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104 American Journal of International Law 641-47
The October 2010 issue of the American Journal of International Law includes litigation partner Jacques Semmelman's case comment on the Second Circuit's most recent decision in the area of international extradition law, Sacirbey v. Guccione, 589 F.3d 52 (2d Cir. 2009). The case comment appears at 104 Am. J. Intl. L. 641-47 (2010).
Mohamed Sacirbey, a former ambassador of Bosnia and Herzegovina ('Bosnia') to the United Nations, was charged by Bosnia with embezzling funds from the embassy's accounts. Sacirbey was arrested in New York, and Bosnia requested Sacirbey's extradition. Sacirbey argued that because of a judicial reorganization in Bosnia, the arrest warrant issued by the Bosnian court was no longer in force, as a result of which his extradition was barred under the pertinent extradition treaty. The U.S. extradition magistrate nevertheless certified him as extraditable, and the U.S. district court denied Sacirbey's petition for a writ of habeas corpus. On appeal, the U.S. Court of Appeals for the Second Circuit reversed the district court and issued the writ. In a 2-1 decision, the Second Circuit majority accepted Sacirbey's argument that because of the judicial reorganization in Bosnia, the pre-reorganization arrest warrant could not serve as the basis for extradition. The dissent would have upheld the denial of the writ and would have allowed extradition.
In his case comment, Mr. Semmelman analyzed the majority and dissenting opinions, and concluded that the majority's decision is subject to serious criticism. Among other deficiencies, the majority did not apply the correct legal standard in interpreting the extradition treaty. In addition, Mr. Semmelman noted that the government had completely overlooked an argument, based upon Supreme Court case law, that would have provided an independent and compelling ground for affirmance.