Hambali's extradition tangled<\/p>\n
Extradition not merely a legal issue<\/p>\n
Hikmahanto Juwana, Professor, International Law University of Indonesia,
\nJakarta<\/p>\n
Recently, Thai authorities working together with agents from
\nthe United States captured Hambali, Asia's most wanted terrorist.
\nShortly thereafter, it was reported that he was placed in U.S.
\ncustody at an \"undisclosed locale\".<\/p>\n
In Indonesia there has been discussion about whether the
\ngovernment should request Hambali's extradition from the U.S.
\ngovernment. The public, however, is being misled in their
\nunderstanding of extradition as a mere legal issue.<\/p>\n
Often, political and economic issues tend to override legal
\nissues regarding extradition. Legally, a person can be requested
\nfor extradition, however, whether such a person will be
\nextradited will depend greatly on the decision of the state that
\nis holding the suspect.<\/p>\n
A government may have various reasons for refusing
\nextradition. These reasons can be motivated by human rights
\nconcerns in the home country of the individual. One country may
\nrefuse extradition of a suspect if they believe that he\/she will
\nface prosecution due to certain political beliefs.<\/p>\n
Refusal can also be motivated by economic reasons. This occurs
\nwhen the economy of the sending state is dependent on \"dirty
\nmoney\" such as corruption and embezzlement. Such a country is
\nseen as a safe haven for white-collar offenders.<\/p>\n
Another reason for refusing extradition is when the requested
\nperson is also facing legal action in the country that he is
\nbeing held.<\/p>\n
In addition, the U.S. government may be uncomfortable if
\nHambali is sent to Indonesia. Another Indonesian terrorist,
\nFathur Al-Ghozi, who escaped from a Filipino prison can be used
\nas a precedent. The U.S. will argue that such an occurrence is
\nalso a possibility in Indonesia. Moreover, the refusal may be
\nmade on the grounds that law enforcement in Indonesia is too
\nweak. Furthermore, the U.S. may see Indonesia's bias as a
\nMuslim-dominated country, as hindrance to taking firm legal
\naction against Hambali, as he is also said to be a devout Muslim.<\/p>\n
From Indonesia's perspective, as it does not possess any means
\nto pressure the U.S. for extradition, the effort is doomed to
\nfail. This situation would be different if the U.S. were the
\ncountry requesting an extradition from this country. Indonesia's
\neconomic dependency on the U.S. can be used as a weapon to force
\nIndonesia to comply.<\/p>\n
In sum, the fact that Hambali is in U.S. custody, and that the
\nU.S. authorities are pursuing legal action against him, not to
\nmention the absence of any effective means of pressuring the U.S.
\non the issue, the chance for Indonesia's success is very slim.
\nThis pragmatic position, however, does not mean that Indonesia is
\nleft without any policy against U.S. government amid public
\ncriticism.<\/p>\n
To appease the public, the government can request three
\nimportant things to the U.S. government.<\/p>\n
First, the U.S. must allow Indonesian authorities to have
\nphysical and direct access to, and information from, Hambali.
\nInvestigators from the National Police have reportedly been sent
\nto the U.S. to collect information and if possible question the
\nterror suspect. The Indonesian authorities are in dire need of
\ninformation from Hambali amid the Bali bombing trials and future
\nterrorist attacks in Indonesia.<\/p>\n
Second, the government has to ask the U.S. to be transparent
\nin its further legal actions against Hambali -- indeed the U.S.
\nhas already supplied documents on Hambali's activities according
\nto National Police Chief Gen. Da'i Bachtiar. The Indonesian
\npublic has to be enlightened on what is happening to him. This is
\nto avoid suspicion against the government of having no policy
\nwhen it has to face the U.S. Moreover, it is intended to negate
\nthe accusations by people such as Abu Bakar Ba'asyir and all of
\nhis followers, that there is a U.S. conspiracy against Muslims in
\nIndonesia.<\/p>\n
Lastly, if Hambali, under the law, is still recognized as an
\nIndonesian national, the U.S. government has to permit
\nIndonesia's envoy in Washington to ascertain Hambali's rights as
\na suspect are satisfied. A similar case was when Indonesia was
\nquite transparent with the U.S. Embassy in the case of U.S.
\nnational, William Nessen, while he faced legal action here
\nrecently.<\/p>\n
The public should understand that the answer to Hambali's
\nextradition does not lie in the request made by the government.
\nThe answer will greatly depend on the willingness of the U.S.
\ngovernment -- which is not the likely prospect, at least in the
\nnear future.<\/p>\n
Nonetheless, the U.S. government may, at a certain stage, send
\nHambali to Indonesia. This will occur if the result of
\ninvestigations shows that the U.S. court lacks jurisdiction to
\ntry Hambali. Even without a request for extradition, the U.S.
\ngovernment could send Hambali to Indonesia and may even demand
\nIndonesian authorities to initiate the prosecution against
\nHambali. This policy would ensure that Hambali faces prosecution.<\/p>\n
Whatever the decision of the U.S. government, Indonesia has to
\nbe satisfied with the mere fact that Hambali will no longer
\nmastermind terror attacks and should face full legal prosecution.<\/p>\n
An earlier version of the above article has been published in
\nthe Kompas daily.<\/p>",
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