Jurisdictional Competence in International Criminal Law

This assignment delves into the complex issue of jurisdictional competence in international criminal law, with a specific focus on the European Court of Human Rights. Students are required to explore the competency of this court in light of recent cases and scholarly debates, as evidenced by the provided references. The task involves evaluating competition and complementarity between global and regional human rights institutions, and how these relate to the jurisdictional competence of the ECHR.

Dissertation Law

Table of Contents
PART 1: INTRODUCTION............................................................................................................1
1.1 Background of the study...................................................................................................1
1.2 Research aims and objectives...........................................................................................3
Aim of the research:...............................................................................................................3
Research objectives:...............................................................................................................3
1.3 Research questions...........................................................................................................3
1.4 Rationale of the study.......................................................................................................3
1.5 Significance of the study..................................................................................................4
1.6 Structure of dissertation....................................................................................................4
PART B............................................................................................................................................6
EXTRADİTİON-.............................................................................................................................6
1-Jurisdiction..........................................................................................................................6
2-The definition and purpose of extradition...........................................................................8
3-The history of extradition....................................................................................................8
6. The notion of political offence.........................................................................................17
7. Political Offence Exception and Acts of Terrorism.........................................................20
PART C: EVOLUTION AND RESTRİCTİON OF THE POLİTİCAL OFFENCE EXCEPTION
........................................................................................................................................................20
1. Background.......................................................................................................................20
2. International Cooperation against terrorism and narrowing the scope of the political offence
exception...............................................................................................................................20
2.1 Universal Conventions...................................................................................................20
2.2 European Conventions....................................................................................................21
2.3 Council of Europe Convention on the Prevention of Terrorism Warsaw, 16.V.2005.. .21
2.4 Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism
..............................................................................................................................................21
3. A new type of system against political offence exception and terrorism: The European
Arrest Warrant......................................................................................................................21

PART D- CONCLUCİON.............................................................................................................21
REFERENCES..............................................................................................................................22

PART 1: INTRODUCTION
1.1 Background of the study
1.1.1 Extradition
Extradition may be served as co-operative law enforcement process that is associated
with the formal transfer of individual’s custody who committed crime. Hence, authorities of
jurisdiction has right to give custody of individual to others either directly or indirect manner.
Such process of extradition is applied on individual convicted of crime but whose punishment is
still pending. Process or aspect of extradition is regulated by the treaties when it takes place
between the countries. Hence, extradition may be defined as an act performed by government
authority in relation to turning alleged criminal to others for conducting legal proceeding in
against to criminal charge. Extradition plays a vital role in the international war and thereby
helps in handling the situation of crime. Usually, extradition occurs or happens between two
states and countries depending on the situation.
1.1.2 Political crime and terrorism
Further, political crime is an offence that places negative and undesirable impact on the
interest of state and government system. From assessment, it has been identified that downward
trend has experienced by UK in relation to both violent and non-violent crime. In UK, violent
criminal confrontation and use of weapon is rare. Nevertheless, there are some serious incidents
whose possibility in relation to occurrence is high. It has been found that violent crimes such as
firearms occur between the members of rival criminal gang. Types of political crimes can be
distinguished into three such as election fraud, treason and espionage. Thus, it can be presented
that political crime implies for the illegal acts that are undertaken to threaten the survival of
government. Political crime emerged from religious and ideological sources.
For fulfilling personal needs, noble and altruistic desires political parties do crime.
Factors which motivate political parties toward crime include intimidation, revolution, profit,
conviction etc. Terrorism usually involves a type of political crime which in turn lays high level
of emphasis on violence. Political parties undertake or perform violence activities with the
motive to promote change. There are various types of radical political group such as terrorist,
Guerrilla, insurgent and revolutionary. In this regard, terrorist group is the one who engage in
motivating violence related activities such as Al-Qaeda, Hamas. The main goals of such group
are to attain political gain or change.
1

1.1.3 Counter-terrorism conventions
Counter terrorism implies for the practices, strategies, tools and techniques that are
undertaken by government, military law, business as well as intelligence agencies undertake.
This in turn helps in preventing terrorism related activities to a great extent. Main objectives or
aspects of counter terrorism are to ensure that citizens are safer from threats pertaining to
terrorism. By considering this, high level of emphasis has been made on the screening of airline
passengers, placement of video cameras and metal detectors at public places. Beside this, effect
of terrorism can be reduced or balanced through the means of arresting, prosecution,
assassinations and military action. Several measures have been undertaken by the authorities of
United Nations for minimizing the impact of terrorism. Hence, Britain, France and Germany are
the major countries that had taken initiatives by sending troops in the Middle East for fighting
with Islamic terror group. Military campaigns have conducted war on Iraq as well as in Pakistan
and thereby killed the chief of terrorist group such as Osama bin Laden. For promoting the
culture of peace, justice, tolerance and human rights United Nations have made their best efforts.
In the year of 2013, United Nations launched air and ground strikes in against to ISIS. Hence,
group of counter terrorism committee provides high level of assistance in co-coordinating efforts
and involving in offering a framework to the countries which it has to follow.
1.1.4 European convention on extradition and political offence exception
European convention on extradition refers to the multilateral treaty which was setting
down by the member states of Council of Europe. From assessment, it has been identified that
European Convention that is related to extradition includes 32 articles that contain rules from
obligation to notification. Such conventions are highly significant and thereby help in making
control on undesirable practices. Moreover, it includes detail regarding extradition, political,
military and fiscal offences. Along with this, such convention also furnishes information about
the rule of speciality, provisional arrest, conflicting interest etc. Further, political offence
exception implies for the provision and rules that limit the obligations of sovereign states who
are the under of an extradition. On the basis of such aspect, states which are approached for
assistance can refuse to undertake such specific case. In other words, political and legal parties of
one state has right to deny in relation to gathering evidence or proof on the behalf of other. Thus,
competent authorities of requested party assess whether requesting party needs assistance for
prosecuting an offence or not.
2

1.2 Research aims and objectives
In order to conduct study in an effectual way, scholar is required to draft suitable aims
and objectives. Moreover, in the absence of having clear aims and objectives researcher would
not be in position to present suitable and fair view of study. Thus, by taking into account issue
following aims and objectives have been drafted by the scholar:
Aim of the research:
Aim of the study: A prior purpose of this investigation is “To critically analyse the impact
of various exception laws onto the extradition law resulting in injustice- A study on political
offence exception, European and universal terrorism-related conventions and the European arrest
warrant.”
Research objectives:
The intended goal of this study will be backed up by some below defined objectives to
carry out a thorough research work with no interrupted issuance by the investigator. These are-
 To explore the purpose and definition of extradition.
 To interpret the history and resources of extradition.
 To ascertain the impact of European convention on extradition.
 To determine the notion of political offence.
 To identify the link between political offence exception and Acts of terrorism.
 To discover the clauses of evolution and restriction of the political offence exception.
1.3 Research questions
Researcher lays high level of emphasis on framing suitable question whose answer needs
to be determined. By focusing on specific question scholar can make his efforts in suitable
direction. On the basis of aim following question has been framed such as:
What is the impact of various exception laws onto the extradition law which in turn may
result into injustice?
1.4 Rationale of the study
The main reasons behind conducting such study are to highlight the aspects of
extradition, political crime, European and Universal terrorism related conventions as well as
arrest warrant.
3

1.5 Significance of the study
Each study and related findings have high level significance for various individuals.
Now, large number of people is involved in the field of research and conducts study on their
desired area or field. Thus, the present study that is based on the aspects of extradition, political
offence exception, European and universal terrorism-related conventions and arrest warrant will
assist other scholars to a great extent. By making evaluation of the findings of such study scholar
can get deeper insight about the terms and rules of law. Hence, by developing understanding
about the law terms other scholars would become able to develop suitable hypothesis for future
and further study. In addition to this, by getting deeper insight about the terms other researchers
would become able to develop new topic for investigation. Along with this, such study is also
highly important for the individuals or students of law. Hence, students can develop their
knowledge about the aspect of extradition, political offence and terrorism. All such aspects
clearly show that such study and associated findings will offer high level of benefits to the other
scholars and law students.
1.6 Structure of dissertation
Part A: Introduction
In the first chapter of dissertation, scholar depicts the brief overview of study and
mentions aims as well as objectives. Hence, scholar will discuss the aspects in relation to
extradition, political crime and terrorism, counter terrorism conventions etc. Hence, in the
introduction chapter researcher will provide brief information and detail about such aspects. In
addition to this, scholar will also mention the reasons behind conducting such type of
investigation. Researcher will also highlight the significance of such research topic and findings
for others.
Part B: Extradition
In this section of dissertation, scholar will discuss each and every aspect about extradition
in detail. Researcher will discuss the history, resources and European convention on extradition.
In addition this, such part will provide highly valuable information about the rationale and
history of political offense. Scholar will also include information about British, French and Swiss
approach which in turn helps in evaluating the notion of political offence. Through this part,
researcher will also provide deeper insight about the conventional issues that is associated with
4

the political offence. It also contains information about the political offence exception and acts of
terrorism.
Part C: Evolution and restriction of the political offence exception
Third part of dissertation includes information about the international cooperation in
against to terrorism. Further, in such part place high level of emphasis has been placed by the
researcher on Universal and British convention. Along with this, study will present the Council
of Europe Convention that is related to the prevention of terrorism. It also depicts the new type
of system that is introduced in against to political offence exception and terrorism. Thus, in this,
detail discussion has been made by the researcher on 9/11 attacks. On the basis of such aspect,
discussion has been made on requirement in relation to effectual legal system in against to
terrorism. With the motive to present fair view of study some cases and views provided by the
court of European countries have also been included.
Part D: Conclusion
In the final part of dissertation, all the findings related to extradition, political crime and
offence exception has been concluded. In this, all the findings have been summarized by the
researcher in a highly structured and effectual way.
5

PART B
EXTRADİTİON-
1-Jurisdiction
a-Territorial Jurisdiction principle
This is to understand the significance of territorial jurisdiction principle, it is important to
interpret the meaning of territorial jurisdiction that indicates a key role of national courts in
making use of their delegated legal powers. It is to in context of such offensive actions that took
place in the districts under them. Now, in context to specify the pertinence of Territorial
Jurisdiction Principle, it is specified to be a principle which is also termed as territoriality
principle of public international law1. Under this law, an autonomous territorial division is free to
prosecute those condemnable offences that are being taken place within their defined boundaries.
It further consists of two distinct aspects that involves subjective and objective facets. Into
which, a subjective prospect considers a crime that has physically taken place within its
boundaries with a different existence of objective where in this, the criminal is expected to
attempt a crime from some extrinsic border. However, in both the cases, an independent body is
recognized who has the power of taking rightful decisions by adopting the applicable clauses of
criminal laws.
This is for instance on considering a factual depiction of “The Lotus Case” (France Vs
Turkey), some prompt questions were raised against Turkey. It is due to a collision took place
among the vessels of France and Turkey on high seas that led to the decease of 8 Turkish
nationals. For which, the French nationals were alleged to be responsible and Turkey exercised
its jurisdiction over them for victimizing the nationals of Turkey by sentencing the caption of the
vessel for imprisonment and penalty. However, the court's decision finally took place in the year
1927 and was in support of Turkey where they cannot be charged for violating the rules of
international law.
b-The active personality ( Nationality ) principle
1 Jean-Paul D. Addie and Roger Keil. Real existing regionalism: the region between talk,
territory and technology [2015] Journal of International journal of urban and regional
research 39(2). pp.407-417.
6

It is on focussing more upon the involvement of the nations onto a case that is postulating
the incursion of some sort of legal powers in it to reach to a decisive end. With reference to
which, the principle of active personality also termed as nationality is based upon the fact where
the states possess legal powers over their federal over law-breaking acts that are explicit in their
domestic laws2. This is on considering a factual illustration of terrorist bombing act took place in
Sri Lanka. On whose suppression, it gave a prompt legal power to the high court to seek a
nationalist of Sri Lanka behind the incident of bomb blast in abroad on the basis of the fact
where the suspicious must be a Sri Lankan. Another example is in context to a UK national who
was condemnable of statutory offence in the path of Earl Russel whose first matrimony took
place within UK and second wedlock was done outside UK and it thus represented the case of
subjective territoriality principle.
This principle together depicted a complication which is usually faced at the time an
individual represents dual nationality such as Sri Lanka and Australia where both the countries
are then willing to enforce their own jurisdictional clauses. However, in such cases, the legal
power goes to the nation to which the individual is genuinely linked like in a factual case of
Nottebohm. This means the person should belong to the nation in terms of residing into his or her
own house with a family living at the same place and is together employed there.
c-The passive personality principle
This depicts a situation in which a law-breaking has took place in overseas and the
suspect does not belongs to the state and do not represents a nationalist. In such type of situation,
only the one who has been victimized represents a nationalist of the Province and is eligible to
claim legal power. It is on referring to the case of Yunis in UK, the tribunal decided to possess a
legal power over Yunis who belonged to Lebanese. It was determined on the basis of a passive
personality principle where 2 US nationalists were overseas the Jordanian airline which was
hijacked by Yunis.
d-The protective principle principle-The universality principle
Herein, it is supposed that a law-breaking act has taken place in foreign where neither of
the victim nor the condemnable can be referred as the nationalists of the Province. In such kind
of case, legal powers are being declared on the footing of safety and involvement of the Province
2 Michael N. Schmitt ed. Tallinn manual on the international law applicable to cyber
warfare [, 2013] Cambridge University Press.
7

is being affected by a condemnable act took place in overseas. It is on referring to the case of
Eichmann’s, the Israeli Court based its legal power on the cautionary principle. On whose basis,
it was stated that law-breaking committed by Eichmann was in attempt of disfavouring the
Jewish group that in turn impacted upon Israel's vital interests in a negative manner3.
It is therefore on considering all the above four principles of jurisdiction, it can be said
that both the protective principles and the principles of passive personality represents to be the
most less recognized footing of sovereignty. However, these are progressively used to get legal
powers over any terrorist acts that are being committed overseas against the nationalist referring
to the principle of passive personality principle and against Province's involvement ruled by
protective principle.
2-The definition and purpose of extradition
Extradition is referred to be an accord among two or more states where it is usually
represents a clause in whose accordance, a person committing a law-breaking act in one nation
and is fleeing to another nation is governed. After which, it is being decided with the help of this
clause whether the condemnable should be returned to the state where the crime took place or
must be sentenced in the state itself, where he or she fled and was found by the official bodies.
On considering this fact, there exists yet another profound definition of extradition that specifies
a mutual written agreement among two or more sovereign states. This is based upon the
surrender of a suspicious body who is suspected for attempting a crime as per the legal norms of
the nation requesting the return of the condemnable party. However, extradition is often
barricaded for the offensive measures in comparison to those that are penal in the nation that is
asked to surrender. Whereas, it exists with yet another mandatory clause in whose conformity, it
is necessary for their courts to accept the existence of a prima facie condemnable case.
3-The history of extradition
Extradition is referred to be a judicial procedure in which a state demands for the fugitive
who has fled to another state and is guilty of a crime. It is together believed to be an extended
process that encompass various complex activities whose speciality is being determined by the
pact's which is subscribed by the respective governmental bodies of the involved countries.
However, extradition is mostly applicable to any law-breaking activities that are offensive as per
3 Cedric Ryngaert. Jurisdiction in international law [2015] OUP Oxford.
8

the norms of both involved nations and also to the individuals who are concealing themselves in
other states rather than staying at their own place.
Also, on referring to this clause of extradition, it has been found that the administrative
bodies are never in favour of surrendering their nationals and for which, Poland has capably
evaded many arrests since last 30 years. However, it is yet another factual instance where any
crime involving political bodies are often extraditable4. It is however due to the fact where none
of the state is willing to get suspected for assisting a coup by opposing an international regimen.
It is on considering a factual incident in the year 1934 where an Italian judicature declined to
extradite the slayers of Yugoslavia's King Alexander who killed him where this decision was
made on the basis of such political crime.
It is however on considering the history of extradition that started in US with a foremost
case that took place in the year 1794. This represented a Jay Pact with Britain that in turn
depicted the existence of an extradition agreement clause that was applicable to the case of only
slaying and falsification, etc. It is where a formal existence of extradition was not referred to be
an ordinary clause in the Western nations till the mid period of 19th century. This was the period
when it was effortless for the condemnable parties to run away from one state to another due to
enhanced alternatives for travelling. As a result to which, US is now referred to possess
extradition agreements with near about 108 different nations. However, it is believed that
Colombia usually delivers an average number of total 4 suspicious bodies to US every week
which is higher than the extradition rates of any other nation. Also, most of the extraditions done
by Colombia is to deliver the criminals who are charged for the cases related to the trafficking of
drugs.
Getting back to the history of extradition and the very first Anglo- American agreement
of extradition entitled as Jay Treaty took place in the year 1794 that led to the creation of another
requisite treaty namely Webster- Ashburton created in the year 1842 among USA and Great
Britain. It was however in alteration to the previous written agreement created in the year 1794
that represented an unsteady piece of legislative assembly with a very modest existence. This
together led to the establishment of several crucial principles which was primarily focussed on
4 Ibrahim F. I. Shihata. The Power of the International Court to Determine Its Own
Jurisdiction: Compétence de la Compétence [2013] Springer.
9

the restructuring of Anglo American approach to proceed towards the process of surrender. It is
where the Anglo- American structure was known to assure the dictation of surrender by legal
proceedings with no involvement of any international policies into it. Also, handling of only a
non political case was referred to be yet another principle objective of this treaty that was formed
to handle the cases of only slaying and counterfeits, etc. It was progressively moving towards a
pact of near about 40 years where it was claimed to be one of the earliest illustration of a decent
and contemporary agreement of extradition with suitable terms.
However, on discoursing upon yet another creation of Webster- Ashburton treaty created
in the year 1842, it has been found that it was specially designed to address the dispute took
place among Northeast Boundary in America. Herein, it is also known to deal with the
extradition of some declared offenders who were alleged in various murder cases that together
involved the cases of assault. It was however done with a prime purpose of committing slaying
with some other attempts of hijacking, incendiaries, thievery and falsification, etc5. It was
referred to be a more substantial step taken up by the legislative bodies that resulted in giving
some prompt results.
It is where many individuals were duly extradited from Britain and Britain extradited the
same in a very short span of time. However, it was at the end of 1860's when the process of
extradition was found to be under stress. This was followed by the complaints made by US with
a database of those offensive measures that were already identified in the pact but depicted a
very constricting existence. On considering it all, the 22 years of period that is from 1846 to
1868 have indicated total 53 incoming requests of surrender from England to US along with 36
requests for outgoing. Extradition can take place between either states or countries which in turn
depends on the situation.
In the section 2 of article 4 it is clearly mentioned that one state, where crime was
committed by the individual, can demand for the criminals return if they flees in another state.
Such aspect can clearly be supported with the Federal codes of law in which rules in relation to
extradition are mentioned. In accordance with the rules and regulations only executive authority
can demand for criminal’s return where fugitive take off. In addition to this, executive authority
5 Kiani, Z. and Purkhaghan, Z., 2017. Deportation and Extradition from an International
Perspective. J. Pol. & L. 10. p.197.
10

is also required to provide of copy of indictment or affidavit. Hence, indictment must be related
to the aspect of disloyalty and criminal act. Besides this, concerned document must also be
certified by state governor where crime was committed. For instance: Murder was committed by
Jonnie as well as Jill in Georgia and then drove into Alabama. In this situation, Georgia State has
arrest warrant in against to the Jonnie. In Alabama, Jonnie was arrested by the concerned
authorities worked over there. In this, Alabama has assessed that Georgia has arrest warrant in
against to Jonnie. Thus, it can be stated that due to having aspect of extradition Alabama returned
Jonnie which is considered as prosecution for murder.
In addition to this, it has been assessed from the investigation that extradition also takes
place within the countries. Hence, in such kind of extradition treaties govern all the relative
aspects. By doing analysis of scholarly articles it has been found that extradition is applicable
only on specific crimes which are listed in applicable treaty6. When extradition takes place
within the countries then request for the same is presented in front of Department of Justice and
State.
4. The resources of extradition
4.1 Duty to extradite
Obligations in relation to extradite come from various sources such as treaty based,
customary status, core crimes etc. All such are the main aspects which in turn creates duty in
relation to extradition. It places high level of emphasis on jurisdiction in relation to the crimes
that are committed outside national territory. Further, in the article 8 or 9 it is clearly mentioned
that code of crimes are in against to the peace and security of mankind.
4.2 Absence of a treaty
Treaty may be defined as an agreement which takes place between the independent states
and international organization. Thus, treaty is like agreement, covenant pact etc. whose forms of
agreement consider the similar rules7. Treaty is similar to the contract in which competent parties
6 Voeten, E., 2017. Competition and Complementarity between Global and Regional Human
Rights Institutions. Global Policy. 8(1). pp.119-123.
7 Voeten, E., 2016. International Human Rights Institutions: Competition and Complementarity.
Global Order and the New Regionalism. p.55.
11

assume and share obligations among themselves. In this, if one party makes default in
performing as per the predetermined terms and conditions then other has right to make sue of
defendant as per International Law. From evaluation, it has been identified that without having
treaties innocent would not become able to present any proof in against to the defendant parties.
If there is the absence of extradition treaty between the two countries then pursuant cannot be
extradited. Mansour who acted as journalist was arrested by German authorities because they
have Egyptian arrest warrant.
In this, there is no formal extradition takes place between Germany and Egypt. Due to
this, it was unclear that on which basis both respective parties performed. In this, Mansour
released from the custody and Foreign Ministry of Germany has denied considering extradition
for the long time frame or period. Through evaluation, it has been found that in UK, Interpol red
notice is not considered as a direct arrest warrant because there are several countries with which
UK has formal extradition arrangements8. Thus, country that is not an extradition partner has
opportunity to do ad-hoc arrangements. At the time of seeking extradition of a specific person,
government of UK and requesting state is required to for an agreement. From overall evaluation,
it has been assessed that in the absence of having treaties innocent party would not become able
to get justice.
4.3 Bilateral treaties
In law, bilateral treaties are the one which takes place between the two states or entities.
Further, in the case of bilateral treaty more than two parties can also be considered as per the
situation. However, usually bilateral treaty can be found between the two parties such as
agreement between Switzerland and European Union. In every treaty, seventeen parties are
involved which in turn divided into two groups namely Swiss as well as EU and its member
states. In this, treaty plays a vital role in establishing or introducing the rights and duties of
concerned parties namely Swiss and EU & its member states. In the case of bilateral treaties,
negotiation takes place between the limited numbers of states.
4.4 Multilateral treaties
8 Hufnagel, S., 2016. Third Party’Status in EU Policing and Security-Comparing the Position of
Norway with the UK before and after the ‘Brexit.Nordisk politiforskning. 3(02). pp.165-180.
12

It may be served as a written agreement which takes place between the three or more
sovereign states. Such treaty contains the rights and obligations of related parties to a great
extent9. The main examples of bilateral treaty include Convention related to the state of
refugees, The United Nations Conventions on the law of the sea etc.
5. The European Convention on Extradition
5.1 Rationale and background
European Convention on extradition may be served as a multilateral treaty that was
drawn in the year of 1957. Hence, Council of Europe has undertaken initiative and introduced
such convention. By considering the report presented by the committee of experts ministers have
drafted a model namely bilateral convention. In addition to this, model in relation to multilateral
convention on extradition also introduced in the recent past. Such multiple treaties is highly
significant that can be undertaken by non-signatory members. European convention has played
significant role in governing the aspect of extradition in former years. Hence, before the
introduction of European Arrest Warrant, extradition which takes place between the members
states of European Union were monitored through European Convention pertaining to
extradition10. The Committee of Ministers of the council of Europe has introduced several
articles that need to be followed by the concerned authorities. Thus, 32 articles have introduced
by the concerned authority in relation to extradition. Obligation to extradite, offences related to
extradition along with their types such as political, fiscal and military have been introduced by
the authorities in European convention.
Along with this, European convention also deals with the commission, pending
proceeding, capital punishment, time lapses, and rule of special and documentary requirements.
In addition to this, article related to European convention also furnishes information about re-
9 Ruggeri, S., 2017. Participatory Rights and Transnational Criminal Justice in the European
Convention. In Audi Alteram Partem in Criminal Proceedings( pp. 403-422). Springer
International Publishing.
10 Wittendorp, S., 2016. Unpacking ‘International Terrorism’: Discourse, the European
Community and Counter‐Terrorism, 1975–86. JCMS: Journal of Common Market Studies. 54(5).
pp.1233-1249.
13

extradition to a third state, provisional arrest, conflicting request surrender of demanding party,
transit, expenses, reservation etc. Hence, with the motive to deal with the aspects of extradition
in the best possible way specific rules and regulations are included in European convention. On
1st January, 2004, European convention on extradition has been replaced through Arrest Warrant
system. However, concerned authorities can still make use of European Convention where it is
not possible to resolve issue through the means of Arrest warrant system11. One of the main
objectives of European convention is to facilitate extradition between the member states. Hence,
various principles set forth by the concerned parties from member states may depart.
Conventions that are introduced by European parties clearly present the situation where
process in relation to extradition can be undertaken. It covers and provides deeper insight about
the offences that are subject of punishment under the law of requesting member state. In the
article 1 and 2 of European Convention aspects in relation to the suppression of terrorism are
clearly mentioned. Thus, with the motive to fight in against to the terrorism related activities
strict measures have been undertaken via introducing conventions on extradition for EU. Along
with this, punitive aspects are included in such conventions for reducing the level of offence.
Thus, by taking into account all such aspects it can be said that in the convention of extradition
related to EU will provide high level of assistance in restricting the undesirable activities or
practices.
5.2 Fundamental aspects of the extradition according to the convention.
5.2.1 Duty to extradite
In European convention on extradition, obligation or duties related to extradition are
mentioned. According to the rule of law, one can fight in against to impunity for crimes which
are related to the international aspects. However, impunity is not tolerated for the actions like
genocide, war crimes, and undesirable activities in against to humanity, violation etc. Hence, the
role of obligation in relation to extradite plays a vital role in supporting international co-
11 Ruggeri, S., 2017. Participatory Rights in Transnational Criminal Justice Under Italian Law.
In Audi Alteram Partem in Criminal Proceeding ( pp. 169-200). Springer International
Publishing.
Sandholtz, W., 2017. Expanding Rights: Norm Innovation in the European and Inter-‐American
Courts. Expanding Human Rights: 21st Century Norms and Governance. p.156.
14

operation. On the basis of such aspect, states have duty to give punishment to the guilty person
for the crime performed by him/her. Thus, each state is required to either punish or extradite to
the individuals who have performed undesirable activities. Obligation in relation to extradite is
highly significant and related to the crimes that are performed outside the international territory.
Article 8 is related to the establishment of jurisdiction and 9 implies for the obligation in relation
to extradite or prosecution. As per the article 9 of draft code it is the accountability of concerned
state to either extradites or conducts legal proceedings in against to the person who committed
undesirable activities. In addition to this, principle which is related to such aspect contains
number of multilateral conventions that provides deeper insight about the obligations of state.
5.2.2 Extradible offences and double criminality
It specifies or presents that as per the set principles offences are the subject of
punishment under the law of requested and requesting party. In this, high level of emphasis has
been made on the aspect of compulsory extradition. On the basis of such aspect, requesting part
has no right or power in relation to refuse the aspect of extradition. In other words, when request
is made by the requesting party then requested party is required to perform the same aspects
related to extradition12. Penalties for the offences have been fixed by legal authorities such as
maximum period of at least one year. From assessment, it has been identified that countries
which considered maximum period as more than one year can exclude offences to a great extent.
Thus, exclusion of penalty such as one year’s imprisonment possible only when extradition for
offences mentioned in article 3, 4 and 5 of European conventions are not authorized as per the
law. Article 26 of European convention places high level of emphasis on reducing the scale of
penalties. This in turn provides high level of assistance in the scope of extradition significantly.
5.2.3 -Rule of speciality
Article 1 of European convention clearly entails that an extradited person may not be
arrested or proceeded in against to the offences other than the subject of extradition. Rules of
speciality have some exceptions which are enumerated below:
 On the consent of requested party extradition may be extended to other offence
committed by an extradited person. For obtaining consent, requesting party is required to
12 Światłowski, A. and et.al., 2017, June. Brexit and the Future of European Criminal Law–A
Polish Perspective. In Criminal Law Forum (Vol. 28. No. 2. pp. 319-324). Springer Netherlands.
15

submit all the documents as per the article 12. Hence, all the needed documents must be
drawn up by the judicial authority or person. Along with this, in some countries if an
extradited individual commits a new crime then it is considered as the subject or part of
legal proceedings. In such cases rule of speciality is violated to a great extent. Further, an
extradited person is provided with the opportunity to make statement in relation to the
new offence committed. Such opportunity is given to an extradited person before the
decision regarding extension on extradition concerning new offence. In addition to this,
when documents are prepared by the requesting party for the extension of an extradition
then it is the accountability of requested party to give their consent. Along with this, rule
of speciality is not applied on the situation when extradited person have not left the
territory or area of the party within 45 days.
 Paragraph 2 of European convention is highly significant which in turn provides deeper
insight about the rights of requesting. Hence, it is mentioned in the convention that
requesting party has right to take suitable or necessary measures for interrupting into
legal effects in relation to the lapses of time. For instance: In an extradited person found
to be responsible for an offence by default other than the grounds that are considered for
extradition. In such case, extradited individual cannot be arrested in the absence of
requested party’s consent.
 Further, paragraph 3 provides deeper insight about the cases of offence description
alteration during the course of proceedings. For instance: An individual who extradited
for murder is tried for homicide as well. Hence, associated committee has taken decision
that such system shall be permitted only when new description is shown by the
constituent elements. Hence, new description is shown in the form of an offence when
extradition is allowed for the same.
5.2.4 Re-extradition to a third state
From investigation, it has been found that re-extradition is possible when requested party
allows for the same. In other words, it can be said that requesting party can deliver extradited
person to the third state or party only when requested party agrees13. In addition to this, as per the
13 Morawska, E. H., 2016. The complex structure of the absolute prohibition of torture:
comments in the light of the regulation of article 3 of the European Convention on human rights.
Espaço Jurídico Journal of Law [EJJL]. 17(3). pp.767-778.
16

rules and regulations delivery of extradited parties to the third state is possible when territory of
requesting party has not left within a specific time frame after final discharge.
5.2.5 Bars to extradition
5.2.5.1 Bars relating to the person: Nationality principle
5.2.5.2 Bars relating to the penalty and punishability of the relator
There are several countries which in turn refuse the aspect of extradition on the basis of
the aspect that person is suffering from capital punishment and face torture.
 Death penalty: In the recent times, several jurisdictions namely Australia, Canada, New
Zealand and European nations will not be in position to allow extradition when death
penalties are imposed on suspects. Hence, until and unless authorities of the above
mentioned countries are not assured regarding the aspect that punishment in relation to
death will not be passed in the upcoming time period.
 Torture, inhuman or degrading treatment: By doing analysis of articles, it has been found
that many countries would not become able to extradite if requested individual considers
as the subject of torture, inhuman or degrading treatment. Case of Soering V United
kingdom presents that European Court of Human Right gave judgement that concerned
country has violated the article 3 of European conventions related to extradition.
5.2.5.3 Barriers relating to the prosecution of the offence charged
5.2.5.4 Barriers relating to the offence
It has been assessed from evaluation that large number of countries rejects the extradition
aspect of the political crime suspects. Thus, it can be presented that if individuals opposed or do
criticism of government then extradition aspect can be rejected.
6. The notion of political offence
6.1 Background, rationale and history of the political offence
6.2 Ideologically motivated offenders and political offences
6.3 The purely political offences
6.4 The relative political offences
6.4.1 British approach
Such approach includes connexity test which in turn lays high level of emphasis on
assessing ordinary crime that is related to another political offence. Political offence also
17

includes the crime which is related to other undesirable political activities. By taking into
account the case summary of Bourke v Attorney it can be presented that activities which are
related to the political aspects considered as an offence. In such case extradition was undertaken
by UK from the Ireland of Sean Bourke. In this case, Sean Bourke had run away from British
prison with a fellow prisoner. Through such case aspect in relation to political offence exception
came into consideration. Case summary clearly presents that counsel of Bourke’s argued that his
offence was political due to having association with such parties14. Further, counsel also stated
that such offence is exempt from the aspect of extradition in accordance with Irish Act, 1965. In
this, Supreme Court of Ireland had rejected Attorney’s general argument that offence is not
considered as political one. European convention on extradition is highly affected from 1965
Act. Thus, in this, it has been found that ordinary crime related to the political parties comes
under the category of such offence.
6.4.2 French approach
In French, concerned authorities undertake injured right test which is also known as the
objective one. Such test provides assistance in evaluating that whether crime or undesirable
activities were directed in against to the political organization or not pertaining to the requesting
state. This test completely avoids the aspect that sentiments of authorities are the main causes of
political offence. Injured right test came into consideration in the case of Gatti under which San
Marino murdered local communist. In this, after making evaluation of each and every aspect that
is associated with extraditability French court gave judgement that it was not a political offence.
French court has applied such test more frequently with the motive to get benefits. Hence,
Belgium sought the extradition of Belgian World War II in which some criminals were
extradited. However, still there are some deficiencies which take place in such approach.
By considering this, French court has undertaken inverse approach by considering the
motives of an offender for the exclusion of the political aims of act. On the basis of such aspect,
offence can said to be political only when court found that offender party has performed
activities for fulfilling the motive of political parties. Such test was applied in the year of 1975
14 Giuffré, M., 2017. Deportation with Assurances and Human RightsThe Case of Persons
Suspected or Convicted of Serious Crimes. Journal of International Criminal Justice. 15(1).
pp.75-95.
18

when the case of airplane hijack occurred. Under this, airplane had hijacked by two Americans
which is also considered as political crime. Moreover, out of two, one individual demanded to fly
the airplane to Hanoi in against to the background of Vietnam war. By making evaluation of
overall situation court assessed that such act was motivated or encouraged by the political
parties.
6.4.3 Swiss approach
It implies for and lays emphasis on the adoption of predominance test. In such test,
judiciary party or court considers the elements of common crime over the political motive of
offenders. Hence, predominance test allows political offence exception where there is a
requirement to ensure proper balance in the past situation. By making analysis of case situation
of Ktiri v Ministere it has been assessed that undesirable activities happened for meeting the
political purpose. Further, wider application of predominance test has taken in the field of
academics. Besides this, Supreme Court of Netherlands also applies such test in the case of
extradition.
Narrowing the scope:
In the 20th century, events which were taken place in the environment compelled
government to evaluate or analyze the concept of political exception. In the 1920’s and 1930’s
with the motive to promote the political aims several methods were used by fascists and
communists that are considered as parlance in the modern era. Along with this, in 1960’s and
1970’s members of national liberation and movements of anti colonialist were freedom fighters.
On the other side, critic party or enemies labelled them as terrorists which in turn resulted into
rise in common limitations. Thus, by considering the existing situation international conventions
made their efforts to exclude the consideration of motivation. This aspect can be supported with
the example of Hauge Hijacking convention in which consideration for certain crimes are
excluded for attaining mixed success. Hence, Hauge convention is the multilateral treaty in
which states agree that they will take action in relation to prohibiting and punishing activities
related to aircraft hijacking. Such convention applies exclusively on civilian aircrafts rather than
custom, law enforcement and military.
In addition to this, such convention applies on the situation when aircraft takes off or land
at place which differs from the country of registration. In the previous times, convention of
Tokyo failed to mandate prosecution or extradition pertaining to aircraft hijacking. Convention
19

of Tokyo came into consideration on 4th December 1969. However, such convention has been
ratified by 186 parties in the year of 2015. Tokyo convention is applied on acts that put the safety
of person or property at risk. Hauge convention is highly significant but it did not force to
Signatories in relation to exclude the part of hijacking from the aspect of political offence. For
reducing the level of political offence, in the year of 1973 Protection of Diplomats conventions
have undertaken strategic measures for avoiding the motive of offenders.
In order to limiting the scope of political offence exception strategic move was
undertaken by European Convention on the Suppression of Terrorism in the year of 1977. In this,
list of crimes were added which will be considered as a political offence. On the basis of such
aspect, activities such as kidnapping, hostage taking, use of bombs and firearms will be
considered as political offence. The main reasons behind this, such kind of undesirable activities
or practices directly affect the lives of individual. Further, European arrest warrant system
removed political offence exception related to extradition among the member states of European
Union.
6.5 Controversial issues about the political offence
7. Political Offence Exception and Acts of Terrorism
From evaluation, it has been assessed that violent terrorism activities or incidents become
the main parts of political reality from the last two decades. Hence, treaties do not impose
unqualified duty in relation to extradite individuals because they are considered as the main
subjects of political offence exception. On the basis of such aspect, State to which individual run
away are not considered for extradition when crime committed is political in nature.
20

REFERENCES
Books and Journal
Cedric Ryngaert. Jurisdiction in international law [2015] OUP Oxford.
Giuffré, M., 2017. Deportation with Assurances and Human RightsThe Case of Persons
Suspected or Convicted of Serious Crimes. Journal of International Criminal Justice. 15(1).
pp.75-95.
Hufnagel, S., 2016. Third Party’Status in EU Policing and Security-Comparing the Position of
Norway with the UK before and after the ‘Brexit.Nordisk politiforskning. 3(02). pp.165-180.
Ibrahim F. I. Shihata. The Power of the International Court to Determine Its Own Jurisdiction:
Compétence de la Compétence [2013] Springer.
Jean-Paul D. Addie and Roger Keil. Real existing regionalism: the region between talk, territory
and technology [2015] Journal of International journal of urban and regional research 39(2).
pp.407-417.
Kiani, Z. and Purkhaghan, Z., 2017. Deportation and Extradition from an International
Perspective. J. Pol. & L. 10. p.197.
Michael N. Schmitt ed. Tallinn manual on the international law applicable to cyber warfare [,
2013] Cambridge University Press.
Morawska, E. H., 2016. The complex structure of the absolute prohibition of torture: comments
in the light of the regulation of article 3 of the European Convention on human rights.
Espaço Jurídico Journal of Law [EJJL]. 17(3). pp.767-778.
Ruggeri, S., 2017. Participatory Rights and Transnational Criminal Justice in the European
Convention. In Audi Alteram Partem in Criminal Proceedings( pp. 403-422). Springer
International Publishing.
Ruggeri, S., 2017. Participatory Rights in Transnational Criminal Justice Under Italian Law. In
Audi Alteram Partem in Criminal Proceeding ( pp. 169-200). Springer International
Publishing.
Sandholtz, W., 2017. Expanding Rights: Norm Innovation in the European and Inter-‐American
Courts. Expanding Human Rights: 21st Century Norms and Governance. p.156.
21

Światłowski, A. and et.al., 2017, June. Brexit and the Future of European Criminal Law–A
Polish Perspective. In Criminal Law Forum (Vol. 28. No. 2. pp. 319-324). Springer
Netherlands.
Voeten, E., 2016. International Human Rights Institutions: Competition and Complementarity.
Global Order and the New Regionalism. p.55.
Voeten, E., 2017. Competition and Complementarity between Global and Regional Human
Rights Institutions. Global Policy. 8(1). pp.119-123.
Wittendorp, S., 2016. Unpacking ‘International Terrorism’: Discourse, the European Community
and Counter‐Terrorism, 1975–86. JCMS: Journal of Common Market Studies. 54(5).
pp.1233-1249.
Bossong, R., 2008. The action plan on combating terrorism: a flawed instrument of EU security
governance. JCMS: journal of common market studies. 46(1). pp.27-48.
Klimek, L., 2015. European arrest warrant (pp. 103-104). Cham: Springer.
Bakker, E., International Centre for Counter-Terrorism, Paulussen, C. and Entenmann, E.,
2013. Dealing with European Foreign Fighters in Syria: Governance Challenges & Legal
Implications. The Hague: International Centre for Counter-Terrorism.
Herlin-Karnell, E., 2013. From Mutual Trust to the Full Effectiveness of EU Law: 10 Years of
the European Arrest Warrant. EUR. L. REV. 38. p.79.
Jimeno‐Bulnes, M., 2003. European judicial cooperation in criminal matters.European Law
Journal. 9(5). pp.614-630.
Rafaraci, T., 2013. The right of defence in EU judicial cooperation in criminal matters.
In Transnational Inquiries and the Protection of Fundamental Rights in Criminal
Proceedings (pp. 331-343). Springer Berlin Heidelberg.
Paust, J.L., Scharf, M.P., Sadat, L., Bassiouni, M.C., Gurulé, J., Zagaris, B. and Williams, S.A.,
2000. International criminal law (p. 8). Durham NC: Carolina Academic Press.
Böse, M., 2015. Human rights violations and mutual trust: recent case law on the European arrest
warrant. In Human Rights in European Criminal Law (pp. 135-145). Springer International
Publishing.
Böse, M., 2015. Human rights violations and mutual trust: recent case law on the European arrest
warrant. In Human Rights in European Criminal Law (pp. 135-145). Springer International
Publishing.
22

Paust, J. L. and et.al., 2013. International criminal law (p. 8). Durham NC: Carolina Academic
Press.
Luban, D., 2013. After the honeymoon: reflections on the current state of international criminal
justice. Journal of International Criminal Justice. 11(3). pp.505-515.
Abeyratne, R., 2014. A protocol to amend the Tokyo convention of 1963: some unanswered
questions. Air and Space Law. 39(1). pp.47-58.
Maxwell, A., 2017. THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF
INTERNATIONAL CHILD ABDUCTION 1980: THE NEW ZEALAND
COURTS'APPROACH TO THE" GRAVE RISK" EXCEPTION FOR VICTIMS OF
DOMESTIC VIOLENCE. VUWLR. 48. pp.81-185.
Dougherty, E.C., 2016. International Child Abduction and the Hague Convention: Inconsistences
between the United States and the United Kingdom-A Call for Amendments. Willamette J.
Int'l L. & Dis. Res., 24, p.297.Baird, S.M., 2016. Stuck in the Pipeline: An Analysis of the
Hague Convention and Its Effects on Those in the Process of International
Adoptions. Journal of International and Comparative Law. 3(1). p.4
23