The Practice of National and International Courts on Transnational Seizure: Is a Fair Balance between Human Rights and Accountability Possible?
| Date | 01 December 2004 |
| Published date | 01 December 2004 |
| DOI | 10.1177/016934410402200402 |
| Author | Francesco de Sanctis |
| Subject Matter | Part A: Article |
THE PRACTICE OF NATIONAL AND INTERNATIONAL
COURTS ON TRANSNATIONAL SEIZURE:
IS A FAIR BALANCE BETWEEN HUMAN RIGHTS
AND ACCOUNTABILITY POSSIBLE?
FRANCESCO DE SANCTIS*
Abstract
In the absence of or in order to circumvent extradition procedures States have often resorted to
transnational abduction or informal surrender to ensure that criminal suspects residing abroad
are brought to justice. This article will consider the implications of these devises for the world
order and individual human rights through an assessment of the point of view of domestic and
international courts which dealt with the issue of transnational seizure. Particular attention
will be paid to the recent and important decisions delivered by the US jurisdiction in the
Alvarez-Mechein Case under the Alien Tort Claims Act, the European Court for Human
Rights in the O
¨calan Case and the International Tribunal for the former Yugoslavia in the
Nikolic Case. The purpose is to determine whether the judicial practices under consideration
could be deemed to attain a fair balance between accountability and the respect of fundamental
human rights.
1. INTRODUCTION: THE PROBLEM OF TRANSNATIONAL SEIZURE
Public interest in the prosecution of crime has led to the development of
international cooperation and mutual assistance between States in order to ensure
that criminal suspects residing abroad are handed over to the prosecuting State to
stand trial. States have generally pursued this goal through extradition, either in the
form of bilateral and multilateral treaties or on the basis of reciprocity or comity.
1
However, as a matter of fact, States have often resorted to a range of alternative
rendition devices aimed at circumventing official, and frequently cumbersome,
procedures. In many cases, transnational fugitive offenders have been abducted by
State agents on foreign soil or informally surrendered to the prosecuting State
(hereinafter ‘the requesting State’) by the State where they sought refuge
(hereinafter ‘the requested State’) in absence of any legal procedure.
PART A: ARTICLES
Netherlands Quarterly of Human Rights, Vol. 22/4, 529-557, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 529
* Attorney at law, Ph.D. candidate University of Rome ‘la Sapienza’, LLM (distinction) University of
Essex, the United Kingdom. This article was originally the dissertation prepared for the LLM in
International Human Rights Law at the University of Essex. The author would like to thank his
supervisor Prof. Geoff Gilbert for his excellent observations, ideas, and creativity that inspired his
work.
1
On extradition see Gilbert, G., Aspects of Extradition Law, Martinus Nijhoff, Dordrecht/Boston, 1991;
and Bassiouni, M.C., International extradition and world public order, A.W. Sijthoff, Leyden and
Oceana, Dobbs Ferry, 1974.
530
The legal status under international law of these devises (which will be
cumulatively referred, throughout the article, as transnational seizure) is a long-
standing topic of scholarly dispute and much has been written on it. It is generally
recognised that they may give rise to three different kinds of violations of
international law affecting the rights of the State where the apprehension takes
place or the human rights of the abducted: a) a violation of the territorial
sovereignty of the requested State, if the abduction is undertaken without the
consent of the latter; b) a violation of a treaty, usually an extradition treaty, between
the requested and the requesting State; c) a violation of international human rights
norms, in particular those pertaining the right to liberty and security and to a fair
trial.
2
However, the picture gets much more complicated when it comes to the related
but, indeed, different issue of whether courts should try an individual regardless of
the circumstances of his seizure (in accordance to the Roman law maxim male captus
bene detentus)
3
or divest themselves of jurisdiction on those apprehended in violation
of international law.
The present article will address this legal dilemma through an assessment of the
decisions of national and international courts which dealt with the issue of
transnational seizure. It will seek to establish which of these decisions could be
deemed to attain a fair balance between accountability and the respect of
international human rights. It will also try to determine whether the examined
case law provides a consistent pattern from which a norm of customary international
law, confirming or reversing the mala camptus bene detentus principle, could be
construed.
Particular attention will be paid to three authoritative judgements recently
delivered by the US Court of Appeals for the 9
th
Circuit in the Alvarez-Machein Case
under the Alien Tort Claims Act, the International Criminal Tribunal for the former
Yugoslavia in the Nikolic Case and the European Court of Human Rights in the
O
¨calan Case, which call for a careful assessment of their possible implications on
individual’s human rights in the context of the global fight against international
terrorism.
Accordingly, paragraph 2 will explore and evaluate the relevant practice of
domestic courts; paragraph 3 will examine the case law of international criminal
tribunals with regard to the distinct issue of the prosecution of war criminals;
paragraph 4 will be devoted to the assessment of the human rights dimension of
transnational seizure through the practise of the European Court of Human Rights.
2. ADJUDICATING ON TRANSNATIONAL SEIZURE IN THE PRACTICE
OF DOMESTIC COURTS
This paragraph presents a survey of the leading decisions in which national courts of
various countries had to determine whether they should refuse to try an individual
brought before them through transnational abduction or informal surrender.
Francesco de Sanctis
2
See Michell, P., ‘English-Speaking Justice:Evolving Responses to Transnational Forcible Abduction
After Alvarez-Machain’, Cornell International Law Journal, Vol. 29, No. 2, 1996, at p. 411.
3
On the rationale of the male captus bene detentus principle, see ibidem, at pp. 392-393. For a critique of
the validity of this maxim, see Bassiouni, op.cit. (note 1), pp. 143-145.
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