Section D. Political offence exception to extradition
Extradition Treaty between Brazil and Peru
Article IV of the 1919 Extradition Treaty between Brazil and Peru provides that “extradition for political offences” shall not take place. Under the same provision, “acts committed during insurrection or civil war” are not extraditable offences, unless they constitute “barbarous acts or acts of vandalism prohibited by the laws of war”.
Article VII of the 1948 Genocide Convention provides:
Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition.
The Contracting parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
European Convention on Extradition
Article 3(1) of the 1957 European Convention on Extradition provides: “Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.”
Extradition Treaty between Venezuela and Chile
Article 4(5) of the 1962 Extradition Treaty between Venezuela and Chile provides: “In no case may genocide [and] acts of terrorism … be considered political crimes.”
International Convention on the Suppression and Punishment of the Crime of Apartheid
Article XI of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid provides that practices of apartheid “shall not be considered political crimes for the purpose of extradition”.
Additional Protocol to the European Convention on Extradition
Article 1 of the 1975 Additional Protocol to the European Convention on Extradition specifies:
For the application of Article 3 of the Convention, political offences shall not be considered to include the following:
a. the crimes against humanity specified in the [1948 Genocide Convention];
b. the violations specified in Article 50 of [the 1949 Geneva Convention I], Article 51 of [the 1949 Geneva Convention II], Article 130 of [the 1949 Geneva Convention III] and Article 147 of [the 1949 Geneva Convention IV];
c. any comparable violations of the laws of war having effect at the time when this Protocol enters into force and of customs of war existing at that time, which are not already provided for in the above-mentioned provisions of the Geneva Conventions.
Extradition Treaty between Spain and Argentina
Article 5(1) of the 1987 Extradition Treaty between Spain and Argentina stipulates: “Extradition shall not be granted for political offences or offences related to offences of such a nature.” It provides, however, that “b) acts of terrorism [and] c) war crimes and crimes which are committed against the peace and security of mankind” shall not be considered political crimes.
Extradition Treaty between Peru and Spain
According to Article 5 of the 1989 Extradition Treaty between Peru and Spain, extradition shall not be granted “with regard to offences considered to be political or connected with offences of such a nature”. It provides, however, that “in no case shall … b) acts of terrorism, c) war crimes and crimes committed against the peace and security of mankind” be deemed political offences.
Extradition Treaty between Chile and Spain
Article 5(1) of the 1992 Extradition Treaty between Chile and Spain provides: “Extradition shall not be granted for political offences or offences related to offences of such a nature.” It provides, however, that “b) acts of terrorism [and] c) war crimes and crimes which are committed against the peace and security of mankind, in conformity with international law” shall in no case be considered political crimes.
Extradition Treaty between Australia and Chile
Article IV(1) of the 1993 Extradition Treaty between Australia and Chile provides:
Extradition shall not be granted: … if the offence for which extradition is requested is a political offence … To the effect of this paragraph, reference to political offences does not include: … b) war crimes and crimes committed against the peace and security of mankind, in conformity with international law.
Inter-American Convention on the Forced Disappearance of Persons
Article V of the 1994 Inter-American Convention on the Forced Disappearance of Persons provides that “the forced disappearance of persons shall not be considered a political offense for purposes of extradition” and “shall be deemed to be included among the extraditable offenses in every extradition treaty entered into between States Parties”.
Extradition Treaty between Argentina and the United States of America
Article 4 of the 1997 Extradition Treaty between Argentina and the United States of America provides:
1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.
2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:
(b) an offense for which both Parties have the obligation, pursuant to a multilateral international agreement on genocide, acts of terrorism, … or other crimes, to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution;
3. Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be granted if the competent authority of the Requested State determines that the request was politically motivated.
4. The Requested State may refuse extradition for offenses under military law that are not offenses under ordinary criminal law.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 20 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property, concerning “Grounds for refusal” of extradition and mutual legal assistance, which, according to its Article 22(1), also applies to armed conflicts not of an international character, provides:
1. For the purpose of extradition, offences set forth in Article 15 sub-paragraphs 1 (a) to (c), and for the purpose of mutual legal assistance, offences set forth in Article 15 shall not be regarded as political offences nor as offences connected with political offences nor as offences inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such offences may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.
2. Nothing in this Protocol shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance if the requested Party has substantial grounds for believing that the request for extradition for offences set forth in Article 15 sub-paragraphs 1 (a) to (c) or for mutual legal assistance with respect to offences set forth in Article 15 has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons.
Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
1. For the purposes of extradition between States Parties, the offence of enforced disappearance shall not be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition based on such an offence may not be refused on these grounds alone.
New Zealand’s Military Manual (1992) states with respect to the prosecution of alleged war criminals:
If the Party concerned does not institute proceedings against offenders, it may, subject to the provisions of its own law, hand such persons over for trial by any party to the Conventions which has made out a prima facie case. This reference to the local law makes the procedure subject to local extradition legislation and some countries are likely to argue that war criminals acting on governmental instruction are political offenders immune from extradition. This argument was expressly rejected by the Ghana Court of Appeal in Ex p. Schumann
(1949) … when put forward to contest an extradition application in respect of a doctor involved in the extermination programme at the Auschwitz concentration camp. [The 1977 Additional Protocol I] Art. 88 requires the parties to assist one another in connection with grave breaches, including cooperation in matters of extradition.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958), in a footnote related to the provision on extradition of war criminals, states:
An accused person is not to be surrendered if the offence in respect of which his surrender is demanded is one of a political character or if he proves that the request for surrender has been made with a view to try or punish him for an offence of a political nature.
Argentina’s Law on International Cooperation in Criminal Matters (1997) provides that extradition shall not take place in case of political offences.
However, the Law also states that the following crimes are not considered to be political offences: war crimes and crimes against humanity or illegal acts against internationally protected persons; illegal acts against the population or innocent civilians not involved in the violence caused by an armed conflict; and crimes for which Argentina, as a signatory to an international convention, has assumed the obligation to extradite or prosecute.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states that a requirement for extradition includes “that the offence on the basis of which the extradition has been requested is not a political or military criminal offence”.
Brazil’s Law on the Legal Status of Foreigners (1980), as amended in 1981, states:
Article 77. Extradition shall not be granted when:
VII - the act [based on which the extradition is requested] constitutes a political offence;
§ 1° The exception provided for in article VII shall not hinder the extradition when the act constitutes mainly an ordinary crime, or when the ordinary crime, although connected to a political offence, constitutes the main fact.
§ 2º The Supreme Federal Court is the only competent body to assess the nature of the crime.
§ 3° The Supreme Federal Court may find that [the following acts] do not constitute political offences: attacks against heads of State or any authorities, acts of anarchism, terrorism, sabotage, kidnapping, or acts which constitute war propaganda or propaganda in favour of the use of violence for subverting the political or social order.
Cameroon’s Criminal Procedure Code (2005) provides:
Conditions of Extradition
(1) Any act serving as a ground for extradition shall:
(b) by Cameroonian law, constitute an ordinary law offence;
(c) from the circumstances and facts show that extradition is not requested for political, religious or racial reasons, or based on the nationality of the persons concerned.
(2)(a) Felonies and misdemeanours which are not directed against any kind of government shall be considered as common law offences and may justify extradition.
(b) Offences of universal jurisdiction provided by international conventions and ratified by Cameroon shall be considered as ordinary law offences.
(1)(a) Felonies and misdemeanours directed against the Constitution, the sovereignty of the State and Public Authorities shall be considered as political offences, for which extradition shall not be granted.
(b) The assessment of the political, religious or racial nature or reasons, or of the grounds for citizenship, for the application shall lie with the government to which the application is made.
(c) Where the offence is in itself political, religious or racial or based on citizenship, it shall be left to the requesting State to prove the contrary.
(2) The following shall also be considered as basis for which extradition may not be granted:
(b) offences that are related to political, religious and racial offences, or based on citizenship.
Canada’s Extradition Act (1999), as amended to 2005, states:
46. (1) The Minister [of Justice] shall refuse to make a surrender order if the Minister is satisfied that
(b) the conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; …
(c) the conduct in respect of which extradition is sought is a political offence or an offence of a political character.
(2) For the purpose of subparagraph (1)(c), conduct that constitutes an offence mentioned in a multilateral extradition agreement for which Canada, as a party, is obliged to extradite the person or submit the matter to its appropriate authority for prosecution does not constitute a political offence or an offence of a political character. The following conduct also does not constitute a political offence or an offence of a political character:
(a) murder or manslaughter;
(b) inflicting serious bodily harm;
(c) sexual assault;
(d) kidnapping, abduction, hostage-taking or extortion;
(e) using explosives, incendiaries, devices or substances in circumstances in which human life is likely to be endangered or serious bodily harm or substantial property damage is likely to be caused; and
(f) an attempt or conspiracy to engage in, counselling, aiding or abetting another person to engage in, or being an accessory after the fact in relation to, the conduct referred to in any of paragraphs (a) to (e).
The grounds for refusal set out in section … 46 … do not apply in the case of a person who is the subject of a request for surrender by the International Criminal Court.
Central African Republic
The Central African Republic’s Penal Procedure Code (2010) states: “Extradition is not granted: … [w]hen the crime or offence has a political nature or when the extradition request has political motives”.
The Code also states: “For the purpose of extradition and judicial cooperation: … offences … against persons benefitting from international protection … are not considered political offences or to have a political motive.”
Colombia’s Penal Code (2000) provides: “Extradition proceedings will not be taken with regard to political offences.”
Colombia’s Criminal Procedure Code (2004) states: “Extradition must not proceed for political crimes.”
Under Croatia’s Code (1993) of Criminal Procedure, the Minister of Justice will not allow extradition for a political offence.
Germany’s Law on International Legal Assistance in Criminal Matters (1982) states:
Part Two – Extradition to a foreign country
§ 6 Political offences, …
(1) Extradition is not permissible for a political offence or an offence connected with such an offence. It is permissible if the person wanted is prosecuted or has been convicted for … genocide, murder or homicide or for the participation therein.
Germany’s Law on International Legal Assistance in Criminal Matters (1982), as amended in 2006, states:
Part Two – Extradition to a foreign country
§ 6 Political offences, …
(1) Extradition is not permissible for a political offence or an offence connected with such an offence. It is permissible if the person wanted is prosecuted or has been convicted for … genocide, murder or homicide or for the participation therein.
Part Eight – Assistance to Member States of the European Union
§ 82 Non-application of provisions
[§] 6 paragraph 1 … [is] not applied.
Iraq’s Constitution (2006) states: “A law shall regulate the right of political asylum in Iraq. No political refugee shall be surrendered to a foreign entity or returned forcibly to the country from which he fled.”
Ireland’s Extradition Act (1965), as amended in 1994, states: “Extradition
shall not be granted for an offence which is a political offence
or an offence connected with a political offence
(emphasis in original)
Italy’s Constitution (1947), as amended, provides:
(1) The extradition of a citizen may be permitted only in such cases as are expressly provided for in international conventions.
(2) In no instance shall it be permitted for political offences.
Japan’s Law on Extradition (1953), as amended in 2004, states:
A fugitive shall not be surrendered in any of the following circumstances …:
(1) When the offence for which extradition is requested is a political offence;
(2) When the request for extradition is deemed to have been made with a view to trying or punishing the fugitive for a political offence which he has committed.
Luxembourg’s Law on the Punishment of Grave Breaches (1985), in a part dealing with the conditions for a possible extradition of war criminals, states: “The crimes provided for in Article 1 [i.e. grave breaches of the 1949 Geneva Conventions] are neither considered to be political crimes nor acts connected with similar crimes.”
The International Crimes Act (2003) of the Netherlands states:
The crimes defined in this Act [genocide, crimes against humanity, war crimes and torture] shall be deemed not to be offences of a political nature for the purposes of the Extradition Act or the [Act on the Surrender of Persons Suspected of War Crimes as amended].
Nigeria’s Extradition Act (1967) states that a “fugitive criminal shall not be surrendered if the Attorney-General or a court dealing with the case is satisfied that the offence in respect of which his surrender is sought is an offence of a political character”.
Under Peru’s Constitution (1979), political offences are not extraditable offences. Acts of terrorism, murder of high-ranking officials (magnicidio
) and acts of genocide are not to be considered as political offences.
Peru’s New Code of Criminal Procedure (2004) states
2. An extradition shall not take place if:
e) The crime is exclusively military in nature, … political or related to politics, the press or [public] opinion. The fact that the victim of the offence exercised a public function does not in itself justify regarding the offence as political. The fact that the person to be extradited used to hold public office does not necessarily politicize the offence either. The following shall not be considered political crimes: terrorism, crimes against humanity, and offences for which Peru is obliged by an international treaty to prosecute or extradite.
Portugal’s Law on International Judicial Cooperation in Criminal Matters (1999), as amended in 2001, provides that extradition and other forms of cooperation are excluded “where there are well-founded reasons for believing that cooperation is sought for the purpose of persecuting or punishing a person on account of that person’s … political or ideological beliefs”.
The Law further provides:
1. A request for co-operation shall also be refused where the proceedings concern:
a) Any facts that, according to the concepts of Portuguese law, constitute a political offence or an offence connected with a political offence;
b) any facts that constitute a military offence and do not constitute an offence under ordinary criminal law.
2. The following shall not be regarded as political offences:
a) genocide, crimes against humanity, war crimes and serious offences under the [1949 Geneva Conventions];
b) the offences mentioned in Article 1 of the [1977 European Convention on the Suppression of Terrorism];
c) the acts mentioned in the [1984 Convention against Torture];
d) any other offences that ought not to be regarded as political under the terms of an international treaty, convention or agreement to which Portugal is a Party.
Rwanda’s Penal Code (1977) does not permit extradition for political offences.
Senegal’s Law on Extradition (1971) states:
The extradition is not accorded:
(2) if the crime or offence is of a political character or if it is clear from the circumstances that the extradition is demanded for political purposes. Regarding acts committed in the course of an insurrection or a civil war by one of the parties … they can only result in extradition if they constitute … [serious violations of the laws of war] and the civil war [or insurrection] is over.
Sierra Leone’s Extradition Act (1974) states:
PART II—SPECIAL PROVISIONS TO COMMONWEALTH COUNTRIES
15. Circumstances precluding return.
(1) … [E]xtradition shall not be granted if in the circumstances of the particular case it appears to the Attorney-General that –
a. the offence is an offence of a political character;
PART III—SPECIAL PROVISIONS APPLYING TO THE REPUBLIC OF GUINEA
22. In the case of the Republic of Guinea and such other countries as may from time to time be listed in the Second Schedule the provisions of Part I shall apply subject to the following conditions, limitations and modifications –
a. in any case where extradition is requested for a non-political crime it shall not be granted unless –
i. the crime was committed in the Republic of Guinea; and
ii. the fugitive criminal has not been, and is not liable to be, punished in Sierra Leone for that crime, and
b. in all cases, extradition shall be granted only in respect of a crime which (due regard being had to differences between the legal systems of the respective countries) corresponds to a crime punishable under the criminal law of Sierra Leone. …
PART IV—SPECIAL CONDITIONS APPLYING TO THE COUNTRIES LISTED IN THE THIRD SCHEDULE
23. Special conditions applying to countries listed in the Third Schedule.
In the case of the countries listed in the Third Schedule the provisions of Part I shall apply subject to the following conditions, limitations and modifications –
b. extradition shall not be granted for any offence which appears to the Attorney-General to be of a political character.
Spain’s Law on Passive Extradition (1985) provides:
Extradition will not be granted in the following cases:
1. When it concerns offences of a political character, which does not include acts of terrorism [and] crimes against humanity aimed at in the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly of the United Nations …
2. When it concerns military offences classified as such by Spanish legislation, without prejudice, however, to what is established by International Conventions signed and ratified by Spain.
Switzerland’s Federal Act on International Mutual Assistance (1981), as amended to 2010, states:
1. A request [for criminal cooperation including the extradition of persons who are the subject of criminal prosecution or have been convicted] shall not be granted if the subject of the proceedings is an act which, in the Swiss view, is of a predominantly political nature, constitutes a violation of the obligation to perform military or similar service, or appears to be directed against the national security or military defence of the requesting State.
2. The plea that an act is of a political nature shall not be taken into account under any circumstances:
a. in cases of genocide;
b. in cases of crimes against humanity;
c. in cases of war crimes; or
d. if the act appears particularly reprehensible because the offender, for the purpose of extortion or duress, has endangered or threatened to endanger the life or limb of persons, especially by hijacking aircraft, using means of mass extermination, causing a catastrophe or taking hostages.
[footnotes in original omitted]
Venezuela’s Penal Code (2005) states: “A foreign national may not be extradited for political crimes or violations connected to such crimes, nor for any act that is not defined as a crime under Venezuelan laws.”
Zimbabwe’s Extradition Act (1982) provides: “No extradition to a designated country shall take place … if the offence for which the extradition is requested is an offence of a political character.”
In the Bohne case
in 1966, in which extradition was requested for crimes related to the execution of mentally ill patients during Germany’s Nazi regime, Argentina’s Supreme Court of Justice emphasized: “Neither claims for political reasons nor arguments based on supposed military necessity shall be admitted as grounds for the denial of extradition for criminal acts which clearly contravene the common opinion of civilized peoples.”
In 2009, in the Battisti extradition case, the Plenary Court of Brazil’s Supreme Federal Court was called upon to decide on the extradition of Cesare Battisti, requested by Italy. The Court held that the crimes based on which the extradition had been requested were not political offences but ordinary crimes, and granted the requested extradition, subject to the discretionary decision of the President of the Republic. Regarding the political offence exception to extradition, Justice Cesar Peluzo, rapporteur of the case, stated:
[T]he crimes for which … [Battisti] had been convicted [in Italy] are characterized by an absolute lack of political motivation, intense premeditation, extreme violence and severe social intimidation. The nature of such crimes does not correspond in any way to the concept of political offence which impedes the extradition of foreign citizens, at least according to the definitions consolidated in the precedents of this Court (Ext. n. 493, Rapporteur: Justice Sepúlveda Pertence, DJ of 03.08.1990; Ext n. 694, Rap. Just. Sydney Sanches, DJ of 22.08.1997; Ext n. 794, Rap. Just. Mauricio Correa, DJ of 24.05.2002 and Ext n. 994, Rap. Just. Marco Aurélio, DJ of 04.08.2006).
I am aware that the extreme violence or exceptional cruelty which characterized the ordinary crimes attributed to the sought person would not alone be sufficient for the extradition to be granted. Particularly if, despite having had other persons as victims, these crimes had resulted from a political action conceived in the context of a fighting against a totalitarian regime, whether within a commotion, political rebellion, civil war or analogous circumstances.
This hypothesis was exhaustively analysed by this Court in the judgment Ext. n. 493 (Rapporteur: Justice Sepúlveda Pertence). Justice [Sepúlveda Pertence] … stated in his vote:
… For a long time, it was understood that ordinary crimes, including violent ones, if committed in the course of a rebellion, were characterized by the political nature which was essential to such rebellion … [This view] was supported by all European countries which, between 1872 and 1876, refused to extradite to France the rebels of the Commune who were wanted for objectively ordinary crimes, such as robbery and murder.
86. Dated from that time is … the statement from Stuart Mill in his famous speech before the House of Commons: … “A political offense is any offense committed in the course [or] furthering [of] civil war, insurrection or political commotions”.
87. But it is also certain that it has been about a century, as Jiménez de Asúa demonstrated, … “that there has been a persistent tendency to exclude the most severe crimes from political offences, even when they have a political objective or connection”, including murder, the most severe injuries and, in general, the cruelest [acts] of personal violence.
88. This exclusion, however, is never absolute. Acts committed in the fighting within the context of a rebellion or civil war have been systematically considered not to be covered by such exclusion, … unless they are prohibited by the customs of war.
89. As documented by Quadri … , in September 180, the Institute of International Law, in a meeting in Oxford, adopted a resolution according to which, “the acts which have all the characteristics of ordinary crimes (murder, arson, robbery) shall not be excluded from extradition due only to the political intention of the perpetrators”, but … in order to assess the acts committed in the course of a political rebellion, an insurgency or a civil war, “one should consider whether such acts would be accepted or not by the customs of war”.
90. The topic was revised by the Institute … [twelve] years later, in a meeting in Geneva, which led to the adoption of the resolution of 8 September 1892 … [according to which] … there should only be extradition for acts committed in the course of an insurgency or civil war by one of the parties involved and in the interest of its cause – and only once the civil war has ended – , if they constitute heinous barbarous acts or acts prohibited by the laws of war …
91. This formula was later adopted with the same wording in the famous French extradition law of 1927 … , and was subsequently adopted in several conventions.
93. The formula of the Institute of International Law, of 1892, … was criticized for its … overly casuistic and … restrictive approach in the Study on Political Offences, of 1960, by the Inter-American Juridical Committee …
94. Thus, the … Inter-American Juridical Committee made the following proposal to the XI Inter-American Conference, which was adopted by … [this] Court [in the extradition case n. 232 (Cuba)] … :
“1) Political offences are those offences against the organization and functioning of the State.
2) Political offences are [also those] offences which are connected to the above ones. Connection exists when the offence aims at (i) implementing or facilitating the offence mentioned in item (1) above, (ii) achieving impunity for political offences.
3) Barbarous crimes and vandalism, as well as any offences which exceed the lawful limits in attacking and defending, are not political offences.
4) Genocide is not a political offence, pursuant to the United Nations convention.”
Well, the [present] case does not involve … the same elevated political purposes according to which the Court rejected the extradition request in … [the above-mentioned] case. In that case, the crimes of murder attributed to the invaders of the La Tablada barracks were “an inevitable outcome of the violence in combat dictated by the necessities of the rebel action or of the resistance to it”; they did not exceed, in the light of the rules of war, “the lawful limits in attacking and defending”, nor can they be characterized as “barbarous crimes and vandalism”.
The wilful murders committed with premeditation by the person whose extradition was requested [in the present case] are not related … to the altruistic purposes which characterize those political movements directed at implementing a new economic and social order. They reveal rather a simple intention of personal vengeance.
United Kingdom of Great Britain and Northern Ireland
In 2010, in the Ganić case before the UK City of Westminster Magistrates’ Court, the Government of the Republic of Serbia sought the extradition of Ejup Ganić in respect of offences said to have been committed during the international armed conflict in Bosnia and Herzegovina in May 1992. The Court stated:
4. … Under the terms of the Criminal Code of the Socialist Federal Republic of Yugoslavia, which applied to Serbia at the relevant time, Article 143 (War Crimes against the Wounded and Sick) was punishable by a term of imprisonment of not less than 5 years or by capital punishment; Article 146 (the Unlawful Killing and Wounding of the Enemy) was punishable by imprisonment of not less than 1 year and Article 148 (the Use of prohibited means of warfare) was punishable by a term of imprisonment of not less than 1 year. Similar conduct which would give rise to allegations of grave crimes would be prosecuted in the United Kingdom under the Geneva Conventions Act 1957 and all such offences carry more than 12 months imprisonment.
5. If the conduct amounts to a grave crime under the  Geneva Conventions, I am satisfied that such offences would have been punishable by virtue of Criminal Code of the Socialist Federal Republic of Yugoslavia by imprisonment of not less than 12 months imprisonment. I am also satisfied that Section 196 of the Extradition Act 2003 would have applied had there not been any law in force in respect of the time and place where the conduct was alleged to have occurred, which would have rendered the conduct an Extradition offence.
6. Therefore, if the conduct in this case is capable of amounting to one or more of the grave breaches of the Geneva Conventions 1949, the conduct would amount to an extraditable offence.
The Court summarized the alleged offences as follows:
On 2nd May 1992, in the absence of the President, the defendant, in the capacity of Acting President of the Presidency of Bosnia and Herzegovina, personally commanded an attack on the military hospital, the JNA Officers’ Club and a column of medical vehicles. On the 3rd May 1992 … [it is] alleged that the defendant personally issued the command to start an attack on JNA [Yugoslav People’s Army] column in Dobroviljacka Street (Volunteers Street).
The Court further held that it is “entirely clear that the events in Sarajevo on the 2nd and 3rd May 1992 and in the weeks prior to that weekend amounted to an international armed conflict.”
The Court also stated:
11. If the defendant was responsible for giving the command for an attack upon the military hospital in Sarajevo and the command for the attack on the medical vehicles on the 2nd May these would amount to allegations of grave crimes under the Geneva Convention[s] and are therefore extradition offences.
12. It is alleged that the defendant in his capacity as Acting President of Bosnia and Herzegovina personally commanded the attack upon the JNA Officers’ Club. There is nothing in the request to indicate why in an international armed conflict such an attack would constitute a grave crime contrary to the Geneva Conventions. I therefore find that no war crime is committed by the attack on the JNA Officers’ Club.
13. The following day a group of 30 JNA vehicles left the officers’ club to restore President Izetbegovic to the Bosnian Presidency. It was also seized upon an opportunity to arrange for the evacuation of JNA forces and military equipment from the officers’ club to a destination outside the city. There is nothing within the request which would bring the conduct alleging issuing a command to attack a military convoy within the meaning of a grave breach of the Geneva Conventions 1949. However there is a reference to an Ambulance within the convoy and the request alleges that Dr Ganic expressly ordered an attack upon the Ambulance within the convoy. To that limited extent I am satisfied that the conduct alleges an extradition offence. I am not satisfied that the rest of the convoy had any right to protection or that the soldiers in the 30 vehicles were prisoners of war.
The Court further noted:
[An] investigation … [had been] carried out on behalf of the ICTY and acting upon a report from their investigators and prosecutors it was the ICTY that [had] concluded that there was no case against Dr Ganic. … The Bosnian War Crimes Office also established itself on an international basis and it was to investigate crimes alleged to have been committed within the State of Bosnia. That enquiry also concluded that there was no case against Dr Ganic. It is in my view not sufficient for the War Crimes Prosecutor in Serbia merely to say that they take a different view of the evidence where a decision has been made by the ICTY.
The Court held that “there is no valid justification for commencing proceedings against Dr Ganic. … [T]hese proceedings are brought and are being used for political purposes and as such amount to an abuse of the process of this court.”
The Court therefore held that “extradition is barred by reason of extraneous considerations by virtue of Section 81(a) and (b) in due course I will be ordering that the defendant be discharged.”
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
[A]rticle 391 of the Penal Procedure Code provides: “Extradition is governed by the provisions of this Title, by the treaties, conventions and international agreements of which the Republic is a party”.
… [T]he Bolivarian Republic of Venezuela and the Republics of Bolivia, Colombia, Ecuador and Peru signed the Bolivarian Extradition Agreement on 18 July 1911 in Caracas … [which provides in Article 4]:
The extradition of a fugitive will not be granted if the act of which he or she is accused is considered a political crime or related to it in the requiring State, and no person will be handed over by any Contracting State to another, prosecuted or punished for a political crime or offence or any related acts committed prior to extradition. Extradition will also not be granted if the person being requested [in extradition] proves that the [request] has been made with the purpose of prosecuting or punishing him or her for a political crime or an act connected with it.
If a question arises on whether a case falls within this provision, it will be the final decision of the authorities of the State to which the request has been made or that has granted the extradition.
[emphasis in original]
In determining whether the facts of the case could be considered as political offences, which exclude extradition, the tribunal held:
Firstly, it must be noted that with regards to the extradition request based on the offences attributed to … [the accused] it has been reiterated by both his defence and by Venezuelan NGOs that these are political crimes. Thus, he is not extraditable and has the right to asylum.
A political crime is one that has a political motive … [R]ebellion … [is] the offence emblematic of political crimes, and one of which … [the accused] is accused for …
… [In order to determine whether an offence is a political crime] it is necessary to distinguish between two categories of political crimes: pure political crimes and relative political crimes.
Pure political crimes are those that are politically motivated, and only violate the rights of the State.
Relative political crimes are those that are politically motivated and violate the rights of the State, as well as private rights or the rights of individual persons.
This distinction between pure and relative political crimes gives rise to another, more profound, distinction between political crimes and social crimes.
Political crimes are those that affect the organization and interests of a State. Social crimes are those that affect social peace, human coexistence, and basic social institutions. … [F]or this reason, they are contrary to humanity and, therefore, contrary to all States.
These distinctions are exceedingly important when addressing the issue of whether all crimes for which a political motive is alleged, whether genuine or fictitious, shall merit … benefits [such as the impossibility of granting extradition].
Thus: if such an attack against innocent [persons] or private rights is carried out with such a violence and malicious intent that it causes unnecessary suffering, havoc and terror, it would [constitute the offence of] indiscriminate terrorism, namely [those acts] that are not selective when choosing their targets and expressly target the innocent.
Terrorism, and particularly indiscriminate terrorism, ignores the requirements of Humanitarian … law; it endangers innocent human lives and many times destroys them … Terrorism is not one of the political crimes meriting a benefit [such as the impossibility of granting extradition]. Such a benefit would go against [the interests of] justice, criminal law and the moral sense of people …
Terrorism is constituted by a series of conducts of grave inhumanity that are not considered political crimes and that must thus always give rise to extradition: it is inadmissible that a political motive would be sufficient to justify any type of crime. Political ends must not justify certain means of fighting. …
However, in the process of [granting] extradition, the Criminal Chamber clarifies that the offence of rebellion
is per se
[emphasis in original]
In concluding on whether extradition can be granted, the tribunal held:
[T]his Supreme Tribunal of Justice considers it pertinent to grant the extradition of … [the accused], requested by the Government of Colombia … for the offences of extortive kidnapping, seizure and diversion of aircraft, which … are not considered to be political [offences], nor connected with these …
Similarly, Article 271 of the Constitution provides:
Article 271.- In no case can the extradition of foreigners be denied [when they are] responsible for committing the offences of … international organized crimes, acts against the public heritage of other States and against human rights. …
The Chamber, in compliance with the abovementioned constitutional provision, expressly notes the following: the extradition of [the accused]
is not granted for the political offence of rebellion
. The extradition of [the accused]
is granted for the alleged commission of the ordinary offence of extortive kidnapping
, which … also constitutes, in general, [the offence of] international organized crimes, and of terrorism
[emphasis in original]
Bosnia and Herzegovina
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated: “Extradition is … not allowed for political or military criminal offences”.
In 2007, in its initial report to the Committee against Torture, Chad stated:
170. On the specific subject of refugees, article 46 of the Constitution states that: “The right of asylum is granted to foreign nationals within the conditions determined by law. The extradition of political refugees is prohibited.”
186. There are several instruments governing extradition in Chad, namely the Code of Criminal Procedure, the General Agreement of 12 September 1961 on Cooperation in Judicial Matters and the Franco-Chadian agreement (No. 138/CSM of 6 March 1976) on mutual legal assistance.
187. These instruments govern the conditions and effects of extradition and the procedures to be followed and, more generally speaking, cases in which extradition is not permitted.
188. Under article 447 of the Criminal Code, no extradition is permitted:
- When the crime or offence is of a political nature, or when it is apparent from the circumstances that extradition is being requested for political ends;
189. Similarly, article 44 of the 1961 General Convention does not permit extradition if the requested State considers that the offence in respect of which extradition is requested is of a political nature or related to an offence of that nature.
190. In the Franco-Chadian agreement the grounds given for rejection (fin de non-recevoir) of a request for extradition include the political nature of the offence concerned or a connection with such an offence.
191. By clearly stipulating, both in its legislation and through these two agreements (multilateral and bilateral), that political refugees may not be extradited, Chad protects such persons from trials which would be unfair and expose them to the risk of torture where political repression is particularly severe.
192. This protection even extends to extradited persons whose journey takes them through Chadian territory. Article 467 of the Code of Criminal Procedure provides that: “Extradition involving transit of a person of any nationality, handed over by another government, through Chadian territory, or by vessels of the Chadian maritime services, shall be authorized on request received through diplomatic channels accompanied by documentation necessary to establish that the crime is not of a political nature.”
The Report on the Practice of Croatia, with regard to the Code of Criminal Procedure’s provision prohibiting extradition for political offences, states:
The European Convention on Extradition and its Protocols are directly applicable in the Croatian legal system, judges as well as the Minister of Justice are bound by their provisions. Consequently war crimes, genocide and violations of the laws of war and customs of war should not be considered as political offences.
In 2010, in its initial report to the Committee against Torture, Djibouti stated:
118. … [Extradition agreements] … include a formal prohibition on extraditing a person for political or related offences …
119. Thus, article 4 of the extradition agreement between Djibouti and France stipulates that extradition shall not be granted when the offence in respect of which it is requested is considered by the requested State to be a political offence or an act connected with such an offence.
In 1971, during a debate in the Third Committee of the UN General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the representative of France stated that “in France war crimes were not regarded as political crimes and that perpetrators could be extradited in the same way as common offenders”.
In 2012, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Iraq stated:
Accused persons may be extradited to a requesting State in the event that an extradition treaty between the requesting State and the Government of the Republic of Iraq is in force, in accordance with the Code of Criminal Procedure (Act No. 23 of 1971) which prohibits extradition for political or military offences.
In 2003, in its third periodic report to the UN Committee against Torture, Morocco stated: “Extradition does not apply in the case of political offences, other than in a context of odious barbarity or civil war.”
In 2009, in its fourth periodic report to the Committee against Torture, Morocco stated: “Moroccan law does not exclude perpetrators of crimes of torture from extradition when a state with which Morocco has entered into a bilateral agreement … makes such a request. Exclusions only apply to political, military and customs offences.”
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated:
Under article 3 of the Extradition Act promulgated by Royal Decree No. 4/2000, it is prohibited to extradite a wanted person from another country in cases such as where the person wanted for extradition was granted the right of political asylum in the Sultanate before the extradition was requested and continues to enjoy that right after the request was made, or where the offence for which the person’s extradition is requested is political or political in nature or where the extradition is for a political purpose.
In 2005, in its initial report to the UN Committee against Torture, Qatar stated: “The bilateral conventions which Qatar has signed exclude certain offences, such as political and military offences, from the extradition process.”
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
I. Information on new measures and new developments relating to the implementation of the  Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]
Article 7 of the Convention
121. As a general rule, extradition is regulated in Senegal by Act No. 71-77 of 28 December 1971. Article 5 of this law lists the cases in which extradition shall not be granted:
(2) When the crime or offence is of a political nature or if the circumstances indicate that the extradition request is politically motivated. Acts committed during a rebellion or civil war by one of the parties involved in order to further its cause are extraditable only if they constitute acts of extreme barbarity or destructiveness prohibited by the laws of war and only after the civil war has ended[.]
Union of Soviet Socialist Republics
Upon signature of the 1959 European Convention on Mutual Assistance in Criminal Matters, the USSR declared that it would not consider a grave breach, as defined in the 1949 Geneva Conventions and the 1977 Additional Protocol I, or a violation of Articles 1–4 of the 1977 Additional Protocol II, as a “political offence” or “offences connected with a political offence”.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a written ministerial statement in the House of Commons, the UK Secretary of State for the Home Office stated regarding a new bilateral extradition treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America:
The new treaty also maintains the present position that political motivation cannot be used to block extradition in the case of terrorist or other violent crimes. The treaty stipulates that neither nationality nor statutes of limitations will be a bar to extradition.
In 1996, in a diplomatic communiqué issued in reaction to the events linked with the operation by the Movimiento Revolucionario Tupac Amaru (MRTA) at the residence of the Japanese ambassador in Peru, and to the release of two Peruvians whose extradition was requested, the President of Uruguay declared:
The release of the Peruvians Luis Samaniego and Silvia Gora, decided by the Third Criminal Appeals Court, was exclusively the act of the Judicial Power … [The appellate court] upheld the same criterion applied in previous court decisions concerning the application of the 1889 Montevideo Treaty on International Penal Law.
The President recognized the limitations of the extradition treaties, concluded over a century ago, that had governed Uruguay’s relations with third parties in this respect. He stated that the Executive Power had brought these rules up to date by signing new extradition treaties in 1996 with Argentina, Chile, Spain, France and Mexico, and by pursuing negotiations with other countries. These treaties excluded terrorism from the category of political offences.
In 2012, in its combined third and fourth periodic reports to the Committee against Torture, Venezuela stated:
Guiding principles on extradition in Venezuela
95. The main points are:
(c) Principle of non-extradition for political offences. The Criminal Code establishes definitively – and this has been confirmed by the Supreme Court Ballestas case, judgment of 10 December 2001] – that the extradition of a foreigner may not be granted for political offences or infringements connected with such offences.
118. It should be noted that the Venezuelan State has included in all the international extradition treaties signed and ratified by the Republic a clause stating that a person cannot be extradited for political offences.
[footnote in original omitted]
Council of Europe Parliamentary Assembly
In a resolution adopted in 1984 on enforced disappearances, the Council of Europe Parliamentary Assembly called on the governments of member States:
to support the preparation and adoption by the United Nations of a declaration setting forth the following principles: … enforced disappearance is a crime against humanity which … cannot be considered a political offence and is therefore subject to the extradition laws.