For the purposes of criminal prosecution or sentence execution in another country, extradition is the formal surrender of a fugitive from justice by the authorities of the country where he is located to the authorities of another country. The existence of a treaty outlining the conditions for and exceptions to the duty to extradite is crucial under international law.
In the absence of such a request, there is no international obligation to extradite. Furthermore, there are no restrictions on a state’s ability to extradite under customary international law, with the exception of basic human rights. Beyond that limitation, the question of whether extradition is admissible in the absence of a treaty is one that must be resolved exclusively by domestic law.
Lacking an applicable extradition treaty, a state may rely on less formal policies like comity or reciprocity to determine how to respond to individual extradition requests, or national legislation may specify what occurs in the absence of a treaty. For instance, the United States may surrender a non-national who has committed violent crimes abroad against United States nationals in the exercise of comity and upon certification of certain conditions, regardless of the existence of a treaty. About 110 countries have signed bilateral extradition treaties with the United States, but many others, including Libya, Algeria, Kuwait, and Saudi Arabia, have not. The United Kingdom has extradition treaties in place with roughly 180 countries and its own dependencies, both on a bilateral and multilateral basis.
Arrests or limitations of rights without probable cause are prohibited by Article 9 of the Universal Declaration of Human Rights. By definition, an arrest made without proper legal authority is unlawful. The United States gave its approval to the Universal Declaration of Human Rights when it was adopted in 1948 by the General Assembly of the United Nations. Today, the Universal Declaration is considered a restatement of customary international law. The protection provided by this aspect of universally binding customary international law is essential to the dignity of every individual person. Notwithstanding this provision and other provisions contained in international extradition treaties, the United States has been the subject of numerous abductions of suspects on international grounds like the case of Alvarez Machain where the United Nations went as far as setting up a working group on Arbitrary Detention.
Everywhere you looked, people were criticizing the Alvarez-Machain case. Twenty-one states proposed a resolution to the General Assembly seeking the ICJ’s advisory opinion on whether or not certain acts involving the extraterritorial exercise of the coercive power of a State and the subsequent exercise of criminal jurisdiction are in compliance with international law. Despite repeated postponements of a resolution seeking an advisory opinion, the UN Working Group on Arbitrary Detention has declared Humberto Alvarez-detention Machain’s to be arbitrary and in violation of the International Covenant on Civil and Political Rights. However, the United States has recently been involved in a more recent case of one such abduction involving Abu Agila Mohammad Mas’ud Kheir Al-Marimi, a former official of the government of the late Libyan leader Muammar Gaddafi.
After the revolution in Libya in 2011, anti-Gaddafi fighters captured and imprisoned Masud. A Tripoli criminal court sentenced him to 10 years in prison in 2015 for his role in booby-trapping cars during the 2011 revolution, along with 31 other former Gaddafi officials, following a mass trial marred by serious due process violations. He was only released in 2021 due to health reasons.
Shortly after being released from prison on health conditions, Mas’ud was arrested in December 2022 by U.S. authorities after an armed group seized him from his home in Tripoli on charges of purportedly orchestrating the bombing of the New York-bound flight two weeks before Christmas in 1988. Concerns have been raised about the legitimacy of Mas’ud’s arrest and extradition to the United States, which occurred only a few months after he was released from a Libyan prison. US officials have stated that the transfer was legal and that it was the result of years of cooperation with Libyan authorities.
In light of his alleged involvement in the Lockerbie bombing involving Pan Am Flight 103, the United States has long sought Masud’s arrest. Pan Am Flight 103 exploded over Lockerbie on December 21, 1988, killing all 259 people on board, including 190 Americans, and some locals. Two Libyan intelligence agents were charged by Scottish and American authorities in connection with the bombing in November 1991. After being convicted in 2001 and given a life sentence, Abdel Baset Ali al-Megrahi was released in 2009 on humanitarian grounds due to his terminal illness and he passed away in 2012. It was decided that Lamen Khalifa Fhimah, the other suspect, was innocent.
Since there is no formal extradition treaty in place between Libya and the United States, there was never any requirement to turn over Mas’ud. Tripoli-based militias loyal to the Government of National Unity were responsible for his detention and handover to the United States, according to official statements made in December by Libyan authorities to The Associated Press. There are serious due process concerns because it appears that no Libyan court ordered or reviewed Mas’ud’s transfer to the US, and he had no chance to appeal. The charges appear to stem from confessions he allegedly made to a Libyan interrogator in 2012.
According to the US Department of Justice’s Statement of Facts from the year 2020, there is “probable cause” to believe that Masud conspired with others and assisted them in bringing about the destruction of Pan Am Flight 103. In 2017, U.S. authorities acquired an English translation of the interrogation transcript allegedly made to an unnamed Libyan operative. Aamer Anwar, the attorney for one of the other suspects, has stated that Mas’ud was held in the incarceration of a warlord heavily criticised for human rights abuses and that the circumstances under which such a confession was obtained would be strongly opposed in any American or Scottish court. It has been heavily speculated that Dbeibeh’s may have hoped to win favour from the Biden administration by giving Masud to the US in order to extend his stay in office after his mandate as PM came to an end in December.
Reports said that the armed group reportedly arrived at the house at 1:30 in the morning. Armed men were posted in front of Masud’s house and the homes of other people in the area, preventing anyone from fleeing. The eye witness claimed that the group had shoved Masud’s wife and beaten his daughter, who required medical attention for her hands, one of Masud’s children was also assaulted by the men. The 71-year-old Masud, whose mobility was limited due to illness, was dragged across the floor by the men, who refused to accept assistance from those present.
According to Human Rights Watch’s interview with a family member, Masud’s family was only made aware of the extradition after seeing social media posts about his December 12 court appearance. After he was transferred from Libya to the United States, his family claimed they were unaware of any legal proceedings preceding the transfer and only spoke to him over the phone for the first time on February 10.
It was reported by Masud’s nephew to the Observer that Masud had been kidnapped without legal justification. According to him, his loved ones have filed a formal complaint with the state’s top prosecutor’s office, requesting an investigation into his abduction and subsequent handover. Because it was an attack on a citizen in his own home, he feels it is important that those responsible be brought to justice.
The arrest’s ambiguity has attracted the attention of international groups, which have demanded that the United States comply with international fair trial standards and allow Mas’ud access to his family members, including by processing their visa applications as quickly as possible. The United States government should also let him file an appeal against his extradition. Prime Minister Dabeiba has promised that the Libyan government will facilitate consular visits, ensure that Mas’ud has access to competent legal representation, and facilitate visits from Mas’ud’s family. The members of the armed group who forcibly abducted Mas’ud from his home should also be investigated and held to account for their actions.
The deputy regional director for Amnesty International in the Middle East and North Africa stated that although the organization has long called for accountability for crimes committed in violation of international law, this must be carried out in a way that respects due process and upholds the rights to a fair trial. In this instance, however, even the semblance of legality was not preserved; Mas’ud was not afforded the opportunity to contest the legality of his detention or transfer, and there was no hearing held.
Mas’ud’s arraignment, originally scheduled for January 2023, was postponed due to difficulties in hiring counsel for his defence. This followed reports that the family only found out that Mas’ud had been taken to the US and denied access to his family. After federal public defender Whitney Minter reported that Mas’ud’s family was unable to hire a private defence attorney, U.S. Magistrate Judge Moxila Upadhyaya formally appointed Minter to represent Mas’ud.
According to Minter, Mas’ud has been unemployed for over a decade and does not have any significant assets. His offspring assist with his mortgage payments on his Libyan home and with his day-to-day costs like food and medicine.
After the arrest and subsequent transfer of Mas’ud into US custody, fresh concerns have arisen regarding the likelihood that the United States is once again willing to violate international law in its pursuit of alleged terrorist fugitives. This case brings to mind the misdeeds that were committed by US intelligence agencies during the war on terror. These misdeeds included dozens of renditions, which is the term for the illegitimate and clandestine transfer of suspects.
In spite of the fact that there is a rule that prohibits the doctrine of illegal abduction, state-sponsored international abductions have been on the rise by the United States and many other states. These states are frustrated by the fact that they are unable to punish those that they believe deserve it, and as a result, they continue to resort to self-help methods of apprehension. As the clear limits of the customary rule that prohibits this are still being tested, states will place a growing reliance on the discretionary approach, which will give states the option to justify any and all irregular acts that were utilized in gaining jurisdiction over individuals. The precedent where states and done this and face no serious sanctions except for media backlash and judicial comments puts individuals at the mercy of the coercive powers of states and hinders human rights as any person can be abducted without due procedure and made to face trial.
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