Belge, that acts prohibited by multilateral treaties are not subject to the political offence exception.
Various international conventions attempted to exclude consideration of motivation for certain crimes, with mixed success. The Hague Hijacking Convention of 1970 was an early example of this. It sought to correct the failure of the earlier Tokyo Convention to mandate prosecution or extradition for aircraft hijacking. Though the Hague Convention did not explicitly force signatories to exclude aircraft hijacking as a political offence, as it was believed at the time that this would inhibit the adoption of the convention, it was a step in the direction towards promoting uniform international practice. China does not apply the principle of non-extradition for political offences in case of crimes of aircraft hijacking and other offences against civil aviation safety. The United States regards the Hague Hijacking Convention as "forbidding any inquiry" into an offender's political motivation. An early draft of the 1973 Protection of Diplomats Convention attempted to take a stronger step in prohibiting consideration of an alleged offender's motives, but this language was deleted from the final version of the treaty.
The 1977 European Convention on the Suppression of Terrorism was more successful at limiting the scope of the political offence exception; in its first article, it provided a long list of offences which could not be regarded as political offences, including not just the traditional clause d'attentat, but also kidnapping, hostage taking, and the use of bombs and firearms where the use endangered lives. Article 13 permits contracting states to register reservations to Article 1 and thus to preserve their domestic law political offence exceptions, but, for example, the United Kingdom elected not to do so. Article 11 of the International Convention for the Suppression of Terrorist Bombings also provided that offences covered by that convention could not be regarded as political offences for the purpose of refusing an extradition request. The 2004 implementation of the European Arrest Warrant system entirely removed the political offence exception to extradition among member states of the European Union.
Major legal tests
Absolute or relative offences Political offences have been divided into two groups. Absolute or pure political offences are offences which are directed against the political organization or government of the state and contain no element of a common crime at all. Pure political offences include crimes such as treason, espionage, and sedition. In most cases, there is no duty to extradite for pure political offences, and there is agreement that the political offence exception applies to these offences.
More difficult is the situation of a relative political offence in which a common crime is committed in connection with a political act. Several different legal tests have been developed to determine when the political offence exception applies.
Political incidence test The political incidence test looks to whether the offence is "part of and incidental to a political struggle". Initially, it did not concern itself with the motives of the offender. English courts first developed this test in the 1891 case In re Castioni,In re Castioni, 1 Q.B. 149. in which Switzerland sought the extradition of a man from Bellinzona who had shot dead a government official during political unrest there. The Extradition Act 1870 provided in general language for an exception to extradition for offences of a political character or offences for which extradition is sought to punish the offender for a political action, but the Act did not define those terms in detail. Judge George Denman formulated the two legs of the test for offences of a political character: first that the offence occurred during a political disturbance, and second that the offence was an overt act part of or incidental to the disturbance, and so ruled that Castolini could not be extradited.
Later cases looked to the motives of the offender in an effort to determine whether the offences could fall under a more liberal definition of "political disturbance". In the 1954 case Ex parte Kolczynski,R v Governor of Brixton Prison, Ex parte Kolczynski, 1 Q.B. 540. English courts first extended the political incidence test to events that were not part of political unrest: a revolt by seven Polish sailors who mutinied against their captain and took their ship to the United Kingdom. Judges James Cassels and Rayner Goddard interpreted "political disturbance" far more broadly than in Castolini, finding even in the absence of an uprising that the offenders' crimes had been committed as part of efforts to avoid prosecution for political crimes. The case has been described as "the farthest extension" of the political offence exception. In 1962, the next major case in this regard, Schtraks v Israel,Schtraks v Government of Israel and Others, AC 556, 3 All ER 529, 3 WLR 1013. Available here at the website of the United Nations High Commissioner for Refugees. Lord Radcliffe laid down the outer limits of what could constitute a "political disturbance" under the liberal Kolczynski definition, finding that it required that "the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country". The court found that while Schtraks' alleged offence of kidnapping his nephew to ensure that he had an Orthodox Jewish education was a matter of political controversy in Israel, he had done it purely for personal motivations without any intention of furthering political change, and so found that his offence was not of a political character.
Injured rights test and motives test The injured rights test, also known as the objective test, is a primarily French test that looks to whether the offence was directed against the political organisation of the requesting state. This test explicitly rejects the approach that political sentiments behind an offence make it a political offence. This was the test adopted in the Gatti case, in which a San Marino man murdered a local communist and then fled to France. The French court certified his extraditability, ruling that his offence was not a political offence. French courts frequently applied this test in cases in which Belgium sought the extradition of Belgian World War II collaborators, none of whom were extradited.
However, French courts have also adopted the opposite approach and considered only the motives of the offender to the exclusion of the political aims of the act. Under this test, an offence is deemed to be political where the offender demonstrates to the court that they "acted with a political motive". One application of this test was in 1975, when a French court considered the case of two Americans who had hijacked a plane, among whom one had demanded it fly to Hanoi; against the background of the Vietnam War, the court saw this as a politically motivated act.
Predominance test Also known as the preponderance or proportionality test, or simply the "Swiss test", this test weighs "the elements of common crime" against the offender's "political motive or purpose", allowing the political offence exception only in cases where the latter outweighs the former. As summarised in Ktir v. Ministere Public Federal, a 1961 case in which Switzerland certified the extraditability to France of an Algerian National Liberation Front member, the test looks to whether the act was "inspired by political passion, "committed in the framework of a struggle for power or for the purpose of escaping a dictatorial authority", and "directly and closely related to the political purpose". As part of the last leg, the court examined the proportionality of the alleged offence. The preponderance test enjoys the most acceptance among academics, and academic sources have suggested that wider adoption of the preponderance test could aid in addressing some of the issues under the incidence test, such as perceived abuse of the political offence exception by former government officials. The Supreme Court of the Netherlands also applied the proportionality test in the 1978 case Folkerts v Public Prosecutor to order the extradition of a Red Army Faction member to West Germany.
Connexity test Some sources regarded the Republic of Ireland's approach to the political offence exception as a new test in its own right, while others see it as simply a variation or combination of existing theories. It is sometimes called the "connexity test"; the result is that the definition of political offence may include an ordinary crime which is connected to another's political offence.