1 for the Extradi Political as illustrated by the three practical attempts described Rationale above to meet certain difficulties. It is, consequently, Principle no wonder that some writers 1 plead openly and directly of nonfor the abolition of this principle, maintaining that it tion of was only the product of abnormal times and circum- Criminals. stances, 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 2 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. 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 Government concerned. 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 of bringing 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, 1 See, for instance, Rivier, i. p. 354, and Scott in A.J., iii. (1909), p. 459. ... 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, 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, nonextradition 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 alone. 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 dition the knife which cut short his span of life. On the other Reactionhand, the mere fact that a crime was committed for ary Extrapolitical purpose may well be without any importancy Treaties. in comparison with its detestability and heinousnes Attempts on heads of States, such, for example, as t murders of Presidents Lincoln and Carnot, or of Alexang II. of Russia and Humbert of Italy, are as a rule, all anarchistic crimes are, without any exception, cri of that kind. Criminals who commit such crimes or under no circumstances, to find protection and asy but ought to be surrendered for the purpose of receiving their just and appropriate punishment. avoid the Prin non-Ex tical § 339. The question, however, is how to sift the chaff How to from the wheat, how to distinguish between such poli- Misapplitical criminals as deserve an asylum, and such as do cation of not. The difficulties are great, and partly insuperable, ciple of as long as we do not succeed in finding a satisfactory tradition conception of the term 'political crime.' But such diffi- of Poli culties are only partly, and not wholly insuperable. Criminals. The step taken by the Swiss extradition law of 1892 is so far a step 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 nonextradition of political criminals as a valuable rule. I The eleven cases reported by Langhard, op. cit., pp. 49-69, which had been decided by the Bundes gericht up to 1910, are very instruc- e cannot support the charge made by some writers 1 that he Swiss law is inadequate, because it does not give riteria for the guidance of the court in deciding whether tradition for complex crimes should be granted or no In my opinion, the very absence of such criteria proves the superiority of the Swiss clause to the Belgian atte, tat clause. On the one hand, the latter is quite insufficient, for it is restricted to murder of heads of States and members of their families only. 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 did 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 of the case in 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. § 340. Be that as it may, the present position 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 1 See, for instance, Martitz, op. cit., ii. pp. 533-539. quarter of the nineteenth century, a few treaties were Reactionary Extraconcluded which made a wide breach in this principle. dition Russia led the reaction. This Power in 1885 concluded Treaties. treaties with Prussia and Bavaria which stipulated the extradition of all individuals who had made an attack on the life, the body, or the honour 1 of a monarch, or of a member of his family, or who had committed any kind of murder, or attempt to murder. And the extradition treaty between Russia and Spain of 1888 went even further, and abandoned the principle of non-extradition of political criminals altogether. Fortunately, the endeavour of Russia to abolish this principle altogether did not succeed, and changed events may herald a new policy for the future. In her extradition treaty with Great Britain of 1886 she had to adopt it without any restriction, and in her extradition treaties with some other States, such as Portugal in 1887, Luxemburg in 1892, the United States and Holland in 1893, she had to adopt it with a restrictive clause similar to the Belgian attentat clause.2 1 Thus, even for lèse-majesté extradition had to be granted. 2 On the Russian Extradition Law of 1911, see Devogel in R.I., 2nd |