By Michelle Munneke, J.D. 2017, American University Washington College of Law.
In March of this year, Jordan expressed its refusal to extradite the self-proclaimed mastermind of the 2001 Sbarro restaurant bombing in Jerusalem, Ahlam Ahmad Al-Tamimi, to the United States to face charges.[1] The attack killed 15 people, including two Americans, and injured another 122, including four Americans. Shortly after the attack, Hamas claimed responsibility—specifically a wing known as the Izz al-Din al-Qassam Brigades.[2] Al-Tamimi, specifically, helped conceal the explosive device in a guitar and traveled with the suicide bomber in a taxi to downtown Jerusalem and then directed the suicide bomber to detonate in a highly crowded area.[3]
Al-Tamimi was detained by Israeli authorities in September 2001 and charged in Israeli court for crimes stemming from the attack.[4] She admitted involvement and ultimately pled guilty.[5] She received 16 life sentences in Israeli jail, plus an additional 250 years.[6] Because the attack killed and injured Americans, United States federal law was also applicable. Though a criminal complaint was also filed against Al-Tamimi in the United States, it was placed under seal and extradition to the United States was never requested at that time.[7] The United States likely deferred to Israel based on its overriding interest in the case and her likelihood of receiving life imprisonment in Israeli based on the murders.[8]
In Israeli jail, she spoke with multiple news organizations about her involvement in the plot. In one of her interviews, she described in gruesome detail how she sat on a bus immediately following the attack and listened on the radio as the death toll rose.[9] In another interview, the journalist interviewing her informed her that her attack had killed eight children, not three as she had initially believed.[10] The video depicts Al-Tamimi responding with a smile.
Despite her multiple Israeli life sentences, Al-Tamimi was suddenly released to Jordan by Israeli authorities in the 2011 Gilad Shalit prisoner exchange.[11] Since that release, Al-Tamimi has resided in Jordan where she hosts a talk show on Hamas TV.
After the prisoner swap, the United States unsealed its indictment against Al-Tamimi. She is charged with numerous U.S. crimes including conspiring to use weapons of mass destruction and killing U.S. nationals abroad.[12] Shortly after the indictment was made public, the FBI listed Al-Tamimi on the FBI Most Wanted list.[13] Her entry on the list notes Al-Tamimi as “armed and dangerous.”
With the information that Al-Tamimi was residing in Jordan, the United States formally requested that Jordan extradite her to the United States to face prosecution in the United States District Court for the District of Columbia. However, Jordan expressed publicly it would not extradite Al-Tamimi, despite an extradition treaty between Jordan and the United States that was signed on March 28, 1995.[14] The 1995 Extradition Treaty outlines that both countries agree to facilitate extradition proceedings between Jordan and the United States.
In addition to the Extradition Treaty, Jordan and the U.S. also have a Mutual Legal Assistance Treaty,[15] a type of treaty that many countries sign among each other to agree to provide evidence and other legal assistance in situations where two countries both have jurisdiction to prosecute a crime.[16]
This year, Jordan proclaimed the Extradition Treaty was invalid and noted other concerns that extradition to the United States would violate Al-Tamimi’s Due Process rights.[17] Specifically, the country states the treaty is invalid because it was never ratified by the Jordanian Parliament.[18] In the Extradition Treaty, it specifies the document would not take force until both countries had ratified the treaty according to each’s respective legal system.
In addition to denouncing the treaty itself, Jordan, along with several news outlets, suggest the extradition would constitute a violation of Double Jeopardy principles, the concept that one cannot be prosecuted twice for the same offense.[19] Double Jeopardy is a very significant right and is recognized in the United States and internationally, known as the international principle of “non bis in idem.”[20] Nevertheless, the principle does not bar all secondary prosecutions.
Both of Jordan’s positions are without merit. Not only does Jordan’s refusal directly contravene the treaty and principles of international comity, but it is also arguably placing both Jordan and the rest of the world in danger of a potential future terrorist attack by Al-Tamimi.
First, the treaty should be regarded as valid because Jordan has in the past extradited a Jordanian from Jordan to the United States to face prosecution, tending to suggest it did so at the behest of the agreement. A suspect in the September 11, 2001 bombings, Eyad Ismoil, was arrested in Jordan by Jordanian officials and extradited to the United States.[21] It is unclear whether Jordan takes the position that the treaty was in effect at that time, or whether the treaty was not used for extradition in that case. Either scenario—whether the treaty was never valid, or whether the treaty was valid but no longer is—nevertheless suggest that Jordan should extradite. If the treaty was valid in that case and used for Ismoil’s extradition, it means the treaty was recognized as valid by Jordan at that time which would contradict Jordan’s current position that the treaty was never valid. If Jordan concedes that the treaty was used for Ismoil’s extradition, but no longer desires to be bound by the treaty, the treaty still would not be invalid. This is because the treaty includes a provision that it may only be voided if given notice by the other country, and the nullification would be in effect six months after the notification date.[22] However, here, Jordan never provided notice to the United States of its intention to nullify the treaty. Rather, it only indicated it did not consider the treaty valid after the United States filed a request for Al-Tamimi. Considering this, extradition of Al-Tamimi would still be appropriate.
Even assuming arguendo the treaty is invalid due to the lack of Jordanian ratification, the extradition of Ismoil indicates the treaty is unnecessary for the extradition of Al-Tamimi. If Jordan takes the position that the treaty was not used for Ismoil, it suggests Jordan is willing to extradite without an agreement. Conservatively, it indicates that Jordan would be willing to extradite a suspect in at least the most serious of cases.
Building on this point, international principles of comity would warrant that Jordan defers to the United States’ interest in the present matter—in either recognizing the treaty or recognizing that Jordan could extradite without the treaty. International comity refers to ‘choice-of-law’ and which law should govern an instance, and which interpretation of law should govern in that instance.[23] Though treaties exist outlining instances a country will defer to another’s law, many countries will defer based on diplomacy, mutuality, and respect. The principles of international comity will warrant that the law governing some cases should be that law of which country has a higher interest in the outcome of that case.[24]
Here, the United States arguably has a higher interest than Jordan in prosecuting the Sbarro bombing. The Sbarro restaurant suicide bombing did not kill any Jordanians. Thus, failure to recognize the treaty, or failure to extradite without the treaty undermines international principles of comity.
Concerning Al-Tamimi’s Due Process rights regarding Double Jeopardy, the principle would not bar the United States from prosecuting Al-Tamimi. Though the principle would likely preclude Israel from re-prosecuting Al-Tamimi again for her actions that day, the deaths of the two Americans and the injuries of the additional four Americans provide jurisdiction in the United States. 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 (“ICCPR”).[25] 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.[26]
The principle only bars duplicate prosecutions by the same State. In 2000, the Eleventh Circuit held the ICCPR did not bar the United States from prosecuting an offense after an individual already faced prosecution and conviction in Colombia.[27]
Likewise, the same argument was rejected early this year in the D.C. Circuit, the same jurisdiction that has indicted Al-Tamimi.[28] The argument was made by Nizar Trabelsi last year concerning the United States extradition request to Belgium. The extradition request asked that Trabelsi be transferred to the United States to face charges after he completed his prison term in Belgium.[29] Trabelsi argued first in a Belgium court that extradition to the United States violated the treaty between the United States and Belgium, on the grounds of non bis in idem—or Double Jeopardy.[30] The Belgian court rejected his argument, and he was transported to the United States.[31] Trabelsi then challenged the Belgium ruling in the United States. In a United States District Court, the government argued that the United States court did not have jurisdiction to challenge the Belgian decision on the extradition, taking the position that Belgium’s decision to extradite should not be disturbed. The D.C. Circuit disagreed. It held that the court had authority to review the Belgian decision, but still ultimately ruled that the extradition decision was proper and did not violate the principle of non bis in idem. The Trabelsi decision proves that a Double Jeopardy or non bis in idem argument in Al-Tamimi’s case would lack merit.
The Trabelsi case provides another important precedent for Al-Tamimi. The decision signals that the United States may review extradition decisions made by foreign governments. In Trabelsi’s case, the United States reviewed the decision of whether Belgium’s decision to extradite was appropriate. In Al-Tamimi’s case, the court could, likewise, review whether Jordan’s decision not to extradite was merited. Trabelsi signals the United States is not required to defer to another sovereign’s’ decision not to extradite. Yet, a United States District Court cannot review Jordan’s ruling if Al-Tamimi is not in the United States and present for her proceedings.
Still, the issue is highly relevant if Al-Tamimi ever flees Jordan and is captured in another country willing to extradite Al-Tamimi to the United States. Trabelsi proves that Jordan’s ruling would not govern by default. Thus, if another country captures Al-Tamimi and attempts to decide which country’s interpretation of the treaty is valid, it could logically defer to the United States’ interpretation that the treaty is valid.
What does all this mean? This analysis means the United States should not give up on attempting to extradite Al-Tamimi. If other countries place enough pressure on Jordan due to concerns of Al-Tamimi’s danger and susceptibility to planning another attack, Jordan may change its position. Al-Tamimi is above all else, a significant danger that Jordan should take seriously—if not for the world, for Jordan’s own citizens that live amongst Al-Tamimi.
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. Thwarting extradition not only violates the principle of comity, but it also perpetuates the international danger presented by Al-Tamimi.
About the author:
Ms. Munneke is an alumna of American University’s National Security Law Brief and the American University International Law Review.
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[1] Affidavit, ¶ 16 (July 13, 2013), https://www.investigativeproject.org/documents/case_docs/3258.pdf; see also Pete Williams, Jordan Woman Charged in Terror Attack That Killed Two Americans, NBC News, March 14, 2017, https://www.nbcnews.com/news/us-news/jordanian-woman-charged-terror-attack-killed-two-americans-n733421 (reporting that Al-Tamimi admitted her role in the attack).
[2] See id. ¶ 13-15 (outlining specific fact pattern); see also Roth v. Islamic Republic of Iran, 78 F. Supp. 3d 379, 387-88 (D.D.C. 2015) (discussing details of the attack as relevant in a civil matter).
[3] Affidavit, ¶ 13-15.
[4] Id. at ¶ 16 (discussing Israeli prosecution).
[5] Id.
[6] Affidavit, ¶ 16 (July 13, 2013), https://www.investigativeproject.org/documents/case_docs/3258.pdf; Spencer S. Hsu, U.S. unseals charge against Jordanian woman in 2001 Jerusalem Sbarro bombing, Washington Post, Mar. 15, 2017, https://www.washingtonpost.com/local/public-safety/us-unseals-charge-against-jordanian-woman-in-2001-jerusalem-sbarro-bombing/2017/03/14/6b5a51f8-08f9-11e7-b77c-0047d15a24e0_story.html?utm_term=.bb4c4104cb4d.
[7] Criminal Complaint (July 15, 2013), https://www.investigativeproject.org/documents/case_docs/3257.pdf. Al-Tamimi’s criminal complaint and a warrant for her arrest were filed on July 15, 2013 in the United States District Court for the District of Columbia in Washington, D.C. The complaint and warrant were kept under seal until March 14, 2017. United States Department of Justice, Individual Charged in Connection With 2001 Terrorist Attack in Jerusalem That Resulted in Death of Americans, Justice News (Mar. 14, 2017), https://www.justice.gov/opa/pr/individual-charged-connection-2001-terrorist-attack-jerusalem-resulted-death-americans.
[8] Criminal Complaint (July 15, 2013), https://www.investigativeproject.org/documents/case_docs/3257.pdf.
[9] Memri TV, Released Hamas Terrorist Ahlam Tamimi on Palestinian Public’s Delight at Suicide Bombings, YouTube (Aug. 26, 2012), https://www.youtube.com/watch?v=uH1CS9PGI4Q.
[10] Palestinian Media Watch, Terrorist Ahlam Tamimi murders 15 in Jerusalem but NO REGRETS!!, YouTube (Jan. 20, 2014), https://www.youtube.com/watch?v=wkAuvIQTzWU.
[11] Peter Wilkinson, Why Israelis believe one soldier is worth 1,000 Palestinian prisoners, CNN, October 18, 2011, http://edition.cnn.com/2011/10/17/world/meast/israel-prisoner-swap-explainer/.
[12] Criminal Complaint (July 15, 2013), https://www.investigativeproject.org/documents/case_docs/3257.pdf.
[13] Federal Bureau of Investigation, Most Wanted Terrorists, https://www.fbi.gov/wanted/wanted_terrorists (last visited Oct. 8, 2017).
[14] Extradition Treaty Between the Government of the United States of America and the Government of the Hashemite Kingdom of Jordan, Jordan-U.S., Mar. 28, 1995, S. Treaty Doc. No. 104-3, https://www.congress.gov/104/cdoc/tdoc3/CDOC-104tdoc3.pdf.
[15] Treaty with Jordan on Mutual Legal Assistance in Criminal Matters, Jordan-U.S., Oct. 1, 2013, S. Treaty Doc. No. 114-4, https://www.congress.gov/114/cdoc/tdoc4/CDOC-114tdoc4.pdf.
[16] See generally id. (including text throughout regarding why MLATs are beneficial to both countries agreeing to be bound by them).
[17] Ahlam al-Tamimi: Jordan refuses to extradite her to US, March 21, 2017, http://www.aljazeera.com/news/2017/03/ahlam-al-tamimi-jordan-refuses-extradite-170321191201082.html.
[18] Id. (noting Jordan’s highest court blocked the extradition of Al-Tamimi).
[19] See, e.g., Ali Younes, Ahlam al-Tamimi: ‘We only wanted freedom’, Al Jazeera, March 23, 2017, http://www.aljazeera.com/indepth/features/2017/03/ahlam-al-tamimi-wanted-freedom-170322100407282.html.
[20] International Covenant on Civil and Political Rights, art. 14.7, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171, https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf#page=7.
[21] United States v. Yousef, 327 F.3d 56, 172 (2d Cir. 2003) (charging multiple defendants, including Eyad Ismoil, with crimes relating to involvement in September 11, 2001 World Trade Center attacks in New York City).
[22] Extradition Treaty Between the Government of the United States of America and the Government of the Hashemite Kingdom of Jordan, Jordan-U.S., art. 24, Mar. 28, 1995, S. Treaty Doc. No. 104-3, https://www.congress.gov/104/cdoc/tdoc3/CDOC-104tdoc3.pdf#page=29.
[23] See, e.g., Hartford Fire Ins. Co. v. Cal., 509 U.S. 764, 817 (1993) (discussing and explaining international rule of comity).
[24] See generally Restatement (Third) of the Foreign Relations Law of the United States § 403 (Am. Law Inst. 1987) (discussing interests what would warrant deference to another county’s interests in prosecution where both nations would otherwise have jurisdiction).
[25] International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171.
[26] Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 4.1, Nov. 22, 1984, C.E.T.S. No. 117, http://www.echr.coe.int/Documents/Library_Collection_P7postP11_ETS117E_ENG.pdf#page=2.
[27] See United States v. Duarte-Acero, 208 F.3d 1282 (11th Cir. 2000) (noting the issue was one of ‘first impression’).
[28] United States v. Trabelsi, 845 F.3d 1181 (D.C. Cir. 2017).
[29] Id.
[30] Id.
[31] Tunisian Nizar Trabelsi extradited to US on terror charges, BBC, Oct. 4, 2013, http://www.bbc.com/news/world-us-canada-24393770.