West Germany's extradition dilemma

WEST GERMANY appears caught in a dilemma. It can extradite to the United States Muhammad Ali Hamadi, wanted there in connection with the TWA hijacking and murder of Robert Stetham in June 1985, in accord with its obligations under a June 1978 extradition treaty. In doing so, it risks the death of at least two innocent West Germans now in the hands of the Hizbullah (Party of God) in Lebanon.

If West Germany, on the other hand, decides to release Mr. Hamadi, it will have to grapple with the ensuing political and legal implications. The pressures to bargain with the Hizbullah are immense.

Significant constituencies exist in West Germany and in the world at large for either course.

Political forces pulling toward a bargaining stance with the Hizbullah include West Germany's relations with various Middle Eastern states and its oil and investment concerns. Also pulling toward a bargain is the notion - hitherto attractive to several European countries - that ``neutrality'' in Middle Eastern struggles can be bought by allowing potential ``terrorists'' to pass over a nation's territory and through its airports as long as no crime is committed against local law in the process.

The US has shown its contempt for international law by its withdrawal from the World Court after a disagreement over the legality of US activities in Nicaragua and by its rhetoric in many other areas. Certainly that gives West Germany ample basis for citing the US case against itself regarding the sanctity of law, including treaty-based law. Also, American bargaining with Iran over the release of American hostages held by the Hizbullah in Lebanon encourages West Germany to follow suit, dealing directly with the Hizbullah if necessary. The encouragement is there - even at the expense of the US interest in trying an accused hijacker of an American aircraft and murderer of an American passenger.

Aside from US dismay, political forces pulling in the other direction include the difficulty of agreeing with France and other West European countries on extraditing Red Army Faction members and other possible West German ``terrorists.'' But those factors exist in a European context. Mutual interest is easier to demonstrate in that context than in West German interest in cooperating with the US with respect to Middle Eastern fanatics.

But West Germany's interests are not well served by adopting either the US or the Hizbullah view of the world. Bonn's primary interest is best served by adopting a more rigid stance of neutrality regarding the struggles of the Middle East.

That means acknowledging that Hizbullah and, indeed, all the political movements and militias of the Middle East, including even Abu Nidal and the Palestine Liberation Organization, regard themselves and are regarded by the people of the Middle East as belligerents.

No trials for murder occur in Lebanon when an Amal, Hizbullah, Falangist, Druze, or any other factional fighter is caught by anybody in the area. No tort trials seek damages for the destruction of property or injury to people that occurs either deliberately or through negligence in the course of the fighting in Lebanon.

Yet the area is not lawless. Israel and various Lebanese factions apply the law of belligerent occupation in the areas they control. Prisoners are treated as prisoners of war, even if the formal status is not conceded, and exchanged in one-sided deals at the end of each flurry of military activity. Obviously, without explicit declarations, the international law of war is being applied.

If Bonn gave Mr. Hamadi the treatment he would be entitled to under the law - as Syria accorded Lt. Robert Goodman, the US Navy bombardier shot down over Lebanon in December 1983, the result would be Hamadi's extradition to the US. That would be defensible as the only act West Germany could take that would be consistent with the Hizbullah's own legal claims and with West German commitments to most of the world, including Lebanon and Iran, under the 1949 Geneva Conventions.

Under those conventions, the killing of Mr. Stetham would constitute a ``grave breach'' of the law even if he were considered a captured ``enemy soldier'' by the Hizbullah. Taking civilian hostages violates the conventions in the same manner. The legal result would oblige all parties to the conventions to seek out Hamadi and others accused of a ``grave breach'' and either try them or extradite them to another concerned party for trial.

Whatever it may do about Hamadi's local offense of transporting explosives, West Germany has no jurisdiction over the TWA hijacking or the murder of Stetham and cannot try him for those offenses. The US does have such jurisdiction and can try him. West Germany's failure to extradite Hamadi would thus violate the bilateral extradition treaty that helps to fulfill the 1949 convention obligations. The failure to extradite would also violate the conventions themselves.

The West German answer to the Hizbullah and others who urge the release of Hamadi is not that West Germany has obligations to the US. Bonn argues, rather, that it has a political obligation to its own people to maintain ``neutrality'' toward the struggles of the Middle East. Bonn adds that it has a legal obligation to the entire world, flowing not only from that ``neutrality'' but from the integrity of the rules in the 1949 conventions.

Extradition of Hamadi is necessary to discharge those obligations even if it leads to a further commission of war crimes, such as the execution of innocent West German civilians by the Hizbullah. There is no dilemma; it is only a wrenching situation made worse by continued disregard of the law by those whose interest would seem to lie in helping to enforce the law.

Alfred P. Rubin is a professor of international law at the Fletcher School of Law and Diplomacy, Medford, Mass.

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