Chris Travers:
Does extradition count? I.e. is there some way Noriega could argue in a French court that the French government caused the US government to breach the GC’s by having him extradited?

I should have probably read the CA ruling before commenting, but look at what the OP says about it:

The court held, first, that Noriega had failed to “assert any applicable law which would prevent his extradition to France.” (The reasoning goes that the Geneva Convention permits continuing to hold POWs who have committed criminal offenses, and besides, we have a separate extradition treaty with France.) Second, it held that section 5(a) of the Military Commissions Act of 2006–enacted in the waning days of the Republican Congress to provide a statutory basis for trying enemy combatants in military commissions in the wake of Hamdan v. Rumsfeld, 548 U.S. 557 (2006)–provides that “[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action.” The court concluded that “it is within Congress’ power to change domestic law, even if the law originally arose from a self-executing treaty,” slip op. at 10 (citing Medellin v. Texas, 128 S. Ct. 1346, 1359 n.5 (2008)), and that “Congress has superseded whatever domestic effect the Geneva Conventions may have had in actions such as this.” Id. at 11.

This second argument clearly wouldn’t fly in a French court. Under French law, AFAIK, all treaties made have direct effect if they are by their nature capable of having such effect. French Constitution:

Art. 55. – Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.

Assuming the French court agrees with the American court’s interpretation of article 119, I’d say that would be the end of it. If the French court doesn’t agree, I’m not sure what they would do. Most ECtHR extradition case law is about people trying to avoid being extradited to somewhere dodgy, like Soering who complained about the agony of having to spend decades on American death row, and won. (There was no ECHR ban on the death penalty at the time, so he argued it under art. 3, the prohibition of “torture or inhuman or degrading treatment or punishment”.) In a quick search, I can find no ECtHR precedent for the situation where someone is extradited from outside Europe to an ECHR country in a legally problematic way. (I did come across Kerr v Illinois, a 1886 US Supreme Court case about the male captus principle.) When I do, I’ll let you know.

ShelbyC: IIRC there are limits to what is an indictable offense as well. They can’t be charged for crimes commited as part of legitimate combat, can they?

No, if for no other reason than that such acts wouldn’t normally be crimes. (But you can’t make being an enemy soldier a crime, AFAIK.)

SW:
The last sentence says directly that they can be: The same shall apply to prisoners of war already convicted for an indictable offence.

That’s not my reading. I would say that sentence contemplates a transfer of the detainee from the POW camp to a prison, at which time his status changes from POW to civilian prisoner.

IIRC there are limits to what is an indictable offense as well. They can’t be charged for crimes commited as part of legitimate combat, can they?

It seems to me this still means someone can’t be a POW and a criminal prisoner at the same time.

The last sentence says directly that they can be: The same shall apply to prisoners of war already convicted for an indictable offence.

Martinned: Even under the rules of the ECHR, France is not responsible for acts of the US authorities, at least not unless France somehow caused them.

Does extradition count? I.e. is there some way Noriega could argue in a French court that the French government caused the US government to breach the GC’s by having him extradited?

Section II. Release and Repatriation of Prisoners of War at the Close of Hostilities

Art 118. Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.
(…)
Art 119. (…)
Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence.

It seems to me this still means someone can’t be a POW and a criminal prisoner at the same time. Until the cessation of hostilities, a POW remains a POW, and afterwards he can be tried for any crimes he may have committed.

So yes, I was (mostly) wrong.

Let us suppose that a crime was committed in the U.S. in 1937. The perpetrator was not then known. The perpetrator, for unrelated reasons, moved to Italy. He he entered the Italian army and was taken prisoner by U.S. forces in Sicily in 1943. In 1944, evidence came to light identifying the perpetrator. Can the U.S. now indict him for that crime? Suppose he was captured by British forces and held prisoner in the U.K. (many Italians PoWs were farm laborers during during the war). Can Britain extradite him to the U.S.?

Suppose a German who had committed a crime in Switzerland in 1927 was captured by U.S. forces in France in 1944? Could the U.S. extradite him to Switzerland?

Or to take an even weirder question: an Italian commits a crime in Naples in 1939. He is not then detected. In 1942 he is captured by British forces in Libya. In 1944, after the Allied occupation of southern Italy, the Naples police get evidence against him. Can the Allies turn him over to the Italian authorities?

Or, in all of these cases, does the criminal prosecution have to wait on the end of the war?

Chris Travers: Another interesting question to my mind is that his detention, as a POW, might not be legal at this point anyway. It might not have been legal at the point the MCA was enacted.I wonder if there is any remedy in France (which presumably takes the GC’s somewhat seriously) for this sort of issue? Maybe they can sentence him to time served in the US?

Even under the rules of the ECHR, France is not responsible for acts of the US authorities, at least not unless France somehow caused them. (For example by asking the Americans not to release him for a bit longer.) The Eichmann-rule of male captus, bene detentus isn’t good law anymore, but I don’t think French law would provide a remedy for a case where the extradition itself is lawfully arranged.

Whether they would sentence him to time served depends, of course, on whether he served any time at all. POWs don’t “serve time”, they’re just being detained. If he is found to have served time already, the regime on concurrence would apply. Quick lesson for my American friends (from the French government’s official translation of the French penal code):

ARTICLE 132-2
There is a concurrence of offences where an offence is committed by a person before having been finally convicted for another offence.

ARTICLE 132-3
Where, in the course of the same proceedings, the accused person is found guilty of several concurrent offences, each of the penalties applicable may be imposed. Nevertheless, where several penalties of a similar nature are incurred, only one such penalty may be imposed within the limit of the highest legal maximum.
Each penalty imposed is deemed to be common to the concurrent offences within the limit of the legal maximum applicable to each one of them.

ARTICLE 132-4
Where, in the course of separate proceedings, the person prosecuted is convicted of several concurrent offences, the penalties imposed operate cumulatively, up to the limit of the highest legal maximum. Nevertheless, the partial or total concurrent running of sentences of a similar nature may be ordered either by the last court called upon to determine the matter, or pursuant to the conditions set out under the Code of Criminal Procedure.

ARTICLE 132-5
For the purposes of articles 132-3 and 132-4, all custodial sentences are of a similar nature and all custodial sentences run concurrently within a life sentence.
Recidivism is taken into account, where relevant.
Where criminal imprisonment for life is applicable to one or more of the concurrent offences but is not imposed, the legal maximum is fixed at thirty years’ criminal imprisonment.
The legal maximum amount and length of day-fines and of community service work is determined by articles 131-5 and 131-8 respectively.
The benefit of partial or total suspension applied to one of the penalties imposed for concurrent offences does not prevent the enforcement of sentences of a similar nature which are not suspended.

Sentencing people to 15 consecutive life sentences is generally not considered sensible arithmetic outside the United States.

Martinned: O, and another thing: Is he a POW or a criminal prisoner? AFAIK, you can’t be both at the same time, except for crimes committed in detention. So if a court has declared him to be a POW, how come he’s still being detained, even though the US aren’t at war with Panama (anymore)? And how come he will now be extradited, even though IIRC that’s not allowed for POW?

Another interesting question to my mind is that his detention, as a POW, might not be legal at this point anyway. It might not have been legal at the point the MCA was enacted.

I wonder if there is any remedy in France (which presumably takes the GC’s somewhat seriously) for this sort of issue? Maybe they can sentence him to time served in the US?

As an aside, note that the D.C. Circuit’s important war on terror detention opinion today, Al-Bihani v. Obama, notes that “the MCA of 2006, in a provision not altered by the MCA of 2009, explicitly precludes detainees from claiming the Geneva conventions—which include criteria to determine who is entitled to P.O.W. status—as a source of rights. See 2006 MCA sec. 5(a).” (Thanks again to the eagle-eyed Steve Engel for the tip.)

Withdrawal (or at least purported withdrawal) from a treaty by later statute, cool!

(Think of how much fun we would have missed if the US procedure for ratification had been the same as for passing a statute, as it is in most countries.)