Several European countries have arrested people with suspected links to Osama bin Laden's Al-Qaeda network, the organization the United States holds responsible for the 11 September attacks on New York and Washington. But because the U.S. has the death penalty, it's going to find it difficult to have suspects extradited for trial. And U.S. plans to allow terrorist suspects to be tried in military courts are further complicating extradition arrangements.
Prague, 28 November 2001 (RFE/RL) -- European squeamishness about the death penalty has occasionally proved an irritant to the U.S. as it prepared to execute prisoners on death row.
But the issue is likely to be much more bothersome now, since it could potentially frustrate U.S. attempts to bring those responsible for planning the 11 September attacks to justice.
The issue had threatened to cast a pall over a visit to the U.S. today by Spanish Prime Minister Jose Maria Aznar -- until now one of America's staunchest European allies in its antiterrorism coalition.
Spain -- like all other European Union countries -- has abolished the death penalty and had said it would not extradite eight Al-Qaeda suspects it has in custody unless the U.S. guaranteed they would not face the death penalty. A dispute was averted when the administration of U.S. President George W. Bush announced yesterday that it would not be asking for the extradition of the suspects held by Spain.
Where the U.S. has asked for extradition is Britain, which has arrested a number of people suspected of links to the 11 September attacks, including an Algerian flight instructor.
European Union countries and other members of the Council of Europe can't hand over suspects to the U.S. -- where they would face the death penalty -- because they have ratified the European Convention on Human Rights, which bans capital punishment.
The problem doesn't therefore arise in extradition cases among EU countries. Still, the EU is seeking closer cooperation among member states' judicial authorities to improve its ability to extradite and prosecute terrorists anywhere in the union. The topic is due to come up for discussion at next week's meeting of EU justice and home affairs ministers.
Colin Warbrick is a specialist in international law and human rights at Britain's Durham University. He says European states can be held responsible if they extradite or deport people to countries where certain human rights violations are likely to occur.
"If there was a real risk that the person returned would face the death penalty -- in these cases there would be a real risk -- that would be an unqualified bar to extradition in those circumstances. If a national state was prepared to extradite in those circumstances, the applicant would have an action before the European Court of Human Rights in Strasbourg to confirm their rights, and I think they would be confirmed there."
One way around this obstacle is for the U.S. to seek extradition on charges that do not carry the death penalty. In the case of Lotfi Raissi, the Algerian flight instructor arrested in London, the U.S. originally alleged that he had trained some of the hijackers who crashed a plane into the Pentagon.
But when extradition proceedings began in London yesterday, the U.S. had softened its tone. It is now seeking Raissi's extradition on charges of falsifying an application for a U.S. pilot's license.
Another way around it is for the U.S. to give assurances it will not seek the death penalty in cases where it would normally apply. This has happened in several cases.
Earlier this year, the U.S. secured the return from France of a man it had convicted in absentia of murder -- by assuring France that he would not face the death penalty. But would the U.S. want to do that for people it suspects of involvement in the worst terrorist attacks on U.S. soil -- attacks that sparked an entire military campaign?
Another issue complicating matters is U.S. President Bush's recent order allowing terrorist suspects to be tried by military tribunals. These can be held in secret and due process protections for the accused are lower.
Warbrick says these tribunals could worry some EU countries -- not because of the lack of a jury, since some EU states do not have this in criminal trials anyway -- but because of their secrecy and the risk that military judges may not be independent.
"Unless they [judges] satisfied the same sort of standards for independence that national judges would, then that would be a serious obstacle to returning anybody, whether the death penalty was an issue or not."
Guy de Vel is the director of legal affairs at the Council of Europe. He, too, says member states could have a problem with U.S. military trials but adds that it will be up to individual countries to decide if this is enough to bar extradition.
"They have to check if the conditions in the country to which they extradite conform to the Convention on Human Rights. If they extradite to countries where there is a problem, they could have problems with the Court of Human Rights."
The prospect of a military trial is another reason Spain did not want to hand over its Al-Qaeda suspects. But Bush said yesterday that he is "not the least bit concerned" that his plans will undermine cooperation from allies. Bush said: "I made the right decision."
One more option is for the U.S. not to seek extradition but to let national courts try the suspects.
Warbrick says this could be problematic. Who would have jurisdiction, for instance? He says one reason the U.S. wants military trials is so that it doesn't have to present sensitive evidence in an open court in the U.S. If it doesn't want that at home, why would it agree to present evidence in an open court in Europe? Warbrick says:
"So it would only be possible to go ahead in Europe where the evidence could be presented before an open hearing in a European state. In some cases, I think it would be possible -- the finance cases and possibly some of the cases involving training and preparation also -- because it might not be necessary to, as it were, trace the responsibility all the way up the chain to the leaders of Al-Qaeda. It would simply be a terrorist offense committed by an individual, and it wouldn't matter that they were part of an organization. But again, in political terms, it might not satisfy the objectives of the U.S., which is to demonstrate that Al-Qaeda as a group is responsible for all this that's going on and not small groups of individuals operating on their own."
Given the difficulties the U.S. may face in getting any suspects handed over from Europe, RFE/RL asked Warbrick if Europe is the place to go for terrorists on the run.
"Although it looks to the U.S. -- I can perfectly well imagine -- as though [Europe's] some kind of safe haven, it is because of the quite exceptional retention of the death penalty by the U.S. among sort of developed northern countries that this position arises."