Hambali's extradition tangled

Hambali's extradition tangled

Extradition not merely a legal issue

Hikmahanto Juwana, Professor, International Law University of Indonesia,
Jakarta

Recently, Thai authorities working together with agents from
the United States captured Hambali, Asia's most wanted terrorist.
Shortly thereafter, it was reported that he was placed in U.S.
custody at an "undisclosed locale".

In Indonesia there has been discussion about whether the
government should request Hambali's extradition from the U.S.
government. The public, however, is being misled in their
understanding of extradition as a mere legal issue.

Often, political and economic issues tend to override legal
issues regarding extradition. Legally, a person can be requested
for extradition, however, whether such a person will be
extradited will depend greatly on the decision of the state that
is holding the suspect.

A government may have various reasons for refusing
extradition. These reasons can be motivated by human rights
concerns in the home country of the individual. One country may
refuse extradition of a suspect if they believe that he/she will
face prosecution due to certain political beliefs.

Refusal can also be motivated by economic reasons. This occurs
when the economy of the sending state is dependent on "dirty
money" such as corruption and embezzlement. Such a country is
seen as a safe haven for white-collar offenders.

Another reason for refusing extradition is when the requested
person is also facing legal action in the country that he is
being held.

In addition, the U.S. government may be uncomfortable if
Hambali is sent to Indonesia. Another Indonesian terrorist,
Fathur Al-Ghozi, who escaped from a Filipino prison can be used
as a precedent. The U.S. will argue that such an occurrence is
also a possibility in Indonesia. Moreover, the refusal may be
made on the grounds that law enforcement in Indonesia is too
weak. Furthermore, the U.S. may see Indonesia's bias as a
Muslim-dominated country, as hindrance to taking firm legal
action against Hambali, as he is also said to be a devout Muslim.

From Indonesia's perspective, as it does not possess any means
to pressure the U.S. for extradition, the effort is doomed to
fail. This situation would be different if the U.S. were the
country requesting an extradition from this country. Indonesia's
economic dependency on the U.S. can be used as a weapon to force
Indonesia to comply.

In sum, the fact that Hambali is in U.S. custody, and that the
U.S. authorities are pursuing legal action against him, not to
mention the absence of any effective means of pressuring the U.S.
on the issue, the chance for Indonesia's success is very slim.
This pragmatic position, however, does not mean that Indonesia is
left without any policy against U.S. government amid public
criticism.

To appease the public, the government can request three
important things to the U.S. government.

First, the U.S. must allow Indonesian authorities to have
physical and direct access to, and information from, Hambali.
Investigators from the National Police have reportedly been sent
to the U.S. to collect information and if possible question the
terror suspect. The Indonesian authorities are in dire need of
information from Hambali amid the Bali bombing trials and future
terrorist attacks in Indonesia.

Second, the government has to ask the U.S. to be transparent
in its further legal actions against Hambali -- indeed the U.S.
has already supplied documents on Hambali's activities according
to National Police Chief Gen. Da'i Bachtiar. The Indonesian
public has to be enlightened on what is happening to him. This is
to avoid suspicion against the government of having no policy
when it has to face the U.S. Moreover, it is intended to negate
the accusations by people such as Abu Bakar Ba'asyir and all of
his followers, that there is a U.S. conspiracy against Muslims in
Indonesia.

Lastly, if Hambali, under the law, is still recognized as an
Indonesian national, the U.S. government has to permit
Indonesia's envoy in Washington to ascertain Hambali's rights as
a suspect are satisfied. A similar case was when Indonesia was
quite transparent with the U.S. Embassy in the case of U.S.
national, William Nessen, while he faced legal action here
recently.

The public should understand that the answer to Hambali's
extradition does not lie in the request made by the government.
The answer will greatly depend on the willingness of the U.S.
government -- which is not the likely prospect, at least in the
near future.

Nonetheless, the U.S. government may, at a certain stage, send
Hambali to Indonesia. This will occur if the result of
investigations shows that the U.S. court lacks jurisdiction to
try Hambali. Even without a request for extradition, the U.S.
government could send Hambali to Indonesia and may even demand
Indonesian authorities to initiate the prosecution against
Hambali. This policy would ensure that Hambali faces prosecution.

Whatever the decision of the U.S. government, Indonesia has to
be satisfied with the mere fact that Hambali will no longer
mastermind terror attacks and should face full legal prosecution.

An earlier version of the above article has been published in
the Kompas daily.