International Law. A Treatise Volume I Part 51

[Footnote 675: See Clarke, op. cit. pp. 177 and 262, who, however, disapproves of this surrender.]

A conflict between International and Munic.i.p.al Law arises if a certain individual must be extradited according to an extradition treaty, but cannot be extradited according to the Munic.i.p.al Law of the State from which extradition is demanded. Thus in the case of Salvatore Paladini,[676] whose extradition was demanded by the United States of America from the Italian Government in 1888 for having pa.s.sed counterfeit money, Italian Munic.i.p.al Law, which prohibits the extradition of an Italian citizen, came into conflict with article 1 of the Extradition Treaty of 1868 between Italy and the United States which stipulates extradition of criminals without exempting nationals. For this reason Italy refused to extradite Paladini. It is noteworthy that the United States, although they do not any longer press for extradition of Italian subjects who, after having committed a crime in the United States have returned to Italy, nevertheless consider themselves bound by the above-mentioned treaty of 1868 to extradite to Italy such American subjects as have committed a crime in Italy. Therefore, when in 1910 the Italian Government demanded from the United States extradition of one Porter Charlton,[677] an American citizen, for having committed a murder in Italy, extradition was granted.

[Footnote 676: See Moore, IV. -- 594, pp. 290-297.]

[Footnote 677: See A.J. V. (1911), pp. 182-191.]

[Sidenote: Extraditable Crimes.]

-- 331. Unless a State is restricted by an extradition law, it can grant extradition for any crime it thinks fit. And unless a State is bound by an extradition treaty, it can refuse extradition for any crime. Such States as possess extradition laws frame their extradition treaties conformably therewith and specify in those treaties all those crimes for which they are willing to grant extradition. And no person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition. As regards Great Britain, the following are extraditable crimes according to the Extradition Act of 1870:--Murder and manslaughter; counterfeiting and uttering counterfeit money; forgery and uttering what is forged; embezzlement and larceny; obtaining goods or money by false pretences; crimes by bankrupts against bankruptcy laws; fraud by a bailee, banker, agent, factor, trustee, or by a director, or member, or public officer of any company; rape; abduction; child stealing; burglary and housebreaking; arson; robbery with violence; threats with intent to extort; piracy by the Law of Nations; sinking or destroying a vessel at sea; a.s.saults on board ship on the High Seas with intent to destroy life or to do grievous bodily harm; revolt or conspiracy against the authority of the master on board a ship on the High Seas. The Extradition Acts of 1873 and 1906 added the following crimes to the list:--Kidnapping, false imprisonment, perjury, subornation of perjury, and bribery.

Political criminals are, as a rule, not extradited,[678] and according to many extradition treaties military deserters and such persons as have committed offences against religion are likewise excluded from extradition.

[Footnote 678: See below, ---- 333-340.]

[Sidenote: Effectuation and Condition of Extradition.]

-- 332. Extradition is granted only if asked for, and after the formalities have taken place which are stipulated in the treaties of extradition and the extradition laws, if any. It is effected through handing over the criminal by the police of the extraditing State to the police of the prosecuting State. But it must be emphasised that, according to most extradition treaties, it is a condition that the extradited individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted, or for those at least which the extradition treaty concerned enumerates.[679] If, nevertheless, an extradited individual is tried and punished for another crime, the extraditing State has a right of intervention.[680]

[Footnote 679: See Mettgenberg in the "Zeitschrift fur internationales Recht," XVIII. (1908), pp. 425-430.]

[Footnote 680: It ought to be mentioned that the Inst.i.tute of International Law in 1880, at its meeting in Oxford (see Annuaire, V. p.

117), adopted a body of twenty-six rules concerning extradition.]

An important question is whether, in case a criminal, who has succeeded in escaping into the territory of another State, is erroneously handed over, without the formalities of extradition having been complied with, by the police of the local State to the police of the prosecuting State, such local State can demand that the prosecuting State shall send the criminal back and ask for his formal extradition. This question was decided in the negative in February 1911 by the Court of Arbitration at the Hague in the case of France _v._ Great Britain concerning Savarkar.

This British-Indian subject, who was prosecuted for high treason and abatement of murder, and was being transported in the P. and O. boat _Morea_ to India for the purpose of standing his trial there, escaped to the sh.o.r.e on October 25, 1910, while the vessel was in the harbour of Ma.r.s.eilles. He was, however, seized by a French policeman, who, erroneously and without further formalities, reconducted him to the _Morea_ with the a.s.sistance of individuals from the vessel who had raised a hue-and-cry. Since Savarkar was _prima facie_ a political criminal, France demanded that England should give him up and should request his extradition in a formal way, but England refused to comply with this demand, and the parties, therefore, agreed to have the conflict decided by the Court of Arbitration at the Hague. The award, while admitting that an irregularity had been committed by the reconduction of Savarkar to the British vessel, decided, correctly, I believe, in favour of Great Britain, a.s.serting that there was no rule of International Law imposing, in circ.u.mstances such as those which have been set out above, any obligation on the Power which has in its custody a prisoner, to restore him on account of a mistake committed by the foreign agent who delivered him up to that Power.[681] It should be mentioned that the French Government had been previously informed of the fact that Savarkar would be a prisoner on board the _Morea_ while she was calling at Ma.r.s.eilles, and had agreed to this.

[Footnote 681: See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil general de Jurisprudence, de Doctrine et de Legislation coloniales,"

1911), who defends the French view. The award of the Court of Arbitration has been severely criticised by Baty in the _Law Magazine and Review_, x.x.xVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp.

202-211; Strupp, "Zwei praktische Falle aus dem Volkerrecht" (1911), pp.

12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel in R.I. 2nd Ser.

XIII. (1911), pp. 370-403.]

X

PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS

Westlake, I. pp. 247-248--Lawrence, -- 111--Taylor, -- 212--Wharton, II. -- 272--Moore, IV. -- 604--Bluntschli, -- 396--Hartmann, -- 89--Lammasch in Holtzendorff, III. pp. 485-510--Liszt, -- 33--Ullmann, -- 129--Rivier, I. pp. 351-357--Nys, II. pp.

253-256--Calvo, II. ---- 1034-1036--Martens, II. -- 96--Bonfils, Nos.

466-467--Pradier-Fodere, III. Nos. 1871-1873--Merignhac, II. pp.

754-771--Soldan, "L'extradition des criminels politiques"

(1882)--Mart.i.tz, "Internationale Rechtshilfe in Strafsachen," vol.

II. (1897), pp. 134-707--Lammasch, "Auslieferungspflicht und Asylrecht" (1887), pp. 203-355--Grivaz, "Nature et effets du principe de l'asyle politique" (1895)--Piggott, "Extradition"

(1910), pp. 42-60--Scott in A.J. III. (1909), pp. 459-461.

[Sidenote: How Non-extradition of Political Criminals became the Rule.]

-- 333. Before the French Revolution[682] the term "political crime" was unknown in either the theory or the practice of the Law of Nations. And the principle of non-extradition of political criminals was likewise non-existent. On the contrary, whereas extradition of ordinary criminals was, before the eighteenth century at least, hardly ever stipulated, treaties very often stipulated the extradition of individuals who had committed such deeds as are nowadays termed "political crimes," and such individuals were frequently extradited even when no treaty stipulated it.[683] And writers in the sixteenth and seventeenth centuries did not at all object to such practice on the part of the States; on the contrary, they frequently approved of it.[684] It is indirectly due to the French Revolution that matters gradually underwent a change, since this event was the starting-point for the revolt in the nineteenth century against despotism and absolutism throughout the western part of the European continent. It was then that the term "political crime" arose, and article 120 of the French Const.i.tution of 1793 granted asylum to foreigners exiled from their home country "for the cause of liberty." On the other hand, the French emigrants, who had fled from France to escape the Reign of Terror, found an asylum in foreign States. However, the modern principle of non-extradition of political criminals even then did not conquer the world. Until 1830 political criminals frequently were extradited. But public opinion in free countries began gradually to revolt against such extradition, and Great Britain was its first opponent. The fact that several political fugitives were surrendered by the Governor of Gibraltar to Spain created a storm of indignation in Parliament in 1815, where Sir James Mackintosh proclaimed the principle that no nation ought to refuse asylum to political fugitives. And in 1816 Lord Castlereagh declared that there could be no greater abuse of the law than by allowing it to be the instrument of inflicting punishment on foreigners who had committed political crimes only. The second in the field was Switzerland, the asylum for many political fugitives from neighbouring countries, when, after the final defeat of Napoleon, the reactionary Continental monarchs refused the introduction of const.i.tutional reforms which were demanded by their peoples. And although, in 1823, Switzerland was forced by threats of the reactionary leading Powers of the Holy Alliance to restrict somewhat the asylum afforded by her to individuals who had taken part in the unsuccessful political revolts in Naples and Piedmont, the principle of non-extradition went on fighting its way. The question as to that asylum was discussed with much pa.s.sion in the press of Europe. And although the principle of non-extradition was far from becoming universally recognised, that discussion indirectly fostered its growth. A practical proof thereof is that in 1830 even Austria and Prussia, two of the reactionary Powers of that time, refused Russia's demand for extradition of fugitives who had taken part in the Polish Revolution of that year. And another proof thereof is that at about the same time, in 1829, a celebrated dissertation[685] by a Dutch jurist made its appearance, in which the principle of non-extradition of political criminals was for the first time defended with juristic arguments and on a juristic basis.

[Footnote 682: I follow in this section for the most part the summary of the facts given by Mart.i.tz, op. cit. II. pp. 134-184.]

[Footnote 683: Mart.i.tz, op. cit. II. p. 177, gives a list of important extraditions of political criminals which took place between 1648 and 1789.]

[Footnote 684: So Grotius, II. c. 21, -- 5, No. 5.]

[Footnote 685: H. Provo Kluit, "De deditione profugorum."]

On the other hand, a reaction set in in 1833, when Austria, Prussia, and Russia concluded treaties which remained in force for a generation, and which stipulated that henceforth individuals who had committed crimes of high treason and _lese-majeste_, or had conspired against the safety of the throne and the legitimate Government, or had taken part in a revolt, should be surrendered to the State concerned. The same year, however, is epoch-making in favour of the principle of non-extradition of political criminals, for in 1833 Belgium enacted her celebrated extradition law, the first of its kind, being the very first Munic.i.p.al Law which expressly interdicted the extradition of foreign political criminals. As Belgium, which had seceded from the Netherlands in 1830 and became recognised and neutralised by the Powers in 1831, owed her very existence to revolt, she felt the duty of making it a principle of her Munic.i.p.al Law to grant asylum to foreign political fugitives, a principle which was for the first time put into practice in the treaty of extradition concluded in 1834 between Belgium and France. The latter, which to the present day has no munic.i.p.al extradition law, has nevertheless henceforth always in her extradition treaties with other Powers stipulated the principle of non-extradition of political criminals. And the other Powers followed gradually. Even Russia had to give way, and since 1867 this principle is to be found in all extradition treaties of Russia with other Powers, that with Spain of 1888 excepted. It is due to the stern att.i.tude of Great Britain, Switzerland, Belgium, France, and the United States that the principle has conquered the world. These countries, in which individual liberty is the very basis of all political life, and const.i.tutional government a political dogma of the nation, watched with abhorrence the methods of government of many other States between 1815 and 1860. These Governments were more or less absolute and despotic, repressing by force every endeavour of their subjects to obtain individual liberty and a share in the government. Thousands of the most worthy citizens and truest patriots had to leave their country for fear of severe punishment for political crimes. Great Britain and the other free countries felt in honour bound not to surrender such exiled patriots to the persecution of their Governments, but to grant them an asylum.

[Sidenote: Difficulty concerning the Conception of Political Crime.]

-- 334. Although the principle became and is generally[686] recognised that political criminals shall not be extradited, serious difficulties exist concerning the conception of "political crime." Such conception is of great importance, as the extradition of a criminal may depend upon it. It is unnecessary here to discuss the numerous details of the controversy. It suffices to state that whereas many writers call such crime "political" as was committed from a political motive, others call "political" any crime committed for a political purpose; again, others recognise such crime only as "political" as was committed from a political motive and at the same time for a political purpose; and, thirdly, some writers confine the term "political crime" to certain offences against the State only, as high treason, _lese-majeste_, and the like.[687] To the present day all attempts have failed to formulate a satisfactory conception of the term, and the reason of the thing will, I believe, for ever exclude the possibility of finding a satisfactory conception and definition.[688] The difficulty is caused through the so-called "relative political crimes" or _delits complexes_--namely, those complex cases in which the political offence comprises at the same time[689] an ordinary crime, such as murder, arson, theft, and the like.

Some writers deny categorically that such complex crimes are political; but this opinion is wrong and dangerous, since indeed many honourable political criminals would have to be extradited in consequence thereof.

On the other hand, it cannot be denied that many cases of complex crimes, although the deed may have been committed from a political motive or for a political purpose, are such as ought not to be considered political. Such cases have roused the indignation of the whole civilised world, and have indeed endangered the very value of the principle of non-extradition of political criminals. Three practical attempts have therefore been made to deal with such complex crimes without violating this principle.

[Footnote 686: See, however, below, -- 340, concerning the reactionary movement in the matter.]

[Footnote 687: See Mettgenberg, "Die Attentatsklausel im deutschen Auslieferungsrecht" (1906), pp. 61-76, where a survey of the different opinions is given.]

[Footnote 688: According to Stephen, "History of the Criminal Law in England," vol. II. p. 71, political crimes are such as are identical to and form a part of political disturbances.]

[Footnote 689: The problem came twice before the English courts; see _Ex parte_ Castione, L.R. [1891] 1 Q.B. 149, and _In re_ Meunier, L.R.

[1894] 2 Q.B. 415. In the case of Castione, a Swiss who had taken part in a revolutionary movement in the canton of Ticino and had incidentally shot a member of the Government, the Court refused extradition because the crime was considered to be political. On the other hand, in the case of Meunier, a French anarchist who was prosecuted for having caused two explosions in France, one of which resulted in the death of two individuals, the extradition was granted because the crime was not considered to be political.]

[Sidenote: The so-called Belgian _Attentat_ Clause.]

-- 335. The first attempt was the enactment of the so-called _attentat_ clause by Belgium in 1856,[690] following the case of Jacquin in 1854. A French manufacturer named Jules Jacquin, domiciled in Belgium, and a foreman of his factory named Celestin Jacquin, who was also a Frenchman, tried to cause an explosion on the railway line between Lille and Calais with the intention of murdering the Emperor Napoleon III. France requested the extradition of the two criminals, but the Belgian Court of Appeal had to refuse the surrender on account of the Belgian extradition law interdicting the surrender of political criminals. To provide for such cases in the future, Belgium enacted in 1856 a law amending her extradition law and stipulating that murder of the head of a foreign Government or of a member of his family should not be considered a political crime. Gradually all European States, with the exception of England and Switzerland, have adopted that _attentat_ clause, and a great many Continental writers urge its adoption by the whole of the civilised world.[691]

[Footnote 690: See details in Mart.i.tz, op. cit. II. p. 372.]

[Footnote 691: See Mettgenberg, op. cit. pp. 109-114.]

[Sidenote: The Russian Project of 1881.]

-- 336. Another attempt to deal with complex crimes without detriment to the principle of non-extradition of political criminals was made by Russia in 1881. Influenced by the murder of the Emperor Alexander II.

in that year, Russia invited the Powers to hold an International Conference at Brussels for the consideration of the proposal that thenceforth no murder or attempt to murder ought to be considered as a political crime. But the Conference did not take place, since Great Britain as well as France declined to take part in it.[692] Thus the development of things had come to a standstill, many States having adopted, others declining to adopt, the Belgian clause, and the Russian proposal having fallen through.

[Footnote 692: See details in Mart.i.tz, op. cit. II. p. 479.]

[Sidenote: The Swiss Solution of the Problem in 1892.]

-- 337. Eleven years later, in 1892, Switzerland attempted a solution of the problem on a new basis. In that year Switzerland enacted an extradition law whose article 10 recognises the non-extradition of political criminals, but at the same time lays down the rule that political criminals shall nevertheless be surrendered in case the chief feature of the offence wears more the aspect of an ordinary than of a political crime, and that the decision concerning the extraditability of such criminals rests with the "Bundesgericht," the highest Swiss Court of Justice. This Swiss rule contains a better solution of the problem than the Belgian _attentat_ clause in so far as it allows the circ.u.mstances of the special case to be taken into consideration. And the fact that the decision is taken out of the hands of the Government and transferred to the highest Court of the country, denotes likewise a remarkable progress.[693] For the Government cannot now be blamed whether extradition is granted or refused, the decision of an independent Court of Justice being a certain guarantee that an impartial view of the circ.u.mstances of the case has been taken.[694]

[Footnote 693: See Langhard, "Das Schweizerische Auslieferungsrecht"

(1910), where all the cases are discussed which have come before the Court since 1892.]

[Footnote 694: It ought to be mentioned that the Inst.i.tute of International Law at its meeting at Geneva in 1892 (see Annuaire, XII.

p. 182) adopted four rules concerning extradition of political criminals, but I do not think that on the whole these rules give much satisfaction.]