The Political Offense Exception: Punishing Whistleblowers Abroad

Dr. Mark D. Kielsgard, is an Assistant Professor of Law at City University of Hong Kong.

 

On June 14, 2013, the U.S. lodged a criminal complaint against Edward Snowden for theft of government property and espionage after he had fled the country. Snowden is seen by many as a hero and modern whistleblower. Protecting whistleblowers has become increasingly important as the U.S. has been stepping-up use of the Espionage Act of 1917 to prosecute suspected whistleblowers (Obama’s Abuse of the Espionage Act is Modern-day McCarthyism, The Guardian, Aug. 6, 2013). Government employees, contractors and journalists have voiced concern over reporting misconduct for fear of government reprisals. In light of recent developments in the U.S. and the general temptation of all governments to cut corners in the post-911 era, extradition protection for whistleblowers who seek protection abroad is essential to protect political activism and foster political change. This essay will consider the continued relevance of the political offense exception common to most extradition treaties and discuss its implications for modern whistleblowers abroad.

The U.S. seems to provide fugitives with among the lowest threshold of protection while many other states have evolved their standards. This is largely due to the antiquated interpretation of the traditional “incidence” test recognized for “relative political offenses” under U.S. law. As virtually no political offense can qualify as a “pure political offense,” a “relative political offense” analysis is indispensible. By recognizing a lower threshold of protection for “relative political offenses,” U.S. law has effectively rendered this exception meaningless.

The Political Offense Exception

The political offense exception dates back to at least the 19^th century and has several justifications. It is premised on the belief that individuals have a right to resort to political activism to foster political change and manifests the requirement of fairness that individuals should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Additionally, it complies with the right of self-determination, that foreign governments should not intervene in the internal political struggles of other nations. This exception is commonly included in extradition treaties and is provided in the United Nations Model Treaty on Extradition (G.A. Res. 45/116) at article 3(a).

According to international practice there are two distinct categories of political offenses: “pure political offenses” and “relative political offenses” (Quinn v Robinson, 783 F.2d 776 (9^th Cir. 1971)). Pure political offenses are acts aimed directly at the government and are distinguishable from ordinary crimes. These offenses include treason, sedition, and espionage and do not violate the private rights of individuals. Relative political offenses include “otherwise common crimes committed in connection with a political act” or “common crimes … committed for political motives or in a political context” (Quinn at 794). Pure political offenses are not usually extraditable because they are expressly omitted from treaties (Cherif Bassiouni, International Criminal Law, vol. II- at 356), but governments can often obtain the same ends by charging the target with related crimes and frustrating the exceptions raison d’ être. Whistleblower extradition cases are likely to be premised on relative political offenses such as theft of government property, as seen in the Snowden case.

Relative Political Offenses

In the U.K., there is no statutory or generally accepted judicial definition of relative political offense. Nevertheless, broadly defined, a relative political offense is one that requires a nexus between the offense and the political motivation behind its perpetration. Three distinct tests have emerged: (i) the French “objective” test; (ii) the Swiss “proportionality” or “predominance” test; and (iii) the Anglo-American “incidence” test. The early French test considered an offense non-extraditable only if it directly injured the rights of the State and the motives of the accused had been considered irrelevant.  The test essentially protected only pure political offenses. On the contrary, the Swiss test examines the political motivation of the offender and the circumstances surrounding the commission of the crime and applies one of two standards: the proportionality between the means and the political ends or the predominance of the political elements over the common crime elements. Thus, theft of government secrets for profit would not be protected unless it could be shown that the financial incentive was secondary to a political motive or that the means of the crime was proportionately inferior to the political ends sought or expected. Alternatively, under UK law, the offender’s political motivation alone is not decisive. Rather the crime must be specifically and immediately directed at “overthrowing or changing the government of a State or inducing it to change its policy, or escaping from its territory the better to do so.” (Cheng v Governor of Pentonville Prison, [1973] A.C. 931, 945 (H.L.)). Further, the action must have been directed against the State requesting extradition, and not government in general.

The Anglo-American system uses an “incidence” test, which requires that the act must be incidental to and forming a part of political disturbances. There must be a preliminary showing that a political disturbance existed in the requesting state at the time of the operative behaviour. This may range from mere fractious dissent (Regina v. Governor of Brixton Prison, ex p. Koczynski [1955] 1 Q.B. 540) to a shooting war (In re Castioni, [1891] 1 Q.B. 149), depending on the jurisdiction. Under the traditional Anglo-American test, extradition will only be denied if the acts are “committed during the progress of actual hostilities between contending forces” and are “closely identified” with the uprising “in an unsuccessful effort to suppress it” (In re Ezeta, 62 F. 972, 997, 1002 (N.D.Cal. 1894)). The “incidence” test has two components – the uprising requirement and the nexus requirement. The uprising component “makes the exception applicable only when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective” (Quinn at 807). The nexus component means the offense must occur in the context of an uprising and be limited by the geographic confines of the uprising, contemporaneous with the uprising and causally or ideologically related to the uprising. This is a high standard, which most whistleblowers would be unable to meet. If there is not an ongoing uprising taking place in the requesting state, then the whistleblower would fail the “incidence” test and be extradited for the relative political offense, frustrating the purpose of the political offense exception.

However, in the mid 20^th century U.K. law changed to incorporate a more clement interpretation. Although English law shared the common origin in In re Castioni, the rigid “two-party struggle” requirement of the British incidence test has not survived (Quinn at 796). In the 1950s, “British courts … [took] other factors into account, noting that political offenses … [had to] be considered according to the circumstances existing at the time”(Regina v Governor of Brixton Prison at 540). Instead of a distinct uprising, the new British “incidence” test requires some “political opposition … between fugitive and the requesting State” (Schtraks v Government of Israel, [1964] AC 556,591 (HL)) and “incorporates an examination of the motives of the accused and the requesting country in those situations in which the offense is not part of an uprising” (Quinn at 796). This interpretation seems to reflect a view more consonant with the Swiss test. However, “… the United States interpretation of the exemption is, in some ways, the most strict, for the fugitive has no prospect of success unless a political disturbance is proven.”

Conclusion

The historic justifications for the political exception rule are as valid today as they were during the 19^th century or the trustee period of the mid 20^th century. In an increasingly globalized world greater oversight is indispensible and the whistleblower fills that lacuna. Often, however, domestic whistleblower protection is inadequate, if not a sham (Obama’s Abuse at 2) and whistleblowers are forced to look to other states for protection. Invariably, whistleblowers will be charged with ‘relative political offenses’ sounding in theft of government secrets so  they cannot look to the ‘pure political offense’ protection to evade extradition. The U.S. provides among the least protection, persisting in the traditional interpretation of the “incidence” test, while many other states have evolved their standards. The requirement of ‘actual hostilities in progress’ operates to foreclose whistleblowers’ recourse to this exception despite their legitimate efforts and motivations to change government policy, under all but the most extreme circumstances. Moreover, the type of charges usually arising during hostilities are of such a violent nature that they would also otherwise be exempt from extradition protection. Thus, the American interpretation of the “incidence” test effectively renders the political offense exception obsolete. As the new century advances, politico-strategic paradigms continue to shift, and presumed U.S. omnipotence wanes. U.S. international initiative relative to the Snowden case is self-defeating as it fails to occupy the high moral ground and lacks legal legitimacy. Ironically, it has taken an absentee U.S. whistleblower to publicize the need for greater extradition protections.