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.