Germany releases Iranian in prisoner swap rather than extraditing him to the United States

Published: 4 November 2021 Author: Stefan Talmon

On 6 February 2018, the U.S. judicial authorities requested the provisional arrest of the Iranian citizen Ahmad Khalili, who was wanted for illegally procuring goods originating in the United States. Mr. Khalili, who worked for Iran’s government-controlled Meraj Air, was alleged to have procured Cessna planes and parts for delivery to Iran in violation of U.S. sanctions against the country. The German authorities arrested him at Frankfurt Airport on 9 February 2018. After Mr. Khalili had been formally indicted before the U.S. Federal District Court for the District of Columbia on 7 March 2018, the U.S. Embassy in Berlin sent a formal request for extradition to the Federal Foreign Office on 5 April 2018. Four days later, the Higher Regional Court in Frankfurt ordered his detention for the purpose of extradition. In May 2019, the Higher Regional Court in Frankfurt declared the Mr. Khalili’s extradition to the United States permissible.

Mr. Khalili, however, was never extradited to the United States but instead returned to Iran. On 12 February 2020, the Higher Regional Court in Frankfurt ordered him to be released because, after more than two years in detention, a further extension of the arrest warrant was considered disproportionate despite the possible flight risk. The release order came right in time for Mr. Khalili to fly home with Iran’s Foreign Minister, Mohammad Javad Zarif, who had been in Germany to attend the Munich Security Conference. Mr. Khalili returned to Tehran on 16 February 2020 and the next day a German citizen who had been serving a three-year sentence for taking photographs and videos of “sensitive locations” in Iran was released and arrived back in Germany.

During the regular government press conference on 19 February 2020, the spokesperson for the Federal Foreign Office made the following statement:

“We are very glad that a German citizen was released from Evin prison in Tehran following intensive diplomatic and humanitarian efforts and has returned safely to Germany.”

Two days earlier, the spokesperson for the Iranian Foreign Ministry had stated that Mr. Khalili was freed through “intensive diplomatic negotiations” and with “the effective cooperation of Iran’s judiciary and the Revolutionary Guard’s Intelligence Organisation.”

Contrary to reports in the media, the U.S. Government’s outrage over Mr. Khalili not being extradited was limited. The United States, as well as other countries, have acted in similar ways in order to secure the release of their nationals held by Iran as political pawns to be traded for its own officials or other concessions. Initially, the release of Mr. Khalili was part of a larger deal also involving the release of U.S. citizen Michael White, detained in Iran since 2018. It was only after the killing of Iranian General Soleimani in a U.S. done attack that Iran opted to negotiate directly with Germany to secure Mr. Khalili’s return.

The prisoner swap was made possible by the fact that extradition is not automatic upon receipt of an extradition request. The Treaty between the Federal Republic of Germany and the United States of America Concerning Extradition provides:

“The Contracting Parties agree to extradite to each other subject to the provisions described in this Treaty persons found in the territory of one of the Contracting Parties who have been charged with an offense or are wanted by the other Contracting Party for the enforcement of a judicially pronounced penalty or detention order for an offense committed within the territory of the Requesting State.”

The obligation to extradite, however, is not absolute, as can be seen from Article 19 of the Extradition Treaty. This article provides that the requested State shall promptly communicate to the requesting State the decision on the request for extradition and shall give reasons for any complete or partial rejection of that request. Germany informed U.S. authorities of Mr. Khalili’s release during the Munich Security Conference, attended by U.S. Secretary of State Mike Pompeo and German Foreign Minister Heiko Maas.

Extradition procedure in Germany is historically divided into two stages: the judicial decision on the legal permissibility of extradition and the political decision on the authorisation of extradition by the Federal Government. The authorisation decision is taken by the Federal Ministry of Justice in agreement with the Federal Foreign Office. Extradition is considered a part of foreign relations. When deciding on whether to authorise an extradition, the Federal Foreign Office may take into account foreign policy and general political considerations, which are not subject to judicial review. While the Federal Government could not order the Higher Regional Court in Frankfurt to release Mr. Khalili in order to exchange him for a German detainee in Iran, it could influence the court’s decision by either prolonging the decision on authorisation or declaring to the court outright that it would not authorise the extradition. The Federal Foreign Office can thereby bring about a situation in which the court has no other option than to release a person detained for the purpose of extradition. Once the government declares to the court that it will not authorise extradition, there is no longer any legal basis for this kind of detention; if the government overly delays the decision, detention for the purpose of extradition becomes disproportionate and must be lifted.

Category: Jurisdiction of the State

DOI: 10.17176/20220627-172626-0

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  • Stefan Talmon

    Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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