political offense exception and extradition essaysanddissertations a1

8/10/2019 Political Offense Exception and Extradition Essaysanddissertations a1

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POLITICAL OFFENSE EXCEPTION AND EXTRADITION


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Persons who find themselves in a situation of asylum and refuge shall enjoy special

protection to ensure the fu ll exerci se of their r ights. The State shal l respect and ensur e the

principle of non-refoulement, and shall provide emergency legal and humanitarian

assistance.

Article 41 of the Constitution of the Republic of Ecuador


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Background The Julian Assange Case

Giving a further twist to the conspiracy theories being knit around his persona and his brain

child, the WikiLeaks, Julian Assange applied to the Ecuadorian Embassy in London for

diplomatic asylum on 19 June 2012 (WikiLeaks, 2012). His request was made on grounds of

fear of political persecution in the garb of a couple of sexual harassment charges following a

feared extradition to Sweden. An Australian by birth, Assange is an activist and a journalist

who gained worldwide fame when he launched WikiLeaks, a website dedicated towards

releasing classified government information to public according to the principles of freedom

of press.

On 17 August 2012, the Government of Ecuador granted diplomatic asylum to Julian

Assange, thereby recognizing the seriousness of the appellant s stance and endors ing his

apprehensions of political persecution and also preventing his extradition to Sweden.

Seemingly in accordance with the statutes of international law, the step lead to a bunch of

controversies as the international diplomatic law is somewhat vague about diplomatic

asylums and extraditions (Vark, 2012) as the latter are normally the result of interests and

initiatives of non-state actors within the framework of international criminal cooperation. The

problem with extradition treaties is that these make an exception to political offenses

(Kinneally, 1987). Assanges WikiLeaks venture places his case within this category due to

involvement of large and influential states like UK and USA, countries where he can be

charged with high treason if extradited to and tried in a court of law. Hence, the political

offense exception has been invoked by his lawyers.

Despite an apparent regard for a negotiated settlement, all the stakeholders have behaved in

an inappropriate manner thereafter. Allegedly, taking advantage of the Diplomatic and

Consular Premises Act 1987, Britain reacted to the Ecuadors decision by threatening to

reverse the diplomatic status and arrest Assange by force from within the embassy premises.

Conversely, Ecuador rallied support from Argentina, Bolivia and Venezuela (Connor, 2012).

On the other hand, US dismissed Assanges diplomatic asylum as it does not identify the

action as part of international law. Strangely, US not only has refused to exert any diplomatic

pressure on Britain to arrest Assange, but has also expressed disinterest in persecuting him

(The Telegraph, 2012).

Currently, Assange continues to stay in the embassy in the Ecuadorian Embassy in centralLondon to in order to avoid arrest and possible extradition to Sweden to face allegations of


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sexual offences. Concurrently, Ecuador has recently been discussing his case with the British

Labour Party in order to resolve the almost yearlong diplomatic standoff. However, the

South American country is still bent upon preventing Assange's possible extradition to the US

in case he is extradited to Sweden (Quinn, 2013).

Taking advantage of the multifaceted nature of the Julian Assange case with regards to

international law and diplomatic procedures, this essay will strive to examine the political

exception clause of extradition, defining and analysing both terms with regards to their

genesis and weaknesses with special emphasis on the former, while treating the Assange

situation as a case study.

Political Offence Exception with Regards to Extradition

The criminal sciences define a political crime or offence as one involving explicit acts or

lapses (where there is a duty to act), against the interests of a particular state, its

governmental or the established political system (Ross, 2012).

States normally classify political crimes according to varying perceptions based upon threats

to its survival in real or imagined forms, to include both violent and non-violent categories.

This treatment of the political crime gives undue power to the dominant group over all the

dimensions of human and civil rights and freedoms of speech and expression. Sometimes,

even political disagreements of the most common nature are also pigeon-holed as serious

offences. The highly explosive nature of most of the contents of WikiLeaks render Assange

most vulnerable to the perceptions of the world powers involved that is USA and UK.

From the 13 th century, B.C., onwards, offenders on the run were captured by medieval

tyrants, in order to gain political power by surrendering mutual political adversaries. This

process later matured into extradition treaties facilitating the return of the alleged political

offenders. In fact, political offense exception was not always used with regards to extradition

till about the end of the 18 th century, A.D., when it was routinely applied against individuals

accused of religious or political crimes against the sovereigns.

Taking due advantage of the principles driving the American Revolution like the individual

rights to dissent and freedom, writers such as John Locke and J. S. Mill transformed the

nature of the political offence into a non-extraditable category, in the eighteenth century. The

concept was further matured by a gradually growing reluctance to support the dictators andtyranny, respect for individual rights and a dislike towards interference in domestic affairs of


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other states. Formally, the political offense exception was originally codified in the Belgium

Extradition Act of 1 October 1833 and thereafter was included in the Franco-Belgian Treaty

in 1834 (Kinneally, 1987).

Over the recent political history, political offense has never been defined clearly despite

being included in many 19 th and 20 th century treaties. Though an attempt to clarify the term

was made in the attentat clause of the 1856 Belgian extradition law, which distinctly

excluded attempts to murder the sovereigns from the political offense exception (Wijngaert,

1983), the judicial and executive bodies have been trying to compose a more suitable and

comprehensive definition since then. The Supplementary Treaty is one of these countless

attempts and states that the conceptual context of a political offense is quite flexible as it

varies with each different situation and therefore, cannot be applied uniformly over all thesituations falling in the same category in similar situations. Moreover, if a treaty handles the

clause of political offense rigidly, the absence of any flexibility will nullify its future use.

Subsequently, the absence of a clear definition of political offense presents both benefits and

drawbacks to the process of extradition.

In the context of political exceptions and extraditions, political offenses have normally been

categorized as under (Kinneally, 1987):-

The Pure Political Offense

It includes any type of behaviour, except that of common criminal nature, against the

ruling government of any kind that may be perceived as a considerable threat to the

officially promoted ideology (political, religious or racial) or the political structure. Its

examples may include treason, subversion, spying and sometimes even incongruity

with the state or ruling party ideology or orders. Pure political offences are generally

non-extraditable due to their relevance to the internationally recognized and accepted

individual rights of freedom.

The Relative Political Offense

This category of political offenses involves acts that consist of at least some indications

of common crime tied together with some overt or covert political agenda. The criminal

dimension here renders extradition as a difficult and complicated option.


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The Julian Assange case incorporates both the fore mentioned categories from entirely two

different perspectives. From a personal viewpoint, Assange denies the sexual harassment

charges and claims that his crime, if any committed, is purely political in nature and the

criminal allegations are just instruments to bring him to trial for treason. Hence, he should not

be extradited. On the other hand, the British government claims that the presence of the

common crime element makes his case suitable for extradition. Matters have been further

complicated by the Ecuadorian government, which has granted diplomatic asylum to him as a

purely humanitarian practice (Vark, 2012).

Interpretations of Relative Political Offenses Exception

In order to understand the full dimensions of the Assange case, it is essential to identify

several different interpretations of the relative political offence exception.

The Objective Test . It is one of the most constricting interpretations and

concentrates only on the objective act with a complete indifference towards the

perpetrators motives. For instance, in the Giovanni Gatti case of 1947 in France, the

court applied the objective test to the request for extradition in respect of a criminal

charged with murdering a communist in absentia. Though the political motivation

behind the act was almost proved, the court granted the request for extradition becauseit felt that the political character of the offense originated from the nature of the rights

injured and not from his motives. Hence, according to this test, a state may not grant an

extradition request unless it is proved that the nature of the injured rights was political

(Wijngaert, 1983).

The Motives Test . Quite opposite to the objective test, some courts prefer

concentrating on the criminal's motives alone. Meaning thereby that if the offender is

found politically motivated, the extradition is not granted, irrespective of the

association with political motives or aims. For example, in 1975, two American citizens

were arrested in France for air piracy, kidnapping and extortion. However, despite the

seriousness of the offences committed, the French legal system repudiated the request

for extradition by the US authorities as during the actual act, one of the hijackers

commanded that the aircraft be flown to Vietnam. Being actively opposed to the US

military interference in Vietnam, the French were convinced that the criminals were

politically motivated and thus deserved to be treated under the political offenseexception (Kinneally, 1987).


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The Swiss Test . It is also known as the predominance or proportionality test as it

attempts to justify the political motive or objective of the perpetrator against the

essentials of common crime and if the political motivation outweighs the criminal

intent, the political offense exception is applied. This test has been severely criticised

because of its capacity for the randomness. However, it is the only theory which aims at

balancing important elements simultaneously, primarily the severity of the act and the

overall political atmosphere.

The Political Incidence Test . This test is currently being applied by both US and UK

for interpreting relative political offenses and examines political crimes which are

incidental to and part of political turbulences. It was applied in the Meunier case

involving bombings by an anarchist and extradition was granted as the court consideredan anarchist to be the common enemy of all states (Farbey, 2007).

Like all other past cases of diplomatic asylum, Ecuadors treatment of the Julian Assange

case remains debateable. There are numerous reasons of this controversy. The prime most is

interference of one state in anothers domestic affairs and causing hindrance i n its legal

system. Despite the political undertones, the basis of demand for extradition remains common

crime that is the sexual harassment charges. By providing asylum to Assange, Ecuador is

obstructing the course of ordinary justice. Another reason is an apparent lack of solid

evidence to support Assanges claims of an imminent threat to his life and safety and which

gets even more pronounced as US has expressed disinterest in persecuting him. Yet another

reason is non-applicability of any of the four internationally recognized tests. The Swiss or

the proportionality test may seem appropriate to a certain extent but the political aspect

outweighing the criminal one is purely a matter of choice and intent.

Extradition as Expression of International Law

Extradition has been elaborately defined by legal experts and state constitutions (Gasiokwu

and Oche, n.d.). As per O'Higgins, extradition is the process in which state A delivers a

criminal to state B if he has acted against the law of the latter for trial or punishment. On

somewhat wider lines, The Harvard Research Draft of 1935 explains extradition as the formal

yielding of a person by a state to another for prosecution or punishment. The Supreme Court

of the US gives another definition of extradition stating:


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"The surrender by one nation to another of an individual accused or convicted of an

offence outside of its own territory and within the territorial jurisdiction of the other, which

being competent to try and punish him, demands the surrender ".

It is safe to assume from the fore mentioned definitions that:

The state providing asylum enjoys the lawful authority to yield the fugitive to the state

requesting extradition.

There is a cooperative relationship between the two states.

The requesting state has legal authority to try or punish the fugitive.

All the above definitions lack the reference to the wellbeing and safety of the individual being extradited whereas it is crucial that the rights of the accused must not be unduly

prejudiced during the trial. This flaw coupled with the absence of a bilateral treaty with

Sweden, has been exploited to the fullest by the Ecuadorian government when it granted

asylum to Julian Assange.

The international law of extradition is also governed by a few important considerations

(Gasiokwu and Oche, n.d.). Firstly, all states involved believe that crimes of any category

must not be left unpunished. Secondly, the statute of jurisdiction dictates that the state

providing refuge cannot try or punish the offender, who must be surrendered to the requesting

state for trial and punishment. Thirdly, the factors of territorial jurisdiction and evidence

make it more convenient for the destination state to prosecute and punish the criminal.

Finally, the surrender of fugitives to the requesting state is not obligatory if there is no treaty

between the two countries and in this case the extradition may only materialize on the basis

of mutual benefit.

There are also two basic and internationally accepted principles that govern the phenomenon

of extradition (Gasiokwu and Oche, n.d.) and are generally included in most bilateral treaties:

The Principle of Double Criminality . It edicts that the act in question must

constitute as crime or at least similar in nature and punishable by law in both countries

that is the host and destination states.

The Principle of Specialty . This principle dictates that the requesting state is duty

bound not to try or punish the fugitive for any crime other than that for which he was


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extradited. The principle of speciality will be the only point of relief for Julian Assange

if he is extradited.

Extradition has always been one of the oldest expressions of the international law as the

peace accord amongst Rameses II of Egypt and the Hittite prince Hattusili III in 1258 B.C.,

the most ancient document in the diplomatic history, lists down certain provisions concerning

the extradition of criminals. Moreover, in ancient Greece and Rome, extradition requests by

the state were treated with contempt due to the traditional and time honoured right of asylum,

but sooner or later the fear of divine vengeance often gave way to political concerns

(Magnuson, 2012).

The ancient practice of extradition practice was primarily political and not criminal and dealt

with crimes such as rebellion, threatening the safety of ambassadors and even starting wars

(Garcia and Doyle, 2010). This practice continued well into the 18 th century as extradition

treaties were both a rarity and were dictated by the constricted interests of political elites.

With the advent of the 19 th century, extradition treaties thrived and started to include a greater

variety of common crimes (Blakesley, 1981). Gradually, extraditions were treated as

compulsory components of international treaties. Procedural details were designed and

established to deal with requests for extradition and exchange of compulsions was imposed

on the parties. Furthermore, the requesting states were bound to lay out the grounds for

extradition and also to validate them according to the relevant treaty which often listed and

specified extraditable and non-extraditable crimes. Simultaneously, domestic courts were

frequently requested to decide upon the legality of extraditions.

For normal extraditions, the executive of the concerned state is applied to first, providing the

reasons for the extradition accompanied by evidential support for the allegations. Subject to

the executives approval , the judiciary decides upon the certification of extradition by

examining both the allegations and the concerned treaty. Towards the end of the process, the

proceedings are sent to the executive who is ultimately authorized to sanction or reject the

request (Hughes, 1986).

Over the course of the last few decades, there have been two important conceptual changes in

the extradition process. Firstly, extradition started off as a political phenomenon that mainly

omitted common crimes but by the advent of the 19 th century, it became a criminal

phenomenon that fundamentally excepted the political crimes. Secondly, the human rightsdimension has started to be considered in extradition requests as the rule of non-inquiry that


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is refraining from questioning the fairness of the requesting state s justice system , is

gradually being ignored in favour of human rights of freedom.

In the Julian Assange context, the rule of non-inquiry assumes an added importance as one of

the most questioned matters in extradition is the fear of discriminating or inhumane handling

in the destination countries thereby creating a conflict amongst individual rights and state

rights in international law. This conflict invites the attention of the human rights groups who

raise their voice in concern when people are extradited to countries with poor human rights

records (Demick, 2010) and even US, where there is a possibility of the death penalty or

other harsh sentences. For instance, in the Soering vs United Kingdom (1989) case, when the

extradition was ordered, Soering applied to the European Commission on Human Rights

against it, on the basis of flaws in the US prison system, especially the death row phenomenon which encompassed insensitive and degrading treatment in violation of the

European Convention on Human Rights. The court agreed with his stance and denied

extradition (Bloom, 2008).

Weaknesses in the Extradition Laws Concept and Application

The phenomenon of extradition, though internationally desired, accepted and acknowledged,

has its share of problem areas, conceptual difficulties and technical complications. Some ofthese have been described in the succeeding paras.

Concerns for Safety of the Requested Person . Extradition, while being an

important and effective step against crime, has serious implications concerning the

rights of freedom of the concerned individual as owing to the length of extradition

procedures, he may be detained in custody for prolonged periods of time without the

possibility of bail. For this particular reason, extradition treaties normally include a

detailed list of constraints and preventive measures, however, these are generally

diminishing thereby adversely affecting the rights and interests of the concerned

individual (Griffith and Harris, 2003). This was probably the only consideration driving

Assanges decision to seek diplomatic asylum wth Ecuador.

Rigidity in the Principle of Dual Criminality . The principle of dual or double

criminality forms the basis of the extradition law and dictates that the purported crime

driving the request for extradition, must be punishable in both the states. For this

purpose, extradition treaties have always included a list of extraditable offences. While


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this approach is successful in dealing with common but serious crimes like those of

Julian Assange, it is totally unable to address complicated and organized crimes. In

order to address these complications, following general rules can be incorporated in the

relevant treaties:

Differences in just the categories or terminologies of offence may be disregarded.

Instead of examining the individual elements, the crimes may be treated in

entirety.

In the Julian Assange context, the onus of responsibility lies with Sweden as it has to

describe in detail, the alleged sexual harassment charges and support them with

substantial evidence. On the other hand, it is the job of Ecuador to establish relevancyof crime according to the local law that is its applicability in the domestic legal

framework (Griffith and Harris, 2003).

Conceptual Flaws in the Political Offence Exception . The political offence

exception is one of the mandatory bases for refusing a request for extradition and is

included in bilateral extradition treaties as such. It means that a state will not sanction

the request for extradition if the offence is deemed of a political nature (European

Convention on Extradition, 1957). However, the term political offence is not only ill

defined but also involves certain complications with regards to establishing solid and

suitable evidence thereby gradually losing its significance and practical application.

There is an international consensus on including non-violent crimes in the political

offence category but the interpretation remains highly doubtful while dealing with

violent crimes. The definition of political offence has always remained generalised and

branded by methodological gauges like proportionality, which means that no offence

may be called political unless there exists proportionality amongst its nature and

political objectives. All these factors have acted in unison to further complicate the

terminology and have also introduced a predictable bias involved in its application as

judges are hesitant to engage with these issues and quite frequently display a bias

towards the interests of the requesting state. Political exception is also gradually losing

its value because of its obstructive impact on the course of justice as terrorists often

exploit the inherent conceptual weaknesses of the term to their advantage.


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In the Assange case, political exception is difficult to be established despite Ecuadorian

claims to the otherwise. There is no clear evidence that either US or UK, the two main

affected parties due to revelations of WikiLeaks, are behind the sexual harassment

charges laid down by the Swedish government.

The Human Rights Dimension . The modern extradition treaties include

obligatory grounds for regretting requests for extradition, which are primarily based

upon recognized anti-discrimination and human rights values. In these scenarios,

extradition may be refused if:

If the host state has ample reason to believe that the extradition may result into

prosecution or punishment on the basis of religion, race, ethnicity, nationality, sex

or social status, political views, sex or status.

If the host state has sufficient cause to believe that the extradition may lead to

torture or harsh, inhuman or degrading handling of the fugitive.

If there is an absence of a guarantee for safety of the accused incorporated within

the confines of the criminal proceedings in accordance with internationally

recognized civil and political rights.

The Soering principle as cited by Bloom, 2008, remains one of the most important

dimensions of the human rights aspect, though its validity depends upon the courts

perception of the risk of punishment, degrading or inhuman treatment. Despite the

comparative effectiveness of the human rights aspect, its practical manifestation

remains complicated as extensive resources are required to establish solid evidence for

discrimination or violation of human rights. This is the dilemma behind the Assange

situation as he failed to prove in front of the British courts a possibility of human rights

violation and in the face of a definite extradition, had to find refuge in the Ecuadorian

Embassy.

Extradition has also been widely criticised because of the perceived unfair attitude of the host

state as it sometimes assumes the role of a prosecuting agent, thereby giving rise to a conflict

of interest through nullifying the dictates of fair treatment and provision of defensive

procedural provisions. However, in Assanges ca se, the biased behaviour of the British courts

cannot be proved as the proceedings were marred by the dubious conduct of his own legalcounsel.


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Extradition treaties do not generally demand that extradition requests be accompanied by

solid evidence. Instead, a mere assertion of the committal of offence is considered to be

enough. This makes it extremely difficult for the fugitive to make use of or prove any of the

usual statutory exceptions. Moreover, the usual financial status of the accused renders him

unable to employ the costly legal services.

Conclusion

The Julian Assange case falls within the confines of a relative political offence that is the

actual charges of espionage have been criminally shaded by allegations of sexual harassment.

Logically, in the absence of solid evidence proving covert designs of either US or UK, the

common crime element renders his case most appropriate for extradition. Furthermore, there

are indications that by granting diplomatic asylum to Assange, Ecuador has interfered with

and even hindered both the British and the Swedish legal systems. Finally, the lack of any

solid evidence proving danger of the human rights violation, the apparently crystal clear role

of the British judicial system and the doubtful statements of Assa nges own lawyer make him

a likely candidate for extradition to Sweden.

On the other hand, Sweden and Ecuador or Britain and Ecuador enjoy not even a single

bilateral extradition treaty and therefore, the latter is not under any kind of obligation to hand

over Assange to either of the two states.


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REFERENCES

1. Blakesley Christopher, 1981. The Practice of Extradition from Antiquity to Modern

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political-controversy/ > [Accessed 25 April 2013].

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9. Griffith Gavan and Harris Claire, 2003. Recent Developments in the Law of

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11. Kinneally James, 1987. The political offense exception: Is the United States-United

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12. Magnuson William, 2012. The Domestic Politics of International Extradition.

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13. Quinn Ben, 2013. Ecuador raises Julian Assange case with Labour. The Guardian.

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assange-labour > [Accessed 25 April 2013].

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