The recent arrest of Wesam Delaema, who is accused of conspiring to commit a number of terrorist attacks in Iraq, brings up some very interesting extradition issues.
[1] Mr. Delaema was arrested by Dutch authorities on May 2, and transferred into extradition custody shortly thereafter.
[2] The indictment filed on September 9 will serve as the grounds on which the US will seek Mr. Delaema’s extradition from the Netherlands.
[3]The extradition
treaty between the US and the Netherlands puts an obligation on the requested state (the Netherlands) to extradite an individual to the requesting state (the US) for persons who are charged with an offense.
[4] The extraditable offenses listed in the treaty fall into two categories: those offenses that are listed in the Appendix to the Treaty which are punishable under the laws of both countries,
[5] and those offenses that may not be listed in the Appendix but are punishable under both the Federal laws of the United States and the laws of the Netherlands.
[6] In addition, extradition will be granted for attempts to commit the offense, or participation in an association of persons whose intention is to commit the offense;
[7] in other words, extradition will be granted for a conspiracy to commit the offense. Extradition will not be granted when the offense is of a political character,
[8] noting that “murder or willful crime against the life … of a Head of State or Head of Government” of either country will not be considered to be of a political character.
[9] Furthermore, extradition will not be granted if the offense is a purely military offense.
[10] If the offense for which extradition is requested is punishable by death under the laws of the requesting state, and the laws of the requested state do not impose such a penalty for the offense, extradition may be refused unless the requesting state furnishes sufficient assurances that the death penalty will not be imposed, or, if it is imposed, will not be executed.
[11]How the Treaty Applies to Mr. DelaemaMr. Delaema is accused in part of conspiring to kill US nationals. Murder is one of the listed offenses for which extradition will be granted,
[12] and conspiracies are covered by Article 2 of the treaty. He is also accused of conspiring to use weapons of mass destruction, which is also covered in the appendix.
[13] Finally, he is accused of demonstrating how to make and use an explosive device, which isn’t specifically enumerated by the appendix. It is possible that the Netherlands has laws prohibiting such behavior, which would make it covered in paragraph 30 of the Appendix, which grants extradition for “[o]ffenses against the laws relating to firearms, ammunition, explosives, incendiary devices or nuclear materials.” It would also apply to the dual criminality component.
The next issue to consider is whether the acts that Mr. Delaema is accused of committing are political acts. As noted above, under the extradition treaty, only crimes of violence directed at heads of state are removed from political act considerations. Mr. Delaema will likely argue that since he is an Iraqi-born person, his desire to wage guerrilla warfare against an invading army constitutes a political act. That is not the end of the analysis, however. Both the United States and the Netherlands are parties to the International Convention for the Suppression of Terrorist Bombings.
[14] This convention places a duty on signatory countries to
adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of this Convention, in particular where they are intended or calculated to provoke a state of terror in the general public or in a group of persons or particular persons, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature and are punished by penalties consistent with their grave nature.[15]
Furthermore, under the terms of the convention, signatories are under a duty to either prosecute the individual or extradite him.
[16] Therefore, it is unlikely that Mr. Delaema could claim that using explosives (or conspiring to do so) is a political act.
The third consideration is whether Mr. Delaema’s alleged behavior counts as a military act. Obviously, the United States does not consider non-uniformed combatants to be members of a military force. Whether the Netherlands agrees is not well-known. However, under the terms of the Convention, the military forces of a state are considered to be “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security and persons acting in support of those armed forces who are under their formal command, control and responsibility.”
[17] Therefore it is exceedingly unlikely that Mr. Delaema would be able to successfully claim that he was a member of a military force, and that his acts would allow him to avoid extradition based on their military nature.
The final consideration for Mr. Delaema is whether he faces the death penalty, because the Netherlands, having outlawed the death penalty, is under no obligation to extradite him if he does. However, because Mr. Delaema is charged with conspiracy to commit certain crimes, which does not carry the death penalty, and with committing crimes that do not carry the death penalty, the Netherlands will not be able to block Mr. Delaema’s extradition on those grounds.
[1] For the specifics of the charges against Mr, Delaema, please see our discussion of his indictment here.
[2] Department of Justice, Press Release: Dutch Citizen Indicted in Terrorism Conspiracy Against Americans in Iraq, Sept. 9, 2005, available here.
[3] Id.
[4] Extradition Treaty, Jun. 24, 1980, U.S.-Neth., art. 1, S. Treaty Doc. No. 97-7 (1983).
[5] Id. art. 2, para. 1, sec. a.
[6] Id. art. 2, para. 1, sec. b.
[7] Id. art. 2, para. 4, sec. a.
[8] Id. art. 4, para. 1.
[9] Id. art. 4, para. 2.
[10] Id. art. 4, para. 3.
[11] Id. art. 7, para. 1.
[12] Id. appx. para. 1.
[13] Id. appx. para. 30.
[14] International Convention for the Suppression of Terrorist Bombings, Jan. 12, 1998, S. Treaty Doc. No. 106-6 (2002), available here.
[15] Id. art. 5.
[16] Id. art. 9, para. 1.
[17] Id. art. 1, para. 4.
