Third Geneva Convention Does Not Preclude Noriega Extradition

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.

Europe, Featured, Foreign Relations Law, International Criminal Law, International Human Rights Law, North America
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Kevin Jon Heller

Hi Roger,

I am far less certain than you — though certainly not certain the other way! — that extradition to another country to stand trial is consistent with Article 119.  Section II of Article IV is directed at the Detaining Power; it thus seems reasonable to infer that the reference to “criminal proceedings for an indictable offence [that is] pending” refers only to criminal proceedings pending in the Detaining Power.

Roger?  Readers?

Charles Gittings

Ya, well this is actually something I’ve thought about a lot. First of all, the MCA is irrellevent: their Geneva analysis is correct, there’s no need to go there. But the MCA itself is highly defective.  Who says a statute can modify a duly-ratified treaty in force? Geneva can only be “denounced” after one year advance notice, and even then it remains in force until the conclusion of hostilities, including the repatriation of all prisoners. Further, under Hague IV art. 23[h] and 18 USC 2441(c2), it is a war crime puniushable as a federal offense to declare the legal rights and actions of enemy nationals suspended or null, and Hague IV is customary law according to the Nuremeberg judgement.  The MCA was enacted for a fundamentally criminal purpose, and indeed, it was enacted through the agency of a criminal conspiracy operating in the Office of the VP under Dick Cheney and David Addington. And I also believe that the MCA is in fact unconstitutional, for two reasons: 1) It amounts to blank-check attainder whereby the President is permited to designate whether or not a given individual accused of a crime has due process rights purely by fiat. 2) It attempts… Read more »

Vlad Perju


I don’t know enough about the Geneva Convention to have a firm response.  It appears the treaty is completely silent about extradition.  However, under the extradition treaty with France, the United States undoubtedly has a legal duty to comply with France’s request.  Article 1 of the extradition treaty states that “[t]he Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the competent authorities in the Requesting State have charged with or found guilty of an extraditable offense.”  Perhaps the best answer is that we should try to read these two treaties to be consistent with one another and, if so, the Geneva Convention does not preclude the United States from complying with its treaty obligation with France.


Thiago B Jardim Oliveira
Thiago B Jardim Oliveira

I am not fully aware of the surrounding circumstances of this case nor the content of US provisions applying to it, so I shall rather mention the provisions I deem relevant to similar instances.. First of all, one might take into account the general rule of GCIII defining its scope of application as embodied in Article 5: POW status only cease after release and repatriation. Thus, until the person benefiting from POW status is not repatriated he shall enjoy the rights garanteed in the Convention. But then when it comes to extradite a POW, it seems that the GCIII does not set rules on the matter in any way but implicitly. One might then take a look at the rules regarding transference of detainees to a third country. According to Article 12 of GCIII, a POW may be transferred only “after the Detaining Power has satisfied itself of the willingness and ability of [the] transferee Power to apply the Convention”. This provision appears to be in conformity with the begginning and end of the application of the Convention since only after final repatriation all related POW rights and duties come to an end. Also it bears harmony with the rationale of Article 119 permiting the continuance of detention after the end of hostilities… Read more »

Charles Gittings

Well in general, Geneva does not interfere with legal processes. POWs are immune for acts pursuant to lawful military operations, but are liable to prosecution like anyone else otherwise — hence Noriega’s original conviction and incarceration on drug charges while being held as a POW. A lawful extradition is no problem; what Geneva forbids is ad hoc nonsense like the Bush detainee policies or the Nazi “night and fog” decree.

Kenneth Anderson

Point of historical curiousity … the US never definitively determined whether Noriega was actually a POW or not.  I filed the original HRW friend of the court brief in the case arguing that he should be so treated, and the trial court reached the conclusion that while he should be so treated, the court itself had no authority to compel the USG to do so.  But it didn’t feel under any great pressure to justify that split conclusion one way or the other, because in the course of events, the USG and the defense reached an agreement that Noriega would be treated as if he were a POW for all purposes of confinement – and as I understood at the time, without prejudice to either side on further issues such as extradition, which were already under discussion even then.   This ad hoc agreement made sense to the USG because DOD, which was holding Noriega, had already constructed a special cell for him that was Geneva compliant – already spent a couple of million dollars.  ICRC was doing visits, but no one had to concede anything on the actual merits. That’s where things rested – but then I was surprised… Read more »

Charles Gittings

So what counts as deffinitive Ken?

Noriega has been treated as a POW by the US for years now. Seems pretty definitive to me.

So does our support for the Hague, the IMT Charter, and Geneva, at least when we have presidents and lawyers who aren’t MURDEROUS WAR CRIMINALS concerned with subverting our Constitution and laws in order to advance their crimes.

You know what this particular opinion tells me more than anything else?

Something I already know — that the DOJ Civil Division is rotten with corrupt, incompetent lawyers who are up to their ears as co-conspirators in the Bush administration’s various crimes. Why did the MCA even come up in this case?,

The MCA should be repudiated and repealed: its only purpose was to aid and abet the crimes of the Bush administration.

Vlad Perju


That comment is really beyond the pale.   You are impugning an entire cadre of Justice Department lawyers, calling them “corrupt and incompetent co-conspirators” in Bush’s crimes simply because they are making good faith arguments on how to comply with our extradition treaty obligation.

It seems that there are only three things in a Gittings’ comment:  a noun, a verb, and Bush’s crimes.

Roger Alford


Re the MCA, so why did Congress pass it, with 65 Senators and 250 Representatives voting yea?

Presumably they weren’t ALL corrupt and incompentent co-conspirators (well at least not all three at once!)?

And what makes you think they would repeal it when most of the current Congress voted for it?

Charles Gittings

Roger, With respect, I am making a factual allegation based on seven years of reading the briefs they have filed and investigating the Bush administration’s treatment of detainees at Guyantanmo Bay and elsewhere. I assert: 1) The only purpose of JTF-GTMO was to commit war crimes against prisoners in violation of 18 USC 2441 and other federal statutes. 2) The only pupose of DOJ in the detainee cases has been to deprive all of the detainees of all legal rights without exception, in violation of 18 USC 2441(c)(2) as it refers to Hauge IV 1907 annex. art. 23[h]. They’ve been acting in support of a criminal conspiracy from the start, using the law itself as a weapon to commit, aid, and abet crimes. I don’t view them any differently than a lawyer who tires to bribe a juror or suborn perjury: they are engaged in acts which are criminal offenses p. to Title 18, in deriliction of their duty both as public officials and members of the bar. And on information and belief, I’m not doing anything but stating facts which are plain on the public record. If you’d care to question me on those allegations, I’m at your disposal… Read more »

Charles Gittings

I was rushed yesterday morning when I wrote that last comment — “OVP, Civil Division, and OSG” should be “OLC, Civil Division, and OSG”.  OVP was the agency supervising the crimes, with Bush signing the orders as directed by Cheney and Addington.

Yaser Hamdi was moved from Gitmo to Norfolk when it was discovered he had dual US-Saudi citizenship. That put his habeas petition in the E.D. Va. and his case was assigned to Sr. Judge Robert Doumar, a no-nonsense conservative appointed to the bench by Reagan. There was a hearing at which the government attorneys presented the Bush administration’s views regarding detention authority in the so-called GWOT etc, whereupon Judge Doumar delivered what stands to date as the most eloquent and authoritative assesment of the Bush administration’s legal reasoning:

“That sounds idiotic!”

That was six years ago, and it’s only gotten worse since then, as they spin ever more preposterous fraudulent excuses for their  crimes each time the courts rule against them.

And make no mistake: these are crimes — every single detainee is the victim of multiple felonies committed under a false color of law.

Charles Gittings

And once again I see that I am answered only with silence, yet you FALSELY accused me of unfairly impugning people who are in fact MURDEROUS CRIMINALS. How long will you go on denying the truth Roger? I already know how long a neo-fascist like Julian Ku will deny it, but you actually strike me as a man of integrity, despite  the fact that you are impugning me for telling the truth. I know my conclusions make you uncomfortable politically.  The Republican Party has degenerated into a criminal organization in exactly the same sense that the Nazis and Soviets were. You should be uncomfortable about that, and you should be even more uncomfortable about the fact that so many of the worst criminals are LAWYERS who are willing to turn the law upside down in order to murder and torture people for political purposes.  All of it on the idiotic theory that murder and torture are just smart tactics. What a testament to the state of legal education that is! Their corruption is exceeded only by their foolishness, and I’m just not in any doubt about it.  You see, I made a commitment to pursue the truth wherever it led… Read more »