II. Sovereignty Considerations7

One of the most fundamental tenets of State sovereignty is the ability to exclude any other State from exercising police powers within one’s borders. Thus, when agents of one State enter another in order to abduct a suspect, significant sovereignty concerns are raised. Transnational abductions fuel tensions between the States and might lead to an international incident.8 However, some suspects wanted for extreme international crimes are so dangerous that more international destabilization might occur if they are left unarrested than if sovereignty is breached in order to gain custody over the person. In cases where the injured State does not protest (i.e., there is no danger of an international incident), the ICC can assert jurisdiction. Furthermore, because the ICC deals with the most dangerous criminals in the world, case law indicates that sovereignty concerns should not divest the court of jurisdiction over a transnationally abducted individual.

Because sovereignty violations raise the issue of a potential international incident, the level of protest by the injured State sometimes enters a court’s calculus when determining whether asserting jurisdiction is proper. In Öcalan v. Turkey, the European Court of Human Rights (ECHR) considered whether a Turkish court acted lawfully in asserting jurisdiction over a suspected terrorist who was abducted in Kenya.9 The suspect, Öcalan, was staying at the Greek embassy in Kenya and was asked to leave the country by Kenyan officials after Kenya learned about Öcalan’s past.10 As Öcalan was being driven to the airport as part of a convoy, his car suddenly split from the convoy and was taken to the international transit area of the airport, where Turkish officials arrested him.11 In determining that the Turkish court’s jurisdiction was proper, the ECHR found no violation of Kenyan sovereignty or international law because the arrest did not lead to any “international dispute between Kenya and Turkey” and “[t]he Kenyan authorities did not lodge any protest.”12 While the decision did not discuss what would have been the case had the Kenyan government protested, it at least indicated that asserting jurisdiction over an abductee can be acceptable in the absence of an official protest by the injured State.13

Additionally, courts have found jurisdiction to be proper even in the face of an injured State’s protest when the suspect is wanted for certain universally condemned offenses. The most relevant case for this comment’s analysis is the International Criminal Tribunal for the Former Yugoslavia (ICTY) trial of Dragan Nikolić. Nikolić was charged with multiple counts of crimes against humanity and war crimes for his role as commander of a detention camp in Bosnia.14 Serbian officials refused to arrest Nikolić, so certain unknown private individuals kidnapped Nikolić in Serbia and brought him to NATO forces in Bosnia, where he was officially arrested.15 Nikolić challenged jurisdiction based on the fact that his arrest was unlawful. This challenge was ultimately ruled on by the Appeals Chamber, which, after analyzing domestic cases from around the world, noted “in cases of crimes such as genocide, crimes against humanity and war crimes which are universally recognized and condemned as such (‘Universally Condemned Offenses’), courts seem to find in the special character of these offenses and, arguably, in their seriousness, a good reason for not setting aside jurisdiction.”16 In the opinion of the Appeals Chamber, “the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory.”17 Thus, the court held that no matter how bad an intrusion on a State’s sovereignty, the court should not divest itself of jurisdiction if the accused is wanted for universally condemned offenses.18

As with the subject-matter jurisdiction of the ICTY, the ICC’s jurisdiction covers the universally condemned offenses of war crimes, crimes against humanity, and genocide.19 Perpetrators of these offenses disrupt the international order and must be dealt with swiftly. Furthermore, there has been no transnational abduction case that involved these crimes in which a court refused to assert jurisdiction on the basis of a sovereignty violation. Thus, any injury to the sovereignty of a State due to an abduction should not divest the ICC of jurisdiction to try the suspect, especially when the injured State decides not to protest.

III. Violations of Procedure

The Rome Statute makes clear that during an investigation, a person “shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.”20 Furthermore, “[a] person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that… (b) The person has been arrested in accordance with the proper process.”21 Illegal abductions violate the proper process by definition; however, it does not necessarily follow that a case must be dismissed due to this violation.22 For dismissal determinations, what seems to matter in such cases is whether the State executive or prosecution was involved in the abduction, or, in other words, whether the prosecution comes to the court with “clean hands.”23

Some jurisdictions refuse to try a case if the State was involved in the abduction. In State v. Ebrahim, the South African Supreme Court decided not to assert jurisdiction over the defendant because he was abducted in Swaziland “by agents of the South African state.”24 The court reasoned that “[w]hen the state is a party to a dispute… it must come to court with ‘clean hands.’ When the state itself is involved in an abduction across international borders, as in the present case, its hands are not clean.”25 This approach was followed by Zimbabwe’s Supreme Court in State v. Beahan.26 In that case, the state secured custody over the defendant by deliberately circumventing extradition procedure. The opinion held that a “court should decline [jurisdiction when the defendant’s appearance] has been facilitated by an act of abduction undertaken by the prosecuting State. … For abduction is illegal under international law, provided the abductor was not acting on his own initiative and without the authority or connivance of his government.”27

Other jurisdictions hold that the judges have discretion to drop a case if the State was involved in the abduction. The UK House of Lords exercised this discretion in Ex parte Bennett when the English police decided not to use the extradition process to secure the defendant’s custody from South Africa.28 Lord Griffiths noted that “[e]xtradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country.”29 He added that if a court were to allow such a case to go forward, it “would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit.”30 An Australian case, Levinge v. Director of Custodial Services, also held that the court has discretion to assert jurisdiction. “Where a person… is brought… before a court in this State, that court has undoubted jurisdiction to deal with him or her. But it also has discretion not to do so, where to exercise its discretion would involve an abuse of the court’s process.”31 Because there was no showing that the Australian executive was directly or indirectly involved in the unlawful conduct, the case was allowed to proceed.32

One case that found it irrelevant that the prosecuting State was directly involved in the defendant’s abduction is Attorney-General of the Government of Israel v. Eichmann.33 In that case, the defendant was kidnapped from Argentina by Israeli agents to be put on trial in Israel for crimes against humanity and war crimes committed during the Holocaust.34 The court held that “there is no immunity for a fugitive offender save in the one and only case where he has been extradited by the country of asylum to the country applying for extradition by reason of a specific offense, which is not the offense for which he is being tried;” however, because Israel did not use the extradition treaty to secure custody, “Israel [was] not bound by any agreement with Argentina to try the accused for any other specific offense.”35 The court stated that any other argument based on abduction had to do with an injury to the State of Argentina and was therefore not an argument that the defendant had standing to make.36 Additionally, the court claimed that it was “established rule of law” that a defendant “may not oppose his trial by reason of the illegality of his arrest.”37 Thus, jurisdiction was found to be proper because of the universal character of the offense and because the defendant had no right to challenge how he was brought to court. However, this case has been seen as an outlier in terms of procedural rights and is therefore not authoritative on the subject. The Rome Statute ensures that the ICC will apply international human rights standards,38 and it is assumed that defendants will have the ability to raise sovereignty violations in their defense and the ability to challenge how they arrived at the court.39

Finally, in the only international criminal tribunal case to deal with the matter, the ICTY found in Nikolić that the proceedings must “fully respect due process of law,” which includes “questions such as how the Parties have been conducting themselves in the context of a particular case and how an Accused has been brought into the jurisdiction of the Tribunal.”40 The tribunal based this, in part, upon standards “contained in article 14 of the International Covenant on Civil and Political Rights.”41 After approving the Ebrahim case and noting that “the Prosecution coming to a Trial Chamber of this Tribunal” must do so with “clean hands,” the court found jurisdiction was proper because the abduction could not “be attributed to SFOR or the Prosecution.”42

The majority of cases seem to put great weight on whether the prosecution was involved in deliberately circumventing proper arrest procedures, deciding not to assert jurisdiction if the prosecution’s hands are not clean. Additionally, the precedent most on-point takes this approach and affirms procedural obligations laid down in international human rights instruments such as the International Covenant on Civil and Political Rights. The Rome Statute holds that the Court shall apply law “consistent with internationally recognized human rights.”43 Thus, there is strong authority to hold that the ICC should divest itself of jurisdiction if the Office of the Prosecutor has been involved in orchestrating a defendant’s abduction.

IV. Humane Treatment

A major concern with unlawful abductions is with the treatment of the abductee. Those who kidnap others typically do not have much respect for the rule of law, and they are often unusually violent with their subjects. In instances of egregious abuse, many courts refuse to assert jurisdiction, thus removing the incentive to treat suspects inhumanely. Therefore, the ICC should not try an abducted defendant if his or her abductor has severely abused the defendant.

In Barayagwiza v. The Prosecutor, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) elaborated on the abuse of process doctrine, noting that courts should decline jurisdiction whenever “exercis[ing] that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity.”44 The ICTY affirmed this reasoning in Nikolić in the context of a defendant’s pre-trial treatment. The chamber held that “where an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, [it] may constitute a legal impediment to the exercise of jurisdiction over such an accused.”45 Importantly, the judges noted that it did not matter who was responsible for the abuse. “[E]ven without [involvement by the Prosecution,] this Chamber finds it extremely difficult to justify the exercise of jurisdiction over a person… after having been seriously mistreated.”46

Some courts in the United States have held that severe abuse of an accused should result in jurisdiction divestment. For instance, in United States v. Toscanino, the defendant had been kidnapped in Uruguay and was “incessantly tortured” with the knowledge and participation of United States agents before arriving in the United States.47 The Second Circuit held that “due process [requires] a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.”48 Thus, the court “could not tolerate such abuse without debasing ‘the process of justice.’”49 However, since Toscanino, there have been no cases of an abductee’s abuse so shocking to the conscience that United States courts have refused jurisdiction, and some courts refuse to follow the Toscanino rule.50

In addition to ensuring due process standards in conformance with “internationally recognized human rights,” the Rome Statute ensures in Article 55(1)(b) that no person “[s]hall be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment.”51 As such, the ICC should treat its accused with as much dignity as do other domestic courts as well as other international tribunals, such as the ICTY and ICTR. Because these other courts refuse to assert jurisdiction over a defendant who has been egregiously abused before reaching trial, it would be improper for the ICC to do otherwise.

V. Conclusion

Unlawful abductions raise several concerns about whether asserting jurisdiction over the abducted person is proper. Such abductions can violate State sovereignty, degrade a court’s integrity by condoning breaches of the rule of law, and increase the risk that suspects will be treated inhumanely. Being a respected international institution based on international human rights standards, the ICC must strive to be an exemplar of fair process for the accused. At the same time, it must be recognized that the Court has to deal with very dangerous criminals who tend to evade capture. Due to the universally condemned offenses that the ICC has jurisdiction over, sovereignty violations should not preclude the exercise of jurisdiction in cases of abduction. Furthermore, the ICC can conform to international standards when it asserts jurisdiction over abducted defendants so long as the Prosecutor comes to trial with “clean hands” and so long as the defendant was not seriously abused before trial.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Prosecutions, available online (last visited May 1, 2013). ↩

2. 2.

   Most Sudanese fugitives are still active in politics in Sudan. For instance, Omar Hassan Ahmad al-Bashir is the current President of Sudan and Abdel-Rahim Mohamed Hussein is the current Minister of Defense of Sudan. See Sudan Tribune, Omar Hassan Ahmad al-Bashir, available online, (last visited May 1, 2013); Sudan Tribune, Abdel-Rahim Mohamed Hussein, available online, (last visited May 1, 2013). Additionally, Bosco Ntaganda’s Goma residence was known to many in the years leading up to his surrender. See David Smith, Hunting the Terminator: Congo continues search for Bosco Ntaganda, The Guardian, Nov. 28, 2012, available online, (last visited May 1, 2013). ↩

3. 3.

   See David Kramer, Comment, The Viability and Efficacy of International Bounty Hunters, ICC Forum (Feb. 24, 2014), available online. ↩

4. 4.

   See, e.g., State v. Ebrahim 1991 (2) SALR 553 (S. Afr.); State v. Beahan, 103 I.L.R. 293 (1991) (Zim.). ↩

5. 5.

   See, e.g., CrimC (Jer) 40/61 Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 5 (1961) (Isr.) [hereinafter Eichman]. ↩

6. 6.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], article 21. ↩

7. 7.

   It is assumed that a defendant can have standing to raise sovereignty violations as a defense. Some countries do not allow defendants to argue claims typically reserved for the State. See Eichmann, supra note 5, at ¶ 44. However, it is the view of the International Criminal Tribunal for Yugoslavia that defendants are entitled to a “full defence,” and are therefore able to raise defenses due to sovereignty violations. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 55 (ICTY Oct. 2, 1995). ↩

8. 8.

   Argentina protested vigorously after Adolf Eichmann was abducted by Israeli agents, leading to the involvement of the United Nations Security Council (UNSC) to resolve the dispute. See S.C. Res.138, U.N. Doc. S/RES/138 (Jun. 23, 1960). ↩

9. 9.

   Öcalan v. Turkey, 2005-IV ECHR at ¶¶ 18, 61. ↩

10. 10.

    Id. at ¶¶ 15-17. ↩

11. 11.

    Id. ↩

12. 12.

    Id. at ¶ 95. ↩

13. 13.

    Even if a State protests, it is unclear whether the remedy for a sovereignty violation should be the dismissal of the case. Some argue that it is only customary international law to dismiss a case if a State protests and also demands the return of the fugitive. Paul Michell, English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction After Alvarez-Machain, 29 Cornell Int’l L.J. 383, 427 (Apr. 1996). ↩

14. 14.

    Prosecutor v. Nikolić, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, ¶ 2 (ICTY Oct. 9, 2002) [hereinafter Nikolic I]. ↩

15. 15.

    Id. at ¶ 13 (discussing Serbia’s refusal to cooperate); Christopher M. Supernor, International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice, 50 A.F. L. Rev. 215, 217 (2001) (discussing the arrest by bounty hunters). ↩

16. 16.

    Prosecutor v. Nikolić, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, ¶ 24 (ICTY June 5, 2003) [hereinafter Nikolic II]. ↩

17. 17.

    Id. at ¶ 25. ↩

18. 18.

    Id. The Nikolić court may have discounted sovereignty concerns due to the “vertical” nature of the court in relation to States. See Nikolic I, supra note 14 at ¶ 100 (“[I]n this vertical context, sovereignty by definition cannot play the same role.”). A similar vertical relationship exists between the ICC and States parties as well as non-States parties that are obligated to cooperate with the Court due to UNSC resolutions. While the relationship is less vertical between the ICC and those States that are not obligated to cede some sovereignty to the Court, the Nikolić rule should still control. ↩

19. 19.

    See S.C. Res. 827, Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, arts. 2-5, U.N. Doc. S/RES/827 (May 25, 1993), available online; Rome Statute, art. 5. ↩

20. 20.

    Rome Statute, art. 55(1)(d). ↩

21. 21.

    Rome Statute, art. 59(2). ↩

22. 22.

    It is possible that the proper remedy under the Rome Statute is merely compensation for the wrong. See Rome Statute, art. 85. ↩

23. 23.

    State v. Ebrahim, supra note 4. ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    State v. Beahan, supra note 4. ↩

27. 27.

    Id. ↩

28. 28.

    Ex parte Bennett, [1994] 1 A.C. 42 (H.L.) (appeal taken from Eng.), available online. ↩

29. 29.

    Id. ↩

30. 30.

    Id. ↩

31. 31.

    Levinge v Director of Custodial Services, 9 NSWLR 546 (1987) (Court of Appeal) (Austl.). ↩

32. 32.

    Id. ↩

33. 33.

    See supra note 5. ↩

34. 34.

    Id. at ¶ 1. ↩

35. 35.

    Id. at ¶ 52. ↩

36. 36.

    Id. ↩

37. 37.

    Id. at ¶ 41. ↩

38. 38.

    Rome Statute, art. 21(3). ↩

39. 39.

    See supra note 7. ↩

40. 40.

    Nikolic I, supra note 14, ¶¶ 110-11. ↩

41. 41.

    Id. ↩

42. 42.

    Id. at ¶¶ 111, 113. ↩

43. 43.

    Rome Statute, art. 21(3). ↩

44. 44.

    Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19, Decision, ¶ 74 (Nov. 3, 1999). ↩

45. 45.

    Nikolic I, supra note 14, ¶ 114 (emphasis added). ↩

46. 46.

    Id. ↩

47. 47.

    United States v. Toscanino, 500 F.2d 267, 269-70 (2d Cir. 1974). ↩

48. 48.

    Id. at 275. ↩

49. 49.

    Id. at 276. ↩

50. 50.

    See e.g., Matta-Ballesteros v. Henman, 896 F.2d 255, 263 (7th Cir. 1990) (“We therefore conclude that Toscanino, at least as far as it creates an exclusionary rule, no longer retains vitality and therefore decline to adopt it as the law of this circuit.”). ↩

51. 51.

    Rome Statute, art. 55(1)(b). ↩