A political offence exception (or exemption) is a provision which limits the obligation of a sovereign state under an extradition or mutual legal assistance treaty or statute.
The earliest treaties for handing over criminal suspects from one country to another, dating from the 13th century BC, were aimed exclusively at fugitives who had committed political or religious crimes.
[4] France began to include the political offence exception in its treaties later that year; the United States followed suit starting in 1843, and England in 1852.
[7][8] Throughout the twentieth century, world events forced governments to examine the concept of the political offence exception more closely, first in the 1920s and 1930s as clashing fascists and communists used methods that could be described in modern parlance as terrorism to promote their respective political aims, then after World War II as both war criminals and collaborators with occupation governments sought with much success to protect themselves behind the shield of political offence exceptions, and further into the 1960s and 1970s with members of national liberation and anti-colonialist movements whose proponents acclaimed them as freedom fighters while detractors labelled them terrorists.
[9] The result was an increasingly common limitation, in addition to the clause Belge, that acts prohibited by multilateral treaties are not subject to the political offence exception.
[11] An early draft of the 1973 Protection of Diplomats Convention attempted to take a stronger step in prohibiting consideration of an alleged offender's motives, but this language was deleted from the final version of the treaty.
[21] English courts first developed this test in the 1891 case In re Castolini,[c 1] in which Switzerland sought the extradition of a man from Bellinzona who had shot dead a government official during political unrest there.
[29] As summarised in Ktir v. Ministere Public Federal, a 1961 case in which Switzerland certified the extraditability to France of an Algerian National Liberation Front member, the test looks to whether the act was "inspired by political passion, "committed in the framework of a struggle for power or for the purpose of escaping a dictatorial authority", and "directly and closely related to the political purpose".
[31] The Supreme Court of the Netherlands also applied the proportionality test in the 1978 case Folkerts v Public Prosecutor to order the extradition of a Red Army Faction member to West Germany.
[32] Some sources regarded the Republic of Ireland's approach to the political offence exception as a new test in its own right, while others see it as simply a variation or combination of existing theories.
Instead, the intention was that the executive branch would use the grant of political asylum to the offender under Article 32(2) of the Constitution of the People's Republic of China as the reason for rejecting the extradition request.
503) § 5, both the judiciary of Hong Kong and the Chief Executive are empowered to determine that an offence is "of a political character" and thus that a person should not be surrendered.
[c 5] In that case, the government of Malaysia had arrested Sabah politician Jeffrey Kitingan and laid seven corruption-related charges against him, and sought to obtain evidence from five witnesses in Hong Kong.
§ 3181 permits the extradition of "persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries without regard to the existence of any treaty of extradition with such foreign government if the Attorney General certifies, in writing, that ... the offenses charged are not of a political nature", while 18 U.S.C.
§ 3185 provides that "No return or surrender shall be made of any person charged with the commission of any offense of a political nature" to a foreign country occupied by the United States.
[44] U.S. courts, unlike their English counterparts, have continued to follow a strict definition of "uprising" when applying the political incidence test; specifically in 1986 in Quinn v Robinson,[c 8] the court would only allow application of the exception "when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective"; it found that conditions in 1974–75 met the definition of "uprising" in Northern Ireland, but not in England where the offences occurred, and so Liam Quinn was ruled extraditable.
[45] U.S. courts also follow the "rule of non-inquiry", under which consideration of the political motivations of the requesting party is a matter left to the discretion of the executive branch as part of its power to conduct foreign relations.
Legislation around the same time proposed by Representative William J. Hughes (D-NJ) and Senator Strom Thurmond (R-SC) also attempted to develop more detailed and stringent guidelines for the political offence exception in an effort to prevent terrorists from taking recourse to it, but did not pass.