of any company; rape; abduction; child stealing; burglary and housebreaking; arson; robbery with violence; threats with intent to extort; piracy by the Law of Nations; sinking or destroying a vessel at sea; assaults on board ship on the high seas with intent to destroy life or to do grievous bodily harm; revolt or conspiracy against the authority of the master on board a ship on the high seas. The Extradition Acts of 1873 and 1906 added the following crimes to the list: kidnapping, false imprisonment, perjury, subornation of perjury, and bribery. Political criminals are, as a rule, not extradited,1 and according to many extradition treaties, military deserters and persons who have committed offences against religion are likewise excluded from extradition. tion and dition. § 332. Extradition is granted only if asked for,2 and Effectuaafter the formalities have taken place which are stipu- Condition lated in the treaties of extradition and the extradition of Extralaws, if any. It is effected through the handing over of the criminal by the police of the extraditing State to the police of the prosecuting State. But it must be emphasised that, according to most extradition treaties, it is a condition that the extradited individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted, or for those, at least, which the extradition treaty concerned enumerates. If, nevertheless, an extradited individual is tried and punished for another crime, the extraditing State has a right of intervention.4 An important question is whether, in case a criminal, 1 See below, §§ 333-340. 2 Many treaties make it a condition of extradition that reciprocity is granted. On the so-called reciprocity clause, see Mettgenberg in the Archiv für öffentliches Recht, xxv. (1910), pp. 1-148. 3 See Mettgenberg in the Zeit schrift für internationales Recht, xviii. It ought to be mentioned that who has succeeded in escaping into the territory of another State, is erroneously handed over, without the formalities of extradition having been complied with, by the police of the local State to the police of the prosecuting State, such local State can demand that the prosecuting State shall send the criminal back, and ask for his formal extradition. This question was decided in the negative in February 1911 by the Court of Arbitration at the Hague in the case of France v. Great Britain, concerning Savarkar. This British-Indian subject, who was prosecuted for high treason and abetment of murder, and was being transported in the P. and O. boat Morea to India for the purpose of standing his trial there, escaped to the shore on October 25, 1910, while the vessel was in the harbour of Marseilles. He was, however, seized by a French policeman, who, erroneously and without further formalities, reconducted him to the Morea with the assistance of individuals from the vessel who had raised a hue and cry. Since Savarkar was prima facie a political criminal, France demanded that England should give him up, and should request his extradition in a formal way; but England refused to comply with this demand, and the parties, therefore, agreed to have the conflict decided by the Court of Arbitration at the Hague. The award, while admitting that an irregularity had been committed by the reconduction of Savarkar to the British vessel, decided, correctly, I believe, in favour of Great Britain, asserting that there was no rule of International Law imposing, in circumstances such as those which have been set out above, any obligation on the Power which has a prisoner in its custody, to restore him on account of a mistake committed by the foreign agent who delivered him up to that Power.1 It should be men 1 See Hamelin, L'Affaire Savarkar (Extrait du Recueil général de Jurisprudence, de Doctrine, et de tioned that the French Government had been previously informed of the fact that Savarkar would be a prisoner on board the Morea while she was calling at Marseilles, and had agreed to this. Somewhat similar to the case of Savarkar is the remarkable case of Lamirande which occurred in 1866.1 He was a French subject, and was arrested in Canada under an extradition warrant on a charge of forgery. He applied to a superior tribunal on the ground that his surrender was not justified by the Extradition Treaty with France, but was erroneously surrendered to France before his application was heard. The judge and the British law officers took the view that the surrender of Lamirande was not justified by the Extradition Treaty, and the British Government asked the French Government to remit him to Canada, not indeed on the ground of any international obligation, but as a matter of comity. However, the French Government refused to accede to this request, contending that the error through which Lamirande had been surrendered did not afford any ground for removing him from the control of the French courts. X PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS Westlake, i. pp. 256-258-Lawrence, § 111-Taylor, § 212-Hershey, Nos. 253-255-Wharton, ii. § 272-Moore, iv. § 604-Bluntschli, § 396Hartmann, § 89-Lammasch in Holtzendorff, iii. pp. 485-510--Liszt, § 33-Ullmann, § 129-Rivier, i. pp. 351-357-Nys, ii. pp. 300-303-Calvo, ii. §§ 1034-1036-Martens, ii. § 96-Bonfils, Nos. 466-467 defends the French view. The award of the Court of Arbitration has been severely criticised by Baty in the Law Magazine and Review, xxxvi. (1911), pp. 326-330; Kohler in Z.V., v. (1911), pp. 202-211; Strupp, Zwei praktische Fälle aus dem Völkerrecht (1911), pp. 12-26; Robin in R. G., xviii. (1911), pp. 303-352; Hamel in R.I., 2nd Ser. xiii. (1911), pp. 370-403. 1 The documents relating to this case are printed on pp. 28-29 of the British counter-case in the Savarkar Arbitration. How non-Ex Pradier-Fodéré, iii. Nos. 1871-1873 - Mérignhac, ii. pp. 754-771 — § 333. Before the French Revolution1 the term tradition political crime' was unknown both in the theory and of Politi- practice of the Law of Nations, and the principle of nals be- non-extradition of political criminals was likewise nonRule. existent. On the contrary, whereas extradition of cal Crimi came the ordinary criminals was, before the eighteenth century at least, hardly ever stipulated, treaties very often stipulated the extradition of individuals who had committed such deeds as are nowadays termed political crimes,' and such individuals were frequently extradited, even when no treaty stipulated it. Moreover, writers in the sixteenth and seventeenth centuries did not at all object to such a practice on the part of the States; on the contrary, they frequently approved of it.3 It was indirectly due to the French Revolution that matters gradually underwent a change, since this event was the starting-point for the revolt in the nineteenth century against despotism and absolutism throughout the western part of the European continent. It was then that the term 'political crime' arose, and Article 120 of the French Constitution of 1793 granted asylum to foreigners exiled from their home country for the cause of liberty.' On the other hand, the French emigrants, who had fled from France to escape the Reign of Terror, found an asylum in foreign States. However, the modern principle of non-extradition of 1 I follow in this section for the most part the summary of the facts given by Martitz, op. cit., ii. pp. 134-184. Martitz, op. cit., ii. p. 177, gives a list of important extraditions of political criminals which took place between 1648 and 1789. So Grotius, ii. c. 21, § 5, No. 5. political criminals did not even then conquer the world. Until 1830 political criminals were frequently extradited. But public opinion in free countries began gradually to revolt against such extradition, and Great Britain was its first opponent. The fact that several political fugitives were surrendered by the Governor of Gibraltar to Spain created a storm of indignation in Parliament in 1815, where Sir James Mackintosh proclaimed the principle that no nation ought to refuse asylum to political fugitives. And in 1816 Lord Castlereagh declared that there could be no greater abuse of the law than by allowing it to be the instrument of inflicting punishment on foreigners who had committed political crimes only. The second in the field was Switzerland, the asylum for many political fugitives from neighbouring countries, when, after the final defeat of Napoleon, the reactionary Continental monarchs refused the introduction of constitutional reforms which were demanded by their peoples. And although, in 1823, Switzerland was forced by threats of the reactionary leading Powers of the Holy Alliance to restrict somewhat the asylum afforded by her to individuals who had taken part in the unsuccessful political revolts in Naples and Piedmont, the principle of non-extradition went on fighting its way. The question as to that asylum was discussed with much passion in the press of Europe; and, although the principle of non-extradition was far from becoming universally recognised, that discussion indirectly fostered its growth. A practical proof thereof is that in 1830 even Austria and Prussia, two of the reactionary Powers of that time, refused Russia's demand for extradition of fugitives who had taken part in the Polish Revolution of that year. And another proof thereof is that at about the same time, in 1829, a celebrated dissertation 1 by a Dutch jurist made its 1 H. Provó Kluit, De Deditione Profugorum. |