Matthew Reichstein, the Extradition of General Manuel Noriega: an Application of International Criminal and Humanitarian Law to Answer the Question, "if So, Where Should He Go?"

• Publication year: 2008

THE EXTRADITION OF GENERAL MANUEL NORIEGA: AN APPLICATION OF INTERNATIONAL CRIMINAL AND HUMANITARIAN LAW TO ANSWER THE QUESTION, "IF SO, WHERE SHOULD HE GO?"

INTRODUCTION

General Manuel Antonio Noriega led the Panamanian Defense Forces and ruled as the de facto leader of Panama from 1983 until 1989.¹His reign was well known for its strong-armed tactics, drug trafficking, money laundering, and corruption.²Over the course of his rise to power and his dictatorship, General Noriega cavorted with both the Reagan administration and Columbian drug lords.³He transitioned from American pawn to American public enemy to American prisoner of war.⁴Now, Noriega is sitting in legal limbo, appealing a decision by a federal court judge granting the Secretary of State the ability to extradite Noriega if and where she sees fit.⁵

On February 14, 1988, a federal grand jury sitting in Miami returned a 12- count indictment charging Noriega with various counts related to conspiracy to import cocaine and materials used to produce cocaine in and out of the United States.⁶Specifically, Noriega was charged with engaging in racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO);⁷conspiracy to distribute and import cocaine into the United States; distributing and aiding and abetting the distribution of cocaine with the intention that the cocaine be imported into the United States; aiding and abetting the manufacture of cocaine intended to be distributed in the United States; conspiring to manufacture cocaine intended to be distributed in the United States; and causing interstate travel and use of facilities in interstate commerce to promote an unlawful activity.⁸Although the grand jury charged

Noriega, the likelihood that he would be brought to justice in the United States was minimal.⁹

On December 20, 1989, President George H. W. Bush ordered troops into Panama, initiating Operation Just Cause.¹⁰President Bush said that the objective of the mission was to "safeguard American lives, restore democracy, preserve the Panama Canal treaties, and seize Noriega to face federal drug charges in the United States."¹¹Shortly thereafter, on January 3, 1990, Noriega surrendered to American forces.¹²American forces brought Noriega to Miami to face the charges raised against him in federal court.¹³Judge Hoeveler, the presiding federal judge in the matter, remarked that the court was being presented with various issues of first impression, notably that it was the first time "a leader or a de facto leader of a sovereign nation ha[s] been forcibly brought to the United States to face criminal charges."¹⁴On April 9,

1992, Noriega was found guilty of eight counts of cocaine trafficking, racketeering, and money laundering.¹⁵He was sentenced to 40 years in prison.¹⁶

Later that year, Noriega petitioned a federal court to consider him a prisoner of war (POW).¹⁷Noriega argued that he was entitled to the protections afforded to him by the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva III),¹⁸rather than those afforded to a common federal criminal.¹⁹Judge Hoeveler noted that although Noriega was a convicted felon under federal law, "Mr. Noriega was plainly a prisoner of war, satisfying the treaty's requirement that he belong to an armed force in conflict and had 'fallen into the power of the enemy.'"²⁰Judge Hoeveler's decision was not only unique in the sense that it made a convicted felon a prisoner of war, but it was also seen as solidifying the role of international law in American courts and respect for treaties as the supreme law of the land.²¹

With Noriega's release approaching on September 9, 2007, the French government, pursuant to its extradition treaty with the United States,²²requested that Noriega be extradited to France to face money laundering charges.²³In 1999, Noriega was convicted of the money laundering crimes in absentia by a French court and was sentenced to ten years in prison.²⁴The French, however, have said that Noriega would be entitled to a new trial upon extradition.²⁵French foreign officials also stated that Noriega would not be given official status as a POW, but instead would be given beneficial treatment as though he maintained that status.²⁶

The Panamanian government, pursuant to its long-standing extradition treaty with the United States,²⁷has also requested Noriega's extradition to face charges at home.²⁸The Panamanian government has convicted Noriega of far more serious crimes, including murder and human rights violations.²⁹

Furthermore, Panama has made repeated requests for Noriega's return to face criminal charges, the most recent in January 2007.³⁰

As his release date approached and the question of where he should be sent came to the forefront, the 73-year-old Noriega found himself stuck in a legal quagmire, uncertain of where he will next face criminal charges.³¹

On July 23, 2007, Noriega filed a petition in federal district court in Miami to prevent his extradition to France.³²After reviewing Noriega's petition and the Government's replies, Judge Hoeveler denied Noriega's petition.³³Judge Hoeveler decided that despite his status as a POW, Noriega was indeed extraditable, and his extradition could proceed accordingly.³⁴U.S. Magistrate Judge William Turnoff then issued a certificate of extraditability as a result of

Judge Hoeveler's decision.³⁵In January 2008, Noriega received a similar decree from U.S. District Court Judge Paul Huck, who agreed with Hoeveler's decision.³⁶Judge Huck similarly held that Noriega's POW status was not an obstacle to his extradition and found France's guarantee to treat Noriega in accordance with the POW rules of the Geneva Convention, regardless of their labeling him a POW, sufficient to permit his extradition from the United States.³⁷Noriega has since appealed the district court's decision to the Court of Appeals for the Eleventh Circuit.³⁸The State Department has stated that no decision will be made on where to send Noriega until all of his appellate rights have been exhausted.³⁹If the court of appeals affirms, the rest of the decision- making will be left to the Secretary of State.⁴⁰

This Comment intends to answer two questions. First, was the district court correct in determining that Noriega is extraditable? Second, if Noriega is extraditable, where should he be sent? This Comment contends that Noriega is likely extraditable and that, rather than be sent to France, Noriega should be sent home to Panama to face charges there.

Part I of this Comment begins the analysis by presenting the most relevant provisions of Geneva III. Part I.A considers POW rights to repatriation. Part I.B considers the possibility of POW transfer under Geneva III.

Part II briefly considers Judge Hoeveler's determination in his 1992 ruling that Noriega be considered a POW, which is paramount to Noriega's argument for repatriation. Had it denied Noriega POW status, the United States would not find itself in this present predicament.

Part III of this Comment provides an in-depth summary of the case presented before Judge Hoeveler. Part III.A considers Noriega's argument for repatriation to Panama. Part III.B summarizes the Government's argument that, despite Geneva III, Noriega is extraditable and the decision of where he should be sent should be left to the Secretary of State. Part III.C describes Judge Hoeveler's analysis and his decision with regard to Noriega's status and extraditability.

Part IV analyzes and attempts to answer the question of whether or not Noriega is rightly extraditable. Part IV.A examines Judge Hoeveler's interpretation of the Geneva Conventions and specifically his use of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Geneva IV) to interpret Geneva III. This section provides a quick primer in treaty interpretation and uses those guiding principles to argue that Judge Hoeveler improperly applied Geneva IV. Part IV.B proposes that Judge Hoeveler reached the right conclusion, although the steps he took to get there were inappropriate. Specifically, this section looks at the self-execution of treaties in American courts and argues that Judge Hoeveler incorrectly considered Geneva III to be wholly self-executing. Judge Hoeveler could have dismissed Noriega's petition without mentioning Geneva IV and would not have had to delve deeper had he not vehemently supported Noriega's POW rights 15 years before.

Part V attempts to answer the question of where Noriega should be sent. Part V.A asserts that the decision of where to send Noriega is not for the courts to decide. Part V.B contends that the decision actually belongs to the Secretary of State and that Panama should receive Noriega. Part V.C presents various international sources addressing extradition and situations where multiple extradition requests are made for an individual. The supplied international agreements also help demonstrate how the United States should honor its obligations to Panama and favor Panama's request for Noriega.

Lastly, Part VI proposes conclusions and also presents questions and concerns for the future. The situation presented by the Noriega extradition was unique and could have serious implications for future treatment of POWs under American control. Judge Hoeveler's analysis does not provide sound assistance for handling similar situations in the future. This Comment explains the problems in Hoeveler's decision and suggests a rational approach for similar situations.

I. GENEVA III AND ITS RELEVANT PROVISIONS

A. The Right to Repatriation Provided by Prisoner of War Status

Although Geneva III protection merely provided Noriega with better treatment in prison, a more comfortable cell, and the ability to wear his uniform proudly,⁴¹Geneva III's Article 118 came to the forefront of concern in light of Noriega's pending release from federal prison.⁴²Article 118 states that "[p]risoners of war shall be...