2.1    Subjective Political Motive

2.2    Objective Political Act

        2.2.1    Absolute Political Offenses
        2.2.2    Relative Political Offenses

2.3    Exceptions Relating to Terrorism and International Crimes

2.4    Fair Trial and Punishment

        2.4.1    The Discrimination Clause

2.5    Summary of Factors Distinguishing Political from Common Crime in the Law of Extradition

Political Offenses in the Law of Extradition

[62] This Chapter explores how extradition law distinguishes between common crime and political crime. In particular, it focuses on the political offense exception to the obligation to extradite, its ideological basis and the various factors that decision-makers consider in determining whether someone is a common criminal or political offender.

[63] Before exploring the relevant principles of extradition law, it is important to understand the relationship between whether conduct may be a basis for extradition and whether it can found a claim to Convention refugee status. While there is no strict legal connection between the two questions, it is clear that both the 1951 Convention and extradition treaties endeavour to avoid potential conflict between a state's obligation to extradite and its obligation to grant refugee status. This is the primary purpose of Article 1F(b) of the Convention and the 'discrimination clause'(137) which is found in several modern extradition treaties.

[64] I assert that where conduct justifies extradition, it should rarely (if ever) found a claim to refugee status. The conflict that would result between the obligation to extradite and the obligation to grant refugee status is precisely what the drafters of the Convention, and earlier international instruments, sought to avoid by including criminal exclusion clauses like Article 1F(b).(138) Conversely, just because conduct does not lead to extradition does not necessarily mean that it warrants Convention refugee status. However, where a person would not be extraditable because of the operation of the political offense exception(139) or the discrimination clause,(140) this is a good indication that the criminal prosecution which she faces may constitute 'persecution' for the purposes of Article 1A(2) of the Refugee Convention.

[65] This is not a thesis on the law of extradition. Rather, having established that the drafters of the Convention refugee definition intended to protect those guilty of 'political crime', it explores the application of extradition law principles in prosecution/persecution cases, a category of refugee claims that has failed to generate consistent, principled decision-making.(141) The precepts of extradition law most relevant to prosecution/persecution cases relate to the political offense exception to the duty to extradite.

[66] Extradition obligations arise exclusively from bilateral or multilateral treaties which states chose to enter into with each other.(142) Consequently, the political offense exception has been described as a reservation with respect to an international treaty obligation.(143) Extradition treaties usually refer to the term 'political offense' without further defining it(144) and, moreover, requested states retain an exclusive unilateral discretion to characterize an offense as criminal or political.(145) Even multilateral treaties have not attempted to harmonize interpretations of the term 'political offense', nor have they encroached upon the right of unilateral characterization.(146)

[67] Fortunately, for the purposes of this thesis, it is sufficient that the factors defining a political offense be elaborated in general terms and not in relation to specific, existing treaty obligations. Rather than providing a definitive account of the political offense exception, this Chapter simply identifies certain precepts which can usefully inform our analysis of prosecution/persecution cases.

[68] A basic appreciation of the history of the political offense exception is essential to understanding its shifting role and current dimensions. Political offenders were initially the sole subjects of extradition requests; the punishment of common criminals being primarily the concern of their victims rather than their sovereign.(147) In Europe, extradition of common criminals did not become routine until the eighteenth century.(148) Concurrently, the notion that resistance against oppression is legitimate became popular.(149) By the mid-nineteenth century, the idea of the political offender as a liberal revolutionary was dominant and the political offense exception had a clear political function; namely, to further the cause of democracy.(150) Van den Wijngaert explains the contemporary consequences of this historical genesis:(151)

The ideological dimension of the political offense exception has continued to flourish in the context of East-West relations,(152) decolonisation struggles, North-South relations and the revival of Islamic fundamentalism.(153) Ironically, non-extradition for political offenses is based on the notion that it constitutes non-intervention in the internal political affairs of other states.(154) Keeping in mind the political function of the political offense exception, I turn now to the factors identified by extradition law as relevant in determining whether conduct is criminal or political.

2.1 Subjective Political Motive

[69] An act committed with the intention of opposing or challenging the state in some manner may be said to be politically motivated.(155) Thus, a common crime may be committed for political reasons, for example, robbery for the sole purpose of financing armed opposition to the state. The opposite is also true: overtly political acts may be motivated exclusively by the desire for personal gain.(156)

[70] The primary function of the political offense exception is to regulate inter-state relations based on the principle of non-intervention. However, as it relates to the requested person, the political offense exception has a humanitarian function, namely to protect the offender from an unfair or retaliatory trial in the requesting state.(157) In my view, the relationship between the offender's motivation and the humanitarian aim of the political offense exception is not necessarily self-evident. It is difficult to maintain that the mere existence of a political motive, (where the act in question does not oppose or challenge the state), necessarily will result in an unfair trial or differential punishment.(158)

[71] There is a tendency in the extradition case law to rely on the non-political nature of the act in question to conclude that it was therefore not politically motivated. In my view, while there may be an evidentiary relationship between the two, they are not conceptually linked. Nor is there any reason why motivation should be considered so determinative of the matter that the existence of a political motive necessarily renders an offense political. In practice, motive alone will rarely be sufficient to satisfy the political offense exception.(159) Common sense dictates that the non-political nature of an offender's actions, or the fact that they are neither proximate nor proportional to her political objective, cannot transform a political motive into a non-political one. Rather, what should be asserted is that despite the political motive of the offender, her actions were not legitimate.

2.2 Objective Political Act

2.2.1 Absolute Political Offenses

[72] The political nature of an offense is most evident when the target is the state.(160) Crimes such as treason, espionage, and conspiracy are referred to as 'absolute' political offenses because they are directed solely against the state and do not harm private interests.(161) Van den Wijngaert identifies a further category of absolute political offenses which she labels 'passive dissidence':(162)

[73] The ostensible distinction between absolute and so-called 'passive offenses' may be illustrated by reference to the Kolczynski case.(163) Kolczynski and seven other Polish nationals were crew members of a small fishing trawler. Fearing that upon return to Poland, they would be prosecuted on account of political opinions they had expressed while at sea, Kolczynski and his associates staged a revolt, took charge of the trawler and brought it into an English port where they claimed asylum. There was clear evidence that if extradited to Poland they could be punished for treason, specifically, "going over to the enemy".(164) Extradition was refused on the grounds that their offenses were of a political character.(165) Both judgments stressed the totalitarian nature of Poland's communist regime.(166) Essentially, while Kolczynski's motive for the offenses he committed related to his 'passive' dissidence (the expression of his political opinions), the basis of his claim was that if returned he would be punished for treason, an absolute political offense in the classic sense.(167)

[74] The foregoing analysis also demonstrates the limits of the distinction between direct acts and passive dissidence drawn by Van den Wijngaert. Kolczynski's expression of his political opinions is 'passive' only to the extent that it does not involve the commission of a common crime (ie, does not harm non-state interests). Clearly, his actions were viewed by the state as a direct attack.

[75] In contrast to absolute political offenses, 'relative political offenses' are essentially common crimes where the offender had a political motive and/or the offense occurred in a political context or had political consequences.(168) The role of the offender's motive is discussed above.(169) The remainder of this section focuses on relative political offenses and approaches to determining whether an offender's actions are political rather than criminal.

2.2.2 Relative Political Offenses

]76] In the United States jurisprudence,(170) and to a lesser extent its English counterpart,(171) political context is defined narrowly by the 'political incidence theory' which requires that the offense be "incidental to and form part of political disturbances".(172) This text has been much criticized, both for its strict requirement that there be a 'political uprising' and its assumption that "... any crime committed during the course of a political disturbance, as long as some tenuous connection can be proved with the ultimate object of the fugitive's group, may be deemed political."(173)

[77] Whether or not a 'relative' offense has political consequences will often depend on the proximity of the offense to the political objective sought. There is no fixed rule as to what degree of proximity is required:(174)

The Swiss approach to the political offense exception, which explicitly acknowledges the mixed nature of offenses and restricts non-extradition to those crimes which are predominantly(175) political, also refers to proximity.(176) However, the Swiss test goes further by incorporating the notion that the offense must be proportionate to the objective sought. 'Proportionality' requires both that the action taken be at least potentially effective in achieving the offender's political purpose(177) and that it injure private rights as little as possible.(178) The latter requirement will be difficult to satisfy where the crime involves loss of life.(179)

[78] By focusing on the extent to which the offender's actions are effective and limited, the Swiss proportionality test implicitly raises the legitimacy of her political objective and the availability of other, non-criminal, means of achieving it. Taulbee rhetorically questions what role these factors should play in modern extradition law:(180)

[79] The Swiss approach has been criticized on the grounds that it is overly subjective, difficult to apply in practice and relies on elements, such as 'effectiveness', that are essentially non-justiciable.(181) The US case of Quinn v Robinson(182) for example, forcefully asserts that the courts should not consider the strategy employed by the offender as this undermines the non-intervention rationale of the political offense exception,(183) and seeks "... to impose on other nations our own traditional notions of how internal political struggles should be conducted".(184) While one may not agree with the position of absolute relativism adopted in Quinn, the judgment does effectively highlight the value-laden nature of the political offense exception.(185) Quinn is not representative of the US jurisprudence and the Swiss approach remains widely preferred by academic commentators; in particular, because it has been effective in excluding 'terrorists' from the political offense exception.(186)

2.3 Exceptions Relating to Terrorism and International Crimes

[80] During the latter half of the nineteenth century, prompted by the rise of anarchism, states sought to limit the scope of the political offense exception.(187) The first legislative restriction was Belgium's attenat clause which stated that an attack on a foreign head of state or a member of his family "shall not be considered a political crime".(188) Van den Wijngaert refers to this formulation as the "legal fiction of depoliticization".(189) Alternative formulations state that the crime in question shall be excluded "notwithstanding its political character".(190)

[81] More recently, attention has turned to the exclusion of terrorist acts from the ambit of the political offense exception.(191) Commentators suggest that the Swiss 'proportionality' test, discussed above, is most effective in excluding terrorist offenses on the basis of principled criteria.(192) There are also several UN conventions regarding crimes associated with terrorism, such as hijacking and hostage-taking, that impose on states a duty to either prosecute or extradite.(193)

[82] With regard to international crimes other than terrorism, a small number of UN conventions go further and actually exclude certain crimes from the purview of the political offense exception to the obligation to extradite. For example, pursuant to the International Convention on the Suppression and Punishment of the Crime of Apartheid, state parties agree that certain acts of apartheid specified in the Convention "shall not be considered political crimes for the purposes of extradition."(194) Similarly, Article 7 of the Convention on the Prevention and Punishment of the Crime of Genocide provides that genocide and the other crimes against humanity listed in Article 3 of the Convention shall not fall within the political offense exception.(195) The four Geneva Conventions of 1949, however, leave the question of whether a war crime may be considered a political offense to the domestic law of each state party.(196)

[83] There is substantial accord between the exclusion of international crimes from the political offense exception and Articles 1F(a) and 1F(c) of the 1951 Convention which bar from refugee status any person who has committed a crime against peace, a war crime, or a crime against humanity, and any person who has been guilty of acts contrary to the principles and purposes of the United Nations.(197) It follows, of course, that these kinds of criminal conduct can never found a claim to refugee status. [Articles 1F(a) and 1F(c) are each worthy thesis topics in their own right.](198)

2.4 Fair Trial and Punishment

[84] Supposedly, the political offense exception is premised, in part, on the notion that a political offender will not receive a fair trial and even-handed punishment if returned to the requesting state.(199) Therefore, it is surprising to find only limited reference to the consequences of return in extradition treaties, legislation and case law.(200) Van den Wijngaert observes that the offender's treatment upon return is but a supplementary consideration in many jurisdictions:(201)

[85] Basing decisions not to extradite on the assertion that the fugitive will not receive a fair trial in the requesting state has proven problematic, perhaps, in part, because it represents a more explicit condemnation of the requesting state than the notion of a political offense alone. Gilbert also notes that:(202) He does, however, accept that in the context of extradition, trial by an extraordinary tribunal clearly violates notions of fairness.(203)

[86] The question of disproportionately severe punishment is equally fraught with difficulties.(204) In my view, where an offender faces apparently disproportionate punishment if returned, this suggests that the offense is viewed as politically significant by the requesting state. It may also be that, due to the consequences of return, extradition is prohibited by international law. For example, Article 3(1) of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment prohibits extradition of any person to a state "... where there are substantial grounds for believing that he would be in danger of being subjected to torture."(205) Similarly, pursuant to Article 3 of the European Convention on Human Rights(206) (which does not explicitly address extradition), a state party may be held liable if torture, or inhuman or degrading treatment or punishment is a foreseeable consequence of granting extradition.(207)

2.4.1 The Discrimination Clause

[87] Explicit reference to the consequences of return is found in the law of extradition in the form of the 'discrimination clause'. This provision began life as a combination of the 'speciality principle' and the political offense exception.(208) The specialty principle states that an offender may only be tried for offenses arising out of the conduct for which he was surrendered.(209) Thus, the discrimination clause applies where the state requesting extradition based on commission of a common crime intends to prosecute the offender for commission of a political crime.(210)

[88] In 1957, Article 3(2) of the European Convention on Extradition, recast the discrimination clause in much broader terms, providing that extradition shall not be granted:(211)

This provision was intended specifically to bring extradition law into line with the Convention refugee definition,(212) and now serves as a model for bilateral treaties and national laws.(213) Thus, interpretation of the discrimination clause should follow refugee definition rather than vice versa.

2.5 Summary of Factors Distinguishing Political from Common Crime in the Law of Extradition

[89] There is little conclusive agreement as to what constitutes a political offense in the law of extradition.(214) The concept remains amorphous and it has been claimed that this is one of its strength.(215) However, it may be asserted that the following elements, to varying degrees, are considered relevant in identifying a political offense:

The next Chapter explores the utility and legitimacy of these factors in determining refugee claims based on fear of criminal prosecution.
Endnotes - Chapter Two

137. Discussed, infra, at paras [87 & 88].

138. See, supra, Chapter One.

139. Discussed, infra, at p 60 et seq.

140. Discussed, infra, at paras [87 & 88].

141. See, discussion, supra at para [4].

142. See, Van den Wijngaert, C, The Political Offense Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order (1980) 44-45, (hereinafter cited as "Van den Wijngaert"). While the right to extradite exists independently of treaty, the obligation to extradite does not. For discussion of extradition where no treaty obligation exists, see, Gilbert, G, Aspects of Extradition Law (1991) 26-27, (hereinafter cited as "Gilbert"); and La Forest, A W, La Forest's Extradition to and from Canada (3rd ed. 1991) 13-14, (hereinafter cited as "La Forest").

143. Van den Wijngaert, at 45 and 49. The contrary view, namely, that the non-extradition of political offenders has acquired the status of a 'general principle of law recognized by civilized nations' in the sense of Article 38 of the Statute of the International Court of Justice, is difficult to sustain. See, Gilbert's persuasive critique (at 117).

144. Numerous examples of this phenomenon are collected in Evans, AE, "Reflections upon the Political Offense in International Practice" (1963) 57 American Journal of International Law 1, 15-18.

145. Van den Wijngaert, at 103 and La Forest, at 84-85.

146. Van den Wijngaert, at 103.

147. See, Van den Wijngaert, at 5; Shearer, IA, Extradition in International Law (1971) 6 and Hyjek, SM, The Political Offense in International Law and Practice (1979) 13-14, (hereinafter cited as "Shearer" and "Hyjek" respectively).

148. Van den Wijngaert, at 8; Shearer, at 6-7; and Hyjek, at 14-15.

149. Van den Wijngaert, at 9.

150. Van den Wijngaert, at 29.

151. Van den Wijngaert, at 100-101.

152. Hyjek, at 22-23 and 74-81. Note, writing in 1980, Van den Wijngaert (at 1) observed that the political offense exception is unknown in bilateral extradition treaties between socialist countries.

153. Van den Wijngaert, at 19.

154. This idea of non-intervention is also found in international refugee law. For example, chapter 1, paragraph 2, of the Statute of the United Nations High Commissioner for Refugees; the preamble of the Convention relating to the Status of Refugees and the preamble of the Declaration on Territorial Asylum each assert the humanitarian, social and non-political nature of the refugee problem. Thus, Grahl-Madsen, A, Territorial Asylum (1980) at 12-13 states:

155. See, Regina v Governor of Pentonville Prison, Ex Parte Cheng [1973] AC 931 at 945 (HL): 156. R v Governor of Brixton Prison, Ex Parte Schtraks [1964] AC 556, at 583 (HL): 157. Van den Wijngaert, at 3 and Gilbert, at 113.

158. See, for example, R v Governor of Brixton Prison, Ex parte Schtraks, supra, note 156, at 591-592:

159. Gilbert, at 120, demonstrates that: "... commentators and courts in almost all jurisdictions have declared that mere political motive alone is insufficient to characterise a common crime as political." See, Eain v Wilkes 641 F.2d 504, at 520-503: "... motivation is not itself determinative of the political character of any given act" and Re State of Wisconsin and Armstrong, 10 CCC 271 (2d) (F.Ct).

160. See, Re Giovanni Gatti [1947] Ann. Dig. 145 (Case No.70) at 145-146, cited in Gilbert, at 127:

161. Evans, supra, note 144, at 16, gives the following examples of purely political offenses: 162. Van den Wijngaert, at 106-107. See, also, Hyjeck, at 35-36.

163. Regina v Governor of Brixton Prison, ex parte Kolczynski [1955] 1 QB 541.

164. Ibid, at 547-548, per Cassels J.

165. Ibid, at 550, per Lord Goddard CJ:

166. Ibid, see, for example, at 549, per Cassels J: 167. For another example of non-extradition involving flight from a totalitarian regime see the Swiss case, Re Kavic, Bjelanovic and Arsenijevic, April 30, 1952, 78 ATF, I, p 54 (1952) discussed in Evans, supra, note 144, at 20: 168. Van den Wijngaert, at 108.

169. Supra, at paras [69-71].

170. See, for example, In re Ezeta, 62 F. 972, at 978 (ND Cal) which defines a political offense as:

171. See, In re Castioni, [1891] 1 QB 149; In re Meunier [1894] 2 QB 415; and Schtraks v Government of Israel [1964] AC 556, 582-584. Gilbert, at 120, notes that although the political incidence theory can be traced to Castioni in both jurisdictions, its interpretation in the English case law is more nuanced.

172. In re Castioni, [1891] 1 QB 149, at 156.

173. Gilbert, at 125. See, also, Van den Wijngaert, at 116-119.

174. Ex parte Cheng, supra, note 155, at 945. See, also, Eain v Wilkes, supra, note 159.

175. Thus, decision-makers must balance the political and criminal elements of the offense in order to determine whether it falls within the exception clause. See, Van den Wijngaert, at 126 and Gilbert, at 128.

176. In re Nappi, 19 Int'l L. Rep. 375 at 376 (1952) cited in Gilbert, at 128:

177. Van den Wijngaert, at 129.

178. See, for example, Re Kavic, Bjelanovic and Arsenijevic, supra, note 172, quoted in Van den Wijngaert, at 128-129:

179. Van den Wijngaert, at 129-130. Note also that the 'unqualified attenat clause' found in some extradition treaties excludes all crimes against life (other than those occurring during war) from the ambit of the political offense exception. See, for example, Article 2(1) of the European Convention on the Suppression of Terrorism (ETS, No. 90).

180. Taulbee, JL, "Political Crimes, Human Rights and Contemporary International Practice" (1990) 4 Emory International Law Review 43, at 50-51.

181. Van den Wijngaert, at 129-130.

182. 783 F.2d 776 (9th Cir. 1986).

183. Ibid, at 804:

184. Ibid, at 804-5.

185. Ibid, at 804-5:

186. Gilbert, at 128, 130 and 149-152; and Van den Wijngaert, at 132.

187. Gilbert, at 116-117; and Van den Wijngaert, at 14-15.

188. A modern version of this provision may be found in Article 3(3) of the 1957 European Convention on Extradition (ETS No.24). For criticism of the attenat clause, see, Shearer, at 184-185.

189. Van den Wijngaert, at 15 and 134.

190. Van den Wijngaert, at 134.

191. See, for example, the Council of Europe's 1977 Convention on the Suppression of Terrorism (ETS No.90) and the Model American Convention on the Prevention and Punishment of Certain Serious Forms of Violence Jeopardizing Fundamental Rights and Freedoms (see, Lillich, "Model American Convention", (1983) 77 American Journal of International Law 662).

192. See, for example, Gilbert, at 149-152.

193. See, examples discussed by Gilbert, at 145-147, Van den Wijngaert, at 148, and La Forest, at 38.

194. UN Doc Res. A/3068 (XXVIII), Article 11. See discussion in Van den Wijngaert, at 141-142.

195. 78 UNTS, p 277 (signed on December 9, 1948). The Genocide Convention is discussed by Van den Wijngaert, at 140-143 and Gilbert, at 211-212. Article 1(a) of the 1975 Additional Protocol to the European Convention on Extradition (ETS No.86) also provides that genocide and crimes against humanity shall not be considered political offenses for the purposes of extradition.

196. Note, however, that the 1975 Additional Protocol to the European Convention on Extradition (ETS No.86) excludes serious breaches of the 1949 Geneva Conventions and comparable violations of the laws of war from the political offense exception. See, Van den Wijngaert, at 145.

197. Articles 1F(a) and 1F(c) of the 1951 Refugee Convention state:

198. For discussion of the scope of these provisions see, Hathaway, (1991) 214-221 and 226-229; Rikhof, J, "War Crimes, Crimes Against Humanity and Immigration Law" 19 Imm LR (2d) 20; and Rikhof, J, "The Treatment of the Exclusion Clauses in Canadian Refugee Law" 24 Imm LR (2d) 31.

199. See, Van den Wijngaert, at 3 and Gilbert, at 113.

200. The exception to this assertion is the discrimination clause which is discussed, infra, at paras [87 & 88].

201. Van den Wijngaert, at 125-126.

202. Gilbert, at 154.

203. Gilbert, at 153-154. Iran's Islamic Revolutionary Courts are an example of an extraordinary tribunal. Established in 1979 to process the large numbers of persons arrested after the revolution, they are now permanent fixtures. According to Middle East Watch, Guardians of Thought: Limits on Freedom of Expression in Iran (1993) at 27:

204. See, discussion of the discrimination clause below.

205. UNGA Res. 39/46, 10 December, 1984.

206. ETS, No.5.

207. See, Soering v United Kingdom (1989) 11 EHRR 439, where the European Court of Human Rights held that the conditions of detention Soering would suffer while on 'death row' amounted to inhuman or degrading treatment.

208. Van den Wijngaert, 80-81 and 84.

209. It is a matter of controversy whether specialty allows a host state to refuse extradition or merely to insist upon compliance by the requesting state subsequent to extradition. See, La Forest, at 30-31; Shearer, at 146-147; Van den Wijngaert, at 84-85 and Gilbert, 106-107.

210. Van den Wijngaert cites examples from the English Extradition Act of 1870 and the French Extradition Act of 1927, at 80-81.

211. ETS, No.24.

212. Goodwin-Gill, (1983) at 78:

Thus, the Judicial Division of the Dutch Council of State in Folkerts v State Secretary of Justice, 74 Int'l L. Rep. 472 at 474 (1978), (cited by Gilbert, at 153), held that: 213. Gilbert, at 152-153.

214. See, discussion supra at para [66].

215. Schtraks v Government of Israel [1964] AC 556, 589 (HL, per Viscount Radcliffe).