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The Political Offense

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Asylum and International Law

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Abstract

As seen in the preceding chapters, a state has a right under international law to accord asylum on its territory by virtue of the sovereignty and exclusive jurisdiction which it has on that territory. An arrangement altering this right and creating, instead, a duty to restore the fugitive to his state of origin is frequently established by means of an extradition treaty, the general objective being the repression of crime. Of course, non-extradition of political offenders is only one of the ways in which a political asylum may arise. In modern extradition treaties, the political offenders are usually excluded from extradition. The consequent asylum is often called the political asylum. The purpose of this chapter is to examine the growth of the notion of political offense, the interpretations given to the term political offense, and the problem of mixed offenses, that is to say, offenses which have both political and common attributes.

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Notes

  1. F. Hutcheson, System of Moral Philosophy, Book 3, ch. 10, s. 9, 105 (1755). See also L. Oppenheim, International Law, ed. by H. Lauterpacht, Vol. I, 704 (8th ed., 1955). Cf. L. Alcindor, “Droit d’asile,” 2 (de Lapradelle and Niboyet) Répertoire de droit international 32, 53–55 (1929).

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  2. A list of important extraditions of political offenders from 1648 to 1789 is found in F. von Martitz, Internationale Rechtshilfe in Strafsachen,Vol. II, 134184 (1897).

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  3. J. B. Moore, Extradition and Interstate Rendition, ss. 6 and 205, 10 and 303 (1891); E. Clarke, A Treatise Upon the Law of Extradition, 22 (4th ed., 1903); L. Beauchet, Traité de l’extradition, 180–183 (1899); L. L. Deere, “Political Offenses in the Law and Practice of Extradition,” 27 American Journal of International Law 247, 249 (1933); Harvard Research in International Law, Extradition, 29 American Journal of International Law, Supplement 67, 108 (1935).

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  9. Article 120.

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  11. Oppenheim, International Law, 705.

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  13. Billot, l’Extradition, 109; Beauchet, l’Extradition, 183.

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  15. W. Mettgenberg, “Das erste Verbot der Auslieferung politischer Verbrecher,” 14 Zeitschrift für Völkerrecht 237 (1927).

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  16. Oppenheim, International Law, Vol. I, 705.

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  17. Switzerland had to restrict asylum with respect to those who had participated in the revolts of Naples and Piedmont. It was threatened to do so by the reactionary powers of the Holy Alliance Oppenheim, International Law,Vol., 705.

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  18. Quoted in Garcia-Mora, Asylum as a Human Right, 74.

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  19. H. Provo Kluit, De Deditione Profugorum, (1829).

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  20. Quoted in Harvard Research, supra note 3, at 362.

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  22. Supreme Court of Germany, In re Fabijan, Annual Digest,1933–34, 360, 361–365, Case No. 156.

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  23. Quoted in Re Fabijan, supra note, 22.

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  24. Article 4 of the treaty stated, “It is expressly stipulated that a foreigner whose extradition has been granted, cannot, in any case, be prosecuted or punished for a political crime antecedent to the extradition or for any act connected with such a crime.” For text, see Billot, l’Extradition,111.

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  25. Oppenheim, International Law,Vol. I 706.

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  26. M. Travers, “La loi française d’extradition du 10 mars 1927,” 54 Journal du droit international 595 (1927); de Saint-Aubin, “L’extradition des étrangers, Loi française du 11 mars 1933,” 35 Revue générale de droit international public 10 (1928). See also Billot, l’Extradition, 471–474. Some of the other enactments incorporating the principle include the British Extradition Act of 1870, Article 3, Paragraph (1), 33 and 34 Vic., ch. 52; Argentine Extradition Law of 25 August 1885, Article 3, Paragraph (2), Foreign Relations of the United States, 1886, 4 (1887); Swiss Extradition Law of 22 January 1892, Article 10, in Harvard Research, supra note 3, at 420. Some of the constitutional provisions incorporating the principle include the constitutions of Cuba; Costa Rica, Article 31; El Salvador, Article 11; Guatemala, Article 26; Haiti, Article 31; Mexico, Article 15; Nicaragua, Article 27; Panama, Article 23; Brazil, Article 141, Paragraph 33; Honduras, Article 20; Italy, Article 10; in R. H. Fitzgibbon, The Constitutions of the Americas, (1948); A. J. Peaslee, Constitutions of Nations, (1950).

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  27. Oppenheim, International Law, Vol. I 706.

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  28. For example, for the British practice, see F. T. Piggott, Extradition: A Treatise on the Law Relating to Fugitive Offenders,Appendix, 25–259 (1910). For the United States practice, see C. C. Hyde, “Note on the Extradition Treaties of the United States,” 8 American Journal of International Law 487 (1914). Some of the older treaties incorporating the principle of non-extradition of political offenders include Germany-Czechoslovakia, (1922), Article 4, 23 Lonts 173; Germany-Turkey, (1930), Article 4, 133 Lonts 321; Montevideo Convention, (1933), Article 3 (e), in Final Act, Seventh International Conference of American States,155–167 (1933); Italy-Brazil, (1931), Article 5, 132 Lonts 355; France-Czechoslovakia, (1928), Article 4, 114 Lonts 132; Belgium-Poland, (1931), Article 6, 131 Lonts 126; Colombia-Panama, (1927), 87 Lonts 414; Finland-Netherlands, (1933), Article 8, 139 Lonts 365; United Kingdom-Finland, (1924), Article 6, 34 Lonts 80; Pan-American Convention, (1902), Article 2, Martens, Nouveau Recueil Général de Traités (3e série), 185; the Caracas Convention of 1910, Article 4, Tratados Públicos de Venezuela,Vol. H, 435; the Bustamante Code, (1928), Article 355, Code of Private International Law Annexed to the Convention adopted at Habana on 20 February 1928, 86 Lonts 120, 254; Finland-Sweden, (1923), Article 2 (1), 23 Lonts 51; Austria-Norway, (1925), Article 4, 48 Lonts 77; Finland-Norway, (1925), 43 Lonts 381; Latvia-Norway, (1927), Article 4 71 Lonts 303; Estonia-Norway, (1930), Article 4, 106 Lonts 147; Latvia-Denmark, (1930), 113 Lonts 169; United States-Austria, (1930), Article 3, 106 Lonts 379. Some of the recent treaties incorporating the principle include Denmark-Norway-Sweden, (8 March 1948), Article 4, 27 UNTS 128; Poland-Czechoslovakia, (21 January 1949), Article 60, Paragraph (b), 31 UNTS 262; Brazil-Bolivia, 25 February 1938, Article 3, 54 UNTS 346.

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  29. Harvard Research, supra note 3, at 109, n. 1. The Harvard draft in this connection, namely, Article 5, Paragraph (a), is in the permissive form.

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  30. Oppenheim finds three views in this connection. A crime is considered political if (1) committed from a political motive, or for a political purpose, or (2) committed both from a political motive and for a political purpose, or (3) it is an offense against the state only, such as high treason (lèse-majesté). Oppenheim, International Law, Vol. I, 707. See also W. Mettgenberg, Die Attentatsklausel im deutschen Auslieferungsrecht, 61–76 (1906); W. Mettgenberg, in 12 Zeitschrift für Völkerrecht 200 (1923); W. Mettgenberg, in 1 (Strupp) Wörterbuch des Völkerrechts und der Diplomatie 43, 44 (1924–1929); G. Diena, “Les attentats anarchistes et l’extradition,” 2 Revue générale de droit international public 306 (1895).

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  31. Re Mariaca Pando, Supreme Court, 26 February 1926, 145 Fallos de la Corte Suprema 394 (Argentine), 1925–1926 Annual Digest 310; Re Fabijan,Supreme Court, 9 March 1933, 67 Entscheidungen des Reichsgerichts in Strafsachen 150 (Germany), 1933–1934 Annual Digest 360; Re Gatti,Court of Appeals of Grenoble, 13 January 1947, Sirey, 1947, II, 48 (France), 1947 Annual Digest 145; Re Ficorilli,Fed. Trib., 14 February 1951, 77 Trib. Féd. Suisse (1951), I, 57065, 1951 International Law Reports 345.

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  32. Re Castioni, 1 Q.B. 149 (1891); Regina v. Governor of Brixton Prison ex parte Schtraks,3 W.L.R. 1013, at 1033 (1962); Re Pavan,Fed. Trib., 15 June 1928, 54 S.B.G., I, 207 (Switzerland), 1927–1928 Annual Digest 347; Re Banegas,Supreme Court, 30 June 1948, 88 Archivo Judiciârio 34 (Oct.-Dec., 1948) (Brazil), 1948 Annual Digest 300; Re Ckmpora,24 September 1957, 54 Revista de Derecho, Jurisprudencia, Ciencias Sociales y Gaceta de los Tribunales, Nos. 7–8 (Sept.-Oct., 1957), Pt. 2, s. 4, at 197 (Brazil), 24 International Law Reports 518 (1957), 53 American Journal of International Law 693 (1959).

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  33. Re Pavan, supra note 3; Re Kaphengst, Fed., Trib., 17 October 1930, 56 S.B.G., I, 457 (Switzerland), 1929–30 Annual Digest 292; Re Peyrea,Câmara Nacional Especial, 20 December 1955, 81 Revista Argentina Jurídica La Ley 648 (1956), 1955 International Law Reports 525.

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  34. If this view were applied, asylum would be allowed in Re Ktir on grounds of Ktir’s activity in the Algerian F.L.N. (17 May 1961, 87 Entscheidungen des Schweizerischen Bundesgerichts, I, 134, 56 American Journal of International Law 224 (1962)), where extradition was in fact granted; and asylum, which was in fact given, would be denied in Re Kavic, Bjelanovic, and Arsenijevic (Fed. Trib., 30 April 1952, 78 Trib. Féd. Suisse (1952), I, 39, 1952 International Law Reports 371), where the individuals involved hijacked an airplane, and in Ex parte Kolczynksi (1955), (1 Q.B. 540; 1954 International Law Reports 240; 49 American Journal of International Law 411 (1955)), where they participated in a mutiny. The strict view is followed in the United States. For example, see In the Matter of K- (Family),A-7421321, 2, & 3, 16 August 1950, 4 Administrative Decisions and Immigration and Nationality Laws 108, 118 (Feb. 1950—Jan. 1953); Kardzole v. Artikovic,247 F. 2d 198, 203 (1957).

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  35. For example, see A. E. Evans, “Reflections Upon the Political Offense in International Practice,” 57 American Journal of International Law 1, 19 (1963).

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  36. L. C. Green, “Political Offences, War Crimes and Extradition,” 11 International and Comparative Law Quarterly 329, 330 (1962); L. C. Green, “The Nature of Political Offences,” 3 The Solicitor Quarterly 213, 225 (1964); International Law Association, Committee on the Legal Aspects of the Problem of Asylum, Report of the Committee, (L. C. Green, Rapporteur), 1964 Report of the Fifty-First Conference Held at Tokyo 245, 248.

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  37. Annual Digest, 1933–34, Case No. 156, 360, 361–365.

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  38. In a debate in the House of Commons on 6 August 1866, 184 Hansard, Parliamentary Debates,3rd Series, col. 2115.

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  39. Q.B. 149.

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  40. Id., at 155, 156, 159.

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  41. F. 972, 999.

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  42. Q.B. 415, 419.

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  43. C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. 2, 1021–22 (1947).

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  44. Deutsches Auslieferungsgesetz, Vom 23. Dezember 1929, Reichsgesetzblatt 1, 1929, Teil 1, s. 239.

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  45. Annual Digest, 1947, No. 70, 145.

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  46. Matter of the Extradition of Hector José Ckmpora and Others,53 American Journal of International Law 693 (1957).

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  47. A. E. Evans, supra note 35, at 19.

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  48. For example, Re Camporini,Fed. Trib., 19 September 1924, 50 S.B.G., I, 299 (Switzerland), 1923–24 Annual Digest 283; Re Ficorilli,Fed., Trib., 14 February 1951, 77 Trib. Féd. Suisse (1951), I, 57–65, 1951 International Law Reports 345; Re Kavic, Bjelanovic and Arsenijevic,Fed. Trib., 30 April 1952, 78 Trib. Féd. Suisse (1952), I, 39, 1952 International Law Reports 371.

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  49. For example, Re Compora,supra note 46; Re Fabijan,Supreme Court, 9 March 1933, 67 Entscheidungen des Reichsgerichts in Strafsachen 150 (Germany), 1933–34 Annual Digest 360; French Refugee (Germany) Case, 17 January 1957, BVerwgIC, 65/66, 54 American Journal of International Law 424 (1960); Ramos v. Diaz,179 F. Supp. 459 (S.D. Fla., 1959). See J. B. Moore, A Treatise on Extradition and Interstate Rendition,Vol. I, 308 (1891); R. Pleitez, El Asilo Diplomatico y Territorial en América,75 ff. (1956).

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  50. International Law Reports 19, 371, 373.

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  51. Q.B. 540, 550, 551. The Lord Chief Justice explained that in deviating from the classical view the court in Castioni had emphasized that “they were not giving an exhaustive definition of the words of a political character… [and therefore he felt free to hold that] the evidence about the law prevalent in the Republic of Poland today shows that it is necessary, if only for reasons of humanity, to give a wider and more generous meaning to the words we are now construing, which we can do without in any way encouraging the idea that ordinary crimes which have no political significance will be thereby excused.” Ibid.

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  52. Yugoslav Refugee (Germany) Case,4 February 1959, 1 BvR 193/57, 54 American Journal of International Law 416 (1960).

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  53. The reference is to Article 16, Paragraph 2.

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  54. Re Vogt, 26 January 1924, 50 S.B.G., I, 249, 1923–24 Annual Digest 285. Cf. Re Eckermann,28 May 1929, 26 Gaceta de los Tribunales (n. 35) 992, 1929–30 Annual Digest 293.

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  55. A. E. Evans, supra note 35, at 20.

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  56. For example, see L. C. Green, “Recent Practice in the Law of Extradition,” 6 Current Legal Problems 274, 287 (1953); L. C. Green, “The Right of Asylum in International Law,” 3 University of Malaya Law Review 223, 224 (1961); L. C. Green, “The Santa Maria: Rebels or Pirates,” 37 The British Yearbook of International Law 496, 504 (1961); L. C. Green, “Political Offences, War Crimes and Extradition,” 11 International and Comparative Law Quarterly 329, 330 (1962); International Law Association, supra note 36, at 248. It is claimed that this approach, “[i]f it achieved nothing more… would shift the burden of proof from the fugitive, who now has to prove that his offence was political, to the requisitioning State which would have to prove that he was not a political offender but a common criminal, or was not wanted for the purpose of political oppression.” International Law Association [L. C. Green, rapporteur], ibid.

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  57. F. 2d 198, 203 (1957).

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  58. F. Supp. 717, 721 (1963).

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  59. L. C. Green, “The Nature of Political Offences,” 3 The Solicitor Quarterly 213, 231 (1964).

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  60. W.L.R. 1013, 1032, 1033, 1050. In this case, the fugitive was alleged by the Government of Israel to have kidnapped and abducted a child from the care of his parents at the request of the child’s grandfather, in order to prevent his being educated in a non-sectarian school. It was contended for the accused that since religious issues and schooling were political questions in Israel, he was a political offender and should not, thereby, be extradited. Lord Reid felt that in this case “there is nothing to indicate that [the appellant] acted as he did in order to force or even promote a change of government policy, or to achieve a political objective of any kind.” Viscount Radcliffe and Lord Hodson made express references to the Castioni, Meunier,and Kolczynski cases. Viscount Radcliffe pointed out that the two earlier cases required political motivation and contesting parties, and that the matter rested thus until the Polish Seamen’s case. “But,” he held, “the decision seems to me only to show that the courts are unwilling to treat what was said In re Castioni as laying down any exhaustive definition of the meaning of ”political offence.“ Certainly it would have been difficult to decide in favour of the fugitive in that case if it were always necessary to find a ”disturbance“ in being reflecting an uprising, insurrection or other struggle for State power. On the other hand, if… the idea of ”political offence“ is not altogether remote from that of ”political asylum,“ it is easy to regard as a political offence an offence, committed by someone in furtherance of his design to escape from a political régime which he has found intolerable. I have no criticism to make of the decision in… Kolczynski,but the grounds on which it was decided are expressed too generally to offer much useful guidance for other cases in the future… The idea that lies behind the phrase ”offence of a political character“ is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. The analogy of ”political“ in this context is with ”political“ in such phrases as ”political refugee,“ ”political asylum“ or ”political prisoner.“ It does indicate… that the demanding State is after him for reasons other than the enforcement of the criminal in its ordinary,… its common or international, aspect. It is this idea that the judges were seeking to express in… Castioni and Meunir when they connected political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and… it is still necessary to maintain the idea of that connection. It is not departed from by taking a liberal view as to what is meant by disturbance or those other words, provided that the idea of political opposition as between fugitive and requesting State is not lost sight of: but it would be lost sight of… if one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sorts of contending political organisations 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… This case has evidently become to some extent a political issue. But the evidence does not suggest that the appellant’s offences… were committed against, as a demonstration against any policy of the Government of Israel itself or that he has been abetting those who oppose the Government.” Lord Hodson held that “[a]ccording to [the Castioni] test there must be either in existence or in contemplation a struggle between the State and the fugitive criminal. I prefer to adhere as closely as possible to the guidance which I find in the Castioni case, judgment in which was delivered… not long after the passing of the first Extradition Act. It may be that cases will arise as in the Polish Seamen’s case, where special considerations have to be taken into account. In some modern States politics and justice may be inextricably mixed and it is not always easy, for example, to say what amounts to a revolt against the Government. No special feature appears to exist in this case, and I find no substance in the contention that extradition should be refused because of the political character of the offence charged.”

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  61. A. E. Evans, supra note 35, at 23.

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  62. Illustrations of pure political offenses may include treason, sedition, or espionage, although courts in the United States and Chile have doubted the political character of espionage. See, for example, U.S. v. Sobell 142 F. Supp. 515, 520 (S.D.N.Y., 1956); Re Timmerman Supreme Court, 17 October 1944, Gaceta de los Tribunales, Ano 1944, Pt. 2, 163 (Chile).

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  63. As the West German Federal Constitutional Court said in 1959, “The ”politization“ of large spheres of life and the utilization of criminal law for securing and carrying out social and political revolutions have blurred the boundary line between ”criminal“ and ”political offenses“ in many states.” Yugoslav Refugee (Germany) Case, 4 February 1959, 1 BvR 193/57, 54 American Journal of International Law 516, 418 (1960).

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  64. Langhard, Das schweizerische Auslieferungsrecht (1910); Schultz, Das schweizerische Auslieferungsrecht (1953).

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  65. For example, see these treaties: Chile-Colombia, Article 3, 1914, 82 Lonts 244; Estonia-Latvia, Article 2, 1921, 37 Lonts 423; Estonia-Lithuania, Article 2, 1921, 43 Lonts 179; Latvia-Lithuania, Article 2, 1921, 25 Lonts 312; Brazil-Paraguay, Article 10 (5), 1922, 138 Lonts 211; Italy-Yogoslavia, Article 5 (3), 1922, 118 Lonts 221; Italy-Czechoslovakia, Article 5 (3), 1922, 55 Lonts 171; Finland-Sweden, Article 2 (1), 1923, 23 Lonts 51; Finland-Latvia, Article 3, 1924, 38 Lonts 344; Estonia-Finland, Article 3, 1925, 43 Lonts 11; Austria-Estonia, Article 3, 1926, 74 Lonts 213; Austria-Finland, Article 3, 1928, 89 Lonts 69; Latvia-Hungary, Article 3, 1928, 101 Lonts 449; Finland-Italy, Article 3 (3), 1928, 111 Lonts 297; Turkey-Czechoslovakia, Article 4 (1), 1930, 138 Lonts 325; Austria-Sweden, Article 3 (1), 1930, 105 Lonts 313; Latvia-Sweden, Article 3 (1), 1930, 110 Lonts 139; Estonia-Sweden, Article 3 (1), 1930, 106 Lonts 279; Poland-Sweden, Article 3 (a), 1930, 129 Lonts 383; Italy-Panama, Article 8 (5), 1930, 140 Lonts 241; Brazil-Italy, Article 5 (5), 1931, 132 Lonts 345; Austria-Latvia, Article 3 (1), 1932, 133 Lonts 59.

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  66. Sweden, Law of 4 June 1913, Article 12, 29 American Journal of International Law, Supplement 414 (1935); Switzerland, The Federal Law on Extradition to Foreign States, 22 January 1892, 1 Feuille fédéral 444; cf. Germany, Extradition Law of 23 December 1929, Article 3 (3), Reichsgesetzblatt, 1, Teil 1, 1929, S. 239.

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  67. International Law Reports 369, 371, No. 79. The basis of the decision was whether the offence, “while having the characteristics of a common offence, acquires political character by the motive inspiring it, by the purpose for which, or the circumstances in which, it is committed; in other words, whether it is an offence which, while in itself a common offence, has a predominantly political character.”

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  68. Law Containing an Additional Provision to Article 6 of the Law of 1 October 1833 Concerning Extradition, 22 March 1856. “There shall not be considered as a political crime or as an act connected with such a crime an attack upon the person of the head of a foreign government or of the members of his family, when this attack takes the form of either murder, assassination or poisoning.” 29 American Journal of International Law, Supplement 363 (1935).

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  69. In 1854, two Frenchmen in Belgium, namely, Jules Jacquin and Célestin Jacquin, attempted an explosion on the railway line between Lille and Calais, with the intention of murdering the Emperor Napoleon III. France’s request for their extradition was refused by the Belgian Court of Appeal as falling within Article 6 of the Law of 1 October 1833 Concerning Extradition, according to which “[i]t shall be expressly stipulated in these agreements that no foreigner may be prosecuted or punished for any political crime antecedent to the extradition, or for any act connected with such a crime, or for any crime or misdemeanor not provided for by the present law; otherwise all extraditions and all temporary arrests are prohibited.” 29 American Journal of International Law, Supplement 362–363 (1935). In order to provide in future for cases such as that of Jacquin, this law was amended as stated in note 68, above. See also Martitz, Internationale Rechtshilfe in Strafsachen, Vol. II, 479 (1897); L. Oppenheim, International Law, ed. by H. Lauterpacht, Vol. I, 709 (8th ed., 1955 ).

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  70. The earliest treaty to incorporate the attentat clause appears to be the Convention of 22 September 1856 between France and Belgium. See A. Billot, Traité de l’extradition,117 (1874). The Treaty between the United States and Belgium, 1882, and the Treaty between the United States and Luxemburg, 1883, provide that an attempt against the life of the head of a government or any member of his family, when such attempt “comprises the act either of murder or assassination, or of poisoning, shall not be considered a political offence or an act connected with such an offence.” The Treaty between the United States and Belgium, 26 October 1901, contains a similar clause. So does the Extradition Treaty between the United States and Russia, 28 March 1887, ratifications exchanged on 21 April 1893, and the treaty between the United States and Denmark of 6 January 1900]. The Treaty of Extradition between the United States and Brazil, signed at Rio de Janeiro on 14 May 1897 and 28 May 1898, provides in Article 3 that “[t]he following shall not be considered political crimes when they are unconnected with political movements, and are such as constitute murder, or willful and illegal homicide, as provided for in section 1 of the preceding article: 1. An attempt against the life of the President of the United States of America, or against the life of the Governor of any of the States; an attempt against the life of the President of the United States of Brazil, or against the life of the President or Governor of any of the States thereof; 2. An attempt against the life of the Vice-President of the United States of America, or against the life of the Lieutenant-Governor of any of the States; an attempt against the life of the Vice-President of the United States of Brazil, or against the life of the Vice-President or Vice-Governor of any of the States thereof.” See J. B. Moore, A Digest of International Law,Vol. IV, 352–353 (1906). The formula used in the treaties of the United States is mostly as follows: “When the offense charged comprises the act either of murder or assassination or of poisoning, either consummated or attempted, the fact that the offense has been committed or attempted against the life of the Sovereign or Head of a Foreign State, or against the life of any member of his family, shall not be deemed sufficient to sustain that such crime or offense was of a political character or was an act connected with crimes or offenses of a political character.” Examples of treaties incorporating the attentat clause include treaties between the United States-Siam, Article 3, 1922, 25 Lonts 395; United States-Venezuela, Article 3, 1922, 49 Lonts 435; United States-Latvia, Article 3, 1923, 27 Lonts 372; United States-Estonia, Article 3, 1923, 43 Lonts 277; Bulgaria-Rumania, Article 4 (a), 1923, 33 Lonts 223; United States-Finland, Article 3, 1924, 34 Lonts 104; United States-Bulgaria, Article 3, 1924, 26 Lonts 29; United States-Lithuania, Article 3, 1924, 51 Lonts 191; Hungary-Rumania, Article 3, 1924, 42 Lonts 145; United States-Czechoslovakia, Article 3, 1925, 50 Lonts 143; France-Poland, Article 4 (5),1925, 95 Lonts 217; Austria-Norway, Article 4, 1925, 48 Lonts 77; Finland-Norway, Article 4, 1925, 43 Lonts 381; Czechoslovakia-Rumania, Article 3 (a), 1925, 54 Lonts 51; Estonia-Czechoslovakia, Article 3 (a), 1926, 63 Lonts 255; Latvia-Czechoslovakia, Article 3 (a), 1926, 62 Lonts 229; Bulgaria-Czechoslovakia, Article 3 (a), 1926, 60 Lonts 169; Belgium Paraguay, Article 4, 1926, 97 Lonts 197; Belgium-Estonia, Article 5, 1926, 65 Lonts 407; Belgium-Latvia, Article 5, 1926, 63 Lonts 299; Albania-Yugoslavia, Article 4, 1926, 91 Lonts 81; Greece-Czechoslovakia, Article 3 (a), 1927, 88 Lonts 219; Spain-Czechoslovakia, Article 3 (a), 1927, 121 Lonts 271; Portugal-Czechoslovakia, Article 3 (a), 1927, 124 Lonts 7; Belgium-Czechoslovakia, Article 4 (4), 1927, 73 Lonts 283; Colombia-Panama, Article 4 (b), 1927, 87 Lonts 409; Latvia-Norway, Article 4, 1927, 71 Lonts 303; Belgium-Lithuania, Article 5, 1927, 77 Lonts 123; United States-Poland, Article 3, 1927, 92 Lonts 101; Belgium-Finland, Article 5, 1928, 74 Lonts 353; France-Czechoslovakia, Article 4 (2), 1928, 114 Lonts 117; Hungary-Yugoslavia, Article 3, II (1), 1928, 104 Lonts 151; Bulgaria-Greece, Article 3 (a), 1928, 106 Lonts 443; Colombia-Nicaragua, Article

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  72. ), 1930, 38 Lonts 325; United States-Austria, Article 3, 1930, 106 Lonts 379; Bulgaria-Spain, Article 3 (a), 1930, 114 Lonts 43; Latvia-Spain, Article 3 (a), 1930, 113 Lonts 135; Germany-Turkey, Article 4, 1930, 133 Lonts 321; Estonia-Norway, Article 4, 1930, 106 Lonts 147; Latvia-Denmark, Article 4, 1930, 113 Lonts 169; Poland-Sweden, Article 3 (a), 1930, 129 Lonts 383; Italy-Panama, Article 8 (5), 1930, 140 Lonts 241; United States-Greece, Article 3, 1931, 38 Lonts 293; Belgium-Poland, Article 6, 1931, 131 Lonts 109; Denmark-Czechoslovakia, Article 3 (la), 1931, 127 Lonts 103; Iraq-Turkey, Article 4 (a), 1932, 139 Lonts 273. Examples of statutes incorporating the attentat clause include Belgium, Law Concerning Extradition, 1 October 1933, Article 6, Official Bulletin No. 77; Germany, Extradition Law of 23 December 1929, Article 3 (2), Reichsgesetzblatt, Teil 1, 1929, S. 239; Sweden, Law of 4 June 1913, Article 7, 29 American Journal of International Law, Supplement 414 (1935). Generally speaking, the attentat clause is not found in treaties between the United Kingdom and other states. It is supposed to be in conflict with the British law, since, under this law, offenses against the person of the sovereign are treason, which is a political offense giving ground for asylum. L. Beauchet, Traité de l’extradition,246 (1899); L. L. Deere, “Political Offenses in the Law and Practice of Extradition,” 27 American Journal of International Law 247, 253 (1933). However, although the treaty of 26 September 1898 between Britain and the Netherlands does not provide for an attentat clause, Article 2, in stating the offenses for which extradition will be granted, includes in paragraph (1) “murder, including infanticide, or attempt or conspiracy to murder, including such crimes when directed against the Sovereign, his heir, or any other person whomsoever, provided that the crime is not of a political character.” Piggott, Extradition,156–169. Piggott explains that “it seems probable, however, that non-political attempt on the life of the Sovereign would be extraditable, if the charge was attempt at murder, and not high treason.” Piggott, Extradition,47. An attentat clause is found in Article 3, Paragraph 3, of the treaty of 20 April 1942 between the United Kingdom (acting on behalf of the Sheikh of Kuwait) and Saudi Arabia. 10 UNTS 99. However, it must be noted that here the United Kingdom was acting on behalf of the Sheikh of Kuwait. The French law of 10 March 1927 (54 Journal du droit international 595 (1927)) seems to have rejected the attentat clause. Oppenheim, International Law,Vol. I, 709, n. 2.

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© 1971 Martinus Nijhoff, The Hague, Netherlands

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Sinha, S.P. (1971). The Political Offense. In: Asylum and International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8856-2_8

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  • DOI: https://doi.org/10.1007/978-94-011-8856-2_8

  • Publisher Name: Springer, Dordrecht

  • Print ISBN: 978-94-011-8200-3

  • Online ISBN: 978-94-011-8856-2

  • eBook Packages: Springer Book Archive

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