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repeatedly condemned by the Security Council, the United Nations General Assembly and the International Civil Aviation Organization in solemn resolutions supported by France and the United States. The General Assembly resolution of November 25, 1970, "condemns, without exception whatsoever, all acts of aircraft hijacking" and "calls upon states to take all appropriate measures to deter, prevent or suppress such acts within their jurisdiction .. "The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, signed December 16, 1970, to which France and the United States are party, provides for the extradition or prosecution of the perpetrators of such crimes.

While there are cases in years past in which states held a particular hijacking to be a political offense where the persons involved were fleeing from tyranny and faced severe political persecution if they were returned, the danger inherent in the increasing incidence of aircraft hijacking in more recent years has alarmed the entire international community and given grounds for a presumption that aircraft hijacking is a most serious common crime regardless of the circumstances. Moreover, there is wide recognition in the international community that cases of aircraft hijacking involving extortion or actual injury to passengers or crew represent an aggravated form of the offense which requires punishment as a common crime.

Thus, for example, the hijacking agreement between the United States and Cuba of February 15, 1973, provides that the receiving state may take into consideration extenuating or mitigating circumstances in which the fugitives "were being sought for strictly political reasons and were in real and imminent danger of death without a viable alternative for leaving the country, provided there was no financial extortion or physical injury to the members of the crew, passengers, or other persons in connection with the hijacking." (emphasis added)

In this case there is no suggestion that the fugitives were subject to any political persecution or needed the transportation to leave the country; they did threaten the lives of passengers and crew to extort $500,000 from the airline. This extortion contradicts any notion of idealism or of "political character" in this case.

It is recognized that extradition is the most effective deterrent to the crime of aircraft hijacking. Surrender of these fugitives for prosecution in the United States will contribute to such deterrence and thus protect lives and the interests of France as well as those of the United States. Refusal of extradition on the specious grounds that this crime is an offense of a political character would appear to condone hijacking and could contribute to repetition of such crimes to the danger of the entire international community.

On July 7, 1975, the United States Embassy at Paris delivered to the Acting Legal Adviser in the French Foreign Ministry a note with respect to the French refusal of extradition and the applicability of the U.S.-French extradition convention, as supplemented

(TS 561; TIAS 7075; 37 Stat. 1526; 22 UST 407). The substantive portion of the note follows:

The Embassy notes that the decision of the Chambre d'accusation regarding the question of extradition is final and that in accordance with the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970, a case has been opened against the accused at the Parquet de Paris on charges of the illegal seizure of an aircraft and restraint of hostages under threat. The Embassy trusts that these proceedings will result, in the event the accused are found guilty, in the application of the penalty which is proportionate to the seriousness of the crime and which will further the purposes of the Hague Convention to deter aircraft hijacking.

The interested officials of the United States Government have now had the opportunity to review the decision of the Chambre d'accusation on the request for extradition made by the United States, and this Embassy has been instructed to bring to the attention of the Foreign Ministry the serious concern of the United States Government over the rejection of its extradition request.

In the view of the United States Government the decision of the French Government in this case to deny extradition on the sole grounds of an alleged political motivation for the crime is inconsistent with France's obligations under the Treaty of Extradition between the United States of America and the Republic of France of January 6, 1909, as amended by the supplementary convention signed at Paris on February 12, 1970. It is clear from the language of the extradition treaties cited above, and from the decision of the Cour d'appel of Paris, that the United States Government made the showing necessary to establish France's treaty obligation to surrender these fugitives for prosecution in the United States unless the defense established by appropriate evidence that the "offense for which the individual's extradition is requested is of a political character" as stipulated in Article VI of the 1909 Convention as amended by Article IV of the 1970 supplementary convention. Although Article VI provides that the determination whether an offense is of a political character is to be made by the authorities of the requested state, it does not authorize the refusal of extradition in the discretion of the requested state. The authorities of the requested state are called upon to make a determination of law. They must interpret and apply the treaty in accordance with the pertinent legal doctrines.

Although the treaty does not prescribe a specific definition of an offense of a "political character," and international practice is somewhat varied, the considerable jurisprudence and numerous cases in this field clearly establish that mere political motive is not sufficient to characterize a serious common crime as a political offense. The legal memorandum provided by the United

States Government in this matter cited cases supporting this conclusion in the courts of France, the United States, Belgium, the United Kingdom, Germany, and Switzerland. In the opinion of the United States Government, this principle, which has been generally accepted in international extradition practice, represents the expectations of the contracting parties concerning Article VI of the treaty and is therefore binding upon the judicial authorities of both countries.

It is surprising that the opinion of the Cour d'appel made no reference to any of the arguments made or cases cited in the memorandum of law submitted by the United States Government nor to any other jurisprudence. Moreover, there is no indication that the Court gave adequate consideration to the serious nature of the offense of aircraft hijacking, to the universal condemnation of such offenses by the international community or to the measures of international cooperation that have been taken to stem the tide of such crimes. Moreover, it would appear that the Court based its conclusion, in large part, not on evidence but on a memorandum of defense counsel which the United States Government was allowed no opportunity to see, much less to refute.

A strong case can be made that serious crimes such as aircraft hijacking are so dangerous to human life and so inimical to international order that they should not be regarded as "political offenses" regardless of the circumstances. Even if it is assumed that there are special circumstances in which an act of hijacking may be considered to have a political character, it is an extreme position to argue that the mere plea of political motive is sufficient to establish the political nature of the offense. As an example of a more moderate position on the issue, and one which takes into account prior state practice and the seriousness of the crime of aircraft hijacking, may be cited the memorandum of understanding on hijacking of aircraft and vessels and other offenses between the United States and Cuba signed February 15, 1973. This memorandum provides that the receiving state may take into consideration mitigating circumstances solely where the fugitives "were being sought for strictly political reasons and were in real and imminent danger of death without a viable alternative for leaving the country, provided there was no financial extortion or physical injury to the members of the crew, passengers, or other persons in connection with the hijacking."

The effect of the decision by the Cour d'appel is to construe hijacking as a "political offense" in any case in which a political motive is alleged, even where large sums of money are extorted under the threat of murder of the passengers and crew. The effect of the decision in this case, if it were followed by other states, would be virtually to eliminate extradition as a remedy in hijacking cases, and by suppressing the most effective deterrent to aircraft hijacking, would encourage the commission of more such crimes in the future.

The Government of the United States of America, aware that the Government of France abhors hijacking no less than itself,

earnestly requests the Government of France to consider the serious implications of this precedent. The Embassy would welcome the views of the Foreign Ministry on the problem of the handling of possible future extradition requests involving hijacking cases to assure that the full intent of the provisions of the extradition treaty and supplemental convention is achieved. Dept. of State File L/M.

Provisional Arrest

In a note to the Department of State dated December 6, 1974, the Australian Embassy at Washington inquired as to the United States Government's attitude toward requests for provisional detention. The note referred to Article XII of a new extradition treaty between the United States and Australia signed at Washington on May 14, 1974 (Senate Executive F, 93d Congress, 2d Session). That Article provides that in case of urgency a contracting party may apply for the provisional arrest of the person sought, pending the presentation of the request for extradition through the diplomatic channel. It adds that the application should contain a description of the person sought, an indication of intention to request extradition, a statement of the existence of a warrant of arrest or judgment of conviction, and "such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person sought been convicted, in the territory of the requested state."

The Department's reply note, dated January 9, 1975, reads in relevant part as follows:

The information requisite to justify a provisional arrest of a fugitive would be the name of the fugitive, the offense with which the fugitive is charged, including the date and place the warrant for arrest was issued, the circumstances of the crime as fully as possible, including the date and place the crime was allegedly committed, a description and identification of the accused, including date and place of birth, and the accused's whereabouts, if known. Regarding the requirement that the fugitive must be formally charged, the only prerequisite is that a warrant for the fugitive's arrest be issued by competent authority.

The policy of the United States Government with regard to requests for provisional arrest is to accommodate the requesting state in the best possible way. As request starts the extradition process, with the goal of effecting the fugitive's return to the requesting state, the policy is to take that action which will best effectuate the goal. The judiciary branch of the United States Government will usually not leave a fugitive incarcerated very

long without having received the extradition documentation. Thus, to ensure against the possibility of the fugitive fleeing after having been released on bail, the policy is to arrest the fugitive only when the documentation has been received or when there is an urgent provisional arrest request, including information that the fugitive is likely to flee. In addition, the relatively short time period allowed by the treaty for providing the court with the documentation militates against making provisional arrest unless the documentation is prepared or unless there is urgency to do so.

Dept. of State File Nos. P74 0135-0136 and P75 0009-0023.

Issuance of Warrant

On March 7, 1975, Acting Secretary of State Robert S. Ingersoll signed a warrant for the extradition to Japan of a Japanese citizen, who had been a resident alien in Hawaii, charged by the Japanese Government with murder in a fatal stabbing in Japan. This was the first case since World War II in which the Japanese Government had requested extradition under the U.S.-Japanese extradition treaty of 1886 (Treaty Series 191; 24 Stat. 1015; 9 Bevans 383; entered into force November 26, 1886).

Issuance of the warrant was recommended by Monroe Leigh, Legal Adviser of the Department of State, in a memorandum of March 7, 1975, to the Acting Secretary, which reported that the accused had been arrested pursuant to a provisional arrest request of the Japanese Government and had been found extraditable in a hearing on January 13, 1975, before a U.S. District Court Judge. A habeas corpus petition filed by the accused on January 30 had been dismissed on February 12. The memorandum stated that according to Japanese documents submitted at the hearing, the accused had made a possibly threatening remark prior to the killing and had afterwards confessed the killing to a friend in Hawaii. After reviewing the file, the Office of the Legal Adviser had concluded that the offense was covered by the extradition treaty, that the identity of the individual in Hawaii was established by the evidence as being the accused, that the Japanese Government had submitted the documentation required by the treaty, that the evidence established probable cause to believe the accused had killed the deceased, that there was no bar by limitation under U.S. law, and that, based on those conclusions, there was a treaty obligation to extradite the accused to Japan.

Dept. of State File No. P75 0112-1663.

In response to requests from the Government of Canada, Acting Secretary of State Robert S. Ingersoll signed warrants on May 20,

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