A.

Jurisdiction
[Source: United States District Court for the Southern District of Florida, 746
F. Supp. 1506 (1990); footnotes omitted.]

UNITED STATES OF AMERICA, Plaintiff

v.
MANUEL ANTONIO NORIEGA, et al.
OPINION: OMNIBUS ORDER, WILLIAM M. HOEVELER, UNITED
STATES
DISTRICT JUDGE
No. 88-79-CR
June 8, 1990

THIS CAUSE comes before the Court on the several motions of Defendants
General Manuel Antonio Noriega and Lt. Col. Luis Del Cid to dismiss for lack
of jurisdiction the indictment which charges them with various narcotics-
related offenses.

The case at bar presents the Court with a drama of international proportions,
considering the status of the principal defendant and the difficult
circumstances under which he was brought before this Court. The pertinent
facts are as follows:

On February 14, 1988, a federal grand jury sitting in Miami, Florida returned a
twelve-count indictment charging General Manuel Antonio Noriega with
participating in an international conspiracy to import cocaine and materials
used in producing cocaine into and out of the United States. Noriega is alleged
to have exploited his official position as head of the intelligence branch of the
Panamanian National Guard, and then as Commander-in-Chief of the
Panamanian Defense Forces, to receive payoffs in return for assisting and
protecting international drug traffickers [...] Defendant Del Cid, in addition to
being an officer in the Panamanian Defense Forces, was General Noriega’s
personal secretary. He is charged with acting as liaison, courier, and emissary
for Noriega in his transactions with Cartel members and other drug
traffickers.
[...] Subsequent to the indictment, the Court granted General Noriega’s
motion to allow special appearance of counsel, despite the fact that Noriega
was a fugitive and not before the Court at that time. Noriega’s counsel then
moved to dismiss the indictment on the ground that United States laws could
not be applied to a foreign leader whose alleged illegal activities all occurred
outside the territorial bounds of the United States. Counsel further argued that
Noriega was immune from prosecution as a head of state and diplomat, and
that his alleged narcotics offenses constituted acts of state not properly
reviewable by this Court.

Upon hearing arguments of counsel, and after due consideration of the

memoranda filed, the Court denied Defendant’s motion, for reasons fully set
forth below. At that time, the Court noted that this case was fraught with
political overtones, but that it was nonetheless unlikely that General Noriega
would ever be brought to the United States to answer the charges against him.
[...] In the interval between the time the indictment was issued and
Defendants were arrested, relations between the United States and General
Noriega deteriorated considerably. Shortly after charges against Noriega were
brought, the General delivered a widely publicized speech in which he brought
a machete crashing down on a podium while denouncing the United States.
On December 15, 1989, Noriega declared that a “state of war” existed between
Panama and the United States. Tensions between the two countries further
increased the next day, when U.S. military forces in Panama were put on alert
after Panamanian troops shot and killed an American soldier, wounded
another, and beat a Navy couple. Three days later, on December 20, 1989,
President Bush ordered U.S. troops into combat in Panama City on a mission
whose stated goals were to safeguard American lives, restore democracy,
preserve the Panama Canal treaties, and seize General Noriega to face federal
drug charges in the United States. Before U.S. troops were engaged, American
officials arranged a ceremony in which Guillermo Endara was sworn in as
president and recognized by the United States as the legitimate head of the
government of Panama. Endara was reported to have won the Panamanian
presidential election held several months earlier, the results of which were
nullified and disregarded by General Noriega.

Not long after the invasion commenced, Defendant Del Cid, the commander of
about two thousand Panamanian troops located in the Chiriqui Province,
surrendered to American forces. He was then transferred into the custody of
agents from the United States Drug Enforcement Agency, who thereupon
arrested Del Cid for the offenses for which he is under indictment in this
Court. The apprehension of General Noriega was not quite so easy. He
successfully eluded American forces for several days, prompting the United
States government to offer a one million dollar bounty for his capture.
Eventually, the General took sanctuary in the Papal Nunciature in Panama
City, where he apparently hoped to be granted political asylum. Noriega’s
presence in the Papal Nunciature touched off a diplomatic impasse [...] After
an eleven-day standoff, Noriega finally surrendered to American forces,
apparently under pressure from the papal nuncio and influenced by a
threatening crowd of about 15,000 angry Panamanian citizens who had
gathered outside the residence. On January 3, 1990, two weeks after the
invasion began, Noriega walked out of the Papal Nunciature and surrendered
himself to U.S. military officials waiting outside. He was flown by helicopter to
Howard Air Force Base, where he was ushered into a plane bound for Florida
and formally arrested by agents of the Drug Enforcement Agency. [...] As is
evident from the unusual factual background underlying this case, the Court is
presented with several issues of first impression. This is the first time that a
leader or de facto leader of a sovereign nation has been forcibly brought to the
United States to face criminal charges. The fact that General Noriega’s
apprehension occurred in the course of a military action only further
underscores the complexity of the issues involved. In addition to Defendant
Noriega’s motion to dismiss based on lack of jurisdiction over the offense and
sovereign immunity, Defendants Noriega and Del Cid argue that they are
prisoners of war pursuant to the Geneva Convention. This status, Defendants
maintain, deprives the Court of jurisdiction to proceed with the case.
Additionally, Noriega contends that the military action which brought about
his arrest is “shocking to the conscience”, and that due process considerations
require the Court to divest itself of jurisdiction over his person. Noriega also
asserts that the invasion occurred in violation of international law. Finally,
Noriega argues that, even in the absence of constitutional or treaty violations,
the Court should dismiss the indictment pursuant to its supervisory powers so
as to prevent the judicial system from being party to and tainted by the
government’s alleged misconduct in arresting Noriega. [...] The Court
examines each of these issues, in turn, below.

I.    JURISDICTION OVER THE OFFENSE

The first issue confronting the Court is whether the United States may exercise
jurisdiction over Noriega’s alleged criminal activities. [...] In sum, because
Noriega’s conduct in Panama is alleged to have resulted in a direct effect
within the United States, the Court concludes that extraterritorial jurisdiction
is appropriate as a matter of international law. [...] Jurisdiction over
Defendant’s extraterritorial conduct is therefore appropriate both as a matter
of international law and statutory construction.
II.   SOVEREIGN IMMUNITY
The Court next turns to Noriega’s assertion that he is immune from
prosecution based on head of state immunity, the act of state doctrine, and
diplomatic immunity. [...]

III.   DEFENDANTS’ PRISONER OF WAR STATUS

Defendants Noriega and Del Cid contend that they are prisoners of war
(“POW”) within the meaning of the Geneva Convention Relative to the
Treatment of Prisoners of War, (Geneva III), a status, Defendants maintain,
which divests this Court of jurisdiction to proceed with this case. For the
purposes of the motion at bar, the Government does not maintain that
Defendants are not prisoners of war, but rather argues that even were
Defendants POWs, the Geneva Convention would not divest this Court of
jurisdiction. Thus, the Court is not presented with the task of determining
whether or not Defendants are POWs under Geneva III, but proceeds with the
motion at bar as if Defendants were entitled to the full protection afforded by
the Convention. Defendants’ arguments under the Geneva Convention are
grounded in Articles 82, 84, 85, 87, and 99, and 22, each of which is
examined, in turn, below.

Article 82 “A prisoner of war shall be subject to the laws, regulations and

orders in force in the armed forces of the Detaining Power; the Detaining
Power shall be justified in taking judicial or disciplinary measures in respect
of any offense committed by a prisoner of war against such laws,
regulations or orders. However, no proceedings or punishments contrary to
the provisions of this Chapter shall be allowed. If any law, regulation or
order of the Detaining Power shall declare acts committed by a prisoner of
war to be punishable, whereas the same acts would not be punishable if
committed by a member of the forces of the Detaining Power, such acts shall
entail disciplinary punishments only.”

As is evident from its face, Article 82 pertains to disciplinary and penal

procedures against POWs for offenses committed after becoming POWs,
allowing for prosecutions against POWs only for acts which would be
prosecutable against a member of the detaining forces. Thus, Article 82 is
clearly inapplicable to the instant case because Noriega and Del Cid are being
prosecuted not for offenses committed after their capture but for offenses
committed well before they became prisoners of war.
Article 84 “A prisoner of war shall be tried only by a military court, unless
the existing laws of the Detaining Power expressly permit the civil courts to
try a member of the armed forces of the Detaining Power in respect to the
particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of

any kind which does not offer the essential guarantees of independence and
impartiality as generally recognized and, in particular, the procedure of
which does not afford the accused the rights and means of defence provided
for in Article 105.”

Under 18 U.S.C. at 3231, federal district courts have concurrent jurisdiction

with military courts over all violations of the laws of the United States
committed by military personnel. The indictment charges Defendants with
various violations of federal law, including narcotics trafficking [...] These are
allegations of criminal misconduct for which any member of the United States
Armed Forces could be prosecuted. Consequently, the prohibition embodied
in Article 84, paragraph 1 does not divest this Court of jurisdiction. It has not
been argued by Defense Counsel that the district court does not offer the
essential guarantees of independence and impartiality “as generally
recognized... .” Neither do Defendants contend that they will not be afforded
the full measure of rights provided for in Article 105. Those rights include
representation of counsel and prior notification of charges. [...] Indeed,
Defendants will enjoy the benefit of all constitutional guarantees afforded any
person accused of a federal crime.

Article 85 “Prisoners of war prosecuted under the laws of the Detaining

Power for acts committed prior to capture shall retain, even if convicted, the
benefits of the present Convention.”

Rather than supporting Defendants’ overall position pressed under the

Geneva Convention, this Article appears to recognize the right to prosecute
asserted by the Government. The Article refers to “prisoners ... prosecuted
under the laws of the Detaining Power” (i.e., the United States) and for acts
“committed prior to capture.” Further, the benefits of the Convention shall be
afforded the POW “even if convicted.” The indictment charges the Defendants
with violations of the laws of the United States allegedly committed between
December 1982 and March 1986 – well before the military action and
apprehension by surrender.
Article 87 “Prisoners of war may not be sentenced by the military authorities
and courts of the Detaining Power to any penalties except those provided for
in respect of members of the armed forces of said Power who have
committed the same acts... .”

Article 82 reflects the principle of “equivalency” embodied in other Articles of

the Convention. That principle provides that, in general, prisoners of war may
be prosecuted for criminal violations only if a member of the armed forces of
the detaining country would be subject to like prosecution for the same
conduct. The specific application of the ‘equivalency principle’ in Article 87
prevents prisoners of war from being subject to penalties not imposed on the
detaining power’s soldiers for the same acts. Assuming Defendants are
convicted of one or more of the crimes with which they are charged, they face
criminal sentences no greater nor less than would apply to an American
soldier convicted of the same crime. The instant prosecution is therefore
consistent with the provisions of Article 87.

Article 99 “No prisoner of war may be tried or sentenced for an act which is
not forbidden by the law of the Detaining Power or by international law, in
force at time the said act was committed. No moral or physical coercion may
be exerted on a prisoner of war in order to induce him to admit himself
guilty of the act of which he is accused. No prisoner of war may be convicted
without having had an opportunity to present his defence and the assistance
of a qualified advocate or counsel.”

Article 99 proscribes the prosecution of prisoners of war under ex post facto

laws, and prohibits coerced confessions. This Article further codifies other
fundamental rights secured to any criminal defendant under the Constitution
of the United States of America. All accused defendants, “prisoner of war”
status notwithstanding, are guaranteed these basic protections.

The Defense has not contended, and of course cannot contend, that the
narcotics offenses with which Defendants are charged were permitted under
U.S. law at the time the acts were allegedly committed. Neither has there been
any assertion that Defendants were coerced into admitting guilt or that any
effort was made in that direction. Defendants are represented by competent
counsel and are being afforded all rights to which they are entitled under the
law. Article 99 thus does not operate to divest the Court of jurisdiction.
Article 22 “Prisoners of war may be interned only in premises located on
land and affording every guarantee of hygiene and healthfulness. Except in
particular cases which are justified by the interest of the prisoners
themselves, they shall not be interned in penitentiaries. [...] The Detaining
Power shall assemble prisoners of war in camps or camp compounds
according to their nationality, language and customs, provided that such
prisoners shall not be separated from prisoners of war belonging to the
armed forces with which they were serving at the time of their capture,
except with their consent.”

Defendants maintain that Article 22 deprives the Court of personal

jurisdiction by requiring that they be returned to Panama and detained along
with other Panamanian prisoners of the armed conflict. The Court perceives
no such requirement in Article 22, which relates to the general conditions, and
not the location, of internment. The provision upon which Defendants rely
states that prisoners shall not be interned with persons of different
nationality, language, and customs, and “shall not be separated from prisoners
of war belonging to the armed forces with which they were serving at the time
of their capture.” [...] According to Defendants’ interpretation, Article 22
would require that all prisoners of war from the same armed forces be
interned together in a single prisoner of war facility. Yet this clearly cannot be
Article 22’s intent, since internment under those conditions would likely
violate its overall concern for healthy and comfortable conditions of
internment. Indeed, Defendant Noriega undercuts his own argument by
suggesting that he be detained in an agreeable third country, an action which
would certainly separate him from members of Panama’s armed forces being
detained in Panama. The more obvious interpretation of the provision that it
prevents prisoners belonging to the armed forces of one nation from being
forcibly interned with prisoners from the armed forces of another nation. Such
is not the case here.

Moreover, nothing in Article 22 or elsewhere prohibits the detaining power

from temporarily transferring a prisoner to a facility other than an internment
camp in connection with legal proceedings. Because the Convention
contemplates that prisoners of war may be prosecuted in civilian courts, it
necessarily permits them to be transferred to a location that is consistent with
the orderly conduct of those proceedings. It is inconceivable that the
Convention would permit criminal prosecutions of prisoners of war and yet
require that they be confined to internment camps thousands of miles from
the courthouse and, quite possibly, defense counsel.
The remaining provisions of the Convention cited by Defendant Noriega lend
little, if any, support to his argument regarding jurisdiction. Article 12 of the
Convention, which Noriega contends mandates his removal to a third country,
in fact limits the ability of the United States to effect such a transfer: 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 custody. [...]

Finally, Noriega cites Article 118 of the Convention, which requires prisoners
of war to be released and repatriated “without delay after the cessation of
active hostilities.” [...] That provision is, however, limited by Article 119, which
provides that prisoners of war “against whom criminal proceedings for an
indictable offense are pending may be detained until the end of such
proceedings, and, if necessary, until the completion of the punishment.” [...]
Since criminal proceedings are pending against Noriega, Article 119 permits
his detainment in the United States notwithstanding the cessation of
hostilities.

Extradition Treaty Between Panama and the United States

Defendants argue that Geneva III operates to divest this Court of jurisdiction
over Defendants because they could not have been extradited from Panama to
the United States for the crimes with which they are charged. The genesis of
Defendants argument is not in the language of the Convention, but rather is
found in the Red Cross Commentary on Geneva III (the “Commentary”)
which, in discussing Article 85, states that: In general, acts not connected with
the state of war may give rise to penal proceedings only if they are punishable
under the laws of both the Detaining Power and the Power of origin. As a
parallel, reference may be had to extradition agreements or to the customary
rules concerning extradition. An act in respect of which there could be no
extradition should not be punished by the Detaining Power. One may also
examine whether prosecution would have been possible in the country of
origin. If the answer is in the negative, the prisoner of war should not be tried
by the Detaining Power. III International Committee of the Red Cross,
Commentary on the Geneva Convention Relative to the Treatment of
Prisoners of War, 419, J. Pictet (Ed. 1960).
First, it must be underscored that the Red Cross Commentary is merely a
discussion suggesting what the author believes should or should not be done
as a matter of policy; the Commentary is not part of the treaty. Nowhere does
the text of Geneva III purport to limit the jurisdiction of domestic courts to
extraditable offenses. Defendants would infer this limitation from
Commentary on the Geneva Convention. The Supreme Court has, however,
held that in order for an international treaty to divest domestic courts of
jurisdiction, the treaty must expressly provide for such limitation. [...]

Moreover, the Commentary itself does not support Defendants’ position. The
Commentary suggests that extradition treaties in existence may serve as a
guiding “reference” in determining what acts should be punishable by the
Detaining Party. Defendants entire argument is premised on the observation
that the act of narcotics trafficking is not one of the thirteen crimes listed in
the extradition treaty between Panama and the United States. Defendants
overlook, however, the fact that the narcotics offenses with which Defendants
are charged not only constitute the kinds of offenses which could be the
subject of extradition under customary international law, but are specifically
contemplated by subsequent treaties between the United States and Panama.
[...] As is evident from its text and construed as a whole, the essential purpose
of the Geneva Convention Relative to the Treatment of Prisoners of War is to
protect prisoners of war from prosecution for conduct which is customary in
armed conflict. The Geneva Convention was never intended, and should not be
construed, to provide immunity against prosecution for common crimes
committed against the detaining power before the outbreak of military
hostilities. It therefore has no application to the prosecution of Defendants for
alleged violations of this country’s narcotics laws. Indeed, the Court has not
been presented with any provision of the Convention which suggests or directs
that this proceeding is one which, in deference to the Convention, should be
terminated.

The humanitarian character of the Geneva Convention cannot be

overemphasized, and weighs heavily against Defendants’ applications to the
Court. The Third Geneva Convention was enacted for the express purpose of
protecting prisoners of war from abuse after capture by a detaining power. The
essential principle of tendance libérale, pervasive throughout the Convention,
promotes lenient treatment of prisoners of war on the basis that, not being a
national of the detaining power, they are not bound to it by any duty of
allegiance. Hence, the “honorable motives” which may have prompted his
offending act must be recognized. That such motives are consistent with the
conduct and laws of war is implicit in the principle. Here, the Government
seeks to prosecute Defendants for alleged narcotics trafficking and other drug-
related offenses – activities which have no bearing on the conduct of battle or
the defense of country. The fact that such alleged conduct is by nature wholly
devoid of “honorable motives” renders tendance libérale inapposite to the case
at bar.

IV.       ILLEGAL ARREST

Noriega also moves to dismiss the indictment on the ground that the manner
in which he was brought before this Court – as a result of the United States
government’s invasion of Panama – is “shocking to the conscience and in
violation of the laws and norms of humanity.” He argues that the Court should
therefore divest itself of jurisdiction over his person. In support of this claim,
Noriega alleges that the invasion of Panama violated the Due Process Clause of
the Fifth Amendment of the United States Constitution, as well as
international law. Alternatively, he argues that even in the absence of
constitutional or treaty violations, this Court should nevertheless exercise its
supervisory authority and dismiss the indictment so as to prevent the Court
from becoming a party to the government’s alleged misconduct in bringing
Noriega to trial. [...]

B. Violations of International Law

In addition to his due process claim, Noriega asserts that the invasion of
Panama violated international treaties and principles of customary
international law – specifically, Article 2(4) of the United Nations Charter,
Article 20[17] of the Organization of American States Charter, Articles 23(b)
and 25 of the Hague Convention, Article 3 of Geneva Convention I, and Article
6 of the Nuremberg Charter.

Initially, it is important to note that individuals lack standing to assert

violations of international treaties in the absence of a protest from the
offended government. [...] [V]iolations of international law alone do not
deprive a court of jurisdiction over a defendant in the absence of specific
treaty language to that effect. [...] To defeat the Court’s personal jurisdiction,
Noriega must therefore establish that the treaty in question is self-executing in
the sense that it confers individual rights upon citizens of the signatory
nations, and that it by its terms expresses “a self-imposed limitation on the
jurisdiction of the United States and hence on its courts.” [...] No such rights
are created in the sections of the U.N. Charter, O.A.S. Charter, and Hague
Convention cited by Noriega. Rather, those provisions set forth broad general
principles governing the conduct of nations toward each other and do not by
their terms speak to individual or private rights. [...] It can perhaps be argued
that reliance on the above body of law, under the unusual circumstances of
this case, is a form of legal bootstrapping. Noriega, it can be asserted, is the
government of Panama or at least its de facto head of state, and as such he is
the appropriate person to protest alleged treaty violations; to permit removal
of him and his associates from power and reject his complaint because a new
and friendly government is installed, he can further urge, turns the doctrine of
sovereign standing on its head. This argument is not without force, yet there
are more persuasive answers in response. First, as stated earlier, the United
States has consistently refused to recognize the Noriega regime as Panama’s
legitimate government, a fact which considerably undermines Noriega’s
position. Second, Noriega nullified the results of the Panamanian presidential
election held shortly before the alleged treaty violations occurred. The
suggestion that his removal from power somehow robs the true government of
the opportunity to object under the applicable treaties is therefore weak
indeed. Finally, there is no provision or suggestion in the treaties cited which
would permit the Court to ignore the absence of complaint or demand from
the present duly constituted government of Panama. The current government
of the Republic of Panama led by Guillermo Endara is therefore the
appropriate entity to object to treaty violations. In light of Noriega’s lack of
standing to object, this Court therefore does not reach the question of whether
these treaties were violated by the United States military action in Panama.

Article 3 of Geneva Convention I, which provides for the humane treatment of

civilians and other non-participants of war, applies to armed conflicts “not of
an international character,” i.e., internal or civil wars of a purely domestic
nature. [...] Accordingly, Article 3 does not apply to the United States’ military
invasion of Panama.

Finally, Defendant cites Article 6 of the Nuremberg Charter, which proscribes

war crimes, crimes against peace, and crimes against humanity. The
Nuremberg Charter sets forth the procedures by which the Nuremberg
Tribunal, established by the Allied powers after the Second World War,
conducted the trials and punishment of major war criminals of the European
Axis. The Government maintains that the principles laid down at Nuremberg
were developed solely for the prosecution of World War II war criminals, and
have no application to the conduct of U.S. military forces in Panama. The
Court cannot agree. As Justice Robert H. Jackson, the United States Chief of
Counsel at Nuremberg, stated: “If certain acts in violation of treaties are
crimes, they are crimes whether the United States does them or whether
Germany does them, and we are not prepared to lay down a rule of criminal
conduct against others which we would not be willing to have invoked against
us.” Nonetheless, Defendant fails to establish how the Nuremberg Charter or
its possible violation, assuming any, has any application to the instant
prosecution. [...] Defendant has not cited any language in the Nuremberg
Charter, nor in any of the above treaties, which limits the authority of the
United States to arrest foreign nationals or to assume jurisdiction over their
crimes. The reason is apparent; the Nuremberg Charter, as is the case with the
other treaties, is addressed to the conduct of war and international aggression.
It has no effect on the ability of sovereign states to enforce their laws, and thus
has no application to the prosecution of Defendant for alleged narcotics
violations. “The violation of international law, if any, may be redressed by
other remedies, and does not depend upon the granting of what amounts to an
effective immunity from criminal prosecution to safeguard individuals against
police or armed forces misconduct.” [...] The Court therefore refrains from
reaching the merits of Defendant’s claim under the Nuremberg Charter.

C. Supervisory Authority

Noriega does not, and legally cannot, allege that President Bush exceeded his
powers as Commander-in-Chief in ordering the invasion of Panama. Rather,
he asks this Court to find that the deaths of innocent civilians and destruction
of private property is “shocking to the conscience and in violation of the laws
and norms of humanity.” At bottom, then, Noriega’s complaint is a challenge
to the very morality of war itself. This is a political question in its most
paradigmatic and pristine form. It raises the specter of judicial management
and control of foreign policy and challenges in a most sweeping fashion the
wisdom, propriety, and morality of sending armed forces into combat – a
decision which is constitutionally committed to the executive and legislative
branches and hence beyond judicial review. [...]

Defense counsel condemn the military action and the “atrocities” which
followed and, having established this argumentative premise, then suggest
that such conduct should not be sanctioned by the Court nor should the fruits,
i.e., the arrests, of such conduct be permitted. It is further urged that to permit
this case to proceed is to give judicial approval to the military action defense
counsel condemn. [...]
Finally, it is worth noting that even if we assume the Court has any authority
to declare the invasion of Panama shocking to the conscience, its use of
supervisory powers in this context would have no application to the instant
prosecution for the reasons stated. Since the Court would in effect be
condemning a military invasion rather than a law enforcement effort, any
‘remedy’ would necessarily be directed at the consequences and effects of
armed conflict rather than at the prosecution of Defendant Noriega for alleged
narcotics violations. The Defendant’s assumption that judicial condemnation
of the invasion must result in dismissal of drug charges pending against him is
therefore misplaced.

In view of the above findings and observations, it is the Order of this Court
that the several motions presented by Defendants relating to this Court’s
jurisdiction as well as that suggesting dismissal under supervisory authority be
and each is DENIED. [...]

B. Place of Detention
[Source: United States District Court for the Southern District of Florida,
808 F. Supp. 791 (1992); footnotes partially omitted.]

UNITED STATES OF AMERICA, Plaintiff,

v.
MANUEL ANTONIO NORIEGA, Defendant,
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA

OPINION BY: WILLIAM M. HOEVELER:

RECOMMENDATION
December 8, 1992

THIS CAUSE comes before the Court again with another unique question, this
time incident to sentencing. Ordinarily, the Court can do no more than
recommend the place and/or institutional level of confinement for convicted
defendants. At sentencing, the question of General Noriega’s prisoner of war
status as that status relates to confinement was raised, and the parties were
afforded time to submit memoranda, which they did. [...] Defendant contends
that the Geneva Convention Relative to the Treatment of Prisoners of War
(“Geneva III”) [...] is applicable law that the Court must recognize. Defendant
urges further that whether or not the U.S. government classifies General
Noriega as a prisoner of war (“POW”), he is one, in fact, and must be afforded
all the benefits of that status. Before the Court are several questions, but the
ultimate one appears to be whether or not the Geneva Convention prohibits
incarceration in a federal penitentiary for a prisoner of war convicted of
common crimes against the United States. To resolve this issue the Court must
consider three interrelated questions: 1) what authority, if any, does the Court
have in this matter; 2) is Geneva III applicable to this case; 3) if so, which of
its provisions apply to General Noriega’s confinement and what do they
require?

I.    AUTHORITY OF THE COURT

[...] [T]he Court has concluded that it lacks the authority to order the Bureau
of Prisons (“BOP”) to place General Noriega in any particular facility.
However, as with all sentencing proceedings, it is clearly the right – and
perhaps the duty – of this Court to make a recommendation that the BOP
place Noriega in a facility or type of facility the Court finds most appropriate
given the circumstances of the case. The Court takes this responsibility quite
seriously, especially in the novel situation presented here where the defendant
is both a convicted felon and a prisoner of war. This dual status implicates
important and previously unaddressed questions of international law that the
Court must explore if it hopes to make a fair and reasoned recommendation
on the type of facility in which the General should serve his sentence.

II.   APPLICABILITY OF GENEVA III

Before examining in detail the various provisions of Geneva III, the Court
must address whether the treaty has any application to the case at bar. Geneva
III is an international treaty designed to protect prisoners of war from
inhumane treatment at the hands of their captors. Regardless of whether it is
legally enforceable under the present circumstances, the treaty is undoubtedly
a valid international agreement and “the law of the land” in the United States.
As such, Geneva III applies to any POW captured and detained by the United
States, and the U.S. government has – at minimum – an international
obligation to uphold the treaty. In addition, this Court believes Geneva III is
self-executing and provides General Noriega with a right of action in a U.S.
court for violation of its provisions.

A. Noriega’s Prisoner of War Status

The government has thus far obviated the need for a formal determination of
General Noriega’s status. On a number of occasions as the case developed,
counsel for the government advised that General Noriega was being and would
continue to be afforded all of the benefits of the Geneva Convention. At no
time was it agreed that he was, in fact, a prisoner of war. The government’s
position provides no assurances that the government will not at some point in
the future decide that Noriega is not a POW, and therefore not entitled to the
protections of Geneva III. This would seem to be just the type of situation
Geneva III was designed to protect against. Because of the issues presented in
connection with the General’s further confinement and treatment, it seems
appropriate – even necessary – to address the issue of Defendant’s status.
Articles 2, 4, and 5 of Geneva III establish the standard for determining who is
a POW. Must this determination await some kind of formal complaint by
Defendant or a lawsuit presented on his behalf? In view of the issues presently
raised by Defendant, the Court thinks not.

Article 2

The present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party [...]. [...]

The Convention applies to an incredibly broad spectrum of events. The

government has characterized the deployment of U.S. Armed Forces to
Panama on December 20, 1989 as the “hostilities” in Panama. Letter from the
State Dep’t to the Attorney General of the United States, Jan. 31, 1990 at 1.
However the government wishes to label it, what occurred in late 1989-early
1990 was clearly an “armed conflict” within the meaning of Article 2. Armed
troops intervened in a conflict between two parties to the treaty. While the text
of Article 2 itself does not define “armed conflict,” the Red Cross Commentary
to the Geneva Conventions of 1949 [footnote 6 reads: 3 International
Committee of the Red Cross, Commentary on the Geneva Conventions, (J.
Pictet, ed., 1960) (hereinafter “Commentary”). [...] For all of its efforts to
downplay the persuasive value of the Commentary when invoked by Noriega,
the government itself has cited to the Commentary when favorable to its
position.] states that: Any difference arising between two states and leading to
the intervention of members of the armed forces is an armed conflict within
the meaning of Article 2 [...]. It makes no difference how long the conflict
lasts, how much slaughter takes place, or how numerous are the participating
forces; it suffices for the armed forces of one Power to have captured
adversaries falling within the scope of Article 4. Commentary at 2 [...]. In
addition, the government has professed a policy of liberally interpreting
Article 2: The United States is a firm supporter of the four Geneva
Conventions of 1949 [...]. As a nation, we have a strong desire to promote
respect for the laws of armed conflict and to secure maximum legal protection
for captured members of the U.S. Armed Forces. Consequently, the United
States has a policy of applying the Geneva Conventions of 1949 whenever
armed hostilities occur with regular foreign armed forces, even if arguments
could be made that the threshold standards for the applicability of the
Conventions contained in common Article 2 are not met. In this respect, we
share the views of the International Committee of the Red Cross that Article 2
of the Conventions should be construed liberally. Letter from the State Dept.
to the Attorney General of the United States, Jan. 31, 1990 at 1-2.

Article 4 A.

Prisoners of war, in the sense of the present Convention, are persons

belonging to one of the following categories, who have fallen into the power of
the enemy: (1) Members of the armed forces of a Party to the conflict ...

Geneva III’s definition of a POW is easily broad enough to encompass General

Noriega. It is not disputed that he was the head of the PDF, and that he has
“fallen into the power of the enemy.” Subsection 3 of Article 4 states that
captured military personnel are POWs even if they “profess allegiance to a
government or an authority not recognized by the Detaining Power.”

Article 5

The present Convention shall apply to the persons referred to in Article 4 from
the time they fall into the power of the enemy and until their final release and
repatriation.

Should any doubt arise as to whether persons, having committed a belligerent

act and having fallen into the hands of the enemy, belong to any of the
categories enumerated in Article 4, such persons shall enjoy the protection of
the present Convention until such time as their status has been determined by
a competent tribunal.

An important issue raised by the last two words of Article 5 is, of course, what
is a “competent tribunal”? Counsel for the government has suggested that,
while he does not know what a competent tribunal as called for in Article 5 is,
perhaps the answer lies in Article 8, which states in relevant part that “the
present Convention shall be applied with the cooperation and under the
scrutiny of the Protecting Powers [footnote 7 reads: Protecting Powers are
neutral third parties whose job it is to ensure that a POW’s rights under the
Convention are respected by the Detaining Power, especially in the absence of
appropriate action by the POW’s Power of Origin (his home state)] whose duty
it is to safeguard the interests of the Parties to the conflict.” Nowhere in this
language is there any indication that one of the rights or duties of the
Protecting Powers is to make POW status determinations. Rather, it seems
clear that their purpose is to facilitate and monitor appropriate treatment of
POWs. During the Geneva III drafting process, the phrase “military tribunal”
was considered in place of “competent tribunal.” The drafters rejected this
suggestion, however, feeling that “to bring a person before a military tribunal
might have more serious consequences than a decision to deprive him of the
benefits afforded by the Convention.” Commentary at 77 (citing II-B Final
Record of the Diplomatic Conference of Geneva of 1949, at 270). Clearly, there
was concern on the part of the drafters that whatever entity was to make
determinations about POW status would be fair, competent, and impartial.

The Court acknowledges that conducting foreign policy is generally the

province of the Executive branch. Whether or not the determination of an
individual’s status as a prisoner of war is a political question is a sub-issue
which probably calls for an equivocal answer. While the Court believes that the
question of prisoner of war status properly presented can be decided by the
Court, this conclusion, in the present setting does beg the question of whether
the issue is “properly presented” here. Passing for the moment the facts that
an appeal has been taken and that to this point, at least, no violation of Geneva
III is evident, the Court feels and so determines it has the authority to decide
the status issue presented. This is not to say that the Executive branch cannot
determine this issue under other circumstances. The Court does suggest that
where the Court is properly presented with the problem it is, under the law, a
“competent tribunal” which can decide the issue. With that in mind, the Court
finds that General Noriega is in fact a prisoner of war as defined by Geneva III,
and as such must be afforded the protections established by the treaty,
regardless of the type of facility in which the Bureau of Prisons chooses to
incarcerate him.

B. “Law of the Land”

The Geneva Convention applies to this case because it has been incorporated
into the domestic law of the United States. A treaty becomes the “supreme law
of the land” upon ratification by the United States Senate. U.S. Const. art. VI,
cl. 2. Geneva III was ratified by a unanimous Senate vote on July 6, 1955. [...]
The government acknowledges that Geneva III is “the law of the land,” but
questions whether that law is binding and enforceable in U.S. courts.

C. Enforcement

If the BOP fails to treat Noriega according to the standard established for
prisoners of war in Geneva III, what can he do to force the government to
comply with the mandates of the treaty?

1.    Article 78 Right of Protest

There are potentially two enforcement avenues available to a POW who feels
his rights under the Geneva Convention have been violated. The first is the
right to complain about the conditions of confinement to the military
authorities of the Detaining Power or to representatives of the Protecting
Power or humanitarian organizations. This right is established in Article 78 of
Geneva III, and cannot be renounced by the POW or revoked or unnecessarily
limited by the Detaining Power. See Articles 5, 7, 78, 85.

Article 78

Prisoners of war shall have the right to make known to the military authorities
in whose power they are, their requests regarding the conditions of captivity to
which they are subjected.

They shall also have the unrestricted right to apply to the representatives of
the Protesting [sic] Powers either through their prisoners’ representative or, if
they consider it necessary, direct, in order to draw their attention to any points
on which they may have complaints to make regarding their conditions of
captivity.

These requests and complaints shall not be limited nor considered to be a part
of the correspondence quota referred to in Article 71. They must be
transmitted immediately. Even if they are recognized to be unfounded, they
may not give rise to any punishment.

Prisoners’ representatives may send periodic reports on the situation in the

camps and the needs of the prisoners of war to the representatives of the
Protecting Powers.

In theory, by calling attention to violations of the Convention the prisoner of

war will embarrass the government into rectifying any unacceptable
conditions to which he is being subjected. However, the obvious weakness of
this complaint procedure is that it has no real teeth. Incentive for the
government to comply with the treaty stems from its eagerness to be looked
upon favorably by others, and, it is hoped, from its desire simply to do what is
proper under the circumstances. However, if we truly believe in the goals of
the Convention, a more substantial and dependable method must also be
available, if necessary, to protect the POW’s rights. Recourse to the courts of
the Detaining Power seems an appropriate measure, where available.

2.    Legal Action a in U.S. Court

A second method of enforcing the Convention would be a legal action in

federal court. The government has maintained that if General Noriega feels
that the conditions in any facility in which BOP imprisons him do not meet the
Geneva III requirements, he can file a habeas corpus action [...]. However, the
government also argues that Geneva III is not self-executing, and thus does
not provide an individual the right to bring an action in a U.S. court.
Considered together, these two arguments lead to the conclusion that what the
government is offering General Noriega is a hollow right. According to the
government’s position, Noriega could file a [...] claim, but any attempt to base
it on violations of the Geneva Convention would be rejected because the
General would not have standing to invoke the treaty.

The doctrine of self-execution has been called “one of the most confounding”
issues in treaty law. [...] It is complex and not particularly well understood. A
thorough discussion of the doctrine and its application to Geneva III would be
both premature and unworkable in the context of this opinion. However, the
Court wishes to dispel the notion that it already decided that Geneva III is not
self-executing, and would add that given the opportunity to address this issue
in the context of a live controversy, the Court would almost certainly hold that
the majority of provisions of Geneva III are, in fact, self-executing. [footnote 8
reads: “Some provisions of an international agreement may be self-executing
and others non-self-executing.” Restatement (Third) Foreign Relations Law
of the United States at 111 cmt. h (1986). Article 129 of Geneva III is clearly
non-self-executing, as it calls for implementing legislation; however, the
remainder of the provisions do not expressly or impliedly require any action
by Congress, other than ratification by the Senate, to take effect. Article 129
states that “the High Contracting Parties undertake to enact any legislation
necessary to provide effective penal sanctions for persons committing, or
ordering to be committed, any of the grave breaches of the present
Convention.” The “grave breaches” of the Convention are defined in Article
130, and are clearly not relevant to the issue at bar.]

Essentially, a self-executing treaty is one that becomes domestic law of the

signatory nation without implementing legislation, and provides a private
right of action to individuals alleging a breach of its provisions. [...] Thus, even
though Geneva III is undoubtedly “the law of the land,” is not necessarily
binding on domestic courts if the treaty requires implementing legislation or
does not provide an individual right of action. The most difficult situations
arise in relation to treaties like Geneva III which have no U.S. implementing
legislation, leaving it for the courts to decide whether the treaty is the type that
may function without it.

While the courts have generally presumed treaties to be non-self-executing in

the absence of express language to the contrary, the Restatement would find
treaties to be self-executing unless the agreement itself explicitly requires
special implementing legislation, the Senate requires implementing legislation
as a condition to ratification, or implementing legislation is constitutionally
required. Restatement (Third) of Foreign Relations Law of the United
States at 111(4) (1986). Most of the scholarly commentators agree, and make a
compelling argument for finding treaties designed to protect individual rights,
like Geneva III, to be self-executing. Whether Geneva III is self-executing is a
question that has never been squarely confronted by any U.S. court in a case
factually similar to this one. [...]
In the case of Geneva III, however, it is inconsistent with both the language
and spirit of the treaty and with our professed support of its purpose to find
that the rights established therein cannot be enforced by the individual POW
in a court of law. After all, the ultimate goal of Geneva III is to ensure humane
treatment of POWs – not to create some amorphous, unenforceable code of
honor among the signatory nations. “It must not be forgotten that the
Conventions have been drawn up first and foremost to protect individuals, and
not to serve State interests.” Commentary at 23.

The Court can envision numerous situations in which the Article 78 right of
protest may not adequately protect a POW who is not being afforded all of the
applicable safeguards of Geneva III. If in fact the United States holds Geneva
III in the high regard that it claims, it must ensure that its provisions are
enforceable by the POW entitled to its protections. Were this Court in a
position to decide the matter, it would almost certainly find that Geneva III is
self-executing and that General Noriega could invoke its provisions in a
federal court action challenging the conditions of his confinement. Even if
Geneva III is not self-executing, though, the United States is still obligated to
honor its international commitment.

III.   CONTROLLING PROVISIONS OF GENEVA III

The Court’s final task is to determine which provisions of Geneva III are
relevant to an individual who is both a prisoner of war and a convicted felon.
While these characteristics are not mutually exclusive, the combination of the
two in one person creates a novel and somewhat complicated situation with
respect to the application of Geneva III.

The essential dispute between Noriega and the government is whether to rely
on Articles 21 and 22 or on Article 108 in determining where to place the
General. The defense argues that Articles 21 and 22, which explicitly prohibit
placing POWs in penitentiaries, apply to General Noriega. The government
contends that Article 108 controls, and allows the BOP to incarcerate a POW
serving a criminal sentence anywhere U.S. military personnel convicted of
similar offenses could be confined, including penitentiaries.

Some concern has been expressed about the potential inconsistency between
these provisions. However, a careful reading of the various Articles in their
proper context proves that no inconsistency exists. Simply stated, Articles 21
and 22 do not apply to POWs convicted of common crimes against the
Detaining Power. The Convention clearly sets POWs convicted of crimes apart
from other prisoners of war, making special provision for them in Articles 82-
108 on “penal and disciplinary sanctions.”

A. Articles 21 and 22

Article 21 [para. 1:]

The Detaining Power may subject prisoners of war to internment. It may

impose on them the obligation of not leaving, beyond certain limits, the camp
where they are interned, or if the said camp is fenced in, of not going outside
its perimeter. Subject to the provisions of the present Convention relative to
penal and disciplinary sanctions, prisoners of war may not be held in close
confinement except where necessary to safeguard their health and then only
during the continuation of the circumstances which make such confinement
necessary. [...]

Article 22 [para. 1:]

Prisoners of war may be interned only in premises located on land and

affording every guarantee of hygiene and healthfulness. Except in particular
cases which are justified by the interest of the prisoners themselves, they shall
not be interned in penitentiaries. [...]

Articles 21 and 22 appear at the beginning of Chapter I – “General

Observations” of Section II – “Internment of Prisoners of War.” This chapter
of Geneva III deals with the internment of POWs who have not been convicted
of crimes, and is thus inapplicable to General Noriega. Defendant’s reliance on
these Articles is misplaced; if anything, they make clear that POWs convicted
of crimes are subject to a different set of rules than other prisoners of war.
Article 22’s general prohibition against internment of POWs in penitentiaries
is limited by Article 21’s acknowledgement that all general requirements
regarding the treatment of POWs are “subject to the provisions of the present
Convention relative to penal and disciplinary sanctions.” This reference to
Articles 82-108 shows that the Articles in Section II, Chapter I do not apply to
POWs serving judicial sentences.
Further support for this argument is the use of the term “internment”
throughout Section II, Chapter I, as opposed to the terms “detention,”
“confinement,” or “imprisonment” used in the penal sanctions Articles.
The Commentary elaborates on this point: The concept of internment should
not be confused with that of detention. Internment involves the obligation not
to leave the town, village, or piece of land, whether or not fenced in, on which
the camp installations are situated, but it does not necessarily mean that a
prisoner of war may be confined to a cell or room. Such confinement may only
be imposed in execution of penal or disciplinary sanctions, for which express
provision is made in Section VI, Chapter III. Commentary at 178. Thus, Article
22 prohibits internment – but not imprisonment – of POWs in penitentiaries.

For these reasons, it is the opinion of this Court that Articles 21 and 22 do not
apply to General Noriega.

B. Article 108

The government has argued that the Geneva Convention “explicitly and
unambiguously” authorizes the BOP to incarcerate Noriega in a penitentiary,
so long as he is not treated more harshly than would be a member of the U.S.
armed forces convicted of a similar offense.

Pursuant to 18 U.S.C. at 3231, federal district courts have concurrent

jurisdiction with military courts over all violations of the laws of the United
States committed by military personnel. [...] U.S.C. at 814 and 32 CFR at
503.2(a) instruct the military authorities to deliver the alleged offender to the
civil authorities for trial just like any other individual accused of a crime. Once
that individual is convicted and sentenced by a civil court, he or she is also
incarcerated in a civil facility, including a federal penitentiary, just like any
other convicted criminal.

Paragraph one of Article 1108 [sic] reads:

Sentences announced on prisoners of war after a conviction has become duly

enforceable, shall be served in the same establishments and under the same
conditions as in the case of members of the armed forces of the Detaining
Power. These conditions shall in all cases conform to the requirements of
health and humanity.
Pursuant, then, to paragraph one it appears that General Noriega could
technically be incarcerated in a federal penitentiary without violating the
Geneva Convention. However, this should not be the end of the inquiry. The
real issue is whether federal penitentiaries in general or any particular federal
penitentiary can afford a prisoner of war the various protections due him
under the Geneva Convention. Article 108 requires that the conditions in any
facility in which a POW serves his sentence “shall in all cases conform to the
requirements of health and humanity.” Interpreting the language of these
provisions is not always easy. The Commentary to Article 108 says reference
should be made to Articles 25 and 29, which lay down minimum standards of
accommodation for POWs. Commentary at 502.

In addition, Article 108 dictates that the POW must be allowed to “receive and
despatch [sic – British spelling] correspondence, to receive at least one relief
parcel monthly, to take regular exercise in the open air, to have the medical
care required by [his] state of health, and the spiritual assistance [he] may
desire.” Many of these terms are vague. For example, what is “regular”
exercise? Reasonable people may differ on what these provisions require.
However, given the United States’ asserted commitment to protecting POWs
and promoting respect for the laws of armed conflict through liberal
interpretation of the Geneva Conventions, vague or ambiguous terms should
always be construed in the light most favorable to the prisoner of war.

C. Other Applicable Articles

Paragraph three of Article 108 states:

In any case, prisoners of war sentenced to a penalty depriving them of their

liberty shall retain the benefit of the provisions of Articles 78 and 126 of the
present Convention. ... Penalties to which they may be subjected shall be in
accordance with the provisions of Article 87, third paragraph. [...] Again, some
of these terms are vague, but because of the U.S. commitment to construing
the Geneva Conventions liberally, and because it is imperative that the United
States set a good example in its treatment of POWs, ambiguous terms must be
construed in the light most favorable to the POW.

Article 126 creates an almost unrestricted grant of authority for

representatives of the Protecting Power and international humanitarian
organizations to supervise the treatment of POWs wherever and in whatever
type of facility they may be held.

The government argues that Article 108’s reference to Articles 78, 87, and 126
is an express limitation on Noriega’s rights – that these are the only Articles
that apply to POWs incarcerated for common crimes. Defendant counters that
108 is just a floor, so while POWs may not be treated worse than U.S. soldiers
convicted of similar crimes, frequently they must be treated better. Noriega
asserts that Article 108 must be read in conjunction with Article 85 which
states that “prisoners of war prosecuted under the laws of the Detaining Power
for acts committed prior to capture shall retain, even if convicted, the benefits
of the present Convention” [...]

The Commentary supports Noriega’s position that he continues to be entitled

to the Convention’s general protections: The Convention affords important
safeguards to prisoners of war confined following a judicial sentence. Some of
these safeguards result from general provisions applicable to all the conditions
relating to internment, such as Article 13 (humane treatment), Article 14
(respect for the person of prisoners [...]), Article 16 (equality of treatment).
Other provisions refer expressly to the execution of penalties and specifically
prohibit cruelty, any attack on a prisoner’s honour (Article 87), and
discriminatory treatment (Article 88)... . Confinement does not involve any
suppression of the principal safeguards afforded to prisoners of war by the
present Convention, and the number of provisions rendered inapplicable by
the fact of [...] confinement is therefore small... . In fact, these articles [78, 87,
126] are among the provisions which are not rendered inapplicable by
confinement. Because of their greater importance, however, [...] special
reference was made to them. Commentary at 501-03 (emphasis added). It
thus appears that a convicted POW is entitled to the basic protections of
Geneva III for as long as he remains in the custody of the Detaining Power.
Throughout the Commentary to Article 108, reference is made to Articles
other than the three specifically named in the text. Commentary at 500-08.
The logical conclusion is that judicial confinement serves to abrogate only
those protections fundamentally inconsistent with incarceration.

This Court finds that, at a minimum, all of the Articles contained in Section I,
General Provisions, should apply to General Noriega, as well as any provisions
relating to health. By their own terms, Articles 82-88 (the General Provisions
section of the Penal and Disciplinary Sanctions chapter) and 99-108 (Judicial
Proceedings subsection) apply.
In addition, the Court would once again note that the stated U.S. Policy is to
err to the benefit of the POW. In order to set the proper example and avoid
diminishing the trust and respect of other nations, the U.S. government must
honor its policy by placing General Noriega in a facility that can provide the
full panoply of protections to which he is entitled under the Convention.

IV.       CONCLUSION

Considerable space has been taken to set forth conclusions which could have
been stated in one or two pages. That is because of the potential importance of
the question to so many and the precedentially uncharted course it spawned.
The Defendant Noriega is plainly a prisoner of war under the Geneva
Convention III. He is, and will be, entitled to the full range of rights under the
treaty, which has been incorporated into U.S. law. Nonetheless, he can serve
his sentence in a civilian prison to be designated by the Attorney General or
the Bureau of Prisons (this is a pre-guidelines case) so long as he is afforded
the full benefits of the Convention.

Whether or not those rights can be fully provided in a maximum security

penitentiary setting is open to serious question. For the time being, however,
that question must be answered by those who will determine Defendant’s
place and type of confinement. In this determination, those charged with that
responsibility must keep in mind the importance to our own troops of faithful
and, indeed, liberal adherence to the mandates of Geneva III. Regardless of
how the government views the Defendant as a person, the implications of a
failure to adhere to the Convention are too great to justify departures.

In the turbulent course of international events – the violence, deceit, and

tragedies which capture the news, the relatively obscure issues in this case
may seem unimportant. They are not. The implications of a less-than-strict
adherence to Geneva III are serious and must temper any consideration of the
questions presented.

DONE and ORDERED in chambers in Miami,

Florida this 8th day of December, 1992.

WILLIAM M. HOEVELER
UNITED STATES DISTRICT JUDGE

C. Extradition
[Source: United States District Court for the Southern District of Florida,
CASE NO: 88-0079-CR-HOEVELER, August 24, 2007; footnotes partially
omitted.]

UNITED STATES OF AMERICA, Plaintiff,

Vs.
MANUEL ANTONIO NORIEGA, Defendant,
ORDER DENYING DEFENDANT’S PETITION FOR
WRITS OF HABEAS CORPUS,
MANDAMUS, AND PROHIBITION
August, 24, 2007

THIS CAUSE comes before the Court on the Defendant’s Petition for Writs
of Habeas Corpus, Mandamus, and Prohibition, filed July 23, 2007. This
Court heard argument from counsel on August 13, 2007.

When this Court determined fifteen years ago that Defendant was a “prisoner
of war” (POW), according to the Geneva Convention Relative to the Treatment
of Prisoners of War, August 12, 1949, [...] [See Part B of this case, Place of
Detention], it did so primarily in the context of Defendant’s concerns about
the care he would receive while in custody. It would have been impossible to
predict the full course of events which have brought the parties back before
this Court, but some of those circumstances are far from surprising. For
example, Defendant’s allegedly illegal activities were never understood by this
Court to be limited to the United States, nor to Panama, and, thus, it was
conceivable that an extradition request might be made at some future time.
Indeed, the charges which form the basis of the extradition proceedings
currently pending against Defendant, [...] relate to alleged money laundering
activities which occurred in France from 1988-89, and it may be that other
countries will be interested in bringing charges against the Defendant.

Despite the context of the Court’s initial consideration of the POW claims,
once the status of POW attaches, it protects the individual POW until “final
release and repatriation.” Article 5, Convention. Defendant’s status as a POW,
however, does not change the fact that Defendant presently is incarcerated
according to a valid sentence imposed by this Court. The Court’s authority at
this time, therefore, is properly directed toward the validity of the sentence
being served, which may be challenged by reference to 28 U.S.C. § 2255,4 or
the execution of that sentence, which may be challenged by reference to 28
U.S.C. § 2241.

[…]

Defendant asserts that his POW status under the Convention shields him from
extradition at this time, citing Article 118 of the Convention, which provides
that POWs “shall be released and repatriated without delay after the cessation
of active hostilities.” In response, the United States argues that extradition to
France on the announced charges is consistent with the Convention because of
Article 82, which subjects Defendant, as a POW, to the “laws, regulations and
orders” of the United States. The United States also relies on Article 12 of the
Convention, regarding the transfer of POWs, as supporting the principle that
repatriation is not automatic, but rather that transfer is permitted under
certain circumstances.

While the Convention at issue is silent as to extradition, it is notable that one

of the other conventions adopted on that same date specifically provides that
its protections for civilians (as compared to the Convention’s protections for
POWs) 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.” Geneva
Convention IV Relative to the Protection of Civilian Persons in Time of War
art. 45, 12 August 1949. [...]

Moreover, the oft-cited Commentary notes that the term “transfer” as used in
this Article may mean “internment in the territory of another Power,
repatriation, the returning of protected persons to their country of
residence or their extradition.” International Committee of the Red
Cross, Commentary on the Geneva Conventions (J. Pictet, ed., 1960)
(“Commentary”) (emphasis added). While the purposes of the Fourth
Convention are different from those of the Third, it is nevertheless compelling
that the convening parties expressed an understanding of the term “transfer”
which included extradition. [footnote 11 reads: The Court does not find
compelling the argument that extradition of POWs is prohibited because there
is no mention of extradition in the Convention, particularly when the
Commentary to the Fourth Convention indicates clearly that extradition is
included within the definition of “transfer.” In other words, the maxim of
statutory interpretation, expressio unius est exclusio alterius, need not compel
a different result. Indeed, it would be absurd to suggest that a civilian facing
the identical criminal charges, i.e., money laundering in connection with drug
trafficking, would be subject to extradition when a POW would not –
particularly when the charges have no relation whatsoever to the POW’s status
as a member of the armed forces of his or her home country.]

Article 45 of the convention protecting civilians parallels Article 12 of the

convention protecting POWs, and it is not unreasonable to include that Article
12 embodies the same principles – i.e., that transfer of either POWs or
“protected persons” is permitted, but that it should only take place between
parties to the Conventions to guarantee that the principles embraced in the
Conventions will be respected.

This Court previously determined that Article 118 of the Convention is limited
by Article 119.  Article 119 provides that POWS “against whom criminal
proceedings for an indictable offence are pending may be detained until the
end of such proceedings, and, if necessary, until the completion of the
punishment.” That provision also applies to POWs “already convicted for an
indictable offence.” Article 119, Convention. As previously noted by this Court,
“[s]ince criminal proceedings are pending against Noriega, Article 119 permits
his detainment in the United States notwithstanding the cessation of
hostilities.” [...] [See Part A of this case, Jurisdiction]

Clearly, the facts surrounding this particular Defendant’s status as a POW are
far different from those expressly considered by the parties to the Convention
in 1949.

Defendant is seeking repatriation for a multitude of reasons, not the least of

which appears to be that he will be shielded constitutionally from extradition
to France once he returns to Panama. According to the United States’ prior
filings in this case: it is our understanding that Article 24 of the Panamanian
Political Constitution of 1983 (like Article 23 of the predecessor Political
Constitution of 1972) as well as Panamanian statutory law (Article 2508(1) of
the Panamanian Criminal Procedure Code; Article 30(1) of Law No. 23 of
December 20, 1986, governing the extradition of persons charged with drug-
related offenses) do not permit the use of the extradition process to surrender
Panamanian nationals to foreign countries. [...]
The Court previously noted the clear conclusion that Article 12 “limits the
ability of the United States to effect such a transfer” by requiring that the
receiving country be a party to the Convention and willing to apply the
Convention. [See Part A of this case, Jurisdiction] No other restrictions are
provided. Defendant has offered no evidence suggesting that France will fail to
abide by the Convention in its treatment of Defendant. According to the
United States, Defendant already has been convicted in France on criminal
charges, and nothing in the Convention suggests that honoring a treaty
between parties to the Convention concerning extradition for a criminal
offense is prohibited. As consistently stated by the Eleventh Circuit,
“extradition is a function of the Executive.” This Court has a constitutional
mandate to follow treaties. The United States has elected to pursue the
extradition of Defendant to France, rather than his repatriation to Panama,
despite a pending claim from Panama for the return of Defendant. It is unclear
whether Panama is actively seeking Defendant’s return, but in any event, any
competing claims for Defendant’s extradition are matters for the Secretary of
State to resolve.

[…]

In conclusion, the Court notes again that “[i]n order to set the proper example
and avoid diminishing the trust and respect of other nations,” the United
States must honor fully its obligations according to the Convention. Respect is
earned by being fair and just in the administration of the law. The Defendant,
who, according to the United States, is 69 years old, a grandfather, and
apparently far removed from his prior criminal activities, was convicted as to a
number of extremely serious crimes in this country and has been charged
elsewhere with serious crimes. Thus, his present appearances
notwithstanding, a strict adherence to the terms of the Convention, both as to
the letter and the spirit of the Convention, does not mandate immediate
repatriation but rather supports a decision that Defendant must face those
charges which are legitimately brought against him by other parties to the
Convention, so long as our international obligations under the Convention are
being met. Based upon the circumstances and arguments presented by the
parties, it appears that in this specific instance examined today as to this very
unique Defendant, the United States is doing so. [footnote 21 reads: The
decision today is also consistent with Articles 5 and 85 of the Convention, as
the United States has represented that Defendant will retain his rights as a
POW while in France’s custody, i.e., presumably through final repatriation.]
This Court never intended for the proclamation of Defendant as a POW to
shield him from all future prosecutions for serious crimes he is alleged to have
committed. That being said, even the most vile offender is entitled to the same
protections as those owed to a law-abiding soldier once they have been
declared a POW. It appears that the extradition proceedings should proceed
uninterrupted.

Based upon the above, it is

ORDERED AND ADJUDGED that the Defendant’s Petition is denied, without

prejudice to renew as appropriate in relation to the extradition proceedings
themselves.

DONE AND ORDERED in chambers in Miami, Florida, this 24 th day of August,

2007.

WILLIAM M. HOEVELER

Senior United States District Judge

D. Interim Order on POW Treatment by France

[Source: United States District Court for the Southern District of Florida, CASE
NO: 88-0079-CR-HOEVELER, September, 5, 2007.]

UNITED STATES OF AMERICA, Plaintiff,

Vs.
MANUEL ANTONIO NORIEGA, Defendant.
ORDER GRANTING. IN PART. DEFENDANT’S EMERGENCY
MOTION
FOR STAY OF EXTRADITION

THIS CAUSE comes before the Court on the Defendant’s Emergency Motion
for Stay of Extradition, filed on this date. The Court has reviewed the motion.
Based upon the representations of defense counsel that the Defendant is
scheduled to be released tomorrow, i.e., earlier than the originally announced
date of September 9, 2007, and based upon the allegations made in the
Defendant’s Petition for Writ of Habeas Corpus filed today which have, as of
this moment, not yet been responded to specifically by the United States, it is
hereby

ORDERED that the Defendant’s Emergency Motion for Stay is GRANTED, in

part. The United States is directed to preserve the Defendant’s status until
further ruling from this Court. Further, it is

ORDERED that the Defendant shall produce credible evidence to support the
allegations made in his Petition, specifically evidence that demonstrates that
France presently does not intend to abide by the Geneva Convention Relative
to the Treatment of Prisoners of War, August 12, 1949, [...] in its treatment of
the Defendant. Defendant shall produce this evidence no later than 9:00 a.m.
on September 6, 2007, or provide affidavits attesting to the Defendant’s
efforts to obtain such evidence in the event that Defendant is unable to meet
that deadline.

In addition, the United States is directed to respond to the Defendant’s

pending Petition, including any evidence submitted by Defendant, no later
than 12:00 p.m. on September 6, 2007. To the extent that the United States is
unable to confirm current compliance with Article 12 of the Convention, this
Court will require that the confidential communications between France and
the United States, upon which the United States relies for its assertions that it
“has satisfied itself of the willingness and ability of [France] to apply the
Convention,” be produced. To preserve the confidential and diplomatic nature
of such communications, this Court simply will review the communications
privately, and will return them immediately to the Assistant United States
Attorney – who may deliver them personally to the Court. The documents will
not be made available to the public, nor to the Defendant, absent the
agreement of the United States.

DONE AND ORDERED in chambers in Miami, Florida, this 5th day of

September, 2007.

WILLIAM M. HOEVELER

Senior United States District Judge

E. Final Order on POW Treatment by France
[Source: United States District Court for the Southern District of Florida, CASE
NO: 88-0079-CR-HOEVELER, September, 7, 2007; footnotes omitted.]

UNITED STATES OF AMERICA, Plaintiff,

Vs.
MANUEL ANTONIO NORIEGA, Defendant.
ORDER DISMISSING DEFENDANT’S “PETITION FOR
WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241” AND ORDER LIFTING STAY OF
EXTRADITION

THIS CAUSE comes before the Court on the Defendant’s Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241, filed September 5, 2007. The
United States has responded in opposition. On September 5, 2007, this Court
partially granted Defendant’s Emergency Motion for Stay based upon
allegations – which were proven to be untrue – that Defendant was to be
released early from serving the sentence imposed by this Court. It now
appears that Defendant filed his motion for stay, as well as his petition
for habeas, in an attempt to have this Court reconsider its prior conclusion
that the Geneva Convention Relative to the Treatment of Prisoners of War,
August 12, 1949, [...] does not include a ban on extradition of prisoners of war
(“POWs”).

[…]

This Court appears to lack jurisdiction according to 28 U.S.C. § 2241 to decide

Defendant’s claims regarding potential future circumstances involving his
treatment in France. Defendant has not demonstrated any problems with the
current conditions under which he is serving the sentence imposed by this
Court.

Even if this Court had jurisdiction over Defendant’s petition, the Court would
not find error in the issuance of the Certification of Extraditability based upon
the arguments presented by Defendant as of this date. Article 12 of the
Convention requires that the United States satisfy itself “of the willingness and
ability of [France] to apply the Convention,” and the Convention requires
respect for a POW’s status. While the United States’ assertions are somewhat
peculiar, it is nevertheless the case that the United States “has satisfied itself ...
[that Defendant] will be afforded the same benefits that he has enjoyed for the
past fifteen years in accordance with this Court’s 1992 order declaring him a
prisoner of war.” [...]

It is important to note that the United States did not ask the Republic of
France to declare that defendant is a prisoner of war. Instead of running the
risk that the Republic of France might interpret the Geneva Conventions
differently than the United States, the United States sought and obtained from
the Republic of France specific information regarding all of the rights that the
defendant will be guaranteed by France upon his extradition. [The] United
States has confirmed through its communications with France that France will
afford the defendant the same benefits he has enjoyed during his confinement
in the United States that were mandated by this Court’s Order of December 8,
1992.

The Court’s reading of the assertions of the Assistant United States Attorney,
supported by the Declaration of Clifton M. Johnson, the head of the Office of
the Legal Adviser of the United States Department of State, indicates that
Defendant retains all of his rights under the Convention. “France does indeed
intend to afford [Defendant] all the same rights that he was afforded during
his incarceration in the United States;” these specific rights are those “to
which Noriega was entitled under this Court’s ruling and as specified in
Geneva III.” (emphasis added). Regardless of the unique nature of this
Defendant, his POW status attached at least as early as December 1992 and he
retains that status “until [his] repatriation,” Convention, art. 5; to consider
this Defendant as anything less than a POW would not constitute compliance
with the Geneva Convention. This Court notes the United States’ assertions
that the Convention is being followed, and anticipates full compliance with the
Convention based upon those assertions.

Further, it bears observation that Defendant’s submitted “evidence” of

France’s alleged unwillingness to apply the Convention consists of hearsay,
and is based entirely upon news reports – many of which lack any evidence of
certified translations to English from the language in which they first
appeared – rather than direct information from official sources. Defendant
certainly had the ability to contact the alleged speaker, the French ambassador
to Panama, directly and request a sworn statement; however, no such
statement was provided. Further, the most inconsistent statement, i.e., that
Defendant “will not enjoy the privileges [of his POW status],” purportedly
made by the Ambassador on July 26, 2007, was prior to this Court’s Order of
August 24. The Defendant’s own submission, again relying solely on news
reports, admits that the “French Foreign Ministry ... stated that General
Noriega will receive the same privileges he received in the United States.”

Defendant has suggested that this Court did not consider certain arguments
raised in his earlier unsuccessful petition for habeas before this Court.
Defendant asserts that Article 12 “was intended to apply to transfers between
allied Powers during war” and argues that its only purpose is for such
transfers. This Court disagrees, and already considered this argument fully,
particularly in the context of the criminal charges pending against this
Defendant. A POW’s responsibility for criminal charges, including those
unrelated to the conflict, clearly is envisioned in Articles 85 and 119 of the
Convention. Moreover, Defendant’s argument is not consistent with the
statements in the Commentary, International Committee of the Red
Cross, Commentary on the Geneva Conventions (J. Pictet, ed., 1960), upon
which he relies. Indeed, the Commentary reveals that Article 12 was “largely
based” on the experience of the United States and France in accommodating
United States-captured German POWs in France where there was a shortage
of food. The United States responded to concerns of the International
Committee of the Red Cross by providing food and clothing to France for
distribution to its own POW camps such that the German POWs would have
their needs met. Commentary, art. 12. There is no statement in the
Commentary that suggests that the United States’ obligation at that time
would have been any different if the German POWs were interned in a POW
camp in a nation which was not a co-belligerent of the United States. The
reference at the beginning of the Commentary to Article 12 to “the special case
of the transfer of prisoners from one belligerent Power to another” does not
suggest that Article 12 itself only applies to such transfers; nor does it suggest
that Article 12 prohibits otherwise valid extraditions. In summary, nothing
from the Defendant compels this Court to change its prior conclusion that the
Convention does not prohibit legitimate extraditions conducted in compliance
with Article 12.

As there is no basis for continuing the stay imposed by this Court, that stay is
lifted as of 5:00 p.m. today, with the understanding that Defendant will
complete the term of his previously imposed sentence and not be released
until September 9, 2007.
DONE AND ORDERED in chambers in Miami, Florida, this 7th day of
September, 2007.

WILLIAM M. HOEVELER

Senior United States District Judge

[N.B.: On April, 8th, 2009, the US Court of Appeals for the Eleventh Circuit
found that General Noriega’s claim was precluded by § 5 of the Military
Commission Act of 2006 [See United States, Military Commissions], which
the Government argued “codifie[d] the principle that the Geneva Conventions
[a]re not judicially enforceable by private parties” (available
on: http://media.ca11.uscourts.gov/opinions/pub/files/200811021.pdf).
On January, 25th, 2010, the US Supreme Court declined to hear an appeal
brought by Manuel Noriega challenging the ruling denying his habeas corpus
petition and authorizing his extradition to France. The court provided no
reasoning for its decision not to hear General Noriega’s appeal. Justices
Clarence Thomas and Antonin Scalia dissented from the denial of certiorari,
arguing that the Court should use the opportunity to resolve confusion over its
decision in Boumediene v. Bush [See United States, Habeas Corpus for
Guantanamo detainees] granting federal courts the power to review habeas
petitions brought by “enemy combatants.” (available
on: http://www.supremecourt.gov/opinions/09pdf/09-35.pdf). On February,
19th, 2010, General Noriega’s lawyers filed a petition to ask the Supreme Court
to reconsider blocking his extradition to France, relying on the dissenting
opinion by Justices Clarence Thomas and Antonin Scalia in the court’s
January decision. On March, 22nd, 2010, the Supreme Court declined to
reconsider the appeal, and Manuel Noriega was eventually extradited to
France on April, 27th, 2010. On April 29th, 2010, the spokesperson of the
French Ministry of Justice declared that Manuel Noriega was not considered a
POW in France but that he would benefit POW conditions of detention, in
accordance with the Geneva Conventions. On July, 7th, 2010, he was convicted
of money laundering and sentenced by the 11th Chamber of the Tribunal
Correctionnel de Paris to seven years in prison.]