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Asylum*

Published online by Cambridge University Press:  02 September 2013

Otto Kirchheimer
Otto Kirchheimer
Affiliation:
New School for Social Research
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Extract

Asylum for political refugees is an ancient practice, privilege and problem. It has shown a remarkable capacity for institutional survival, albeit with accommodations, in the vicissitudes of changing international relations. I propose here to review its recent performance and consider its continued utility in the contemporary world.

I. MASS INFLUX OF FUGITIVES

Cyrus, after the conquest of Sardes, had placed Pactyas, a native, in a position of trust in the occupied city; but no sooner was Cyrus gone than Pactyas organized a revolt against the new regime. When he learned that Cyrus's troops were on the march to quell the insurrection, he fled in terror to Cyme. Cyrus's military governor then demanded the rebel's surrender, on penalty of that city's destruction. The oracle of the Branchidae, where the Cymeans sought to learn the will of the gods, advised extradition, and the city made ready to abide by the decision. One Aristodicus, however, a citizen of distinction, balked, successfully; a second mission was dispatched to seek out the oracle. The oracle stood pat. Thereupon Aristodicus, who was one of the envoys, circled the temple, removing all birds' nests within reach. The oracle's voice interceded for the birds, bidding Aristodicus to state his case. How then, he said, are you in haste to protect supplicants whilst you command the Cymeans to give one up? Said the voice: Verily, I did so order the Cymeans that they may perish the sooner for their impiety nor ever return to seek my oracle's counsel on the surrender of supplicants.

Type
Research Article
Information
American Political Science Review , Volume 53 , Issue 4 , December 1959 , pp. 985 - 1016
Copyright
Copyright © American Political Science Association 1959

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References

1 From Herodotus, History, Bk. I, secs. 153–160.

2 See, e.g., the widely ranging discussion at the Bath session of the Institute of International Law; account in Annuaire de l'Institut de Droit International, Vol. 43 (1950), Pt. I, pp. 132 ff. and 202Google Scholar; Pt. II, pp. 198–255.

3 Cf. Article 14 of the Universal Declaration of Human Rights. In a circumspect wording, reference is made to “the right to seek and enjoy in other countries asylum from persecution.”

4 The Geneva Convention of July 25, 1951 (see infra, p. 994), may serve as an example, Cf. comment by Weiss, P., “Legal Aspects of the Convention of July 25, 1951, Relating to the Status of Refugees,” in British Year-Book of International Law, Vol. 30 (1953), pp. 478 ff.Google Scholar

4a It is sometimes stated that abstention from political activity by the asylum seeker is a prerequisite of the asylum grant. This has recently been restated by Prime Minister Nehru in regard to the Dalai Lama. Nehru remarked that the Dalai Lama, while in exile in India, would be free to carry on his “legitimate religious activities”; but “political activities are not carried on from one country to another.” Cf. Washington Post and Times-Herald, April 21, 1959, p. A4. Aside from the fact that it might not be easy to differentiate always between “legitimate” religious and “illegitimate” political activity, the extent to which the asylum country might want to enforce such a policy by threat of expulsion, depends on its interest configuration, shifting from country to country and from period to period. To the extent that the United States in the late forties and fifties only admitted asylum seekers who were not inimical to major United States policies, as distinct from some opposition to one or the other facet of periodical tactical shifts towards various and succeeding Caribbean or South American regimes, the problem does not presently emerge in an acute form. See also infra, pp. 992–993 and 998.

5 Leon Trotzky, My Life (N.Y., 1930), ch. 45.

6 Vernant, Jacques, The Refugee in the Post-War World (London, 1953)Google Scholar. And more recently Rogge, H., “Das Flüchtlingsproblem als internationale Rechtsfrage” in Internationales Recht und Diplomatie, Vol. 1 (1958), pp. 28, 109, 236Google Scholar, attempting a typology of recent mass migrations.

7 The term, political persecutee, should encompass actual and potential victims of racial, national, religious or political persecution, along with active fighters; in turn, the term, political refugee, should apply to any person having left his or her country of habitual residence for political or ideological reasons without necessarily having incurred or being exposed to persecution. Though distinctive criteria may not be easy to establish, the difference would matter if preferential treatment were granted to the persecutee by legislation or international agreement; cf. Grützner, Heinrich, “Auslieferungsverbot und Asylrecht,” in Neumann, Franz L., Nipperdey, Hans Carl and Scheuner, Ulrich, eds., Die Grundrechte. Handbuch der Theorie und Praxis der Grundrechte, Vol. II (Berlin, 1955), pp. 585–604Google Scholar, esp. p. 601; and von Mangoldt, Hermann, Klein, Friedrich, Das Bonner Grundgesetz (2d ed., Berlin, 1954)Google Scholar, Art. 16, V c—e. However, apart from small groups certified by the country of asylum as previously in politics, official recognition would be an innovation with respect to most categories of political persecutees. Swiss policy is a case in point. From 1933 through 1948 a total of only 2,124 persons asked Swiss authorities for recognition as political persecutees; of these, only 746 obtained it. This is in line with the now officially acknowledged fact that “refugees for merely [sic!] racial reasons” were not officially granted asylum privileges by the Swiss government in the late 1930's and early 1940's; cf. documents compiled by Professor Ludwig of Basel for Swiss executive departments: Ludwig, Carl, Die Flüchtlingspolitik der Schweiz seit 1933 bis zur Gegenwart, Bericht an den Bundesrat zu Händen der Eidgenössischen Räte (Berne, 1957), p. 208Google Scholar. Save for individual instances of imminent personal danger, Swiss authorities also refused asylum to Free French followers of General Charles de Gaulle, German Social Democrats, and French nationals escaping deportation to Germany for slave labor service (op. cit., p. 230).

8 Hugo Grotius, De iure belli ac pacis (1625), liber II, 5, xxiv. An illustration may be added. During the Brussels Worlds Fair of 1958, some 300 visitors from totalitarian lands asked the Belgian authorities for political asylum. It may be taken for granted that the wish to live outside the totalitarian realm and enjoy the high Belgian living standards rather than any imminent danger of persecution motivated most of these requests.

9 See Oppenheim-Lauterpacht, , International Law (8th ed., London, 1955)Google Scholar, para. 316, for the prevailing opinion to the effect that the right-of-asylum commitment is not at present part of the law. According to M. D. Raestaed's paper at Bath in Annuaire …, as quoted supra n. 2, p. 135, this clause is generally taken to imply the individual nation's right to grant asylum. Lange, Richard, Grundfragen des Auslieferungs- und Asylrechis (Karlsruhe, 1953), p. 20Google Scholar, is right in stating that the generous provisions of the Bonn Basic Law go beyond the established practice of international law.

The recent discussion (March 23–25, 1959) in the Commission of Human Rights of the United Nations' Economic and Social Council, geared towards eventual production of a U.N. draft of asylum principles, bears evidence that even as ambiguous a formula as “every person whose life, physical integrity or liberty is threatened, in violation of the principles of the Universal Declaration of Human Rights, shall be regarded as entitled to seek asylum,” would encounter resistance. Article 1 of the revised French preliminary draft, accepted (by 15 votes with 2 abstentions) for communication to other interested agencies for discussion, therefore restates the right of asylum in the traditional way: “as the right of every state to grant asylum. (United Nations Economic and Social Council, Commission on Human Rights, Fifteenth Session Agenda item 13 E/CN. 4/L/534/Add.3; 3 April 1959.)

10 Italian Constitution of December 27, 1949, Art. 19 (3); French constitution of October 27, 1946, Preamble; the present constitution omits a detailed preamble.

11 USSR Constitution of January 21, 1937, Art. 133. According to the more recent Constitution of the People's Republic of China of September 20, 1954, Art. 99, asylum is assured to all aliens persecuted for having defended a just cause or participated in the fight for freedom, or for scholarly activity.

12 A characteristic circular letter by the executive board of Rote Hilfe, the German Communist Party's auxiliary for relief and assistance, dated Moscow, May 26, 1936, may be consulted in Schweizer Bundesblatt, 1946, Vol. 2, p. 227Google Scholar.

13 Years ago the USSR's purely self-service-centered approach to the rescue of persecuted European Communists was exposed in minute detail by a prominent Spanish exile, Hernandez, Jesus, La Grande Trahison (Paris, 1953)Google Scholar. In the years that followed many lurid accounts were added in a fast growing array of memoir publications and historical studies.

14 The interrelationship between immigration and refugee problems is touched upon in Robbins, Richard, “The Refugee Status: Challenge and Response,” in Law and Contemporary Problems, Vol. 21 (1956), p. 316–3CrossRefGoogle Scholar33; the same issue also contains some contributions dealing with the effects of the 1952 McCarran-Walter Act. Under the thick overlay of recent provisions aiming at excluding political undesirables the general body of United States immigration law still contains some isolated relics positively privileging political-type persecutees. Purely political offenses are not deemed to involve moral turpitude barring admission per se, 8 USC 1182 (a) (9 & 10); illiterate immigrants are exempt from the exclusionary rule of 8 USC 1182 (a) (25) if they happen to be victims of religious persecution 8 USC 1182 (b) (2).

15 For realistic comment, see The Economist, April 14, 1956, p. 121Google Scholar.

16 Overall analysis of British admission policies will be found in Morgenstern, Felise, “The Right of Asylum,” in British Year-Book of International Law, Vol. 26 (1949), pp. 327–352Google Scholar. In 1929 Trotsky had asked J. Ramsay MacDonald's Labour government for an entry permit. The application was denied by Home Secretary John Robert Clynes. Earlier the latter's fellow Cabinet member, Foreign Secretary Arthur Henderson, had complained about the bluntness with which his subordinates reduced the issue to one of benefit or damage to British interest. The episode has been narrated by Dalton, Hugh, Call Back Yesterday (London, 1953), p. 219Google Scholar.

Stranded in an English port after his escape from United States penal action, Gerhart Eisler, well known German Communist official, was not extradited by the British authorities. Without touching on the political issue, the British committing magistrate refused to entertain the action—on the ground that the offense (perjury) for which the United States had requested extradition was defined differently in British and in American law. Having refused to extradite Eisler, Great Britain was prepared to grant him asylum, of which offer, however, Eisler did not avail himself. Obviously the United States government must have realized full well that the extradition request, given the whole background of the Eisler case, never stood any chance of success; but the extradition proceedings had to be put in motion, if for no other reason than to satisfy prevailing US opinion trends. Jacob, Philip E., “International Extradition. Implications of the Eisler Case,” Yale Law Journal, Vol. 59 (1950), p. 622CrossRefGoogle Scholar. For rather odd criticism, see Green, L. C., “Recent Practice in the Law of International Extradition,” Current Legal Problems, Vol. 6 (1953), pp. 274–296CrossRefGoogle Scholar

17 Cf. Lange, Grundfragen …, as quoted supra n. 9, and Grützner, “Auslieferungsverbot …,” as quoted supra n. 7. For the German extradition practice, cf. infra notes 45 and 51.

18 At first sight Art. 32 with its catchall permissive clause allowing expulsion “on grounds of national security and public order” looks rather meaningless. However, its importance lies in the adoption of some international standards of procedural due process, including the right to present evidence, to be represented by counsel, to appeal an unfavorable ruling and—as a last resort—some “reasonable period” to seek admission elsewhere. Only “compelling reasons of public security,” in other words much more than intonation of a formula by some administrator, may serve as an excuse for dispensing with due process.

19 Ludwig, Die Flüchtlingspolilik …, as quoted supra n. 7, carries many a document outlining Swiss official policy. Its harshness was first documented in U.S. Department of State, Documents on German Foreign Policy, 1918–1945, Series D, Vol. 5, (Washington, 1952) nos. 642–644, pp. 895 ffGoogle Scholar. The Swiss—there is no doubt about it—actively sought to stop the influx of German Jews and interceded to this effect with the Nazi government; it matters little that the choice of procedures—e.g., the marking of passports—was left to German discretion, as related in Ludwig, op. cit., p. 148. True, in one instance the Swiss firmly opposed discriminatory measures; they bluntly refused to order the marking of passports carried by Swiss Jews, as had been suggested by the Germans. The suggestion apparently had been made for bargaining purposes; to the Nazis it served to underscore the fact that the German government had done the Swiss a special favor in giving them a chance to bar the entry of Jews from across the border at a time when what Germany wanted most was to dump her Jews on neighboring countries.

20 Such practices have been banned by Art. 31 of the Convention of July 25, 1951. Under its terms the country of asylum shall not impose penalties on the asylum-seeker for illegal entry or unauthorized residence—provided only that the offender present himself without delay to the competent authority. Section 20 of the U.S.S.R. statute of December 26, 1958, on crimes against the state (translated in Highlights of Current Legislation and Activities in Mid-Europe, Vol. 7, no. 1, January 1959) contains a similar provission in favor of asylum seekers in the form of an exemption from the penalties provided for illegal frontier crossing. If taken at face value this provision would show that under any social structure administrative routine may at times work enough at cross purposes with political goals to elicit explicit new general rulings.

21 Glimpses and criticisms of these French practices in Gleisberg, A., A la recherche d'une patrie (Paris, 1946), pp. 109–155Google Scholar.

22 See Weiss, “Legal Aspects …,” as quoted supra n. 4, p. 482. This point also was strongly emphasized in the Swiss government's message to parliament, wherein approval of the convention was recommended; see Feuille Federale, Vol. 2, no. 28 (July 15, 1954), pp. 49 ff., esp. p. 62Google Scholar. In theory, this marked anti-asylum stand has been abandoned, according to Ludwig, Die Flüchtlingspolitik …, as quoted supra, no 7, p. 404. The new doctrine expressly rejects the view that, in time of increasing international tension or war, admission of refugees above a fixed low ceiling (originally—op. cit., p. 214—set around 7,000) was contrary to the interests of national defense; it is now held that the right to asylum “is one of the facts which national defense must take into consideration”; asylum must be granted unless this interfered with military requirements. A restrictive clause, however, reneges upon the liberal promise. No admissions would be permitted during the “period of mobilization,” which is so broadly denned as to include a partial call to arms and special inductions for the reinforcement of frontier defenses; nor is there any indication as to what would terminate each “period of mobilization” and make the newly promised admission of persecutees operative.

23 Paléologue, Maurice, An Intimate Journal of the Dreyfus Case (New York, 1957), p. 84Google Scholar, carries, e.g., a letter by the then Russian Ambassador, wherein the “collaboration” of the Paris Police Prefect is gratefully acknowledged.

24 Grotius, De iure …, as quoted supra n. 8, II, 21, v.

25 U. S. Department of State, Documents …, as quoted supra n. 18, Vol. 8 (Washington, 1954), p. 165, carries the text of the protocol under the date of September 29, 1939.

26 Beck, F. and Godin, W., Russian Purge and Extraction of Confessions (London, 1951), p. 106Google Scholar; Buber-Neumann, Margarete, Von Potsdam nach Moskau, Stationen eines Irrweges (Stuttgart, 1957), p. 174Google Scholar.

27 Signed on November 20, 1957, the DDR-USSR treaty became effective on June 12, 1958; cf. Gesetzblatt der Deutschen Demokratischen Republik, 1958, Part I, pp. 241, 509. Similar agreements with Czechoslovakia, Poland, Bulgaria, Rumania and Hungary came into force in 1957 and 1958; cf. Ostmann, , Die Rechtshilfevertraege der DDR in Neue Justiz, Vol. 12 (1958), pp. 545–550Google Scholar. No corresponding arrangement seems to have ever been made with Yugoslavia. The Czech-Polish Convention of January 2, 1949 (U.N. Treaty Series, Vol. 31, p. 300, 1950), which in its Art. 60 b excludes extradition for political crimes, has to be regarded as a remnant from a former period, where institutional coordination of international law devices did not yet fully function. Art. 59 of the DDR-Czech convention of September 11, 1956 (Gesetzblatt …, 1956, Part 1, pp. 1201), enumerating the cases where extradition does not apply, is conspicuously silent on that point.

28 For a characteristic evaluation of the same incidents from the viewpoint of the participating United States authorities, cf. the “authorized” The FBI Story by Whitehead, Don (New York, 1957), pp. 297, 318Google Scholar.

29 Chief Justice Hughes in Valentine v. U.S. ex rel Neidecker, 299 U.S. 5 (1936).

30 12 F. Supp. 515 (1956); see also Chandler v. U.S., 171 P. (2d) 921 (1948); Ker v. Ill., in 119 U.S. 437, 443 (1886). For the identical attitude in German jurisprudence, see Entscheidungen des Reichsgerichts in Strafsachen, Vol. 70 (1936), p. 286Google Scholar, where persons subject to extradition are referred to as “extradition objects” [Gegenstände der Auslieferung]; “objects” of course may not derive asylum claims or contest the legality of extradition.

31 This does not, however, apply to cases of exiles kidnapped on asylum territory; the kidnapped individual's fate would seem to depend on whether or not the government of the asylum country took steps to obtain his return. For Swiss protests in the Berthold Jacob abduction case see American Journal of International Law, Vol. 24 (1935), pp. 502–507Google Scholar. Legal evaluation of surrender effected through over-zealousness or corruption of the asylum country's lower-level officials is controversial. Dealing with the abduction, from Mexican territory, of a fugitive United States national sought for narcotics offenses, the Federal District Court in ex parte Lopez, 6 F. Sup. 342 (1934), denied the abductee's habeas corpus petition on the ground that whatever had occurred under the sovereignty of the Mexican government was outside the court's jurisdiction and should be taken up with the United States Department of State.

32 See discussion in Garcia-Mora, Manuel R., “Criminal Jurisdiction of a State over Fugitives Brought from a Foreign Country by Force or Fraud. A Comparative Study,” Indiana Law Journal, Vol. 32 (1957), pp. 427–449Google Scholar. Of the two cases, one—cf. Tribunal Correctionnel d'Avesnes in Recueil Sirey, Vol. II, 1934, pp. 105 ffGoogle Scholar—referred to a Belgian suspect of larceny who had been abducted from Belgian territory by French officials. The French court ordered the prisoner released, as seizure on Belgian territory constituted grounds for the absolute nullity of the proceedings. In the other case—part of a damage suit before the U.S.-Panama Claims Commission, related in Annual Digest of Public International Law Cases for 1933–34, Case No. 96, pp. 250/51—a similar act of abduction on foreign territory was likewise held illegal.

33 8 U.S.C. §1,253 (h); United States Statutes, Vol. 66, p. 212 (1952)Google Scholar. In purely legal terms a change in the wording of the applicable provision has made the prospective deportee's position less secure. Previously deportation under the terms of the Internal Security Act of 1950 (U.S. Statutes, Vol. 64, p. 1,010Google Scholar) was inoperative if the Attorney General found the deportable alien should not be subjected to deportation. The statute now in force merely suspends deportation to countries which would subject the alien to prosecution. Court rulings—U.S. ex rel. Dolenz v. Shaughnessey, 206 F. 2d. 392, 394 (1953); U.S. ex rel. Leong Choy Moon, 218 F 2d., 316 (1954); Namkung v. Boyd, 226 F. 2d. 385 (1955); and Almeida v. Murff, 159 F. Supp. 484 (1958)—have interpreted this change of wording as expressing the intention of Congress to leave the decision as to whether or not a deportable alien should be deported within the province of administrative discretion, labelling it a political issue, and to confine the courts merely to looking into the procedural aspects of due process. This contrasts with the previous interpretation, under which administrative findings had been upset by courts holding that theirs was the task of independently determining whether the deportees faced the threat of physical persecution; see e.g., U.S. ex rel. Watts v. Shaughnessy, 107 F. Supp. 613 (1952). According to Annual Report of the Attorney General (Washington, 1956), p. 422Google Scholar, a total of 1,493 applications to suspend deportation under paragraph 243 (h) had been filed in 1956 with the Department of Justice; suspension was denied in 159 out of 629 completed cases. The report for 1957 omits statistical references.

34 Recent rulings of the German Federal Republic's highest administrative tribunal approved in principle deportation of aliens convicted of crimes or misdemeanors, but explicitly prohibited deportation to a country where the deportee would face prosecution for political reasons; see Entscheidungen des Bundesverwaltungsgerichts, Vol. 4 (1957), pp. 235, 238Google Scholar. However, administrative agencies might at times repatriate undesirable refugees before a court order could be obtained protecting them against delivery to a country where they might have to expect politically tinged prosecution.

35 See comment in Papadatos, Pierre A., Le Délit politique (Geneva, 1955), p. 71Google Scholar. An attempt by a Harvard research group to define offenses of a political nature, American Journal of International Law, Vol. 29 (1935), Supplement, pp. 107–119Google Scholar, was not overly successful. The authors thoroughly examined definitions in statutes and extradition treaties as well as the exceptions appended, and came up with the statement that non-extraditable offenses included treason, sedition, and espionage, regardless of whether the incriminated acts had been committed by one or several persons; they added acts connected with organized groups' offenses against the safety of the governmental system in the country requesting extradition; nor did they brush aside other criminal acts aimed at political objectives. Instead of a definition, the study thus elicited an inventory of possible, though not exclusive, categories of cases.

36 How soon considerations of political expediency may triumph over emphatically stated moral convictions was shown by Lord Curzon's change of mind in regard to criminal proceedings against Wilhelm II. On November 13, 1918 Lord Curzon, in a talk with Lloyd George, his political superior, mapped out elaborate plans for trying the Kaiser in England. Yet on July 3, 1919 he penned a letter in which he emphatically insisted on a trial in Holland, arguing that if the exiled monarch were to be convicted on British soil, Britain would forever lose Germany's friendship; while Britain would be exposed to ridicule if he were to be tried in England and acquitted. The story has been preserved for posterity by Beaverbrook, Lord, Men and Power, 1917–18 (New York, 1956), App. IV, pp. 385 ff.Google Scholar

37 Appeal Court of Turino, November 23, 1934, in Foro Italiano, 1935, Vol. IIGoogle Scholar, col. 20. More recently Pavelic's extradition for murders committed under his authority as head of the Ustashi regime in Croatia (for the U.S. parallel case see infra, note 65) has been demanded from Argentina by Yugoslavia. The Peron regime allowed him to submerge. He left Argentina for Paraguay after Peron's downfall and after his identity became accidentally divulged.

38 Henri Rousseau, note to decision quoted supra, n. 34, Revue Critique de Droit International, Vol. 30 (1935), p. 766/768Google Scholar. Legal distinctions between the assassination of the Yugoslav king and that of Barthou were discussed by Philonenko, Maximilien, “Le refus d'extradition des terroristes Croates,” Journal de Droit International, vol. 61, (1934), pp. 1,157–1,169Google Scholar. The decision's reasoning could have been strengthened by referring to the fact that the controlling French-Italian extradition agreement of May 12, 1870 did not contain the so-called “Attentat provision”, exempting assassination from the principle of non-extradition of political offenders; infra, p. 1005.

39 Greenbaum, R. B., “Recent Developments in the Law of Diplomatic Asylum,”, Transactions of the Grotius Society, Vol. 41 (1956), pp. 103 ff.Google Scholar; Padelford, Norman, International Law and Diplomacy in the Spanish Civil War (New York, 1939), p. 770Google Scholar.

40 For the International Court of Justice, see ICJ Reports, Vol. 5 (1951), pp. 81 f.Google Scholar; cf. Evans, Alona, “The Colombian-Peruvian Asylum Case: Termination of the Judicial Phase,” American Journal of International Law, Vol. 45 (1951), pp. 755–762Google Scholar.

41 For the traditional big power view, see Hackworth, G. H., Digest of International Law, Vol. 2 (1941), pp. 623, 770Google Scholar; cf. a characteristic quotation in Padelford, International Law …, cited supra n. 39, p. 162.

42 Hungary's failure to take action against the Cardinal's being sheltered by the United States Embassy indicated tactical choice rather than recognition of the principle of diplomatic asylum. In the analogous case of the unfortunate members of the Nagy government who had taken refuge in the Yugoslav Embassy, the Hungarian government (and its Soviet protectors) obtained the fugitive's surrender against the express promise of non-prosecution and safe conduct, which was immediately broken. In notes addressed on November 24, 1956, to both Hungary and the USSR the Yugoslav government filed a strong protest and requested information on the whereabouts of the victims. The Hungarians' reply of December 1, 1956 insisted on the strictly domestic nature of the action taken; this once more was protested by the Yugoslavs on December 6. Another protest was entered on June 23, 1958 after the execution of Nagy had been officially announced.

43 Two British cases set the precedent: In re Castioni (1891) in Q.B., Vol. 1 (1891), pp. 149 seq., and In re Meunier, Q.B., Vol. 2 (1894), pp. 415, seg.

44 Garcia-Mora, Manuel R., International Law and Asylum as a Legal Right (Washington, 1956), p. 71Google Scholar. Reviewers have been sceptical on this point: see, e.g., Wright, Quincy, University of Chicago Law Review, Vol. 24 (1956), p. 202CrossRefGoogle Scholar.

45 Wasilieff, , in Entscheidungen des Schweizerischen Bundesgerichts, Vol. 34 (1908), Pt. I, p. 557Google Scholar. The legal basis of the Swisa practice, Art. 10 of the law of January 2, 1892, rests on the so-called “predominant element” theory. It is conveniently vague to allow for unlimited judicial discretion. See Papadatos, op. cit. supra, n. 35, at p. 80; and Schultz, Hans, Das Schweizer Auslieferungsrecht (Basel, 1953)Google Scholar. The 1922 Fort-Concepcion case—terminated by simple administrative procedure in the then absence of judicial hearing, which was introduced in Germany only in 1929—bears a close similarity to the Swias case noted above, both as to the facts involved and as to its ultimate disposal. It concerned the Spanish extradition demand for two members of an anarchistic group, who had participated in the murder of President Dato of the Council of Ministera committed as an act of reprisal against his oppressive measures. The defense of the decision to extradite fell upon Federal Minister of Justice Gustav Radbruch, as venerable and famous as a philosopher of law and reformer of criminal law as he was inexperienced and naive as a politician and administrator. He spoke of an “inflexible law” which defines the meaning of offenses connected with a political act, leading to the both “legally and humanly disagreeable result of making the grant of extradition a necessary part of German loyalty to its treaty obligations,” an attitude of correctness which was the more necessary as it would set a precedent facilitating the expeditious granting of Germany's pending extradition demand for the murderers of Mathias Erzberger by Horthy Hungary—which latter request was promptly refused. Cf. Deutscher Reichstag, I. Wahlperiode Stenographischer Bericht, session of February 23, 1922, p. 6042. A more recent German decision—Skzantos—Bundesgerichtshof, Entscheidungen in Strafsachen, Vol. 8 (1955) pp. 59–66Google Scholar, ordering the extradition of a member of Elas, sentenced to death in absentia for participation in murder, follows the same line. (The Greek government had, however, declared its preparedness to renounce the execution of a death sentence.) The decision, which is not in accord with the two German cases quoted infra note 51, affirms the continuing applicability of Art. 3 (3) of the 1929 extradition statute, exempting murder from the rule of non-extradition in political cases. The reasoning concentrates on the act committed by the asylum-seeker rather than on the political coloration of prosecutions in the home state. Rejecting the interpretation that Art. 3 (3) of the 1929 extradition law has been superseded by Art. 16, 2 (2) of the Basic Law it speaks in rather general terms of an “Accentuated tendency towards combatting political offenses directed against life” ibid. at p. 65; but see note 59, infra, for an implicit refutation of this argument.

46 Keresselidse, , in Entscheidungen …, Vol. 33, Pt. I (1907), p. 169Google Scholar.

47 Vogt, , in Entscheidungen …, Vol. 50, Pt. I (1924), p. 249Google Scholar; cf. Kaphengst case, op cit., Vol. 56, Pt. I (1930), p. 547.

48 Pavan, , in Entscheidungen …, Vol. 54, Pt. I (1928), p. 207Google Scholar.

49 Camporini, , in Entscheidungen …, Vol. 50, Pt. I (1924), p. 299Google Scholar.

50 Ragni, , in Entscheidungen …, Vol. 49, Pt. I (1923), p. 266Google Scholar. Similar acts sometimes were seen as political disputes, e.g., the killing of a Nazi by a member of a democratic German combat group—see Ockert, op. cit., Vol. 59, Pt. I (1933), p. 136. Roger Corbaz, Le Délit politique d'après le Tribunal Federal Suisse, thesis, Lausanne, 1927, p. 57, notes that the efficiency-of-means test had a different meaning in 1923 as compared to 1907. Yet it was restored to its original meaning—at least temporarily—after Fascism had lost its paramount importance; cf. the following cases: Peruzzo, , Entscheidungen …, Vol. 77 (1951), Pt. I, p. 50Google Scholar; Nappi, Vol. 78 Pt. I (1952), p. 123; but in Picorelli, vol. 77, Pt. I (1951), p. 57, the court denied extradition of a member of a Neo-Fascist division who in December 1944 had carried out the execution of a traitor; the court held that there still had been armed conflict involving both foreign and domestic enemies, that the defendant had had no personal motive for committing murder, and that all members of his unit faced identical penalties if returned to Italy.

51 Ravic, and Associates, in Bundesgericht, Entscheidungen …, Vol. 78, (1952), p. 39Google Scholar. A similar British case—Ex parte Kolczynski, , in All English Law Reports, Vol. 1 (1955), p. 31Google Scholar—was commented upon by Denny, E., “An Affair of a Political Character,” Modern Law Review, Vol. 18 (1955) p. 3Google Scholar80; the court brought out the inadequacy of the earlier formula under which nonextradition was confined to incidents tied up with political disturbances. A German decision—Lestrel, , in Bundesgerichtshof, Entscheidungen in Strafsacken, Vol. 3 (1953), p. 392Google Scholar—denied extradition of a fugitive sought by Ecuador for larceny, on the presumption that prosecution was politically inspired; for criticism, see Lange, Grundfragen …, as cited supra n. 9, p. 19, More recently the Federal Constitutional Court has confirmed and extended the policy of the Lestrel case. After having first affirmed the admissibility of a preliminary injunction in a constitutional complaint based on violation of Art. 16, 2 (2), Entscheidungen des Bundesverfassungsgerichts, Vol. 6 (1957), p. 433Google Scholar, the court on February 3, 1959, Enscheidungen …. Vol. 9 (1959), p. 175Google Scholar, reversed the appeal court decision, which had granted the extradition of a Yugoslav citizen, demanded by his home state for embezzlement charges deriving from his activity as director of a state enterprise. This far-reaching decision establishes three principles: (a) assurances of the demanding state tha t the defendant would only be held accountable for the specific charges covered in the extradition demand do not provide a sufficient guarantee that political goals might not influence the punishment, if the totality of the life situation has come under political control in the demanding state; (b) the protection against extradition is not excluded by the fact that the defendant's political activity against his home state—accession to a royalist emigré organization—has only started after the defendant reached the asylum country, provided the accession has been undertaken bona fide and not simply for the purpose of establishing persecutee status; (c) court protection against a politically colored extradition demand is not dependent on recognition of the political persecutee status of the defendant by the administrative authorities of the asylum state. With the help of this construct which recognizes political activity post-dating the flight from the home country, the German Court thus reaches the same results as the Swiss and British courts. Contrariwise, a British court—In re Government of India and Ahmed, Mubarak Ali, in All E. L. R., Vol. I (1952), p. 1060Google Scholar—rejected the defendant's contention that he would not be granted a fair trial on an embezzlement charge which he alleged was tinged by politics.

52 See Neumann, Robert G., “Neutral States and Extradition of War Criminals,” American Journal of International Law, Vol. 45 (1951), pp. 495–508CrossRefGoogle Scholar. In the course of its first session the UN General Assembly turned down a USSR proposal to deny UN protection to “Quislings and traitors” among Displaced Persons, see Journal of the First General Assembly of the United Nations, First Session 1946, pp. 544–564; the resolution of the UN General Assembly of October 31, 1947, which recommends the extradition of war criminals, throws together war criminals and traitors (defined as national subjects who are accused by their home country of having committed treason or active collaboration with the enemy). Cf. United Nations Yearbook 1947–48 (New York, 1949), p. 222Google Scholar. However, as the resolution contained a provision which made extradition dependent upon existence of a prima facie case, it was only adopted with 42 against 7 (Soviet bloc) votes with 6 abstentions. The very necessary delimitation between political crimes and crimes against humanity is treated—and its difficulties somewhat underestimated—in Garcia-Mora, M. R., “The present state of political offenses in the law of extradition and asylum,” U. of Pittsburgh L.R., Vol. 17 (1953) pp. 371–396Google Scholar.

53 To what extent other peace treaty provisions have remained a dead letter because the countries involved were affiliated with different power blocs was discussed by Hambro, Edward, “New Trends in the Law of Asylum and Extradition,” Western Political Quarterly, Vol. 5 (1952), pp. 1 ff.CrossRefGoogle Scholar

54 Cf. In re Court, in Foro Italiano, Vol. II (1952), p. 113Google Scholar.

55 In re Serclaes, in Annual Digest, see supra, n. 32, for 1952, p. 366. Such peace treaty provisions may well be termed “retrogressive steps,” as has been suggested by Oppenheim-Lauterpacht, International Law, cited supra n. 9, para. 338–340.

56 Van Belllnghen, Paris Court of Appeals, November 28, 1950, in Recueil Dalloz, 1951, p. 440Google Scholar. Court opinion has not been uniform. For criticism, see Garcon, Emile, Code Pénal annoté (Paris, 1952)Google Scholar, Art. 84, no. 43.

57 For France, see Penal Code, Art. 86 (3), and Decree of July 11, 1952, Art. 1. The Soviet Union's state security concepts reach similar results. Section 10 of the Law on State Crimes of December 25, 1958, cited supra n. 20, makes part of the state security legislation applicable to “especially dangerous acts against the state,” committed against “another state of the toilers.”

58 Accordingly, as stated in Annual Report of the Attorney General of the United States for 1957 (Washington, 1958), p. 52Google Scholar, France did not agree to extradite one Zlarotaky and his wife, indicted in the United States for intelligence activity on behalf of the USSR. A different decision, however, obtained in a recent case involving sale of technical information on weapons in which Italy had been requested by the Federal Republic of Germany to extradite one Keitel; the extradition was granted.

59 Under the impact of the assassination of King Alexander of Yugoslavia a convention to make terrorism and penetration for terror acts extraditable offenses was signed on November 16, 1937 under League of Nations auspices by 23 states. A supplementary agreement to establish an international criminal court was signed by 10 powers; the court was to have jurisdiction over acts of terrorism committed by persons sheltered, and in regard to whom extradition was refused by one of the signatory powers. For the vast literature on this still-born project, impossible of realization in a world of antagonistio power groups, see Oppenheim-Lauterpacht, cited supra n. 9, para. 127a.

60 Lammasch, Beinrich, Das Recht der Auslieferung, (Vienna, 1884), p. 51Google Scholar.

61 ICJ Reports, Vol. 4, (1950), p. 284Google Scholar.

62 Cf. Brazil's refusal to extradite a Danish “collaborationist,” Annual Digest cited supra n. 32, for 1947, p. 146. Naturally kindred souls attract each other. This is the reason why Franco's Spain, Peron's Argentina, Trujillo's San Domingo, Stroessner's Paraguay, Nasser's Egypt, have become post-war havens for totalitarian asylum seekers. But it should be noted that these governments do not rejoice at getting embroiled in disputes over the boundary lines between political and crime-against-humanity type offenses. They may deny knowledge of the whereabouts of their “guests,” urge them to move on, or, if a clear-cut decision becomes unavoidable, rationalize the desired result—non-extradition—without reaching the question of the political character of the offense charged by the demanding state. When Egypt recently rejected the German demand for the extradition of “Concentration camp doctor” Eisele, it grounded its refusal on differences between the applicable Egyptian and the German statute of limitations. Cf. Frankfurter Allgemeine Zeitung, October 17, 1958.

63 See Joseph Magnol on the judgments of the Courts of Appeal of Aix (May 12, 1941), Toulouse (June 6, 1941), and Algiers (October 10, 1941), in La Semaine Juridique, Vol. II (1942), p. 1795Google Scholar.

64 See, e.g., In re Ezeta, 62 F. 972 (1894) (Northern District of California); and the case Rudewitz reported in Hackworth, Digest, cited supra n. 41, vol. 4, p. 49.

65 Two recent cases should be mentioned here: The first concerns 5 sailors from the Spanish Navy, who deserted while on shore leave on the West Coast and fled to Mexico. Seized by Mexican officials they were transported back to the U. S. frontier under the coaxing of both US and Spanish Navy officers and—as the Court of Appeals puts it—“rather unvoluntarily” brought back onto American soil, for the purpose of being handed over to the Spanish authorities. In its somewhat tortured conclusions the Court of Appeals for the 9th circuit avoids any reference to the political asylum problem and chides the appellant's lawyers for ever having raised the question; it bases its findings favorable to the sailors, on the inapplicability of Article 24 (surrender of deserters) of the Spanish-American treaty of 1902; for this purpose the court construes the act of desertion as having occurred only at the moment when the sailors changed over to Mexico. As they had been brought to the States against their will, they would have to be put back on Mexican soil, a feasible solution inasmuch as the Mexican government meanwhile had disavowed the attitude taken by its local officials and granted permission to stay. Medina v. Hartman, 260 F (2d) 569 (1958). The other case concerns the attempts of the Yugoslav government to effect the rendition of Andrijga Artucovic, former Minister of Interior in Ante Pavelic's Ustashi government. The same Court of Appeals accepted the political character of the murders alleged to have been committed on Artucovic's orders and labelled war crimes by the Yugoslav government. Rejecting the Yugoslav demand, the court concluded that the UN resolutions of 1946 and 1947 (see supra n. 53) “have not sufficient force of law to modify long stapding judicial interpretation of similar treaty provisions.” Karadzole v. Artucovik, 247 F(2d) 198, at 205 (1957). The Supreme Court, Justices Black and Douglas dissenting, sent the case back to the District Court for a hearing on the material submitted by the Yugoslav authorities, 335 U.S. 393 (1958). However, the District Court confirmed the conclusions previously reached by the Court of Appeals. In addition there is presently pending before the U. S. District Court in Miami Venezuela's request to extradite ex-Dictator Marcos Pérez Jimenez on charges of murder, embezzlement and complicity in both; cf. Time, Sept. 7, 1959, p. 30.

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