A political offence exception (or exemption) is a provision which limits the obligation of a sovereign state under an
extradition or
mutual legal assistance treaty or statute. Such provisos allow the state whose assistance has been requested ("the requested party") to refuse to hand over a
suspect
In law enforcement jargon, a suspect is a known person accused or suspected of committing a crime. Police and reporters in the United States often use the word suspect as a jargon when referring to the perpetrator of the offense (perp in dated U ...
to – or to gather
evidence
Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field.
In epistemology, evidenc ...
on behalf of – another state ("the requesting party"), if the requested party's
competent authority
A competent authority is any person or organization that has the legally delegated or invested authority, capacity, or power to perform a designated function. Similarly, once an authority is delegated to perform a certain act, only the competent au ...
determines that the requesting party seeks assistance in order to prosecute an
offence of a political character.
History
Origins
The concept of an exception for political offences is a very new idea compared to the concept of extradition itself, and indeed constitutes an almost complete reversal of the original purpose of extradition. The earliest treaties for handing over criminal suspects from one country to another, dating from the 13th century BC, were aimed exclusively at fugitives who had committed political or religious crimes. Sovereigns made little effort towards the recapture of common criminals who had fled their jurisdiction, but actively pursued political criminals, to the extent of requesting aid from other sovereigns.
After the
French Revolution
The French Revolution ( ) was a period of radical political and societal change in France that began with the Estates General of 1789 and ended with the formation of the French Consulate in November 1799. Many of its ideas are considere ...
, international attitudes towards the extradition of political offenders began a slow shift. In 1833,
Belgium
Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to th ...
became the first country to legislate a prohibition against the extradition of political offenders (section 6 of the ''Loi du 1
er octobre 1833 sur les extraditions''), and included such a prohibition in its extradition treaty with
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
the following year. France itself began including such exceptions in its extradition treaties with various other countries over the several decades that followed. France began to include the political offence exception in its treaties later that year; the United States followed suit starting in 1843, and England in 1852. Belgium, as the first country to codify a political offence exception to extradition, was also a pioneer in efforts to define the outer limits of what exactly constitutes a "political offence". In what is now known as the ''clause d'attentat'' or the ''clause Belge'', Belgium excluded from the definition of "political offence" crimes committed against the life of a
head of state
A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and l ...
or
head of government
The head of government is the highest or the second-highest official in the executive branch of a sovereign state, a federated state, or a self-governing colony, autonomous region, or other government who often presides over a cabinet, a gro ...
after having to refuse to extradite two persons who attempted to assassinate
Napoleon III
Napoleon III (Charles Louis Napoléon Bonaparte; 20 April 18089 January 1873) was the first President of France (as Louis-Napoléon Bonaparte) from 1848 to 1852 and the last monarch of France as Emperor of the French from 1852 to 1870. A nephew ...
.
Narrowing the scope
Throughout the twentieth century, world events forced governments to examine the concept of the political offence exception more closely, first in the 1920s and 1930s as clashing fascists and communists used methods that could be described in modern parlance as
terrorism
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
to promote their respective political aims, then after
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
as both
war criminals and
collaborators with occupation governments sought with much success to protect themselves behind the shield of political offence exceptions, and further into the 1960s and 1970s with members of national liberation and anti-colonialist movements whose proponents acclaimed them as freedom fighters while detractors labelled them terrorists. The result was an increasingly common limitation, in addition to the ''clause Belge'', that acts prohibited by multilateral treaties are not subject to the political offence exception.
Various international conventions attempted to exclude consideration of motivation for certain crimes, with mixed success. The
Hague Hijacking Convention
The Hague Hijacking Convention (formally the Convention for the Suppression of Unlawful Seizure of Aircraft) is a multilateral treaty by which states agree to prohibit and punish aircraft hijacking. The convention does not apply to customs, law ...
of 1970 was an early example of this. It sought to correct the failure of the earlier
Tokyo Convention
The Convention on Offences and Certain Other Acts Committed on Board Aircraft, commonly called the Tokyo Convention, is an international treaty, concluded at Tokyo on 14 September 1963. It entered into force on 4 December 1969, and as of 2022 ha ...
to mandate prosecution or extradition for aircraft hijacking.
Though the Hague Convention did not explicitly force signatories to exclude aircraft hijacking as a political offence, as it was believed at the time that this would inhibit the adoption of the convention, it was a step in the direction towards promoting uniform international practice. China does not apply the principle of non-extradition for political offences in case of crimes of aircraft hijacking and other offences against civil aviation safety. The United States regards the Hague Hijacking Convention as "forbidding any inquiry" into an offender's political motivation.
An early draft of the 1973
Protection of Diplomats Convention
The Protection of Diplomats Convention (formally, the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents) is a United Nations anti-terrorism treaty that codifies some of th ...
attempted to take a stronger step in prohibiting consideration of an alleged offender's motives, but this language was deleted from the final version of the treaty.
The 1977 European Convention on the Suppression of Terrorism was more successful at limiting the scope of the political offence exception; in its first article, it provided a long list of offences which could not be regarded as political offences, including not just the traditional ''clause d'attentat'', but also kidnapping, hostage taking, and the use of bombs and firearms where the use endangered lives. Article 13 permits contracting states to register
reservations to Article 1 and thus to preserve their domestic law political offence exceptions, but, for example, the United Kingdom elected not to do so. Article 11 of the
also provided that offences covered by that convention could not be regarded as political offences for the purpose of refusing an extradition request. The 2004 implementation of the
European Arrest Warrant system entirely removed the political offence exception to extradition among member states of the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
.
Major legal tests
Absolute or relative offences
Political offences have been divided into two groups. Absolute or pure political offences are offences which are directed against the political organization or government of the state and contain no element of a common crime at all.
Pure political offences include crimes such as treason, espionage, and sedition. In most cases, there is no duty to extradite for pure political offences, and there is agreement that the political offence exception applies to these offences.
More difficult is the situation of a relative political offence in which a common crime is committed in connection with a political act. Several different legal tests have been developed to determine when the political offence exception applies.
Political incidence test
The political incidence test looks to whether the offence is "part of and incidental to a political struggle". Initially, it did not concern itself with the motives of the offender.
English courts first developed this test in the 1891 case ''In re Castolini'',
[''In re Castolini'', ]891
Year 891 ( DCCCXCI) was a common year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* February 21 – Guy III, duke of Spoleto, is crowned Holy Roman Emperor by Pope Ste ...
1 Q.B. 149. in which
Switzerland
). Swiss law does not designate a ''capital'' as such, but the federal parliament and government are installed in Bern, while other federal institutions, such as the federal courts, are in other cities (Bellinzona, Lausanne, Luzern, Neuchâtel ...
sought the extradition of a man from
Bellinzona
Bellinzona ( , , Ticinese ; french: Bellinzone ; german: Bellenz ; rm, Blizuna )is a municipality, a historic Swiss town, and the capital of the canton of Ticino in Switzerland. The town is famous for its three castles (Castelgrande, Montebell ...
who had shot dead a government official during political unrest there. The Extradition Act 1870 provided in general language for an exception to extradition for offences of a political character or offences for which extradition is sought to punish the offender for a political action, but the Act did not define those terms in detail. Judge
George Denman formulated the two legs of the test for offences of a political character: first that the offence occurred during a political disturbance, and second that the offence was an overt act part of or incidental to the disturbance, and so ruled that Castolini could not be extradited.
Later cases looked to the motives of the offender in an effort to determine whether the offences could fall under a more liberal definition of "political disturbance". In the 1954 case ''Ex parte Kolczynski'',
[''R v Governor of Brixton Prison, Ex parte Kolczynski'', 9541 Q.B. 540.] English courts first extended the political incidence test to events that were not part of political unrest: a revolt by seven
Polish
Polish may refer to:
* Anything from or related to Poland, a country in Europe
* Polish language
* Poles, people from Poland or of Polish descent
* Polish chicken
*Polish brothers (Mark Polish and Michael Polish, born 1970), American twin screenwr ...
sailors who
mutinied
Mutiny is a revolt among a group of people (typically of a military, of a crew or of a crew of pirates) to oppose, change, or overthrow an organization to which they were previously loyal. The term is commonly used for a rebellion among members ...
against their captain and took their ship to the United Kingdom. Judges
James Cassels and
Rayner Goddard interpreted "political disturbance" far more broadly than in ''Castolini'', finding even in the absence of an uprising that the offenders' crimes had been committed as part of efforts to avoid prosecution for political crimes. The case has been described as "the farthest extension" of the political offence exception. In 1962, the next major case in this regard, ''Schtraks v Israel'',
[''Schtraks v Government of Israel and Others'', ]964
Year 964 ( CMLXIV) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
Byzantine Empire
* Arab–Byzantine War: Emperor Nikephoros II continues the reconquest of south-eastern Anatoli ...
AC 556, 962
Year 962 ( CMLXII) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* December – Arab–Byzantine wars – Sack of Aleppo: A Byzantine e ...
3 All ER 529, 962
Year 962 ( CMLXII) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* December – Arab–Byzantine wars – Sack of Aleppo: A Byzantine e ...
3 WLR 1013. Availabl
here
at the website of the United Nations High Commissioner for Refugees
The United Nations High Commissioner for Refugees (UNHCR) is a United Nations agency mandated to aid and protect refugees, forcibly displaced communities, and stateless people, and to assist in their voluntary repatriation, local integrati ...
. Lord
Radcliffe
Radcliffe or Radcliff may refer to:
Places
* Radcliffe Line, a border between India and Pakistan
United Kingdom
* Radcliffe, Greater Manchester
** Radcliffe Tower, the remains of a medieval manor house in the town
** Radcliffe tram stop
* ...
laid down the outer limits of what could constitute a "political disturbance" under the liberal ''Kolczynski'' definition, finding that it required 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 court found that while Schtraks' alleged offence of kidnapping his nephew to ensure that he had an
Orthodox Jewish
Orthodox Judaism is the collective term for the traditionalist and theologically conservative branches of contemporary Judaism. Theologically, it is chiefly defined by regarding the Torah, both Written and Oral, as revealed by God to Moses on M ...
education was a matter of political controversy in Israel, he had done it purely for personal motivations without any intention of furthering political change, and so found that his offence was not of a political character.
Injured rights test and motives test
The injured rights test, also known as the objective test, is a primarily French test that looks to whether the offence was directed against the political organisation of the requesting state. This test explicitly rejects the approach that political sentiments behind an offence make it a political offence. This was the test adopted in the ''Gatti'' case, in which a
San Marino
San Marino (, ), officially the Republic of San Marino ( it, Repubblica di San Marino; ), also known as the Most Serene Republic of San Marino ( it, Serenissima Repubblica di San Marino, links=no), is the fifth-smallest country in the world an ...
man murdered a local communist and then fled to France. The French court certified his extraditability, ruling that his offence was not a political offence. French courts frequently applied this test in cases in which Belgium sought the extradition of Belgian World War II collaborators, none of whom were extradited.
However, French courts have also adopted the opposite approach and considered only the motives of the offender to the exclusion of the political aims of the act.
Under this test, an offence is deemed to be political where the offender demonstrates to the court that they "acted with a political motive".
One application of this test was in 1975, when a French court considered the case of two Americans who had hijacked a plane, among whom one had demanded it fly to
Hanoi
Hanoi or Ha Noi ( or ; vi, Hà Nội ) is the capital and second-largest city of Vietnam. It covers an area of . It consists of 12 urban districts, one district-leveled town and 17 rural districts. Located within the Red River Delta, Hanoi is ...
; against the background of the
Vietnam War
The Vietnam War (also known by #Names, other names) was a conflict in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. It was the second of the Indochina Wars and was officially fought between North Vie ...
, the court saw this as a politically motivated act.
Predominance test
Also known as the preponderance or proportionality test, or simply the "Swiss test", this test weighs "the elements of common crime" against the offender's "political motive or purpose", allowing the political offence exception only in cases where the latter outweighs the former. As summarised in ''Ktir v. Ministere Public Federal'', a 1961 case in which
Switzerland
). Swiss law does not designate a ''capital'' as such, but the federal parliament and government are installed in Bern, while other federal institutions, such as the federal courts, are in other cities (Bellinzona, Lausanne, Luzern, Neuchâtel ...
certified the extraditability to France of an
Algerian National Liberation Front member, the test looks to whether the act was "inspired by political passion, "committed in the framework of a struggle for power or for the purpose of escaping a dictatorial authority", and "directly and closely related to the political purpose". As part of the last leg, the court examined the
proportionality of the alleged offence. The preponderance test enjoys the most acceptance among academics, and academic sources have suggested that wider adoption of the preponderance test could aid in addressing some of the issues under the incidence test, such as perceived abuse of the political offence exception by former government officials. The
Supreme Court of the Netherlands
The Supreme Court of the Netherlands ( nl, Hoge Raad der Nederlanden or simply ''Hoge Raad''), officially the High Council of the Netherlands, is the final court of appeal in civil, criminal and tax cases in the Netherlands, including Curaçao ...
also applied the proportionality test in the 1978 case ''Folkerts v Public Prosecutor'' to order the extradition of a
Red Army Faction member to
West Germany
West Germany is the colloquial term used to indicate the Federal Republic of Germany (FRG; german: Bundesrepublik Deutschland , BRD) between its formation on 23 May 1949 and the German reunification through the accession of East Germany on 3 O ...
.
Connexity test
Some sources regarded the
Republic of Ireland
Ireland ( ga, Éire ), also known as the Republic of Ireland (), is a country in north-western Europe consisting of 26 of the 32 counties of the island of Ireland. The capital and largest city is Dublin, on the eastern side of the island. A ...
's approach to the political offence exception as a new test in its own right, while others see it as simply a variation or combination of existing theories. It is sometimes called the "connexity test"; the result is that the definition of political offence may include an ordinary crime which is connected to another's political offence.
This test goes back to the 1973 case ''Bourke v. Attorney General'',
[''Bourke v. Attorney General'', 972I.R. 36.] in which the United Kingdom sought extradition from Ireland of
Sean Bourke
Sean Aloysius Bourke (1934–1982), from Limerick, aided in the prison escape of the British spy George Blake in October 1966. Blake had been convicted in 1961 of spying for the Soviet Union. After the escape, Blake eventually made his way to Mosc ...
, who had escaped from a British prison with a fellow prisoner. The political offence exception came into play because the fellow prisoner was Soviet spy
George Blake.
Bourke was never a communist
and had aided Blake's escape purely from motivations of the friendship they had forged while imprisoned together.
Nevertheless, Bourke's counsel argued that his offence was "an offence connected with a political offence" and thus exempt from extradition under the Irish Extradition Act 1965. The
Supreme Court of Ireland
, image = Coat of arms of Ireland.svg
, imagesize = 120px
, alt =
, caption = Coat of Arms of Ireland
, image2 = Four Courts, Dublin 2014-09-13.jpg
, imagesize2 =
, alt2 ...
rejected the
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
's contention that the connected offence itself had to be a political offence; it based that opinion on the fact that the 1965 Act did not contain any limitation on the character of the connected offence, and that the preparatory notes for the
European Convention on Extradition
The European Convention on Extradition is a multilateral treaty on extradition drawn in 1957 up by the member states of the Council of Europe and in force between all of them. The Convention is also available for signature by non-members which a ...
which had heavily influenced the 1965 Act showed that the parties to the convention had explicitly rejected that limitation.
By jurisdiction
Mainland China
The first extradition treaty signed by the government of the People's Republic of
China
China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...
, with
Thailand
Thailand ( ), historically known as Siam () and officially the Kingdom of Thailand, is a country in Southeast Asia, located at the centre of the Indochinese Peninsula, spanning , with a population of almost 70 million. The country is bo ...
, provided for a political offence exception; however, other treaties did not. Instead, the intention was that the executive branch would use the grant of
political asylum
The right of asylum (sometimes called right of political asylum; ) is an ancient juridical concept, under which people persecuted by their own rulers might be protected by another sovereign authority, like a second country or another enti ...
to the offender under Article 32(2) of the
Constitution of the People's Republic of China as the reason for rejecting the extradition request. This is the approach followed in the treaties with
Belarus
Belarus,, , ; alternatively and formerly known as Byelorussia (from Russian ). officially the Republic of Belarus,; rus, Республика Беларусь, Respublika Belarus. is a landlocked country in Eastern Europe. It is bordered by R ...
,
Bulgaria
Bulgaria (; bg, България, Bǎlgariya), officially the Republic of Bulgaria,, ) is a country in Southeast Europe. It is situated on the eastern flank of the Balkans, and is bordered by Romania to the north, Serbia and North Macedon ...
,
Kazakhstan
Kazakhstan, officially the Republic of Kazakhstan, is a transcontinental country located mainly in Central Asia and partly in Eastern Europe. It borders Russia to the north and west, China to the east, Kyrgyzstan to the southeast, Uzbeki ...
,
Kyrgyzstan
Kyrgyzstan,, pronounced or the Kyrgyz Republic, is a landlocked country in Central Asia. Kyrgyzstan is bordered by Kazakhstan to the north, Uzbekistan to the west, Tajikistan to the south, and the People's Republic of China to the east. ...
,
Russia
Russia (, , ), or the Russian Federation, is a List of transcontinental countries, transcontinental country spanning Eastern Europe and North Asia, Northern Asia. It is the List of countries and dependencies by area, largest country in the ...
, and
Ukraine
Ukraine ( uk, Україна, Ukraïna, ) is a country in Eastern Europe. It is the second-largest European country after Russia, which it borders to the east and northeast. Ukraine covers approximately . Prior to the ongoing Russian inv ...
.
Hong Kong
Under Articles 8 of the Basic Law, the English common law that was in form at the time of the handover in 1997 remain as the
law of Hong Kong
The law of the Hong Kong Special Administrative Region has its foundation in the English common law system, inherited from being a former British colony and dependent territory. There are several sources of law, the primary ones being statute ...
unless they either contravene the
Basic Law or have been amended by the
Legislative Council, and decisions of English courts before the handover have high authority within Hong Kong.
Under , both the
judiciary of Hong Kong
The Judiciary of the Hong Kong Special Administrative Region is the judicial branch of the Hong Kong Special Administrative Region. Under the Basic Law of Hong Kong, it exercises the judicial power of the Region and is independent of the exec ...
and the
Chief Executive are empowered to determine that an offence is "of a political character" and thus that a person should not be surrendered. It was a matter of some debate among Hong Kong and mainland scholars whether or not Hong Kong's agreement with
mainland China
"Mainland China" is a geopolitical term defined as the territory governed by the People's Republic of China (including islands like Hainan or Chongming), excluding dependent territories of the PRC, and other territories within Greater China. ...
regarding the cross-boundary surrender of fugitive offenders should also include a political offence exception. Since the 1997
transfer of sovereignty over Hong Kong
Sovereignty of Hong Kong was transferred from the United Kingdom to the People's Republic of China (PRC) at midnight on 1 July 1997. This event ended 156 years of British rule in the former colony. Hong Kong was established as a special admini ...
, Hong Kong and mainland China are both part of the same country, and opponents of adding a political offence exception argued that it was only meant to apply among different sovereigns and not different territories of the same sovereign. One example given in this regard was the arrangement among the
states of the United States
In the United States, a state is a Federated state, constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it ...
, in particular the
Extradition Clause The Extradition Clause or Interstate Rendition Clause of the United States Constitution is Article Four of the United States Constitution, Article IV, Article Four of the United States Constitution#Section 2: Rights of state citizens; rights of extr ...
which contains no exception for political offences and specifically names
treason
Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
as a crime for which an interstate fugitive must be delivered upon demand. However, proponents of adding a political offence exception argued that the principle of
one country, two systems
"One country, two systems" is a constitutional principle of the People's Republic of China (PRC) describing the governance of the special administrative regions of Hong Kong and Macau.
The constitutional principle was formulated in the early ...
meant that Hong Kong should have the right not to surrender fugitive offenders for political offences, and to prosecute such offences under laws it passes on its own.
provides that Hong Kong courts are not empowered to assist in obtaining evidence for criminal proceedings in an overseas court "in the case of criminal proceedings of a political character". A major case in this regard is ''Crown Solicitor v Kitingan''.
[, ]994
Year 994 ( CMXCIV) was a common year starting on Monday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* September 15 – Battle of the Orontes: Fatimid forces, under Turkish genera ...
HKCFI 204; 994
Year 994 ( CMXCIV) was a common year starting on Monday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* September 15 – Battle of the Orontes: Fatimid forces, under Turkish genera ...
1 HKC 516. In that case, the government of
Malaysia
Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
had arrested
Sabah
Sabah () is a States and federal territories of Malaysia, state of Malaysia located in northern Borneo, in the region of East Malaysia. Sabah borders the Malaysian state of Sarawak to the southwest and the North Kalimantan province of Indone ...
politician
Jeffrey Kitingan
Jeffrey Gapari Kitingan (born 22 October 1948) is Malaysian politician. He served as the Deputy Chief Minister II of Sabah from 2020 to 2023 and State Minister of Agriculture and Fisheries since 2020 (also served in the same position for a ...
and laid seven corruption-related charges against him, and sought to obtain evidence from five witnesses in Hong Kong. In May 1993, Judge
Clare-Marie Beeson
Clare-Marie Beeson, SBS () is a New Zealand-born lawyer who served as a judge in the Hong Kong Judiciary for over 29 years.
Early life and career
Beeson was born in 1948 in New Zealand. She was admitted as a solicitor and barrister in New Ze ...
refused, ruling that the proceedings against Kitingan were "of a political character" and that the request was an
abuse of process. The Crown appealed to the
High Court of Justice
The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal of England and Wales, Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cou ...
, where Judge Nigel Jones upheld Beeson's decision. He ruled that while the burden of proof was on the applicant to demonstrate that the offence was of a political character, Kitingan had met that burden; Jones rejected a challenge to the evidence of an
expert witness adduced on Kitingan's behalf that the Malaysian government was conducting "a political campaign directed against" Kitingan and other
Parti Bersatu Sabah leaders. He followed the approach in English extradition cases, finding that Kitingan was – as Lord Radcliffe had defined the important element of "political offence" in ''Schtraks v Israel'' – "at odds with the State ... on some issue connected with the political control or government of the country".
United States
Statutory bars to extradition from the United States for political offences are limited; instead, the political offence exception is provided for in treaties.
permits the extradition of "persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries without regard to the existence of any treaty of extradition with such foreign government if the Attorney General certifies, in writing, that ... the offenses charged are not of a political nature", while provides that "No return or surrender shall be made of any person charged with the commission of any offense of a political nature" to a foreign country occupied by the United States.
To determine what qualifies as an offence of a "political nature", a United States court adopted England's political incidence test in the 1894 case ''In Re Ezeta'',
in which
El Salvador
El Salvador (; , meaning " The Saviour"), officially the Republic of El Salvador ( es, República de El Salvador), is a country in Central America. It is bordered on the northeast by Honduras, on the northwest by Guatemala, and on the south b ...
sought the extradition of its former
president
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
Carlos Ezeta
Carlos Basilio Ezeta y León (14 June 1852 – 21 March 1903) was President of El Salvador from 22 June 1890 to 9 June 1894, when he was overthrown in the Revolution of the 44. He was a military ruler. He died on 21 March 1903, aged 50.
Ear ...
. In the 1896 case ''Ornelas v. Ruiz'',
the sole
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
case on the political offence exception, the Court held that a group of men charged with murder, arson, robbery, and kidnapping committed during the course of a raid in Mexico were extraditable. Although the raid occurred contemporaneously with the
Yaqui Uprising
The Yaqui Uprising, also called the Nogales Uprising, was an armed conflict that took place in the Mexican state of Sonora and the American state of Arizona over several days in August 1896. In February, the Mexican revolutionary Lauro Aguirr ...
, the court found that the raid was unrelated and non-political in nature. U.S. courts, unlike their English counterparts, have continued to follow a strict definition of "uprising" when applying the political incidence test; specifically in 1986 in ''Quinn v Robinson'',
the court would only allow application of the exception "when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective"; it found that
conditions in 1974–75 met the definition of "uprising" in Northern Ireland, but not in England where the offences occurred, and so
Liam Quinn was ruled extraditable.
U.S. courts also follow the "rule of non-inquiry", under which consideration of the political motivations of the requesting party is a matter left to the discretion of the executive branch as part of its power to conduct foreign relations. In the 1980s, extradition treaties with Mexico and the Netherlands made the entire question of what constitutes a political offence a question for the executive branch, which was described as "the death knell" for the political offence exception in U.S. law. Legislation around the same time proposed by Representative
William J. Hughes
William John Hughes (October 17, 1932 – October 30, 2019) was an American politician and diplomat who served as a Democratic member of the U.S. House of Representatives from 1975 to 1995, representing New Jersey's Second Congressional Distri ...
(D-NJ) and Senator
Strom Thurmond
James Strom Thurmond Sr. (December 5, 1902June 26, 2003) was an American politician who represented South Carolina in the United States Senate from 1954 to 2003. Prior to his 48 years as a senator, he served as the 103rd governor of South Caro ...
(R-SC) also attempted to develop more detailed and stringent guidelines for the political offence exception in an effort to prevent terrorists from taking recourse to it, but did not pass. This was followed by signing of a Supplementary Treaty between the United Kingdom and the United States in 1985, which sharply contracted the definition of a political offence with the aim of curbing
Provisional Irish Republican Army
The Irish Republican Army (IRA; ), also known as the Provisional Irish Republican Army, and informally as the Provos, was an Irish republican paramilitary organisation that sought to end British rule in Northern Ireland, facilitate Irish reun ...
members' recourse to this provision; it was the first U.S. treaty to contain such an exception. Christopher Blakesley described this as "evisceration" of the exception.
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Extradition