Noriega Dentention Poses Legal Riddle

UNITED States District Judge William Hoeveler has held Gen. Manuel Antonio Noriega to be entitled to continuing treatment as a prisoner of war while jailed in the US as a common criminal. The judge is reported to have regarded the situation as "venturing into uncharted legal waters." At the same time, he emphasized the importance of "liberal adherence to the mandates of [the 1949] Geneva [Convention Relative to the Treatment of Prisoners of War]."

But the waters are not "uncharted." The charts have simply been ignored. The Geneva Convention cited by Judge Hoeveler provides: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities" (Article 118). Active hostilities ceased between the US and Panama several years ago.

There is provision for continued detention of "prisoners of war against whom criminal proceedings for an indictable offense are pending" until completion of the punishment. But an "indictable offense" in the sense of the Convention is not what one party says; it is what all the parties to the Convention intended when they negotiated the phrase.

Is it an "indictable offense" in the sense of the Convention if the "offense" is not indictable as criminal in both countries concerned? When the accused acted solely outside the indicting country, his acts predate the hostilities, and the "effects" of his acts in the indicting country were below the threshold international law considers applicable to questions of prescriptive jurisdiction? Was this provision intended to justify going to war to arrest an accused foreign criminal? Was it intended to allow

a detaining power to file indictments against whatever prisoners of war it wanted to continue to detain, and thus nullify the effect of the first provision? When North Vietnam threatened to do that with regard to captured American airmen in 1965, the US argued that the phrase applied only to war crimes. North Vietnam backed down. The interpretation we seem to be making now would have permitted indefinite detention of American prisoners of war in Vietnam.

HAD the US been following its own experience in interpreting the provisions of the Convention, General Noriega should have been returned to Panama; then extradition should have been requested.

The Panamanian government that the US placed in power would surely have granted whatever Washington requested unless admitting American jurisdiction over the acts of a Panamanian (Noriega) in Panama was more than it could justify to its own people.

Indeed, such an extradition request would have raised questions we prefer to ignore as we extend the reach of American criminal law to cover acts of foreigners in their own countries. The use of domestic criminal-law processes to justify political detention has been tried before, but its cost in hypocrisy has been too high for honorable people to bear for long.

Another twist to this knot is the apparent weakness of our adversary system of domestic criminal law to handle legal cases in which the full legal picture and the full national interest are not apparent to a politicized Justice Department and not significant to defendant's counsel or the many other organizations interested only in arguing their own agendas. This has left an unbiased judge blaming weaknesses of short-sighted policy on imagined weaknesses in a law about which he has apparently been left mi sinformed.

Perhaps he will be better informed soon. On Nov. 17, 21 Latin American countries, including Panama, formally proposed that the United Nations General Assembly request an advisory opinion from the International Court of Justice at the Hague regarding recent American actions "involving the extraterritorial exercise of the coercive power of a state and the subsequent exercise of its criminal jurisdiction."