Public Prosecutor v. Viktor Bout

Court	Criminal Court, Thailand
Case number	2551
Decision title	Decision on extradition request
Decision date	11 August 2009
Parties	Public Prosecutor, Office of the Attorney General Viktor Bout
Categories	Conspiracy, Material support to terrorism, Terrorism
Keywords	arms trade, weapons trafficking
Links	Decision
Other countries involved	Russian Federation United States

Summary

Viktor Bout, a notorious international arms dealer also known as the Merchant of Death, was alleged of trafficking weapons to several African warlords, dictators in the Middle-East and the Colombian FARC. The US Drug Enforcement Administration (DEA) decided to catch him through a sting operation in which DEA officers posed as FARC fighters and attempted to order about hundred anti-air missiles and weapons "to use against Colombian and United States nationals" in Colombia. The operation succeeded and Bout was caught by police forces in Thailand. In the first instance verdict discussed here, the Thai Court denied the US petition to extradite Bout, stating that the crimes of which Bout was accused did not fall within the scope of the Extradition treaty between the United States and Thailand. Thailand did not consider the FARC to be a terrorist organisation and the Court held that the US accused Bout of a political offense, for which extradition was not possible. Moreover, the Court held that the crimes of which Bout was accused were not punishable in Thailand, as the offense was committed against ‘foreigners outside Thailand’.

Procedural history

Viktor Bout was widely believed to be an important international arms trafficker involved in transactions with African warlords, dictators in the Middle-East and the Colombian FARC movement. Also, he was identified as an illicit arms dealer in a 2000 UN report about the civil war in Angola.

The Belgian prosecutor issued an arrest warrant against him in 2002 for money laundering, but a Brussels court dismissed the case against him on limitation grounds. However, US authorities in cooperation with the Thai police managed to arrest Bout in Bangkok, Thailand, in 2008. The US charged Bout with conspiracy to kill United States nationals, conspiracy to kill officers and employers of the United States, conspiracy to acquire and use anti-aircraft missiles and conspiracy to provide material support and resources to a foreign terrorist organisation (the FARC). Therefore an extradition request was filed.

Related developments

The US appealed against the decision of the Criminal Court. The Appeal Court overturned the decision and granted the request for Bout’s extradition on 23 August 2010. On 5 April 2012, Bout was sentenced to 25 years in prison, after being found guilty on all four counts by a US jury on 2 November 2011. He decided to appeal the judgment, but to no avail: on 27 September 2013, his complaints were dismissed and the conviction affirmed.

Legally relevant facts

Bout was identified in a UN report on the Angolan civil war in 2000. However, he ultimately stood trial on the charge of conspiring to provide weapons to the FARC, which would be used against nationals and properties of the United States in Columbia. He was arrested in March 2008 during a sting operation in Thailand, with undercover US DEA agent posing as rebels from the FARC.

Core legal questions

In order to determine whether Bout should be extradited to the United States, the Court had to determine, firstly, whether Bout was the person sought for extradition. Secondly, it had to determine whether there had been sufficient evidence for a detention order. Thirdly, the Court had to assess whether the offense is extraditable. Regarding the latter, the Court had to assess whether the crime of which Bout was accused is punishable under the laws in both Thailand and the US by deprivation of liberty for a period of one year or more or by a more severe penalty. Also, the Court had to assess Bout’s contention that the extradition request was of a political character.

Specific legal rules and provisions

Section 2332(b) of Title 18 of the US Code (conspiracy to kill US nationals).
Section 1114 and 1117 of Title 18 of the US Code (conspiracy to kill US officials and employees).
Section 2332(g) of Title 18 of the US Code (conspiracy to acquire and use anti-aircraft missiles).
Section 2339B of Title 18 of the US Code (conspiracy to provide material support and resources to a foreign terrorist organisation).
Section 3238 of Title 18 of the US Code (Offenses not committed in any district).
Articles 2 and 3 of the Thailand International Extradition Treaty with the United States.

Court's holding and analysis

The Court stated that the crimes with which Bout was charged were violations of US criminal law, which are punishable by imprisonment for more than 1 year (p. 34). The FARC, the Court held, ‘spent the monies derived from committing offenses to support fighting operations against the Government of Colombia, not for its own wealth’. The court considered that there was no evidence that FARC would use the weapons purchased from Bout to attack American goals in Colombia. Therefore, the government considered the crimes with which Bout was charged as political offenses, for which extradition is not possible (pp. 38-41). The Thai Court held, moreover, that the FARC was not considered by Thailand as a terrorist organisation (p. 46). Also, the Court held that the crimes with which Bout was charged were not punishable in Thailand, as the offenses were committed ‘against the foreigner outside Thailand’ (p. 44). Therefore, the extradition request was rejected.

Further analysis

D. Farah and S. Braun, ‘The Merchant of Death’, Foreign Policy, 1 November 2006.
J. G. Stewart, ‘Overdetermined Atrocities’, SSRN, 26 September 2012.