Senior District Judge William M. Hoeveler

Yesterday, Senior District Judge William M. Hoeveler ruled that Manuel Noriega is eligible for extradition to France notwithstanding his status as a prisoner of war. Judge Hoeveler's order can be found here.  In his order, Judge Hoeveler ruled that the Geneva Convention Relative to the Treatment of Prisoners of War did not preclude his transfer to France in part because the Article 12 of the Convention envisons the possibility of transfer to a third country. Article 12 provides:

Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with. (emphasis added)

Judge Hoeveler noted that France is indeed a party to the Convention and there is every indication that France would comply with its obligations under the Convention.

Judge Hoeveler also noted that even though the Convention on POW's was "silent" on the issue of extradition, Article 45 of the  Geneva Convention Relative to the Protection of Civilians provides that:

Protected persons shall not be transferred to a Power which is not a party to the Convention.

This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to their return to their country of residence after the cessation of hostilities.

Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention. If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with.

In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.

The provisions of this Article do not constitute an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law.

Moreover, Hoeveler explains that the ICRC Commentary on the Convention on Civilians makes it clear that when the term "transfer" is used in  Article 45, it  may mean "extradition."  Accordingly, Judge Hoeveler concludes that it would be logical to assume that the term "transfer" in Article 12 of the POW Convention should also include "extradition."

Despite the fact that the Government argued that the Military Commission Act precluded invocation of the Geneva Convention, Judge Hoeveler wisely avoided commenting on the constitutionality of the MCA.

According to the New York Times:

Mr. Noriega may still appeal the ruling, which will keep him in United States custody for some weeks or months. Frank Rubino, Mr. Noriega’s lawyer, said he would decide in the next week whether to challenge the ruling in the United States Court of Appeals for the 11th Circuit or with the United Nations.

I am not sure what it means to challenge the order with "the Untied Nations." But we shall see.