Suçluların geri verilmesi ve siyasi suç istisnasının uluslararası terorizmle mücadeledeki rolü
The Role of extradition and the political offence exception in combatting with the internatıonal terrorism
- Tez No: 126369
- Danışmanlar: DOÇ.DR. SERTAÇ H. BAŞEREN
- Tez Türü: Yüksek Lisans
- Konular: Uluslararası İlişkiler, International Relations
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2003
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Uluslararası İlişkiler Ana Bilim Dalı
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 195
Özet
Özet yok.
Özet (Çeviri)
174 SUMMARY The escape of the offenders in a country due to rapid increase of transportation means in our age has caused the states to coorporate on extradition of those criminals for their own interest to prevent the criminals being unpunished. The subject matter of the political offence exception to extradition can without any doubt be characterized as one of the most crucial issues in extradition law. The law of extardition evolves through bilateral and multilateral conventions, internal extaradition laws and customary international law. Most states refuse to extradite political offenders. This principle is usually codified in the form of the“political offence exception”, a standart clause in extradition laws and treaties which provides that extradition shall not be granted for political crimes. This general acceptance, however, is limited to recognition of the principle: whereas states agree not to extradite political offenders, there are no commen standarts as to the political application of the rule. This is due to fact that extradition laws and treaties almost never define the term“political offence”in abstracto and consequently, the interpretaion of the term in concreto is left to judical and175 administrative who have to decide, in each particular case, whether or not the facts for which extradition is requested, constitute political crimes. While there is no universally recognised definition of the term“political offence”, there are, however, a number of“negative definitions”, in that it has been providede that certain offences are not considered as political crimes for the purposes of the extradition. Such negative definitions have been formulated; for attempts on the lives of heads of state, war crimes, crime of agression, genocide, acts of terrorism, etc. As such, the scope of the political offence exception has been considerably restricted. Extradition is an institution of international public law which renders possible an international administration of justice. The judical control on decisions with respect to extradition has, in this context, a purely domestic chracter and as such is not regulated by international law. In most countries, judical control takes the form of an advisory opinion which has to be requested of the court by the government before extradition can be granted. In some states the government is not bound by this advisory opinion and extradition can be granted notwithstanding a negative advice of the court. In our opinion, the judical decision shoul bind the government insofar as it is negative, in other words, it should become a judical veto instead of a simple advisory opinion. International law does not prohibit extradition of political offenders, and the political offence exception does not have the character of an176 internationality binding legal rule. It is only a treaty reservation with respect to a treaty obligation to extradite. While there are many theoretical problems with respect to the application of the political offence exception to acts of terrorism, the issue is essentially political rather than legal. The fundamental problem is that there is no international agrrement as to whether, and to what affirmative extent, political asylum should be restricted with respect to acts of terrorism. In fact, there is not even agreement among states as to the necessity to suppress terrorism at all. The teaties which have been drafted so far in the framework of the United Nations do not deal with terrorism in general but have confined themselves to a number of specific terrorist offences: hijacking, unlawful acts against the safety of international aviation, unlawful acts against internationally protected persons and the taking of hostages. None of those treaties, however, contains a provision declaring that the political offence exception will be excluded for the crimes in guestion. In fact, they avoid the problem by subjecting extradition to the domestic law of each contracting party, thus leaving the application of the exception to their own discretion. The theoritical approach to the applicability of the political offence exception to acts of terrorism is to be sought in the case law and the legal writings of the limited“club”of western nations. Due to the impossibility of finding a satisfactory definition for the term“terrorism”, the characteristic act of terrorism is not in itself a criterion to determine whether or not acts of177 terrorism qualify for the application of the political offence exception. Doctrinal proposals to except certain acts from political asylum because of their“terrorist character”were not succesful because the term terrorist in itself was deemed too vaque. In court cases there are some criterions: One of them is“innocence of the victim”. The distinction between“guilty”and“innocent”victims may, in practice, be difficult to make, especially when applied to marginal cases. In addition, it is not always a neutral distinction. A possible theoritical solution in determining the applicabilty of the political offence exception to terrorist offences could be found in BassiounTs theory on“ideological self preservation”. The right of self-defence is predicated on the idea that a crime can be justified if it can be proved that this crime was the only possible means for the perpetrator to protect himself against another very serious crime. Transporting this element into extradition law:“If the fundamental human rights are seriously violated by an instituional entity or a person or persons wielding the authority of the state and acting on its behalf without lawful menas of redree or remedy being made available, then the responsibility of the individual, whose conduct was necessitated by the original transgression of his need to redress a continuing wrong, is justified or mitigated and, therefore, warrants a denial of extradition”. In our oppinion; the best criterion is“unqualified attentant clause”. This clause is an extended version of the“attentant clause”. It excludes all crimes against life from the political offence exception, and not only those directed against heads of state.
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