A Conundrum Posed by U.S. Anti-Terrorism Policy
Thirty years ago this month, a Cuban airliner blew up in mid-air, killing all 73 people aboard. Declassified CIA and FBI records posted on the website of the National Security Archive at George Washington University identify a violently anti-Castro Cuban exile named Luis Posada Carriles as one of the "engineer[s]" of the bombing of Cubana Airlines flight 455. But on 5 October 2006 the Justice Department declined to classify Mr Posada, who is in a Texas jail for immigration violations, as a terrorist. And in September a federal judge ruled that Mr. Posada, a naturalized Venezuelan citizen, may not be extradited to Venezuela where he escaped from a jail in 1985 while awaiting trial for his role in the plane bombing. The decisions not to treat Mr. Posada as a terrorism suspect and not to extradite him pose a conundrum for U.S. anti-terrorism policy.
The judge in the extradition case held that Mr. Posada faced the threat of torture in Venezuela and therefore could not be returned under the United Nations Convention against Torture. For years, however, the Bush White House in the "war on terror" has sought to interpret very narrowly the international legal norms governing the treatment of detainees, such as the United Nations Convention against Torture. The program of "rendition," wherein terror suspects are transferred for purpose of interrogation from U.S. control into the control of foreign governments that might not shun "alternative" interrogation techniques, has been criticized as an attempt to get around such norms. It is ironic that the Convention against Torture now stands in the way of extraditing a terror suspect, and shields him from trial in a country with whom the United States since 1923 has an extradition treaty.
Aviation security too is governed by some international treaties. The Hague (1970) and Montreal Conventions (1971) deal respectively with aircraft hijacking and aircraft sabotage. More generally there is the International Convention for the Suppression of Terrorist Bombings (1997). The object and purpose of these conventions, to which the U.S. is a party, is the punishment of offenders under all circumstances. To achieve that goal, States parties are obliged to enact the necessary criminal statutes and to establish broad jurisdiction. The cornerstone is the obligation for a State party "in whose territory an alleged offender is found" (or "is present" under the terms of the Terrorist Bombings Convention) to submit the case to its competent authorities for prosecution if it does not extradite him, "without exception whatsoever." In other words, there should be no safe havens for those who interfere with the safety of civil aviation.
In addition to this multilateral treaty framework, the United Nations Security Council, over the past fifteen years, has issued general directives as well as specific orders regarding terrorist acts. Resolution 1269 (1999), for instance, calls upon all States to take appropriate steps to "deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehension and prosecution or extradition." In the early 1990s, Libya's refusal to extradite the suspects of the bombing of Pan Am flight 101 above Lockerbie (Scotland) to either the U.S. or the U.K. lead to a decade of damaging U.N. sanctions.
The choices available to the Bush administration in the Posada case seem limited further by U.S. policy in other cases of terrorism against civil aviation. On 11 June 1985, five heavily armed men seized Royal Jordanian Airlines flight 402 in Beirut. The action was not directed against the U.S. - their ultimate goal was the removal of all Palestinians from Lebanon - but there happened to be U.S. citizens among the passengers. The plane was turned away by several countries and flew back to Beirut. Upon arrival, the hijackers released the passengers unharmed, held a press conference, blew up the plane, and fled. Two years later, undercover U.S. law enforcement agents lured one of the hijackers, Fawaz Yunis, onto a yacht moored in international waters off the coast of Cyprus, arrested him, and brought him to the U.S. for trial. The district court dismissed Yunis' argument that because he had been abducted he was not "found" on U.S. territory within the meaning of the above mentioned conventions. The court added, and this is highly relevant for Posada case, that "once he was within the boundaries of the United States, the government was obliged by statute and by the Montreal Convention to prosecute him for destroying the aircraft." This is a very "creative" interpretation and application of the above conventions. In an ironic twist, Yunis, after serving nearly twenty years in a U.S. prison, was deported in 2005 because he was considered an illegal immigrant.
Omar Mohammed Ali Rezaq, one of the hijackers in 1985 of Air Egypt Flight 648, was hunted down even more zealously. On 23 November 1985, after the flight took off from Athens, Rezaq ordered the pilot to fly to Malta. On arrival, Rezaq shot a number of passengers, including two Americans, before he was apprehended. Rezaq pleaded guilty to murder charges in Malta and was sentenced to 25 years' imprisonment. Maltese authorities released him some seven years later, in February 1993. Shortly afterwards, he was apprehended in Nigeria by U.S. agents and brought to the United States where he was tried again and sentenced to life imprisonment. The court rejected the defendant's arguments of double jeopardy and manufacturing of jurisdiction over him by bringing him into U.S. territory.
In the Lockerbie case the United States turned to the Security Council for a resolution directing Libya to hand over the suspects of the bombing of Pan Am flight 101. Libya ultimately did so, on condition that the suspects not be tried in the United States or the United Kingdom.
This is the background of international law and U.S. anti-terrorism policy for the Posada case. Posada came of his own free will to the U.S, reportedly in an effort to seek political asylum for having served in the cold war on the payroll of the Central Intelligence Agency in the 1960s. Unlike Yunis and Rezaq, he was "found" on U.S. territory within the ordinary meaning of the term in the Montreal Convention. Under the Convention, it seems clear that the United States has an obligation to extradite or prosecute persons such as Mr. Posada for terrorism, but it now appears that neither event will occur.
Luc Reydams, an ASIL member, is on the faculty of the Department of Political Science at the University of Notre Dame. He is the author of Universal Jurisdiction: International and Municipal Legal Perspectives, Oxford University Press (2003)