Third Geneva Convention Does Not Preclude Noriega Extradition

The Eleventh Circuit earlier this month ruled that Manuel Noriega could be extradited to France following the completion of his sentence in Florida. In Noriega v. Pastrana, Noriega argued that under the Third Geneva Convention he was entitled to automatic and immediate repatriation to Panama as soon as his criminal sentence was complete. However, Section 5 of the MCA provides that “no person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or … agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” The Court held that the MCA precluded Noriega’s action pursuant to the Third Geneva Convention:

Despite Noriega’s arguments to the contrary, it appears that Noriega is invoking the Third Geneva Convention as a source of rights-the alleged right to immediate repatriation under article 118. While the legal effect of § 5 has not been widely discussed, the plain language of § 5 prohibits exactly this type of action…

The Court then continued:

assuming arguendo that the Third Geneva Convention is self-executing and that § 5 of the MCA does not preclude Noriega’s claim, … the Third Geneva Convention does not prevent Noriega’s extradition to France…. Articles 118 and 119 of the Third Geneva Convention set forth the permissible duration for the deten-tion of prisoners of war. Article 118 provides, in pertinent part, that “[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities.” Article 119 further qualifies that “[p]risoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the comple-tion of the punishment. The same shall apply to prisoners of war already convicted for an indictable of-fence.” As a result of Noriega’s conviction in the United States, article 119 authorized the United States to prolong his detention for the duration of his sentence-beyond the cessation of hostilities between the United States and Panama. Nowhere, however, is it suggested that a prisoner of war may not be extradited from one party to the Convention to face criminal charges in another.

This makes perfect sense to me. A later-in-time statute precludes invocation of treaty rights and in any event the treaty rights do not afford the protection Noriega was requesting.

The case is also interesting when compared with Boumediene. In Boumediene, the jurisdiction-stripping section of the MCA (Section 7) was held to be unconstitutional. In this case, the court gave short shrift to any constitutional arguments with respect to Section 5:

In Boumediene, the Supreme Court found § 7 of the MCA, which explicitly removed the jurisdiction of courts to consider habeas actions by enemy combatants, to be unconstitutional. Id. at 2242-44, 2275.The Court determined that the petitioners could not be prevented from seeking the writ because of their status as enemy combatants or detention in Guantanamo Bay, and therefore they were entitled to the constitutional privilege of habeas corpus…. Section 5, in contrast, … at most changes one substantive provision of law upon which a party might rely in seeking habeas relief. We are not presented with a situation in which potential petitioners are effectively banned from seeking habeas relief because any constitutional rights or claims are made unavailable.

The confusing bit for me is that it appears that Section 5 of the MCA does curtail the rights of prisoners of war by making the Third Geneva Conventions off limits for habeas petition. That may not make a difference in a case like Noriega’s, where the United States is acting consistent with Article 119 of the Third Geneva Convention. But what about other situations, such as a typical POW who is not serving time for criminal offenses? Isn’t the removal of rights under the Third Geneva Convention in habeas petitions a genuine and significant change of substantive provisions of law?

I’m not an expert on habeas relief, the MCA, or the Geneva Conventions, so thoughts from others are most welcome.