[692] See details in Martitz, op. cit. II. p. 479.
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 circumstances 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 circumstances of the case has been taken.[694]
[693] See Langhard, "Das Schweizerische Auslieferungsrecht" (1910), where all the cases are discussed which have come before the Court since 1892.
[694] It ought to be mentioned that the Institute 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.
Rationale for the Principle of Non-extradition of Political Criminals.
§ 338. The numerous attempts[695] against the lives of heads of States and the frequency of anarchistic crimes have shaken the value of the principle of non-extradition of political criminals in the opinion of the civilised world as illustrated by the three practical attempts described above to meet certain difficulties. It is, consequently, no wonder that some writers[696] plead openly and directly for the abolition of this principle, maintaining that it was only the product of abnormal times and circumstances such as were in existence during the first half of the nineteenth century, and that with their disappearance the principle is likely to do more harm than good. And indeed it cannot be denied that the application of the principle in favour of some criminals, such as anarchistic[697] murderers and bomb-throwers, could only be called an abuse. But the question is whether, apart from such exceptional cases, the principle itself is still to be considered as justified or not.
[695] Not less than nineteen of these attempts have been successful since 1850, as the following formidable list shows:—
Charles II., Duke of Parma, murdered on March 26, 1854.
Prince Danilo of Montenegro, murdered on August 14, 1860.