Extraterritorial abduction under the framework of international law: Does irregular mean unlawful?

McDermott, Helen
Do the interests of justice and the fight against terrorism justify extraterritorial abductions by states of persons they wish to interrogate or submit to trial? From the kidnapping of Eichmann in Argentina in 1960 to the snatching of Abu Anas al-Libi in Libya in 2013, irregular forms of apprehension continue to be employed as a tool to satisfy state interests in the prosecution and suppression of international crimes and terrorism-related offences. This dissertation explores and analyses the use and legality of such practices through the lens of international law. States have gone to great lengths to develop and improve systems of cooperation in the prosecution of international and transnational crime. Numerous bilateral and multilateral instruments have been negotiated to facilitate the transfer of criminal suspects between states, international institutions have been set up to prosecute international criminals and states have recognized a right, and in some cases an obligation, to submit the perpetrators of grave offences to their judicial systems regardless of where those acts were committed. Despite these efforts, the formal transfer of individuals from one jurisdiction to another is oftentimes frustrated; a treaty may not exist between the territorial state and the requesting state; the crime or suspect in question may be non-extraditable or it may be the policy of the requested government not to extradite nationals. Other factors that can impede the formal process include, a risk that suspects will be alerted to the request giving them time to flee; the host state may not possess an effective police force and so may not be capable of locating persons within their borders or the requested state may simply be reluctant to comply with transfer requests. When extradition fails or is unavailable, a state seeking to gain custody of a suspect is left with two options; it can consider the case closed or, it can employ methods outside the formal framework. In situations where the individual in question is wanted for serious crimes, the latter alternative may very well be the chosen option. Irregular methods of extraterritorial apprehension can be divided into three categories, kidnapping, luring and disguised or de facto extradition. The apprehension of individuals outside an extradition framework would suggest that formal mechanisms for the transfer of suspects from one state to another or to an international court or tribunal are unable to satisfy the demands of bringing criminals to justice, and/or that states are unwillingly to be bound by such frameworks. Recognizing the importance of efforts to safeguard national and international security and to ensure justice for international crimes and terrorism-related offences, a question arises as to whether irregular methods of apprehension are legal under international law. In circumstances where formal procedures of extradition or surrender exist and are capable of satisfying these demands, the answer may seem obvious but consideration must be given to the fact that in some cases, extraterritorial abduction may constitute the only means by which those responsible for serious crime can be brought before a court. One cannot deny the right of a state to protect itself from conduct that threatens peace and security and to take steps towards the prosecution and suppression of serious crime. In fact, the Security Council has called on states to take measures to this effect. In saying that, the exercise of this right is not synonymous with an unbridled discretion to track down and apprehend perpetrators of serious crime wherever located. Regardless of the legitimacy of a state's interest in the fight against terrorism and the prosecution of international crime, international law demands that the methods chosen to realize these objectives conform to certain principles and rules. Accordingly, state interests, however strong, do not extinguish their international legal obligations. This thesis provides a comprehensive examination and assessment of the lawfulness of extraterritorial abduction under the framework of international law and a critical analysis of the practical legal consequences of its use.
Publisher DOI
Attribution-NonCommercial-NoDerivs 3.0 Ireland