Friday, April 10, 2009
The Eleventh Circuit Court of Appeals has rejected former Panamanian General Noriega's request not to be extradited to France where he will be put on trial on money laundering charges. Noriega argued that he could not be extradited to France because of his status as a prisoner of war (POW) under the Geneva Conventions. The Court of Appeals held that Noriega is precluded from relying on the Geneva Conventions as a private source of rights in a habeas proceeding due to section 5 of the Military Commissions Act of 2006 (MCA). The Court stated that even though the Geneva Conventions may be self-executing treaties that are part of U.S. domestic law, in this case, the ability of an individual to bring a private cause of action under the Conventions had been superceded by a later enacted statute under the last-in-time rule of Whitney v. Robinson. The Court further held that even if the Geneva Conventions are self-executing provisions creating privately enfoceable rights, and are not preempted by the MCA, the Geneva Conventions do not prohibit Noriega's extradition on the merits. Interestingly, the Court does not address the status of the Geneva Convention provisions as either customary international law or jus cogens. However, given the Court's ruling that the provisions do not assist Noreiga even if he could rely on them, a broader discussion of the status of the Convention's provisions under international law was probably unnecessary. Noriega has indicated that he will appeal the ruling, so the extradition may not occur just yet. Click here for the Eleventh Circuit's opinion.