Public Prosecutor v. Viktor Bout

Court	Court of Appeal, Thailand
Case number	3425-3426/2552
Decision title	Appeal against decision on extradition request
Decision date	23 August 2010
Parties	Public Prosecutor, International Affairs Department, Office of the Attorney General Viktor Bout
Categories	Conspiracy, Material support to terrorism, Terrorism
Keywords	arms trade, extradition, weapons trafficking
Links	Decision (in Thai)
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 first instance, the Thai Criminal Court rejected the United States’ extradition request, stating that the charges did not fell within the scope of the extradition treaty. The US appealed.

The Court of Appeal found that extradition is possible, since the charged offenses were punishable both under Thai and US law. Also, the Court disagreed with the Criminal Court on the political nature of the charges. Even though both Courts considered the FARC to be a politically oriented organisation, Bout was not a member of the FARC. Therefore, his offences were ‘ordinary’ offences, the Court reasoned, which fell within the scope of the extradition treaty.

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). The US filed an extradition request, but it was rejected in first instance. The US appealed the decision.

Related developments

On 5 April 2012, Bout was sentenced to 25 years in prison, after being found guilty on all four counts by a 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

The Appeal Court had to determine whether the Criminal Court had erred in rejecting the United States’ first extradition request. This rejection hinged on two issues: the Court considered that extradition was sought for a political offense and had also held that the offense was not punishable under Thai law, as the indictment charged Bout only with attacks against US citizens.

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

In assessing whether the offenses as charged were extraditable, the Appeal Court came to a different conclusion than the Criminal Court. It held that the question is not whether a Thai court can punish the defendant for the alleged acts, but if the offenses are criminal offenses in Thailand or not. ‘In this case, all four charges for the offenses are the same charges for the offenses pursuant to the provisions of Thai criminal law.’ These offenses are punishable by imprisonment for more than 1 year under Thai law. Therefore, the Court held, these offenses are extraditable. It thereafter assessed whether the alleged offenses are of political nature. Contrary to the Criminal Court, the Appeal Court distinguished between the FARC and Bout himself, stating that he is not a member of the FARC acting against the Colombian government, and that the charges against the defendant should be deemed as general crimes in both the US and Thailand. The situation would be different, the Court reasoned, had it been Colombia who had requested extradition. In this case however, the extradition request was granted.

Further analysis

D. Farah and S. Braun, ‘The Merchant of Death’, Foreign Policy, 1 November 2006.
D. Sidorov, 'Alleged Arms Dealer Victor Bout Extradited To The U.S.', Forbes, 24 August 2010.
J. G. Stewart, ‘Overdetermined Atrocities’, SSRN, 26 September 2012.