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-Fodéré, III. Nos. 1871-1873—Mérignhac, II. pp. 754-771—Soldan, "L'extradition des criminels politiques" (1882)—Martitz, "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.
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 Constitution 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 constitutional 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 passion 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.
[682] I follow in this section for the most part the summary of the facts given by Martitz, op. cit. II. pp. 134-184.
[683] Martitz, op. cit. II. p. 177, gives a list of important extraditions of political criminals which took place between 1648 and 1789.
[684] So Grotius, II. c. 21, § 5, No. 5.
[685] H. Provó 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 lèse-majesté, 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 Municipal 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 Municipal 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 municipal 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 attitude 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 constitutional 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.
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, lèse-majesté, 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 délits 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.