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from Part II - Migrants, their Rights and the Limits Thereof
Published online by Cambridge University Press: 12 October 2018
INTRODUCTION
Extradition is a mechanism of international cooperation in criminal matters whereby a state (the requested state) surrenders a person to another state (the requesting state) that seeks the individual for trial or punishment for the perpetration of a crime. Extradition thus hampers alleged criminals from enjoying the impunity made possible by the crossing of a territorial border, where the jurisdiction of the requesting state does not apply. Conversely, another mechanism that enables certain people to escape from the jurisdiction of a state exists, asylum. However, asylum is not a mechanism of international criminal law, as is extradition, and does not apply to alleged criminals. It concerns a particular group of people (asylum seekers) who have been subjected to persecution in their country and consequently moved across borders in search of protection in a safe haven. Both mechanisms pertain to the relationship of an individual to a foreign territory, but they have evolved separately in two different fields of law. Nevertheless, developments in one field can affect the other. This chapter focuses on the changes in extradition law regarding the protection associated with political offences and their impact on the possibility of claiming political asylum.
For a long time, political offenders enjoyed a special status in extradition law: they were exempted from extradition. This meant that political offenders could benefit from an informal form of asylum, as they could stay in the country to which they had fied. Several reasons explain this political offence exception to extradition, not the least of which include the reluctance – for ideological reasons resulting from the French revolution – of states to surrender someone who would have risen up against despotism and tyranny, the need to avoid meddling in the internal affairs of their counterparts, and the wish to avoid diplomatic tensions by extraditing the terrorist of today who – depending on the outcome of the struggle conducted – may well, tomorrow, become the leader with whom the state that granted the extradition will have to develop political relations. As Honor é de Balzac phrases it, ‘les conspirateurs vaincus seront des brigands; victorieux, ils seront des héros’.
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