university of hawaii school of law library - jon van dyke ... · ornelas y. ruiz, 161 u.s. 502...

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Extradition. Asylum. Refugees. and Political Crimes

Extradition is the process by which one nation delivers a person to another nation for prosecution or punishment. Extradition can only take place if a treaty exists between the two nations. without such a treaty, a nation would be under no obligation to surrender a person and would view such an act as an infringement on its sovereign independence. Decisions on whether a person is extraditable are made by courts after appropriate hearings are held.

Asylum is the oPPosite of extradition; it is the willingness of a nation to allow an alien to remain within its borders. Such grants are usually made by the executive branch, sometimes based on guidelines established by the legislature, but usually without judicial involvement. In the United States, asylum is granted to "political" refugees, ~, persons fearing persecution if they are forced to return to their homeland, but is generally denied to "economic" refugees, i.e, those persons who fear economic deprivation if they are forced to return to their homelands. Since World War II, various efforts have been made to assure uniformity in dealing with refugees, and the principle of "nonrefoulement" has emerged as a generally accepted norm. This principle means that no nation should arbitrarily turn back refugees seeking asylum and should at least examine their plight and try to determine some appropriate location for them where they will not face persecution.

Most modern extradition treaties contain a long list of crimes for which extradition is appropriate, and also contain a statement that persons accused of political crimes shall not be returned to the demanding country. The Extradition Treaty between the united States and Greece says, for instance, that

The provision of the present Treaty shall not import a claim of extradition for any crime or offense of a political character, nor for acts connected with such crimes or offenses; and no persons surrendered by or to either of the High Contracting Parties in virtue of this Treaty shall be tried or punished for a political crime or offense committed before his extradition. The State applied to, or courts of such State, shall decide whether the crime or offense is of a political character •••• '

Treaty dated May 6, 1931, 47 Stat. at Large 2185, art. 3.

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No extradition treaty, however, defines the terms npolitical crimen or "political offense. n

Courts have had to infuse meaning into these difficult words, and most courts have begun by dividing the spectrum of political crimes into (1) n pure political crimes," which are acts that directly affect the government of the state and only incidently affect the private rights of the citizens, and (2) nrelative political crimes n which are acts that affect both the security of the government and private rights.

Pure Political Crimes; Direct Attacks Against the Government

Included in the category of pure political crimes are treason, sedition, espionage, defection, and draft evasion. These acts are not motivated by private personal interests. They lack malice in the negative sense that the law uses the word (~, ill will) and instead are based on a positive, public concern that might be described as altruistic. Most persons who commit these crimes face grave risks in doing so, without any possibility of personal gain. They act with the knowledge that they are sacrificing their personal interests for some larger goal. The courts of virtually all countries show respect for persons who exhibit these high motives by refusing to extradite them to the demanding state.

The courts of the demanding state are, however, generally blinded to the political nature of these crimes. Pure political crimes directly challenge the integrity of the state in which they are committed, so the demanding state invariably refuses to acknowledge the higher motives of the offender or the fact that the offense is political. After Morton Sobell, who was accused of spying during and after World War II with the Rosenbergs for the Soviet Union, was deported by Mexico to the United states in 1950, he contended that he had been improperly returned to the United states because the crime he was charged with -- conspiracy to commit espionage -- was a political one. A distinguished federal judge, Irving R. Kaufman, now a member of the United states Court of Appeals for the Second Circuit, cavalierly dismissed this argument, without citation or reasoning, by simply asserting that espionage was a nnon-political crime. a united States v. Sobell, 142 F. Supp. 515,520 n. 3 (S.D.N.Y. 1956). This assertion is difficult to support. The united states government, like other governments, has from time to time prosecuted persons for pure political crimes, notably of course during periods of national and international tension.

Charges of treason have been pressed on some fifty occasions in the United States, and this offense has always been recognized


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as political. See ~., Chandler y. United states, 171 F.2d 921, 935 (1st Cir. 1948). One example of a person convicted of treason being granted asylum out of a recognition that a political crime was committed is the case of Ho Chi Minh. Then called Nguyen Ai Quoc, Ho was tried and convicted (in abstentia) of treason and sentenced to death by the French administrators of vietnam in 1929, when he was thirty-seven, for trying to organize the Vietnamese and harrassing the French. By the time of the trial, he had made his way to Hong Kong, where he was continuing to rally support for the overthrow of the French. The French asked the British authorities in Hong Kong to extradite HO, but after several court hearings they refused, because the crime he was convicted of was a political crime.

The More Difficult Case for pefinition: Relative Political Crimes

Relatiye political crimes have given courts and commentators much greater difficulty than pure political crimes, and, although virtually all courts agree that such a category exists, they disagree on the kinds of of~enses that are included in it.

Two dominant tests were developed in the late nineteenth and early twentieth centuries to determine what is a relative political crime: (1) the incidence test of Anglo-American law and (2) the political motivation test of SWiss law. Since World War II, these tests have been manipulated somewhat, ostensibly to meet the changing nature of political opposition.

The incidence test, under which crimes committed incidental to political disturbances are deemed to be political, was first formally articulated by a British court in 1891 in the case of In re Castioni, [1891] 1 Q.B. 149. Angelo Castioni, a citizen of the canton of Ticino in Switzerland, had resided in England for seventeen years, until September 10, 1890, when he returned to the town of Bellinzona in Ticino, finding the canton to be in the midst of a political crisis. A group of citizens had gathered the proper number of signatures on a petition, in accordance with the provisions of the canton's constitution, to require a vote on whether the constitution should be revised. The party in power refused to submit this question to a vote, however, and on September 11, 1890, the day after Castioni returned to Bellinzona, a mob that included Castioni seized the town arsenal, marched to the municipal palace, broke open the gate, and rushed inside. Castioni was in the front of the crowd, and he shot and killed a member of the State Council. A witness at the palace later said this killing was unnecessary for the success of the uprising. The crowd then took control of the palace and formed a provisional government which maintained power until the federal


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government of Switzerland intervened with force. Castioni then fled back to England.

The Swiss federal government asked Britain to extradite Castioni, but Court of the Queen's Bench refused. Judge Denman summarized the law as follows: "The question really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part." ~ at 159. According to this test, it is necessary that the accused be a member of faction involved in a disturbance or at least a political confrontation and that the accused's offense be one that was committed for the purpose of furthering the goals of the faction.

Three years later, this same British court was faced with the question whether a crime committed by an anarchist was a political crime. A self-proclaimed anarchist named Meunier asked for asylum in England after placing a bomb in an army barracks in Paris. The court, building upon the definition used in Castioni, said that "in order to constitute an offense of a political character, there must be two or more parties in the State, each seeking to impose the Government of their own choice on the other, and ••• if the offense is committed by one side or the other in pursuance of that object, it is a political offense, otherwise not.n Because nanarchist offenses are mainly directed against private citizensn rather than governments, the acts of anarchists are not political crimes. In re Meunier, [1894] 2 Q.B. 415, 419.

Two American decisions in the l890s used these British definitions and indicated that our view of political crimes was virtually identical with that of the British. The first case, In re Ezeta, 62 Fed. 972 (1894), concerned five officers in the army of El Salvador who had assumed power through a coup in 1890 and then were themselves overthrown militarily in 1894. They boarded a boat sailing to San Francisco and were brought into custody there when the boat arrive, because the new government of El Salvador sought their extradition on charges of murder, arson, and robbery. The u.S. district judge examining the evidence against the five determined that there was insufficient evidence to hold two of them, that one was charged with an attempted murder before the political disturbances began (and hence should be extradited), and that the other two, one of whom had been the commander-in-chief of the Salvadorian army, should be granted asylum because the acts they were accused of committing (the handing of a suspected spy, the robbery of a bank, and the killing of another military officer) "were committed during the progress of actual hostilities. n ~ at 995. The court accepted


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Judge Denman's test for relative political crimes offered in Castioni.

Ornelas y. Ruiz, 161 u.s. 502 (1896), raised more difficult questions, because although the accused participated in hostilities against a government they were not part of a large, organized group with well-defined political goals.

A band of 135 men, under the leadership of Francisco Benevides, crossed the Rio Grande from Texas into Mexico in December 1892 and attacked a unit of about 40 Mexican soldiers. They killed or captured many of the soldiers, burned their barracks, and took their horses and supplies. They also captured some civilians in the area, stole their horses, and extorted small sums of money from women. They then recrossed the Rio Grande to their base in Texas.

On behalf of their motion that extradition was improper because these acts were political, the solders in Benevides' band introduced evidence that in 1891 there had been a revolutionary movement in Mexico under the leadership of a man named Garza and that the goal of Benevides' band was the same as Garza's, nto cross over the river and fight against the government.n Grover Cleveland's Secretary of State, Walter Q. Gresham, issued an opinion, however, saying that these acts were not of revolutionary and political design because the invading band returned to Texas before the Mexican army sent another unit to chase them out of Mexico. The incidence test was not met because the crimes committed were not incidental to any real political disturbance. The hearing commissioner accepted this argument, ordering the band to be extradited, and the Supreme Court affirmed the decision.

As these cases indicate, before World War I most nations acknowledged that crimes committed as part of an organized revolution were political but were reluctant to grant the same protection to acts of rebellion, terror, or anarchism. The logic of this distinction is initially difficult to grasp. Acts that if successful would have toppled a regime are protected, but random and isolated acts that posed little threat are not. The distinction made sense, however, for the governments in pre-world-War-I Europe. After the Paris Commune in 1871, no European government was threatened by a major revolution, but they were all faced with acts of terror by small groups of revolutionaries who were unsuccessful but annoying. The judges and legal scholars devised legal rules, therefore, that denied the protection of the political-offense exception to extradition treaties to these small-time revolutionaries.


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The other important test of the late nineteenth and early twentieth century was the Swiss political motivation test, a test that became quite sophisticated because the geograpical position of the country encouraged activists to flee into Switzerland and forced the Swiss courts to hear many extradition cases.

The statute governing extradition in Switzerland was passed in 1892 and is still in force: nExtradition shall not be approved for political crimes or offenses. Nevertheless, extradition will be approved, even if the author of the act claims a political motive or purpose if the act for which extradition is demanded has predominantly the character of a common crime or offense. The federal tribunal shall freely decide, in the individual cases, concerning the nature of the punishable act.n The importance the Swiss courts attach to the political motive can be seen by comparing the case of In re Dckert, [1933-34] Ann. Dig. 369 (No. 157) (Swit.), which involved a German accused of killing a member of the National-Socialist Party in 1933 with In re Kaphengst, [1929-30] Ann. Dig. 292 (1930) (No. 188) (Swit.), a case involving another German national who was accused of setting off explosives in public buildings in 1929.

Dckert was a member of the Reichsbanner, a quasi-military organization of the German Social-Democratic Party. Early one morning in 1933, he became involved in a fight with six Nazis on a street in Frankfurt. The Nazis chased him, and he shot at them with a pistol, killing one. The opinion of the Swiss Federal Tribunal said that nIt is not necessary that the act should be closely connected with a political crime ••• n meaning a pure political crime, such as treason. The right to refuse extradition napplies more especially to so-called relatively political offenses in the wider sense -- namely, acts which have the character of ordinary crime appearing in the list of extraditable offenses but which, because of the attendant circumstances, in particular because of the motive and the object, are of a predominantly political complexion. a [1933-34] Ann. Dig. at 370 (emphasis added). The court did not insist that the act be incident to a dispute or disturbance between recognized factions, although of course the existence of such open disturbances would be relevant in providing the political motive of the accused.

In the Kaphengst case three years ealier, the accused argued that he should not be extradited back to Germany where he had bombed several buildings, because his acts had been committed to further the ends of the Landvolkbewegung (Country People Movement), which were to change the tax structure and to amend the Weimar constitution. The Swiss tribunal asked first whether the political motivation predominated over the elements of common


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criminality, indicating that the usual practice was to refuse to describe purely terrorists acts as political offenses unless they were part of a large uprising, and then asked whether the action bore some reasonable relationship with the goal sought. The language of the court was as follows:

For a common delict to be classed as a predominantly political offense it is not enough that it has a political motive and object or that 'it is capable of realizing or furthering that object ••• The practice of courts has always required a certain relationship between the objective and the means selected for its realization; a relationship of such a nature that the idealistic motives connected with the objective were strong enough to let the injury or threat to private rights appear, if not as justified, at least as excusable •••• Bomb outrages of the kind perpetrated in the present case in the struggle for amending the fiscal legislation cannot, according to Swiss conceptions, be regarded as means justified, in the above sense, by the object of the crime.

[1929-30] Ann. Dig. at 293.

French courts have adopted rules similar to those of the Swiss, but have limited the category of those who will not be extradited still further by saying not only that there must be a political motive but also that the object of this political motive must be the change of government and that the act committed must be one that injures the government. Thus, if a member of one opposition party kills a member of another opposition party as part of a pol tical disturbance, the murderer will be extradited because the government was not the object of his crime. In re Gioyanni Gatti, [1947] Ann. Dig. 145 (NO. 70) (Fr.) •

Another way of stating the principle enunciated by the Swiss court in Kaphengst is that if the crime committed by the accused is an atrocity, extradition will not be denied, and that an act of destruction will be viewed as an atrocity if it was not reasonably designed to help achieve the desired goal or if alternative means of achieving that goal were possible. The 1908 case of V.P. Wassi1ieff, [1909] Foreign Rel. u.s. 519 (1914), helps illustrate this idea.

Wassilieff, a Russian national, was accused of murdering the chief of police of Penza. His request for asylum in Switzerland was denied because the political motives of this act were unclear and there did not appear to be a direct connection between the


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act committed and the goal sought. The murder of the chief of police did not in any way help prepare the way-for popular representation and the guarantee of individual liberties. Only if the removal of this public figure might reasonably result in a modification of the political system could Wassilieff claim the protection of having committed a political crime. The Swiss court further observed that Wassilieff erred in acting on his own (after he had concluded that the chief of police was guilty of abusive acts) without first taking the intermediate step of appealing to the governor, to whom the chief of police was subordinate.

English and American courts have not, however, incorporated this exception into the incidence test, and treat atrocities like any other act committed incident to political disturbances. In the Castioni case, Judge Hawkins makes the following statement:

We know that in heat and in heated blood men often do things which are against and contrary to reason; but nonetheless an act of this description may be done for the purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented, as even cruel and against all reason, by those who can calmly reflect upon it after the battle is over.

[1891] 1 Q.B. at 167.

Even stronger language has been used in u.s. decisions. District Judge Morrow, in his opinion in In re Ezeta, said

crimes may have been committed by the contending forces of the most atrocious and inhuman character, and still the perpetrators of such crimes escape punishment as fugitives beyond the reach of extradition. I have no authority, in this examination, to determine what acts are within the rules of civilized warfare, and what are not. War, at best, is barbarous, and hence it is said that athe law is silent during war."

62 Fed. at 997 (1894).

After World War II, American courts passed on this question directly, in a case involving Andrija Artukovic, the Minister of Interior during the short-lived government of Croatia (when Yugoslavia was occupied by German and Italian troops). In 1941 and 1942, Artukovic allegedly ordered the mass slaughter of more than 1,293 named individuals and over two hundred thousand additional unidentified persons in concentration camps and elsewhere. The U.S. representatives of the United Nations said


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right after World War II that the United states would "surrender qUislings and traitors for trial under the law of the countries which were occupied by the enemy and where those persons actively aided the enemy ••• " See 57 Am. J. Intll L. 14. But when actually faced with a request from Yugoslavia for extradition of such a person, our courts, in a series of tests that extended from 1951 to 1959, refused to grant extradition. Artukovic y. BQyle, 107 F. Supp. 11 (S.D. Cal. 1952); Iyanceyic v. ArtukQvic, 211 F. 2d 565 (9th Cir. 1954), cert. denied, 348 U.S. 818, rehearing denied, 348 u.S. 889; Artukoyic v. Boyle, 140 F. Supp. 245 (S.D. Cal. 1956), affld sub nom, Karadzole y. Artukoyic, 247 F. 2d 198 (9th Cir. 1957), vacated and remanded, 355 U.S. 393 (1958), surrender denied on remand sub nom. United states y. Artukoyic, 170 F. Supp. 383 (S.D. Cal. 1959). The Court of Appeals for the Ninth Circuit said in 1957 that although various writers have urged that crimes against the laws of war and crimes against humanity were so barbarous that the political act has practically ceased to exist, and that although the United Nations has passed numerous resolutions urging the surrender of alleged war criminals, these recent actions are not sufficient ato modify long-standing judicial interpretations of similar treaty provisions." 247 F.2d at 205. The court was apparently unaware that in Europe treaty provisions had for some time been interpreted to exclude atrocities -- like acts of terrorism --from the protection of the category apolitical crimes."

In 1977, the U.S. Immigration and Naturalization Service again attempted to deport Artukovic, but the U.S. District Court rejected this attempt, ruling that such action could take place only if ~ evidence was discovered. N.Y. Times, Aug. 17, 1977, at 16, col. 6. A civil action based on Filartiga y. Pena-Irala, sgpra at 2-25, is now underway against Artukovic, and in 1984 (at the age of 84) he was again arrested from his home in Seal Beach, California, after a new extradition request was filed by Yugoslavia. In May 1985, a federal magistrate ordered Artukovic extradited to Yugoslavia to face up to 7,000 murder charges. Artukovicls lawyer predicted that appeals would take up to three years to complete.

Is A Definition Possible?

Judges and legislators have been reluctant to try to define political crimes exactly, and in fact Judges Denman and Hawkins in Castioni, [1891] 1 Q.B. 149,155 and 165 (1890), Judge Morrow in Ezeta, 62 Fed. 972, 998 (N.D. £al. 1894), and Lord Reid in 11 Parte Schtraks, [1964] A.C. 556, 584, all stated that no definition of political crime should be attempted. It is possible, nonetheless, to list the questions that should be asked in order to determine whether a given offense is a relative political crime:


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1. Was the offense committed as part of an organized effort to produce social or governmental change?

2. Was the purpose of the accused primarily a public purpose, and was the accused making -- or at least risking -- a personal sacrifice in committing the offense, and acting without any prospect of personal gain?

3. Was the offense reasonably designed to achieve the desired goal, or at least to further the movement toward that goal?

4. Did the offense threaten the government against which it was directed in such a way that the government might be unusually eager to punish the accused, almost vengeful, and might be tempted to set an example through particularly severe penalties.

5. Is the accused a political foe of the government to the extent that the government might be willing to manipulate its judicial system for the purpose of convicting the accused?

6. Is the political climate of the country in which the act was committed such that it would be difficult for the accused to receive a fair trial?

The more of these questions that can be answered affirmatively, the more likely the offense should be considered a political crime. Probably at least two of the first three and at least one of the final three questions must be answered affirmatively before an offense can be considered a political crime.


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Questions

1. Abu Eain was a Palestinian residing in the United states. Israel sought his extradition pursuant to the extradition treaty between the two nations. Israel accused him of setting a bomb in May 1976 that exploded in the market area in the Israeli city of Tiberias, killing two young boys and injuring more than 30 other persons. He claimed that the bombing was politically motivated as part of the efforts of the Palestine Liberation Organization to disrupt activities in Israel, and hence that it was a "political offense" excluded from extradition by the language of the treaty. How should the court rule on this matter? See abU Eain v. wilkes, 641 F.2d 504 (7th eire 1981).

2. Desmond Mackin was arrested by the British government in 1978 and charged with wounding and attempting to kill a British soldier in Belfast, Northern Ireland. He was then released on bail and failed to appear for trial. Later he entered the United States illegally and was apprehended by the Immigration and Naturalization Service (INS). In the extradition hearing, he argued that his action fell within the apolitical offensen exception to the extradition treaty because his actions were taken pursuant to his active participation in the Provisional Irish Republican Army which was conducting an uprising in Belfast at the time. How should the magistrate rule? Matter of Mackin, 668 F.2d 122 (2nd eire 1981).

3. Peter Gabriel John McMullen is a citizen of both the United Kingdom and the Republic of Ireland. He was born and raised in Northern Ireland and was active in the Provisional Irish Republic Army (PIRA) in the early 1970s. He was imprisoned in the Republic of Ireland from 1974 to 1977 because of this activity. Upon his release, he refused to continue to cooperate with the PIRA and entered the United States illegally fearing that he would be murdered by the PIRA for his disobedience if he stayed in Ireland. The INS then brought deportation proceedings against him. He argued that he should be granted asylum because he would be subject to persecution if he is deported to Ireland. How should the Board of Immigration Appeals rule? McMullen y. Immigration and Naturalization Service, 658 F.2d 1312 (9th eire 1981).

4. In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th eire 1982), the court considered the plight of 4,000 Haitians in south Florida who had sought political asylum in the United States. The court concluded that these aliens had na constitutionally protected right to petition our government for political asylumn:


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A ••• the United states became a party to the United Nations Protocol Relating to the status of Refugees, which incorporates the 1951 United Nations Convention Relating to the status of Refugees, in 1968. By accession to the Protocol the United states agreed, as stated in Article 33 of the Convention, not to deport a refugee "to frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." If this commitment by the United states is to have substance at all, it must mean at least that the alien is to be allowed the opportunity to seek political asylum, even if the grant of that benefit is discretionary.

AWe concede that the right we find is but a fragile one. There is no constitutionally protected right to political asylum itself. Although fragile, the right to petition is nevertheless a valuable one to its possessor. By it he may at least send his message and be assured of the ear of the recipient. Whether this minimal entitlement be called a liberty or property interest, we think it is sufficient to invoke the guarantee of due process.

What type of hearing must the government provide for the Haitians and what evidence must the Haitians provide in order to be granted asylum?

5. On June 25, 1985, the United states and the United Kingdom signed a Supplemental Treaty to their Extradition Treaty that included the f~llowing provision:

ARTICLE 1

For the purposes of the Extradition Treaty, none of the following offenses shall be regarded as an offense of a political character:

(a) an offense within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature at The Hague on 16 December 19701

(b) an offense within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, opened for signature at Montreal on 23 September 1971;


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(c) an offense within the scope of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, opened for signature at New York on 14 December 1973;

(d) an offense within the scope of the International Convention against the Taking of Hostages, opened for signature at New York on 18 December 1979;

(e) murder;

(f)' manslaughter;

(g) maliciously wounding or inflicting grievous bodily harm;

(h) kidnapping, abduction, false imprisonment or unlawful detention, including the taking of a hostage;

(i) the following offenses relating to explosives:

(1) the causing of an explosion likely to endanger life or cause serious damage to property; or

(2) conspiracy to cause such an explosion; or

(3) the making or possession of an explosive substance by a person who intends either himself or through another person to endanger life or cause serious damage to property;

(j) the following offenses relating to firearms or ammunition:

(1) the possession of a firearm or ammunition by a person who intends either himself or through another person to endanger life; or

(2) the use of a firearm by a person with intent to resist or prevent the arrest or detention of himself or another person;

(k) damaging property with intent to endanger life or with reckless disregard as to whether the life of another would thereby be endangered;

(1) an attempt to commit any of the foregoing offenses.

If you were working for a U.S. Senator considering whether to vote to ratify this Supplemental Treaty, what arguments would you make in support of and against ratification?


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6. Israel has requested extradition of John Demjanjuk, a resident of Cleveland, Ohio, on the grounds that he committed acts of murder at the Nazi extermination camp of Treblinka. The federal court must decide, among other issues, whether international law allows Israel to exercise criminal jurisdiction over acts committed (i) outside Israeli territory and (ii) before Israel came into existence. If you were arguing on behalf of Israel, what arguments would you make? Case No. 83-349 (E.D. Ohio).


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