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Suppressing Terrorism under the European Convention: A British Perspective

Published online by Cambridge University Press:  21 May 2009

A.V. Lowe  and
J.R. Young
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Extract

In recent years many countries have experienced acts of violence committed for political ends, which have been termed terrorist. Some such acts are committed entirely within one country with a view to affecting domestic policy in that country, as is the case with the much publicized activities of radical groups in Italy and West Germany; others have international implications. The country of commission may be a convenient stage for an act whose primary target is the government of another, as when Palestinians took Israeli athletes as hostages during the Munich Olympics in 1972. The action may be planned to involve other countries as well, perhaps with a view to influencing their relations with the country which is the terrorists primary target, as with the South Moluccans who have committed acts of violence in the Netherlands. Sometimes attacks are launched in one country from a base in another, as with the Palestinians' incursions into Israel. Whether the violence is national or international, the terrorists often seek and usually achieve dramatic publicity. Though the number of people physically affected may be small, the psychological impact may be considerable. Besides, these acts are seen as attempting to weaken the authority of a government, or a system of government. It is not surprising, then, that governments should wish to take, and to be seen to take, active steps to meet this challenge. The Council of Europe's Convention on the Suppression of Terrorism (hereafter the European Convention) is one of a number of recent attempts at international co-operation in fulfilment of this wish.

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Netherlands International Law Review , Volume 25 , Issue 3 , December 1978 , pp. 305 - 333
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Copyright © T.M.C. Asser Press 1978

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References

1. Terrorism has no agreed definition, and its use is often a way of conveying disapproval, rather than being descriptive. The use of the term in this article is not intended as such a judgment. When it is used, it is in a context in which the authors believe there would be substantial agreement on the use of the term or where a particular definition is being considered. In any case, the term is not used when propriety of its usage might bear on the discussion.

For attempts to delineate the characteristics of terrorism cf., Wilkinson, Political Terrorism (1974) pp. 9–32Google Scholar; contrast Laqueur, , Terrorism (1977) pp. 1–7.Google Scholar

For historical accounts of terrorism and its philosophies see Wilkinson; Laqueur. For a record of recent “terrorist” acts, 1967–1975Google Scholar see Sobel, Lester A (ed.) Political Terrorism (1975)Google Scholar

2. UK Treaty Series No. 28 (1977) Cmnd 7031. Text without reservations in 15 ILM 1226 (1976). At the time of writing the Convention has been ratified by Austria, Sweden and West Germany for which countries the Convention took effect from 4 August 1978, Denmark effective from 28 September 1978, and the United Kingdom effective from 25 October 1978.

3. Thus the UK Prevention of Terrorism (Temporary Provisions) Act 1976 defines terrorism as “the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear”.

The US Government has also used the concept of terrorism under the “Wolff Amendment”, added in 1976 to the Foreign Assistance Act (1961), entitled “Prohibition Against Furnishing Assistance to Countries which grant Sanctuary to International Terrorists”. Digest of United States Practice in International Law (hereafter US Digest) 1976 pp. 154–55 (1977).Google Scholar

4. UN Official Records of the General Assembly, Twenty Eighth Session, Supplement No. 28 (1973); Thirty-second Session Supplement No. 37 (1977).

5. See study prepared by Secretariat cited in Report of the Ad Hoc Committee supra, Supplement No. 28 para. 23 pp. 7–8.

6. Cf., Supplement No. 28 supra paras. 49–50 and the Draft Proposal of the Non-Aligned Group of States p. 21.

7. See the “Declaration on the Struggle Against Colonialism in Western Europe”, issued by Breton, Irish and Galician separatist movements in Brittany on 3 February 1974. later adhered to by Welsh and Basque movements (Switzerland c. 1975). It seems that the IRA was at one time recognized as a liberation movement by the Libyan Government: see “Libya Faces US Trade Sanctions”, Sunday Times (London, 25 06 1978), p. 1.Google Scholar On self-determination generally see, e.g., Brownlie, I, Principles of Public International Law, 2nd ed. pp. 575–578 (1973)Google Scholar: Ronzitti, N., “Wars of National Liberation – A Legal Definition”, 1975 Italian Y'book of Int'l law p. 192.Google Scholar

8. UN Treaty Series, vol. 75, No. 973 p. 287. See, e.g., Starke, J.G., An Introduction to International Law, 8th ed., Ch. 17 (1977)Google Scholar, for a general introduction to this area of the law.

9. See, e.g., Sohn, L.B. and Beurgenthal, T., International Protection of Human Rights (1973)Google Scholar; Brownlie, op.cit., Ch. XXIV.

10. On the question of their application to “rebel” forces in armed conflicts within a single state see, e.g., Forsythe, D.P., “Legal Management of Internal War; the 1977 Protocol on Non-International Armed Conflicts”, 72 AJIL p. 272 (1978)CrossRefGoogle Scholar; Bothe, M., “Conflits Armés Internes et Droit International Humainitaire”, 82 Revue Générate de Droit International Public p. 82 (1978)Google Scholar; Draper, G.I.A. “The Status of Combatants and the Question of Guerilla Warfare” XLV BYIL, 173 (1971).Google Scholar

11. In 1969 and 1970 there were respectively 86 and 85 incidents of unlawful seizure of aircraft. For this and other statistics on hijacking see Joyner, N.D., Aerial Hijacking as an International Crime (1974), Chs. 3 and 4.Google Scholar

12. Convention on Offences and Certain Other Acts Committed on Board Aircraft, Tokyo, 14 09 1963Google Scholar (hereafter, ‘the Tokyo Convention’): II ILM 1042 (1963).

13. Convention for the Suppression of Unlawful Seizure of Aircraft, The Hague, 16 12 1970Google Scholar (hereafter ‘the Hague Convention’): X ILM 133 (1971).

14. Convention to Discourage Acts of Violence Against Civil Aviation, Montreal, 23 09 1971Google Scholar (hereafter ‘the Montreal Convention’): X ILM 1151 (1971).

An attempt to amend the Charter of the International Civil Aviation Organization so as to include the basic ‘anti-hijacking’ rules, thus extending the net of international conventional obligations in this matter, was unsuccessful: see XII ILM 377, 1536 (1973). See generally on these conventions McWhinney, E.. Aerial Piracy and International Law (1971)Google Scholar; Joyner, N.D., Aerial Hijacking as an International Crime (1974).Google ScholarFitzGerald, , “Recent proposals for concerted action against States in respect of unlawful interference with international civil aviation”. 40 J. Air Law and Com. 1 (1914).Google Scholar

A more promising attempt at coercing states not to give refuge to hijackers has been launched by an agreement reached in Bonn by the seven most industrialized Western Countries (Canada, France, Italy, Japan, UK, USA and West Germany) on 17 July 1978:

“The seven heads of state and government, concerned about terrorism and the taking of hostages, declare that their governments will intensify their joint efforts to combat international terrorism.

“To this end in cases where a country refuses the extradition or prosecution of those who have hijacked an aircraft, and/or do not return such aircraft, the heads of state or government are additionally resolved that their governments will take immediate action to cease all flights to that country.

“At the same time their governments will initiate action to halt all incoming flights from that country, or from any country by the airliner of the country concerned.

“They urge other governments to join them In this commitment.” The Times, (London, 18 07 1978).Google Scholar

15. See, e.g., Alexander, Y. (ed), International TerrorismGoogle Scholar Ch. 9 (“Terrorism in Latin America”, by R.E. Butler) (1976).Google Scholar More recently, attention has shifted to prominent businessmen and corporate facilities; see Vance, C. 78 Dep't of State, Bull. 03 1978, pp. 53–55 (1978).Google Scholar

16. X ILM 255 (1971). See also the draft convention on terrorism and kidnapping, approved by the Inter-American Juridical Committee in September 1970, IX ILM 1177 (1970), and that Committee's “statement of reasons” for the drafting of the convention ibid. p. 1200. The latter document contains an invaluable discussion of the question of ‘political’ terrorism.

17. That is, persons covered by the Vienna Convention on Diplomatic Relations, 1961 (500 UNTS 95), the Vienna Convention on Consular Relations, 1963 (596 UNTS 261) and the UN Convention on Special Missions, 1969 (UNGA Res. 2530 (XXIV) Annex), and officials of international organizations: see the OAS Statement of Reasons …, IX ILM at pp. 1255–1257 (1970).

18. XIII ILM 41 (1974). See also Wood, M.C. 23 ICLQ, 791 (1974)CrossRefGoogle Scholar and C.L. Rozakis ibid. p. 32.

The Internationally Protected Persons Act 1978 has been passed in order to enable the UK to become a party to this Convention.

19. Even the most widely ratified of the hijacking conventions has only about 85 of the 150 or so states in the world as parties. These are not the only international efforts to coordinate action against terrorism: see also the Report of the UN Ad Hoc Committee on International Terrorism supra n. 4, and the Report of the Ad Hoc Committee on the Drafting of an International Convention Against the Taking of Hostages, GAOR, Thirty-Second Session, supplement No. 39 (A/32/38) (1977), neither of which have yet resulted in the conclusion of a treaty; and see the brief reference to the action of the EEC in European Community pp. 3–4 01 1978.Google Scholar Terrorism was also a subject of study at the Fifth Congress of the UN on the Prevention of Crime and th Treatment of Offenders, 1975, UN Doc. A/Conf. 56/L 3/Rev. 1 p. 19 et seq. and 56/L 8 p. 1 et seq. This is usefully summarized in Meyer 25, Zeitschrift fur Luft-und Weltraumrecht (1976) p. 222.Google Scholar See also Migliorino, L., “International Terrorism in the United Nations Debates”, II Italian Y'Book of Int'l Law p. 102 (1976).Google Scholar

20. Council of Europe, Explanatory Report on the European Convention on the Suppression of Terrorism p. 12 (1977); hereafter referred to as the Explanatory Report.

21. The international responsibility of a state may be engaged by a failure to take adequate steps to prevent or punish acts of terrorism. See, e.g., Brownlie, I., International Law and the Use of Force by States (1963) Ch. XXI.Google Scholar

22. Hague Convention Art. 9; Montreal Convention Art. 10; OAS Convention Artt. 1, 8; UN Convention Art. 4.

23. At p. 10.

24. Hague Convention Artt. 6(4), 10, 11; Montreal Convention Artt. 6(4), 11, 12; OAS Convention Artt. 1, 8; UN Convention Artt. 4, 5, 6, 10.

25. On the question of political offences in this context see infra p. 325.

26. European Treaty Series No. 30 (1959).

27. Under Art. 3 of its Charter INTERPOL cannot deal in exchange of information on politically motivated crime. See further Shearer, I.A., Extradition in International Law (1971) pp. 202–207 (hereafter, Shearer).Google Scholar

28. Reprinted in European Community 01 1978 p. 3.Google Scholar 9 November 1977 UK House of Lords Debates (hereafter H.L. Debs), vol. 387, cols. 260–1.Google Scholar

29. In the debate on the Second Reading of Suppression of Terrorism Act in the House of Lords, Baroness Elles tried, unscuccessfully, to elicit information on the subject from the Chancellor, Lord: 7 02 1978Google Scholar H.L. Debs. 388, cols. 937, 955–56.

30. Reprinted in the UK Stationery Office edition of the Convention published as Cmnd. 7031 (1977) p. 8. This edition of the Convention includes a useful guide to its provisions largely taken from the Council of Europe Explanatory Report.

31. Agreed by the Ministers of Justice of the Nine at Luxembourg 10 October 1978. Further discussion among the Nine may affect co-operation against terrorism. These include the scrutiny of a draft general extradition agreement, not confined to terrorism, and discussions on French proposals for a “European legal space” or “common judicial area”. Agence Europe 11 10 1978., No. 2536 p. 6Google Scholar; The Times (London, 11 10 1978).Google Scholar

32. Keesing's Contemporary Archives 28918–28920 (1978). Cf., State Research Bulletin No. 5 pp. 83–85 (1978).Google Scholar

33. And not without danger, given the suspicion with which the authorities treat teachers and researchers in the social sciences: see “Terrorism link with study of Sociology”, The Times (London, 13 04 1978)Google Scholar; for evidence of this link in West Germany see von Braunmuhl, C. “The attack on civil rights in West Germany” (1978) 19 Radical Philosophy 2 at pp. 6–8.Google Scholar

34. Jurisdiction is usually confined to acts committed, at least in part, within the territory of the state (the ‘territorial principle’) and to acts committed by nationals, although a number of states, including France and West Germany, have claimed jurisdiction over some offences committed against their nationals.

35. See, e.g., Shearer, Ch. 2. For a species of the aut dedere aut iudicare principle incorporated into domestic law see Austrian Penal Code sections 39–40: American Series of Penal Codes vol. 12 (1966).

36. European Treaty Series No. 24 (1957). Reprinted in Shearer, pp. 239–251.Google Scholar

37. Hague Convention Art. 8; Montreal Convention Art. 8; OAS Convention Artt. 3, 8; UN Convention Art. 8.

38. Montreal Convention Art. 8(2);Hague Convention Art. 8(2); UN Convention Art. 8(2).

39. For Art. 1 supra pp. 309–310; for Art. 2 p. 319.

40. The UK has extradition arrangements with all the Council of Europe members except Turkey.

41. Shearer, Ch. 3, 5 and 7.

42. Infra pp. 329–332 text to notes 117–125.

43. At p. 13. The principle can scarcely be obligatory since this would amount to an absolute right of political asylum, and there is no such right; cf., Greig, D.W., International Law, 2nd. ed. pp. 441–444 (1976)Google Scholar; cf., State v. Tapley, [1952] 1r. R. 62Google Scholar, where the Supreme Court of Eire declared (at p. 84):

“The attempt therefore to establish that the non-surrender of political refugees is a generally recognized principle of international law fails. The farthest that the matter can be put is that international law permits and favours the refusal of extradition of persons accused or convicted of offences of a political character but allows it to each State to exercise its own judgment as to whether it will grant or refuse extradition in such cases and also as to the limitations which it will impose upon such provisions as exempt from extradition.”

44. See further Shearer, pp. 181–185.Google Scholar

45. Explanatory Report p. 310.

46. Infra p. 321, text to n. 80–84.

47. Annual Digest of International Law (hereafter AD (1933–34) p. 369.Google Scholar

48. See, e.g., the following European cases in the Annual Digest of Public International Law cases and its successor, the International Law Reports: In re: Camporini 2 AD p. 309Google Scholar; 4 AD p. 347: The Noblot case, 4 AD p. 350Google Scholar; In re: Kaphengst, 5 AD p. 292Google Scholar; In re: Fabijan, 7 AD p. 360Google Scholar; In re: Ockert, 7 AD p. 369Google Scholar; In re: Pavelic and Kwaternik, 7 AD p. 373 and cf.Google Scholar, the comments of Lord Simon in [1973] 2 All ER at p. 218; In re: Giovanni Gatti, 14 ILR p. 145Google Scholar; The State (Duggan) v. Tapley 18 ILR p. 336; In re: Ficorilli, 18 ILR p. 345Google Scholar; Re: De Serclaes, 19 ILR 366Google Scholar; In re: Peruzzo, 19 ILR p. 369Google Scholar; In re: Kavic Bjelanovic and Arsenijevic, 19 ILR p. 371Google Scholar; In re: Nappi, 19 ILR p. 375Google Scholar; Decision of the Federal Supreme Court of Germany of 21 January 1953, 20 ILR p. 371, Decision of the Federal Supreme Court of Germany, of 12 July 1955, 22 ILR p. 520; the Hungarian Deserter in Austria case, 28 ILR p. 343Google Scholar; the Extradition (Yugoslav Refugee in Germany) case, 28 ILR p. 347Google Scholar; the Member of the Algerian Irregular Army in Germany case, 32 ILR p. 294Google Scholar; Ktir v. Ministère Public Federal 34 ILR p. 143; The State v. Schumann 39 ILR p. 433; Public Prosecuter v. Zind 40 ILR 214, and notes on Zanchetta, Kulas, Vivona, Imperiah, Caputo ibid. pp. 218–219. Useful discussions of European practice may be found in Verzijl, J.H.W., International Law in Historical Perspective, Part. V, Ch. VII esp. pp. 303–310, 339–351 (1972)Google Scholar; Wortley, B.A., “Political Crime in English Law and in International Law”, XLV BYIL p. 219 (1971)Google Scholar; Mora, Garcia, “The Nature of Political Offences”, 48 Virginia L.R, 1226 (1962)Google Scholar; Green, L.C., “The Nature of Political Offences”, 3 Sol. Q. 213 (1964).Google Scholar For a convincingly sceptical analysis of the Swiss practice, see Kirchheimer, , Political Justice (1961) pp. 374–383.Google Scholar

49. US Digest, 1975 pp. 170–171 (1976). In fact the French Court appeared not to have considered these arguments: ibid. p. 174.

50. The RAF came into being in 1970 in the Federal Republic of Germany. Popularly known as the Baader-Meinhof gang, after two of its founding members, it continued its activities after the death of Meinhof in 1976, and has remained in evidence since the death of Baader and others in prison in October 1977. It is not the only terrorist group active in West Germany, the other main one is the Movement Second of June. For a journalistic account of the groups and their members see Becker, J., Hitler's Children (1977)Google Scholar; for a collection of documents including political manifestos of RAF and explanations of their motives see Rauball, R. ed. Die Baader-Meinhof-Gruppe: Aktuelle Dokumente (1973).Google Scholar

51. Keesing's Contemporary Archives p. 28919 (1978)Google Scholar; The Times (London, 16 10 1978).Google Scholar

52. Ibid. p. 23923 (1978).

53. Ibid.

54. The Times (London, 8 07 1978).Google Scholar

55. US Digest, 1975, A1. (1976) Ms. Angela Davis and Mr. Eldridge Cleaver have been leading figures in US “Black Power” movements.

56. See, e.g., the excellent analysis by Greenfield, Richard, “The Abu Daoud Affair”, II The Journal of International Law and Economics pp. 539–582 (1977).Google Scholar

57. Keesing's Contemporary Archives p. 27261 (1976)Google Scholar. Andreas Baader was one of the leaders of the RAF. In 1968 he was convicted of arson in a Frankfurt department store. After escaping from prison he was re-arrested in 1972. He was held in Stammheim prison and in 1975 his trial on other charges began. In 1977 he was finally convicted with two close associates, Jan-Carl Raspe and Gudrun Ensslin, of four murders, attempted murders, bombings and other offences. During the two year trial a number of incidents took place which were intended to draw attention to the treatment of the RAF members in prison and to avenge that treatment. These included the murder of a West Berlin High Court Judge, a prominent banker, and the Federal Public Prosecutor. After the attempt to gain the release of a number of prisoners, including Baader, Ensslin and Raspe, by the kidnapping of the industrialist Schleyer and the hijacking of a Lufthansa Boeing 737, had failed, Baader and Raspe were found shot in their cells and Ensslin hanged.

58. Herr Stefan Wisniewski was arrested at Orly airport in Paris and then handed over to West German police, The Times (London, 12 05 1978)Google Scholar; a fortnight later Frau Marion – Brigitte Folkerts “was detained by the French police at Orly airport last night and flown to Frankfurt today in a private aircraft accompanied by West German police”. She was detained by the French police during a “transit stop”, at Orly, , The Times (London, 27 05 1978)Google Scholar. Both of these incidents bear all the hallmarks of achieving the ends of extradition without the safeguards of its procedures by deporting nationals of a country to that country where they are wanted on criminal charges. This is exemplified in English law by the much criticized case of “disguised extradition”: R v. Governor of Brixton Prison ex p. Soblen [1963] 2 QB 283Google Scholar; see also Shearer Ch. 3.

59. Four suspected members of the Movement Second of June, a more recently formed group than the RAF believed responsible for kidnappings, murders and bank robberies, were arrested in Bulgaria and the following day taken to West Germany, without any procedural formalities. It seems that the Bulgarian police were helped by the presence of West German policemen. See The Times (London, 23 and 24 06 1978)Google Scholar; ‘Europe's New Vizigoths’, The Economist, (London, 1 07 1978) at pp. 45–6.Google Scholar

60. At p. 11.

61. The breadth of the reservation allowed is remarkable; there can be little doubt that were such reservations not expressly permitted they would be held impermissible as contrary to the nature and purpose of the convention, following the decision in the Genocide Convention case ICJ Rep. 1951 pp. 15 et seq. Cf., the 1969 Vienna Convention on the Law of Treaties Art. 19. Art. 3 of the EEC “Belgian Draft” Agreement confines its reservation to the grant of the right to refuse extradition on grounds that the offence is political etc. It excludes any reference to factors which should be considered in characterizing the offence. This has, apparently satisfied the Irish government, which would not sign the European Convention since it would be contrary to its supposed constitutional obligation to refuse extradition of political offenders.

62. This paragraph is an example of the normal rule of treaty law requiring reciprocity in treaty obligations: cf., O'Connell, D.P., International Law, 2nd ed. pp. 229–239 (1970).Google Scholar

63. Cmnd. 7031 (1978) pp. 8–10.

64. Weiss, P., “Asylum and Terrorism”, 19 Review of the International Commission of Jurists p. 37 at 39 (1977).Google Scholar

65. By Art. 4 of the Convention.

66. Infra pp. 324–325.

67. Ch. 26. The Act received the Royal Assent on 30 June and takes effect in relation to other States which have ratified the Convention from 25 October 1978. No new British legislation will be necessary to implement the ‘Belgian Draft’ Agreement. The Suppression of Terrorism Act allows the Secretary of State to designate non-Convention countries as countries to which the Act applies.

68. This governs proceedings for extradition within the Commonwealth and UK Dependencies.

69. Governs extradition proceedings between the UK and the Republic of Ireland. It lays down special procedures which expedite the proceedings.

70. This, as amended and supplemented, still governs extradition proceedings to all other countries not encompassed by the preceding two acts.

71. UK Parliamentary Debates, Series 3 (1870) vol. 202 cols. 301–3 16 06 1870.Google Scholar

72. See, e.g., Report of the Royal Commission on Extradition, 1878 (C.2039)Google Scholar; reprinted in Parry, (ed.) 6 British Digest of International Law (hereafter BDIL) p. 804.Google Scholar

73. For a discussion of this principle see Kirchheimer, , op.cit., pp. 383–84.Google Scholar

74. [1964] AC 556. For a useful detailed analysis of the speeches in this case, and a survey of earlier formulations of the political exception, see Amerasinghe, C.F. (1965) 28 MLR 27.Google Scholar

75. At pp. 584; 599; 598; 611.

76. E.g., at pp. 590–1; in earlier cases some judges had been reluctant to formulate exhaustive definitions – see especially Re: Castioni [1891] 1 QB 149.Google Scholar

77. At pp. 582–3; 590–1; 598; but cp. Hodson, Lord at p. 611–612Google Scholar. For British practice pre-1914 see Parry, , 6 BDIL pp. 43–77.Google Scholar

78. [1964] AC 556 at p. 591.

79. Not all the cases support this, though none is inconsistent with it; it is approved by Lord Diplock especially in Cheng see infra n. 86 cp. the Swiss case of Re: Ockert supra n. 48.

80. [1891] 1 QB 149.

81. [1894] 2 QB 415. Meunier committed two bombing offences in order to avenge the execution of his fellow anarchist Ravachol in 1881 – Woodcock, G., Anarchism (1963) pp. 290–91.Google Scholar

82. Various attempts were made to achieve some international, especially European, cooperation to combat anarchism: see Parry, , 6 BDIL pp. 70–77.Google Scholar

83. At p. 419.

84. Though in fact Meunier was at large for 13 years before this extradition without any apparent additional violent activities.

85. [1955] 1 QB 540.

86. [1973] AC 931. The House was split 3–2; in the majority were Lords Hodson, Diplock and Salmon; Lord Simon delivered a dissenting speech, with which Lord Wilberforce concurred.

87. See especially Salmon, Lord at pp. 961–62Google Scholar; contra Lord Simon (Lord Wilberforce concurring) who argued that such concern was a matter for a government policy decision: at pp. 959–60. See the attempts at protection of “internationally protected persons” supra p. 5.

88. See supra n. 56 and text thereto.

89. Lord Hodson specifically mentioned this factor, but discounted its importance in the case at hand, at p. 942.

90. Lord Salmon, in particular, stressed that the US had actually given asylum to Cheng and he had abused it, at pp. 961–62.

91. Suppose for example that a Russian minister were murdered in Czechoslovakia; might not the British courts hesitate to sanction the return of the assassin to Czechoslovakia?

92. Though it should be observed that the courts are prepared to go some way in separating out offences some of which would be political. This must risk frustrating the aims of political asylum but such risk is fostered in the principle of speciality whereby a State undertakes to try the offender only for the offence for which he is committed. This seems a rather ready acceptance of the ability of a government and a State's criminal justice system to shut their eyes to some activities of an offender while trying him for others.

93. Cf., R v. Governor of Winson Green Prison Birmingham, ex parte Littlejohn [1975] 3 All ER 208Google Scholar. This case was not directly on this point, but refers to an unreported case involving Littlejohn decided in 1973 which was on the point. Also per Diplock, Lord in Cheng at p. 945Google Scholar. Contra see the RAF's publication “Dem Volk dienen” – Stadtguerilla und Klassen-kampf reprinted in Rauball, , op.cit., pp. 119–159Google Scholar especially at p. 157. “Manche sagen: Bankraub ist nicht politisch. Aber seit wann ist die Frage der Finanzierung einer politischen Organisation keine politische Frage. Für die revolutionäre Organisation bedeutet er erstmal nur die Lösung ihres Finanzierungsproblems. Er ist logistisch richtig, weil anders das Finanzierungsproblem gar nicht zu lösen ist. Er ist politisch richtig, weil er eine Enteignungsaktion ist. Er ist taktisch richtig, weil er eine proletarische Aktion ist. Er ist strategisch richtig, weil er der Finanzierung der Guerilla dient …”.

94. On the aims and composition of this group see Tessandori, V., B.R. Cronaca e documenti delle Brigate Rosse (1977).Google Scholar

95. The popular modern exponent of this theory was the Brazilian Carlos Marighella; his Mini-manual of the Brazilian Urban Guerilla was translated into German and much admired by the founders of the RAF (Becker, op. cit.). This work is excerpted as Kleines Handbuch des Brasilianischen Stadtguerilla in Rauball, , op.cit., pp. 103–119.Google Scholar

96. This of course illustrates the difficulty of defining exactly what any one act is meant to achieve, and makes the remoteness test a difficult one to apply. It may be suggested, however, that the Bretons are at the moment only engaged in calling attention to their cause; see, e.g., The Times (London, 19 07 1978).Google Scholar

97. See infra n. 103–105 and text thereto. See also Re: Gross [1968] 3 All ER 804 in which obiter dicta of Chapman J. suggests that they might: at p. 810.

98. Debs, H.L. vol. 389 cols. 29–35.Google Scholar

99. See UK Evidence (Proceedings in Other Jurisdictions) Act 1975 s. 5.

100. See infra pp. 328–329.

101. Brownlie, I., Basic Documents on Human Rights (1971) p. 338.Google Scholar

102. Nor is this unknown. In 1969 Measures were taken to suspend Greece from the Council, and when it became clear that these would succeed the Government of Greece withdrew. Keesing's Contemporary Archives (1969–1970) p. 23773.Google Scholar

103. S. 3(1); the clause was amended at the Report Stage in the Commons, Parl Debs. Series 3 vol. 202 col. 1425, 4 July 1870.

104. In Kolczynski and Schtraks – see further Shearer, pp. 173–75Google Scholar. It is worth remembering that it was partly as a result of the embarrassments caused by the executive taking this decision, especially in the Enahoro case, that the Fugitive Offenders Act, 1967 introduced the political offence exception in replacing the impened legislation of the Fugitive Offenders Act 1881. On the Enahoro case and its implications see O'Higgins, (1963) 13 LCLQ 1284Google Scholar and Thornberry, (1963) 26 MLR 555.Google Scholar

105. Atkinson v. United States Government [1971] AC 197Google Scholar; Royal Government of Greece v. Brixton Prison Governor [1971] AC 250Google Scholar. But see the Irish case State (Magee) v. O'Rourke [1971] Ir. R.205.Google Scholar

106. Thus in the cases of Zacharia and Arestidiou, R.A. Butler, then Home Secretary, refused extradition to Cyprus. The reason seems to have been the threat to their lives from EOKA. Butler expressed faith in integrity of Cypriot justice: Keesing's Contemporary Archives 18929 (1962). There is little evidence on recent executive practice in recent years.

107. It is unfortunate that the Act cannot be amended to bring it into line with the Fugitive Offenders Act, but this would involve a renegotiation of many bilateral treaties.

108. A view expressed by Mr. Mark Carlisle M.P. during the Bill's second reading in the House of Commons H.C. Debs vol. 948 cols. 1588–89, 26 April 1978.

109. Though if the courts were to pursue the line suggested earlier in this paper, the distinction between the two exceptions would be much reduced.

110. Fernandes v. Government of Singapore [1971] 2 All ER 691Google Scholar; [1971] 1 WLR 987.

111. Admittedly the reported cases do not justify too dogmatic a view – cf., e.g., R v. Savundranayagan & Walker [1968] 1 WLR 1761Google Scholar; 1968 3 All ER 439; R v. Kray (1969) 53 Crim. App. Rep. 412 especially at p. 415Google Scholar but see R. v. Malik [1968] 1 WLR 353 especially at p. 359.Google Scholar

112. Such tactics have included persistent interruptions; recently some members of the Movement Second of June removed their clothes in court. See, e.g., The Times (London, 12, 12, 04 1978; 15 June 1978).Google Scholar

113. This has led to grave disquiet among some observers. For an account of the exclusion of these lawyers see Weiss, P., “Joe McCarthy is alive and well and living in West Germany; Terror and Counter – Terror in the Federal Republic” NYUJILP 60 (1976) especially pp. 76–83Google Scholar. There were allegations in the trial of Baader et al. (n. 50 supra), that the appointment of the Presiding Judge Prinzing was arranged to ensure a sufficiently “strong” judge. See also Rose, K., “The Baader Meinhof Trials – recent amendments to criminal procedure in the Federal Republic” (1975). Review of Int'l Commission of Jurists p. 46.Google Scholar

114. This of course has happened in Northern Ireland and the Republic of Ireland. The Northern Ireland (Emergency Provisions) Act 1973 s. 2 suspended the right to trial by jury for most of the offenses appearing in the schedule of the Suppression of Terrorism Act 1978. First offences against the State Act 1939 (as amended) provided for a special procedure and trial without jury.

115. R v. Governor of Winson Green Prison, ex parte Littlejohn [1975] 3 All ER 208.Google Scholar

116. At p. 214. The reason given was that British Courts do not look at Parliamentary Debates to interpret British legislation. But then the court was not interpreting the Irish legislation; had it been doing so it should presumably have considered the Irish courts' practice in this matter – which it did not do.

117. Similar to the universal jurisdiction which exists in relation to piracy, etc. see O'Connell, , International Law 2nd ed., (1970) pp. 657–663.Google Scholar

118. The 1976 International Law Association draft articles on international terrorism required that the decision should be taken by the ordinary authorities; see the Report of the 57th Session of the International Law Assen. (1976) p. 119 Art. II(3) at p. 146 and commentary thereon at p. 150.

119. Supra n. 18.

120. On this see, e.g., Williams, Glanville, “Venue and the ambit of the Criminal Law”, 1965, 81 LQR 276, 395, 518Google Scholar and Hall, Lynden “Territorial Jurisdiction and the Criminal Law” [1972] Crim. L.R. 276.Google Scholar

121. All the earlier conventions discussed above require States Parties to make convention offences crimes under national law: states are then competent to try suspected offenders if they refuse a request for their extradition. For example, the French Courts recently convicted four black american hijackers whose extradition to the USA had been refused on the basis of the ‘political exception’: The Times (London, 25 11 1978).Google Scholar

122. However, the Act (as amended) makes the extra-territorial offence that of being in-volved with schemes to perpetrate explosions in the United Kingdom or the Republic of Ireland. Thus it would seem that the Act has not achieved its presumed purpose of making the planning of explosions in convention countries correspondingly an offence.

123. S. 4(4). The provision for Scotland is slightly different, though the effect is to bring prosecution under the control of the Lord Advocate.

124. Art. 7.

125. Debs, H.L. vol. 389 cols. 20–26.Google Scholar

126. This project was precipitated by the assassination in 1934 allegedly by members of Ustasha, a Croatian nationalist organization, of King Alexander of Yugoslavia and Louis Barthou, French Foreign Minister, in Marseilles – Mussolini's government refused extradition of Pavelic, the Ustasha leader to France: see Re: Pavelic n. 48 supra. The Convention sought to extend jurisdiction of State Parties to include extraterritorial acts of “terrorism”. It failed to be ratified. A supplementary agreement proposed the setting up of an International Court. For text see Hudson, , 7 International Legislation 862Google Scholar. See also the comments of the British Law Officers 14 July 1937 in Parry, , Law Officers Opinions.Google Scholar

127. Loc. cit. supra n. 118, Art. IV.