Political crime and political offender: Theory and practice - Springer Link

Political Crime and Political Offender

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POLITICAL CRIME AND POLITICAL OFFENDER: THEORY AND PRACTICE Nikos Passas*

The question of what is a political crime and who is a political cdminal is very often raised in the media. This question is also central in the topical international debate on the contemporary phenomena of terrorism. The definition of political crime has been the concern of legal theory and jurisprudence since the introduction of the term in legal texts at the beginning of the nineteenth century. The distinct character of political offenders then led to a "r~gime de faveur". Besides, one of the principles of extradition law is still the nonextradition of political offenders. This paper examines briefly, from antiquity to the nineteenth century, the way criminals inspired by political motives have been dealt with and questions the accuracy of legal theories that have been put forward with respect to political crime. It points out that even if the specificity of political crime cannot be established, that of the political offender can, and summarises the elements that distinguish him/her from the ordinary offender. Finally, it looks at the way in which political offenders are handled in practice at the national and international levels. The European Convention on the Suppression of Terrorism is referred to as an illustration of current practice in Western Europe. In Classical Athens there was no distinction between ordinary and political crime. Nevertheless, crimes directed against the political system were severely punished, given that, to Athenians, democracy was the ideal r~gime. Crime against the gods of Olympus was considered as crime against the state and conversely treason had a sacrilegious character. However, there was a type of crime with political character that escaped severe punishment. This was the case with tyrannicide, which was regarded as a legitimate means to protect democracy. Someone who killed a tyrant was not considered as a criminal, but rather would be granted the honours of a champion at the Olympic games. 1 It is interesting to see that after the fall of the thirty tyrants, Athenians were subjected to the following oath by the decree of * University of Edinburgh. 1 M. Farsedakis, L'antiquit6 grbcque et le probltbme criminel, Thesis, Strasbourg, 1970, 217.

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Demophantes: "1 shall kill by word, act, vote, and my own hand if I can anyone who would destroy democracy in Athens, who would hold an official post when democracy is destroyed, who would become a tyrant or who would assist someone to become a tyrant. If someone else kills such a person, I shall declare him sacred before the gods and demons for being the slayer of an enemy of Athens. ''2 In Rome those found guilty of "perduellio" (unjust war) were considered as external enemies. Later the concept of "crimen laesae majestatis" became "the prototype of indefiniteness: it was any reprehensible attitude publicly evinced against the res publica and its security. "3 The hostile intention was enough for someone to be prosecuted and the settlement of disputes took place through the repression of laesae majestatis. Infidelity with respect to the official religion was severely punished. It has been argued that Christianity was dealt with as a "political crime" because (1) christians by observing strictly the imperatives of their creed did not offer sacrifices to the Emperor, (2) the social order of Romans was substituted by the order of God, and (3) some christians would not accept military service in the Roman army, which was considered as a challenge to the power of the state." In the Byzantine Empire sacrilege and all offences against the Emperor or the Christian state constituted the "political crimes" that were punished, s in the Middle Ages the influence of Roman law relating to the confusion of legal rules with religious rules becomes apparent as the offences of divine laesae majestatis (of ecclesiastical jurisdiction) and the offences of human laesae majestatis (of royal jurisdiction) are judged most of the time by extraordinary commissions according to rules distinct from those of the common law. 8 The great power of the Church and the absence of justice, legality and clemency in the field of "political crimes" are the main characteristics of this period, although the distinction between King and Tyrant led to the introduction in Original version in Demosthenes, P e r i tes ateleias pros Leptinen, paras. 159-t60. A French translation is in D. Szabo, Criminologie et politique criminelle, Montreal, Presses de I'Universit~ de Montreal, 1965, 197. 3 O. Kirchheimer, Political Justice, Princeton, New Jersey, Princeton University Press, 1961,27. 4 E. Apostopoulos, A. Kaminares, A Kotsiphas, To Pofitiko Engklema, Nomiki Bibliotheke, Athens, 1978, 22. s ibid. at 23. s D. Szabo, supra note 2 at 198.


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political philosophy and positive law of the right to revolt against abuses of power. 7 In the second half of the 15th century absolute monarchy was established in the West and sought its foundation in divine law.8 The King obtained his power from God, and it was only God to whom he was accountable; the people ought to obey and the sovereign's power was not susceptible to any human control. The "raison d'Etat" provided the pretext for an almost absolute political oppression and the commitment of acts of pure and simple revenge. Q On the other hand, there was a reaction of the people against the established religious and secular order. The medieval notion of social contract as the basis of society became topical once more. 1° By using this conception natural law theorists rejected the arbitrary and excessive power of the sovereign. So, if he went beyond the limits set by the social contract, the members of the society would have the right to resist and revolt. These ideas led to the French revolution of 1789, which could be seen from the legal point of view as the most serious crime of laesae majestatis, the worst collective "political crime". This puts in relief the distinctiveness of political offenders, inspired by noble motives who seek an amelioration of political and social conditions. After the French revolution crimes against the state were conceived in two different ways: (a) crimes against the state as such, in its existence and rights (crimes against the external security of the state) and (b) crimes against the organs of the state, its government or political institutions (crimes against the internal security of the state). In the former case the very existence of the state is at stake whereas in the latter it is not and thus one arrived at the distinction between Monarchy and State, between political regime and nation? 1 The French and Bavarian penal codes of 1810 and 1813 respectively are the first penal codes that distinguished "political crime" from "common crime". The law of 28.4.1832 in France introduced milder sanctions for political offenders, but before that the common characteristic of all legislation in relation to "political crimes" was the death penalty. After the French revolution of 1830 the frequency of revolutions and the ongoing differentiation of political regimes made t

E.g. Magna Carta in 1215.

B

A. Esmein, Cours dldmentaires d'histoire du droit francais, Paris,

L. Larose et L. Tenur, 11th edn., 1912, 379. 9

P. Papadatos, Le ddlit politique, Thesis, Genbve, 1954, 25.

lo J. Locke, Beccaria, J. J. Rousseau, Montesquieu, Wolf, Grotius, etc. 11 P. Papadatos, supra note 9 at 37, and D. Szabo, supra note 2 at 203.

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obvious the relativity of the notion of "political offence".12 The political offender was regarded as the "aristocrat of delinquency", t3 He was viewed as profoundly different from the common offender because of his noble and altruistic motives and this attitude brought about the establishment of a "r~gime de faveur" in his respect. As O. Kirchheimer has contended "... the nineteenth century showed increasing indulgence to those who strayed from the accepted political and social norm. This did not happen furtively or underhandedly. Gradually, if fitfully, man's right to cast doubt on the foundations of established political patterns came to be openly recognised. ''14 By the end of the 19th century this indulgence started receding and sometimes the "r~gime de faveur" turned into a "r~gime de rigueur". As Papadatos has argued, legislators have almost never attempted to define concretely what is "political crime". However, given the category's introduction into the domain of law it was necessary to define its content. This task was left to theorists and jurisprudence, is The theorists undertook research on the criteria of =political crime" starting with a distinction between =pure political crime" (that directed exclusively against the state), and "relative political crime" (that directed against both the state and the juridical goods of individuals). This paper will only deal with theories on "pure political crime", given that the difficulties and disagreements on the definition of "relative political crime" have already been referred to in Kellett's paper, t8 The reason for briefly discussing these theories here is that they are problematic and controversial. The theories on "pure political crime" are divided into "subjective" and "objective" theories. The "subjective" theories include two categories: those concerned with motives of the offender, and those concerned with the final aim of the actor, the intention stricto sensu. 17 The offender's motive is considered by a number of theorists TM as the sole and decisive criterion in defining =political crime". This lz P. Bouzat and J. Pinatel, Trait6 de droit pdnal et de Criminoiogie, Paris, Dalloz, 1971,223. 13 G. Stefani and G. Levasseur, Droit Pdnal Gdn6ral, Paris, Dalloz, lOth edition, 1976, 236. 14 O. Kirchheimer, supra note 3 at 32. is P. Papadatos, supra note 9 at 71. Is Supra pages 11-12. lz Sq~ra note 15 at 72-74. 18 Such as Rossel, Holzendorf, Clarke.


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criterion undoubtedly takes into account the historical origin of the term, but it comes into conflict with one of the fundamental principles in penal law, namely, that the character of an offence must be determined objectively, by the nature of the right that has been violated. The motive constitutes a precious guide for the judge in the evaluation of the degree of criminality and the guilt 'in concreto' of the actor, but alone it cannot determine the nature of the offence; it cannot be the one and only constitutive element of the offence. Besides, following this theory al! offences could potentially be considered as political. According to the theories concerned with the goal of the actor, all illicit acts aimed at the established political and social order of a country are "political offences". 19 The goal of the actor is indeed often a constitutive element of the offence (e.g. theft) but never the only one; the objective element is sometimes insufficient but always necessary for the determination of the nature of an offence. With this criterion, again, all offences may potentially qualify as political. For the "objective" theories "political crime" is any punishable act attacking the existence or organisation of the state. 20 It should be noted that not all offences against the state are "political crimes"; it is necessary that the acts be directed against the state only as a public power (not as a creditor, for example). "Political crimes" then would be offences against the external political order, such as independence of the nation and territorial integrity or the internal political order, such as the established political institutions and their functioning. In addition, a mere violation of the political order is not sufficient for its qualification as "political"; it also requires an intention of partial or total destruction of such order. 21 These theories, being more complete by including the material objective element of the offence, are criticized less and have been, in general, accepted by the jurisprudence of many countries. Nevertheless, by the exclusive use of the objective element, the historical origin of the term "political crime" and the meaning that was given to it by the popular conscience and the republican spirit are totally ignored. The disinterested and altruistic motives of the offender are not taken into consideration, and consequently all such offences against the state, even when committed for lucrative reasons, may be }~ Hoseus,von Bar, Dalloz, Glaser, etc. 2o See for example Carmignani, Finger, Garrould, Holzendorff, yon Liszt, Martens, Rossi, A. Weiss. Many others are cited in S. Schafer, "The Concept of the PoliticaI Criminal", The Journal of Criminal Law, Criminology and Police Science (1971), vol. 62, No. 3, 380-387. 21 P. Papadatos, supra note 9 at 76.

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equally viewed as "political". In this case what may happen is what Kellett refers to at the very end of his paper: protection might be given to those it was never intended to protect. Although "political crime" is almost always associated with "r6gime de faveur", the general attitude towards offences against the external order of the state has quickly changed and the public has allowed rather easily the application of a "r~gime de rigueur" in respect of those offences. Further, one might contend that the historical origin of the term "political crime" should not lead to a neglect of subsequent changes and that there is no reason necessarily to grant =r~gime de faveur" to political offenders. In democratic states, however, this severity would be at odds with the liberal view that political offenders deserve clemency and should be dealt with in a different and more or less privileged way. Finally, "objective" theories are completely inadequate in relation to "relative political crime". There seems to be a general agreement that no satisfactory definition of "political crime" can be found in the legal realm; some have pointed out the failure of the various theories for it, others its lack of specificity (especially of "relative political crime") and often its inherent relativity. 22 Others would argue that in a sense all crime is anyway political "inasmuch as all prohibitions with penal sanctions represent the defense of a given value system or morality, in which the prevailing order believes. "23 On the same lines it has been argued that "in a sense all trials, all law in process, is 'political'. Since courts are agencies of the government and judges and magistrates part of the state apparatus, then all decisions in law can be considered as political ones."24 Although the distinction between political crime and ordinary crime cannot be legally established, the distinction between ordinary offender and political offender seems to be clearer and easier to define. Besides, the terms political offender and political prisoner are frequently used, and, as D. Forsythe has argued, are necessary: "Indeed, notwithstanding the conceptual difficulties, there seem to be important aspects of world politics that can only be described as pertaining to political prisoners. It is evident that governments do regard a type of detainee as special - special in the sense of being different from other prisoners. In general, he is different because he is zz See D. Szabo, supra note 2 at ~76. 23 I.L. Horowitz and M. Leibowitz, "Social Deviance and Political Marginality", Social Problems (1968), vo1.16, 280-281. 24 Z. Bankowski and G. Mungham,lmages of Law, London, Routledge and Kegan Paul, 1976, 114.


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viewed by the government as a direct or indirect threat to the government, and therefore he is persecuted. "2s It is probably preferable to talk about, and engage in the clarification of the term "political offender", rather than attempting the creation of a separate category of "political crime". Garofalo, who was arguing for the seriousness and dangerousness of crimes such as conspiracy and rebellion against a lawful government, referred, nonetheless, to the sympathy which political offenders receive, sometimes even from their enemies. 28 In spite of the confusion as to the definition of political offender, the differences betwen this category and that of ordinary offenders are both real and important. It is the political offender who, by consciously contesting the established social order, makes the role of the prevailing set of values and morality as represented by the law much more apparent. As S. Schafer has contended, "since by definition the 'conservatives' tend to conserve the prevailing social-political power structure with its values and morality, the 'radicals' are usually the political criminals. The political stance of ordinary criminals is generally unrecognisable or irrelevant. "27 He has also proposed the term convictional criminal "to underscore the fact that morality and value systems are pluralistic ideas and that the 'political' criminal is 'convinced' about the truth and justification of his altruistic beliefs" and he goes on to argue that "conviction serves as a distinguishing factor in discriminating political criminals from ordinary offenders."28 The element of conviction and political beliefs is considered by the "persecuted individual" school of thought on the question of defining the political prisoner. According to this approach "political prisoner is one who is more persecuted than prosecuted by a government because of that person's 'political' beliefs. ''29 The fact that the political offender is convinced about the truth of his/her ideological beliefs, and regards his/her acts as perfectly justified and legitimate, makes him/her by definition "non-rehabilitable'. In other words, all re-educational and rehabilitative functions of penal z= D. Forsythe, "Political Prisoners: the Law and Politics of Protection", in Comparative Juridical Review, Vol. 21, 1984, 8. 2s R. Garofalo, Criminology, Boston, Little Brown & Co., 1914, 37 & 217. 27 S. Schafer, supra note 20 at 381. 28 b/d. at 384. 2~ D. Forsythe, supra note 25 at 5. He also mentions practical problems arising from this approach which is adopted by most of the non-governmental organisations working in support of human rights.

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measures are bound to have no effect on such an offender, and this makes him/her a special type of offender in the eyes of the government. 3o Further, the ordinary criminal's goals are more selfish and personal whereas "the convictional criminal's altruism is a non-personal communal experience, aiming at some sort of social change ... His altruism is communal not only because it may come into conflict with the prevailing power structure, but also because his violation of the law is intended to legitimate social ideas through crime, and his deviance contemplates social progress. ''31 In view of the altruistic and disinterested character of the political offender, W. Bonger has called him/her "homo nobilis" and argued that he/she acts for the benefit of society, for the oppressed classes and consequently for all humanity. 32 For political offenders crime is not the main goal, but a means toward the attainment of their ultimate aim. The distinction between legality and legitimacy is of great importance in this context. When all legal or generally approved ways to promote their cause are perceived to be blocked, they are prepared to resort to any available means. In this sense, lawbreaking and crime are seen as legitimate, as being a necessary step towards the envisaged social and political change. 33 If political offenders manage to win this battle over legitimacy and materialise the desired change, not only are they no longer viewed as criminals, but on the contrary, they are highly respected - and

uu This is also a factor accounting for special (and usually severe) treatment of political offenders. 31 S. Schafer, supra note 20 at 385. 3s W.A. Bonger, Criminality and Economic Conditions, Boston, Little, Brown & Co., 1916, 648-655, cited in .S. Schafer, ibid. at384. 33 It is interesting to see what H. Mahler (a member of the Baader-Meinhof group in W. Germany) has to say about the illegality of the urban guerilla: "One doubts about the political significance of the urban guerilla and qualifies it as criminal as if there were an irreconcilable contradiction between politics and criminality. Revolutionary politics is, however, necessarily criminal ... The repressive violence of the state has been developed historically in order to defend and safeguard it ... The essence of legality is the immortalisation of this domination by the respect one must have for institutions: communism though rejects it and introduces the self-determination of the masses. The communist movement, therefore, is the most illegal of the world." Cited in P. Ponsaers, "Mod~)les pour analyser le ph~nom~ne du terrorisme" in Ddviance et SocietY, Gen~ve, 1978, vol. 2, no. 1, 24.


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sometimes regarded as heroes - precisely b e c a u s e of their fight against yesterday's lawful government. 34 Finally, ordinary offenders will attempt to keep their crimes secret, and when uncovered they would feel embarrassment, shame or regret; political offenders though seek publicity. Publicity is vital for them, because it increases the public's understanding of their actions. W. Laqueur talking about terrorism has argued that "terrorists have learned that the media are of paramount importance in their campaigns, that the terrorist act by itself is next to nothing, whereas publicity is all. "3s Political offenders, indeed, wish and need to attract attention, to be able to communicate their political message, gain public support and recruit followers. It may be objected that motives and ideology are not easy to detect, but it can be seen that there are cases where ideological beliefs and motives have been detected but used as evidence to prove the commitment of crimes, without recognition of the political character of the offender: "In the Irish trials over the last few years, the prosecution has used material of a political nature - especially the possession of marxist, communist and republican books, papers and membership cards - in order to prove motive. "~6 And again: 'in the various trials of I.R.A. bombers in England, copies of Guevara, Connolly, Mao and Carmichael were all produced as evidence of conspiracy - the claim being that they must be conspirators because they all had the same political beliefs '~7. This shows that it is not too difficult to trace out ideological and political motive leading individuals or groups to commit crimes aimed to promote social change and a questioning of the legitimacy of the prevailing political system. The existence and detection of these elements do not suffice for the legal recognition of the political status of an offender. This recognition is a matter of policy and of political choice. The practice in the internal sphere is considerably different from that in the international sphere. At the internal level political offenders are very rarely, if at all, recognised. 38 Recognition of the political character of an offence would entail to some extent his/her legitimation This is the case of all successful revolutions. The successful revolutionary is a hero, whereas the unsuccessful one a criminal; this fact reveals the relativity of political offences. 3s W. Laqueur, Terrorlsm, London, Weidenfeld & Nicolson, 1977, 223. 36 J. Kaye, "Irish Prisoners", New Society (1973), 6th September, 565-6, cited in Z. Bankowski and G. Mungham, supra note 24 at 126. 37 Z. Bankowski and G. Mungham, ibid. D. Forsythe, supra note 25 at 4 and note 5.

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and to some extent a de-legitimation of the state (since in the political offender's eyes the state's legitimacy is not a settled question). The official discourse tends to ignore the political motivation of offenders and depicts them as "senseless, irrational and inhuman". 3~ As E. Leach has argued "anyone who refuses to accept the prevailing conventions of how hostilities should be conducted should automatically be categorised as a criminal, lawless, barbarian, terrorist, a savage who can properly be likened to a reptile or a wild beast. ''40 There is an exclusive insistence upon the criminal aspect of their acts, a refusal to consider their (very often serious) crimes as purposively political action. S. Hall et al have contended that "crime issues are clear cut; political conflicts are double-edged. But a governing class which can assure that a political demonstration will end in a mob riot against life and property has a good deal going for it including popular support for "tough measures". Hence, the criminalisation of political and economic conflicts is a central aspect of the exercise of social control. ''41 The official discourse tends very often to simplify violent incidents, to focus on human-interest stories and to elude historical background. 42 In this way the official discourse favours the establishment of consensus ideology and neutralises the attempt of politically motivated individuals or groups to upset consensus. Thus, political motives and realities are transformed "into a legal and hence apolitical reality. And so the state tries not those who want to transform the political reality, but those who are defined as breaking the law and nothing else. Political acts are not specifically banned, they are hidden in the legal notions of 'public mischief', 'injury to the community', etc. ''43 This process of neutralisation of political dissenters is essential in the context of liberal democratic states, where freedom of opinion is a fundamental right. P. Elliot, "Press Performance as Political Ritual" in The Sociology of Journalism and the Press, Sociological Review Monograph, No. 29, ed. H. Christian, Keele, 1980. 40 E. Leach, Custom, Law and Terrorist Violence, Edinburgh, Edinburgh University Press, 1977, 26. 41 S. Hall, C. Critcher, T. Jefferson, J. Clarke, & B. Roberts, Policing the Crisis - Mugging, the State, and Law and Order, London, Macmillan Press, 1980, 189-190. 42 See P. Elliot, "Reporting Northern Ireland", inEthnlcity and the Media, UNESCO, Paris, 1977, where these terms are used to describe the coverage of Northern Irish affairs in the British media. 43 Z. Bankowski and G. Mungham, supra note 24 at 125.


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On the international plane the situation is different. The principle of non-surrender of political offenders is central in extradition law. The official and media discourses become more global and critical, particularly when non-democratic states are involved, where few or no legal means of dissent are available. The political status is recognised and political asylum is offered to offenders persecuted because of their struggle against states or governments. The principle of non-extradition of political offenders has, however, caused embarrassment to governments, when they have had to refuse extradition to friendly countries. 44 More flexibility was required in such delicate matters. It can be seen that since the end of the 19th century there is, indeed, a tendency to restrict the use of this principle. This restriction is achieved not by altering the principle itself, but by excluding a rising number of offences from the category "political". Given that these offences could not be considered as inspired by political motives, those who commit such offences could not be regarded as political offenders regardless of their motives and specific circumstances. States which feel victimised by acts of individuals likely to be considered as political by other states have tended to call for and/or sign international treaties denying their political character for extradition purposes. It is in this context that the issue of "terror" and "terrorism" is raised. These terms have become semantic tools of official discourse to delegitimise political activists who resort to crime and violence in order to promote their cause. 4s Terrorists are seen as common and dangerous criminals who "should receive no publicity and should be dealt with by military rather than political means". ~ (The hijacking of the egyptian aircraft carrying the palestinian hijackers of the italian cruise liner by the U.S.A. airforce is a case in point. 4z) Some cases are mentioned in M. Kellett's article. Seesupra at 11-12. 4s "The words 'terror' and 'terrorism' have become semantic tools of the powerful in the Western world." N. Chomsky and E. Herman, "The Washington Connection and Third World Fascism" and "After the Cataclysm", vols. 1 & 2 of The Political Economy of Human Rights, Nottingham, Spokesman Books, 1979, 85. Cited in P. Schlesinger, "'Terrorism', the Media and the Liberal-Democratic State: a Critique of the Orthodoxy" in Social Research, vol.48, no.l, Spring 198t, 80. 4s P. Schlesinger, ibid. 77. 47 Interestingly the legality of the American hijacking itself is highly questionable: "Terrorism is a threat to the rule of law on which our civilisation is based, which means that flouting the law to get at the criminals is playing the deadly game according to their rules, not ours." The Guardian,

Saturday October 12, 1985, 13 (emphasis added).

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Terrorism is a polemic rather than a scientific or objective term: "the terms 'force' and 'violence' are ... like 'terrorist' and freedom-fighter' largely emotive propaganda terms; which we use about a given act depends, not on the degree of force or violence, but on a view of its justification. ''48 There is no definition of terrorism because it means different things to different people and depends highly on the contingencies. As has been argued, in cases of non-democratic states "where violence against the state may be seen as justified as a tactic of last resort, the label 'terrorist' is likely to be replaced by that of 'guerilla', 'freedom-fighter' or 'member of the Resistance'. In other words, attitudes towards insurgencies are inextricably tied to attitudes towards r~gimes in which they take place. ''49 This differential attitude towards r~gimes creates the need for flexibility in dealing with politically motivated offenders: sometimes they will be defined as 'terrorists' and sometimes as political offenders, even if the charges against them may be very similar. It is this relativity that prevents the United Nations from coming to total agreement when discussing the issue of the suppression of terrorism. Kellett's reference to the fact that even "the democratic nations of Western Europe" have not been able "to get their act together "s° may be seen as a reminder that even in this context the international commitments, interests and needs of the various states as well as the degree to which they feel victimised by such acts vary considerably. Some flexibility is again needed. On the other hand, it has been argued that the European Convention on the Suppression of Terrorism (1976) essentially abolished the notions of political crime and political offender for extradition purposes. This is argued in view of the fact that the offences which will not be considered as political or inspired by political motives, mentioned in articles 1 and 2 of the Convention, cover all possible offences of the internal penal systems of each contracting state, sl Further, article 7 states that =a contracting state in whose terrority a person suspected to have committed an offence mentioned in Article 4~ C.C. O'Brien, "Liberty and Terror: Illusions of Violence, Delusions of Liberation" in Encounter, October 1977, 35. Cited in P. Schlesinger, supra note 45 at 76. 49 P. Elliot, G. Murdock and P. Schlesinger, "'Terrorism' and the state: a case study of the discourses on television", in Media, Culture and Society, 5, 1983, 162. 5o M. Kellett, sLpra page 9. sl H. Dupont-Monod, "La fin du d~lit politique" in Acres, no.12 Dec/Janvier, 1977, 36-67.


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1 is found and which has received a request for extradition under the conditions mentioned in Article 6, paragraph 1, shall, if it does not extradite that person, submit the case, without exception whatsoever and without undue delay, to its competent authorities for the purpose of prosecution." The implication of articles 1,2 and 7 is that virtually no offences will be considered as political or inspired by political motives (therefore offenders cannot be regarded as political), and when extradition does not take place, the offenders will be prosecuted by the authorities of the contracting state in whose territory they are found. Nevertheless, articles 5 and 8 paragraph 2 state that nothing in this convention shall be interpreted as imposing an obligation to extradite or to afford mutual assistance if the requested state has substantial grounds for believing that the request for extradition for an offence or for mutual assistance in respect of an offence mentioned in article 1 or 2 has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasons. These provisions offer minimum room for manoeuvre to states having serious reasons for non-extradition in specific cases. Further, there is article 13 (mentioned in M. Kellett's paper) which can potentially destroy the whole effect of articles 1 and 2 by offering the possibility of refusing extradition in respect of political offences, offences connected with a political offence, or offences inspired by political motives. So article 13 provides the states which would take advantage of its2 with more flexibility. The convention, of course, is made less coherent, less effective and contradictory; but this contradiction is quite functional, given that the convention could be interpreted in such different ways as to justify both the recognition and non-recognition of the political character of offenders in specific cases. This offers the possibility of extraditing or not extraditing (and of prosecuting or abstaining from prosecuting) offenders requested by other states "in concreto": according to the contigencies, the relations between the concerned states, the interests and commitments involved and the political needs of the moment. it should, however, be noted that this convention constitutes a virtual danger to liberal democratic principles because it may "favour directly or indirectly a reinforcement of political repression as it allows 52 As mentioned in M. Kellett's article, five states have already taken advantage of it including France and Italy. Although these two countries have "suffered as much as the U.K.", they may have been bound to do so by their own constitutions.

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for the criminalisation of all sorts of political opposition. "s3 It remains to be seen, when (and if) all states ratify the Convention, how they will interpret it and under what circumstances. Conclusion

Before the French revolution in 1789, there was no question of crime or offender being labelled as political, and those who contested the social and political order were handled with great severity. The frequency of successful revolutions and liberalism in the 19th century allowed for the introduction of "political crime" into the legal domain, and a "r~gime de faveur" with respect to political offenders was established, which did not outlast the turn of the century. Legal theory and jurisprudence attempted to define "political crime" but unsuccessfully. In view of the considerable differences between political and ordinary offenders it is suggested that this distinction is more valid, useful and important. The political character of offenders, however, is not always recognised: at the national level depoliticisation of offenders and acts is more often the case. At the international level acts of violence categorised as terrorist have provoked harsher measures and more frequent use of extradition with respect to offenders that may be regarded as political by other states. On the other hand, such matters require delicate manoeuvres because very often relations between states and governments, international interests and needs are at stake. The European Convention on the Suppression of Terrorism 1976 is an illustration both of the growing severity vis-&-vis violent political opposition in the West, and of the way in which the need for a degree of flexibility is satisfied. In conclusion, the determination of the status of an offender is highly dependent on contingencies and it is a political issue and option. It goes hand in hand with state protection which is "highly malleable. In no other field is there a greater gap between the potential and the actual; in no other field is the shape of practice more subject to the requirements of the hour, bureaucratic proclivities, and assessment of profit and loss expressed in popular sensitivity and reactions of groups exposed to sanctions. "54 F. Tulkens, "Analyse critique de la Convention europ6enne pour ta r6pression du terrorisme" in D6viance et Soci6t6, vol.3, no.3, Gen~ve, 1979, 238. O. Kirchheimer, supra note3 at 44.