Terrorism, Criminal Law and Politics Recent atrocities have ensured that terrorism and how to deal with terrorists legally and politically has been the subject of much discussion and debate on the international stage. This book presents a study of changes in the legal treatment of those perpetrating crimes of a political character over several decades. It most centrally deals with the political offence exception and how it has changed. The book looks at this change from an international perspective with a particular focus on the United States. Interdisciplinary in approach, it examines the fields of ter- rorism and political crime from legal, political science and criminological perspec- tives. It will be of interest to a broad range of academics and researchers, as well as to policymakers involved in creating new anti-terrorist policies. Julia Jansson holds a Doctor of Laws degree from the University of Helsinki, Finland. Transnational Criminal Justice The concept of ‘transnational criminal justice’ has frequently been interpreted in the academic literature as ‘international criminal justice’ or ‘global criminal justice.’ Many publications that use the term ‘transnational’ therefore discuss international criminal justice and international legal frameworks. Another form of study that has developed under the umbrella of transnationality in the field of criminal law is comparative. There has hence been a move from the terminology of ‘international,’ ‘global’ and ‘comparative’ criminal justice towards ‘transnational’ criminal justice. This series considers these developments, but focuses primarily on publica- tions that adhere to a more literal interpretation of the term ‘transnational.’ The aim of the series is to provide a forum for discussion of bilateral and multilat- eral relationships between nations in the field of criminal justice. International law influences these relationships but is not the focus here. Equally, to explain transnational relationships, comparative analyses are required. While incorporat- ing comparative studies in this series, the aim is the explanation of challenges to criminal justice cooperation in bilateral or multilateral relationships. Series Editor Saskia Hufnagel, Queen Mary University of London, UK Titles in this series: Police Cooperation and Sovereignty in the EU Norway’s Lessons for Europe Synnøve Ugelvik Criminal Networks and Law Enforcement Global Perspectives on Illegal Enterprise Saskia Hufnagel and Anton Moiseienko Terrorism, Criminal Law and Politics The Decline of the Political Offence Exception to Extradition Julia Jansson For more information about this series, please visit: https://www.routledge.com/Transnational-Criminal-Justice/book-series/ TRANSCJ Terrorism, Criminal Law and Politics The Decline of the Political Offence Exception to Extradition Julia Jansson First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Julia Jansson The right of Julia Jansson to be identified as author of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.taylorfrancis. com, has been made available under a Creative Commons Attribution- Non Commercial-No Derivatives 4.0 license. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Jansson, Julia, author. Title: Terrorism, criminal law and politics / Julia Jansson. Description: Abingdon, Oxon; New York, NY: Routledge, 2019. | Series: Transnational criminal justice | Based on author’s thesis (doctoral - Helsingin yliopisto, 2018) issued under title: The death of the freedom fighter: how the threat of terrorism is suffocating the protection of political criminals. | Includes bibliographical references. Identifiers: LCCN 2019013170 | ISBN 9780367189044 (hb) | ISBN 9780429199110 (eb) Subjects: LCSH: Terrorism (International law)–Political aspects. | Terrorism–Prevention–Law and legislation. | Political crimes and offenses. | Extradition. Classification: LCC KZ7220 .J36 2019 | DDC 345/.02317–dc23 LC record available at https://lccn.loc.gov/2019013170 ISBN: 978-0-367-18904-4 (hbk) ISBN: 978-0-429-19911-0 (ebk) Typeset in Galliard by Deanta Global Publishing Services, Chennai, India Contents Abbreviations viii Key concepts ix Acknowledgements x 1 Introduction 1 1.1 A historico-legal approach 2 1.2 Structure of the book 7 2 Concepts employed 9 2.1 Political crime and terrorism 9 2.1.1 Defining political crime 9 2.1.2 Classifying political crime 15 2.1.3 Terrorism: the problem of definition 16 2.1.4 Ideologically motivated acts 20 2.1.5 Terrorism as uncivil disobedience 29 2.1.6 Terrorism as an international crime 34 2.1.7 The de- and repoliticisation of terrorism 36 2.2 Extradition: legal and diplomatic function 40 2.2.1 Reciprocal legal assistance 40 2.2.2 Extradition and human rights protections 44 2.2.3 POE versus political refuge: different legal constructions 50 2.2.4 History of the extradition of political criminals 54 2.2.5 Who is a political offender? Four tests 56 2.2.5.1 The UK: the political incidence test 57 2.2.5.2 The US application of the incidence test: In re Ezeta 1894 59 2.2.5.3 Evaluating the incidence test 62 2.2.5.4 The French injured rights theory 65 2.2.5.5 The predominance test 66 2.3 Conclusion 69 vi Contents 3 The rise and decline of romantic liberalism: From the 1800s to the 1960s 71 3.1 The emergence of the political offence exception in the 1830s 71 3.1.1 Revolution as evolution 71 3.1.2 POE becomes widely accepted 77 3.1.3 Exception to the exception: the attentat clause of 1856 85 3.1.4 Four reasons behind the political offence exception 91 3.2 The anarchist threat at the turn of the 20th century 95 3.2.1 Crime against the whole humankind 95 3.2.2 A world without rules: a political goal 96 3.2.3 The depoliticisation of anarchism in 1898 98 3.2.4 Why was anarchism depoliticised? 104 3.2.5 The 1937 convention 105 3.3 Conclusion 108 4 Taking the political out of the political: 1960s–1980s 110 4.1 Terrorism challenges the political offence exception 110 4.1.1 Gradual changes in US extradition treaties 1960s–1970s 110 4.1.2 The new revolutionary wave and the US draft convention of 1972 113 4.1.3 Politics overrule legal concerns 1970s–1980s 117 4.1.4 Interpol’s incapability towards terrorism 121 4.1.5 Terrorism alerts Europe in the 1970s 123 4.1.6 The Iranian hostage crisis provokes a global reaction in 1979 131 4.2 Reagan, Thatcher and the narrowing of the exception in the 1980s 133 4.2.1 Legislative war against terrorists 133 4.2.2 Eain v. Wilkes of 1980 as a departure from the incidence test 133 4.2.3 Terrorism starts to affect the US in the 1980s 137 4.2.4 The POE loses its justification 142 4.2.5 US–UK controversies with regard to terrorism in the 1980s 146 4.2.6 Creation of the Supplementary Treaty of 1985 151 4.2.7 Evaluating the 1985 treaty 154 4.3 Conclusion 159 Contents vii 5 Dedication to the fight against terrorism since the 1990s 161 5.1 Changes in global views on terrorism 161 5.1.1 A new understanding of terrorism in the United States 161 5.1.2 Interpol adopts a new take on terrorism since the 1980s 168 5.1.3 The UN and terrorism as unacceptable violence 172 5.1.4 Why was terrorism depoliticised? 181 5.2 Dismantling the political offence exemption 186 5.2.1 Terrorism as an ‘evil ideology’ since 2001 186 5.2.2 The EAW of 2004 and the annihilation of the POE 188 5.2.3 The POE in modern days 194 5.2.4 Applying the POE in the 2000s 198 5.2.5 “Ballot rather than the bomb”: fixing the POE 201 5.3 The repoliticisation of terrorism 211 5.3.1 Do bad motives make worse criminals? 211 5.3.2 Do terrorists have human rights? 214 5.3.3 A threat to democracy 221 5.4 Conclusion 223 6 Conclusion: Protecting political offenders: pipe dream of romantic liberalism? 225 6.1 The demise of the political offence exception 225 6.2 The delegitimisation of terrorism 228 6.3 Final questions 230 7 Summary 233 8 Sources and bibliography 235 Appendix 263 Index 279 Abbreviations BIA Board of Immigration Appeals (USA) CAT UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CPT European Committee for the Prevention of Torture and Inhuman Treatment or Punishment of the Council of Europe ECHR European Convention of Human Rights ECST European Convention on the Suppression of Terrorism EEC European Economic Community ETA Euskadi Ta Askatasuna (Basque separatist and nationalist organisation) ETS European Treaty Series EU European Union FLN Front de Libération Nationale (France) FLNC Fronte di Liberazione Nazionalu Corsu (Corsica) FRG Federal Republic of Germany GMT Multidisciplinary Group on International Action against Terrorism (EU) ICCPR International Covenant for Civil and Political Rights IHL International Humanitarian Law IHRL International Human Rights Law Interpol International Criminal Police Organisation NSA National Security Agency (USA) PIRA Provisional Irish Republican Army PLF Palestinian Liberation Front PLO Palestinian Liberation Organisation POE political offence exception UDHR Universal Declaration of Human Rights UN United Nations UNHCR United Nations High Commissioner for Refugees UN GA United Nations General Assembly UN GA RES United Nations General Assembly Resolution UN SC United Nations Security Council UNTS United Nations Treaty Series Key concepts Attentat clause – A clause in extradition treaties limiting the application of the political offence exception (POE) so that it does not cover attacks against the lives of heads of state.