Is State-sponsored International Abduction of Fugitive Criminal Defendants Always Illegal? (by Anozie Awambu)

 

Introduction

3.40 pm, 23 May 1960. Prime Minister Ben Gurion calls the cabinet meeting to order.

"Our security services have long been looking for Adolf Eichmann, and in the end, they found him, he’s in Israel and will stand trial here”, he says in Jewish. 

“Ve macht man das? [How…how does one do that?]”, blurts Transport Minister Yitzhak Ben-Aharon.   

“That is why we have a security service”, the Prime Minister snaps back.

But was he right? Israel would go on to face a fiery backlash from the international community.  Yet, did that faze Isreal?

This piece blends history and law to examine whether, in some circumstances, international law allows a State to resort to abduction to advance its criminal justice machinery. It touches on such critical issues as protecting national security, anti-terrorism efforts, human rights, justice, and the rule of law.

Ancient practice in statecraft

With origins dating to antiquity, the apprehension of escaping criminal suspects has been an essential aspect of statecraft. Following a failed Hittite attempt to invade Egypt, King Hattusili III and   Pharaoh Ramses II  struck the Treaty of Kadesh to patch up their differences.  It was written in hieroglyphics, circa 1259BC (more than 3000 years ago), and remains the earliest known diplomatic document of any type.  Its texts were carved onto a temple stone in Egypt, with duplicate cutting onto a baked-clay tablet, kept in the Hittite King's palace. Amazingly, both versions still exist. They contain a chapter providing for the reciprocal handing back of fugitives.

Byzantine Emperor Justinian is a looming figure in Roman restoration and civil law historiographies. Among his spectacular achievements were the legislations and annotations he issued from 529 to 534D. Compiled into a compendium known today as 'Corpus Juris Civilis', they are fundamental works in jurisprudence.  In the compendium’s most crucial volume, entitled Digest, there were provisions regarding the transfer of fugitives between the colonies.

And when England and Scotland made the Treaty of Falaise of 1147AD; they were sure to insert articles on the mutual transfer of escaping criminals.

Yet, it was not always possible to effect all transfers through cooperative or collaborative means. Nations frequently abducted fugitives from outside their territories and brought them back to face trials.  Oedipus, the tragic hero in Greek mythology, accidentally killed his father and unknowingly married his mother, unleashing a foretold disaster on their city-state of Thebe.  In exile in Kolonos, blind and miserable, he still had to defend himself against agents from Thebe who tried to bring him back to their territory to face trial.

John Story's abduction by English agents in Antwerp in 1569 is another example. After being arrested on high treason charges for instigating a Catholic uprising against the English Crown, he escaped. With the aid of Spain's Ambassador in London, he reached asylum in Flanders (now in Belgium), a Spanish territory at the time. In his 7th year in exile, English agents trailed and lured him to board a ship in Antwerp. Once on board, they set sail to England where, despite Spain's protests, he was tried, sentenced, and executed by hanging and dismemberment.

International apprehension in modern times

Various methods of transferring fugitives have since evolved. The following methods, broadly speaking, are practised today.

 

Rendition

Developed from the word "render" – meaning, "to hand back" - rendition means transferring a person from one jurisdiction to another that possesses a better right to instigate trial. Deportation and extradition are forms of rendition, although the latter is the more preferred method these days.  Given that it involves a judicial process,  there is a general belief that extradition protects against human rights violations by the requesting State. Plus, it can check the two States from colluding to target persons who fled political persecution in good faith.

Interpol's Red Notice often comes up in rendition discussions.  However, a Red Notice is neither a rendition mechanism by itself nor even an arrest warrant. If the Interpol places someone on the Red Notice following State's request, the Red Notice only informs all Interpol members' domestic police that the person is a wanted suspect in the requesting country. Each domestic authority decides whether to act upon that notice. If it chooses to act, it will first issue an in-country arrest warrant to its operatives. Upon the arrest, it will alert the requesting State, who will then commence a rendition process or route that is legally appropriate in the circumstance. Usually, this would be through extradition.

Deportation

Deportation implies expelling a foreigner whose presence in the territory of a state is unlawful or deemed undesirable. Deportation typically deals with illegitimate presence, not essentially whether the person is a criminal fugitive. Thus, if a fugitive is present in the country unlawfully, they can be deported to whence they came or another appropriate territory. That can serve a rendition purpose or produce such effect by concomitance.

Extradition

Extradition functions under the framework of a treaty and through judicial means. The purpose is to secure, by judicial means, the transfer of a person to a country where they committed a crime to face trial there. Numerous countries have ratified such treaties, which often list the kinds of crimes for which a State might seek extradition and prescribes how to initiate and handle the process. Typically, the State seeking a person's extradition would make a formal request to the transferring State. The request will trigger lengthy judicial hearings in the transferring State’s domestic courts. If the court feels satisfied that extradition is merited, it will order that the person be transferred to the receiving State following the procedures set out in the enabling treaty.

Courts would typically not extradite someone to a country that might violate their human rights through torture, unethical interrogations, or detention in cruel conditions. For example, in 2019, the Westminster Magistrates’ Court in the UK rejected Nigeria’s extradition request regarding one Mr Ogunnowo. It was Nigeria’s second-ever extradition request to the UK.  The court cited, among other things, the appalling treatment of prisoners in Nigeria.

Treaties usually exempt political crimes from extradition. Interestingly and leading to a dilemma, some recent international instruments– such as the European Convention on the Suppression of Terrorism of 1977 - were explicitly created to prevent terrorism crimes from being classified as political crimes.

Extraordinary rendition

The United States introduced extraordinary renditions in the 1980s, but the practice has increasingly continued since 9/11 and the ensuing war on terror. It implies transferring a person from the US or another country to another country to be detained or interrogated. Often, the objective is to circumvent US laws prohibiting unethical interrogation methods.   In short, it is a 'torture-by-proxy' arrangement.

Extraordinary rendition subjects are usually terrorism crime suspects, ranging from those lawfully arrested to others stealthy spirited away. Subjects are transferred just for questioning or interrogation but not to face trial for a crime committed. Hence, the rendition is "extraordinary”.

The cases are replete.  In 2014, the European Court of Human Rights ("ECtHR") heard Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland. It determined that Poland violated the applicants' rights under the European Convention on Human Rights ("ECHR") by enabling the United States to secretly transfer, detain and torture the applicants on Polish soil. CIA has secretly transferred suspects to face torture in Lithuania, Morocco, Romania, Afghanistan, Egypt, Thailand, and others. As of February 2013, the Open Society for Justice Initiative reported that from 2001-2012, at least 136 individuals were extraordinarily renditioned to or with the participation of 54 other countries.

Abduction

Abduction is often erroneously called "extraordinary rendition'" due to the latter's infamy and negative media coverage.  Though it is common to abduct extraordinary rendition subjects, that still differs from abducting to facilitate the abductee's appearance in the abductor-State's domestic court. Abduction, here, therefore, means: a person is accused of committing a crime in one country and escapes to another country; the first country acting by its state agents or private actors procured or condoned by them, forcibly or surreptitiously captures the person within the territory of the second country, and clandestinely spirits the person away, back to the first country, to face trial.

The rest of this piece examines the contemporary international law concerning abduction.

Customary international law regarding abduction

The classical international law principle on abduction is expressed in the maxim “mala captus bene detentus” (wrongly captured, properly detained).  This principle posits that a person may have been wrongly or unfairly arrested will not prejudice rightful detention or trial of that person under due process.  As one scholar put it,” [o]nce a person is under the authority of a given court and has been properly charged by the local law, he may be tried and, if convicted, sentenced by that court regardless of the method that brought him originally under the authority of that court”.

John Story’s case was typical “mala captus, bene detentus”. For despite Spain’s protests, the English court assumed jurisdiction and tried Story. Dr Story, a former oxford law professor, did not even challenge the court’s judication based on wrongful capture. He probably knew that the courts would always accept the mala captus principle. He challenged jurisdiction on grounds he had renounced allegiance to the English Crown and had become a Spanish subject. Of course, the court rejected that.

But we can look to more recent cases. Take England, still.

In 1820, Susannah Scott was indicted for perjury in England but was apprehended in Belgium without consent and in violation of Belgium’s sovereignty. She was returned to England, where the court held that although her arrest violated Belgian law and sovereignty, mala captus bene detentus applied, and the court had jurisdiction.

From the United States to Australia, to South Africa, and India – name them - countries worldwide applied this mala captus bene detentus principle, time after time. But one such case stands out.

 In 1960, Israel's Mossad agents abducted Nazi henchman Adolf Eichmann in Argentina.  After 9 days in secret detention, they smuggled him to Tel Aviv drugged and dressed as a chartered flight crewman.  A diplomatic spat ensued, with Argentina claiming Israel violated its sovereignty and demanding that Eichmann be returned. A broader international backlash followed when Argentina filed a protest with the United Nations. The Security Council adopted a resolution condemning Israel's violation of Argentina's sovereignty and requested Eichmann’s repatriation.  Israel insisted on the mala captus doctrine, and went ahead and detained, tried, convicted, and executed Eichmann; even if at a point it tendered an official apology to Argentina, causing the latter to drop its protests.

On the global stage, Eichmann’s case considerably weakened the mala captus principle. Because, although Israel insisted on and applied the doctrine, the Security Council resolution underscored a shift towards upholding the sanctity of national sovereignty over all else. Thus, there was scope for new thinking concerning the doctrine. It would culminate in changed attitudes during another celebrated case that came up in 1992.

The weakening of mala captus, bene detentus principle

This time, the US was involved.

Humberto Álvarez Machaín was a Mexican citizen and resident who allegedly participated in the 1985 kidnapping, torture, and murder of staff who worked for the  USA's Drug Enforcement Administration (DEA). Despite there being an extradition treaty between the two countries, in April 1990, Mr Alvarez was abducted from Mexico by private actors hired by DEA and brought to trial in the United States over the protest of Mexican officials. Legal battle clawed its way to the US Supreme Court. The question was whether the non-compliance with the extradition process robbed the US trial court of jurisdiction. The US Supreme Court held that the trial court's jurisdiction was not affected by how the accused was brought before it. This alarmed the international community, as many countries feared that the precedent of that decision would encourage similar abductions by powerful nations. Plus, human rights concerns.

Pressure mounted. More than 20 countries co-proposed a UN General Assembly resolution requesting the International Court of Justice (ICJ) to provide an advisory opinion on the international law position regarding foreign apprehension generally and abduction specifically. An avalanche of amicus briefs poured in, opining that abduction violates current international law. International bodies, countries' judicial agencies, and civil society organisations issued commentaries and position papers stating mala captus was no longer customary international law, as it was no longer generally accepted as good and consistent practice.  The UN Working Group on Arbitrary Detention concluded that “the detention of Humberto Alvarez-Machain is declared to be arbitrary, being in contravention of Article 9 of the International Convention on Civil and Political Rights.”.

 

In the aftermath, the USA and Mexico in 1994 signed and ratified a treaty prohibiting transborder abduction, and by so doing, stripped the Supreme Court's decision of any effect as precedent. A rule in reverse of the mala captus doctrine had, thus, began to crystallise on the international scene. Jurisdictions took either a summary or a more nuanced approach against the principle.  For example, while South African and Zimbabwean courts decisively declared the doctrine illegal and declined jurisdiction when rendition was by abduction, the courts of some other jurisdictions developed a nuanced approach.

Take England, again.  Many years after the Susannah Scott case of 1820, English courts continued to apply the mala captus doctrine.  Around the 1970s and 80s, they got increasingly incensed at investigators’ over-reliance on extrajudicial rendition methods. They would occasionally berate these investigators but would ultimately apply the doctrine.  In one case, the court discretionarily discharged the accused person but did not pronounce mala captus illegal.  All of that changed soon after the Alverz-Machain case.

 In 1994, the English Court of Appeal held in Regina v. Horseferry Road Magistrates’ Court (Ex parte Bennett) that abduction contravenes extradition and is an abuse of process. "To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its jurisdiction is, to my mind, an insular and unacceptable view", said the court. Yet, the court did not conclude that the abuse or violation robbed it of jurisdiction to try the abducted person. It held, instead, that the court could stay (hold off) proceedings to examine the facts of the rendition method adopted and exercise discretion whether to try the case.

Contemporary approach

We can look to customary international law to find the current law on abduction since customary international law is binding on states as a whole and is applied by national and international courts and tribunals.

Customary international law arises from established international practices which are general and consistent among states. The act or method must fall within states' habits or course of performing some action, and there must be a conviction that the tradition or practice is legally required of the State.

A comparative review of the municipal courts’ decisions spectrum allows one to conclude that the mala captus doctrine has considerably weakened but is still applied, in a limited sense, and with specific qualifications.  On preponderance, all "abduction" is not necessarily treated as illegal by these courts.  When faced with a defendant who alleges abduction or some irregular rendition,  the current practice is for the court to stay the trial (hold off the trial hearing proper) and enquire into the nature and circumstances of the abduction or irregular rendition, and then decide whether to go ahead and try the case.

And recent international tribunals’ decisions bear this out.  Take the International Criminal Tribunal for the former Yugoslavia (ICTY).  Established by the United Nations to prosecute the war crimes committed during the Yugoslav Wars, Slavko Dokmanovic, a Croatian Serb, was indicted before ICTY for mass murder. He was in hiding in Yugoslavian areas over which UN peacekeeping personnel had no jurisdiction. In 1997, an ICTY prosecutor met with him and lured him into Croatia, where he was ultimately arrested and brought before ICTY.  Dokmanovic challenged ICTY's jurisdiction to try him, claiming his rendition lacked due process. He argued that the 'luring' method was akin to kidnap or abduction and thereby violated Yugoslavia's sovereignty.  ICTY rejected his argument and distinguished between 'luring' and 'forcible abduction. It held that the former was acceptable, while the latter might ground dismissal of a concomitant case or trial.

Scholars and practitioners have argued that this distinction is artificial, as there is no qualitative difference between luring/collusion versus forcible abduction. That 'due process of law' is the controlling principle, and absent that ingidient, the rendition is illegal.

Regardless, the tribunal's decision in ICTY v Dokmanovic enunciates that the nature and circumstances of the abduction matters. For example, where there was lure or deception or collusion or coordination between the abducting and the host countries, the rendition might be unorthodox but not illegal. The court may not decline jurisdiction to try the accused. The famous case of Abdullah Ocalan v Turkey exemplifies this.

Leader of Kurdish ethnic militia PKK, Mr Ocalan first operated from Syria, then darted in and out of Russia and other countries before Greek diplomats aided him to sneak into Kenya without immigration clearance. In 1999, a Turkish intelligence agency tracked him in Nairobi, seized and brought him to face trial in a Turkish court. The charges alleged he founded an extremist group to destroy the Turkish State and, in the process, committed terrorist acts that led to the loss of lives. He applied to ECtHR that his rendition was an abduction and violated Article 5 of the European Convention of Human Rights.  Rejecting his application, the ECtHR held no abduction as Kenyan authorities had co-operated with Turkey in the activities that led to his capture.

ECtHR did not explain the principle of international upon which it concluded that Turkey did not violate Kenya's sovereignty. However, the customary international law principle of consent applied. That principle is now codified in article 20 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts.  It states that "[v]alid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act concerning the former State to the extent that the act remains within the limits of that consent".

 Further, ECtHR referred to its decision in the 1989 case of Soering v the United Kingdom and noted that:

“Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier, and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition”.

Inline with this reasoning, a domestic court or international tribunal applying the discretionary test will likely assume jurisdiction and try the crime if the abduction was grounded on the following five conditions (inclusive):

i)       to protect or remediate national security interests, including in the context of self-defence;

ii)      to protect the security interest of the international community as a whole 

iii)   there is no extradition treaty between the two countries;

iv)  the State wherein the abduction was done executed the capture consented to the activities; and

v)    the harbouring State would, failing to consent to the capture activities have been regarded as deliberately shielding the defendant from facing criminal justice in the first country.

Point (iii) is critical. In the Ocalan case, the Turkey government and the ECtHR firmly based their submissions and decision, respectively, on the fact that there was no extradition treaty between Kenya and Turkey.

Insisting on rigour

We can conclude that, under customary international law, a domestic court's jurisdiction to hear a case is not inherently impeached merely because the criminal defendant was abducted in a foreign territory.  The existence of certain conditions may excuse the abduction and allow the court to proceed to trial based upon the principle of mala captus bene dententus. However, a threshold is reached when the facts can establish that the abduction action or activities violated:

i)       the territorial sovereignty of the foreign State, including when the abduction was done without concurrent consent;

ii)     extradition treaty obligations; and 

iii)   the human rights of the abducted person.

Once these conditions exist, the domestic court should be bound under customary international law to disapply mala captus bene dententus and decline jurisdiction to hear the case on the basis that the rendition inexcusably did not comply with due process of law.

And this should be more so in a circumstance where the abductee absconded after arraignment or during the trial process, and their abduction followed the trial court's order for their re-arrest. Such abduction is tantamount to an illegal execution of a court order. No court allows its orders to be a foothold for perpetrating illegality,  nor condones any person or entity, not even the State seeking to convict the abducted person, to benefit from an illegal execution of its legitimate order.

Further, there is scope to argue that any legal process relevant to bringing the accused person back to continue facing the trial forms part of the court’s overarching adjudicatory process (even if it is not part of the court's proceedings). In particular, a relevant extradition process to bring the accused back before the court is by reference incorporated as part of the overarching criminal justice procedure relevant to that adjudication. As a fundamental rule, all functions related to the trial or adjudication must comply with fair hearing standards. Extradition is fundamentally a fair-hearing mechanism designed to ascertain if there were legitimate reasons why the accused absconded from the trial court country or whether there were other compelling reasons why they should have remained in the second country. Consequently, where an extradition process should have been held but was not,   fair-hearing safeguards of the entire trial process or the overarching criminal justice procedure are fundamentally impeached. A subsequent trial or resulting conviction cannot hold up against fair hearing requirements and due process of law. 

This last point strikes at something more fundamental: justice differs from raw retribution because it is both tempered and validated by its uncompromising insistence to follow prescribed rigour. Therefore, circumventing any aspect of that rigour to rendition the accused person to the court at all cost smacks of raw retribution, not justice. A court of justice ought to reject it and insist that proper procedure takes place.

 

Anozie Awambu, a lawyer, wrote from the United Kingdom.