NCJ Number
77106
Journal
Virginia Journal of International law Volume: 21 Dated: (Fall 1980) Pages: 163-183
Date Published
1980
Length
21 pages
Annotation
This paper examines the history and elements of the political offense exception, especially as applied in cases involving 'relative' political offenses, those offenses which take the form of a common crime. It proposes an administrative solution to improve current extradition practices, especially with respect to terrorists.
Abstract
The first judicial attempt to define 'political offense' for extradition purposes in Anglo-American law was the 1891 English case, In re Castioni. The court in Castioni established the 'political-incidence' test as a method of protecting those who exercised their political right of revolution. However, subsequent applications of this rule have strained the test in order to deny extraditions. U.S. courts readily use their own discretion not only in applying the political-incidence test but also in framing the requirements of the test. Contradictory outcomes in recent cases involving terrorists further illustrate the differing interpretations of the political offense exception. A more workable approach to determining whether an act falls within the exception would be to declare by statute that certain acts are so far beyond the pale of acceptable behavior that they will be treated as common crimes regardless of any political content. In addition, the accused would be entitled to raise the exception in an adjudicatory hearing by the Department of State. The process would allow for legal representation, procedural safeguards, and the compilation of a record upon which the decision would be based. The opportunity for limited judicial review also would be provided. Footnotes are included.