Military Offenses as a Bar to Extradition

Legal basis

Under Article 4 of the European Convention on Extradition (Europäisches Auslieferungsübereinkommen, EuAlÜbk) and under domestic law, military offenses are an optional ground for refusing extradition. The Convention provides that extradition for military offenses that are not offenses under ordinary criminal law may be excluded from the obligation to extradite.

Definition

Military offenses within the meaning of extradition law are offenses that concern the military sphere exclusively — for example desertion, refusal to obey orders, mutiny, or abandonment of post — and that have no civilian counterpart in ordinary criminal law. The key issue is the distinction: if a soldier commits an act that a civilian could likewise commit as an ordinary offense (theft, assault, murder), it is not a purely military offense and the extradition privilege does not apply.

Problems of classification

In practice, problems of classification arise where an offense has both military and ordinary features — for example violence against prisoners of war. Here it depends on the focus of the act and its context. The German courts examine on a case-by-case basis whether the military character predominates.

Relationship to political offenses

Military offenses and political offenses frequently overlap, particularly in the case of deserters or persons who have evaded military service for reasons of conscience or for political reasons. In such constellations, the bar to extradition for political offenses (Article 3 EuAlÜbk) may additionally apply.

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