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.
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.