Extradition and the Political Offense Exception

Author(s): Mary V. Mochary, Victoria Toensing, Nigel Sheinwald, Thomas Moseley, Ruth
Wedgwood and Torsten Stein
Source: Proceedings of the Annual Meeting (American Society of International Law) ,
APRIL 8-11, 1987, Vol. 81 (APRIL 8-11, 1987), pp. 467-483
Published by: Cambridge University Press on behalf of the American Society of
International Law

Stable URL: https://www.jstor.org/stable/25658394

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

American Society of International Law and Cambridge University Press are collaborating with
JSTOR to digitize, preserve and extend access to Proceedings of the Annual Meeting (American
Society of International Law)

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 467

My last comment concerns an editorial from the Times of London discussing how
the British could make the European Convention on Human Rights a part of their law
through an Act of Parliament. That would be a most interesting experience, matching
the one we've heard about in Iowa, with respect to another nation. The Times dis
cusses this at length and then concludes it's a bad idea. I'm not sure that the
Manchester Guardian and other British commentators will take the Times9 view on
this.
Myles V. Lynk*
Reporter

Extradition and the Political Offense Exception

The panel was convened on Friday, April 10,1987, at 2:30 p.m., by the Chair, Mary
V. Mochary.**

Remarks by Ms. Mochary

Ms. Mochary noted that the "political offense" exception was one of the few de
fenses to extradition. She observed that it raised many questions, such as who might
raise the defense; what elements had to be shown to sustain it; whether the exception
really existed or whether it was merely a euphemism for political flexibility, and
whether it should or should not be favored.

Remarks by Victoria Toensing***

Ms. Toensing reviewed the history of the exception and noted that it was relatively
recently that the U.S. Government had adopted a role actively rather than leaving the
matter to private parties. She then gave an overview of the exception.
Ms. Toensing noted that one significant factor influencing the exception in recent
litigation had been the phenomenon of terrorism. Another related concern had been
the issue of extraterritoriality. The use of extraterritoriality necessarily had expanded
to deal with the threat of terrorist acts against U.S. citizens abroad. As a result, extra
dition also needed to expand.
Ms. Toensing reviewed a number of recent strategies to expand extradition. Over
the preceding 10 years, efforts had been made to negotiate treaty provisions that
would allocate the decision to the Executive. In addition, more recently the United
States had utilized the negotiation of protocols to existing treaties to deal with the
need to expand extradition. Recent protocols would assign the decision to the courts,
but crimes of violence would not be within the political offense exception. This was
the case in the recent negotiations with the United Kingdom.
Ms. Toensing noted, however, that direct efforts to limit the exception in U.S.
courts generally had not been productive. Accordingly, it appeared that the prefera
ble route to limiting the exception would be through bilateral negotiations with other
concerned states.

Of the District of Columbia Bar.

Deputy Legal Adviser, U.S. Department of State. This is an editorial summary. Ms. Mochary's re
marks are available in full on a cassette recording prepared during the Annual Meeting, Tape 28a, Side One.
Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice. This is an
editorial summary. Ms. Toensing's remarks are available in full on a cassette recording prepared during the
Annual Meeting, Tape 28a, Side One.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 468

Ms. Mochary noted that the definition of what constituted an excepted "political
offense" varied from state to state. The exception arose as a matter of treaty, not
customary international law.

Remarks by Nigel Sheinwald*

I find myself in a double minority. First, I am not an American. If that weren't bad
enough, I must confess that I also am not a lawyer. Some of my best friends are,
however, and I suppose lawyers and diplomats often are regarded as sharing the same
tendency to argue three sides of every question. There is a nice rhyme in Alice in
Wonderland that goes: "In my youth, said his father, I took to the law, and argued
each case with my wife; and the muscular strength which it gave to my jaw has lasted
the rest of my life."
What I would like to do today is review the U.K. approach to the political offense
exception and recent U.K.-U.S. experience of the issue. Extradition is of course an
intergovernmental transaction in which?in both our countries?there is a judicial
component. The United Kingdom was the first extradition treaty partner of the
United States. In a few years we shall celebrate the bicentennial of the Jay Treaty.
We think it generally has been a very good partnership. And we think that our recent
Supplementary Extradition Treaty, dealing with the political offense exception, dem
onstrates the two governments' readiness to react to judicial decisions and changing
political circumstances.
In U.K. law, great care has been taken over the decades to review the political
offense exception and define it according to changing conditions, including the devel
opment of law and practice in relation to terrorist crime.
In the United Kingdom, we cannot extradite a person for offenses such as treason or
espionage, what we might call "pure" political offenses. But our courts have had to
consider the application of the political offense exception to common crimes such as
murder, robbery and the use of explosives when committed by persons claiming the
political offense exception. The political offense exception has been stated variously in
the U.K. leading cases, where it has been pointed out that it was inspired by the
'heroes intolerably provoked by tyranny' such as Garibaldi, but also must be available
even to those engaged in a bad cause. The courts in the United Kingdom have cur
tailed its application significantly. Not since the famous Castioni case, decided in
1890, have the United Kingdom courts refused on this ground to extradite a fugitive
where real violence was involved, whatever his alleged motive.
Instead, the courts have had particular regard to the objectives of the requesting
state, thus approaching the concept of an offense of a political character in terms more
apt to a decision on political asylum?what in extradition law is called the asylum or
humanitarian safeguard. The essential elements in this approach are present in the
decision in the leading Schtraks case in 1963, in which the following view was ex
pressed: "There may, for example, be all sorts of contending political organizations or
forces in a country and members of them may commit all sorts of infractions of the
criminal law in the belief that by so doing they will further their political ends: but if
the central government stands apart and is concerned only to enforce the criminal law
that has been violated by these contestants, I see no reason why fugitives should be
protected by this country from its jurisdiction on the ground that they are political
offenders."

First Secretary, Embassy of Great Britain to the United States. Mr. Sheinwald spoke in his personal
capacity; the views expressed are his own and are not necessarily those of the British Government.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 469

These considerations are reflected in our 1978 Suppression of Terrorism Act which
enabled the United Kingdom to ratify the European Convention on the Suppression of
Terrorism. Its principal effect is to provide that certain violent offenses may not be
regarded as offenses of a political character in respect of extradition to states which
have ratified the convention or are otherwise specifically designated.
At the same time, while disapplying the political offense exception, we correspond
ingly wrote in a humanitarian safeguard. Such a safeguard has been present in our
extradition arrangements with Commonwealth countries since 1967 and, if the Crimi
nal Justice Bill now before Parliament becomes law, it will form a statutory ground for
refusal to extradite to foreign states. In U.K. law the inclusion of a humanitarian
safeguard enables the fugitive to introduce evidence that the request for his extradition
was made with a view to try or punish him on account of his race, religion, nationality
or political opinion or that he might, if surrendered, be prejudiced at his trial or pun
ished for those reasons.
We have always taken the view that, in dealing with Western Europe and the
United States, there is no need to include a safeguard on these lines for the simple
reason that the circumstances envisaged in the safeguard could not apply to countries
with self-evidently strong, independent and impartial judiciaries. In the Supplemen
tary Extradition Treaty negotiated in 1985, there was no such provision, but one was
included in the revised version approved last year by the U.S. Senate. We have no
difficulty in stating and demonstrating publicly, if necessary to the satisfaction of a
court, that we are concerned only with the enforcement of the criminal law. Nor do
we have any difficulty, in this country or elsewhere, in confidently reaffirming the
fairness of our legal and political institutions.
The judicial treatment of the political offense exception in the United Kingdom of
course interacts with changing political attitudes, particularly in the face of the up
surge in domestic and international terrorism in the past 20 years. The underlying
view of terrorist crime adopted in our Suppression of Terrorism Act is clearly sup
ported by public attitudes. Put simply, in a democracy, people may express their
views through the political process; they must persuade, not compel, their fellow citi
zens. Only those on the extreme fringes of society in the United Kingdom and West
ern Europe make an attempt to arrogate a wider legitimacy to political violence.
The implications are plain in relation to the problem of Northern Ireland. Succes
sive British Governments have recognized the legitimacy of the aspiration to Irish
unity, making it clear at the same time that any change in Northern Ireland's status
could come about only with the consent of a majority of those who live there. The
aspiration to Irish unity is recognized formally in the Anglo-Irish Agreement of 1985.
Nationalists in Northern Ireland express their political views in the same way as other
citizens?through the ballot box and public advocacy. Few people in Ireland think
that the Irish Republic army (IRA) represents anyone but itself.
In recent years the courts in the Republic of Ireland have extradited terrorists to
Northern Ireland, taking the view in one case that: "The excusing per se of murder,
and of offenses involving violence and the infliction of human suffering, done by, or at
the behest of self-ordained arbiters, is the very antithesis of the ordinances of Christi
anity and civilization and of the basic requirements of political activity." (McGlinchy)
In another case (Shannon) the Judge said that the murders in question (of a former
Speaker of the Northern Ireland Parliament and his son) were so brutal, cowardly and
callous that it would be a distortion of language if they were to be accorded the status
of political offenses or offenses connected with political offenses. The Irish Govern
ment announced in November 1985 that it would ratify the European Convention on

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 470

the Suppression of Terrorism. It signed the convention in February 1986; the legisla
tion to enable it to ratify has passed through the Dail already, and as things stand, will
come into force on December 1, 1987.
I should add that, just as the U.S. courts have expressed their confidence in the
Northern Ireland judicial system, so have the courts in the Republic of Ireland. In a
February 1986 extradition decision, the judge said that there was nothing in the mate
rial presented to him "which would entitle me to impugn for a moment the integrity of
the judiciary in Northern Ireland, or which would lead me to the conclusion that the
plaintiff, if extradited, would not be given a fair trial when brought before the courts in
Northern Ireland."
This was the legal and political background in the United Kingdom and the Repub
lic of Ireland against which judicial decisions in this country rejecting British extradi
tion applications because of the political offense exception were seen. I don't need to
describe British public attitudes when the extradition of terrorists is rejected by a for
eign court: you know the feeling from recent American experience of attempts to
secure the return of those wanted here for serious terrorist crimes.

By the end of 1984, three U.K. extradition requests involving IRA terrorists had
been rejected in five years in U.S. courts. A fourth was being pondered at that time by
the ninth circuit court of appeals, and we could not know how the decision would go.
But at the end of 1984, when the Doherty case was decided, none of our four IRA
requests had succeeded.
The four were by no means identical. In two of them (McMullen and Doherty} the
fugitive admitted responsibility. The targets were also different: in McMullen, the
target was a military barracks, but bombs were placed outside dormitory and recrea
tion facilities, and the victim of the attempted murder was a civilian, a canteen manag
eress. Another case, Quinn, involved a man whose fingerprints were found on a series
of bombs sent to British public figures and who also is accused of the murder of an off
duty policeman in plain clothes. The McMullen and Quinn offenses were committed
in England. Those of the other two took place in Northern Ireland, against security
force targets. But the view reached definitively in three of the cases, and upheld at
various points in the Quinn case, though in the end overturned, was that the IRA
deserved the protection of the political offense exception, viewed largely according to
the broadest Castioni definition.
These decisions revealed not only a significant gap between American and British
judicial approaches to the subject, but also identified a pressing political need for the
two governments to try to forge a more effective consensus in order to outlaw the use
of political violence in democratic societies and in turn to strengthen the Western
armory against international terrorism.
The result in our case was the negotiation of the Supplementary Extradition Treaty
in the spring of 1985, the purpose of which, like the European Convention on the
Suppression of Terrorism, is to disapply the political offense exception from a broad
range of serious crimes of violence. The crimes listed in the signed treaty are those
which, in our experience, are characteristic of terrorist activity. But the treaty did not
make extraditable what had previously been beyond the scope of our bilateral
arrangements.
We of course anticipated a thorough discussion of the new treaty, but it would be
wrong to disguise the intensity and difficulty of that debate. The Senate Foreign Rela
tions Committee's report on its hearings is nearly 1,000 pages long, and it took a year
from transmission to the Senate to final Senate approval in July 1986. Now is not the

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 471

time to review the ins and outs of the ratification process. But we, for our part, were
concerned to defend two simple propositions:
(1) that in and between democracies, the idea that one man's terrorist is another
man's freedom-fighter is misplaced and damaging to the Western interest. We
never could accept that some crimes were more "terroristic" than others simply
because the targets were soldiers or policemen or because automatic weapons,
rather than a single bullet or bomb, were used;
(2) that to limit the scope of the political offense exception in this way is not, as
some of our opponents claim, inherently illiberal, but in fact is a reaffirmation of
our commitment to democratic values, tolerance and pluralism.
Our government regards the Supplementary Treaty as a practical contribution to a
practical problem. We already have initiated the first case under it?a new request for
the extradition of McMullen for attempted murder and other offenses connected with
the bombing 13 years ago. It will be an important case for us. We are confident that
the necessary groundwork has been laid for the differences between American and
British approaches to this important question to be narrowed.
Ms. Mochary commented on the suggestion that the humanitarian safeguard
might be replacing the political offense exception. She noted that in states where ex
tradition was an executive decision, there was often no clear distinction drawn be
tween the two.

Remarks by Thomas Moseley*

Mr. Moseley emphasized that the political offense exception was a creature of
treaty. It was not constitutionally based or derived from customary international law.
He noted that it was raised in the course of an extradition hearing conducted under
statutory authority, but the statute was not the source of the exception.
Mr. Moseley argued that much of the U.S. case law had failed to recognize the
historical basis of the political offense exception. It had arisen, he noted, in the 19th
century in response to democratic wars of revolution against regimes that did not rule
with the consent of the governed. Now, he argued, the exception was used as a safe
haven for persons not deserving of the protection of the exception.
In this regard, Mr. Moseley argued that the exception was not intended for situa
tions in which violence had been used against a democracy. Current results were in
fact contrary to the original purposes of the exception.
Mr. Moseley discussed the 1986 U.S.-U.K. Treaty. He viewed it as a return to the
original purpose of the political offense exception. He expressed the view that U.S.
judicial analysis of the exception lagged behind that of the courts of the United King
dom and the Irish Republic.
Mr. Moseley compared this current U.S. practice in the extradition area with that
in the area of immigration law. There administrative review had produced decisions
that squared with the original purpose of the exception. He commended the concept
of the denial of the political offense exception where there had been a violation of
international law or of international rules of civilized behavior, for example, in the
area of war crimes.
Mr. Moseley concluded with a brief review of some of the significant features of
the 1986 U.S.-U.K. Treaty.

*Of the New Jersey Bar; formerly Assistant U.S. Attorney, Office of the U.S. Attorney, Southern
District of New York. This is an editorial summary. Mr. Moseley's remarks are available in full on a
cassette recording prepared during the Annual Meeting, Tape 28a, Side Two.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 472
Remarks by Ruth Wedgwood*

When we think about the political offense exception in the law of extradition, it is
useful to go back and look at what its purposes might be, why the political offense
exception at its origin may have been a popular idea. We do not like its application to
people committing terrorist acts in constitutional democracies in this decade, but per
haps there once was a concern behind it worth thinking about. "Political offense" is a
phrase handed down to us without any elaboration of its purpose. But the category
plausibly could have been intended to do a number of things.
It might be a form of international First Amendment, with an Alexander
Meiklejohn political pluralism center to it. While the United States has a First
Amendment, some other countries don't. If we get a request for the extradition of an
individual for a matter that seems to us wrongly criminal?seditious libel, slandering
the government, or belonging to a political party that has been outlawed, some activity
that would be protected here?the question properly is raised whether it should be an
extraditable offense. We should foster abroad the political pluralism that we value in
our own country. That may have been one of the strong impulses behind the political
offense exception. It is, to be sure, a deep principle of extradition law that you never
shall send somebody back to be tried for a crime, if it's not a crime in your own
country?so-called dual criminality. Because of the rule of dual criminality, the polit
ical offense exception is superfluous in U.S. extraditions for these First Amendment
purposes. But in talking about categories of international law, one wouldn't want to
do away with the political exception altogether, because other countries lack our
broad constitutional liberties and have very different views of speech.
The second impulse that could lie behind the exception is a concern that any gov
ernment may find it hard to deal with its political opponents on an evenhanded basis.
If you return someone to a country where he has committed a crime when he is a
known opponent of the regime or has acted with political motives, the regime may be
tempted to take liberties with the evidence, to give him an unduly harsh punishment,
or to use extralegal means altogether. While one can seek diplomatic assurances that
such will not happen, there is never a complete guarantee. Even when his offense is
properly criminal, there is always a lingering worry that the person's very political
prominence may put him in jeopardy.
The third set of reasons goes to the relation of some crimes to a country's political
interest. There are crimes that very much involve a country's interest as an interna
tional actor, such as espionage, where the definition of what is criminal and what
ought to be criminal depends on one's political allegiance. While we would want to
help an ally prosecute spies who have jeopardized allied security, we wouldn't want to
be bound to a general practice of returning individuals charged with espionage where
they had helped us. So the political offense exception may have been designed to
provide a general buffer, to avoid breach of treaty obligations and yet allow operations
that simply were felt to be necessary for national security.
For the 19th century, a particularly strong fourth reason was a sense of studied
neutrality. We didn't want to be involved in civil wars abroad, didn't want to be
taking sides, didn't want to be jeopardizing our relationship with a country if we had
guessed wrong on who would be the successor regime. Standing off, choosing no side
at all, may have seemed a safer policy than guessing wrong.

Associate Professor of Law, Yale Law School.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 473

A fifth reason is that at times it is important, for everybody's sake, to be able to

grant asylum and have the promise of asylum stick. In a modern context, if you were
seeking to persuade Marcos to step down in the Philippines and had an extradition
treaty with the Philippines yet lacked a political offense exception, Marcos might have
been more reluctant to step aside and yield power. If you don't have a way of making
credible your commitment to provide asylum, enforceable asylum, then you may have
less flexibility in dealing with the succession of regimes abroad.
A sixth reason, which goes back to a humanitarian sense, is that in conditions of
extreme political unrest and extreme political turbulence, normal standards of crimi
nality, while they may be very necessary to preserve constitutional liberal regimes,
may not apply as comfortably. In a situation where there has been incessant violence
or extraordinary provocations, normal notions of mens rea and criminal state of mind,
the kind of defect of character that brings someone to choose a criminal action, do not
apply as naturally. The fact that someone has engaged in a political crime doesn't
mean necessarily he would be criminal in an ordinary setting.
The final reason that makes the political offense exception such a hard area is that it
implicates our attitude toward revolutionary violence and insurgent violence. The un
easiness of our relationship to violence is seen throughout the landmark political of
fense decision of In re Castioni in the 19th century. Queen's Bench Judge James
FitzJames Stephen, incidentally the uncle of Virginia Woolf, and his colleagues were
faced with a long-time London resident, Angelo Castioni, who returned to his native
Swiss canton of Ticino and took part in a "pro-constitutional" revolt, designed to
enforce the plebiscite guarantees of the Ticino Constitution against the usurping ac
tions of the local canton government. In a highly inflected set of opinions, 1 QB 149
(1890), the Queen's Bench suggested that there was no evidence that Castioni had
killed the Swiss councilman who was manning the municipal palace deliberately, that
the confusion on the scene had been considerable, that the leaders of the revolt had
feared justifiably there might be violence by the gendarmerie and so had armed them
selves appropriately, and that the revolt sought only to enforce the constitutional
rights of the Ticino citizens, who had submitted enough signatures on a petition to
require the holding of a plebiscite and unconstitutionally had been refused the election
by incumbent canton officials. The Queen's Bench held that Castioni's action had
been in furtherance of a political disturbance and would be considered a nonex
traditable political offense.
Four years later, Queen's Bench further limited this already hedged opinion in a
case called In re Meunier, 2 QB 415 (1894). Anarchists had exploded bombs at an
army barracks and at the Cafe Very in Paris, killing two people in the cafe. Appar
ently not appreciating the claims of modern terrorists, defense counsel for Meunier
acknowledged candidly: "[I]t cannot be contended that the explosion at the Cafe Very
was a political offense." 2 QB at 417. The army barracks bombing was in turn re
jected by the Queen's Bench as not deserving the sobriquet of political offense. Anar
chists, said the court trimly, surely fall outside the political offense exception because
they aren't political: they don't believe in any government. In more apt aversion to
tactics of indiscriminate violence, the court noted: "They may, secondarily and inci
dentally, commit offenses against some particular government; but anarchist offenses
are mainly directed against private citizens."
Many American courts have not been so careful with the Castioni case, applying its
language woodenly to insulate any violence, used for any cause, even against civilians,
so long as it was "incidental" to a political disturbance. For instance, in In re Ezeta,
62 F. 972 (N.D. Cal. 1894), two officers of a Salvadorean military government came

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 474

upon civilians hiding in small houses in a certain canton during a rebellion. The civil
ians declared they had not taken part "either for or against the revolution." Though
unarmed and securely in custody, they were hung summarily. Extradition of the of
ficers was refused because the killings were deemed "directly connected with the con
flict." (Id. at 997.) Disclaimed the judge: "I have no authority, in this examination,
to determine what acts are within the rules of civilized warfare, and what are not."
(Id.)
The Artukovic decisions in California in the 1950s were horrifying. The courts said
that even though Andrije Artukovic, as Interior Minister of the state of Croatia in
World War II, may have been responsible for ordering the deaths of thousands of
civilians, it was a time of political turbulence, the state of Croatia supposedly per
ceived Jews and others as their enemies and so, the murders passed the Castioni test.
Artukovic was not extradited until the 1980s because of that misapplication. See Ar
tukovic v. Boyle, 140 F. Supp. 245 (CD. Cal. 1956); Karadzole v. Artukovic, 247 F.2d
198 (9th Cir. 1957).
In the most distressing of the Irish cases, the recent Quinn decision concerning an
individual who sent letter bombs to a newspaper editor, to a bishop, and to a judge as
well as shooting and killing a policeman, the ninth circuit with some very fine judges
applied a reductionist reading of Castioni and found the acts of terror were incidental
to and formed a part of political disturbances with only the saving grace that the
killings took place in England, not Northern Ireland. See Quinn v. Robinson, 783
F.2d 776 (9th Cir. 1986). American courts have worked themselves into a conun
drum. They have said, there are times when politically insurgent violence may be
justified. There may be some regimes that deserve overthrowing. We, however, are
courts and are not entitled to make political discriminations. In our domestic function
as courts, we don't look at ideology. Under the First Amendment, we are blind to the
political philosophy expressed by a litigant before us. We deal only with the law and
cannot make any political distinction between one use of violence and another. Hence
to protect some violence, we will protect all violence.
This nihilistic and undiscriminating attitude by courts toward the use of violence is
deeply corrupting of their own legitimacy in a constitutional regime. It is very hard to
take one attitude toward violence domestically, to say we're not going to brook any
form of political violence by our own citizens and yet to be insulating the most hei
nous conduct abroad. The Quinn court, faced with letter bombs sent to civilians,
wrote placidly as follows:
It is not our place to impose our notions of civilized strife on people who are
seeking to overthrow the regimes in control of their countries in contexts and
circumstances that we have not experienced, and with which we can identify only
with the greatest difficulty. It is the fact that the insurgents are seeking to change
their governments that makes the political offense exception applicable, not their
reasons for wishing to do so or the nature of the acts by which they hope to accom
plish that goal. Politically motivated violence, carried out by dispersed forces
and directed at private sector institutions, structures, or civilians, is often under
taken?like the more organized, better disciplined violence of preceding revolu
tions?as part of an effort to gain the right to self-government. We believe the
tactics that are used in such internal political struggles are simply irrelevant to
the question whether the political offense exception is applicable-[783 F.2d at
804-05 (emphasis added)].
What Quinn essentially says is that no matter why somebody is rebelling, no matter
what the nature of the regime he is rebelling against, and no matter how he uses
violence, he may claim the sanctuary of the political offense exception. That is so far

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 475

from the spirit of the exception itself, an exception that is designed to promote demo
cratic and liberal government, as to be corrosive both of the court and of the
exception.
The problem that is put by the courts' reluctance to make political or moral distinc
tions, to use any kind of discrimination about the nature of the regime, the justifica
tion for the rebellion, or how violence was used, goes to the very nature of courts. The
courts themselves may be giving the strongest argument why this perhaps is not an
appropriate decision to be made by a court. People often prefer to have decisions that
involve individual liberty made by courts because these institutions have visibility,
because they have established procedural safeguards, and because they are removed
from any kind of immediate political pressure, removed from the fear that somebody
might trade a defendant for some other gain in the foreign policy arena. But if the
decision is given to the courts, what one may end up with is this nihilistic conclusion
that all violence for any purpose is permissible and the perpetrator will be given refuge
in the United States.
Ways out of this dilemma aren't easy. The present strategy of the State Department
in pursuing bilateral negotiations to exclude certain kinds of violent crimes from polit
ical offenses for particular countries will get us some distance in regard to stable,
liberal constitutional regimes where we are not concerned that the government will
change or the treaty will outlive the government, and where we have a high degree of
confidence in the fairness of the judicial processes. But there are some countries where
that doesn't apply, where we are not confident of the long-term stability of the regime
or not highly confident in the fairness of court procedures, where making a blanket
statement that no act of violence ever will be considered a political offense may be
troublesome. And hence I'd like to spend a few moments on other options in the area.
One standard as a minimum that the courts ought to be applying is the law of war
and international law concerning crimes against humanity. If a tactic is off-limits for
an army in the field or an army fighting a guerrilla war, under Additional Protocol II
of the Geneva Convention (1977), it certainly ought to be off-limits for a domestic
insurgent group. Deliberate targeting of noncombatants or the taking of civilian hos
tages should be disqualified per se from the shelter of political offenses.
A second avenue, used more productively as time passes, is dual jurisdiction. In
circumstances where we might not be sanguine about extraditing somebody abroad,
we can create domestic American jurisdiction for crimes of wanton violence, so the
actor at least can be tried for the crime here. It's a strategy used in the multilateral
conventions on internationally protected persons and hostage-taking. (See T.I.A.S.
No. 8532; G.A. Res. 146 (XXXIV 1979); 18 U.S. Code sections 112, 878, 1116, 1201,
and 1203.) It's the structure used in the European Convention on the Suppression of
Terrorism?that if you don't extradite the individual, you are obliged to prosecute
him yourself.
Finally I would like to offer a third possibility concerning the structure of decision
making. A major cause of dissension in the Senate when the U.S.-U.K. Supplemen
tary Extradition Treaty was debated recently was that nobody agrees on who should
call the shots on whether rebellion is legitimate. A good number of Senators didn't
agree that the Northern Irish rebellion was illegitimate, didn't agree that England's
governance of Northern Ireland was an appropriately fair constitutional regime. The
difficulty in seeking to remove the political offense exception from the courts is that
nobody ever quite trusts the Executive. He or she may trust his/her own administra
tion, but is never quite sure the succeeding administration will be trustworthy. One
possibility is to spread the risk, if you like, in the form of shared decisionmaking. The

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 476

federal judges who sit in extradition cases have been held by Judge Friendly in the
Mackin decision to be sitting in an article I capacity?not as article III courts, but
simply as decisionmakers chosen by the Congress. [See United States v. Mackin, 668
F.2d 122 (2d Cir. 1981)]. Thus an extradition judge could render an advisory opinion
on the political offense question and have it be subject to Executive override. That
would provide visibility and preserve the special capacity of judges for factfinding and
for conducting hearings. Congress even could be involved in the process, although it
is harder to do that after the Chadha legislative veto decision, and provide that a
decision to extradite or an Executive override itself could be blocked by a vote of the
majority or two-thirds majority of both Houses of Congress.
The thing I am most concerned about, because I am a lawyer who cares deeply
about American courts, is that if the political offense exception continues to be applied
in a wooden fashion?where any violence, for any reason, by anybody, is excused so
long as there is enough turbulence in the country?that ultimately will demean the
stature of the courts. Courts are creatures of constitutions. They don't exist apart
from a regime. When a court grants sanctuary to extraconstitutional violence used
against a liberal democratic regime, it is as if the court doubted the validity of its own
decrees.

Remarks by Torsten Stein*

The topic of our panel as formulated in the preliminary program very much pointed
to the truth, omitting the word "offense" between the words "political" and "excep
tion." Decisions made in connection with extradition requests may be very political
decisions, and the political implication is not related necessarily to the offense in ques
tion. This leads immediately to the problem of who is qualified to make these deci
sions, the executive or the courts. There can be no doubt that courts of law have to be
involved in matters of extradition, but this does not necessarily mean that they must
have the final word over every aspect of an extradition request, including the purely
political aspect.
An example may clarify what is meant by this: Let us assume that Mohammed Ali
Hamadi is held in custody not in Germany but in France or in the Netherlands or in
Belgium, and that the respective government takes the U.S. request for extradition to
the competent court in order to get the mandatory decision on whether extradition is
admissible or not. If the court then should come to the conclusion that it would be in
the best interest of the nation?e.g., for reasons of foreign relations with countries in
the Middle East?or that it certainly would be in the best interest of its own nationals
held as hostages in Lebanon, that extradition should not take place, nothing would be
easier for the court than to find that the hijacking of a TWA plane and the killing of a
U.S. soldier on board that plane were motivated politically and thus political offenses
for which extradition is not available. This would be the end of the story: normally
there is no appeal available against such a decision.
The same would not be that easy in Germany or Italy, but only because both have
fairly recent extradition treaties with the United States, and these contain clauses pro
viding that hijacking of an aircraft shall not be deemed to be an offense of a political
character or at least?as in the case of Italy?shall be presumed to have the predomi
nant character of a common crime. But again, this applies only to offenses that are
extraditable or punishable under multilateral international agreements, in our case the
hijacking of an airplane, but not for murder, and there is at least a tendency in the

Professor, Max Planck Institut fur Auslandisches offentlicht Recht and Volkerrecht.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 477
courts not to declare extradition admissible where one out of several offenses is a
political offense, unless there is great confidence in the requesting state's respect for
the speciality rule.
We are assuming only what political considerations of a general kind a court might
heed, but there are quite a number of examples suggesting such an assumption. There
are, if I may say so, also a number of U.S. court decisions involving Irish Republican
Army (IRA) members, which could be seen as the application of the Castioni rule (the
"incidence" test) in its purest form, but which may also be seen as disclosing nothing
else but a strong Irish connection. The confusion and the difficulties with the political
offense exception stem, as you all know, from the fact that not once in its history of
more than 100 years has there been an agreed definition of what constitutes a political
offense. As early as 1896 the well-known French writer Rivier stated that "few rules
ever have given rise to more doubts, more discussions and more errors than the one
excluding from extradition political offences." Political offenses may be absolutely or
relatively political, political in an objective or in a subjective sense; none of these inter
pretations of a political offense is prescribed or excluded by international law. The
courts of the various states have developed their own doctrines in order to avoid unac
ceptable results, doctrines that are labeled often rightly and more often wrongly as
"tests" (Anglo-American incidence test, Swiss predominance test, French gravity test,
German immediateness test). But all these doctrines should not be mistaken as auto
matically guaranteeing a foreseeable result. What means and when begins, e.g., grav
ity under the French test for political offenses that are not objective political offenses?
The latest series of decisions of 1984, where the gravity test has been applied with
respect to Basque terrorists, does not provide a clear answer. Is organizing a murder a
grave offense or only its commission? Is one murder enough or does it have to be
several, and if so, how many? The judgments of the French chambres d'accusation
came down on both sides. Would or would not what Hamadi allegedly did then be
grave, because only one soldier was killed? This may sound frivolous, but it under
lines what one has to expect from the political offense clause as it stands today.
The clause in its traditional wording treats as one concept "political crimes" and
"political persecution." This may have been acceptable as long as political crimes
were understood to embrace only purely political offenses such as sedition or high
treason. Once the term "political offense" was extended to cover also "relative polit
ical offenses," any ordinary offense could be labeled a political offense, if only due to
the motive claimed by the offender. But prosecution of such a relative political offense
does not amount necessarily to political persecution.
The decisive disadvantage of the traditional exception lies in the fact that, while
focusing on the character of the offense, the exception loses sight of the reasons behind
it. One reason behind the exception is humanitarian concern for a fugitive who might
not get a fair trial in case of offenses that have political overtones. The other reason is
political itself. To say that this other reason is the reluctance or political unwilling
ness of states to get involved in other states' political problems is only half the truth;
requested states very well may be prepared to get involved, but they see on the other
hand their own very strong interests they want to protect and which speak against
extradition, as in the case of the hostages in Lebanon. It would, in my opinion, be
much better to abandon the old political offense exception and to phrase the excep
tions to extradition obligations according to the purposes they shall serve. This is, by
the way, what the International Law Association's international committee on extra
dition with regard to terrorist offenses tries to do at the moment?at least to a certain
extent?by drafting articles for a convention dealing with these matters.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 478

Accordingly, one exception?the one having in mind humanitarian concern for the
fugitive?should state that extradition shall not be granted if there are substantial
grounds for believing that the fugitive would not get a fair trial in the requesting state,
that he would be prosecuted in a way that would amount to political persecution or
that he would be discriminated against. Such an exception is, by the way, already part
of a number of more recent bilateral and multilateral extradition treaties, but the prob
lem remains unsolved if this clause is merely a parallel to the old political offense
exception. The old formulation has to be abandoned completely.
The other exception, the one dealing with the political aspects of the case, could
read: "Extradition may be refused if the requested state declares that surrender of the
fugitive would be contrary to essential (or vital) national interests." Such a clause
seems to be awfully wide and vague, but it does not say more than that it is nice to
have mutual assistance in criminal matters, including extradition relations under nor
mal circumstances, but that there may be unusual circumstances that could make it
impossible for a requested state to live up to its treaty obligations. "Essential interest"
clauses of this kind can be found in a number of treaties. I have no doubt that states
will think twice before invoking such a clause.
The combination of these two exceptions would have the advantage that extradition
would not be denied if neither humanitarian concern for the fugitive nor vital national
interests call for such a denial; there are quite a number of cases where this was obvi
ous, but extradition was nevertheless denied because some not overly experienced
court found that the offense in question had a political character.
These rephrased exceptions would have the additional advantage that only the first
one would be a matter for the courts, but clearly not the second one; whether essential
national interests are at stake is not a justiciable decision, but a decision for the execu
tive. It is quite clear, however, that no foreign office in any part of the world would
like very much to see the old, all-encompassing political offense exception being bro
ken up into two separate clauses, because this would force it to show its hand.
If we come back to the Hamadi case, the difference becomes clear: Extradition
certainly could not be refused under the first exception, because it would be impossible
to maintain that Hamadi would not get a fair trial in the United States. But a re
quested state may decide that it would be inevitable to" invoke essential national inter
ests, e.g., in a case where extradition most certainly would cost the lives of hostages,
but even this would not, on the other hand, affect the obligation under existing treaties
to bring the offender to trial before the courts of the requested state.

Discussion*
Alpha Connelly:** I would like first of all to assure Mr. Moseley that he need
fear nothing from the IRA in this room. As far as I am aware, there is no member of
the IRA in it, nor have I come here as an apologist for the IRA. I do think, however,
that there is one question that a supporter of the IRA could pose to Mr. Moseley and
Mr. Sheinwald. Both of them in their presentations placed a lot of stress on what they
saw as the normal democratic processes being operative in Northern Ireland. In other
words, they say that political change could occur by the normal political processes
and that violence was not justifiable in order to effect political change in Northern
Ireland. Now, I would like to pose the question of what happens when the democratic

*The discussion portion of this report was prepared by Judith R. Hall, Assistant Editor of the
Proceedings.
Dublin, Ireland.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 479

process throws up a democratic tyranny. Whether that tyranny be of 51 percent or 70

or 80 percent, is it not denying to the minority of the people in that country the
opportunity to political change through what they would see as the normal demo
cratic process? Where a section of the population is discriminated against and op
pressed, is there never any circumstance in which resort to violence can be justified?
Mr. Sheinwald: I wasn't quite sure whether your question was intended to be
descriptive of current conditions in Northern Ireland or speculative about what condi
tions there may or may not be. I think the answer is in two parts. First of all, in
relation to Northern Ireland, I think there has been a massive amount of change, and
I think it's very difficult to deny that. I think there will be more change as time goes
on. So I think the premise of much of what you are saying is withdrawn from the
start. I think the argument about majorities and minorities in the Northern Ireland
context really doesn't make a lot of sense. If you were to change the position and have
a Catholic majority, you would have an intransigent Protestant minority. It makes
the situation as troubled as it is now. I don't think that the existence of a minority or
a majority if it persists is in itself a reason for violence, any more than the existence of
a conservative majority or of persistent demographic changes are reasons for violence
outside Northern Ireland. So I think the answer to both parts of the question is No.
Alfred P. Rubin.* I was a little bit taken aback by what seemed to me to be a
quite one-sided presentation indicating agreement as to certain premises that I'm not
at all sure are self-evident. I've been troubled by this for some years, and as some of
you may know, I think I can reduce the issue simply to two assertions that I will make
as counterassertions to things that at least two of the four speakers said. The roots of
the political offense exception are not really in treaty law, nor are they general interna
tional law in the sense in which the term is usually used. They are very deep in the
international legal order, and they are ignored only at great peril. To label a particu
lar militant group or violent person a common criminal, a murderer, a kidnapper, or
something of that sort, when in fact the group of which the person is a part and
possibly its overseas supporters, if nobody else at least the person, him or herself, feel
engaged in a principled struggle, is to accept the labels given by a governmental struc
ture that is in fact under attack. That is an intervention in internal affairs. It is none
of America's business whether the British Government in Northern Ireland or some
pretenders to authority in Northern Ireland are correct or not in their labeling system.
We have the responsibility to attach our labels the way we see fit and cannot accept an
assertion such as: "The British are only interested in enforcing the criminal law."
The question is whether British criminal law is the law that ought to be applied, a
question on which the United States must abstain. That is a rather complicated way
of stating it, but it is a very complicated issue, and that's why it lies below the surface.
This labeling process is the essence of a positive law system. I would take grave
issue with the notion that a court that derives its power from a constitution has any
interest at all in supporting the constitution of another country whose constitution is
totally irrelevant to this first court's authority. That's a return to a Metternich view of
the world: What is is right and should be supported by all. The point is particularly
sensitive to Americans. The revolutions of 1848 in central Europe failed, and vast
areas of the American Middle West were settled by failed revolutionaries like Carl
Schurz, who were criminals by the law of the places from which they fled. We always
have welcomed failed revolutionaries who want new starts in the United States. I see
nothing in the current situation in Northern Ireland, for example, to differentiate it

Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 480

from the situation in Ireland in 1916, Russia in 1905, or Prussia in 1848 and would
find it very distressing if the United States, in its anxiety to help an ally, finds itself
betraying its principles.
Ms. Mochary: I think that was more a statement than a question. . . .
Professor Rubin: You're absolutely right.
Professor Wedgwood: I certainly would agree with Professor Rubin that there
are some parts of the political offense exception that are not matters of positive law.
If, for instance, you had two countries that did not have a First Amendment free
speech principle built into their domestic law, nonetheless it would strike me as a
violation of international law to extradite the person for a speech offense or for con
duct protected under principles of free political association. But I don't take Professor
Rubin to be saying that the U.S. Government has no business in setting other limits
for the political offense exception, for instance, in the case of violence. His claim that
the courts are not in a position to make a choice between the British Government and
the Irish rebels or the Basque rebels and the Spanish Government may well be true,
but Professor Rubin, you're not suggesting that the U.S. Government doesn't have
any part in that?
Professor Rubin: It exists on a different level. The U.S. Government can make
that choice as a matter of policy and frequently does, and we all know among foreign
governments whom we prefer and whom we don't, and nothing that I've said indicates
that revolution is necessarily a good thing. I don't say that. No, of course the U.S.
Government must make a choice, but it makes that choice as a matter of foreign
policy, not as a matter of the application of the system of criminal justice to an indi
vidual. That really to my mind is quite a different category.
Professor Stein: Let me give just a very short answer to that. Whatever we see as
the natural-law basis of the exception, and however we frame it, this should not give
the impression that the exception is part of customary international law that might
apply even if a treaty is silent on it. This has been much debated in the Council of
Europe in connection with the drafting of the 1977 convention, and the result was
what I have just said. But I'm afraid we are going to open a new dialogue. . . .
Professor Rubin: It's a point that needs more discussion than we can give it here.
Waldemar Solf:* I teach the law of armed conflict at American University, and
if I may, I'd like to ask a hypothetical question of Mr. Sheinwald that may illustrate
some of the points that Professor Rubin was trying to make. I emphasize that the
question is hypothetical and fictional, and it is based on the Nigerian civil war. The
fictional part of it is that the federal government of Nigeria hasn't done the humanita
rian thing of extending prisoner-of-war treatment to Biafrans but has stuck by its
sovereign right to treat them all as traitors, and every act of violence is a crime. Now,
the hypothetical question. Assume that a Biafran platoon in Biafran uniform is
ambushed by a federal patrol at night, killing 15 Biafrans, the entire patrol, including
one of their most highly decorated war heroes. A member of the ambushed patrol
manages to get out and somehow or other manages to get to the United Kingdom.
Nigeria asks for his extradition, not on grounds that he is participating in treason but
for the murder of some members of the federal patrol who were were billed in the
battle. What reaction could we expect from the U.K. Government under those
circumstances?

Professor of Law, Washington College of Law, American University. This report of Professor Solf's
remarks was made subsequent to his death in June 1987.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 481

Mr. Sheinwald: I think that the simplest answer to your question is that we
would expect him in a court to attempt to exploit the political offense exception.
Under our law, he would be able to do that because the Suppression of Terrorism Act
does not cover Nigeria.
Professor Solf: Well, I'm wondering why you don't like to have that particular
aspect of the thing mentioned in such treaties as the Supplementary Extradition
Treaty. In the event there was a genuine noninternational armed conflict occurring in,
say, Ireland, which is not in progress now, but which might happen if the Protestants
get more exercised, would legitimate acts of war not be considered as ordinary crimes
if committed by members of the armed forces of either or both sides?
Mr. Sheinwald: Arrangements such as the supplementary treaty have as their
premise the existence of democratic institutions.
Daniel H. Derby:* I know that the topic is a rather complex one, and I don't
want to muddy it too much. I thought it would be worth trying to raise a few points.
First, there seems to be a tendency to believe that as between two good governments,
there really is no need for a political offense exception, and we and Western Europe
and our mutual admiration society seem to feel that we all are possessed of good
governments. But that raises some problems in terms of the general policy of having
these bilateral treaties with country after country. What if a government goes bad?
Will the other country have the courage at that point to insist on the termination of
the treaty? It seems to be an extremely awkward thing to do, because it amounts to a
direct comment on the quality of the government inside another state. So I see that as
one problem. Another difficulty is which governments are good and which govern
ments are bad. That seems to be a very difficult question. After all, how bad was
George III? As I understand it, his place in history is not nearly as black as people on
this continent are inclined to think it is, and on this continent in our colonies we had a
high degree of democracy with respect to local issues in comparison with what was
going on in home countries on the European continent, so that it seems to be a rather
difficult thing to say which country has a good government and which doesn't at a
given point in history. I think exacerbating that is the East/West view of why neither
of us has a democracy. The Soviet Union would insist that democracy in the United
States is undermined by the fact that money can buy votes, money can buy television
ad time, and so on; our feeling is that notwithstanding the large turnout in elections in
the Soviet Union the influence of the party undermines their democracy. So that rec
ognizing that there's a degree of subjectivity, a degree of self-interest, in a determina
tion by one government that another government is good, it seems then that to the
extent that we're purporting to act on behalf of mankind, we're actually acting on
behalf of our government, and that seems to be a somewhat dangerous thing in this
area.

One sort of technical point that I think is worth touching on a bit is with respect t
the question of who ought to be doing the deciding, and the role of the Webst
Ashburton Treaty and the first extradition act. The first extradition act, I think
been rather persuasively argued, was designed to prevent the Executive from fr
wheeling extradition of persons to the United Kingdom in circumstances where t
offenses had a political character. To the extent that the Webster-Ashburton Trea
seems to read the courts out of the picture, that is a treaty negotiated by the Executi
against whom the first extradition act was designed as a weapon in order to limit that
latitude. Also in terms of what is the American political exception doctrine: note that

Professor of Law, Fuchsberg Law Center, Touro College.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 482

we have a very bizarre procedural context that we're working with here, because deci
sions by the magistrate not to extradite are not appealable; notwithstanding the fact
that you still get a second opinion from a so-called reviewing court, the reviewing
court is exercising the lightest imaginable kind of review. To a very great extent a
political offense is whatever a magistrate says it is. When you look at the history of
U.S. involvement in the political offense doctrine, the irony is intense on how we
wound up with a definition along the lines of what we supposedly do have. Some
where along the line we copied the United Kingdom's, notwithstanding the fact that
we were independent at the time, and notwithstanding the fact that this does not seem
to be a common-law doctrine at all.
Michael Cardozo:* I'm involved in this subject only because some 20 years ago
I wrote an article entitled, "When Extradition Fails Is Kidnapping the Solution?" It
was about the Artukovic case at that time, when extradition was failing. I think last
year when Artukovic finally was extradited to Yugoslavia, a third doctrine was in
volved, an aspect of human rights. Not political offense?that had been decided
against him?not humanitarian, because we decided that he would get a fair trial in
Yugoslavia, but the other question as to whether, if he had committed the offenses
here, and at his present age and condition, would we subject him to a trial at all
because of his possible inability to defend himself. Whether this is a reason for deny
ing extradition is the question that I have raised. Artukovic is in his eighties; his
children allege that he is senile and really doesn't remember things and doesn't know
what's going on. He was carried off the plane into Yugoslavia on a stretcher. If all
those facts are true, the question arises as to whether we would have subjected him to
trial here if the crimes had been committed here or under our jurisdiction.
I just feel that, since Artukovic was mentioned quite often in this proceeding, you'd
be interested in getting this on the record, and if any of you have any comment on it,
I'd be interested to hear it.
Mr. Moseley: From the standpoint of extradition, at least, I think I can answer
that question, and I think the fact that an individual may have certain defenses to a
criminal charge in the United States, in this case lack of capacity to stand trial, is not
encompassed by the notion of dual criminality. Quite clearly, the determination was
made, and I think correctly made, that the crimes for which Artukovic was sought
would have been crimes under U.S. domestic law, and I think it's important to recog
nize that this is a broader proposition, that frequently the procedures for trial, even in
Western democratic countries, can be procedures for trial that are different from those
in the United States.
Professor Stein: Let me just add that the age of the person claimed, his state of
health or his mental disability, are reasons not to extradite under a number of recent
bilateral extradition treaties. In the Benelux countries, they are a part of the reserva
tions made by all the Benelux countries and the Nordic states to the European Con
vention of 1957, so they exist as an exception.
Ms. Mochary: They even exist in some of our U.S. bilateral treaties, but that is
not something we like to have in our treaties, and we believe it is encompassed by the
general authority of the Secretary of State to deny extradition for humanitarian
reasons.
Valerie Epps:** I just wanted to take up what I took to be the thrust of Profes
sors Wedgwood's and Stein's remarks, an examination of whether it isn't time, per

Of the District of Columbia Bar.

Suffolk Law School.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms
 483

haps, to abolish the exception. I very much like Professor Wedgwood's approach of
saying: "Well, what's it there to do? Examine what it's there to do. Do we still need
it?" As to whether or not we, as we do, only have extradition treaties between coun
tries where, at least when we enter the treaty, we feel that country has a basically fair
sort of government generally, with a basically fair sort of judiciary: of course, times
change, and so one can't guarantee that that is going to be the case always, but most
modern treaties have a fairly short termination provision in them. If things get really
drastic, one can use a termination provision. Under our own practice, as you just
alluded, we have a sort of built-in catchall in the executive branch of the government,
namely that if a court rules that someone should not be extradited he or she can't be,
but if a court rules that someone can be extradited, nevertheless the Secretary of State
doesn't have to permit extradition to take place. So that under our own current prac
tice, it seems to me that perhaps the time has come simply to abolish it, in that in our
own practice we have within the Executive the means of protecting any of the persons
that Professor Wedgwood in her list of what we might want to protect would see as
protectable. Of course, her response to that would be: "Ah, yes, but you don't know
how the Executive is in fact going to use it, and you don't know what one Executive is
going to do from one time to the next." And so of course Professor Stein comes up
with: "Oh, well, let's have another exception," and he gives us a big, broad exception.
On the whole, I think it's probably better to have an exception in the treaty than to
leave it to the vagaries of the political department, although, on the other hand I think
that as Professor Wedgwood has shown, this is always an intensely political decision,
and the difficulty for the courts has been that they've been given this so-called neutral
standard, and they know darned well they can't be neutral. In fact, they're not neu
tral. When you look through the cases you find that they extradite people who have
committed political offenses when they don't like what they've done, and they refuse
to extradite people who have done the converse. Essentially, the courts do apply a
political test, but they're struggling with it because they know they're supposed to be
neutral. The question is who shall we let make this final decision between what are
presumptively our friends who are asking for extradition. I suppose we have to give it
to the Executive. In our tradition, I don't like Professor Wedgwood's idea of possibly
having joint responsibility with the judiciary and the Executive. If we were in another
tradition it would be different, but in ours the notion of saying: "Oh well, they can be
article I courts, let them operate with the Executive," somehow doesn't sit very well
with the American context. It might with other contexts; I'm not sure. But in the
end, I think it actually would be better simply to say: "We have a practice that pro
tects persons who have engaged in activities that other countries call criminal, but we
think ought to be protected." This already exists in our current law, so I'm in the
camp that says: "Let's abolish it." We are moving toward cutting it down, cutting it
down, making exceptions to the exception. Why not abolish it? Keep a little discre
tion, if you're worried about certain things, and work out who is going to exercise that
discretion.

This content downloaded from

180.179.211.228 on Sat, 12 Mar 2022 04:33:21 UTC
All use subject to https://about.jstor.org/terms