Chapter 2 Literature Review - Extradition and the Political Offense Exception
2.1 Definition and Origins of Extradition
John Basset More (1911) defines extradition as “an act by which one nation delivers up an individual, accused or convicted of an offense outside its own territory to another nation which demands him, and which is competent to try and punish him.”30 The state requesting extradition may claim its competence and jurisdiction for several reasons including territoriality, nationality, national security, and/ or universal jurisdiction for crimes against humanity. 31 In
29 Van Den Wijngaert, “The Political Offense Exception,” 741.
30 John Bassett Moore, “The Difficulties of Extradition,” The Academy of Political Science Vol. 1, No. 4, (July, 1911): 627.
31 Arvinder Sambei, and John R.W.D. Jones, Extradition Law Handbook, (Oxford: Oxford University Press, 2005), 1-2.
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other words, extradition is an agreement designed exclusively for the purpose of preventing putative wrongdoers from escaping justice by simply fleeing to another country.
No civilized community, which has agreed on the rules of coexistence, wants to live in a world of chaos where crime goes unpunished. Therefore, it is in their highest interest to bring criminals to justice wherever they are found. Consequently, states shall provide each other with the necessary assistance by facilitating the return of fugitives. In doing so, they are not only promoting friendly relations with other states but also protecting their own citizens, vulnerable to the presence of dangerous individuals in their territory.32
The first examples of extradition arrangements were concerned on the delivery of political enemies rather than ordinary criminals.33 In early times, it was the normal practice, within the discretion of an individual ruler, for a state to give asylum to refugees from another state. The granting of asylum to a foreign national was an expression of state sovereignty: his surrender (extradition) therefore required a degree of formality, usually a treaty, making the exception to the rule34 by giving up jurisdiction authority to the requesting state.
In the peace treaty between Rameses II of Egypt and the Hittite prince Hattusili III (c.
between 1284 and 1269 BC), a provision was made for the return of the criminals of one party who fled and were found in the territory of the other.35 It is considered the first international treaty dealing with extradition, and was intended to establish eternal peace and good brotherhood between them. Besides, there are allegations that a much older extradition treaty existed between
32 Henry Chartres Biron and Kenneth E. Chalmers, The Law and Practice of Extradition (Littleton, CO: F.B. Rothman.1981), 2.
33 Biron, The Law and Practice of Extradition, 11.
34 Ivor Standbrook and Clive Standbrook, Extradition Law and Practice, 2nd edition, (Oxford: Oxford University Press, 2000), 3.
35 Shearer, Extradition in International Law, 5.
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Ancient Rome and Syria, which provided for the enforced return of Hannibal.36 Extradition was intended for political offenders who wanted to change the regime or government, in contrast with common crimes who did not pose a direct threat to the state.
It was not until the early stages of the eighteenth century that what it is considered today of extradition was developed. Most extradition treaties were based on the principle of reciprocity, mutual assistance, and in the interest of the state to further their foreign relations. A willingness to deliver up the criminals of the other party was just one of a number of gestures of friendship and cooperation.37
Continuing on, the 18th century was a turning point in the development of extradition agreements. The constant wars and political struggle, taking place in Europe, paved the ground for much of the extradition treaties. Many monarchies feared political dissidents, but the spirit of neutrality prevailed. It is in that sense what at the beginning was the reason for signing extradition treaties, in the following treaties will become an exception. Political offenses, as a result, were excluded from the majority of extradition treaties at the time.
Belgium was the first country to enact a general extradition law after gaining independence from the Netherlands in 1833. It was the first general extradition treaty where the political offense (délit politique) was excluded from the crimes for which under the treaty there was an obligation to extradite.38 Another example was the extradition treaty concluded between France and the US in 1843, which included a provision exempting from extradition persons accused of any crime or offense of a purely political character. This provision appeared again in
36 Sir Edward Clarke. The Treatise on the Law of Extradition and the Practice Thereunder (4th edition, London, 1903) Quoted in Standbrook, Extradition Law and Practice, 3.
37 Shearer, Extradition in International Law, 6.
38 Standbrook, Extradition Law and Practice, 5.
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the treaty with Switzerland of 1850 and with the two Sicilies in 1855, but omitted from the treaty with Prussia in 1852.39All these major treaties gave France the leading role in extradition of the eighteenth and the end of the nineteenth centuries; the political offense exception finds it beginnings in treaties negotiated by France.40
Today, the growth of international crime and interdependence between nations has created the appropriate environment for strengthening international cooperation in legal and criminal matters. Almost all nations, if not all, are part of a bilateral or multilateral treaty concerning extradition. Despite the many regional treaties such as the Inter-American Convention on Extradition, the European Convention on Extradition and the Arab League agreements of 1952 and 1983 with the aim of standardizing and simplifying the process of extradition, the final decision is left to the interpretations of each national judicial system where the accused is found. In other words, extradition is prerogative of the state. Extradition in general has a complex approach to the solution of crime as it concerns not only the acts of the fugitive, but also the possible conduct of the states.