decided without trial at least with regard to the political offense question. Abu Eain was charged with placing a bomb which killed two children,147 Mackin was charged with shooting a British policeman,148 and McMullen was charged with the bombing of an army barracks in which a charwoman was killed. 149 Under the proposed violent crimes exclusion, none of these three defendants could have claimed the protection of the political offense exception, and indeed, no hearings would have been necessary to determine the inapplicability of the defense.

The problem with this exclusion of all violent offenses is that it sweeps too broadly and denies the protection of the political offense exception to some offenders the United States might wish, and indeed ought, to protect. The evolution of the political offense exception reveals a clear intent to apply the doctrine to at least some persons sought for violent acts committed in the course of rebellion or revolution. 150 Although the value-free application of the protection to heinous acts committed in the name of a political cause carries the concept too far, 151 it is nonetheless possible to shape an approach which excludes random terror, but which will not require the extradition of legitimate rebels against a tyrannical government. It is conceivable, for example, that one of the detained leaders of Poland's Solidarity movement might have escaped to the West using a firearm in the course of evading his captors. The United States would not wish to return a fugitive for trial under these circumstances. A carefully drafted requisition pursuant to the United States-Poland Treaty of Extradition, 152 however, coupled with the proposed "firearm exclusion," legally could compel rendition.

A better resolution of the definitional problem is to focus upon the nature of the violent activity charged, rather than upon the fact that violence of a specified type was involved. To effect this alternative focus, the definition could incorporate the existing legal notion that acts aimed against civilians, rather than at installations of gov

147. Abu Eain v. Wilkes, 64: F.2d 504, 507 (7th Cir. 1981), afg. In re Abu Eain, Magis. No. 79 M 175 (N.D. III., opinion filed Dec. 18, 1979), cert. denied, 454 U.S. 894 (1981).

148. United States v. Mackin, 668 F 2d 122, 124 (2d Cir.), aff'g, In re Mackin, No. 80 Cr. Misc. I (S.D.N.Y., opinion filed August 13, 1981).

149. In re McMullen, No. 3-78-1899 M.G. (N.D. Cal., memorandum decision filed May 11, 1979), reprinted in Hearings on S.1639, supra note 18, at 294.

150. See Lubet and Czaczkes, supra note 4, at 194.

151. Sce, c.g., In re McMullen, supra note 149; and Artukovic v. Boyle, supra notes 102-06 and accompanying text.

152. Treaty of Extradition, Apr. 5, 1935, United States-Poland, 46 Stat. 2282, T.S. No.

ernment, are not political offenses. 153 An additional subsection might be drafted to exclude from the definition of a political offense: ( ) an offense involving an attack against the life, physical integrity or liberty of any civilian or non-combatant; or an offense, comprising an act or acts of violence or a conspiracy or attempt to perform an act or acts of violence, which is intended to, or has the principal effect of, creating fear, terror, or disruption among the civilian populace, or which has the principal effect of disrupting the social order.

Such a provision would exclude terrorist activities such as the bombing of public places, kidnapping, and other acts of social disruption that are directed solely at the civilian populace. The decision-maker, however, would retain the ability to extend the protection of the exception to legitimate rebels or actual contenders in a struggle for national power.

One commentator noted that the specific exclusion of crimes against civilians from the ambit of the political offense exception may have the undesirable effect of sanctioning political murder "merely because the victim wears a uniform."154 Sanity and decency preclude the adoption of a law that declares "open season on soldiers" and police. 155 There remains a distinction, however, between murder and rebellion when the victim is an armed officer of the state. 156

No United States law defines the difference between crime and revolution, and the recent extradition cases offer little assistance in resolving the problem. The international law of war, however, seeks to distinguish precisely between privileged acts of combat and punishable atrocitics or war crimes. Protocol I to the 1949 Geneva Conventions contains the list of "grave breaches" of the humanitarian rules of war for which individual soldiers may be subjected to trial or extradition. 157

The International Law Association's Committee on International Terrorism suggested that, although the law of armed conflict does not apply to those acts commonly considered to comprise inter

153. See Abu Eain v. Wilkes, 641 F.2d 504, 520-523 (7th Cir. 1981), In re Meunier, [1894] 2 Q.B. 415. Cf. In re Ezeta, 62 F. 972 (N.D. Cal. 1894). (San Salvador requested that its former President, Antonio Ezeta, and four of his military officers be extradited from the United States to stand trial for crimes Ezeta and his officers committed while attempting to maintain their government against the revolutionary forces that eventually overthrew them. The trial court held that all but one of the alleged crimes were political because they occurred during a period of armed rebellion. The one crime ruled not political involved the attempted murder of a civilian.)

154. Hearings on S.1639, supra note 18, at 55 (testimony of W. Hannay, attorney at law).

155. Id.

156. See, e.g., In re Ezeta, supra note 153.

157. Geneva Convention of 12 August 1949 Relative to the Protection of Civilian Persons in Time of War. 6 U.S.T. 3516, No. 3365, 75 U.N.T.S. 287.

national terrorism, the jurisprudence of war could be extended by analogy to develop the humanitarian law of international violence. Since the parties to the Geneva conventions voluntarily bound their armed forces to a code of conduct, there is no reason to insulate insurrectionists or other groups from the punishment to which soldiers may be subjected. 158 The committee's Fourth Interim Report reasoned: "[T]here is no reason in theory or practice why states should be willing to concede to politically motivated foreigners a license to commit atrocities while saddling their own organized armed forces with the restraints contained in the 1949 Geneva conventions against committing the same atrocities."159

Thus, the committee concluded that the humanitarian law requiring states to cooperate in the suppression of war crimes should apply with equal force to similar acts committed by persons not entitled to the soldiers' privilege. 169 The committee proposed that no person should be permitted to escape trial or extradition on the ground of political motivation, if the same acts, performed by a soldier engaged in an international armed conflict, would subject the soldier to trial or extradition. 161

The committee's formulation, if adopted, would draw a clear line between acts of actual insurrection and random assaults of politically disaffected individuals. This approach, however, would be useful only as the definition of a lower limit for the protection of political violence. Standing alone, it would appear to invest every terrorist with the privileges normally reserved for organized combatants. Since it is necessary as a matter of law, philosophy, and social order to hold self-styled revolutionaries to a standard higher than that allowed to soldiers, it is essential that the "rules of war" test be employed only in conjunction with defined statutory exclusions from the political offense exception.

In summary, the definitional approach to the political offense exception contained in the proposed reform bills is admirable both in its departure from the Castioni test and its attempt to exclude terrorists from political sanctuary. The exclusion of virtually all violent acts from the protection of the political offense exception, however, is too restrictive and threatens to require the extradition of legitimate dissidents. The definition would be strengthened if it were to eliminate the blanket exclusion of all violent acts, and focus instead on

158. Committee on International Terrorism, 4th Interim Report, 1981, INT'L L.A. 1011.

159. Id. at 11.

160. Id. at 11-12.

161. Id. at 12.

crimes against civilians and those that, by analogy, violate the law of

war.

B.

PROCEDURE AND BURDEN OF PROOF

The rules that govern the manner in which the political offense exception is to be raised and determined are of the utmost importance. Must the defendant assert and prove, by whatever standard, that his offense was political, or must the requesting country prove that it was not? Although the answer to this question may often be outcome determinative, the United States cases have not provided a consistent approach to the problem. 162 Similarly, and inexplicably, the original extradition reform bills also ignored the burden of proof issue. 163 Through the process of public hearing and committee deliberation, however, two distinct proposals have emerged to govern the procedure for asserting the political offense exception.

House of Representatives Bill 6046 contains a bifurcated hearing procedure under which the presiding judge would not hear evidence on the political offense question unless and until the court determined that the defendant was otherwise extraditable. 164 This is a reasonable measure aimed at conserving judicial resources. surely would serve no purpose to conduct a lengthy and complicated hearing on the political offense exception, only to determine later that there was insufficient evidence linking the defendant to the crime, 165 or that the applicable statute of limitations had already passed. 166 This approach is also contained in Senate Bill 1940 proposed by the Committee on Foreign Relations. 167

Once the political offense issue is ripe for adjudication, there is agreement among the proposals that the defendant must bear the burden of proof. 168 Although the legislation does not divide this concept into its "production" and "persuasion" aspects, 169 it is clear that the intent of the drafters is to require the defendant both to raise the defense through the production of evidence and ultimately to persuade the trier of fact of its applicability.'

162. Sce supra notes 112-28 and accompanying text.

170

163. See S. 1639, 97th Cong., 1st Sess. (1981); and H.R. 5227, 97th Cong., 1st Sess. (1981).

164. H.R. 6046, 97th Cong., 2d Sess., §3194(e)(1)(B) (1982).

165. See, c.g., id. at § 3194(d)(1)(A-C); and supra notes 62-68 and accompanying text.

166. See, c.g., H.R. 6046, supra note 164, at § 3194(d)(2)(A).

167. See S. REP. No. 475, 97th Cong., 2d Sess. 20, § 3194(1)(2) (1982).

168. Id. at 19, § 3194(e); and H.R. 6046, supra note 164, at § 3194(d)(2)(c). 169. See supra note 112 and accompanying text.

170. See S. REP. No. 475, supra note 167, at 9: "Shifting the burden of the proof to the person seeking application of the political offense exception reinforces the Senate Foreign Relations Committee's belief that its legitimate application should be infrequent and also in accords [sic] with the guidelines established in section 3194(e)(1) and (2),”

The placement of the full burden of proof on the person seeking the benefit of the political offense exception will add both regularity and predictability to the extradition process. This approach will resolve the conflict between the Diaz and Abu Eain cases,171 and will eliminate the possibility that some court will refuse to extradite an admitted terrorist solely on the basis of evidence which "tended to show" that the charged offense was political. 172

As a matter of judicial policy, the political offense exception. should be viewed in the same manner as an affirmative defense. The party pleading the exception has put forward an affirmative claim. that seeks to avoid the consequence of an otherwise valid extradition request. Since this matter is new to the proceeding, affirmative in nature, and comes from beyond the four corners of the requisition for extradition, it is a reasonable judicial conclusion that the party that raises the claim must also be the one to establish it.173

Practical considerations also mandate placing the burden on the party pleading the exception. Political motivation is a necessary, though not sufficient, condition for the invocation of the political offense exception. Consequently, the applicability of the exception will rest at least in part upon an evaluation of the goals, affiliations,

which provides that for crimes involving the use of firearms, explosives or violent behavior, a person resisting extradition must satisfy a higher standard by demonstrating extraordinary circumstances. H.R. 6046, supra notes 164, 168, also contemplates that the defendant must raise and establish that the offense charged is of a political character. See H.R. REP. No. 627, 97th Cong., 2d Sess. 19 (1982):

This approach also recognized that proof of whether particular conduct is a political offense generally involves introduction of some evidence that is usually within the unique knowledge of the person being sought. For example, the political connection that the conduct had with internal strife within the requesting state may be best known to the person being sought.

171. See supra notes 120-26 and accompanying text (Ramos v. Diaz used a "tended to show" standard, while Abu Eain v. Wilkes placed the full burden of persuasion on the defendant.).

172. Id.

173. In Patterson v. New York, 432 U.S. 197, 201-11 (1977), the Supreme Court recog nized that the burden of establishing an affirmative defense may involve questions of policy rather than questions of fundamental fairness and constitutional rights. See generally MCCORMICk's Handbook oN THE LAW OF Evidence § 337 (2d ed. 1972). The Patterson court held that, because, in a prosecution for second degree murder, the affirmative defense of extreme emotional disturbance does not serve to negate any facts of the crime charged, but rather constitutes a collateral issue involving facts beyond the elements of the crime, a state may require the defendant to carry the burden of persuasion on that issue. 432 U.S. at 201-16. See also Leland v. Oregon, 343 U.S. 790 (1952); and United States v. Braver, 450 F.2d 799, 801-02 (2d Cir. 1971) (allocation of the burden of proof on the issue of inducement when a defendant asserts the defense of entrapment to a criminal charge). The British courts require the defendant to establish the political character of the crime. See, e.g., Schtraks v. Government of Israel, [1961] 3 A11 E.R. 529,