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The refusal of some countries to extradite persons accused or convicted of terrorist act has focused attention on the problems caused by the political offense exception to extradition. Extradition is the process by which one country returns an accused or convicted person found within its borders to another country for trial or punishment. Under the political offense exception, the requested state may, if it considers the crime to be a "political offense," deny extradition to the requesting state.
Protection of political offenses is a recent addition to the ancient practice of extradition. It is the result of two fundamental changes that occurred as European monarchies were replaced by representative governments. First, these governments began to reject what had been a primary intent of extradition, to expedite the return of political offenders, and instead sought to protect dissidents fleeing despotic regimes. Second, countries began to contend that they had no legal or moral duty to extradite offenders without specific agreements creating such obligations. As extradition laws subsequently developed through international treaties, the political offense exception gradually became an accepted principle among Western nations.
There is no international consensus, however, as to what constitutes a political offense. For analytical purposes illegal political conduct has traditionally been divided into two categories. "Pure" political offenses are acts perpetrated directly against the government, such as treason and espionage. These crimes are generally recognized as nonextraditable, even if not expressly excluded from extradition by the applicable treaty. In contrast, common crimes, such as murder, assault, and robbery, are generally extraditable. However, there are some common crimes that are so inseparable from a political act that the entire offense is regarded as political. These crimes, which are called "relative" political offenses, are generally nonextraditable. Despite the widespread acceptance of these analytic constructs, the distinctions are more academic than meaningful. When it comes to real cases, there is no agreement about what transforms a common crime into a political offense and about whether terrorist acts fall within the protection of the exception. Most terrorists claim that their acts do fall under this protection.
Nations of the world must now balance the competing needs of political freedom and international public order. It is time to reexamine the political offense exception, as international terrorism eradicates the critical distinctions between political offenses and nonpolitical crimes. The only rational and attainable objective of the exception is to protect the requested person against unfair treatment by the requesting country. The international community needs to find an alternative to the political offense exception that would protect the rights of requested persons and yet not offer terrorists immunity from criminal liability.
Protection of political offenses is a recent addition to the ancient practice of extradition. It is the result of two fundamental changes that occurred as European monarchies were replaced by representative governments. First, these governments began to reject what had been a primary intent of extradition, to expedite the return of political offenders, and instead sought to protect dissidents fleeing despotic regimes. Second, countries began to contend that they had no legal or moral duty to extradite offenders without specific agreements creating such obligations. As extradition laws subsequently developed through international treaties, the political offense exception gradually became an accepted principle among Western nations.
There is no international consensus, however, as to what constitutes a political offense. For analytical purposes illegal political conduct has traditionally been divided into two categories. "Pure" political offenses are acts perpetrated directly against the government, such as treason and espionage. These crimes are generally recognized as nonextraditable, even if not expressly excluded from extradition by the applicable treaty. In contrast, common crimes, such as murder, assault, and robbery, are generally extraditable. However, there are some common crimes that are so inseparable from a political act that the entire offense is regarded as political. These crimes, which are called "relative" political offenses, are generally nonextraditable. Despite the widespread acceptance of these analytic constructs, the distinctions are more academic than meaningful. When it comes to real cases, there is no agreement about what transforms a common crime into a political offense and about whether terrorist acts fall within the protection of the exception. Most terrorists claim that their acts do fall under this protection.
Nations of the world must now balance the competing needs of political freedom and international public order. It is time to reexamine the political offense exception, as international terrorism eradicates the critical distinctions between political offenses and nonpolitical crimes. The only rational and attainable objective of the exception is to protect the requested person against unfair treatment by the requesting country. The international community needs to find an alternative to the political offense exception that would protect the rights of requested persons and yet not offer terrorists immunity from criminal liability.
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