Extradition to Northern Ireland: Prospects and Problems
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02617.x |
| Author | Colm Campbell |
| Date | 01 September 1989 |
| Published date | 01 September 1989 |
THE
MODERN
LAW
REVIEW
Volume
52 September
1989
No.
5
EXTRADITION TO NORTHERN IRELAND:
PROSPECTS AND PROBLEMS
INTRODUCTION
EXTRADITION arrangements invariably involve a complex (though fre-
quently unstated) set of value-judgments, involving considerations
of
law,
foreign policy and domestic politics. Nowhere is this more true
than
in
relation to the “political offence exception.” The purpose of
this paper
is
to examine,
in
the light of contemporary trends
in
extra-
dition law, the practical effects of
the
inter-relationship of these fac-
tors on the debate on extradition and the Northern Ireland conflict.
The primary focus
will
be on extradition between the Republic of
Ireland and Northern Ireland. This is widely seen as the area of most
practical importance as
it
has been suggested in some quarters that
extradition
on
this axis could have a significant substantive effect on
the conflict. Consideration
will
also be given to the issues raised by
application for extradition to other parts of the United Kingdom, and
to developments
in
other countries
in
which the courts have been
faced
with
extradition requests for offences connected with the
Northern Ireland conflict.
In
part
I
the state of current development
of the political offence exception internationally is outlined. Part
I1
is
concerned specifically
with
the issues raised by the Northern Ireland
conflict and
in
part
111
overall conclusions are drawn.
PART
I
THE
POLITICAL OFFENCE EXCEPTION
Origins
and
Rationale
of
the Exception
The origins of the political offence exception can be traced to
the
Enlightenment’s questioning of absolute authority.’ Following
the
French Revolution,
the
emerging liberal democracies rarely felt com-
pelled to return dissidents and rebels who had fled to their countries
from despotic regimes.
This
practice of granting political asylum
hardened in the nineteenth century into what is now known as the
pol-
itical offence exception. Such an exception began to be incorporated
in
’
On
the
history
of
the political offcncc exception see, C. Van den Wijngaert, The
Poliricul
Offerice
Exception
to
Exrruditioti,
(1980)
at
4-18,
and
M.
Cherif Bassiouni,
Irirernarioriul Extraditioii nrrd World
Public
Order
(
1974)
at
370-375.
585
586
THE
MODERN
LAW
REVIEW
[Vol.
52
domestic extradition law and to become
the
norm in extradition
treaties. Belgium gave the exception legislative form in
1833,
and
eventually the United Kingdom followed with the Extradition Act
1870.’
No
universally accepted definition of a political offence emerged
however. What did emerge was a degree of acceptance
of
the right
of
each requested state to decide what might constitute a political
offence.
A
variety of tests were then developed by courts in different
parts of the globe. For the most part these cases were concerned not
with what have been termed “absolute political offences”-crimes
such as treason, espionage etc., but rather with the category of “rela-
tive political offences”-usually violent crime directed at securing
a
change
in
the political order.3
Several justifications have been advanced for the exception. Some-
times these have been couched
in
the language
of
principle and some-
times
in
that of self-interest. Underlying them all is a concern for the
preservation of the tradition of political asylum. Four main argu-
ments can be outlined4:
(1)
The first is the “unfair trial” argument. There are two
elements to this: (a)
it
is argued that
in
the atmosphere of
collective hysteria which frequently follows major politically-
motivated crimes, bias against the accused sometimes leads to
unjust verdicts; (b)
it
is
pointed out that the state’s response
to
serious political violence is frequently to introduce special legal
procedures
in
which traditional safeguards are diminished, with
the result that the possibility of a fair trial is lessened. For both of
these reasons,
it
is
suggested that to extradite alleged political
offenders could expose them to the risk of an unfair trial.
*
33
&
34
Vict. c.
52,
s.3(1)
provides “A fugitive criminal shall not be surrendered
if
the offence in respect
of
which
his
surrender
is
demanded
is
one of a political charac-
ter, or
if
he prove
. . .
that the requisition for his surrcnder
has
in fact been made with
a view to
try
or punish him for an offence of
a
political character.”
In
Britain, the principal test, which was first formulated
in
Re Casliotii
[I8911
1
Q.B.
149
has bccoiiic known as the “political incidence theory.” Under this test, for a
crime
to
be
held
to
be a political offence,
it
would be necessary
to
show that
a
struggle
for power existed in the state when the act was committed, and that the crime was
incidental
to
and formed part
of
this struggle. In
Re Meunier
[
18943 2
Q.B.
415
anarch-
ist offcnccs were excluded from the scope
of
political offences because
“
. . .
the
party
of
anarchy, is
thc
enemy
of
dl
Govcrnmcnts. Their
efforts
arc directed primarily
against thc general body of citizens”
per
Cave
J.
at
419.
See generally V.
E.
Hartley
Booth,
Brirish Exrrcidiriori Law arid Procedure.
Vol.
1,
at
77-83.
An American version
of the political incidence theory was
first
;idopted in
Re Ezera.
62
F.
972
(N.D.
Cal.
1894).
Otlicr approaches which can be nicntioned are the Swiss “proportionality
thcory” and the “objcctivc approach” which has been influential in the Federal
Republic
of
Gcrrnany, see Van dcn Wijngaert,
op.
cir.
at
12U-I22
and
126-132.
“
See generally, Van den Wijngaert.
op.
cir.
n.
I,
3-4.
K.
S.
Sternberg and
D.
L.
Skelding, “State Dcpirtrncnt Dctcrmination
of
Political Ofknscs: Death Knell for the
Political Offensc Exception
in
Extradition Law”
(1983)
15
Case Western ReserveJour-
trul
of
/tirertiariotiul LNW
137.
;it
138-139,
and
S.
Luhet, “Extradition Reform: Execu-
tive Discretion and Judicial Participation in the Extradition of Political Terrorists”
(1982)
I5
Cortiell Irirertiuriotiol
Liiw
Joiirtiul247,
at
24f?-249.
SEPT.
19893
EXTRADITION
TO NORTHERN IRELAND
587
(2)
The second in the “victor’s justice” argument. Sometimes
this is run together with the first but the two are separable as the
second properly only applies in situations in which the final out-
come
of
the conflict is already decided and straightforwardly
humanitarian considerations come into play. It is pointed out
that history provides plenty
of
examples of revolutionaries who
overnight became statesmen. Ultimately, it is the success or fail-
ure
of
the rebellion which decides whether or not behaviour was
criminal. One legacy of the nineteenth century idealisation
of
the
rebel is a feeling that failure in these circumstances
is
its own
punishment and that the further penalisation which extradition
would bring is unwarranted.
(3)
The third is the “non-intervention”
or
“neutrality” argu-
ment. According to this view it is in the long term national inter-
est of states to woid getting caught up in internal upheavals in
foreign countries through the extradition process. The best way
to achieve this is to have a total bar on extradition for political
offences since otherwise extradition would involve taking sides.
This view is predicated upon a general acceptance
of
the right
of
a requested country to refuse extradition. Once this right
is
accepted then non-extradition is seen not as implicit support for
the rebel side but rather as the expression
of
prudent self inter-
est.
(4)
The fourth argument is that as political crimes are directed
against one particular state they do not violate international pub-
lic
order, and thus states do not have a mutual interest in their
suppression through the extradition process. This is taken to be
in contrast to the position
of
“ordinary” criminals whose activi-
ties are directed against any society in which they happen to be.
.
Current
Trends
Since the second World War, the continuing viability of these argu-
ments has been increasingly brought into question. The original spur
for this reappraisal was concern that genocidal wartime activities
might be regarded as political offences. Later there were similar con-
cerns about the politics
of
apartheid and more recently attention has
been focussed on the question of “terrorism.” This latter issue has
been particularly problematic, the primary difficulty being one
of
definition.
No
universal consensus has emerged; sometimes “terror-
ism” has been defined in terms
of
methodology, and at others,
in
terms
of
legitimacy.s Under the first definition, the question becomes
whether the behaviour in question instilled terror
in
the public or a
’
For a survey
of
some approaches to the definition issue, see
A.
P. Schmid,
Poliricnl
Terrorism
(1983) at 5-79. See also P. Wilkinson.
Terrorism
nrid
/he
Libernl
S/nfe
(1977)
at 47-64, and
G.
Wardlaw.
folilical
Terrorism
(1982) at
8-10.
S.14(1)
of
the Preven-
tion
of
Terrorism (Temporary Provisions) Act 1984 defined terrorism as “the use
of
violence for political ends, and includes any use
of
violence
for
the purpose
of
putting
the public
or
any section
of
the public
in
fear.”
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