Van Zyl Smit, Dirk, UNESCO Courier
Inmates whose status is a subject of controversy
Few concepts in penology are as contentious as that of the "political prisoner", the implication of which is that such prisoners form a discrete group of detainees who, because of the nature of the conduct for which they have been incarcerated, should be treated differently.
The first point of contention is usually as to whether the existence of a discrete category of political prisoners should be recognized. The qualification "political" indicates that the prisoners concerned have committed acts which directly challenge the authority and legitimacy of the government that is detaining them. Recognizing that they are "political prisoners" therefore entails recognition by a government that it is facing a challenge going beyond that posed by "ordinary criminals", whose infringement of the laws of the land is not aimed specifically at the government itself. The result is that governments are often very reluctant to admit that they are holding "political prisoners" in their gaols.
In democratic societies, it is unacceptable for a government to maintain power by imprisoning those who do not support it. Where large numbers of a government's opponents are imprisoned without trial under emergency legislation or following the declaration of martial law, it is difficult for that government to deny outright that it is holding people in its gaols for political reasons. Governments that act in this way usually claim that such measures are temporary and intended to prevent disorder. In these circumstances, public campaigns demanding that such detainees be either charged or released may be very effective, since the government has already conceded the principle that its conduct is undemocratic.
Terrorists or freedom fighters?
The position is more complicated if opponents of a government are imprisoned after having been charged and convicted under the criminal law. Such a course is attractive to governments, since it enables them to deny that the persons concerned are political prisoners, and to claim that they are being held because they infringed the criminal law and not because they opposed the government of the day. In this way, the government can attempt to capitalize on the legitimacy which the criminal law as a whole possesses in most societies.
Opponents of a government imprisoned after being convicted by the criminal courts can and do object to their incarceration on a number of grounds. Most simply and directly, they can claim that they were not guilty of the offences with which they were charged, but that their convictions were the result of biased or unfair procedures. Second, they can challenge the offences as defined in the criminal law by arguing that they were not "ordinary crimes" but conduct which had been criminalized by the government in order to muzzle its opponents. Third, they can reject their convictions directly by arguing that the conduct which the government attempts to criminalize, treason for example, is justified because of the essential illegitimacy of the government itself.
Debates about what constitute political offences and who should be regarded as political prisoners may transcend national borders. When one state seeks the extradition of an alleged offender from another state in order to bring him or her to trial, international law allows the request to be denied if the extradition is being sought to try that person for an offence of a political character. This exception to general extradition agreements is controversial. States or their courts differ about whether a particular offence is political in character. States may also agree among themselves that certain forms of conduct are so reprehensible that their perpetrators should be subject to extradition, irrespective of the fact that they were conducted with a political motive. International conventions which allow the extradition of persons suspected of aircraft hijacking or terrorism are examples of an emerging international consensus to limit the political offence exception, but the difficulty remains that a person who is regarded as a terrorist by some may be regarded as a freedom fighter by others. …