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treaties exempt fugitives accused of political offenses from the most part, able to find refuge in states which are sym-
extradition. Though the principle has been almost univer- pathetic to their particular "political" cause. 88
sally accepted, "political offenses" have never been pre- d. Nonextradition for Military Offenses. Strictly mili-
cisely defined. The first attempt to delineate the principle tary offenses such as desertion and absence without leave
was the "attentat" clause in many treaties, which pro- are as a general rule nonextraditable offenses. 89 a A mili-
vides that the murder of the head of a foreign government tary offense for purposes of extradition is one which is
or a member of his family is not to be considered a politi- punishable only under military law. It does not constitute
cal offense. 80 Some treaties extend the exclusion to any primarily an infraction of the ordinary penal law. Treaties
murder or attempt on life in general. 81 However, in usually use phrases such as "purely," "strictly," or "es-
1934, in the absence of such a clause in the applicable sentially" military offenses to delimit the type of offense
treaty, the Turin Court of Appeal refused to extradite the which is nonextraditable.
assassins of King Alexander of Yugoslavia to France on To fall within the exception of a "military offense," it
the ground that the crime was political. 82 must be shown that" . . . the acts charged do not con-
(1) In 1892, Switzerland adopted a law which pro- stitute a crime under the ordinary laws of the requesting
vided that a crime was not to be considered political if it state." 89 b The crime of murder, for example, would not
was primarily a common offense, even though it had a po- be considered a strictly military offense. As a Swiss Court
litical motivation or purpose. The decision on extradition stated in granting a French request for extradition, ". . .
was left to the highest Swiss Court. 83 Some treaties pro- murder has never been regarded as a 'purely military'
vide that ". . . [clriminal acts which constitute clear offense, because it affects human life and does not relate
manifestations of anarchism or envisage the overthrow of to military organization or military duties." 89 c Among
the bases of all political organizations" shall not be con- the other crimes that would be punishable by military
sidered political offenses. 84 British and American courts courts but which are not deemed to be "strictly military"
have held that for an offense to be political, it must be are violations of the laws of war.
committed in furtherance of a political movement or in
the course of a struggle to control the government of a 88. The U.N. has failed to take action on the recommendation of
several of its members that aircraft hijaclung and terrorist activities be
state. 85 However, this strict rule has been relaxed recently
considered as crimes resulting in automatic extradition.
to provide refuge for private individuals fleeing totalitarian 89 a .See, e.g., M. Bassiouni, International Extradition and World
states. 86 Treaties also frequently prohibit extradition for Public Order 430-33 (1974); S. Bedi, Extradition in International Law
purely military offenses. 87 and Practice 196 (1966); 4 G. Hackworth, Digest of International Law
(2) The inability to define "political offense" con- 192-93 (1942); 6 M. Whiteman, Digest of International Law 858-59
tinues to be of primary concern to the international com- (1968); Shamgar, Extradition for Military Offenses, in 2 L'Extradition
Pour Delits Militaires 201, 205 (1969); 1. Shearer, Extradition in Inter-
munity. Most treaties which speak to the extradition of in- national Law 9 (1971). A case illustrating this principle is In Re Girar-
dividuals who fall within the context of the agreements din,[1933-19341 Annual Digest of Intemational Law Cases 357 (No.
continue to grant states the right to unilaterally determine 153) (Camara Federal De La Plata, Argentina 1933). An example in a
whether the offense of which the accused is charged is, in treaty is the Convention on Extradition Between the United States of
fact, political in nature. Accordingly, individuals who hi- America and Sweden, Oct. 24, 1961, 14 U.S.T. 1845, T.I.A.S. No.
5496, 494 U.N.T.S. 141. Article V states that extradition shall not be
jack aircraft or engage in other terrorist activities are, for granted "[wlhen the offense is purely military." See York, Extradition
for Militaty Offenses, in 2 L'fitradition Pour Delits Militaires 273,
80. See, e.g., Treaty of Extradition Between the U.S. and, 275-76 (1969).
Venezuela, Jan. 19, 1922, Art. 3,43 Stat. 1698, T.S. 675,49 L.N.T.S. The principle stated above applies to fonnal extradition requests. It
435. should be noted that serviceman stationed in countries with which the
81. See. e.g., Extradition Treaty Between Italy and Finland, 1928, United States has a status of forces agreement canunder certain circum-
Art. 3(3), Ill L.N.T.S. 295. stance be transferred to the foreign country concerned for trial for cer-
82. In re Pavelie, [1933-341 Ann. Dig. No. 158 (Italy). tain limited offenses. This does not involve an extradition procedure
83. See 2 D. O'Connell, supra, note 55 at 802. since the transfer is basically made pursuant to the custody provisons of
84. Treaty of Extradition Between the U.S. and Brazil, Jan. 13, the status of forces agreement. Seee.g., Holmes v. Laird, 459 F.2d 121 1
1961, Art. V(6), 15 U.S.T. 2093, T.I.A.S. 5691, 532 U.N.T.S. 177. @.C. Cir. 1972), cert. denied, 409 U.S. 869 (1972); United States ex.
85. In re Castioni, 1 Q.B. 149, 156, 166 (1891); In re Ezeta, 62 F. rel. Stone v. Robinson, 309 F.Supp. (W.P.D. Pa. 1970), qffd, 431 F.2d
972, 999 (1894). 548 (3d Ci.1970); and William v. Rogers, 449 F.2d 513 (8th Cir.
86. See Reg. v. Governor of Brixton Prison, Ex parte Kolczynski, 1 1971); cert. denied, 405 U.S. 926 (1972).
Q.B. 540 (1954). For a discussion of political offenses, see Reg. v. 89 b. M. Bassioni, supra note 89, at 433. The distinction between
Governor of Brixton Prison, Ex parte Schtraks, A.C. 556, 581-84, strictly military offenses that are not extraditable and ordinary crimes
587-92 (H.L.) (1964); Garcia Mom, Crimes Against Humanity and the that are extraditable is made in the European Convention on Extradi-
Principle of Nonextradition of Political Offenders, 62 Mich. L. Rev. 927 tion, Dec. 13, 1957, Art. 4. E.T.S. No. 24,359 U.N.T.S. 273; The Inter
(1964); Harvard Research, Criminal Jurisdiction, supra, note 51, at American Convention on Extradition, Dec. 26, 1933, Art. 3, 165
107-19; Spanish-German Extradition Treaty case, Ann.Dig. No. 234 , L.N.T.S. 45; and the Harvard Research in International Law, Draft
(Germany 1926). Convention on Extradition, 29 Am. J. lntl L. Supp. 21, 119-122
87. See Convention on Extradition between the United States and (1935).
Sweden, Oct. 24, 1961, Art. V(4), 14 U.S.T. 1845, T.I.A.S. 5496,494 89 c .Ktir v. Ministere Public Federal, 34 Intemational Law Reports
U.N.T.S. 141. 143, 145 (Federal Tribunal, Switzerland 1961).