Sorting the revolutionary from the terrorist: the delicate application of the "political offense" exception in U.S. extradition cases.

• Author: Lieberman, David M.

INTRODUCTION I. EXTRADITION AND THE POLITICAL OFFENSE EXCEPTION IN INTERNATIONAL AFFAIRS II. GROWTH OF THE POLITICAL OFFENSE EXCEPTION AND THE "INCIDENCE" TEST A. Historical Development B. Integration into Domestic Law. C. A Definitional Dilemma III. RETHINKING THE INCIDENCE TEST A. Hewing to Neutrality B. Balancing the Means and the Ends for Acts Harming Civilians C. Categorical Constraints--Objective but Rigid 1. Quinn's geographical limitation 2. Suarez-Mason's exclusion of former government officials IV. THE INTERNATIONAL LAW "RETROFIT" A. Looking to Multilateral Agreements B. Using Customary International Law 1. Legitimacy of CIL 2. Deriving norms of CIL: A roadmap for political offense exception cases CONCLUSION INTRODUCTION

The political offense exception--the principle that an individual cannot be extradited to face criminal prosecution for a "political" act--has long been a staple of extradition law. Its existence is a matter of international consensus; almost every modern treaty contains boilerplate language exempting such offenses from its provisions. (1) That consensus abruptly ends, however, at the task of line-drawing. What is or is not "political" conduct has been the subject of controversy since the first exception appeared over 180 years ago.

The changing global landscape of the past several decades has prompted a significant reexamination of the exception's scope. Increasing attention has been drawn to acts of terrorism, internal conflict, and totalitarian oppression--matters previously shelved by the international community during the pendency of the Cold War. (2) The same era has also witnessed diplomatic cooperation and the development of supranational institutions to respond to these atrocities. An increasing number of countries now display a refreshing intolerance for the exploitation of their immigration and asylum procedures by former political leaders, military officials, revolutionaries, and terrorists to avoid domestic prosecution. (3)

The political offense exception stands at the crossroads of this juncture. Because so much conduct is at least arguably political, how can courts render coherent and intellectually honest decisions in extradition cases? An overbroad application would grant immunity to abhorrent and intuitively punishment-worthy crimes. Yet, an unduly restrictive interpretation would vitiate the very principles of self-determination and responsible revolution on which the exception was crafted. Given these pressures, this Note aims to understand the modern application of the political offense exception in U.S. courts and supplement the existing framework in response to its current inadequacies.

Part I highlights the values underlying the political offense exception from the perspective of both state actors and human rights advocates. Part II recounts the exception's historical origins and its incorporation into United States law through the "incidence test." Part III reviews the attempts by federal courts and the political branches to revamp the application of the "incidence test," and concludes that such efforts did little to advance the values behind the political offense exception or to improve the legitimacy of the courts in this area. Part IV proposes a "retrofit" of the incidence test using international law--specifically multilateral agreements and customary international law--as an external restraint on the political offense exception's operation in the United States. Despite some uncertainty over the substantive content of these sources and the competence of the judges who would apply them, this Note ultimately endorses the validity of such an approach as consistent with the exception's original values.

1. EXTRADITION AND THE POLITICAL OFFENSE EXCEPTION IN INTERNATIONAL AFFAIRS

   Extradition agreements, like all treaties, form contractual relationships between two countries. (4) A state's good-faith compliance with its terms will encourage harmony and cooperation in the field of international affairs. The political offense exception is an awkward creature of nearly all such agreements. A state actor, usually through its courts, may frustrate an otherwise valid extradition request if it finds that the fugitive's alleged crimes were "political" in nature. Invocation of the doctrine implicates both complex diplomatic relationships and a concern for human rights.

   State actors have a genuine interest in reaching a settled definition of a "political" crime. Under a purely rationalist model, a state's self-interest should constrain overuse of the doctrine. Denials of extradition reduce the likelihood of compliance when a once-resisting state later becomes the requesting state. Furthermore, overuse upsets the established political order and diplomatic stability; the entire extradition framework is weakened and criminal prosecutions are frustrated. The United States's application of the political offense exception during the mid-1980s provides an excellent case study of this dynamic. (5) The State Department then noted the "harmful and unacceptable decisions of other nations" to invoke the doctrine, citing refusals by French courts in 1975 and 1976 to extradite groups of hijackers of American aircraft. (6) In one of those cases, a French court gleaned a political motive from the group's assertion that they "hijacked the plane to escape racial segregation in the United States and that the charges against them constituted political persecution." (7) By the same token, the State Department conceded the unwillingness of American courts to extradite several members of the Irish Republican Army (IRA) to England after they invoked the same defense--a situation characterized as "intolerable." (8)

   Human rights advocates should find a properly crafted definition of a "political offense" equally appealing. International human rights conventions proclaim the right of all persons to self-determination, (9) and implicitly recognize the need for revolution when those in power fail to respond. The political offense exception provides partial protection when those revolutions falter; should an opposition member escape the country, the doctrine proscribes his extradition for fear of an "unfair and retaliatory trial in the requesting state which, being the target of the political crime, would function simultaneously as judge and jury." (10) By the same token, an overly broad definition of a "political crime" could shield undeserving offenders--war criminals, (11) mass murderers, (12) and common criminals (13)--from domestic criminal prosecution, irrespective of whether those same actions might trigger international criminal culpability.

   The rapid development of human rights norms during the 1990s has further amplified the importance of the political offense exception. On a broad scale, the international community's attention, focused for a half-century on the Cold War, was drawn to internal civil conflicts and injustices in discrete areas of the world. Tolerance for unspeakable crimes occurring inside a nation's borders--genocide, torture, forced disappearance, and ethnic cleansing--waned with the establishment of ad hoc war-crimes tribunals and the permanent International Criminal Court. Of greatest relevance, countries are frequently using the tool of extradition to secure alleged fugitives who fled their home countries. These individuals--former political leaders, (14) military generals, (15) and terrorists (16)--share one common bond: their extradition requests and alleged crimes are steeped in political considerations. Since each circumstance raises a potential application of the political offense exception and weighty diplomatic anxieties, the operation and scope of the exception should be fully understood.

2. GROWTH OF THE POLITICAL OFFENSE EXCEPTION AND THE "INCIDENCE" TEST

   The application of the political offense exception is knotted up with its historical origins. Circumstances surrounding its birth, particularly the liberal democratic movements in Europe at the turn of the eighteenth century, underpin the controversies that plague its modern application. This Part summarizes the historical background and the integration of the political offense exception into U.S. law. It also highlights the central flaw of the doctrine's applicability--the difficulty in defining the term "political."

   1. Historical Development

      The political offense exception is a fairly modern creation. In 1625, Hugo Grotius announced an unconstrained definition of extraditable offenses: those crimes that affect public order, or that are atrociously criminal. (17) The increasing mobility of individuals generally, and criminals specifically, during the eighteenth century created a need for a more formalized framework between the nations of Europe. (18) Extradition treaties flourished; their targets were usually run-of-the-mill offenses--desertion, robbery, murder, arson, and vagrancy. (19) Persons accused of political offenses received no special treatment. (20)

      The exception soon grew out of the era's revolutionary ideology, (21) with its ideals of freedom, democracy, and rebellion against oppression. When governments failed to respond to the needs of their citizens or to protect certain inalienable rights, liberal intellectual thinkers argued that citizens maintained a fight to engage in a popular revolution. (22) Such a principle provided the philosophical justification for the American and French revolutions. (23) Illustratively, the Declaration of Independence boldly proclaims: "[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it...." (24)

      In this period of rapid political transformation, nations faced requests to turn over the instigators of failed revolutions. Yet, "those who used violence to challenge despotic regimes often occupied the high moral ground, and were welcomed in foreign countries as true patriots and...