Pol and ToT 3

The Nature of Political Offenses: A Knotty Problem of Extradition Law
Author(s): Manuel R. García-Mora

Source: Virginia Law Review , Nov., 1962, Vol. 48, No. 7 (Nov., 1962), pp. 1226-1257
Published by: Virginia Law Review
Stable URL: https://www.jstor.org/stable/1071012
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Virginia Law Review is collaborating with JSTOR to digitize, preserve and extend access to
Virginia Law Review
This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
All use subject to https://about.jstor.org/terms
THE NATURE OF POLITICAL OFFENSES: A
KNOTTY PROBLEM OF EXTRADITION LAW
Manuel R. Garcia-Mora*
When a country demands that a refugee from its territory be

tradited to stand trial on a criminal charge, the requested state is f
with the delicate problem of determining whether the defendan
charged with an extraditable or a "political" offense. After distingu
ing pure and relative political crimes, the author explores in dep
how various countries have defined the latter. Stressed throughou
Article are basic guidelines of a modern and realistic approach to
problems in the area: consideration for the rights of the individua
recognition of the changing modes of resisting political oppressi
B ROADLY speaking, a political offense is an act directed against

the security of the state.' Most extradition treaties incorporate a
clause exempting from surrender persons accused of political offenses,
so that generally they are given asylum in the state wherein they have
taken refuge.2 The historical reason for this practice was the well-
founded apprehension that to surrender political criminals would surely
amount to delivering them to their summary execution or, in any event,
to the risk of being tried and punished by tribunals colored by political
passion.3 Because the determination of a political offense in specific
cases has been furiously litigated, no uniform criterion exists in regard
to this concept so vitally related to the protection of human rights.4
*Professor of Law, Fordham University. B.S., LL.B., 1943, University of Panama;
LL.M., 1944, A.M., 1946, Harvard University; J.S.D., 1948, Yale University.
1. Grotius regarded as political offenders those who "disturbed the peace of the
state." GROTIUs, DE JuRE BLLI AC PACIS LIBRIS TRES 530 (Kelsey transl. 1925).
2. See, for example, the Extradition Convention Between Iraq and Turkey, March
29, 1946, art. 4, para. (a), 37 U.N.T.S. 390 (1949), which provides that "extradition
shall not be granted . . . for political offences and acts connected therewith." See also
the Treaty of Extradition With Brazil, January 13, 1961, art. V, para. 6, 44 DEP'T
STATE BULL. 166 (1961).
3. See 2 HYDE, INTERNATIONAL LAW CHIEFLY AS INTERPRETATED AND APPLIED BY THE
UNITED STATES 1019 (2d rev. ed. 1945).
4. The Universal Declaration of Human Rights, adopted by the United Nations
General Assembly on December 10, 1948, states in article 14 that "everyone has the
right to seek and to enjoy in other countries asylum from persecution" and that "this
right may not be invoked in the case of prosecutions genuinely arising from non-
political crimes or from acts contrary to the purposes and principles of the United
Nations." 43 AM. J. INT'L L. SUPP. 127, 129 (1949).
[ 1226]

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
19621 Political Offenses 1227
There is therefore no fundamental agreement among governments and

domestic tribunals as to precisely what constitutes a political offense
under extradition treaties.' It is the purpose of this Article to discuss the
nature of political offenses in the light of the case and statutory law of
various countries. Perhaps some useful light may be shed upon the
matter, thereby reducing to a minimum the conflicts and contradic-
tions which underlie the practice of the various states.
THE BACKGROUND
Much of the uncertainty touching the determination of political

offenses can be attributed to roughly three factors. First, domestic
tribunals repeatedly contend that the practice of extradition is ex-
clusively a matter of domestic jurisdiction and hence any determina-
tions relating to the question are to be made on the basis of the over-
riding interests of the state involved without any reference to interna-
tional law.6 Generally, therefore, it has been held that the nonextradi-
tion of political offenders is simply a domestic practice, not a principle
of international law, and each state is entitled to determine the scope
and extent of the practice according to its own national standards.7 It
is accordingly asserted that in the absence of a treaty a state may, if
it chooses, surrender a person accused of a political offense without in
5. See GARCiA-MORA, INTERNATIONAL LAW AND ASYLUM AS A HUMAN RIGHT 73-102

(1956).
6. Judge John Bassett Moore observed that in granting asylum to political offenders
a state acts "in the light of its own interests, and of its obligations as a representative
of social order." 2 MooRE, INTERNATIONAL LAW 5 291, at 757 (1906).
7. Thus, the Supreme Court of Ireland recently stated:
The attempt therefore to establish that the non-surrender of political refugees
is a generally recognised principle of international law fails. The farthest that
the matter can be put is that international law permits and favors the refusal
of extradiction of persons accused or convicted of offenses of a political character
but allows it to each State to exercise its own judgment as to whether it will
grant or refuse extradition in such cases and also as to the limitations which it
will impose upon such provisions as exempt from extradition.
The State (Duggan) v. Tapley, [1952] Ir. R. 62, 84, [1951] Int'l L. Rep. 336, 343 (1950)
(No. 109). Similarly a United States court of appeals noted that:
an asylum State might, for reasons of policy, surrender a fugitive political
offender . . . [and] in such a case we think that the accused would have no
immunity from prosecution in the courts of the demanding State, and we know
of no authority indicating the contrary.
Chandler v. United States, 171 F.2d 921, 935 (1st Cir. 1948), cert. denied, 336 U.S. 918
(1949). Conversely, Professor Miele is of the opinion that the granting or refusal of
extradition constitutes the exercise of an international right, which is only limited by
treaties. MIELE, PRINCiPI DI DIuRrro INTERNAZIONALE 186 (1953).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
1228 Virginia Law Review [Vol. 48:1226
any way violating a rule of international law.8 Likewise, it has been

argued vigorously that even where there is a treaty prohibiting a
political offender's extradition, he may be surrendered for reasons of
national policy.9 The most disturbing effect of this position is that the
determination of whether or not to surrender political criminals is left
to the unfettered discretion of the different states without any regard
for the rights of the individual. Extradition law was intended to play
a dual function, namely, to protect the accused and to achieve interna-
rional cooperation in the suppression of crime. The traditional emphasis
on the second element may well be the reason for the widespread
practice of allowing the individual states such wide discretion.10 This
may largely explain why some countries interpret the concept of a
political offense broadly so as to protect the individual,11 while others
consider a strict interpretation more consonant with the requirements
of international cooperation.12 It is not surprising, therefore, that a
8. Harvard Research in International Law, Extradition, 29 Am. J. INT'L L. Supp. 66,

110 (1935) [hereinafter cited as Harvard Research].
9. Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918
(1949). This view seems to be gaining acceptance in treaty-making, for the recent
European Convention on Extradition signed on December 13, 1957, does not require
the states to refuse requests for the extradition of political offenders, thus leaving to
their discretion whether to grant or to refuse extradition in such cases. For a discus-
sion of this convention, see Kiss, La Convention Europeenne D'Extradition, 4 AN-
NUAIRE FRANgAIS DE DROIT INTERNATIONAL [hereinafter cited as ANNUAIREI 493 (19
One observer, in criticising the Convention, has noted that this attitude enables "mem-
ber States to enact retrograde municipal legislation, should they desire to do so in
the future." Honig, Extradition by Multilateral Convention, 5 INT'L & COMP. L.Q.
549, 558 (1956). The Harvard Research, in its Draft Convention proposed in 1935,
also used this permissive form on the ground that this formula is better adapted to a
multilateral convention. See Harvard Research 110.
10. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 31 n.12 ( 1950). It has
been argued that the exercise of this power amounts to a negation of the right of
asylum. See DE VABRES, LES PRINCIPES MODERNES DU DROIT PENAL INTERNATIONAL 137
(1928).
11. It is generally known that the United States and Great Britain interpret the
concept of a political offense rather liberally. See Neumann, Neutral States and the
Extradition of War Criminals, 45 AM. J. NTr'L L. 495, 503 (1951).
12. Switzerland, for instance, has adopted a fairly restrictive interpretation of po-
litical offenses, even though Swiss Federal Law on Extradition, enacted on January 22,
1892, provides that in determining the political criminality of the offense, "the Federal
Tribunal decides liberally in each particular instance upon the character of the infrac-
tion according to the facts of the case." See Garcia-Mora, The Present Status of
Political Offenses in the Law- of Extradition and Asylum, 14 U. PIrr. L. REv. 371, 378-79
(1952).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
1962] Political Offenses 1229
political offense in the courts of one country may be a common crime

in those of another.13
Secondly, since the determination of political offenses in concrete cases
may depend upon an infinite variety of factors, both the necessity and
the desirability of giving an exact definition or description of the concept
have been seriously questioned by courts and international jurists. In
recognizing such considerations, Judge John Bassett Moore remarked
quite sometime ago that "the question whether a particular act comes
within that category [political offense] is pre-eminently circumstan-
tial." 14 Lord Denman echoed similar sentiments when he observed
that it was not "necessary or desirable . . . to put into language in the
shape of an exhaustive definition exactly the whole state of things, or
every state of things which might bring a particular case within the
description of an offence of a political character." 15 More recently, the
British Judge Cassels said that "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." 16 Certainly, the policy
reflected in these statements acquires more cogency and vitality under
contemporary conditions. Political persecution and agression against
human rights are prevalent in many areas of the world community; in
dictatorial and even democratic countries the offenses against the state
have been disproportionally increased with the greatest danger to the in-
dividual.'7 Such conditions imperatively demand a flexible and ex-
panding interpretation of the political offense.'8
The undesirability of defining a political offense in extradition treaties
or domestic laws was demonstrated by the German Extradition Law of
December 23, 1929, which apparently is the only law that ever at-
tempted such a definition. Political acts were described as "those punish-
able offenses ... which are directed immediately against the existence of
the security of the State, against the head or a member of the government
of the State, as such, against a body provided for by the constitution,
13. Compare In re Colman, [1947] Ann. Dig. 139 (No. 67) (Fr.), with Denmark
(Collaboration with the Enemy) Case, [1947] Ann. Dig. 146 (No. 71) (Braz.).
14. 1 MOORE, EXTRADITION AND INTERSTATE RENDITION 308 (1891).
15. In re Castioni, [1891] 1 Q.3. 149, 155 (1890).
16. Ex parte Kolczynski, [1955] 1 Q.B. 540, 549 (1954).
17. See Evans, Observations on the Practice of Territorial Asylum in the United
States, 56 AM. J. INT'L L. 148 (1962).
18. Recently the West German Federal Constitutional Court so ruled in a case, de-
cided on February 4, 1959, and anonymously reported. in 54 AM. 1. INT'L, L. 416, 418
(1960).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
12 30 Virginia Law Review [Vol. 48:1226
against the rights of citizens in electing or voting, or against the good

relations with foreign States." 19 This definition has been regarded as
highly unsatisfactory, particularly in light of the experience of totali-
tarian states, including that of Nazi Germany.20
Finally, in a treaty providing that extradition will not be granted for
"a political offence or . . . an act connected therewith,"' 21 there is in-
variably no list of acts which fall within this category. The most that
extradition treaties have said in this connection is that the assassination of
the head of the state will not be regarded as a political offense,2? and
that "criminal acts which constitute an open manifestation of anarchy
. . .shall not be considered as political offences." '3 Apart from these
exceptions treaties are usually silent on the matter, thus relegating the
interpretation of the provision in question to the subjective appreciation
of the courts. The matter is, however, complicated by the fact that the
concept "political offense" has been traditionally used in two different
though intimately related contexts. In the first place, it designates
"purely political offenses" or objective offenses in the narrow sense.24
These offenses encompass acts directed against the state which contain
none of the elements of ordinary crime.25 Secondly, "political offense"
can mean "relative political offense," or dlits complexes,26 in which a
common crime is so connected with a political act that the entire offense
19. Lau of Dec. 23, 1929, art. 3(2), in Harvard Research 385.
20. Honig, supra note 9, at 554. Even the West German Federal Supreme Court has
regarded this definition as being too narrow. See Extradition of Greek National
(Germany) Case, [1955] Int'l L. Rep. 520 (Ger. Fed. Rep.); Extradition (Ecuadorian
National) Case, [1953] Int'l L. Rep. 370 (Ger. Fed. Rep.).
21. See the recent Convention Between Italy and Israel Concerning Extradition and
Judicial Assistance in Criminal Matters, Feb. 24, 1956, art. 4, 316 U.N.T.S. 109.
22. This is the so-called Belgian attentat clause. For an example of a treaty in-
corporating this exemption, see Convention Concerning Extradition Between Denmark
and Finland, Feb. 12, 1923, art. 5, 18 L.N.T.S. 38.
23. See the Extradition Treaty Between Brazil and Bolivia, Feb. 25, 1938, art. 1II,
? 2, 54 U.N.T.S. 336.
24. See In re Fabijan, [1933-34] Ann. Dig. 360 (1933) (No. 156) (Ger.).
25. Deere, Political Offenses in the Law and Practice of Extradition, 27 AM. J. INT'L L.
247, 248 (1933).
26. French authors classify relative political offenses into two categories: dilits
connexes (connected offenses) and delits complexes (complex offenses). For a dis-
cussion of this distinction, see BEAUCHET, TRAITE DE L'EXTRADrrION 208 (1899). This
distinction, however, seems to have fallen into disuse and writers today refer to relative
political offenses simply as delits complexes. See FENWICK, INTERNATIONAL LAW 335 (3d
ed. 1948); 1 OPPENHEIM, INTERNATIONAL LAW 647 (7th ed. Lauterpacht 1948).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
is regarded as political.27 The original Belgian Law of October 1, 1833,28

which began the practice of providing for the nonextradition of political
offenders, incorporated both of these elements without in any way
distinguishing the two. And today, more than a hundred years since
the enactment of the Belgian law, though the nature of a purely political
offense is fairly easy to ascertain, the determination of relative political
offenses is far from being definitely settled.29 This problem, which has
been rightly considered the most acute in extradition law,30 still presents
considerable difficulties in application.3'
PURELY POLITICAL OFFENSES
Looking comprehensively at domestic enactments and extradition

treaties, it is clear that a purely political offense is described by the use
of one of three different formulas. First, there are laws and treaties
that refer exclusively to purely political offenses without including acts
connected with them. Thus, the Immigration and Nationality Act of
1952 denies admission into the United States to "aliens who have been
convicted of a crime involving moral turpitude (other than a purely po-
litical offense) . . .} 32 and to "aliens who have been convicted of two or
more offenses (other than purely political offenses). . . ." 33 The
exemption regarding purely political offenses was merely declaratory of
existing practice, for as early as 1892 the Institute of International Law
at its Geneva session adopted a resolution providing in part that "extra-
dition should not be granted on a purely political charge." 34 Secondly,
27. For a detailed discussion of these offenses, see BILLOT, TRAITE DE L'EXTRADITION
102 (1874).
28. This law said in article 6 that "no foreigner may be prosecuted or punished for
any political crime antecedent to the extradition, or for any act connected with such
a crime, or for any crime or misdemeanor not provided for by the present law; other-
wise all extraditions and all temporary arrests are prohibited." For the text of this
article see Harvard Research 362-63.
29. The Supreme Court of Ireland concluded that "'the practice of nations does not
furnish a definite rule on the subject."' The State (Duggan) v. Tapley, [1952] Ir. R.
62, 77, [1951] Int'l L. Rep. 336, 337 (1950) (No. 109).
30. See Clark, Coudert & Mack, The Nature and Definition of Political Off ensc in
International Extradition, Proceedings of the American Soc'y of International L., April
23-24, 1909, p. 94.
31. Hambro, New Trends in the Law of Extradition and Asylum, S WESTERN PO-
LITICAL Q. 1 (1952).
32. 8 U.S.C. ? 1182 (a) (9) (1958). (Emphasis added.)
33. 8 U.S.C. ? 1182(a) (10) (1958). (Emphasis added.)
34. The United States and Mexico subsequently made a virtually identical agree-
ment. Extradition Treaty With Mexico, Feb. 22, 1899, art. III, para. 2, 31 Stat. 1818.

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
another group of laws and treaties provides that extradition will not be
granted for political crimes, leaving out the qualifying word "purely,"
but making it quite clear that the idea here involved is that of a purely
political offense. Thus, the resolution adopted by the Institute of Inter-
national Law at its Oxford meeting in 1880 provided in article 13 that
"extradition shall not take place for political acts." 35 More recently, the
European Convention on Extradition, adopted by eleven members of the
Council of Europe on December 13, 1957, provides that extradition may
not be granted for "political acts." 36 And the Extradition Treaty of
January 13, 1961, between the United States and Brazil includes a clause
prohibiting extradition "when the crime or offense for which the person's
extradition is requested is of a political character." "I Finally, the third
group of conventions adopts the rather common formula that extradi-
tion will not be granted for political offenses or acts connected therewith.
A careful study of this formula immediately reveals that, in addition to
purely political offenses, it also incorporates relative political offenses.
Thus, the Convention Concerning Extradition and Judicial Assistance in
Criminal Matters, signed between Israel and Italy on February 24, 1956,
provides that extradition will not be granted for "a political offense or
an act connected therewith." 38 Similarly, the Code of Private Interna-
tional Law, more generally known as the Bustamante Code, adopted on
February 20, 1928 by the American Republics, states that "political
offenses and acts related thereto, as defined by the requested State, are
excluded from extradition." 39 In like vein, the Montevideo Convention
on Extradition, also adopted by the American Republics on December
26, 1933, provides that extradition will not be granted "when the
It should be added that in a communication from Secretary of State Sherman to the

Mexican Minister in Washington on December 17, 1897, the former stated that "the
political offense for which extradition should never be granted is the act . . . punishable
solely and exclusively because of its political character. These are absolute political
offenses." 4 MooRE, INTERNATIONAL LAW 343-44 (1906). The Harvard Draft Convention
on Extradition, proposed in 1935, said that "political offenses which may be committed
by individuals ... are those which may be called 'purely political crimes' . . . ." Harvard
Research 113.
35. 5 ANNUAIRE 128 (1882).
36. Honig, supra note 9, at 555.
37. Extradition Treaty With Brazil, Jan. 13, 1961, art. V, para. 6, 44 DEP'T STATE
BuLL. 166 (1961).
38. Art. 4, 316 U.N.T.S. 127.
39. Code of Private International Law, art. 355, Feb. 20, 1928, 3 BUSTAMANTE Y
SIRVN, -DERECHO INTERNACIONAL PRIVAOo 353 (2d ed. 1934).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
offense is of a political nature or of a character related thereto .." 40

And the recent Pan American Convention on Territorial Asylum, signed
at Caracas in 1954, stipulates that "extradition will not be granted if,
in the determination of the asylum State, surrender of the person con-
cerned is being sought for political offences, for common crimes which
have been committed for political objectives, or for predominantly po-
litical reasons." 41 Other treaties could be mentioned where similar
formulation has been used.42 This last formula is by far the most
widely used in practice, and because of the explicit inclusion of a rela-
tive political offense, it has presented the greatest difficulty in applica-
tion. It can hardly be denied, however, that the different criteria
adopted by conventions to describe a purely political offense are of
abiding significance and value in perceiving the pattern running through
international extradition practice.
The operative reality of the above principles can be vividly illus-
trated in the day-to-day decisions of the courts. As one of many illus-
trations, one may mention the American case, United States ex rel. Giletti
v. Commissioner of Immigration," in which the Second Circuit affirmed
the denial of habeas corpus to an alien held for deportation, though
explicitly recognizing that the United States does not assist in the prose-
cution of political offenses." For a more recent and perhaps more
important illustration, the Ninth Circuit classified certain crimes as
relative political offenses in Karadzole v. Artukovic,45 sharply dis-
tinguishing these crimes from purely political offenses.46 Even more
explicit and of a broader sweep is Re Cimpora,47 where the Supreme
Court of Chile simply said that "in this area [of nonextraditable offenses]
there are to be identified purely political offenses, which are directed
against the form and political organization of the State ... ." 48 In con-
trast, the German Supreme Court has referred to purely political offenses
as "objective offenses in the narrow sense," 49 while the Swiss Federal
40. Convention on Extradition, Dec. 26, 1933, art. 3, para. (e), 49 Stat. 3111, TS. No.
882.
41. As quoted in Re Campora, [1957] Int'l L. Rep. 518, 521 (Chile).
42. See note 2 supra.
43. 35 F.2d 687 (2d Cir. 1929).
44. Id. at 689.
45. 247 F.2d 198 (9th Cir. 1957), vacated and remanded, 355 U.S. 393 (1958), surrender
denied on remand sub nom. United States v. Atukovic, 170 F. Supp. 383 (S.D. Cal.
1959).
46. 247 F.2d at 203.
47. [19571 Int'l L. Rep. 518 (Chile).
48. Id. at 521.
49. In re Fabijan, [1933-34] Ann. Dig. 360, 363 (1933) (No. 156) (Ger.).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
Tribunal has distinguished "political crim

tive political offenses.50 Previously the sa
tive political offense must be distinguished from "a political offense in
the strict meaning of the word," defining the latter as "an act directed
against the State as such and its fundamental institutions." 51
That these decisions represent a general consensus that purely political
offenses are separate and distinct from relative political offenses can
hardly be denied. Within the context of this discussion, it is scarcely
necessary to offer an extensive analysis of these opinions. The one point
that perhaps requires special emphasis is the general acceptance by the
courts of the idea that the principle of nonextradition of the accused
unequivocally comes into play where purely political offenses are in-
volved, while with relative political offenses it is more narrowly con-
strued. It is precisely in regard to relative political offenses in specific
contexts that the courts have been plagued with endless controversy and
doubt.52
From these broad outlines of treaty and case law, it is possible to
project a more useful inquiry into the acts which are usually classified
as purely political offenses. Because of the variety of means and methods
by which an offense against the state can be committed, courts and pub-
licists have carefully limited the concept of purely political offenses to
treason, sedition and espionage.53 Thus, in Chandler v. United States,54
a case involving an American citizen accused of treason for broadcasting
propaganda hostile to the United States from Germany during World
War II, the First Circuit held, inter alia, that political offenders "include
persons charged with treason . . ." and that in respect to this offense
"it has long been the general practice of States to give asylum." 56 In
like manner, a British court said recently in Ex parte Kolczynski-" that
"treason is an offense of a political character ... ." However, it will be
50. In re Ockert, Bundesgericht, Oct. 20, 1933, 59(l.) Entscheidungen des Schweiz-
erischen Bundesgerichtes 136, 137, [1933-34] Ann. Dig. 369, 370 (No. 157) (Swit.).
51. In re Caporini, [1923-24] Ann. Dig. 283, 284 (1924) (Swit.).
52. For an elaboration, see Garcia-Mora, The Present Status of Political Offenses in
the Law of Extraditionn and Asylum, 14 U. PITT. L. REV. 371, 377-81 (1952).
53. Harvard Research 113.
54 171 F.2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949).
55. Id. at 935. it should be noted that collaboration with the forces of occupation
has also been considered treason by-the American courts. Thus in Hanauer v. Doane,
79 US. (12 Wall.) 342, 347 (1870), the Supreme Court held that aliens residing in
the United States who assisted the Confederate forces during the Civil War were
guilty of treason. See also Carlisle v. United States, 83 U.S. (16 Wall.) 147 (1872).
56. [1955] 1 Q3. 540, 549 (1954).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
later seen that the British law does not make a distinction between pure
and relative political offenses. The Brazilian case, In re De Bernonville,"
illustrates the same point, for in refusing the extradition of a fugitive
charged by the French Government with having participated in "acts
aimed at the demoralization of the army or the country in time of war,"
the supreme court held that the Brazilian law expressly recognizes
"'treason to country' among political crimes, 'the authors of which are
not subject to extradition ....' "A58 Equally interesting is the decision
of the German Supreme Court in In re Fabijan,59 where the court suc-
cinctly stated that a political offense includes "high treason, capital
treason, acts against the external security of the State, rebellion and in-
citement to civil war." 'IO In almost identical terms, the Swiss Federal
Tribunal classified high and capital treason as purely political offenses.6'
These decisions are most revealing, in that they indicate much of the
courts' conception of a purely political offense. The factual situation
in all these cases interestingly discloses that the courts were really faced
with the problem of distinguishing, for the purpose of granting or deny-
ing asylum, purely political offenses from those which may be political in
the relative sense.
Parallel with these opinions are the decisions of the Belgian and
French courts, which seem to be primarily concerned with distinguish-
ing a political offense from a common crime, thus relegating to a
secondary place the distinction between a purely political and a relative
political offense. This proposition can be instructively illustrated by the
Belgian case In re Barratini,62 in which a court of appeal not only de-
scribed a purely political offense but also a de'lit complexe as "one which,
in essence, is directed against the political regime or which, though
normally constituting an ordinary crime ('crime de droit commun'),
57. [19551 Int'l L. Rep. 527 (Braz.).

58. Id. at 528. Prior to this case the Brazilian Supreme Court was faced with the
problem whether collaboration with the enemy was a purely political offense. In the
Denmark (Collaboration with the Enemy) Case decided on May 21, 1947, and in-
volving the request for the extradition of certain Danish nationals charged with treason
in that they collaborated with the Germans during the occupation, the court stated
that "the crime of assisting the enemy in time of war is a political one tato sensu
because it is a crime against the State in its supreme function, namely, its external
defence and its sovereignty." [19471 Ann. Dig. 146, 146-47 (No. 71) (Braz.).
59. [1933-34] Ann. Dig. 360 (1933) (No. 156) (Ger.).
60. Id. at 363.
61. In re Ockert, Bundesgericht, Oct. 20, 1933, 59 (I.) Entscheidungen des Schweiz-
erischen Bundesgerichtes 136, 137, [1933-34] Ann. Dig. 369, 370 (No. 157) (Swit.).
62. [1938-40] Ann. Dig. 412 (1936) (No. 159) (Bel.).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
assumes the character of a political crime b

of the crime was to injure a political regim
thoroughly reasoned opinion on the subje
court of appeal in In re Giovanni Gatti,M
Giovanni Gatti was granted on the ground th
attempted homicide in firing at a member
constitute a political offense. Because of the
description, it may be useful to include h
opinion. The court said:
Political offences are those which injure the political organism, which
are directed against the constitution of the Government and against
sovereignty, which trouble the order established by the fundamental
laws of the state and disturb the distribution of powers. Acts which
aim at overthrowing or modifying the organization of the main organs
of the state, or at destroying, weakening or bringing into disrepute one
of these authorities, or at exercising illegitimate pressure on the play
of their mechanism or on the general direction of the state, or which
aim at changing the social conditions created for individuals by the
constitution in one or all its elements, are also political offences. In
brief, what distinguishes the political crime from the common crime is
the fact that the former only affects the political organization of the
state, the proper rights of the state, while the latter exclusively affects
rights other than those of the state.65
There can be no doubt that the French court was referring in the
above passage to purely political offenses, though it is also clear that it
was distinguishing those offenses from ordinary crimes. When all the
decisions are viewed together, it is interesting to note that the courts of
different countries have defined purely political offenses in strikingly
similar tones. It may be added that in respect to purely political offenses
the courts do not seem to experience serious difficulty in definition and
that underlying their opinion is the irresistible suggestion that once the
case of a purely political offense has been established, the duty not to
extradite the offender becomes clear.66 Certainly, considerations of hu-
63. Ibid.
64. [19471 Ann. Dig. 145 (No. 70) (Fr.).
65. Ibid.
66. Although whether or not asylum is a right of the state or that of the individual
is highly controversial, as a practical matter the courts will probably not approve the
extradition of persons accused of purely political offenses. See GARCIA-MORA, INTERNA-
TIONAL LAW AND AsYLUM AS A HUMAN RIGHT 73-102 ( 1956). In fact, the late Judge
Hersch Lauterpacht maintained quite persuasively that this is a rule of international

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
manity and the respect for human rights urgently demand such a course
of action, for these values are indissolubly linked with the expectations
of a world community where the welfare of human beings occupies the
paramount place.67
It is reasonably clear that treason, sedition and espionage are regarded
as purely political offenses for at least five compelling reasons. First,
they lack the essential elements of an ordinary crime, as for instance,
malice in the technical criminal law sense.68 Secondly, the underlying
object of the offense is to cause a change in a given political situation by
illegal means, thereby injuring the public rights of an existing govern-
ment.69 Thirdly, since the government is the target of the offense, there
is no violation of the private rights of the individual.70 Fourthly, the in-
dividual perpetrator of the offense is largely motivated by reasons of
public concern and, as the Supreme Court of Chile aptly observed, he
is impelled by "altruistic or patriotic sentiments," and not at all by such
personal considerations as revenge, hate and the like.7' And, finally,
closely connected with the preceding observation, it may persuasively
be argued that a person committing treason or any other purely political
offense may well do so because of his political convictions and certainly
extradition should not be granted where a person unsuccessfully attempts
to change what he firmly believes to be an unjust political situation.72
This is particularly applicable in societies where no legal methods are
available to the individual to protect himself against aggressions from his
own government. The full impact of this last observation can be most
clearly seen by remembering that in wars of independence the most
honorable of patriots could have been tried and convicted of treason
against the mother country had the rebellion not met with success.73
law by virtue of the general principles of law as recognized by civilized nations.

Lauterpacht, The Law of Nations and the Punishment of War Crimes, 21 BRIT. YB.
INT'LL. 28,88 (1844).
67. See Jmsup, A MODERN LAW OF NATIONS 82-83 (1948).
68. Clark, Coudert & Mack, supra note 30, at 97.
69. See In re Barratini, [1938-40] Ann. Dig. 412 (No. 159) (1936) (Bel.).
70. See In re Vogt, [1923-24] Ann. Dig. 285 (1923) (Swit.).
.71. Re Campora, [1957] Int'l L. Rep. 518, 521 (Chile). See also In re Ragni,
[1923-24] Ann. Dig. 286 (Swit.), where extradition was refused because the "events ...
were not of a purely local or personal character."
72. In re Giovanni Gatti, [ 1947] Ann. Dig. 145 (No. 70) (Fr.)
73. It is here quite relevant to recall the words of Thomas Jefferson, then Secretary
of State, as regards treason. He pointedly observed:
Most codes extend their definition of treason to acts not really against one's
country. They do not distinguish between acts against the government and acts
against the oppressions of the govermnent. The latter are virtues, yet have

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
It is therefore plain that the reluctance of governments to extradite

those accused of purely political offenses really stems from humanitarian
concern for the fate of unsuccessful rebels and from the demands of a
world community vitally committed to the protection of human rights
everywhere. These are values, deeply embedded in considerations of
decency and humanity, that a government should not lightly set aside.
Conversely, it may be argued that treason is the most reprehensible and
detestable of crimes,74 and hence a traitor should not find refuge any-
where from legitimate prosecution. Though this argument may have
some semblance of cogency, treason is detestable only to the society
against which it is directed, which reveals a large subjective element in
its determination. It is precisely because of the heat of public passion
generated by this and other crimes against the state that the possibility
of obtaining a fair and impartial trial on such charges is not likely to be
realized.75 The inevitability of this result would seem to be apparent in
view of the fact that the application of criminal jurisdiction by the
prosecuting state reaches out to acts affecting the state in its supreme
function, namely, its external defense and its sovereignty. It is thus
because of the primacy of security interests inherent in the punishment
of purely political offenses that the reason for the nonextradition of the
offenders appears with breath-taking clarity.
Although in theory there may be a conflict of policy between the
requesting state and the one in which the offender has taken refuge, the
real problem from the standpoint of extradition law is whether the highly
emotional terms in which offenses against the state are usually cast should
be allowed to obscure the principle that under conventional interna-
furnished more victims to the executioner than the former.... The unsuccessful
strugglers against tyranny have been the chief martyrs of treason laws in all
countries.
Note From Secretary of State Jefferson to Messrs. Carmichael and Short

1792, in 4 MOORE, INTERNATIONAL LAW 332 (1906). (Emphasis in original.)
74. See in this connection Hanauer v. Doane, 79 U. S. (12 Wall.) 342, 347
where the Supreme Court, speaking through Justice Bradley, stated that "
greater than treason...."
75. This is what Professor Otto Kirchheimer calls "political justice." See KIRcH-
HEIMER, POLITICAL JUSTICE: THE USE OF LEGAL PROCEDURE FOR POLITICAL ENDs 63-76,
383 (1961). It has been said that these considerations greatly influenced the provisions
of the Constitution of the United States regarding treason. U.S. CONST. art. 1, 5 6,
art. III, S 3; see Hurst, Treason in the United States, 58 HARv. L. REV. 226 (1944).
See also GARCiA-MORA, INTERNATIONAL RESPONSIBILITY FOR HOSTILE ACrs OF PRIVATE
PERSONS AGAINST FOREIGN STATES ch. 9 (1962).
76. See Denmark (Collaboration with the Enemy) Case, [1947] Ann. Dig. 146 (No.
71) (Braz.).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
tional law those accused of the

extraditable. The cases above di
answer to this question for, by
purely political offenses, they
persons involved a kind of intern
provided a measure of internat
beings are most easily exposed
ments.
RELATIVE POLITICAL OFFENSES
Most extradition treaties deny extradition of persons accused or con-

victed of delits complexes or relative political offenses. The language
largely used in this connection is simply that extradition will not be
granted for political offenses and acts connected therewith.78 Hence, a
relative political offense is characterized by the existence of one or
several common crimes connected with a political act. An instructive
example of a mixed crime would be the assassination of a public official,
or, for that matter, of a private individual, in the course of a political
revolt. In dealing with cases of this sort the courts are really caught in
the dilemma of wishing to punish the offender without at the same time
violating the well-established principle of nonextradition of political
criminals.79 The courts have attempted to solve this problem by ascer-
taining the degree of connection existing between the common crime
and the political act.80 But it should be observed at the outset that the
degree of connection required for the entire act to be regarded as po-
litical and, thus, nonextraditable, depends entirely upon the test adopted
by each individual country. It should therefore be apparent that the
substantial measure of agreement found to exist in respect to the nature
of purely political offenses is utterly lacking as regards complex crimes.
However, the case and statutory law on the subject reveal three funda-
mental approaches to the problem, namely, the incidence test of Anglo-
American law, the political objective test of French law, and the po-
litical motivation test of Swiss law. The merits of these different ap-
proaches must be more carefully analyzed in dealing with the law of
the various countries.
77. STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICTS 569 (1954).

79. 1 OPPENHEIM, INTERNATIONAL LAW 647 (7th ed. Lauterpacht 1948).
80. Neumann, Neutral States and the Extradition of War CrImnals, 45 A
L. 495 (1951).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
1. The Incidence Test of Anglo-American Law
(a) The Law of Great Britain
The British Extradition Act of 187081 set the pattern for the standar
treatment of relative political offenses in Anglo-American law. The
pertinent passage of this act provides that
a fugitive criminal shall not be surrendered if the offence in respect of

which his surrender is demanded is one of a political character, or if
he prove to the satisfaction of the police magistrate or the court before
whom he is brought on habeas corpus, or to the Secretary of the State,
that the requisition for his surrender has in fact been made with a view
to try or punish him for an offence of a political character ....82
The most authoritative early statement of the conditions under which

the statute would apply is that contained in the celebrated English case
In re Castioni.83 There the court was faced with an extradition request
by the Swiss Government which alleged that Castioni, in the course of
a political insurrection, had murdered a member of the state council of
a Swiss canton. The issue of law and fact thus posed was whether "the
man was acting as one of a number of persons engaged in acts of violence
of a political character with a political object, and as part of the political
movement and rising in which he was taking part." 84 After rejecting
John Stuart Mill's definition of an offense which is political in character
as one "committed in the course of or furthering of civil war, insurrec-
tion, or political commotion," 85 the court adopted a supposedly broader
concept. It maintained that "fugitive criminals are not to be surrendered
for extradition crimes, if those crimes were incidental to and formed a
part of political disturbances." 86 On this view, the court concluded that
Castioni's acts were sufficiently tied to the political insurrection then
existing to be regarded as political and, hence, nonextraditable. In logic
it thus follows that under British law two conditions must exist in order
to convert an otherwise criminal act into a political offense. First, there
must be a political revolt or disturbance and, second, the act for which
81. 33 & 34 Vict. c. 52.
82. 33 & 34 Vict., c. 52, ? 3(1). The Canadian Extradition Act has a similar pro-
vision. See CAN. REV. STAT. c. 322, 5 21 (1952). The latter is discussed in LA FoRsTr,
EXTRADITION TO AND FROM CANADA 44-47 (1961).
83. [1891] 1 Q.B. 149 (1890).
84. Id. at 159 (Denman, J.).
85. Id. 'at 153.
86. Id. at 166.

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
extradition is requested must be incidental to or form a part of the

revolt. It requires but little effort to perceive that these two conditions
are also important in determining the political object of the act, so that
broadly it may be said that crimes committed for purely personal ends,
even though during a political revolt, will not be regarded as political.
Exactly three years after the decision in the Castioni case, the court
was faced with the apparently novel issue of whether anarchism was
an act of a political character.87 An avowed anarchist sought asylum in
England after attempting to blow up some barracks in Paris. In an extra-
dition proceeding, one element of the defense was a plea that the offense
charged was political within the meaning of the British Extradition Act.
Deciding the matter squarely on the basis of the Castioni test, the court
stated:
[I]n order to constitute an offence of a political character, there must

be two or more parties in the State, each seeking to impose the Govern-
ment of their own choice on the other, and that, if the offence is com-
mitted by one side or the other in pursuance of that object, it is a po-
litical offence, otherwise not .... [T]he party with whom the accused
is identified by the evidence, and by his own voluntary statement,
namely, the party of anarchy, is the enemy of all Governments. Their
efforts are directed primarily against the general body of citizens. They
may, secondarily and incidentally, commit offences against some par-
ticular Government; but anarchist offences are mainly directed against
private citizens.88
It was this decision that definitely withdrew anarchists from the cate-
gory of nonextraditable political offenders. It is also worth noting that
this limitation upon political offenses found its way into the case law of
other countries89 as well as into bilateral and multilateral conventions.?0
Viewed in the context of English law, however, it may be safely said that
the Alteunier case consistently applied the standard previously laid down
in the Castioni ruling, and that the incidence test almost became an abso-
87. [1894] 2 Q.B. 415.

88. Id. at 419.
89. See Garcia-Mora, The Present Status of Political Offenses in the Law of Extra-
dition and Asylum, 14 U. PITT. L. REV. 371, 387-90 (1952).
90. Thus, the Pan American Treaty of Extradition of Criminals and for the Protec-
tion Against Anarchism, Jan. 28, 1902, art. 2, provides that anarchism will not be con-
sidered a political offense. For text, see INTERNATIONAL CONFERENCES OF AMERICAN
STATEs 1889-1928, at 83 (Scott ed. 1931). See also Treaty Between Colombia and Panama,
Dec. 24, 1927, art. IV, 87 L.N.T.S. 414.

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
lute of English extradition practice. But the fact that this test has been
uniformly applied in English law does not necessarily mean that it is
altogether adequate to protect individuals fleeing from persecution. It
should be observed in this connection that the incidence test first arose
in the liberal political climate of the late nineteenth and early twentieth
centuries when political contests took place within the framework of
rival party organizations and the individual was usually regarded as an
agent of a political party or movement.9' Under such conditions, the
incidence test worked well enough, since it was fairly easy to detect
whether an individual was implicated in a political act as an agent of his
party. The contemporary political spectrum shows, however, that an in-
dividual or group of individuals may act alone, without any party affilia-
tion, in committing an offense against the state and, what is vastly more
important, this offense may be directed from foreign territory.92 It is
in respect to a situation of this kind that the incidence test of English
law is too narrow to afford adequate protection to deserving indi-
viduals.93
The new policy climate has been faithfully reflected in the recent
English case Ex parte KolczynskP4 where the extradition of seven
members of the crew of a Polish fishing vessel was denied, even though
the Polish Government charged them with the commission of certain
common crimes, including the use of force, wounding a member of the
crew and revolting on board ship. All of these crimes were listed as
extraditable offenses in the 1932 extradition treaty between the United
Kingdom and Poland.95 At the extradition hearing it was shown that
the accused individuals had overpowered the captain and other members
of the crew, and brought the vessel into an English port, where they
sought asylum to avoid prosecution for a political offense. Though
there is no question that the crimes for which the Polish government
demanded their extradition were all of a common variety,96 the evidence
91. Green, Political Offenses, War Crimes and Extradition, 11 INT'L & COMP. L.Q.
329, 330-31 (1962). See also Clark, Coudert & Mack, The Nature and Definition of
Political Offense in International Extradition, in Proceedings of the American Soc'y of
International L., April 23-24, 1909, p. 94.
92. Green, supra note 91, at 331.
93. This situation had already been predicted by the late Professor T. J. Lawrence.
See LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 23642 (7th ed. 1923).
94. [1955] 1 Q.B. 540 (1954).
95. Treaty of Extradition Between the United Kingdom and Poland, Jan. 11, 1932,
art. 3, [1934] Gr. Brit. T.S. No. 10.
96. Extradition was urged on the following grounds: use of force, depriving
superiors and other crew members of their freedom, damaging the trawler's wireless

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
was conclusive that had the fugitives returned to Poland, they would
have been prosecuted for treason on the basis of article 79, paragraph
2 of the Constitution of the Polish People's Republic of 1952, which
makes it a treasonable act for a Polish national to leave Poland and to
go to a Western country without permission.97 Proceeding largely on
this basis the court essentially held that the offense for which Kolczynski
and the others were charged was an offense of a 'political character
barring extradition.98
When the ratio decidendi of the Kolczynski case is carefully ex-
amined, it is plain that the court departed from the standard laid down
in the Castioni case. The Kolczynski case did not involve a political up-
rising and, therefore, the acts of the seven crew members could not
possibly be regarded as being incidental to and forming a part of a
political disturbance. Hence, the incidence test was clearly inapplicable.
But recognizing the emergence of new circumstances to which the old
test could not be applied, the court quickly pointed out that "the words
'offence of a political character' must always be considered according
to the circumstances existing at the time when they have to be con-
sidered." 19 The question for the court now became a more generalized
inquiry into the connection existing between the common crime charged
and the political act."" It was therefore fairly simple for the court to
reach the admittedly unassailable conclusion that "the revolt of the
crew was to prevent themselves being prosecuted for a political offence
and . . . therefore, the offence had a political character." 101 Though
in principle deviating from the Castioni opinion, the court found a
reasonable explanation in the fact that even in the Castioni case the
court was "careful to say that they were not giving an exhaustive
definition of the words 'of a political character'." 102 The court thus
found that "the evidence about the law prevalent in the Republic of
Poland today shows that it is necessary, if only for reasons of humanity,
to give a wider and more generous meaning to the words we are now
construing, which we can do without in any way encouraging the idea
installation, and preventing the captain of the ship from directing her. Ex parte
Kolczynski, [19551 1 Q.B. 540, 543 (1954).
97. Id. at 547.
98. Id. at 550 (Lord Goddard, C.J.).
99. Id. at 549 (Cassels, J.). See Green, supra note 91, at 331.
100. Gutteridge, The Notion of Political Offences and the La'w of Extradition, f 19541
31 BRIT. YB. INT'L L. 430, 435 (1956).
101. [19551 1 Q.B. 540, 550 (1954).
102. Id. at 551.

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
that ordinary crimes which have no political significance will be thereby

excused." 103 This is indeed a powerful statement reflecting the need
to give protection to persons fleeing from persecution. It is precisely
in this respect that the Kolczynski ruling has broken new ground in the
British extradition practice, for it has clearly established that the term
"political offense" is to be extended to include those who commit a
crime for which extradition is demanded if this act is committed solely
because of the fear of being prosecuted for a political offense.104 It has
certainly opened the way for the denial of extradition and, thus, of
affording protection to thousands of human beings who leave their
native land for fear of being persecuted for their political, economic
and religious views. No one will deny that these are the people who in
the contemporary world deserve asylum. Indeed, Hugo Grotius, the
acknowledged father of international law, gave expression to these
sentiments more than three hundred years ago when, speaking of the
right of asylum, he stressed that it is designed "for the benefit of those
who suffer from undeserved enmity, not those who have done some-
thing that is injurious to human society ....11 .05 It may be finally said
that though the Kolczynski decision has apparently settled the matter
in so far as the British extradition practice is concerned, it nevertheless
stands as a living reminder to other countries that in totalitarian societies
individuals are left alone to assert their rights in an isolated manner with-
out group or party support, and that a more flexible definition of a
political offense which includes their acts is vitally needed.
(b) The Law of the United States
The American extradition practice as regards relative political offenses

is historically traceable to the Castioni case and, thus, is grounded on
the incidence test of English law.108 But in marked contrast with the
early English law which required a direct relation between the common
crime and the political act, the American law seems to have adopted a
more liberal attitude by simply requiring any connection, however
feeble, between a common crime and a political disturbance. The
American position can be vividly illustrated by the case In re Ezeta,0'T
103. Ibid.
104. Gutteridge, supra note 100, at 435.
105. GROTIUS, DE JURE BELI AC PAcis LIBIUs TREs 530 (Kelsey transl. 1925).
106. Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957), vacated and remanded,
355 U.S. 393 (1958), surrender denied on remand sub nom. United States v. Artukovic,
170 F. Supp. 383 (S.D. Cal. 1959).
107. 62 Fed. 972 (N.D. Cal. 1894).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
in which the Salvadorean government sought the extradition of General

Ezeta and others on charges of murder and robbery. The acts charged
allegedly occurred while the fugitives unsuccessfully attempted to
combat a revolution. In denying the extradition of the accused on the
ground that the offenses were of a political character, the-court, speak-
ing through Judge Morrow, said that "the testimony shows that they
[the acts charged] were all committed during the progress of actual
hostilities between the contending forces, wherein General Ezeta and his
companions were seeking to maintain the authority of the then existing
government against the active operations of a revolutionary uprising." 108
The court, therefore, left no room for doubt that the acts with which
the accused were charged became offenses of a political character be-
cause they were incidental to a political uprising."" Far from being
unique, this standard has been increasingly followed by American courts
in deciding other cases of comparable nature. Particularly instructive
is the case of Ornelas v. Ruiz,""0 involving a request for the extradition
of certain Mexican revolutionaries on charges of murder, arson, robbery
and kidnapping. Applying the incidence test to the circumstances of
this case, the Supreme Court was most explicit in holding that the of-
fenses were not of a political character since the revolutionaries were not
engaged in any combat with the Mexican governmental forces at the
time the crimes were committed."11
Express recognition of the same principle pervades three celebrated
cases which came before the State Department in the early years of the
present century. In the first of these cases it was held that the act for
which the extradition was requested by the British Government was
"incidental to a popular movement to 'overthrow landlordism' in Ire-
land" in order to secure fundamental legislative reforms and eventual
independence from English rule-hence, a nonextraditable offense.112
This same doctrine was subsequently reaffirmed in the equally famous
Rudewitz and Pouren cases, both dealing with Russian revolutionaries
108. Id. at 997.
109. In fact the court cited with approval the Castioni case. Id. at 997-99. More
specifically the court rcmark-cd: "Applying, by analogy, the action of the Fnglish court
in that case to the four cases now before me, under consideration, the conclusion follows
that the crimes charged here, associated as they are with the actual conflict of armed
forces, are of a political character." Id. at 999.
1 10. 161 U.S. 502 (1896).
111. Id. at 511.
112. Case of James Lynchehoun. This case is discussed in 2 HYDE, INTERNATIONAL
LAW CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED STATES 1021 (2d rev. ed.
1945).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
charged by the Russian Government with the commission of certain

common crimes.113 In the Rudewitz case, in passing upon bitterly con-
tested issues relating to the common criminality of the accused, and
after reversing the findings of a United States Commissioner that
Rudewitz's crimes were not of a political character, the State Depart-
ment firmly said:
In view of these facts and circumstances the Department . . . is

forced to the conclusion that the offenses of killing and burning with
which the accused is charged are clearly political in their nature, and
that the robbery committed on the same occasion was a natural in-
cident to executing the resolutions of the revolutionary group and
cannot be treated as a separate offense. . . . "A person acting as one
of a number of persons engaged in acts of violence of a political
character, with a political object, and as part of the political movement
and rising in which he is taking part" is a political offender and so
entitled to an asylum in this country....114
Here, again, the incidence test appears with impeccable consistency.

The Pouren case stands fundamentally on the same grounds. How-
ever, when the nature of the crimes with which Rudewitz and Pouren
were charged is realistically viewed, it becomes highly doubtful
whether the United States should grant asylum to such offenders merely
because these offenses were committed in time of political upheavals.'1"
It seems evident, therefore, that though the American courts adhere in
principle to the incidence test of English law, under American law any
connection, no matter how tenuous, between the common crime and
the political act may give rise to the nonextradition of the offender."6
This approach is rather liberal and certainly warranted in some cases,
but in its broadest reach it lends itself to abuse, for in practice it amounts
to converting a common crime into a political offense simply because
it took place in times of turbulent political conditions.
Such misgivings are regrettably confirmed by the more recent case
113. Rudewitz was charged with murder, arson, burglary, robbery and larceny. Case
of Christian Rudovitz, Note From Secretary of State Root to Russian Ambassador
Rosen, Jan. 26, 1909, in 4 HACKWORTH, INTERNATIONAL LAW 49-50 (1942). Pouren was
charged with murder, robbery and attempted murders. Application for the Extradition of
Jan Janov Pouren to Russia, [1909] FOREIGN REL. U.S. 513 (1914).
114. Note From Secretary of State Root to Russian Ambassador Rosen, Jan. 26,
1909, in 4 HACKWORTH, op. cit. supra note 113, at 49-50.
115. The decision to grant asylum to Rudewitz and Pouren was severely criticized
by Coudert in Clark, Coudert & Mack, nupra note 91, at 140-42.
116. NEUMANN, supra note 80, at 503.

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
Artukovic v. Boyle,'17 involvin

ovic, a former official of the
Government sought his extraditi
named individuals and some 30,0
order of the accused. With mor
district court reached the concl
Indictment here makes it immed
which the surrender of the petit
litical character ... ." 118 When i
that Artukovic's crimes were wa
erally granted, the court simply
We now consider the question w

called "war crimes" they have lost
within the meaning of the treaty."
are crimes for which extradition
international acts to which the U
by recent legal writers that the
[crimes against the law of war
mitted weigh so heavily upon t
political act has practically ceased
tradition of the offender is the onl
Appellant in essence argues that
1946 and 1947 by the United Nat
render of alleged war criminals,
that Artukovic is charged with a
We have examined the various U
background and have concluded t
law to modify long standing jud
provisions. Perhaps changes shou
The Supreme Court granted cer

and remanded to the district cou
the district court declined "to go i
117. 140 F. Supp. 245 (S.D. Cal. 1956), a
F.2d 198 (9th Cir. 1957), vacated and rem
remand sub nom. United States v. Artu
118. 140 F. Supp. at 247.
119. Treaty With Servia, Oct. 25, 1901
120. This quotation is actually from GARC
AS A HUMAN RIGHT 93 ( 1956).
121. Karadzole v. Artukovic, 247 F.2d 198, 204 (9th Cir. 1957).
122. 355 U.S. 393 (1958).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
called war crimes," 123 and emphatically held that Artukovic's offense
was of a political character. In reaching this conclusion, the court ap-
plied the incidence test of the Castioni case in the following terms: "[a
political offense] is an offense against the government itself or incident
to political uprisings.... The crime must be incidental to and form a
part of political disturbances. It must be in furtherance of one side or
another of a bona fide struggle for political power." 124 Certainly, no
one will seriously quibble with the incidence test when applied in its
proper historical perspective. But the Artukoic case presents a situa-
tion totally different from that of the Castioni case, for the former in-
troduced into the issue the idea, which emerged after World War II, of
war crimes as a political offense. That the court quickly dismissed this
issue affords little comfort to international lawyers, for sound judgment
in such cases would seem to require the courts to examine the full ambit
of the factual situation before it without resorting to obvious short cuts
which frustrate the just application of the law.'25 It is of course quite
possible that underlying the district court's decision was the belief that
the offense with which Artukovic was charged was a relative political
offense.126 Under a closer scrutiny, however, it will be immediately
apparent that the connection existing between Artukovic's common
offense and his alleged political act is so feeble that the political charac-
ter of the crime has accordingly disappeared. It requires little effort
to realize that the thousands of killings attributed to him have absolutely
nothing to do with an offense against the state and, what is perhaps more
important, are most forcibly condemned by the ethical judgment of all
civilized men. It is precisely in recognition of this consideration that
war crimes and crimes against humanity are almost universally recog-
nized as criminal by national legislatures and international conventions.'27
123. United States v. Artukovic, 170 F. Supp. 383, 392 (S.D. Cal. 1959).
124. Ibid.
125. Although dealing with a different problem, Professor Julius Stone has admirably
discussed the function of the courts in such cases. His remarks are certainly relevant
to the question under consideration. STONE, AGGRESSION AND WORLD ORDER 125 (1958).
126. This was the assumption of the court of appeals in Karadzole v. Artukovic,
247 F.2d 198, 203 (9th Cir. 1957).
127. This attitude is summarized in the Convention on the Prevention and Punish-
ment of Genocide adopted by the United Nations General Assembly. Particularly,
article VII of the convention states that genocide will not be considered a political
offense. Convention on the Prevention and Punishment of Genocide, Dec. 9, 1948,
art. VII, U.N. GEN., OFF. REc. 3d Sess., Resolutions, pt. 1, at 175 (A/810) (1948),
45 AM. J. INT'L L. SupP. 7 (1951) (effective Jan. 12, 1951). For the punishment of war
criminals by national enactments, see RoussEAu, DROIT INTERNATIONAL PUBLIC 575-79
(1953).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
These observations lend support to the suspicion recently raised by an

English jurist that the new attitude toward political. offenses initiated by
Ex parte Kolczynski has been decisively rejected by the American
courts.128
2. The Political Objective Test of French Law
Keenly aware of the abuses to which a broad test of political offenses

can give rise, French law has adopted a more rigid formula which, b
cause it is wholly dependent upon the nature of the right injured, may
perhaps be more accurately described as the objective test. The adop-
tion of this test finds its basis in the French Extradition Law of March
10, 1927, which provides:
[Extradition is not granted] when the crime or offense has a po-

litical character or when it is clear (resulte) from the circumstances
that the extradition is requested for a political end.
As to acts committed in the course of an insurrection or a civil war
by one or the other of the parties engaged in the conflict and in the
furtherance ... of its purpose, they may not be grounds for extradition
unless they constitute acts of odious barbarism and vandalism prohibited
by the laws of war, and only when the civil war has ended.129
Though rather broad at first sight, concretely, however, a narrow

and restrictive approach has attended the construction of this provision,
for the French courts generally regard acts directed against the po-
litical organization of the state as political offenses without in any way
looking into the political motivation of the offender. The leading case
in this regard is In re Giovanni Gatti,"30 already mentioned in another
connection, in which the extradition of a national of the Republic of
San Marino was requested for attempted homicide where he had re-
peatedly fired at a member of a communist cell. After comprehensively
describing the nature of a political offense, the court reasoned:
The fact that the reasons of sentiment which prompted the offender to
commit the offence belong to the realm of politics does not itself create
a political offence. The offence does not derive its political character
from the motive of the offender but from the nature of the rights
128. See Green, supra note 91, at 333.

129. Law of March 10, 1927, tit. 1, art. 5, para. 2, in Harvard Research 380-81 (Fr.)
(unofficial translation).
130. [1947] Ann. Dig. 145 (No. 70) (Fr.).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
it injures. The reasons on which nonextradition is based do not permit

the taking into account of mere motives for the purpose of attributing
to a common crime the character of a political offence. 181
Exactly the same principle was applied to grant the extradition of

persons accused of collaborating with the enemy during the war. But
the application of the objective test to collaboration with the enemy
raises substantive problems of extradition law, largely because this of-
fense is nothing more than treason which most countries regard as a
purely political offense. Nevertheless, when confronted with this prob-
lem in the case of In re Colman,132 involving the extradition of a Belgian
subject on such charges as intelligence with the enemy, carrying arms
against Belgium and assassination, the Paris Court of Appeal held that
these were not political offenses because "in time of war, in a country
occupied by the enemy, collaboration with the latter excludes the idea
of criminal action against the political organization of the state which
characterizes the political offense." 133 Subsequently, in the case In re
Spiessens,13' the Court of Appeal of Nancy approved the extradition of
a Belgian national, also charged with collaboration with the enemy, on
similar grounds and using strikingly similar language.'35 Even if it could
be said that in these two cases the French courts determined the po-
litical criminality of the offense exclusively on the basis of the nature
of the rights injured, thus ruling out the political motivation of the
offenders, it nevertheless remains true that the crime of collaboration
with the enemy is a political offense stricto sensu, for, as the Supreme
Court of Brazil aptly said in dealing with a similar case, such an offense
"is a crime against the State in its supreme function, namely, its external
defense and its sovereignty." 136 Clearly, then, these French decisions
are largely motivated by expediency and, thus display the weakness of
such judicial reasoning. It must be carefully noted, however, that in
granting the extradition of persons charged with connected crimes, the
French courts have strictly demanded that the political motive of the
crime not be regarded as an aggravation of the offense, and that the
person thus surrendered not be tried by an extraordinary tribunal.187
131. Id. at 14546. (Emphasis added.)

132. [1947] Ann. Dig. 139 (No. 67) (Fr.).
133. Id. at 141. (Emphasis in original.)
134. (1949] Ann. Dig. 275 (No. 89) (Fr.).
135. Id. at 276.
136. Denmark (Collaboration with the Enemy) Case, [19471 Ann. Dig. 146 (No.
71) (Braz.).
137. In re Giovanni Gatti, [1947] Ann. Dig. 145 (No. 70) (Fr.).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
In all fairness it should be added that the objective test is probably

less subject to abuse, for in concrete situations it prevents a common
crime from becoming political on the sole ground of the political inten-
tion of its author. It therefore appears certain that under French law
the mere connection between a common crime and a political act is not
sufficient to clothe the former with a political character. But to agree
with this aspect of the objective test does not mean that its application
to all cases is necessarily sound, for functionally and practically it may
be quite deceptive. Its most significant weakness lies in the assumption
made by the French courts that only an offense which injures directly
the rights of the state can be regarded as political. Surely, this idea most
adequately describes the nature of purely political offenses, for it has
already been seen that these offenses are characterized by their lack of
connection with any ordinary crime. But to apply the same criterion to
relative political offenses leads inevitably to a misconception of the cen-
tral problem, namely, the determination of whether a common crime is a
political offense when connected with a political act. The real difficulty
with the objective test lies in the apparent failure of the French courts to
distinguish clearly between pure and relative political offenses. The
cases here reviewed would seem to make it almost certain that a com-
nmon crime, even though in furtherance of a political act, finds no pro-
tection whatsoever under the objective principle. It has even been sug-
gested that under the objective test such purely political offenses as
treason and espionage are likely to be regarded as ordinary crimes.'38 It
thus appears that while the American courts are rather liberal in afford-
ing protection to those accused of almost any common crime commit-
ted in the course of a political revolt, the French courts are unwilling
to go that far and have accordingly denied asylum in cases where the
political motivation of a common crime is clear and unmistakable.
3. The Political M/totivation Test of Swiss Law

Swiss practice, profiting by the experience gained from accumulated
precedents, has largely determined the political nature of a crime, in
contrast to the French system, by looking into the political motivation
of the offender. Thus, the Federal Extradition Law of January 22, 1892,
still in force, provides that
extradition is not granted for political offenses. It is granted, how-

ever, even when the guilty person alleges a political motive or end, if
138. 1 PoDESTA CosTA, DERcHo ITENAaONAL PUBLICO 301 (3d ed. 1955).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
1252 Virginia Law Review I.Vol. 48:1226
the act for which it has been requested constitutes primarily a com.-
mon offense. The Federal Tribunal decides liberally in each particular
instance upon the character of the infraction according to the facts of
the case.139
It can be readily seen, therefore, that under Swiss law the motive
of the offender is controlling, and this test has been applied with im-
pressive uniformity in many cases. Especially instructive is In re
Ockert,140 a case involving the extradition of a German national ac-
cused of homicide arising out of the fatal shooting of a member of the
National-Socialist Party. In refusing his surrender, the court held that
"the present case was . . . one essentially of political conflict," and de-
fined relative political offenses as "acts which have the character of an
ordinary crime appearing in the list of extraditable offences but which,
because of the attendant circumstances, in particular because of the
motive and the object, are of a predominantly political complexion." 141
In like manner, in In re Peruzzo,142 dealing with the extradition of an
Italian national charged with incitement to, or complicity in, the homi-
cide of a Fascist, the Federal Tribunal granted extradition precisely on
the ground that the motivation of the accused was not political. In
applying the political motivation test the tribunal was most emphatic:
There is no doubt that the present offence is not a political offence

in the strict sense of the words, i.e., an offence which consists in direct
revolt against the State and its fundamental institutions (such as high
treason, revolt, etc.). But the question arises whether it must be con-
sidered to be a relative political offence, i.e., an offence which, while
having the characteristics of a common offence, acquires political
character by the motive inspiring it, by the purpose for which, or th
circumstances in which, it is committed; in other words, whether it is
an offence which, while in itself a common offence, has a predominant-
ly political character.143
There are many other cases where a similar principle has been faith-
fully applied.'44 Though in principle it may appear that the political
139. Federal Extradition Law of Jan. 22, 1892, art. 10, Harvard Research 423 (Swit.)
140. Bundesgericht, Oct. 20, 1933, 59(l.) Entscheidungen des Schweizerischen Bundes-
gerichtes 136, [1933-34] Ann. Dig. 369 (No. 157) (Swit.).
141. Id. at 158, [1933-34) Ann. Dig. at 370.
142. [1952] Int'l L. Rep. 369 (1951) (Swit.).
143. Id. at 370.
144. See in this connection, In re Ficorilli, [1951] Int'l L. Rep. 345; In re Caporini,

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
motivation test is fairly broad since asylum may be given solely on the
subjective motive of the offender, experience in extradition cases shows
that the Swiss courts have invoked two more conditions which, in
specific contexts, result in the surrender of fugitives, even if political
motivation is found to exist. The first of these conditions is simply that
there must be a direct connection between the common crime and the
purpose pursued by a party to modify the political organization of the
state.145 This condition is likely to be found when the common offense
is committed for the purpose of helping or insuring the success of a
purely political offense.'46 This requirement seems most naturally to
assume that unless there is a political movement of some sort, a political
motivation in the commission of a common crime can hardly be deemed
to exist. It is precisely because of the absence of this condition that the
Swiss courts are unwilling to regard terrorism as a political offense
much in the manner of the English case in re Meunier.147 The leading
Swiss case involving acts of terrorism is In re Kaphengst,148 in which the
extradition of a German national was granted on the charge of bomb-
ings in Prussia, even though the political motivation of the acts was
offered as a defense. After saying that it was not the Swiss practice
"to attribute the character of a political offence to purely terrorist
acts," 149 the federal tribunal decisively concluded that " 'acts which are
not related to a general movement directed to the realization of a
particular political object in such a way that they themselves appear as
an essential part or incident . . . thereof, but which serve merely ter-
roristic ends . . . so as to facilitate . . a future political struggle, can
raise no claim to asylum.' ") 150
The second important condition limiting the political motivation test
[1923-24] Ann. Dig. 283 (1924); In re Ragni. [1923-24] Ann. Dig. 286 (1923) (Swit.);
In re Vogt, [1923-24] Ann. Dig. 285 (1923).
145. Thus in the case In re Ragni, supra note 144, the court refused a request for
the extradition of a person accused of complicity in a brawl between members of the
Fascist Party. The court reasoned that clashes such as the one in question "were not
mere casual disputes arising from local or personal enmity, but part of a struggle
which was on such a wide scale that it came near to being a civil war." Id. at 286.
146. In re Nappi, [1952] Int'l L. Rep. 375 (No. 81) (Swit.). This case dealt with the
extradition of an Italian national on charges of robbery and carrying arms without a
license. The extradition was granted on the charge of robbery.
148. [1929-30] Ann. Dig. 292 (1930) (No. 188) (Swit.).
149. Ibid.
150. In re Ockert, Bundesgericht, Oct. 20, 1933, 59(1.) Entscheidungen des Schweizer-
ischen Bendesgerichtes 136, [1933-34] Ann. Dig. 369, 370 (No. 157) (Swit.), quoting In re
Kaphengst, [1929-30] Ann. Dig. 292 (1930) (No. 188) (Swit.).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
is the celebrated Swiss theory of predom

that in a relative political offense the po
over the common crime. On such a basis, it has been repeatedly held
that cases involving acts of atrocity and barbarity completely out of pro-
portion to the end sought will be considered as common crimes and,
hence, extraditable,.even if committed with a political motive. Thus, in
the Wassilieff case,1"1 involving the request for the extradition of a
Russian national on the charge of murdering the chief of police of
Penza, the Federal Tribunal granted the extradition of the accused on
the ground that the murder in question gave the act a predominantly
common crime character, as it clearly did not pursue the realization of a
purely political offense and, in addition, the accused did not have to re-
sort to the murder of the police official since other means of redress were
available.'52 Similarly, in the more recent case In re Kavic,'53 the court
was concerned with the request for the extradition of some Yugoslav
nationals, members of the crew of a passenger plane, who, after intimi-
dating other crew members, diverted the plane from its lawful destina-
tion to Switzerland where they sought asylum. The facts of this case
reveal a close similarity to the English case Ex Parte Kolczynski.164
After considering the offense as prima facie political in that it prepared
and insured the success of a purely political offense and, thus, motivated
by a political end, the Federal Tribunal invoked the predominance
theory by saying that political motive alone is not "enough to exclude the
possibility of extradition for these offences it is also necessary that their
political character should outweigh their common characteristics." 15
The court briefly discussed the restrictions existing in a totalitarian State,
and seriously questioned the restrictive nature of the interpretation of
political offenses thus far given by Swiss tribunals in that the relative
political character of the offense has often been dependent upon its
151. Decided on July 13, 1908. The text of the decision in Wassilieff is set forth
in [19091 FOREIGN REL. U.S. 519 (1914).
152. Id. at 521. Acts of terrorism have increasingly come to be regarded as crimes
against the peace and security of mankind. They are treated as such in the Draft Code
of Offenses Against the Peace and Security of Mankind prepared in 1951 by the
United Nations International Law Commission. International Law Comm'n, Report,
U.N. GEN. Ass. OFF. REc. 6th Sess., Supp. No. 9, at 10-14 (A/1858) (1951). See also
Paoli, Contribution a l'Etude des Crimes de Guerre et des Crimes contre l'Humanite
en Droit Phnal International, 49 REVUE GENfRAL DE DROIT INTERNATIONAL PUBLIC 129,
146 (1945).
153. [1952] Int'l L. Rep. 371 (No. 80) (Swit.).
154. [1955] 1 Q.B. 540 (1954).
155. In re Kavic, [19521 Int'l L. Rep. 371, 373 (No. 80) (Swit.).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
1962] Political Offenses 125S
commission in the framework o

formulated its conclusion in the
In this connection there can also be applied the principle that the
relation between the purpose and the means adopted for its achieve-
ment must be such that the ideals connected with the purpose are
sufficiently strong to excuse, if not justify, the injury to private prop-
erty, and to make the offender appear worthy of asylum. Freedom
from the constraint of a totalitarian State must be regarded as an ideal
in this sense. In the present case the required relationship undoubtedly
exists; for, on the one hand, the offenses against the other members of
the crew were not very serious, and, on the other, the political free-
dom and even existence of the accused was at stake, and could only be
achieved through the commission of these offences.,57
The preceding passage is of considerable scope and importance be-

cause, like its English counterpart, the Swiss law has adopted a concep-
tion of political offense more in conformity with contemporary realities.
It may be safe to say, therefore, that under Swiss law the commission of
a common crime with the purpose of avoiding prosecution for a political
offense will not be extraditable, unless the common crime in question
is out of proportion to the end sought. Certainly, the theory of pre-
dominance is of immeasurable benefit here, for it greatly helps to apply
the exemption of political offenders with more justice and concern for
the rights of the individual. It is of some significance to add that this
theory of predominance has gradually been imported into modern extra-
dition treaties'58 and domestic laws.'59
Finally, the political motivation test has been endorsed by the courts
of other countries. Thus, a German court, after quoting Swiss prec-
156. Ibid.
157. Id. at 374.
158. In this connection, it is pertinent to mention the convention between Poland
and Czechoslovakia which provides that extradition will not be granted "if the offence is
political or is connected with a political offence, unless the characteristic of an offence
under ordinary law predominates . . . ." Convention Between Poland and Czecho-
slovakia, Jan. 21, 1949, art. 60, ? (b), 31 U.N.T.S. 300. See also Treaty of Extradition
wvith Brazil, Jan. 13, 1961, art. V, para. 6(a), 44 DEP'T STATE BULL. 166 (1961); Extradi-
tion Treaty Between Brazil and Bolivia, Feb. 25, 1938, art. III, ? 1, 54 U.N.T.S. 348;
Convention Between Finland and Sweden, Nov. 29, 1923, art. 2, para. 1, 23 L.N.T.S. 42;
Convention Between Latvia and Lithuania, July 12, 1921, art. 2, 25 L.N.T.S. 313; Addi-
tional Protocol to the Extradition Treaty Between Argentina and Italy, June 9, 1904,
art. IV, [1905] FOREIGN REL. U.S. 33 (1906).
159. See Law on Extradition, June 28, 1911, art. 5, Harvard Research 367 (Braz;)

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
edents with approval, has held that in the

offense "the 'ordinary' criminal act must in fact have been a means,
method or cloak for the carrying out of the 'political' offence. To this
extent . . . the political object of the criminal is relevant for the de-
termination of the question whether his crime is a 'connected' act." "I"
On a similar theory, a Belgian court of appeal not long ago said that "a
political offense is one which, in essence, is directed against the political
regime or which, though normally constituting an ordinary crime
('crime de droit commun') assumes the character of a political crime
because the aim of the author of the crime was to injure the political
regime." 161 In a more recent case, an Argentine court held that "to be
classified as a political offence and hence nonextraditable, an offence
must be clearly motivated by political considerations." 162 And the same
test has been applied by Brazilian,163 Chilean,164 and Italian'65 courts.
It would seem, therefore, that the Swiss test of political motivation,
tempered by the theory of predominance, is perhaps the most desirable
extradition practice, for in determining a complex issue such as that
contained in a relative political offense, the courts can carefully weigh
the merits of each individual case so as to give asylum to deserving of-
fenders in some cases and to grant the extradition of those whose com-
mon criminality has been proved beyond the last vestige of doubt.
CONCLUSION
An attempt has been made here to give the elements which make up
a political offense. It is clear that the courts have had no difficulty in
determining purely political offenses, while the problem concerning the
nature of a relative political offense is still not free from controversy
160. In re Fabijan [1933-341 Ann. Dig. 360, 364 (1933) (No. 156) (Ger.). In recent
decisions the West German Supreme Court has been expanding the concept of a
political offense so as to include the politically persecuted on the basis of article 16(2)
of the Constitution of the Federal Republic. These cases are enumerated in note 20
supra.
161. In re Barratini, [1938-40] Ann. Dig. 412 (1936) (No. 159) (Bel.).
162. Re Peyre, [1955] Int'l L. Rep. 525 (Argen.). See also In re Don Oscar Mariaca
Pando, [1925-26] Ann. Dig. 310 (1926).
163. ACCIOLY, MANUAL DE DIREITO INTERNACIONAL PUIBLICO 193 n.1 (1948).
164. Re Garcia Zepeda, [1955] Int'l L. Rep. 528 (Chile). The court quoted article
131 of the Chilean Penal Code under which political offenses are those "committed by
private persons during an insurrection or in connection therewith, in which there is the
element of political motivation." See also Re Caimpora, [1957] Int'l L. Rep. 518 (Chile).
165. In re Pavelic, [1933-34] Ann. Dig. 372 (1934) (No. 158) (Italy); In re Korosi,
[1925-26] Ann. Dig. 309 (Italy).

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC
1962j Political Offenses 1257
and doubt. This discussion has shown that there is no single criterion
to determine the nature and scope of complex crimes. It is thus quite
possible that what is a relative political offense to the courts of one
country may well be a common crime to those of others. Such per-
plexing diversities are manifestly undesirable. Although the different
tests used to determine the connection between a common crime and a
political act undoubtedly serve a useful purpose by assisting the courts
in alleviating the strict application of the principle of nonextradition of
political criminals, which was originally designed to protect those ac-
cused of purely political offenses, it would seem that further progress
in this area requires that these cases be decided on their merits without
any reference to predetermined conceptions. In this connection, the
courts should frankly recognize the frequently camouflaged fact that
in a number of cases the political element of the offense is so remote
that its political character is for all purposes nonexistent. To grant
asylum under these conditions would certainly be equivalent to shel-
tering ordinary criminals. On the other hand, it has been strongly sug-
gested that a person should not be surrendered when the political ele-
ment of the offense is unmistakably established. Considerations of jus-
tice and a deep regard for human rights would seem to demand this
course of action precisely at this time when the humanitarian function
of the principle of nonextradition of political offenders is most vitally
needed.

180.179.211.228 on Sat, 12 Mar 2022 04:34:40 UTC

Pol and ToT 3

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Pol and ToT 3

Uploaded by

Copyright:

Available Formats

The Nature of Political Offenses: A Knotty Problem of Extradition Law

Author(s): Manuel R. García-Mora

Stable URL: https://www.jstor.org/stable/1071012

This content downloaded from

When a country demands that a refugee from its territory be

B ROADLY speaking, a political offense is an act directed against

This content downloaded from

There is therefore no fundamental agreement among governments and

Much of the uncertainty touching the determination of political

5. See GARCiA-MORA, INTERNATIONAL LAW AND ASYLUM AS A HUMAN RIGHT 73-102

This content downloaded from

any way violating a rule of international law.8 Likewise, it has been

8. Harvard Research in International Law, Extradition, 29 Am. J. INT'L L. Supp. 66,

This content downloaded from

political offense in the courts of one country may be a common crime

This content downloaded from

against the rights of citizens in electing or voting, or against the good

This content downloaded from

is regarded as political.27 The original Belgian Law of October 1, 1833,28

PURELY POLITICAL OFFENSES

Looking comprehensively at domestic enactments and extradition

This content downloaded from

It should be added that in a communication from Secretary of State Sherman to the

This content downloaded from

offense is of a political nature or of a character related thereto .." 40

This content downloaded from

Tribunal has distinguished "political crim

This content downloaded from

57. [19551 Int'l L. Rep. 527 (Braz.).

This content downloaded from

assumes the character of a political crime b

This content downloaded from

law by virtue of the general principles of law as recognized by civilized nations.

This content downloaded from

It is therefore plain that the reluctance of governments to extradite

Note From Secretary of State Jefferson to Messrs. Carmichael and Short

This content downloaded from

tional law those accused of the

RELATIVE POLITICAL OFFENSES

Most extradition treaties deny extradition of persons accused or con-

77. STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICTS 569 (1954).

This content downloaded from

1. The Incidence Test of Anglo-American Law

(a) The Law of Great Britain

a fugitive criminal shall not be surrendered if the offence in respect of

The most authoritative early statement of the conditions under which

This content downloaded from

extradition is requested must be incidental to or form a part of the

[I]n order to constitute an offence of a political character, there must

87. [1894] 2 Q.B. 415.

This content downloaded from

This content downloaded from

This content downloaded from

that ordinary crimes which have no political significance will be thereby

(b) The Law of the United States

The American extradition practice as regards relative political offenses

This content downloaded from

in which the Salvadorean government sought the extradition of General

This content downloaded from

charged by the Russian Government with the commission of certain

In view of these facts and circumstances the Department . . . is

Here, again, the incidence test appears with impeccable consistency.

This content downloaded from