The Efficacy of International Human Rights Courts: A Case Study of Uganda

The general consensus in the current literature on the efficacy of international human rights courts is rather positive. Kim and Sikkink (2010), Meernik (2003), and Akhavan (2009) agree on their ability to improve human rights through a number of legal and social means. However, Snyder and Vinjamuri (2003) remain more skeptical about their effects compared to other notable scholars, due to the potential for international human rights courts to destabilize by undermining their sovereignty. Overall, most of the literature on human rights courts is in consensus on international courts’ ability to improve human rights in both the social and legal realm and deter future human rights violations.

Kim and Sikkinik’s (2010) study examined the possible effects of human rights prosecutions and found that they decreased government repression in the long-term. They studied 100 transitional countries between 1984 and 2004 and classified three specific transitions: democratic transition, transition from civil war, and transition by state creation. Their dependent variable was political repression, operationalized by using the physical integrity index from CIRI scores. These scores encompass the amount of civil, political and workers’ rights that exist in each country on an 8-point scale, with higher numbers signaling lower rates of political repression. The independent variables were the variety of human rights prosecutions that occurred: domestic prosecutions for human rights crimes committed in the country, international prosecutions, foreign prosecutions, in which one country held another country’s leader on trial, and hybrid courts. Kim and Sikkink (2010) found that human rights prosecutions had a strong statistically significant impact on the decreasing level of political repression. Countries with human rights prosecutions had lower levels of repression than those without prosecutions. The level of repression also decreased as the number of years with human rights prosecution increased. One of the strengths in the study lay in the selection of transitional countries, which generally have worse human rights records, yet international courts were still able to decrease repression rates. Additionally, their verification of their measurements of repression bolstered their conclusions as both CIRI scores and the Political Terror Scale indicated an improvement of human rights practices post-transition. Their consideration of various forms of human rights prosecutions aided in revealing the cumulative effect of all types of human rights prosecutions. However, they failed to go into detail about the specific effects of domestic versus international or foreign prosecutions, leaving open the question of which method is most responsible for improvements in human rights. Additionally, there was little discussion of the effects of the different processes of transition in improving adherence to international human rights norms compared to one another. Moreover, their brief consideration of transition by state creation or democratic transition ignored the effects that colonial roots may have, for example, whether British colonies may have better human rights prosecutions than French ones. Ultimately, Kim and Sikkink’s (2010) study was representative of the general optimism surrounding the effect of international courts and human rights prosecutions.

Meernik (2003) expanded upon Kim and Sikkink’s (2010) research by separating the possible legal and political factors that could affect sentencing in the International Criminal Tribunal for the former Yugoslavia (ICTY), and found that the Court operates on primarily legal factors. He predicted verdicts based on legal or political variables pulled from the ICTY website, to examine which ones had the most influence and evaluate the “fairness” of the court. His political model’s independent variables were the differences in expertise, ethnicity, number of witnesses called by the judge, number of judges from NATO nations, and arrests by the stabilization force (SFOR). His legal model’s independent variables were the gravity of the crime, the individual’s level of responsibility and whether the individual agreed to a plea bargain. Meernik (2003) concluded that the ICTY mainly follows the legal model; those convicted of the worst crimes, the most offenses and who bore the most responsibility for these crimes would receive the most severe sentencing. He found that most political factors do not play a significant role in sentencing, except for the number of witnesses called to testify. The strength of his study lay in the separation of political and legal factors that created a clear distinction between the effect of each category of variables. However, his grouping of NATO judges was problematic as he assumed they had the same training and values. He did not consider the differing legal traditions in each of the NATO states, such as the unique use of the death penalty in the United States. He also failed to explain the category of the crime and whether genocide or war crimes carry a more severe sentence compared to other types of crimes. Meernik’s (2003) analysis informed Kim and Sikkink’s (2010) research by focusing on the legal workings of the court system. It gave a possible reason for improved adherence to human rights norms, as the structured, unbiased nature of the ICTY can punish those responsible, relieving lingering emotional tensions, and act as a guide for an impartial legal system. Additionally, while Yugoslavia is not technically a transitional state in the definitions that Kim and Sikkink (2010) used, it still has to transition back to peaceful civil life after a bloody conflict. The ICTY could aid in guiding them back to civil society by reinforcing the legal norms. This could parallel the reinstatement of law through human rights prosecutions that may have occurred in the countries that Kim and Sikkink (2010) studied, as they also transitioned from a state of conflict, back to some sort of peace.

Akhavan (2009) supported Meernik’s (2003) research by using case studies to find that the International Criminal Court (ICC) played a significant social, rather than merely a legal, role in deterring violence. Akhavan (2009) selected three ICC situations where no individual was held legally responsible and indictments were not issued: Cote d’Ivoire, northern Uganda and the Darfur region of Sudan. He found that in Cote d’Ivoire, the threat of referral to the ICC stopped the propagation of hate-filled, discriminatory radio broadcasts that could incite violence. In Uganda, Sudan was less willing to protect the Lord’s Resistance Army once the case was referred to the ICC. The stigma the ICC placed on the LRA pressured Sudan to distance themselves from the LRA. In Darfur, the pressure the ICC placed on the Sudanese government made them use Janjaweed leaders as a scapegoat, which aided in disrupting ethnic cleansing in the region. One of the strengths of his study was in examining cases with various methods of referral to the ICC. The broad deterrent effect of the ICC applied to whatever method was present. Additionally, he also considered the social effects of the Court and their method of naming and shaming campaigns to induce change. However, Akhavan (2009) was also not able to separate the specific effects of the ICC from the effects of general condemnation of other nations. Additionally, he also examined rather weak and politically tumultuous states and did not consider whether the trend would hold for internationally powerful states. Akhavan’s (2009) study was still able to supplement those that came before. Unlike Meernik (2003), he studied the effect of the Court through political and social methods and its ability to follow more Constructivist ideas of changing norms and increasing the social and political price of committing human rights violations. Akhavan (2009) also served as a direct companion to Kim and Sikkink (2010) in their conclusion that international courts and human rights prosecution can prevent future human rights violations rather than merely deal with the perpetrators after-the-fact, by thoroughly examining the methods behind such a change, rather than just observing a trend, as Kim and Sikkink (2010) did. Akhavan (2009) depicted a more activist court in leveraging its international social weight to intimidate governments to stop violating human rights.

Snyder and Vinjamuri (2003) took a more pessimistic view of the effect of international courts, as they concluded that international courts destabilized the countries they prosecuted. They examined 32 cases of civil wars between 1989 and 2003. Snyder and Vinjamuri (2003) conducted an observational study, and examined the rule of law and existing human rights standards to assess how trends in these dependent variables related to their independent variables, the strategy of justice used in each case: trials, truth commissions and amnesty. They found that trials can end abuses when spoiler groups were weak and the domestic legal infrastructure was reasonably well-established. Otherwise trials could incite further violence and deepen ethnic cleavages. The strength in their study lay in their examination of multiple methods of justice (trials, truth commissions and amnesties), as well as a variety of countries, which showed the varied effects of each method of justice on a state’s human rights. However, Snyder and Vinjamuri’s (2003) multiple case studies did not delve deeper into the more complex social implications of each method of justice, but were more surface conclusions. Furthermore, there was little discussion to the reaction of victims and their families to the lack of prosecution as they reduced a humanitarian problem to a political one. Snyder and Vinjamuri (2003) departed from Meernik’s (2003) conclusions that an impartial court can bring about improvements, rather, they preferred political factors to influence decisions of justice as each case should be placed in its international political context to decide the next steps, which could be amnesty if the political landscape was still too dangerous for human rights prosecutions. While Akhavan (2009) presented the ICC as a method of possibly solving the trade-off between political expedience and justice through collective action and reinforcement of norms, Snyder and Vinjamuri (2003) accepted politically expedient deals as often the only peaceful way to end conflict. Snyder and Vinjamuri (2003) were more conservative about the effect of human rights prosecutions compared to Kim and Sikkink (2010). They did not completely despair at the effects of human rights prosecutions, merely that they were effective under certain political conditions of an already democratizing state.

The scholars discussed above are quite optimistic about the impact international human rights courts can have. Kim and Sikkink (2010), Meernik (2003), and Akhavan (2009) emphasized the courts’ impartial and fair nature that can reinforce human rights norms and aid countries in having a robust legal system to properly prosecute human rights offenders. However, Snyder and Vinjamuri (2003) were more conservative in their estimate of the effects of international courts. Ultimately, the power of the courts in academic literature was assumed to be positive.

While the literature has an optimistic perspective on the improvements international courts can bring, the effect of the International Criminal Court in Uganda was much more tempered. The ICC was spurred into action by the atrocities committed by the Lord’s Resistance Army (LRA), headed by Joseph Kony, including widespread abduction of children and adults, the use of forced child soldiers and sexual slavery (Silverman 2014). While there has been some short-term improvement in the Ugandan legal structure and an indication of a social awareness of human rights, there seems to be little promise for any long-term improvements in human rights.

The ICC had a fair amount of influence over the reforming of the legal structure in Uganda. Before the ICC, Amnesty International (1994) indicated few methods for recourse if one is victim of a human rights violation. Additionally, they noted the complicity of local authorities in refusing or delaying trials to prosecute human rights violations, particularly those perpetrated by Ugandan soldiers or LRA members. According to the ACCORD Report (2015), the ICC promoted the creation of a number of laws and a new court to hold perpetrators of grave injustices more accountable. Specifically, they sponsored the International Criminal Court Act of 2010, the Accountability and Reconciliation Agreement with the LRA, and are seeking to pass a Prevention of Genocide Bill through the Ugandan Parliament, which establishes an Independent National Committee to spearhead the fight against genocide. One of the clearest signs of the ICC’s influence was the creation of the War Crimes Court, which was directly modelled after international tribunals with a judicial bench consisting of at least three judges, a registry, an Office of the Prosecutor and a Defense Court (ACCORD 2015). These developments were an improvement from the previous lack of judicial structures for these particular subset of atrocities. Additionally, even the presence of such structures could raise the cost of performing such acts and deter future attacks by the LRA. It could also spread the norms of the unacceptability of violating human rights, as well as establishing a sense of a rule of law and, as Akhavan (2009) noted, could use international political pressure to stop the LRA. These influences by the ICC and its potential to charge human rights violators could inform Meernik’s (2003) study as the impartiality of the ICC could be transferred to the domestic institutions it has helped build, such as the War Crimes Court. The fair prosecution of leaders of the LRA could also aid in splintering the organization of the group, which has been cited as one of the factors behind the shrinking power of the LRA and its decreasing rates of child abductions and violent attacks. The guidance of the ICC can aid in Uganda strengthening and clarifying its legal protections against human rights violations.

However, despite the promising start of these institutions, there seems to be little evidence on continuing improvements in the long-term. The LRA, though greatly weakened, is still operating and abducting children (Human Rights Watch 2005). There is only one pending prosecution against Thomas Kwoyelo, a high-ranking LRA colonel, in the War Crime Division of the High Court, leaving the efficacy of the court uncertain and casting skepticism on the idea that the War Crime Division will truly prosecute everyone involved (Human Rights Watch 2011). Overall, Uganda’s Freedom House score is consistently high, demonstrating a flawed rule of law and a lack of civil rights for its citizens (Freedom House 2015). The United States Department of State (2016) continues to classify the crime rate, as well as domestic and international terrorist threats to Uganda as critical, suggesting the implementation of new legal standards and courts were not as effective as the ICC expected. Kim and Sikkink’s (2010) conclusions about the beneficial nature of human rights prosecutions through international and domestic courts, were somewhat challenged by the fact that despite the slight improvements at the start of the reform process by the ICC, its effects may be more difficult to translate into the long-term.

The ICC has also attempted to bring justice to victims of human rights violations and their families, by further strengthening social acceptance of human rights. Previous to the arrival of the ICC, the lack of trials or accountability left victims of human rights abuses and domestic crimes vulnerable to physical and economic intimidation by their attacker (Human Rights Watch 2005). Moreover, ACCORD International (2010) reported that many victims were often socially stigmatized from their communities after experiencing human rights violations or other crimes, particularly if the crime was sexual, which was common for women kidnapped or attacked by LRA members. They were often forced not to report their crimes as police officials extorted money if they did report it or were often bribed to not take action, ultimately contributing to the culture of silence and ignorance of human rights violations. In a study by the Human Rights Center at the University of Berkeley (2005) of 2,585 Ugandans from four Northern districts, 76% of respondents indicated a desire for some accountability for the actions of abusers and, of the small percentage who have heard of the ICC, 91% believed it would contribute peace and justice. Another study by the ACCORD International (2015) also found the majority of their 20 respondents also noted the beneficial social impacts of the ICC, such as raising awareness of existing law to protect against human rights violations and its ability to “touch the untouchables”. The desire for adherence to international human rights norms allowed the ICC to have a place in the Ugandan legal system, which could build the social foundation for a more just and sophisticated understanding of the law, which can further motivate legal reform. Furthermore, such awareness of human rights abuses and options to prosecute them could also prevent future abuses as the definitions of human rights abuse were clarified and action could be taken, which was consistent with Kim and Sikkink’s (2010) predictions of the use of human rights prosecutions in transitional justice.

Complicating this optimism, there is disagreement as to whether the ICC can exact justice consistent with Ugandan culture, tempering its efficacy. Rates of corruption and police abuse, as well as the social stigmatizing of human rights victims still were quite high (ACCORD International 2010). In ACCORD International’s (2015) study, 33% of respondents argued that the ICC was taking the focus away from restorative justice mechanisms that were highly present in the Aicholi culture and highlighting the West’s more retributive form of justice. Additionally, the study by the Human Rights Center (2005) showed the same spectrum of results as 66% of respondents favored more punishing consequences (trials, imprisonment and killing) and 22% favored more forgiving tactics of reconciliation and integration. Furthermore, ACCORD International (2015) also found that almost one-third of respondents considered the ICC an imposition of Western authority and had concerns of its Western bias. Therefore, the Ugandan experience paradigmatically falls in line with Snyder and Vinjamuri’s (2003) research of the possible ways in which human rights prosecutions could destabilize a region. Action should be taken within the context of a country’s nuanced political and social state at the time. The effect of the ICC was restrained due to opponents of its Western methods of justice. The ICC caused a further social divide and seemed like a Western, even neocolonial force imposing its own form of justice on the domestic legal structure. It ran the risk of damaging its credibility by ignoring local traditions and the people that support them. Furthermore, this also revealed another shortfall of the ICC in not informing the local people about its purpose and its methods. Few people knew about the ICC and mischaracterized it as an imposition of Western authority, rather than an impartial judge of human rights violators as Meernik (2003) suggested. Ultimately, the complex social impact of human rights violations and the politics of the justice made the ICC’s pursuit of justice for the victims much more complex.

There were still many strides made in the conflict and despite alternative explanations, the ICC could be directly attributed to the overall break down of the LRA, and consequently the small improvements in human rights in Uganda. One prominent explanation involved other international organizations such as the U.N. who sent their peacekeepers, that could account for the decreasing power of the LRA (Jowell 2014). However, the United Nations Peacekeeping Force, while acting as a deterrent against future violence, was limited to its military capabilities. It would not be able to resolve the need for justice and emotional closure within Uganda after such widespread human rights violations. The ICC could provide some sense of justice through its process. Additionally, the U.N. Peacekeepers would only be able to influence a small portion of the population due to its practical physical limitations. The spectacle of an ICC trial could be more effective in imparting human rights norms and demonstrating the strength of the international community in condemning human rights violators. Lastly, the U.N Peacekeepers were a military force, whereas the ICC served to bring about peace through solely peaceful means.

The effect of the ICC in improving adherence to international human rights norms and delivering justice in Uganda was much more tempered than the scholarly literature suggests. The ICC aided in reforming the Ugandan legal system, however its effect on crime and domestic and internal terrorism seem to be minimal. Additionally, the ICC may further complicate matters in the region as the debate between the ICC’s Western method of justice clashes with the traditional, restorative method of forgiveness. Its impact was far more nuanced than the academic literature suggested.

Bibliography

  1. Akhavan, Payam. “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism.” Human Rights Quarterly 31.3 (2009): 624-654.
  2. “Amnesty International Report 1994 – Uganda.” Refworld. Amnesty International, 1994. Web. 24 May 2017.
  3. “Forgotten Voices: A Population-based Survey on Attitudes about Peace and Justice in Northern Uganda.” ReliefWeb. Human Rights Center at the University of Berkley, 25 July 2005. Web. 24 May 2017.
  4. Jowell, Marco. “Peacekeeping Country Profile: Uganda.” Providing for Peacekeeping. Providing for Peacekeeping, 2014. Web. 24 May 2017.
  5. “Justice for Serious Crimes before National Courts.” Human Rights Watch. Human Rights Watch, 07 July 2015. Web. 24 May 2017.
  6. Kim, Hunjoon, and Kathryn Sikkink. “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries.” International Studies Quarterly 54.4 (2010): 939-963.
  7. “Making the Law Count: A Synthesis Audit of Legal Practice on Sexual Violence.” ACCORD International (n.d.): n. pag. ACCORD International. ACCORD International, Mar. 2010. Web.
  8. Meernik, James. “Victor’s Justice or the Law? Judging And Punishing At The International Criminal Tribunal For The Former Yugoslavia.” Journal of Conflict Resolution 47.2 (2003): 140-162.
  9. Snyder, Jack, and Leslie Vinjamuri. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” (2003).
  10. Silverman, Emma. “Washington State University.” Roots of the Lords Resistance Army. N.P., 29 Aug. 2014. Web. 24 May 2017.
  11. “The International Criminal Court and Conflict Transformation in Uganda.” ACCORD. ACCORD, 2015. Web. 24 May 2017.
  12. “Uganda 2016 Crime & Safety Report.” United States State Department. United States State Department, 2016. Web. 24 May 2017.
  13. “Uganda.” Freedom House. Freedom House, 2015. Web. 24 May 2017.
  14. “Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda: The Lack of Accountability.” Human Rights Watch. Human Rights Watch, Sept. 2005. Web. 24 May 2017.

Political Offenses in Extradition Law and the Case of Edward Snowden

In an increasingly globalized world, international law is playing a larger role in mediating transnational criminal justice. Extradition law, in particular, presents a venue through which states can negotiate the transfer of criminals and enter into treaties that provide for reciprocity and legal structure. This essay will engage with a brief history of general extradition law and a comparative approach to the area of political offenses. Then it will introduce the case of Edward Snowden, a former technical contractor for the United States government and whistle-blower who leaked classified information from the National Security Agency to the public in 2013, to show the complications of the political offense exception in extradition law.

First, a logistical note. Some legal scholars classify any exchange of criminals as extradition whether that exchange occurs on an international or inter-state level. This lack of clarity, however, presents some difficulty to readers who are unaware of the difference. A term that more precisely describes the transfer of fugitives from one state to another in a federal system would be interstate rendition, not international extradition. International extradition is akin to a contract between two parties (being the nations), with a subject matter (being the delivery of the criminal) and a mutual consideration (being the repression of crime).[1] To understand how the current international extradition regime developed, a short overview of extradition history would be useful. The concept of extradition can be traced back to 1258 B.C., when the ancient Egyptians and Hittites entered into the first known extradition agreement. Ancient Greek and Roman city-states also used extradition agreements, relying on noxae deditio, the notion that “[a] state that harbored a foreign criminal was considered to be poisoned or tainted by the presence of that individual, and could be held liable for that criminal’s actions.”[2] Later in history, during the early modern period, a global legal order ius commune provided early principles for transnational criminal justice such as compensatory prosecution and aut dedere aut judiciare (the legal obligation to extradite).[3]

Under The Law of Nations, which is a work of political philosophy published in 1758 that modernized international law, sovereign states should ideally refuse asylum to accused criminals pursued by another state. Today, extradition represents an avenue through which criminals can be prosecuted across boundaries. The process ensures “that fugitives from justice shall not, by flight from the jurisdiction of the laws which they have violated, be protected against arrest in the country to which they have fled, and that, upon proper evidence of their guilt, they shall be returned to that jurisdiction for trial and punishment.”[4] With globalization and advances in communication methods and transportation technology,[5] modern extradition often results from “mutual comity and convenience,” but requires a special compact, such as a treaty, to assert the weight of international law.[6] For instance, courts in the United States have ruled unanimously that there is no obligation to arrest, detain, or deliver[7] a criminal unless treaty stipulations exist.[8] However, among modern countries, the ideas of international law and moral rights have “fictitious dignity” because these principles are practically unenforceable.[9]

Governments comply with extradition treaties for a variety of reasons even though international law is not practically binding or mandatory; governments which have binding compacts would experience political repercussions and strains in international relations if the compact were not honored. There are several theories that attempt to explain why governments enforce extradition. Two main competing paradigms for interpreting international relations are divided into different schools of thought: Machiavellian and Grotian.[10] For Machiavellians, a cooperative international community bound by common values, rules, and institutions does not exist; instead, states are motivated by self-interest. There are no moral rules restraining state interactions and there is no universal concept of crime.[11] The pessimistic, Machiavellian framework discounts the “good faith” paradigm for enforcing international regulations and so governments operating under this framework would discount the legitimacy of extradition procedure altogether. For Grotians, however, all humans share a concern for the suppression of crime based on civitas maxima, which is the idea that all humans are bound by a sort of universal social contract. Under this theory, sovereign nations surrender fugitive criminals through extradition because they share the “common interest of civilised communities,”[12] which includes a civilized state’s duties to protect its own citizens from dangerous persons and to promote friendly relations with other countries.[13] Similarly, Kantian thought explains interstate collaboration based on the idea of a cooperative, collective “society of states.”[14] These theories offer some insight in explaining state behavior. Because there are different explanations for why states legally enforce international treaties and provisions, there are opportunities for change and variation in application.

Bilateral treaties for extradition vary in content and purpose, though they are usually characterized by general principles and procedures such as reciprocal rights and duties, enumeration and specification of extraditable offenses, the rule of evidence, and the process of surrender.[15] Multilateral conventions and national extradition acts often include special provisions for limitations on the age of the crime and for scenarios where there is an extradition demand by two or more countries. Traditionally, extradition treaties create provisions for the protection of individual rights in three distinct areas: the political offense exception, the rule of double criminality, and the principle of specialty.[16] The political offense exception protects the right to protest government action and engage in activism for political change; the rule of double criminality provides that an extradition cannot occur unless the crime charged is an offense in both the demanding state and the extraditing state; the rule of specialty commands that the extradited individual does not have to answer to any prior crimes other than the specific crime for which she is extradited.[17] On the surface, extradition treaties seem to provide for simple and plausible surrender procedures. In practice, however, these treaties are often negated by constitutional safeguards in the criminal laws of the countries that agree to them.[18] Some factors that can frustrate the formal process include, a “risk that extradition targets will be alerted to the request giving them time to flee; the host state may not possess an effective police force and so may not be capable of locating persons within its borders; the foreign government may simply be reluctant to comply with extradition requests or extradition may be barred by the non-fulfilment of a formality in the treaty.”[19] Moreover, these general principles and procedures in extradition treaties are often up to the interpretation of the countries which have signed the agreement. Especially when it comes to the area of individual rights protections, different countries can read treaty stipulations differently, or not comply with the language at all, without facing harsh consequences. Existing supranational organizations, such as the United Nations which governs international affairs, do not have the effectual authority or the power to enforce compliance with a particular reading of the treaty, and can only issue non-binding opinion statements.

Within the body of extradition law, there exists a doctrine protecting individual rights which is frequently interpreted variably and subjectively: the political offense exception. This exception dictates that countries should not extradite criminals if their crime is political in nature. Though many countries adopt a rule of non-inquiry, under which “courts may not examine the requesting country’s justice system or human rights record in determining whether to extradite an individual out of respect and courtesy,”[20] the idea behind the political offense exception acknowledges that governments are concerned that “an individual would be subjected to an unfair trial or inhuman treatment if extradited to the requesting State for committing a political offense.”[21] Despite the fact that, ideally, “[e]xtradition pronounces no judgment upon the laws of other countries, and exercises no judicial power in the trial of criminals, or the administration of punishment,”[22] political offenses represent a limitation on the surrender of fugitives because there exists a need for the two participating states’ laws to be alike. If the laws are dissimilar, then “the political sinner of one State may be the political saint of another.”[23] As a general principle “if the offense with which the fugitive is charged or of which he has been convicted is of a political nature (e.g. treason or sedition), he is not to be surrendered.”[24]

The political offense exception has been quite an unclear and murky doctrine of extradition law, especially since conventions and laws refer to political offenses without defining them. Many times, states do not agree on what constitutes a political offense. Different countries have different interpretations of how they handle political offenses. In extradition, the term has been interpreted to split into two categories of offenses: first, “purely” political offenses are against the political organization or government of a state, injuring public rights, and containing no common crime element, e.g. a tweet criticizing the president; second, “relative” political offenses are offenses in which a common crime is either implicit in or connected with a political act, e.g. someone vandalizing a government building.[25] While most countries agree that political offenders of the first category ought not be extradited, the uncertainty that lies mostly in the second category causes countries to disagree on whether to extradite.[26]

Different countries explain the political offense exception differently. Tribunals in Switzerland often consider offenses on a case-by-case basis rather than creating a general rule as to when an offense should be considered “predominately common or predominantly political.”[27] Using three principles—purpose, direct connection, and level of atrocity—the tribunals can determine the predominately political character of an offense.[28] For example, if the level of atrocity is too heinous, the nature of the crime outweighs the political offense exception. Belgium’s system, on the other hand, is less standardized and allows the courts greater freedom and flexibility in interpreting what constitutes a political offense, though they also subscribe to the theory of predominance. The French distinguish between political and social crimes; the former are committed against a government, the latter, against society, e.g. gambling, prostitution, and drug abuse.[29] Germany classifies offenses into common offenses and political offenses, for which asylum was universally recognized.[30] Since different countries have different interpretations of what constitutes a political offense, the political offense exception remains undefined and unclear.

Different time periods have wound up influencing how the political offense exception is handled as well. For instance, during the French Revolution, the king viewed political offenses as prosecutable and political exile as a viable strategy to reinforce his power because the French press spread news, propaganda, and conspiracies across borders and increased the likelihood of international insurrection, transnational political subversion, and transnational political crime.[31] He saw these trends in the press as threatening since they opened avenues of cooperation and information-sharing conducive to political dissent and subversion. Instead of a legal institution, extradition was an arbitrary power of kings to suppress and punish dissenters. In addition, the Russian government, from 1800 to 1825, rejected the doctrine of political asylum and attempted to force smaller states to extradite political offenders to Russian jurisdiction.[32] However, after World War II, the Soviet Union relied on “administrative rather than political channels of cooperation.”[33] As the dynastic system yielded to constitutionalism, extradition shifted from a political matter to a judicial one.[34] While extradition has a more uniform structure today than it did earlier in history, the political offense exception remains up to interpretation by the countries participating in the exchange of criminals. The situation becomes increasingly complicated if the two countries do not have an extradition agreement.

The United States and Russia do not currently have a bilateral extradition treaty.[35] The two countries likely do not have a treaty due to the tensions rising from the Cold War, the War on Terror, and the Ukraine crisis. Throughout their history, the United States-Russia relationship has fluctuated between amicable and hostile. During the existence of the U.S.S.R., the U.S. Senate entered into a mutual extradition treaty to prosecute potential assassins but it was heavily protested by American citizens. Though the politically unfavorable treaty was never formally terminated, neither government recognized an enforceable agreement and its stipulations were ignored despite the legal obligation.[36] Indeed, “[w]ithout an extradition treaty, the argument to extradite a suspect in order to face charges in another country becomes a political, as opposed to a legal, issue.”[37] However, Russia has increased its interest in forming extradition treaties with the U.S. since Russian nationals have been intercepted in countries that have extradition agreements with the U.S., which transfer the Russian criminals to American jurisdiction.[38] Russia wishes to have a more even-footed exchange of criminals with the United States since the Russian government itself does not have the same number of treaties with other countries as the U.S. does. So, Russia and the U.S. entered into the 1999 Treaty on Assistance in Criminal Matter; however, “the terms of that arrangement do not call for unequivocal extradition but rather simply assistance in legal matters abroad.”[39]

When Edward Snowden, a whistle-blower who leaked classified U.S. National Security Agency documents to journalists, sought asylum in Russia, the implications of his actions provided an example for how the political offense exception would be applied. Snowden was charged as a felon for stealing government property and giving classified intelligence data to unauthorized persons, namely representatives at the Washington Post and The Guardian newspapers. He uncovered the NSA’s surveillance of citizen cell phones, media, and emails and international spying, which makes him a “relative” political offender. The United States revoked his passport, blocked asylum requests in Latin America (arguably violating customary international law), and is actively seeking Snowden’s capture.[40] The Snowden affair became an international issue since he was classified as a political offender. The parliament of the European Union voted to call its member nations to grant Edward Snowden asylum because of the political nature of his crime in a non-legally binding resolution, which simply pushes the issue to all E.U. member nations. The vote itself does not grant Snowden any protections, but it does ask the E.U. to drop extradition charges against the exiled American because he is an “international human rights defender.”[41] Similar support has been extended to political offenders in the past –  “the moment a national boundary line [was] crossed… [t]he criminal bec[ame] an object of special consideration, if not of sympathy.”[42] The fugitive could plea for the human right of asylum, which is granted under Article 14 of the Universal Declaration of Human Rights.[43] Despite the political display in Europe, however, the U.S. State Department’s stance on Snowden’s status remains the same—he needs to return to the United States and face the judicial process.[44] The United States requested that Russia deny Snowden’s application for temporary asylum and extradite him to the United States for prosecution under the Espionage Act. If Snowden had stayed in Hong Kong, the United States would have had an extradition treaty to enforce capture without Russian assistance.[45] However, as it is, Russia denied the U.S. demand under the Obama administration since no treaty exists and has further stated “it will continue to extend asylum protections to Snowden and will not send him back home.”[46] After Snowden waited in a legal limbo, stranded in the transit zone at the Shermetyevo Airport in Moscow for a month, Russia granted him asylum.

The Snowden case shows how politically volatile the handling of the political offense exception is in the realm of international extradition law. U.S. intelligence sources have obtained information that says Russia may extradite Snowden as a gift to win favor with President Donald Trump, who has described Snowden in the past to be a traitor who should be executed.[47] The charges against Snowden by the Justice Department could bring a sentence of thirty years in prison under the 1917 Espionage Act. Unlike U.S. Army leaker Chelsea Manning, Snowden was not granted commutations by former President Barack Obama on his way out of office.[48] President Donald Trump is not expected to take a softer approach. Nevertheless, commentators have noted that Edward Snowden’s extradition to the U.S. is impossible on “legal and moral” grounds for the simple reason that there is no agreement for mutual extradition.[49] At the end of five years, Snowden could even apply for Russian citizenship. The Snowden case thus shows how the political offense exception is heavily influenced by a number of factors: the presence of an extradition treaty, international political relations, public opinion, and changes in government administrations.

Political offenses in international extradition law represent an important exception to agreements of mutual assistance. The exception attempts to skirt the murky territory of political crimes which may be received differently in different countries. This lack of uniformity makes it difficult to prosecute or pursue political dissidents. In the case of Edward Snowden, the intricacies of the political offense exception are obvious. While extradition seems an unlikely prospect in his case, international law attempts to impose the normative measures of what ought to happen. Governments are beginning to rely on methods of international law enforcement other than extradition for political offenses; namely, judicial assistance, treaties for the exchange of prisoners, and administrative arrangements for deportation or extra-territorial prosecution.[50] Perhaps these venues will be more fruitful to resolve the case of Edward Snowden and to clarify the uncertainty of the political offense exception.

[1] Chartres Biron and Kenneth Chalmers, The Law and Practice of Extradition (London: Steven and Sons, 1903), p. 3.

[2] William C. Herrington, “‘Snowed In’ in Russia: A Historical Analysis of American and Russian Extradition and How the Snowden Saga Might Impact the Future,” Journal of Law & Policy 48 (2015): p. 322.

[3] Karl Harter, “Security and Cross-Border Political Crime: The Formation of Transnational Security Regimes in the 18th and 19th Century Europe,” Historische Sozialforschung 38, no. 1 (2013): p. 98-99.

[4] Samuel T. Spear, Law of Extradition (Albany: Weed, Parsons & Company, 1884), p. 40.

[5] Biron & Chalmers, p. 2.

[6] Spear, p. 3.

[7] Ibid., p. 31.

[8] Ibid., p. 10.

[9] Biron & Chalmers, p. 3.

[10] Helen McDermott, “The Structure of International Cooperation in the Transfer of Suspects. Extradite or Abduct?,” International Criminal Law Review 15, no. 2 (2015): p. 254-297.

[11] Ibid., p. 254-297.

[12] Biron, p. 1.

[13] Ibid., p. 1-2.

[14] McDermott, p. 254-297.

[15] Spear, p. 43-46.

[16] Abbey G. Moffitt, “A Place for Snowden: U.S.-Russian Extradition Relations & Benefits of a Future Partnership,” Transnational Law & Contemporary Problems 24, no. 1, (December 2014): p. 249.

[17] Ibid., p. 249-50.

[18] Igor I. Kavass, eds. Adolf Sprudzs, International Journal of Law Libraries Vol. 9, No. 5, Chicago: The University of Chicago, (1981) p. 231.

[19] McDermott, p. 254-297.

[20] Herrington, p. 325.

[21] Ibid., p. 325.

[22] Spear, p. 40.

[23] Biron, p. 11.

[24] John Bassett Moore, “The Difficulties of Extradition,” Proceedings of the Academy of Political Science in the City of New York 1, no. 4 (1911): 631.

[25] Lora L. Deere, “Political Offenses in the Law and Practice of Extradition,” The American Journal of International Law 27, No. 2 (1993) p. 248.

[26] Ibid., p. 248.

[27] Ibid., p. 257.

[28] Ibid., p. 258.

[29] Ibid., p. 262.

[30] Ibid., p. 264.

[31] Harter, p. 99.

[32] Moffitt, p. 253.

[33] Ibid., p. 254.

[34] Harter, p. 249.

[35] Moffitt, p. 243

[36] Ibid., p. 251.

[37] Ibid., p. 267.

[38] Ibid., p. 260.

[39] Ibid., p. 244.

[40] Ibid., p. 246.

[41] Andrew Husband, “EU Wants to Grant Edward Snowden Protection Against Extradition,” Newstex Trade & Industry Blogs, Chatham: Newstex, October 30, 2015.

[42] Moore, p. 625.

[43] Universal Declaration of Human Rights, General Assembly Resolution 217, U.N. Document, 10 December 1948.

[44] Husband, p. 1.

[45] Ibid., p. 245.

[46] Moffitt, p. 247.

[47] Jeff John Roberts, “Snowden May Return to U.S. as “Gift” from Russia, Report Says,” Fortune, February 11, 2017.

[48] Lydia O’Neal, “Will Edward Snowden Go To Jail? US Indicts A Former NSA Contractor For Violating Espionage Act,” International Business Times, February 8, 2017.

[49] Brendan McDermid, “Moscow has no legal, moral reasons to extradite Snowden – Russia envoy to US,” Reuters, October 12, 2016.

[50] Kavass, p. 231.