Australia deals legal setback to US on extradition cases

[TamilNet, Sunday, 09 September 2012, 10:23 GMT]
In a legal blow to U.S. anti-terrorism laws used in extraditing Tamils caught in various sting operations by the U.S. law enforcement authorities, the 109-page opinion issued by the Federal Court of Australia's Judge J. North agreed with the Eezham Tamil defendant, Thulasitharan Santhirarajah, that in approving the extradition request, the Australian Attorney General (AG) fell into jurisdictional error on six different legal issues, the most precedent setting among them being that the offences charged by the U.S. were "political offenses," and therefore, that under section 22(3)(a) of the Extradition Act 1988, the Court was empowered to grant relief by prohibiting the "AG acting on her determination to surrender the defendant to the US."

• Australia Federal Court Opinion: Santhirarajah v. AG

• US-Australia Extradition Treaty

Washington-based legal scholars told TamilNet that the Australian ruling supported by detailed legal opinion has dealt an irrecoverable legal setback to future requests by the U.S. government to extradite Tamils accused of providing material support to organizations listed under the US State Department's list of "Foreign Terrorist Organizations (FTO)." The legal issue relating to "political offenses' is likely to reverberate in liberal judicial institutions across the world, including consideration of asylum applications of ex-LTTE members, legal sources added.

Australia's first female Attorney General, Nicola Roxon

The Melbourne Federal Court, in Santhirarajah's case, ruled that:

• On the power to determine issue the AG failed to make the determination to extradite "as soon as is reasonably practicable" to do so
• On the political offense exception issue the four offenses charged by the US are "either pure or relative" political offenses, and therefore, the AG violated the exception clause in approving the extradition
• On the torture issue the AG erred in forming her satisfaction that the applicant will not be tortured. The court further added that the AG, in this issue, misunderstood that the obligation of the US was different from that of the Australia under Article 3 of the UN Convention against Torture (CAT).
• On the best interest of the child issue the AG erred in asking the wrong question in the exercise of AG's general discretion under the Extradition treaty
• On the procedural fairness issue the AG failed to inform the defendant of the negotiation of and proposal to accept assurances from the US to protect the defendant from the danger of torture and/or cruel, inhuman, or degrading treatment if returned to Sri Lanka.
• On the 30-day assurance issue the AG erred in relying on the assurances given by the US that it would give Australia 30 days notice of the applicant's removal when the assurance did not address the dangers of torture and/or cruel, inhuman or degrading treatment o punishment faced by the defendant.

Tamils Against Genocide (TAG), a US-based activist organization seeking legal redress to Tamil war victims said, "Santhirarajah was arrested on 14 July 2008 on the US extradition request. He was remanded in custody (for more than 4 years) until the date of this judgment in 31 August 2012. Court also concluded that "in or about November 2009" was the time when it was reasonably practicable for the AG to make a determination whether to surrender Santhirarajah. Santhirarajah's liberty was curtailed extra-legally for a period of 2 years and 9 months," TAG noted.

"Further, Judge North has determined that Australia's AG, Nicola Roxon, has erred in six legal issues, and has ordered the Australian Government to pay Santhirarajah the [legal] cost of the proceeding. Urgently, Tamil Groups in Australia should work with Santhirarajah's attorneys, Ms. Mortimer and the solicitors Galbally & O'Bryan, to file for compensatory and punitive damages against the Australian Government in a tort action arising from illegal incarceration and deprivation of personal liberty," TAG said.

Legal sources who analyzed the Court documents, said that the case reveals the US Justice Department's policy on torture in relation to "terrror" defendants, and its sympathetic view of the regime in Colombo, despite the mounting evidence that the State might be complicit in genocide.

Responding to Santhirarajah's claim that he will be subjected to torture and reprisal if returned to Sri Lanka, the US Justice Department says, "This contention is speculative at best. There is no indication from Sri Lankan authorities to date of any interest in Santhirarajah. The hostilities between the Sri Lankan Government and the LTTE has ended, and a period of reconciliation has begun." US also said that US has safeguards and due process rights within deportation process to protect "aliens" subject to removal from the US.

As seen in the text of the ruling the Judge was unconvinced that there were sufficient safeguards in the extradition process to guarantee that the victim (Santhirarajah) will not be tortured, to comply with the provisions of International Covenant on Civil and Political Rights (ICCPR) (Art 6 and 7) and UN Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) (Art 3).

In an almost identical extradition request to the Singaporean Government, the judiciary there acceded to the US request, authorizing extradition of Mr Balraj Naidu, an alleged co-conspirator in the same Santhirarajah case, without asking many questions.

Chronology:

09.09.12  Australia deals legal setback to US on extradition..

01.09.12  Australian Court denies US extradition request

31.07.12  Australia's extradition of Tamil to US violates du..

24.10.10  Jury finds Singaporean guilty of material support ..

17.10.10  Broke no Singapore laws, defendant testifies in Ma..

11.10.10  Singaporean on trial in US on material support cha..

External Links:

CAT:		Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
ICCPR:		International Covenant on Civil and Political Rights

Australia's extradition of Tamil to US violates due process, says TAG

[TamilNet, Tuesday, 31 July 2012, 03:10 GMT]
Last week Australia's Attorney General, Nicola Nixon, has authorized the extradition to the U.S of Thulasitharan Santhirarajah, who the U.S. alleges was one of the six co-conspirators in a bungled arms-procurement operation for the Liberation Tigers in 2006. Santhirarajah has been fighting extradition to the U.S. from 2008. If Santhirarajah is extradited, he will have to stand a criminal trial in the U.S. Federal District Court of Baltimore, Maryland, and if convicted, will serve a prison term in the U.S., following which the U.S. immigration will deport the defendant to his country of residence, either to Australia or to Sri Lanka, based on the nature of Santhirarajah's residency in Australia.

Santhirarajah's case is very similar to that of Balraj Naidu, citizen of Singapore, who was extradited from Singapore in 2009. Naidu refused to plead guilty, stood a jury trial, and was convicted [53 months prison term] on one count of conspiracy to provide material assistance to an Foreign Terrorist Organization [FTO].

Media reports indicate that US has filed the same six charges against Santhirarajah. In Naidu's case, a Singaporean judge allowed only two of the charges to stand - the material support and the possession of a firearm in furtherance of a crime of violence. The US judge, Catherine C. Blake, promptly dismissed the possession of firearms charge, and allowed only one charge, to go to trial.

• US-Australia Extradition Treaty

Tamils Against Genocide [TAG], a US-based activist group that fights for fundamental rights, argues that Senthirarajah's extradition order should be dismissed because of the following two reasons:

• Incorporation of the UN "terrorist" list in Australian jurisdiction violates customary common law notion of due process. With the UN terrorism law non-self executing, and the UN list not incorporated into domestic law, how can one expect a lay person to know if he is violating the UN terrorism list?
• Sources of law in American and Australian jurisdiction that give rise to the LTTE ban - the former in national law and the latter in international law - do not adequately criminalize Senthirarajah's alleged conduct as "punishable" offenses in both American and Australian jurisdiction as required by the US-Australian extradition treaty's dual criminality provision in Article 2(1).
  
  Australia purports to deem Senthirarajah's conduct as a punishable terrorism-related offense by incorporation of the UN terrorism list in Australian domestic jurisdiction. However, Art. 38 of the ICJ Statute codifies as customary that international law does not recognize hierarchy in its sources. As such, during all times relevant to the allegations against Senthirarajah, the UN terrorism list and the Norwegian-mediated Cease Fire Agreement (CFA), an international treaty between Norway and Sri Lanka to which the LTTE was a signatory, applied with equal force in Australian domestic jurisdiction.
  
  The UN terrorism list and the CFA establish contradictory international legal personalities for the LTTE, the former, as a terrorist organization, the latter, as legitimate stakeholder to a peace process formed by international treaty. The determination of the LTTE's legal personality is dispositive in determining whether Senthirarajah's conduct may be criminalized, and therefore whether it is cognizable as a punishable offense. Absent domestic implementing Australian legislation which criminalizes the LTTE as a terrorist organization, Senthirarajah's alleged conduct is not a punishable offense as required by the US-Australia extradition treaty.
  
  If sourced in international law, due to the incompatible classifications of the LTTE as both a terrorist organization and a party to an internationally-mediated peace process, the LTTE's international legal personality, even if incorporated into Australian domestic jurisdiction by operation of law does not supply a legitimate legal basis to criminalize Senthirarajah's alleged material support as a punishable offense.
  
  Since Senthirarajah's alleged conduct is not a punishable offense, the extradition treaty's dual criminality provision is not met, and the extradition order should be appealed and dismissed. If executed, it violates international law.

While Santhirarajah may be plausibly extraditable under non-terrorism related offense, Australia should not extradite him under terrorism-related offense, TAG says.

In a trial held in February 2006, four of the six alleged conspirators, Thirunavukarasu Varatharasa, 40, a Sri Lankan citizen; Haji Subandi, 73, and retired Indonesian Marine Corps General Erick Wotulo, 62, both citizens of Indonesia; and Haniffa Bin Osman, 59, a citizen of Singapore, pleaded guilty to their participation in the same conspiracy and were sentenced to 57 months, 37 months, 30 months, and 37 months in prison, respectively.

Chronology:

31.07.12  Australia's extradition of Tamil to US violates du..

24.10.10  Jury finds Singaporean guilty of material support ..

17.10.10  Broke no Singapore laws, defendant testifies in Ma..

11.10.10  Singaporean on trial in US on material support cha..

External Links:

TA:		Roxon clears Tamil's extradition to US
WP:		Blowing the whistle on the federal Leviathan