MGLE01: MINISTER OF JUSTICE EXPLAINS DECISION ON

C O N F I D E N T I A L BEIRUT 001001

SIPDIS

SIPDIS

NSC FOR ABRAMS/DORAN/WERNER/SINGH

E.O. 12958: DECL: 03/23/2016
TAGS: LE PGOV PREL PTER
SUBJECT: MGLE01: MINISTER OF JUSTICE EXPLAINS DECISION ON
HAMADEI EXTRADITION

REF: A. SECSTATE 12817


B. BEIRUT 00286

Classified By: Ambassador Jeffrey Feltman. Reason: Section 1.4 (b).


1. (C) On March 22, Minister of Justice Charles Rizk and
Judge Chukri Sadr discussed with the Ambassador the MOJ's
deliberations regarding the U.S. extradition request for the
four terrorists -- Mohammod Ali Hamadei, Hasan Izz-al-Din,
Ali Atwa, and Imad Mughniyah -- responsible for the hijacking
of TWA 847. Passing a non-paper prepared by Sadr and
Prosecutor General Said Mirza, Rizk said that the MOJ had no
choice but to advise the GOL to deny the USG request. But,
Rizk emphasized, he was providing us the legal rationale
before passing it to the MFA. "Please demolish our
arguments," Rizk said, expressing deep sympathy for the
victims of the hijacking. "Show us how we can comply with
your request." Rizk said that he would postpone forwarding
his ministry's findings to the MFA for now, in hopes that the
USG would come back to him with questions and objections.


2. (C) Sadr said that the principal legal obstacle is the
penal code's prohibition against the extradition of Lebanese
citizens. This was a "sacred principle" in Lebanon, and an
especially sensitive issue since both Israel and Syria had
seized Lebanese citizens and incarcerated them abroad. Given
this history, no cabinet would violate Lebanese law and
custom by extraditing Lebanese citizens. The Ambassador
asked whether there was any precedents for rendering Lebanese
citizens to another country under a form that would not be
defined legally as extradition. Sadr said that there may be
some examples under a 1950 protocol with Syria, but the
Syrian case is special and shouldn't serve as a precedent for
others.


3. (C) Unprompted, Sadr said that he had also considered,
as an alternative, trials in Lebanon for the four fugitive
felons. He had ruled out this option as well, because of the
ten-year statute of limitations in Lebanese law. This
ten-year statute of limitations also hindered further the
GOL's ability to comply with the USG extradition request.
Emphasizing that he was not a lawyer, the Ambassador asked
whether a statute of limitations really applied when it came
to crimes that would fall under international air piracy and
terrorism protocols signed by Lebanon and when there
outstanding interpol notices on which Lebanon had never
acted. Neither Sadr or Rizk knew the answer.


4. (C) Sadr also noted the USG proposal to Lebanon to sign
an Article 98 agreement on a reciprocal basis. In legal
reasoning that escaped this non-lawyer Ambassador's
understanding, Sadr argued that the philosophy behind the
Article 98 proposal was contrary to the USG extradition
request. The Ambassador responded that the Article 98
proposal was designed to ensure that neither Lebanon nor the
United States would render citizens of the other state to a
third party without the agreement of the home state. It did
not, in the Ambassador's mind, contradict the extradition
request. Moreover, as the GOL and USG have not concluded an
Article 98 agreement in any case, it appears entirely
irrelevant. (Both Sadr and Rizk expressed support for an
Article 98 agreement, a topic we will pursue separately.)

MINISTRY'S LEGAL ARGUMENTS
--------------


5. (SBU) Justice Sadr's written analysis follows:

Begin Embassy informal translation:

Main outcomes of the study by the Prosecutor General of
Lebanon and the Legal Department of the Ministry of Justice,
as drafted by Justice Chukri Sader, Head of the Council of
Legislation and Advice:

In the absence of any extradition agreement between Lebanon
and the United States of America, Article 30, and the
following, must be implemented taking into account the
presence of the fundamental conditions for extradition.

The crime of hijacking on TWA flight 847 was committed by
Lebanese citizens, therefore, it falls under the jurisdiction
of Lebanese law.

The international agreement mentioned in the US Bill of
Indictment does not reject the legal jurisdiction of the
(accused persons') country of origin, especially when the

(accused persons) are present on its territory.

With regard to the theory of reciprocity, the United States
of America does not allow its citizens to be prosecuted in
front of foreign courts, and insists that such prosecutions
occur before U.S. courts.

In addition, the United States of America suggested to
Lebanon that it sign a bilateral convention whereby both
sides would refuse the extradition of their citizens to the
International Criminal Court, and recognize the competence of
the US courts for judging US citizens and the competence of
Lebanese courts for judging Lebanese citizens. Although this
convention has not been signed, it reflects a principle in
international law that each country (should) judge its
citizens for crimes they commit in foreign territories,
applying the law of the country where the crimes took place.

Since the persons subject to the request of this extradition
have already been prosecuted since the 1985 TWA hijacking,
the prosecution has exceeded the 10-year prescription
(statute of limitations),as defined by Article 10 of
Lebanon's penal code.

The competence of the courts to judge the crimes of the
Lebanese hijackers is given (only) to Lebanese courts, as
defined by Article 20 of Lebanon's penal code.

Article 32 of Lebanon's penal code does not permit
extradition for crimes related to Lebanese personal
competence, as described in Articles 15, 16, 17, 18, 19 and
21 of the Lebanese penal code.

Since the conditions requested for the extradition of the
four Lebanese citizens mentioned above have not been
fulfilled, the Lebanese authorities cannot agree to the
extradition as requested by the US authorities.

End Embassy translation.

COMMENT
--------------


6. (C) Rizk and Sadr were at pains to demonstrate that they
are not rejecting the USG extradition request out of hand but
are taking the issue seriously. We are not lawyers, but we
believe that the political obstacles (with the four
terrorists being Hizballah members) are stronger than the
legal arguments. Rizk is trying to be helpful, in sharing
with us the MOJ's thinking before providing it to the MFA for
formal transmission to us. Before the MOJ arguments evolve
into a formal GOL denial of our extradition requests, we
would welcome Washington's views on how to refute the GOL
legal arguments. For example, is it true that the USG never
extradites its citizens? We believe that the single most
difficult legal issue to overcome is the legal prohibition on
extraditing Lebanese citizens. If there are ways to use the
international conventions Lebanon has signed to get around
this and the statute of limitations question, we would like
to make the case.
FELTMAN