NCJ Number
62570
Journal
International Lawyer Volume: 5 Issue: 1 Dated: (JANUARY 1971) Pages: 27-52
Date Published
1971
Length
26 pages
Annotation
SITUATIONS ARE EXAMINED IN WHICH STATES RESORT TO FORCE OR FRAUD IN THE CAPTURE OF AN INDIVIDUAL RESIDING INDIVIDUAL BEFORE A TRIBUNAL A TRIBUNAL.
Abstract
THE PRESENCE OF A FUGITIVE OUTSIDE THE EFFECTIVE CONTROL OF THAT STATE WISHING TO TRY HIM OR HER OFTEN MOTIVATES THE STATE TO RESORT TO RADICAL MEASURES TO CAUSE THE FUGITIVE'S RETURN. RESORT TO EXTRALEGAL MEASURES TO ACHIEVE SUCH ENDS DISRUPTS INTERNATIONAL RELATIONS, DEPRIVES CITIZENS OF THE SECURITY OF STATE SOVEREIGNTY, AND CREATES UNCERTAINTY IN THE SAFETY OF COMMERCIAL TRANSPORTATION. EXAMINATION OF INTERNATIONAL LAW INDICATES THAT UNDER THE CHARTER OF THE UNITED NATIONS, THERE MUST BE NO USE OF FORCE OR RETALIATION CONCERNING THE RECOVERY OF FUGITIVES. INSTEAD, ORDERLY PROCEDURES OF INTERNATIONAL EXTRADITION MUST BE DEVELOPED, AND TRIBUNALS SHOULD REFUSE TO ACCEPT PROSECUTIONS IN WHICH THE DEFENDANT HAS BEEN BROUGHT TO TRIAL BY MEANS OF FORCE IN VIOLATION OF INTERNATIONAL LAW. SUCH A PRACTICE WOULD BE IN ACCORDANCE WITH FRENCH AND GERMAN PRIZE COURT PROCEDURES BUT WOULD CONTRADICT THE DECISIONS OF AMERICAN COURTS WHICH HAVE UPHELD PROSECUTIONS OF ILLEGALLY EXTRADITED CRIMINALS. FOR EXAMPLE, THE UNITED STATES SUPREME COURT REPEATEDLY DENIED HABEAS CORPUS RELIEF TO CRIMINAL DEFENDANTS BROUGHT BEFORE STATE COURTS AFTER BEING KIDNAPPED IN A SEPARATE JURISDICTION BY POLICE OFFICERS. ADMITTING THAT SUCH BEHAVIOR MAY CONSTITUTE A VIOLATION OF THE FEDERAL KIDNAPPING LAW, THE COURT HAS FOUND NO ALTERNATIVE TO PROSECUTION. NEVERTHELESS, EUROPEAN COURTS HAVE SHOWN GREAT RELUCTANCE TO EXERCISE JURISDICTION UNDER SUCH CIRCUMSTANCES. ALTHOUGH ISRAEL'S KIDNAPPING OF ADOLF EICHMANN FROM ARGENTINA WAS NOT CHALLENGED BY ISRAELI COURTS, THE UNITED NATIONS CONSIDERED THE ACTION TO BE INCOMPATIBLE WITH THE PRESERVATION OF PEACE, AND ISRAEL APOLOGIZED FOR THE INCIDENT. THE USE OF INTERNATIONAL TRIBUNALS MAY PROVIDE AN EFFECTIVE ANSWER TO PROBLEMS OF SECURING JURISDICTION OVER INDIVIDUALS MOVING FROM STATE TO STATE. FOOTNOTES ARE PROVIDED. (TWK)