XIX. Discussion-Maritime and Coalition Operations

• Pages: 313

Abduction or Extradition of Terrorists

Ivan Shearer Countries throughout the common law world draw a distinction between obtaining jurisdiction over individuals through some type of government collusion which violates international law and obtaining jurisdiction through happenstance over an individual. In the former case, such jurisdiction over a person constitutes an abuse of process for the court to continue trial and the case should be dismissed and the individual discharged. When jurisdiction is obtained through happenstance, however, trial may proceed. This approach stands in marked contrast to that taken by the US Supreme Court in United States v. Alvarez-Machain where the Court held that it effectively does not matter how jurisdiction over the body of the defendant is obtained.1

1. Editor's Note: After being indicted in the United States for the kidnapping and murder of a DEA agent, Humberto Alvarez-Machain was kidnapped by the Mexican police and flown to the United States to be turned over to DEA agents. Defendant contested the jurisdiction of the federal district court and the Ninth Circuit Court of Appeals reversed the holding of the district court. Upon government appeal to the Supreme Court, that Court reversed and remanded the holding of the Circuit Court of Appeals holding that a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty does not acquire a defense to the jurisdiction of US courts simply by virtue of the abduction itself when the treaty does not exclude that a party might resort to self-help for achieving the presence of an individual. 504

   U.S. 655 (1992) at 662 [hereinafter Machain].

   Wolff von Heinegg I do not agree that the practice of irregular rendition has a proper place in international law. The violation of a nation's sovereignty by resort to self-help is unconscionable. Using armed force to conduct such an irregular rendition is clearly a violation of international law.

   Kenneth O'Rourke United States courts have, on occasion, suggested that a defendant may not be prosecuted if his presence is obtained in violation of specific terms of an extradition treaty prohibiting abduction.2 Where, however, an extradition treaty is not violated and a defendant's presence is obtained through forcible abduction, (commonly known as irregular rendition) the US Supreme Court has consistently recognized that jurisdiction may nonetheless be properly exercised.3 The propriety of irregular rendition is less clear, however, within the international community, prompting the United States, as a matter of policy not to resort to its use. Having said that, I believe irregular rendition continues to have its place, particularly in the war on terrorism.

   As for international law, I do not agree that irregular rendition is absolutely prohibited and not a proper mechanism for addressing terrorism. For example, the proposition that Article 51 of the UN Charter would not permit the United States to enter a country to conduct a rendition, or renditions, as a matter of national self-defense is illogical. Certainly, if the United States could have snatched Osama bin Laden to remove the threat to its peace and security, instead of engaging in a full blown attack on al Qaeda and the Taliban, it would have done so and it would have been, if not more favorable as a means of self-defense, at least a less aggressive means authorized under Article 51. It seems incongruous to suggest that a state can resort to a full blown armed conflict, invade another state as a matter of self-defense, but could not use a lesser means of force, such as an irregular rendition, to remove the threat. Clearly, renditions to remedy criminal activity not amounting to a threat to the peace and security of a state raise issues of sovereignty that many believe are not supported by international law. However, renditions to remedy threats to the peace and security of an aggrieved state under Article 51 of the UN Charter would be much preferable to full blown military action. Unfortunately, in the case -of addressing the terrorist network operating out of Afghanistan, the United States was unable to take this less severe course of action (snatch 2. See, e.g., United States v. Rauscher, 119 U.S. 407 (1986).

3. See, e.g., Ker v. Illinois, 119 U.S. 436...