dissenting from failure to take en banc,
with whom Circuit Judges PREGERSON, NOONAN, and O’SCANNLAIN join:I join in Judge NOONAN’s dissent from the court’s failure to take this case en bane because I am in general agreement with it. However, I write separately in order to point out several additional errors in the panel’s opinion that are equally or more serious. Judge Noonan explains convincingly why the panel is mistaken when it concludes that the district court erred in its imposition of rebut-table presumptions because they “improperly shifted the burden of proof from Smyth to the government in contravention of the treaty provision.” I see a further fundamental error, which is at least as serious, in the panel’s analysis of those presumptions. The panel is just plain wrong, and inexplicably so, when it asserts that the presumptions “do not directly address that prong of Article 3(a) requiring the person sought for extradition to establish that the retaliation or detention would be on account of ‘race, religion, nationality or political opinions.’ ” Matter of the Requested Extradition of Smyth, 61 F.3d 711, 717 (9th Cir.1995). The language of the first presumption imposed by the district court belies this statement. That presumption reads as follows:
Catholic Irish nationals accused or found guilty of offenses against members of the security forces or prison officials are subjected systematically to retaliatory harm, physical intimidation and death in Northern Ireland.
Matter of Requested Extradition of Smyth, 863 F.Supp. 1137, 1151-52 (N.D.Cal.1994) (emphasis added).
I suppose that the district court might, conceivably, have been a bit clearer when it drafted the presumptions, as most of us could be whenever we write opinions or author other judicial or legal writings. The presumption might have read, “Catholic Irish nationals accused or found guilty of offenses against members of the security forces or prison officials are, on account of their religion and/or nationality and their political opinions, systematically subjected to retaliatory harm, physical intimidation and death in Northern Ireland.” Even without these unnecessary words however, the meaning of the presumption is absolutely clear— Catholic Irish nationals who are believed to have committed acts of violence against certain persons they consider oppressors are systematically subjected to retaliatory harm, physical intimidation and death because of their nationality, their religion, and the political nature of the acts they are believed to have committed. To put it differently, the obvious and unambiguous meaning of the presumption is that a subset of Catholic Irish nationals, those believed to have committed politically motivated crimes, are systematically retaliated against in a harsh and unlawful manner — in the words of Article 3(a) of the Treaty, “on account of [their] race, religion, nationality or political opinions.” 1
*1439For the panel to read the presumption any other way amounts to a flagrant disregard .of its clear meaning as well as an unwarranted insistence on pedantry. . Clearly the panel’s opinion imposes an unreasonable standard on district judges, one that not surprisingly is not reflected in the panel’s own product. Following the panel’s approach, the statement “under Hitler, Jews in Germany were systematically subjected to enslavement and execution,” would not mean that Jews were persecuted on account of their religion.2 The inclusion of the word “Jews” would be a mere extraneous detail, unless the writer added, superfluously, that Jews were persecuted on account of their religion. Similarly, if the district court had imposed the rebuttable presumption that “before the Civil War, African-Americans were systematically sold into slavery and subjected to barbaric treatment,” the panel would not find that presumption to mean that the horrific treatment was on account of race.
I also disagree strongly with the panel’s contention that the district court erred by “relying extensively upon evidence of the general discriminatory effects of the Diplock system upon Catholics and suspected republican sympathizers [because t]hat evidence does not relate to the treatment Smyth is likely to receive as a consequence of extradition.” Id. at 720. Beginning with a comparatively minor point, it is unclear why the panel seems to have assumed that the district court was relying principally upon evidence regarding the implementation of the Diplock system.3 When it discussed the evidence upon which it was relying, the district court barely mentioned Diplock, and then only in the most casual terms. Instead, the district court relied on a wide range of evidence, including the past treatment of Smyth himself, the treatment of Catholic Irish nationals in the Maze, the prison from which Smyth fled and to which he will most likely be returned,4 and the treatment generally of Irish Catholic nationals who are believed to be republican sympathizers, generally. Smyth, 863 F.Supp. at 1148 and 1153. I will assume therefore that the panel is really criticizing the district court’s reliance on the evidence on which it actually relied, and particularly the evidence of general discriminatory harsh, and extra-legal treatment of Irish Catholic nationals believed to be republican sympathizers — some but not all of whom committed, or were believed to have committed, offenses similar to the one committed by Smyth.
On a more substantive point, the panel mistakenly implies that because the district court relied on more general evidence, it failed to make, or rely on, sufficient findings specific to Smyth. In fact, the district court made a number of findings relating specifically to Smyth, which findings directly support its conclusion that Smyth had succeeded in establishing a defense under Article 3(a) of the Treaty. For example, the district court found:
Smyth was frequently arrested and beaten during interrogations by the security forces for several years before being arrested for the attempted murder of Mr. Carlisle. Despite numerous arrests, numerous interrogations accompanied by beatings, numerous searches of his home, and being interned a full year, Smyth was *1440never charged with a crime until he was charged with the attempted murder of Mr. Carlisle. The frequent law enforcement contact with Mr. Smyth — not leading to the filing of charges — leads to the conclusion that Mr. Smyth was targeted for attention not because he had committed crimes, but because he was a known member of Sinn Fein and a republican. The evidence amply supports the conclusion that ... Smyth was punished, detained and restricted in his personal liberties on the basis of his political opinions.
Id. at 1153. The district court also cited an implicit death threat by a prison official against Smyth while he was in the Maze, and the beatings inflicted, in the Maze, upon other republican prisoners, who like Smyth had escaped from the Maze, upon their recapture and return to the prison. Id. at 1146, 1153.
My objection to the panel’s methodology goes far beyond its total disregard of the district court’s fact-finding and its wholesale rejection of Judge Caulfield’s thorough, carefully written and analytieally-correet opinion. By refusing to recognize the importance of the evidence about the general treatment of Catholics or republican sympathizers, including those who are suspected or convicted of crimes intended to impede or undermine the British forces or its policies, the panel’s decision threatens the ability of any defendant, no matter how deserving, to mount an Article 3(a) defense. The panel said that such evidence “does not relate to the treatment [a particular person resisting extradition] is likely to receive ...” Smyth, 61 F.3d at 720. That is simply incorrect.
Defenses under Article 3(a) are predicated on a showing that defendants will be punished or will receive additional or extra-legal punishment on account of their affiliation with a particular religion, their membership in a certain race, or their adherence to a particular political opinion. Evidence about how other members of that race or religion or others holding that same political opinion (some of whom have been accused of crimes of violence against the British or their allies and some of whom have not) are treated is highly probative with respect to how a specific member of that race or religion or a specific individual holding that political opinion will be treated if he is extradited and imprisoned for a politically-motivated violent offense. But according to the panel’s reasoning, at least as I understand it, if Smyth had showed by irrefutable evidence that 90% of all Catholic Irish nationals were tortured, it would be of no relevance to his defense.5 To me that makes no sense at all. Moreover, the relevance is even clearer when we are examining the question of retaliation against a subset of the group — the subset that the retaliators are most likely to take action against — those who commit or are suspected of having committed politically-motivated violent offenses. Certainly, an individual fighting extradition need not rely solely, or in some cases at all, on evidence of his own past persecution. Here, the claim is that British forces retaliate against and punish extrajudi-cially the entire subset of which Smyth is a member. Evidence to that effect specifically, as well as evidence of discriminatory treatment of Catholic Irish nationals generally, is indeed highly probative in the case before us.
Would the panel really require that a district court ignore all evidence of intentional systematic discrimination against African-Americans in an equal protection ease and force an African-American plaintiff to rely solely on evidence that he himself had been discriminated against on account of his race? Under the panel’s rationale, many defendants who have more than sufficient reason to fear retaliation would be unable to mount a successful Article 3(a) defense without specific evidence that the security forces had come to *1441them in advance and announced, “We intend to torture you because you are a Catholic or a republican or both.” In fact, the panel’s reasoning would render the Article 3(a) defense a virtual nullity in most cases in which it is intended to be applicable under the Treaty.
The panel’s interpretation of the Treaty is also inconsistent with the interpretation given the analogous United States law governing asylum and withholding of deportation, which provides that “[t]he Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 429 n. 9,107 S.Ct. 1207, 1212 n. 9, 94 L.Ed.2d 434 (1987) (quoting 8 U.S.C. § 1253(h)(1)). Although the language of Article 3(a) is remarkably similar to that in 8 U.S.C. § 1253(h)(1),6 the panel’s interpretation of the language of the Treaty is radically different from the interpretation of the asylum and deportation provisions set forth in the gov-. erning regulations. A person applying for asylum or withholding of deportation can sustain his burden of showing that he will be persecuted by demonstrating membership in a protected group and a “pattern or practice ... of persecution of groups of persons similarly situated to the applicant on account of race, religion, nationality, ... or political opinion.” 8 C.F.R. § 208.13(b)(2)(i)(A) & (B). If the applicant makes such a showing, he need not “provide evidence that he would be singled out individually for persecution.” 8 C.F.R. § 208.13(b)(2)(i). We have stated forcefully that “the INS’s views as expressed in th[ese] regulation^] are patently correct.” Kotasz v. INS, 31 F.3d 847, 853 (9th Cir.1994). Under the panel’s view, however, similar evidence would appear to be inadmissible on the ground that “it does not relate to the treatment [the person being extradited] is likely to receive.” Smyth, 61 F.3d at 720.
In some cases, persecution of an entire group is so pervasive that proof of membership in that group is sufficient in and of itself to demonstrate a wéll-founded fear of future persecution. For example, regardless of what the panel might think, a Jew in Nazi Germany would not have needed to show any evidence of “individual targeting” in order to show a likelihood of persecution. See Kotasz, 31 F.3d at 852. In other cases, membership in a broad group is insufficient, standing alone, to meet the burden, even if a large number of members of that group have been persecuted. Id. We have stated that “despite widespread political violence that existed in El Salvador ... neither all Salvadorans nor all rebel sympathizers were systematically persecuted on account of race, religion, nationality, membership in a particular social group or political opinion.” Id. We have added, however, that the fact of widespread political violence plays a-significant role in our determinations in wore-pattern or practice eases.7 See Id.; Zavala-Bonilla v. INS, 730 F.2d 562, 564 (9th Cir.1984); Cf. Bola-nos-Hernandez, 767 F.2d. 1277, 1283 n. 11 (9th Cir.1984).
The principles that govern .the analogous portions of asylum and deportation law should be applicable in extradition proceedings. I see no justification for a different approach to determining when an individual who belongs to a. “suspect” group is in danger of being subjected to unlawful treatment on account of his affiliations or beliefs. In the case before us, the group identified as subject to systematic persecution is not as broad as the Jews in Germany; it is not all Irish Catholic nationals. Rather, it is a subset of that group: it is all Irish Catholic nationals believed to have committed certain *1442crimes that are politically motivated. Because Smyth is a member of that subset, evidence of how his fellow members are systematically treated would be, as in a deportation case, highly relevant to how Smyth will be treated. While evidence of widespread retaliation against Catholic Irish republicans generally would not necessarily be sufficient, one would think that the panel would at least have recognized that such evidence is most probative as to any individual in Smyth’s circumstances. See, e.g., Zavala-Bonilla, 730 F.2d at 564.
It should be remembered at this point that although the panel was wrong to disregard the evidence regarding retaliatory treatment of Catholic Irish nationals generally, Smyth was entitled to prevail without that evidence, as well as without the more specific evidence he submitted regarding retaliatory actions taken against others at the Maze prison, and even without the evidence that he, himself, had previously been beaten and physically abused. The presumptions that the district court imposed, when a) unrebutted and b) given their proper force and effect are in themselves sufficient under the Treaty to require a court to deny an extradition request.8 Although the presumptions were, under the district court’s order, rebuttable, the British government (through the United States) provided no evidence designed to serve that purpose.
I set forth the two presumptions below.9 They establish that members of the security forces directly participate in or condone actions that collectively constitute systematic retaliation against Catholic Irish nationals accused or found guilty of the types of offenses of which Smyth was convicted, and that the retaliatory treatment occurs in the form of physical intimidation and death. As in the case of asylum and withholding of deportation, such a finding, or in this case such an unrebutted presumption, should serve in itself to compel denial of an extradition request and preclude public officials from sending an individual back to his native land to face torture or execution. See supra, notes 3-5 and accompanying text. Had the panel not erroneously concluded that the presumptions resulted in improper burden-shifting, and that they failed to address the issues of religion, nationality, or political opinions, it would have been compelled for this reason alone, to uphold the district court’s denial of the request for certification of the writ of extradition.
Finally, the panel errs by drawing a rigid and artificial dichotomy between being punished on account of political or religious beliefs and being punished on account of the crime committed.
Smyth would have to demonstrate by a preponderance of the evidence that the criminal justice system in Northern Ireland likely would exact additional retribution for his crime beyond the remaining term of imprisonment, and that such additional punishment would be inflicted on account of Smyth’s political or religious beliefs, and not on account of his having attempted to murder a prison guard. This is a difficult burden and one which Smyth did not shoulder successfully.
Smyth, 61 F.3d at 720. The panel’s statement suggests that retribution or extra-legal punishment, including beatings and torture, is inflicted solely because of a defendant’s political or religious beliefs or solely because of a crime the defendant is charged with, and that we can readily separate the two elements. I strongly disagree.
The reality is that in certain types of cases we simply cannot separate the crime from its political elements or separate the political opinions of the person who commits the crime from the crime itself; nor, often, can *1443we separate the identity of the victim, from the particular crime or from the political opinion that led to it. If a republican sympathizer shoots a security guard in retaliation for the death of another republican sympathizer, there is a political element to the crime which is lacking when a robber shoots a security guard in the course of committing an ordinary bank robbery. A crime of violence committed against a British soldier, operative, or agent is more likely to be politically motivated than is a similar crime against an ordinary Irish citizen. If two defendants receive life sentences for murder, and the republican sympathizer who killed a British soldier is beaten regularly by the prison guards, while the other prisoner who killed his adulterous wife is not, the first convict is almost certainly the victim of unlawful retaliation on account of his political opinions. However, it is equally true that he is being retaliated against on account of the crime he committed. The first defendant’s political opinion is inextricably intertwined with his crime, and his crime is an expression or implementation, however improper, of his political opinion. Thus, when a Catholic Irish national Mils or wounds a member of the British security forces or explodes a bomb in a restaurant or railroad station and kills several dozen innocent people, it is ordinarily the nature of the crime, the political nature, that precipitates the violent retribution or the additional punishment.
To offer another example, it may be a crime to deface or destroy public property. Thus, toppling statues in public parks is forbidden. But toppling a memorial statue to British soldiers slain in Belfast may have a different meaning from toppling a statue of a Seamus Heaney. Similarly, toppling statues as part' of a Sinn Fein campaign to destroy public property and create public turmoil is not the same generally as a drunken vandal’s destruction of a statue for “fun.” In the politically-motivated cases of statue-toppling, it would be equally accurate to say that the individual defendant is being subjected to additional punishment on account of his political beliefs or on account of the crime he committed. When a crime is politically motivated, there is in fact no difference between the two. Yet under the panel’s approach, the choice of characterizations would determine whether or not an individual was entitled to invoke an Article 3(a) defense to extradition.
To say that Smyth must prove .that he will be subjected to additional punishment solely on account of political beliefs and not because he committed a particular crime is, according to the panel, “a difficult burden;” in fact, it is an impossible one. The panel’s conclusion results from its misinterpretation of the Treaty. It creates a false dichotomy, one that is wholly unreal. In the black and white, all or nothing, world of the panel’s opinion, there is the crime and the political opinion and never the twain shall meet. The truth however is that the two are inextricably linked, and thus inseparable.
Of course I am not suggesting that a defendant charged with a political crime cannot be extradited. I am merely stating that in order to mount a successful Article 3(a) defense, a defendant should not have to prove that the extra or additional punishment or retribution that he alleges he will face will be solely on account of his race or nationality and not because of the crime he committed. The distinction the panel seeks to draw, and on which it relies as the basis for ordering that the writ of extradition be granted, simply cannot be drawn — by the panel or anyone else,
While the panel’s opinion could have most unfortunate, and potentially far-reaching consequences for anyone attempting to assert an Article 3(a) defense, the application of the panel’s approach in this case is particularly disturbing. The panel determined that James Smyth had not met his burden of showing that the additional punishment that he feared would be imposed on him on account of his political opinions rather than on the basis of the politically-motivated crime he committed. For the reasons I have explained supra, the panel’s attempt to separate the crime from the motive is unreasonable and impractical. Neither Smyth nor any other individual could ever prove that the beatings or torture he suffered were inflicted on account of his political views rather than on account of his implementation of those views in the form' of an act of *1444violence committed against people he considered his political enemies. Moreover, in this case, Smyth submitted evidence, which the district court accepted, that demonstrated that he had been beaten and tortured long before he had ever been charged with a crime. Even the panel, presumably, would have to agree that this is strong evidence that a substantial part of the barbaric treatment to which he was subjected was not related to any crime whatsoever. Had the panel understood this fact and considered the more general evidence it erroneously found irrelevant, it might well have reached a different result.
Conclusion
The district court found that Smyth had shown by a preponderance of the evidence that he would likely be subjected to severe extra-legal punishment because of his religion, nationality, political opinions, and the political nature of the crime he committed. The panel erred grievously in simply disregarding these findings and substituting its own. The panel also erred grievously in holding that evidence tending to establish a pattern and practice of persecution against Irish Catholic nationals generally, and against Irish Catholic nationals accused or found guilty of certain politically-inspired offenses in particular, is wholly irrelevant. It erred equally grievously in concluding that the presumptions imposed by the district court failed to address the requirement that the “retaliation of detention would be on account of ‘race, religion, nationality or political opinions.’ ” Finally, it erred grievously in holding that there is a wall of separation between political opinions and the crime committed, and that a person resisting extradition must show that he is being subjected to extra-legal punishment on account of his political opinion and not on account of the crime. These are all substantial errors that this court has an obligation to correct. This is the first case in this circuit to interpret this highly controversial treaty provision. The only other appellate case that has even considered the effect of Article 3(a) arose in the First Circuit. We should not allow this opinion to stand as a precedent for ourselves and a guide to other courts.
For the reasons set forth in this opinion, as well as for the reasons expressed in Judge NOONAN’s opinion, I believe that an en banc court should be convened to remedy the panel’s errors. Accordingly, I dissent from the court’s failure to take this case en banc.
. The second and only other presumption ordered by the district court as a result of the British government's refusal to comply with a discovery order is that the security forces in Northern Ireland either participate in or condone these brutal acts.
.This is not the place to plunge into the highly controversial questions: “Who is a Jew,” who and what determines the existence of that status, is Jewishness a matter of ethnicity or religion, and why are Jews who have no attachment to any religious organization or philosophy nonetheless Jews? All we need understand for present purposes is that the statement about the fate of Jews during the reign of Adolph Hitler should inform any reasonable person that in Germany a particular group of persons were persecuted because of their religion or ethnicity. Incidentally, even though “ethnicity" is not specifically listed in the Treaty, there should be little doubt that it is covered along with “race, religion, nationality and political opinions.”
. The eponymous Diplock system stems from a report, prepared by a British Lord, on procedures for handling cases involving alleged terrorist activities. These procedures include the elimination of trials by jury. Smyth, 61 F.3d at 713.
. Smyth submitted evidence that of the prisoners in the Maze, almost all of whom have been convicted of terrorist-type offenses, the republican prisoners are subject to worse treatment than the loyalists, including beatings and dog bitings.
. The panel’s opinion does say that the evidence submitted by Smyth does not "necessarily” concern people who have been convicted of crimes. 61 F.3d at 719. Aside from the fact that the panel's attempted distinction between persons suspected of crimes and those already convicted is not particularly persuasive for the purposes of Article 3(a) of the Treaty, and aside from the fact that the district court’s factual findings provide no basis for making such a distinction, the panel appears to forget that the presumptions were imposed as a sanction on the British government for its refusal to permit discovery, or even in camera review, of evidence that might well have demonstrated the presence of precisely what the panel purports to find lacking. Smyth, 826 F.Supp. 316, 322 (N.D.Cal.1993).
. Article 3(a) reads:
“Notwithstanding any other provision of this Supplementary Treaty, extradition shall not occur if the person sought establishes ... by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality or political opinions. ..."
Supplementary Treaty, art. 3(a).
. “In the non-pattern or practice cases, there is a significant correlation between the asylum petitioner's showing of group persecution and the rest of the evidentiary showing necessary to establish a particularized threat of persecution.” Kotasz, 31 F.3d at 853.
. As explained in part by Judge Noonan’s dissent and in part by this dissent, supra, the panel not only failed to recognize that the district court had the authority to impose the presumptions as a discovery sanction and that the presumptions do not conflict with the Treaty, but it also failed to understand the meaning and content of the presumptions.
. (1) Catholic Irish nationals accused or found guilty of offenses against members of the security forces or prison officials are subjected systematically to retaliatory harm, physical intimidation and death in Northern Ireland.
(2) Members of the security forces in Northern Ireland either participate directly or tacitly endorse these actions.
Smyth, 826 F.Supp. 316, 323 (N.D.Cal.1993).