Chapter III: Individuals (3)

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.

[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, _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.

[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 Célestin 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 Martitz, 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 Martitz, 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 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]

[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 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.]

[Sidenote: 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.

[Footnote 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, " August 14, 1860.
President Abraham Lincoln, U.S.A., " April 14, 1865.
Prince Michael of Servia, " June 10, 1868.
President Balta of Peru, " July, 1872.
President Moreno of Ecuador, " August 6, 1872.
Sultan Abdul Assis of Turkey, " June 4, 1876.
Emperor Alexander II. of Russia, " March 13, 1881.
President Garfield, U.S.A., " July 2, 1881.
President Carnot of France, " June 24, 1894.
Shah Nazr-e-Din of Persia, " May 1, 1896.
Empress Elizabeth of Austria, " September 10, 1898.
King Humbert I. of Italy, " July 30, 1900.
President McKinley, U.S.A., " September 6, 1901.
King Alexander I. of Servia and
Queen Draga, " June 10, 1903.
King Carlos I. of Portugal and
the Crown Prince, " February 15, 1908.
President Caceres of San Domingo, " November 19, 1911.]

[Footnote 696: See, for instance, Rivier, I. p. 354, and Scott in A.J. III. (1909), p. 459.]

[Footnote 697: "... the party with whom the accused is identified ... namely the party of anarchy, is the enemy of all governments. Their efforts are directed primarily against the general body of citizens. They may, secondarily and incidentally, commit offences against some particular government, but anarchist offences are mainly directed against private citizens." (From the judgment of Cave, J. _In re_ Meunier, L.R. [1894] 2 Q.B. 419.)--See also Diena in R.G. II. (1905), pp. 306-336.]

Without doubt the answer must be in the affirmative. I readily admit that every political crime is by no means an honourable deed, which as such deserves protection. Still, political crimes are committed by the best of patriots, and, what is of more weight, they are in many cases a consequence of oppression on the part of the respective Governments. They are comparatively infrequent in free countries, where there is individual liberty, where the nation governs itself, and where, therefore, there are plenty of legal ways to bring grievances before the authorities. A free country can never agree to surrender foreigners to their prosecuting home State for deeds done in the interest of the same freedom and liberty which the subjects of such free country enjoy. For individual liberty and self-government of nations are demanded by modern civilisation, and their gradual realisation over the whole globe is conducive to the welfare of the human race.

Political crimes may certainly be committed in the interest of reaction as well as in the interest of progress, and reactionary political criminals may have occasion to ask for asylum as well as progressive political criminals. The principle of non-extradition of political criminals indeed extends its protection over the former too, and this is the very point where the value of the principle reveals itself. For no State has a right to interfere with the internal affairs of another State, and, if a State were to surrender reactionary political criminals but not progressive ones, the prosecuting State of the latter could indeed complain and consider the refusal of extradition an unfriendly act. If, however, non-extradition is made a general principle which finds its application in favour of political criminals of every kind, no State can complain if extradition is refused. Have not reactionary States the same faculty of refusing the extradition of reactionary political criminals as free States have of refusing the extradition of progressive political criminals?

Now, many writers agree upon this point, but maintain that such arguments meet the so-called purely political crimes only, and not the relative or complex political crimes, and they contend, therefore, that the principle of non-extradition ought to be restricted to the former crimes only. But to this I cannot assent. No revolt happens without such complex crimes taking place, and the individuals who commit them may indeed deserve the same protection as other political criminals. And, further, although I can under no circumstances approve of murder, can never sympathise with a murderer, and can never pardon his crime, it may well be the case that the murdered official or head of a State has by inhuman cruelty and oppression himself whetted the knife which cut short his span of life. On the other hand, the mere fact that a crime was committed for a political purpose may well be without any importance in comparison with its detestability and heinousness. Attempts on heads of States, such, for example, as the murders of Presidents Lincoln and Carnot or of Alexander II. of Russia and Humbert of Italy, are as a rule, and all anarchistic crimes are without any exception, crimes of that kind. Criminals who commit such crimes ought under no circumstances to find protection and asylum, but ought to be surrendered for the purpose of receiving their just and appropriate punishment.

[Sidenote: How to avoid Misapplication of the Principle of Non-extradition of Political Criminals.]

§ 339. The question, however, is how to sift the chaff from the wheat, how to distinguish between such political criminals as deserve an asylum and such as do not. The difficulties are great and partly insuperable as long as we do not succeed in finding a satisfactory conception of the term "political crime." But such difficulties are only partly, not wholly, insuperable. The step taken by the Swiss extradition law of 1892 is so far in advance as to meet a great many of the difficulties. There is no doubt that the adoption of the Swiss rule by all the other civilised States would improve matters more than the universal adoption of the so-called Belgian _attentat_ clause. The fact that according to Swiss law each case of complex political crime is unravelled and obtains the verdict of an independent Court according to the very circumstances, conditions, and requirements under which it occurred, is of the greatest value. It enables every case to be met in such a way as it deserves, without compromising the Government, and without sacrificing the principle of non-extradition of political criminals as a valuable rule. I cannot support the charge made by some writers[698] that the Swiss law is inadequate because it does not give criteria for the guidance of the Court in deciding whether or no extradition for complex crimes should be granted. In my opinion, the very absence of such criteria proves the superiority of the Swiss clause to the Belgian _attentat_ clause. On the one hand, the latter is quite insufficient, for it restricts its stipulations to murder of heads of States and members of their families only. But I see no reason why individuals guilty of any murder--as provided by the Russian proposal--or who have committed other crimes, such as arson, theft, and the like, should not be surrendered in case the political motive or purpose of the crime is of no importance in comparison with the crime itself. On the other hand, the Belgian clause goes too far, since exceptional cases of murder of heads of States from political motives or for political purposes might occur which do not deserve extradition. The Swiss clause, however, with its absence of fixed distinctions between such complex crimes as are extraditable, and such as are not, permits the consideration of the circumstances, conditions, and requirements under which a complex crime was committed. It is true that the responsibility of the Court of Justice which has to decide whether such a complex crime is extraditable is great. But it is to be taken for granted that such Court will give its decision with impartiality, fairness, and justice. And it need not be feared that such Court will grant asylum to a murderer, incendiary, and the like, unless convinced that the deed was really political.

[Footnote 698: See, for instance, Martitz, op. cit. II. pp. 533-539.]

[Sidenote: Reactionary Extradition Treaties.]

§ 340. Be that as it may, the present condition of matters is a danger to the very principle of non-extradition of political criminals. Under the influence of the excitement caused by numerous criminal attempts in the last quarter of the nineteenth century, a few treaties have already been concluded which make a wide breach in this principle. It is Russia which is leading the reaction. This Power in 1885 concluded treaties with Prussia and Bavaria which stipulate the extradition of all individuals who have made an attack on the life, the body, or the honour[699] of a monarch, or of a member of his family, or who have committed any kind of murder or attempt to murder. And the extradition treaty between Russia and Spain of 1888 goes even further and abandons the principle of non-extradition of political criminals altogether. Fortunately, the endeavour of Russia to abolish this principle altogether has not succeeded. In her extradition treaty with Great Britain of 1886 she had to adopt it without any restriction, and in her extradition treaties with Portugal of 1887, with Luxemburg of 1892, and with the United States and Holland of 1893, she had to adopt it with a restrictive clause similar to the Belgian _attentat_ clause.

[Footnote 699: Thus, even for _lèse majesté_ extradition must be granted.]