Comment by Michael R. Littenberg
Since its formation, the United States has supported, at least in theory, progressive political change. The Declaration of Independence recognized that “all men are created equal [and] endowed . . . with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. . . . [W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.” The United States and other burgeoning democracies sought to protect the unsuccessful revolutionary, who was presumed to be fighting for democracy, from extradition for humanitarian reasons and out of self-interest. They formulated the political offense exception to shelter deserving fugitives who committed crimes of a political nature that were punishable in the state requesting extradition.
The world has changed since the debut of the political offense exception. Many revolutionary movements do not espouse democratic ideals. More frequently today than when the exception was formulated, aggression is waged by lone insurgents against often innocent civilians. In some instances, the political offense exception has been applied to prevent extradition of persons seeking to prevent political change.
How should the exception be applied in light of contemporary realities? Should the judiciary decide what constitutes a political offense and, ultimately, under what circumstances political change is appropriate? If so, should they place a premium on change or seek to limit the exception to “‘civilized”’ forms of conflict? This Comment will, after a brief overview of extradition and political offenses, trace the development of the political offense exception in French, Swiss, and Anglo-American jurisprudence. The continental approaches originally differed substantially from their Anglo-American counterparts, but are now more similar to the current American standard. In contrast, the English and American approaches share a common origin, but have diverged. After outlining the development of the political offense exception in the aforementioned nation-states conflicting American decisions will then be analyzed within the scope of the American “incidence test”' and under an optimal approach derived from a comparison with the other methodologies.
About the Author
Michael R. Littenberg.
Citation
64 Tul. L. Rev. 1195 (1990)