Friday, August 24, 2007

Manuel Noriega extradition to France

The AP has a story today on the holding by a US district court judge that former Panamanian dictator Manuel Noriega can be extradited to France to face charges there. Here. The judge, senior judge William Hoeveler, was also the judge who originally presided in Noriega's trial in Miami back after Noriega's capture following the US invasion of Panama; Noriega was convicted in 1992.

As it happens, I was monitoring Panama for Human Rights Watch at the time of the invasion, and went there with then Americas Watch director Juan Mendez; we produced a long report on the laws of war in the invasion and aftermath. Later on I wrote Human Rights Watch's amicus brief in the Noriega trial, submitted to Judge Hoeveler; we argued that Noriega was entitled to POW status, as I recall. The US government, which had originally taken the position that he would be entitled to POW status, changed its mind and submitted a new letter from DOS saying that he was not entitled to POW protection as head of state, despite his uniformed status and rank.

Judge Hoeveler issued a ruling - I do not have it in front of me, so it is possible I misrecall precisely how it came out, but as I recall it - in which he took the position that, as a District Court judge, he believed that on the merits Noriega was entitled to POW protection, but that as a matter of the court's jurisdiction, he lacked the power to make the government follow that order. In the event, the US government agreed in negotiations that it would treat Noriega as though he were a POW, with respect to the conditions of his confinement, without conceding that it had to treat him that way as a matter of either international or domestic law, and without conceding anything concerning other aspects of his treatment, including extradition. There was a sense, again as I recall, that the basis of Judge Hoeveler's legal ruling did not need to be tested by either side, in either direction, given the government's positition. And there it rested.

Now, Judge Hoeveler has ruled that his original ruling was not intended to allow claims of POW status to act as a shield against trial for serious crimes, whether in the US or elsewhere. If you go back to the original judgment - which took very serious account of HRW's amicus brief - I believe the judge is correctly stating his own original position. Whether it was entirely legally consistent or not, the original judgment was plainly seeking to accommodate concerns over POW status while not allowing that to be used as a means of avoiding a trial in regular US courts. (Part of this was motivated by the fact, however, that Noriega's lawyers at the time were very worried that Judge Hoeveler might actually push them into a military court martial, in which under the UCMJ, Noriega might fare worse rather than better than in a US district court trial - they wanted POW benefits for terms of confinement, but not the risk of a military trial.)

Hence Judge Hoeveler, as I understand the record then and now, has not changed his mind at all, but is accurately stating the position he took in 1991; it may not be a position entirely consistent with either domestic law or international law, having split the difference in various ways, but what he says to do is consistent with what he said then. Nor does it represent a change of position on the part of the USG which, so far as I understood in both the Bush I and Clinton administrations, viewed arrangements as an accommodation by the US, not a requirement of international law, and limited to the conditions of confinement and not further.

That said, I have changed my own view regarding head of state who happens to wear a uniform or who is by law the commander in chief. I do not believe, contrary to what I wrote in the HRW amicus brief, that there is an obligation to treat political leaders, who are as a matter of evident fact political leaders, as POWs simply because they happen to bear military rank. The US took a different position with respect to Saddam, and I think it was not legally required under GCIII, nor was it a wise precedent.


Anonymous said...

Wouldn't your current position make more sense if the leader's military status was a byproduct of their political position (i.e., Bush as Commander in Chief) rather than a leader whose political position is almost a byproduct of their military position (as in a military dictator such as Noriega). Not to defend Noriega, but his position as a military leader preceded (and in many ways superseded) any political positions he held.

(That said, I completely agree with the extradition of Noriega just as I did with the ordered, yet unaccomplished, extradition of Pinochet from the U.K.)

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