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Bush, Torrijos administrations give different accounts
Noriega to fight extradition to France
by Eric Jackson
The US government has announced that it will ask a Miami federal court to extradite General Manuel Antonio Noriega, who has been in US custody as both a convicted drug conspirator and a judicially recognized prisoner of war since a few days after the December 1989 US invasion, to France to serve a 10-year money laundering sentence. In 1999 a French court handed down the conviction and sentence in absentia when it found that Noriega had used the proceeds of illegal activity to buy three apartments in Paris.
US State Department officials say that the decision to send Noriega to France when he becomes eligible for release from US custody in September was made pursuant to a joint agreement among the governments of the United States, France and Panama. The Panamanian government, however, denies this and insists that Noriega be sent to Panama, where he also has prison sentences handed down after trials in absentia awaiting him.
Meanwhile Noriega's lawyer in the United States, Frank Rubino, says that the motion to extradite his client will be vigorously opposed in court. The former dictator's legal defenders cite the Third Geneva Convention, which concerns the treatment of prisoners of war, and claim that it requires Noriega's repatriation.
Under the US Constitution, treaties to which the United States is a party and customary international law as defined by Congress or found by the courts are part of US domestic law.
The big legal problem for the Noriega defense team is that the Third Geneva Convention does not forthrightly say what they claim. Although one section of that treaty mandates that severely ill POWs must be repatriated and Noriega has been hospitalized at times during his incarceration, Washington never considered him sick enough for that section to apply. Other sections about the repatriation of prisoners of war after a conflict ends, and about POWs being retained to serve sentences pursuant to convictions for crimes, might possibly be construed with some gap-filling by customary international law to imply that Noriega must be returned to Panama rather than handed to a third country.
The big legal problem for the US government is that there is no precedent for the United States to hand a POW whom it holds in the United States to a third country. In Vietnam the Americans would often hand captured Vietcong over to Saigon authorities but those men and women were never recognized as POWs by the United States. At the end of World War II a number of German and Japanese POWs were handed over to the Nuremberg and Tokyo international tribunals to be tried for various atrocities, and US military commissions tried some Japanese officers for war crimes committed in the Philippines. The American forces also allowed Soviet troops to take custody of Soviet citizens whom the Germans held as POWs, many of whom were in fact "hiwi" turncoats who fought for the Germans, but these people were never considered US prisoners of war.
The US government will have a hard time stepping around Noriega's POW status, which was upheld by the federal judge in his drug trial and was not appealed. Article 85 of the Third Geneva Convention provides that "[p]risoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention." During his captivity in the United States Noriega has been kept in a special facility, worn his military uniform, received Red Cross packets and otherwise enjoyed POW status. The treaty's Article 97 provides that "[p]risoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein." Article 119 provides that "[p]risoners of war against whom criminal proceedings for an indictable offense are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offense." Those sections would appear to get in the way of Noriega being sent to an ordinary French prison without benefit of POW status --- but then France has never gone to war with Panama.
It's an interesting legal question, but a case that will probably turn on political considerations.
Law professor Miguel Antonio Bernal, no friend of the former dictator, considers the US move to extradite Noriega to France to be legally questionable but, despite all denials, politically expedient for the Torrijos administration. He thinks that France is helping the current Panamanian administration to avoid the embarrassment of Noriega coming back here and discussing things that cast top government officials in an unsavory light. He wonders what price the Sarkozy administration in Paris will exact from its counterparts in Panama and the United States for this service.
It's a sticky problem for the Torrijos administration not because, as a number of Americans who don't live in Panama presume, Noriega has a political base to return to power here. The double-edged problem is that his presence in Panama under any circumstances would be a reminder of bad old days and would harm the political standing of the ruling Democratic Revolutionary Party, which Noriega once dominated; but at the same time, Noriega does have old friends in high positions within the current administration --- Public Works Minister Benjamin Colamarco was the head of Noriega's Dignity Battalions militia; Colamarco's wife, who heads the post office, is the sister of Noriega's mistress; the minister of education was a psychologist in the G-2 military intelligence unit through which Noriega rose to power; and the vice minister of government and justice is Noriega's former top adjutant, to cite several examples --- and a Torrijos administration "enforce the law" stand that might blunt public perceptions that the present-day PRD is norieguista might cause problems within the ruling party.
Bernal concluded that "it's not the opposition who are afraid of Noriega coming back, it's the PRD."
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