When is a Bulgarian Not a Bulgarian?

In 1999, Libya made a number of arrests in conjunction with the contraction of HIV by hundreds of Libyan children. In 2004, six of the defendants (five Bulgarian nurses and a Palestinian who, depending on whose version you believe, was either a physician or a mere trainee) were convicted of intentionally infecting over 400 children with HIV at a hospital in Benghazi, Libya, and sentenced to death. The defendants, who have spent the last eight years in prison, maintain their innocence and claim confessions they originally gave were the result of torture. An internal study by doctors from the World Health Organization suggested the virus spread accidentally due to the lack of sanitary facilities and procedures. In 2006, an international team of scientists concluded the HIV infection problem predated the foreign medics 1998 arrival in Benghazi.

The convictions and sentences generated significant controversy and protests in Bulgaria and the rest of Europe, operating as a simmering irritant in Libya’s relations with Bulgaria and the EU. For its part, Libya has sought hundreds of millions of dollars in payments for the families of the infected children, comparing its requests to the payments it made as compensation for the Pan Am 103 bombings.

On Tuesday of this week, Libya opened the door to a resolution of the controversy when its High Judicial Council commuted the death sentences of the six defendants to life imprisonment (Libya’s Supreme Court had upheld the convictions only the week before last). Evidently, the commutations came after behind-the-scenes negotiations involving French President Nicolas Sarkozy, and a financial compensation package totaling approximately $1 million per victim was agreed, to be funded by the Libyan Government, the European Union and other sources. Most importantly, reducing the sentences to life imprisonment allows Bulgaria to request the transfer of its citizens back to Bulgaria under the terms of a bilateral prisoner transfer treaty between the two states.

Obviously, this is a complex case that raises a lot of interesting issues. For example, what impact, if any, did Bulgaria joining the EU in 2007 have on the negotiating dynamics here? If returned to Bulgaria, will the defendants actually spend the rest of their lives in jail, or might we see a reprise of the Rainbow Warrior affair where Bulgaria finds creative ways to avoid continued imprisonment for its citizens.

What struck me as most remarkable about this resolution, however, is the fate of the Palestinian physician/trainee, Ashraf Alhajouj, who was born in 1969 in Egypt, two years before his family moved to Libya. In what appears to be a part of the negotiated solution, Bulgaria granted Mr. Alhajouj Bulgarian citizenship a few weeks ago on June 19, 2007. As a result, Bulgaria has requested his transfer from Libya along with the five Bulgarian nurses.

What do readers make of this move? Is this consistent with, or a repudiation of, the genuine and effective links test set out by the International Court of Justice in the Nottebohm Case? Does it matter that his family left Bulgaria in 2005 and has now received political refugee status in the Netherlands? Do you think his identity as a Palestinian mattered (for example, could Bulgaria have pursued the same solution if he had only had Egyptian citizenship)?