Jordan’s refusal to extradite al-Tamimi to the United States is inapposite international law

The United States recently made public an indictment charging Ahlam al-Tamimi, currently residing in Jordan,  with conspiring to use weapons of mass destruction and killing U.S. nationals abroad. Jordan has expressed that it does not plan to extradite al-Tamimi. Why won’t Jordan extradite, and should they? Many news organizations are missing many relevant facts, including Al Jazeera, which incorrectly published today that al-Tamimi was sentenced to 16 years in Israeli prison. She was actually sentenced to 16 life sentences plus an additional 250 years.

Al-Tamimi has publicly boasted about the 2001 Sbarro restaurant suicide bombing in Jerusalem that killed 15 people, including 2 United States citizens.

Screenshot 2017-03-22 23.52.42

Al-Tamimi discussing in an interview the Sbarro attack

Another 122 were injured, 4 of which were United States citizens. Al-Tamimi was eventually arrested and charged by Israeli authorities for her role in the attack. She was sentenced to 16 life sentences. In jail, she spoke with multiple news organizations about her involvement in the plot. In one of her interviews, she described in gruesome detail the smile on her face as she heard the death toll rise on the radio.

In another interview, the journalist interviewing her informed her that her attack had killed eight children, not three as she had initially believed. The video depicts al-Tamimi responding with a smile.

Screenshot 2017-03-22 23.57.08

Al-Tamimi responding to interviewer when discovering the attack killed eight children, rather than the three she originally thought.

Despite her multiple life sentences, al-Tamimi was eventually released by Israeli authorities in the 2011 Gilad Shalit prisoner exchange. Since that release, al-Tamimi has resided in Jordan where she hosts a talk show on Hamas TV.

After the indictment was released, Jordan was quick to express its criticism of the United States’s plan to extradite and indicated it would not allow the extradition. Specifically, a recent Al Jazeera article proclaimed that the extradition would compromise al-Tamimi’s rights to Due Process. Yet the article does not mention at all her recent proclamations about the attack, which clearly demonstrates not only a lack of remorse, but suggests she would be more than willing to conduct another attack. Instead, Al Jazeera suggests that the extradition would constitute a violation of Double Jeopardy principles, the concept that one cannot be prosecuted twice for the same offense.

Meanwhile, in the United States, the FBI immediately listed al-Tamimi on the Top 10 Most Wanted list as soon as the indictment became public. The post lists al-Tamimi as “armed and dangerous.”

Though Double Jeopardy is a very significant right, one recognized internationally, (known as the international principle of non bis in idem”), the principle is not a blanket bar to any prosecution based on the same conduct. Though the principle would likely bar Israel from re-prosecuting al-Tamimi again for her actions that day, the principle would not bar the United States from prosecuting al-Tamimi for her role in the deaths of the 2 Americans, and the injuries of the additional 4 Americans. It is well-settled that the principle of Double Jeopardy would not bar two separate ‘states’ from prosecuting the same conduct. The principle is recognized in Article 14(7) of the International Covenant on Civil and Political Rights. It is also stated in the European Convention on Human Rights, which reads:

No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offense for which he or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

The principle only bars duplicate prosecutions by the same state. The exact argument presented with al-Tamimi was rejected in 2000 by the 11th Circuit which held that the ICCPR did not bar the United States from prosecuting an offense after the individual already faced prosecution and conviction in Colombia. See United States v. Duarte-Acero, 208 F.3d 1282 (11th Cir. 2000) (noting the issue was one of ‘first impression’).

Likewise, the same argument was rejected early this year in the D.C. Circuit. The argument was made by Nizar Trabelsi last year with respect to the United States extradition request to Belgium, which asked that Trabelsi be transferred to the United States to face charges after he completed his prison term in Belgium. United States v. Trabelsi, 845 F.3d 1181 (D.C. Cir.  2017). Trabelsi argued that the request violated the treaty between the United States and Belgium, on grounds of non bis in idem. The Belgium court rejected the argument and permitted transfer of Trabelsi to the United States. He then challenged the decision in the United States. The government argued that the United States court did not have jurisdiction to challenge the Belgium decision on the extradition. The D.C. Circuit disagreed. It held it had the authority to review the Belgium decision, and also concluded the extradition decision was proper; the extradition did not violate the principle of non bis in idem.

Simply stated, these two cases alone denote that it is well-settled al-Tamimi could be prosecuted in Israel and the United States for the same plot. But more significantly here, Trabelsi signals that the United States cannot merely defer to another sovereigns’ decision not to extradite. In this case, Jordan. If al-Tamimi leaves Jordan and is captured by another country and held for the United States, the decision of the Jordanian court would not govern by default.

Still, there is another reason why Jordan should allow extradition. Jordan signed a treaty with the United States in 1995 that would facilitate extradition proceedings between Jordan and the United States, the same type of treaty Belgium has with the United States that was implicated in Trabelsi. Yet recent news articles argue the treaty is ‘invalid’ because it was never ‘ratified’ by the Jordanian Parliament.

Aside from the inapplicable principle of non bis in idem, and the Extradition treaty between Jordan and the United States, al-Tamimi is above all else, a significant danger that Jordan should take seriously, and denying extradition would undermine principles of comity. The deaths resulting from the Sbarro restaurant suicide bombing did not include any Jordanians. Thus prosecution in Jordan for the incident is in opposite, at least with respect to the most serious statutes applicable to her conduct, and is another reason extradition to the United States should be respected.

Jordan should reconsider its position and permit extradition in the case of al-Tamimi for the safety of Jordanians, and citizens of other nations that may be subject to another attack by al-Tamimi. Extradition would not violate the ICCPR, the general international principles of non bis in idem, nor the treaty between Jordan and the United States. Thwarting extradition would not only violate the principles of comity, it would be enabling to the international danger al-Tamimi currently presents.

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