The Political Offence Exception in Extradition Law: An Antidote to Prefixed Ideas about Political Integration in Europe?
| DOI | 10.1177/1023263X9700400103 |
| Date | 01 March 1997 |
| Published date | 01 March 1997 |
| Author | Harmen van der Wilt |
| Subject Matter | Article |
Hä rm en va n d er W ilt
Th e Po liti cal Offen ce E xcept ion in E xtra ditio n Law: A n
Antid ote to P re fixe d Idea s about Po litica l Integratio n in
Europe?
§ 1. In tro duc tion
According to a principle well entrenched in international extradition law, political
offenders should be exempt from extradition. This rule, dating from t he nineteenth
century, has particularly been developed and refined in Belgian legal practice. Ironical
ly, Bel gium has recently been involved in a major conflict wit h Spain, originating from
the Belgian refusal to extradite a Basque couple charged with having provided refuge
to ETA terrorists. The previous history of the whole affair divulges both political
embarrassment and intricate legal problems, stemming from the intertwinement of
asylum and extradition procedure. The Basque couple, Mr. Moreno Ramajo and Mrs.
Garcia Arranz, had applied for political asylum which was subsequently de nied. 1 How
ever, as the Commissioner General quite rightly expounded, this refusal in no way
anticipated the outcome of the extradition procedure. Meanwhile, although the Chamber
of Inculpation had issued a negative advice, the Secretary of State for Justice considered
compliance with Spain’s extradition request. Surprising friends and foes, the Council
of State qualified the indictment as a political offence and suspended e xtraditio n.2
From a strictly legal point o f view the decision is hard to refute. According to its
declaration to section 13 of the European Convention on Terrorism, Belgium is allowed
to refuse extradition, even for the terrorist offences referred to in section 1 of the
Convention, provided it takes prosecution into serious consideration. Spain however, *
* Lecturer in international criminal law at Maastricht University (NL). I am indebted to Dr. Dorothé
Garé, Prof. Aalt Willem Her inga and Prof. Bruno de Witte for their valuable comments on an earl ier
draft o f this paper.
1. Decision by the Commiss ioner General for refugees and stateless persons, d .d. 16 February 1994.
2. Counci l of State, preliminary decision, 7 Febru ary 1996.
MJ 4 (1997) 25
The Political Offence Exception in Extradition Law
took the issue quite badly, qualifying the refusal as a breach of confidence and even
threatening to suspend its commitments under the Schengen Agr eement.3
The case has revived the old and often fierce debate about the prese rvation o f the
exception, especially in the relations between friendly nations, and about the question
whether the exception should be restricted so as to prevent ‘te rrorists’ from escaping
justice. In this essay I intend to address the problem once again .4 Af ter some ref lec
tions on the historical background and rationales for the exception (§2), the countless
brave b ut generally futile efforts to circumscribe the concept will be discussed exten
sively (§3,4 and 5). In § 6 I will ponder on the ra ison d ’être of the exception in view
of the current process of political integration in Europe. Finally, I will endeavour to
suggest, on the basis of former pro posals, a different approach to the problem (§ 7).
§ 2 . H isto ric al Bac kgro und an d Ra tio nal es for the Ex ce pti on
The pol itical offence exception stems from the French Revolution’s ideals o f liberty,
equality and brothe rhood, proclaiming the citizen s’ r ight of rebellion against tyr anny.5
New governm ents, dedicated to the cause of freed om and democracy, had thrown off
the chains o f oppression themselves. Understandably, they rejoiced in th e resistance
against despoti c and autocratic regimes and, backed by massive public support, were
only too glad to offer a sylum to their political sympathizers. Consequently, durin g the
first half of the nineteenth century the political offender, whose unselfish motives distin
guished him fro m common criminals, enjoyed an upgraded i mage.6 7 This vene ration
of the political offender was historically defined and purely circumstantial, as anarchist
diehards, pursuing their cause by all (bloody) means available, were only too willing
to pro ve. The recognition o f the right of resistance would surely not h ave been suffi
cient to sustain the exception, were it not for other rationales which rose in support of
the exceptio n - rationales which proved to be more lasti ng.7 Hu manitarian conc ern for
the fate o f the requested person who might, in view of political antagonism, not obtain
the gu arantee of a fair trial and might suffer from vindictive treatment, reinforced the
3. See the passionate discussions in the European Parliament, Acts of the European Parliament, 13
February 1996, Nr. 4-4 75/ 249-254.
4. Fo r an earlier contribution on the subject matter, see Van der Wilt, ‘PoMeke delicten en ui tleverings-
recht. Heeft de exceptie van het politieke delict nog toe komst?’, 22 R ec hi en K rit iek (1996), 169.
5. Stein, Die A usl iefe ru ngs aus na hm e b ei po liti sch en D el ikt en, (Spr inger, 1983), 50.
6. On this ‘upgrad ed image’ of the political offender: Van den Wijngaert, The po li tic al of fen ce exc ep tion
to e xtr ad itio n, (Kluw er 1980), 29-32.
7. Van den Wijngaert, ‘The political offence exception to extradition: how to plug the "terr orist’s loop
hole" w ithout departing from fundamental human rights’, 62 In t. R evi ew o f Pe nal La w (1991), 292
distinguishes between *1) the m ora l a rgu m ent, based on the prem ise that resistance to oppressio n is
legitimate and that political crimes ca n therefore be justified; 2) the h um an itar ian ar gu me nt, whereby
a poli tical offender should not be extradite d to a State in which he risks an unfair trial; and 3) the
po li tic al arg um en t that States should remain neutral vis-à-vis political conflicts in other States and that
therefore extradition of political opponents is to be a p rio r i re fused.’
26 MJ 4 (1997)
Härmen van der Wilt
tendency not to grant extradition for political offences and likewise p rovided a more
solid basis for the exception.
Not the least important were political motives whic h underpinned the growing practice
of refusing extradition for political offences. It was submitted that political conflicts by
definition were local affairs and consequently the political offence had a relative charac
ter. 8 No state could be expected to come to the rescue o f another state, vexed by
political co nflicts, especially not as this might be considered as an intervention in local
affa irs.9 Behind this formal reasoning, more selfish motives could easily be concealed,
as t he weakening of states by internal conflicts could certainly serve the interests of
other states.
Whatever the precise motives for refusing extradition might have been, the political
offence exception offered states the opportunity to remain aloof from politica l disturb
ances in other states. By implication th e formal acceptance of the rule meant that refusal
of extradition should not be explained as a token of sympathy tow ards th e politica l cause
of t he requested person, but rath er as an act o f neutrality. In th is way the exception
served as a kind o f incantation, providing small states in particula r with a means of
keeping th eir neutrality vis-à-vis their often mighty neighbo urs.10
Are these rationales still valid today? This will t urn out to be the pivotal question o f o ur
discourse.
§ 3 . T he De ma rca tio n o f the Co ncep t: W hat is a P ol itic al Crim e?
More or less simultaneously to the rise o f the political offence exception, efforts were
made to delimitate the concept of political crime. The reasons fo r this are obvious. It
was generally acknowledged that common criminals, pretending that their deeds were
inspired by political motives, were not to benefit from the protection the exception
offered. M oreover, the bewildering confrontation with violent acts which caused blood
shed at the expense o f innocent lives at the close o f the nineteenth century, prompted
both governments and scholars to exclude certain heinous crimes from the scope of the
definition. Some authors have quite rightly argued that this line of reasoning is errone
ous fro m a logical p oint of view. The bloody and barbarous nature of an act does not
affect its political character, but might only have the consequence that the p erpetrator
8. Stein, Ausl iefe ru ngs au sna hm e, 53: ‘Politishe Delikte sind nach dieser Auffassung räumlich relativiert,
weil sie keine Rechtsgrundsätze universeller Art, sondern solche von ausschlieszlich lokaler Bedeutung
verletze n.’
9. See Papadato s, Le D éli t P olit iqu e, Con tribu tion à l' Etu d e des C rim es Co ntre l ’Eta t, (E. Droz, 1955),
66: ‘L’argument décisif au faveur d e l’asile po litique, celui qui le justifie principalement enco re à
l’heure actuelle, c’est l'axiome de la non-intervention d ans les affaires d 'un Etat étrange r.’
10. Van den Wijngaert, The p o liti ca l offe nc e ex cep tio n, 13.
MJ 4 (1997) 27
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