Cornell International Law Journal Volume 29 Article 2 Issue 21996 English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction after Alvarez- Machain Paul Michell Follow this and additional works at:http://scholarship.law.cornell.edu/cilj Part of theLaw Commons Recommended Citation Michell, Paul (1996) "English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction after Alvarez-Machain," Cornell International Law Journal: Vol. 29: Iss. 2, Article 2. Available at:http://scholarship.law.cornell.edu/cilj/vol29/iss2/2 This Article is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction After Alvarez-Machain Paul Michell* I. Transnational Forcible Abduction and the Role of Domestic Courts in the International Legal Order A. Introduction May a domestic court try an individual who has been abducted from abroad and brought before it in violation of international law? The tradi- tional Anglo-American rule is that it must, denying the court supervisory jurisdiction over unlawful executive conduct. This controversial doctrine, encapsulated in the maxim male captus bene detentus,l has recently been revisited in both the United States and the United Kingdom, but with starkly different results. In United States v. Alvarez-Machain, the U.S. Supreme Court reaffirmed the traditional rule in holding that a Mexican citizen, abducted from Mexico by U.S. agents to face trial in a federal court in California, could not challenge the court's jurisdiction based on the ille- gality of the arrest.2 Only a year later, the United Kingdom's House of Lords emphatically rejected the male captus bene detentus rule in Regina v. Horseferry Road Magistrates' Court (Ex parte Bennett).3 The Law Lords held that a New Zealand citizen, forcibly returned to England from South Africa, could obtain a stay of the criminal proceedings against him in England. In a subsequent decision, In re Schmidt,4 the House of Lords clarified the posi- tion it had taken in Bennett II by considering the neglected but important question of whether an individual can challenge extradition proceedings against him on the basis that he was brought illegally into the jurisdiction seeking to extradite him. The divergence of opinion between the U.S. Supreme Court and the House of Lords requires some explanation. * Tory Tory DesLauriers & Binnington, Toronto, Ontario, Canada. B.A., McGill University; LL.B., Toronto; B.C.L., Oxford. I am grateful to Sujit Choudhry and Elizabeth C.F isher for their advice and comments, and to the Editors of the Cornell International Law Journalf or their patience and expert editing. Special thanks to Craig M.S cott. who patiently read many earlier drafts and vas unfailingly helpful in offering suggestions for improvement. 1. This maxim translates as "improperly caught, well detained." 2. United States v. Alvarez-Machain, 504 U.S. 655 (1992). 3. Regina v. Horseferry Rd. Magis. Ct. (Ex parte Bennett), [1994] 1 App. Cas. 42 (Eng. H.L. 1993) [hereinafter Bennett II]. 4. In re Schmidt, [1995] 1 App. Cas. 339, 362 (Eng. H.L. 1994) [hereinafter Schmidt II]. 29 CoRNaL. IN'L LJ. 383 (1996) Cornell InternationalL aw Journal Vol. 29 The domestic legal effects of transnational forcible abduction have engendered considerable academic activity.' The controversial Alvarez- Machain decision has been the subject of extensive commentary, the major- ity of which has been hostile,6 although it has not been without its support- 5. For a detailed discussion of this issue, see F.A. Mann, Reflections on the Prosecu- tion of Persons Abducted in Breach of InternationalL aw, in INTERNATIONAL LAW AT A TIME oF PE"LExrry: ESSAYs INH ONOUR OF SHABTAi RosENNE 407 (Yoram Dinstein & M. Tabory eds., 1989); Paul O'Higgins, Unlawful Seizure of Persons by States, in INTrRNATIONAL TER- RORiSM AND PoLrr-cAL CmaMEs 336 (M. Cherif Bassiouni ed., 1975); Abraham Abramov- sky, ExtraterritoriaAl bductions: America's "Catch and Snatch" Policy Run Amok, 31 VA.J. INT'L L. 151 (1991); Abraham Abramovsky & StevenJ. Eagle, U.S. Policy in Apprehending Alleged Offenders Abroad: Extradition,A bduction, or IrregularR endition?, 57 O. L. REv. 51 (1978); M. Cherif Bassiouni, Unlawful Seizures and IrregularR endition Devices as Alternatives to Extradition, 7 VAND. J. TPANSNAT'L L. 25 (1973); Michael H. Cardozo, Comment, When Extradition Fails, Is Abduction the Solution?, 55 AM. J. INT'L L. 127 (1961); Vincent Coussirat-Coustre & Pierre-Michel Eisemann, L'enlevement de Person- nes Privies et le Droit International,7 6 REVUE GENERALE DE DRorr INTERNATIONAL PUBLIC [R.G.D.I.P.] 346 (1972); Andre Decocq, La Livraison des Delinquants en Dehors du Droit Commun de L'extradition, 53 REVUE CrMQuE DE DRorr INTERNATIONAL PRIVu [R.C.D.I.P.] 411 (1964); Richard Downing, Recent Development: The Domestic and International Legal Implications of the Abduction of Criminalsf rom ForeignS oil, 26 STAN. J. INT'L L. 573 (1990); Alona E. Evans, Acquisition of Custody Over the International Fugitive Offender-Alternatives to Extradition: A Survey of United States Practice,4 0 BRIT. Y.B. INT'L L. 77 (1964); Alona E. Evans, InternationalP roceduresf or the Apprehension and Rendition of Fugitive Offenders, 1980 PROC. AM. Soc'Y INT'L L. 274 (1980); Andrew K. Fletcher, Pirates and Smugglers: An Analysis of the Use of Abductions to Bring Drug Traffickers to Trial. 32 VA. J. INT'L L. 233 (1991); Manuel R. Garcia-Mora, CriminalJ urisdiction of a State Over Fugitives Brought from a Foreign Country by Force or Fraud: A Comparative Study, 32 IND. L.J. 427 (1957); Theodore C. Jonas, International" Fugitive Snatching" in U.S. Law: Two Views From Opposite Ends of the Eighties, 24 CORNELL INT'L UJ. 521 (1991); Clare E. Lewis, Unlawful Arrest: A Bar to the Jurisdiction of the Court, or Mala Captus Bene Detentus? SidneyJaffe: A Case in Point, 28 CraiM. L.Q. 341 (1986); Daniel Marchand, Abductions Effected Outside National Territory, 7 J. INT'L COMM'N JURISTS 243 (1966); Felice Morgenstern, Jurisdiction in Seizures Effected in Violation of International Law, 29 BaRn. Y.B. INT'L L. 265 (1952); Paul O'Higgins, Unlawful Seizure and Irregular Extradition, 36 Barr. Y.B. INT'L L.2 79 (1960); Bartholome de Schutter, Competence of the National Judiciary Power in Case the Accused has been Unlawfully Brought Within the National Frontiers, 1 REv. BELGE DE DR.I NT'L [R.B.D.I.] 88 (1965); Austin W. Scott, Jr., CriminalJ urisdictiono f a State Over a Defendant Based Upon Presence Secured by Force or Fraud, 37 MINN. L. REv. 91 (1953); Thomas H. Sponsler, InternationalK idnapping, 5 INT'L LAw. 127 (1971); Sharon Williams, Comment, 53 CAN. BAR REV. 404 (1975); Kathryn Selleck, Note, JurisdictionA fter InternationalK idnapping: A Comparative Study, 8 B.C. INTL & CoMP L.R Ev. 237 (1985). See also 2 DANIE. P. O'CoNEIe, INTERNATIONAL LAw 832-37 (2d ed. 1970); EuAR F. BAUER, DIE VOLKE ECHTSWIDIUGE ENTFOHRUNG (1968). 6. For critical responses to Alvarez-Machain, see Betsy Baker & Volker R6ben, To Abduct or To Extradite: Does a Treaty Beg the Question?, 53 Z -TscHIFr FOR AUSLANDIS. CHES Ore-'rNCHEs R cr uND VouamuEcrr 657 (1993); Jonathan A. Bush, How Did We Get Here? Foreign Abduction After Alvarez-Machain, 45 STAN. L. REV. 939 (1993); Michael J. Glennon, State-SponsoredA bduction: A Comment on United States v. Alvarez- Machain, 86 AM. J. INT'L L. 746 (1992); Ethan A. Nadelmann, The Evolution of United States Involvement in the InternationalR endition of Fugitive Criminals, 25 N.Y.U. J. INT'L L. & POL. 813 (1993); JordanJ. Paust, After Alvarez-Machain: Abduction, Standing, Deni- als of Justice, and Unaddressed Human Rights Claims, 67 ST. JOHN's L. REV. 551 (1993); Rosemary Rayfuse, Comment, InternationalA bduction and the United States Supreme Court: The Law of the Jungle Reigns, 42 INT'L & COMP. LQ. 882 (1993); Jacques Sem- melman, Due Process, International Law, and Jurisdiction over Criminal Defendants 1996 English-SpeakingJ ustice ers.7 While Alvarez-Machain may be a deeply flawed decision, the onus is upon those who disagree with its reasoning to offer realistic alternatives for the regulation of transnational forcible abduction, rather than merely issu- ing blanket condemnations. In Bennett II and Schmidt lI-decisions which have received little attention outside of the United Kingdom8 -the House of Lords has progressed somewhat toward achieving this goal. This Article builds in part upon that foundation and provides an alternative account of the role and responsibility of domestic courts when an individual has been brought before them by way of a transnational forcible abduction. This section provides a brief introduction to the nature of the problem of transnational forcible abduction. Section II considers the origin and development of the male captus bene detentus rule in the United States up to the leading case, Alvarez-Machain. It also examines the status of transna- tional forcible abduction in public international law. Section II then explores the possibility of establishing a customary norm requiring the return of an abducted individual upon the protest and request of the injured state.9 Furthermore, it suggests that domestic courts, and not the executive, are best placed to ensure that the international legal obligations of states with regard to transnational forcible abduction are fulfilled. Section III contends that transnational forcible abduction is unlawful under international human rights law and considers some domestic impli- Abducted Extraterritorially: The Ker-Frisbie Doctrine Reexamined, 30 COLUM. J. T-A.s- NAT'L L. 513 (1992); Jacques Semmelnan, Case Comment, 86 AM.J. INT'L L. 811 (1992); Brigitte Stem, L'Extraterritorialitd Revisitee, 38 ANN. FRL DE DR. INT'L 239 (1992); Jonathan A. Gluck, Note, The Customary InternationalL aw of State-Sponsored Interna- tional Abduction and United States Courts, 44 DuKE LJ. 612 (1994). 7. For positive treatments of Alvarez-Machain, see jimmy Gurul, Terrorism, Territo- rial Sovereignty, and the ForcibleA pprehension of InternationalC riminalsA broad, 17 HAs- TINGS INT'L & CoW. L. Rev. 457 (1994); Malvina Halberstam, Agora: International Kidnapping, 86 AM.J. INT'L L. 736 (1992); MitchellJ. Matorin, Note, Unchaining the Law: The Legality of ExtraterritoriaAl bduction in Lieu of Extradition, 41 DuKE LJ. 907 (1992); MichaelJ. Weiner, Note, The Importance of a Clear Rule forjudicialD eference to Executive Interpretations of Treaties: A Defense of United States v. Alvarez-Machain, 12 WIsc. INT'L LJ. 125 (1993). 8. See David H. Herrold, Note, A New, Emerging World Order: Reflections of Tradi- tion and Progression Through the Eyes of Two Courts, 2 TULSA J. CoWP. & IN''L L. 143 (1994). On Bennett 11, see Andrew L.-T. Choo, International Kidnapping, Disguised Extradition and Abuse of Process, 57 Moo. L. REv. 626 (1994); Vaughan Lowe, Circum- venting Extradition Procedures is an Abuse of Process, 52 CAMBRIDGE L. J. 371 (1993); Susan Nash, Abduction and Extradition,1 44 NEw LJ. 1235 (1994); G. Ossman, The Doc- trine of Abuse of Process of the Court: Its Impact on the Principleso f Extradition Without a Conventional Obligation and of Speciality, 16 LivROOL L. REv. 67 (1994); Christopher Staker, Public International Law, 64 Birr. Y.B. INT'L L. 477 (1993); Ruth Wedgwood, Comment, 89 AM. J. INT'L L. 142 (1995); Steven Coren, Note, Disguised Extradition and Abuse of Process, 110 LxAW Q. REv. 393 (1994). On Schmidt II, see John Hopkins, Extradi- tion and the Jurisdictiono f the High Court, 53 CAMBRMGE LJ. 423 (1994). The two cases are also discussed in Andrew L.-T. Choo, Halting Criminal Prosecutions: The Abuse of Process DoctrineR evisited, [1995] Cpim. L. REv. 864. 9. On the use of the term "injured state," see Draft Articles on State Responsibility, [1985] 2 (pt. 2) Y.B. INT'L L. COMM'N 24, 25 (Article 5 of the draft defines an injured State as "any State a right of which is infringed by the [internationally wrongful] act of another State."). Cornell InternationalL aw Journal Vol. 29 cations of this international illegality. With this foundation, Section IV contrasts the U.S. rule with the history and present status of the Common- wealth rule. Courts in New Zealand, Australia, South Africa,'0 Canada, and the United Kingdom have distanced themselves from the traditional rule to which U.S. courts still cling. The emerging Commonwealth rule is more faithful to public international law and international human rights law, as well as more consonant with domestic law. Finally, Section V sets out a framework that a domestic court should follow when an individual has been brought before it through forcible abduction from another state. In conclusion, the Article maintains that a domestic court is under a duty to refuse to allow a trial to proceed where an individual has been brought before it in violation of international law. In this manner, domes- tic courts must regard themselves as agents of the international legal order and must not abdicate the responsibility for ensuring that domestic crimi- nal law procedures comply with international legal norms." The concept of domestic courts acting as agents of the international legal system must not be misunderstood. This Article does not propose that domestic courts, in adjudicating transnational forcible abduction cases, should consider themselves beholden to some indeterminate, woolly entity called "the international legal system." Domestic courts are consti- tuted by, and responsible to, domestic law. In general, where international legal norms and domestic legal norms differ, domestic courts are bound to follow the latter. Yet matters are rarely so simple. Only infrequently are international norms and domestic norms obviously opposed. The boundary separating domestic and international law is, in many cases, a porous one. Interna- tional law, whether conventional or customary, may enter or influence domestic law, whether statutory or common law, in various forms. Some of these forms are familiar, such as international conventions directly incorporated into domestic law by domestic legislation. Others are less familiar, particularly the potential influence of customary international law and unincorporated international human rights law upon domestic legal norms. Indeed, the familiarity of many courts with incorporated treaties fuels their contempt for the more nuanced ways in which international law can affect domestic law. More attention to the mechanics of the proposed model will be made below; it suffices here only to emphasize that the issue is complex. This Article advances the specific argument that courts adjudicating transnational forcible abduction cases should consider customary interna- 10. Technically, South Africa is not a member of the Commonwealth. Yet it has close ties with other Commonwealth nations, and its legal system remains highly influenced by those of the United Kingdom and other English speaking states. DALE HUTcHISON Er AL., WiLn's PRINciPLEs OF SOUTH AFRICAN LAW 36-37 (8th ed. 1991). 11. See generally BENE-DErro CONFORTI, INTERNATIONAL LAw AND mE ROLE OF DOMES. TIC LEGAL SYsTms (1993); RicHARD A. FAL,, THE ROLE OF DOMESTIC COURTS IN THE INTER. NATIONAL LEGAL ORDER (1964); KENN= C. RANDALL, FEmAL COURTS AND THE INTERNATIONAL HuMAN RIGHTS PARADIGM (1990). 1996 English-SpeakingJ ustice tional law and international human rights law when structuring and inter- preting domestic constitutional, statutory and common law doctrines, so as to render decisions which vindicate both international and domestic norms. In particular, international legal norms provide useful guidelines by which the domestic abuse of process doctrine may be structured and exercised in transnational forcible abduction cases. In this way, domestic courts act as agents of the international legal system by ensuring that inter- national legal norms are, so far as possible, used to inform domestic com- mon law doctrine. This Article also establishes a framework within which domestic courts may determine jurisdictional issues concerning abducted individu- als. In deciding whether to exercise jurisdiction over an abducted individ- ual, a domestic court must take into account three factors. First, it must consider the public international law status of the abduction; specifically, whether there has been a breach of the territorial sovereignty of another state, of a treaty obligation, or of human rights obligations owed to another state. Second, it must look to both international human rights law and the domestic constitutional rights of the abducted individual. Finally, its deci- sion must be guided by reference to international rule of law values and a concern for the protection of the court's process. Domestic conceptions of abuse of process, therefore, must be informed by international law. When faced with a fugitive who has been abducted from abroad and brought before it for trial, a domestic court must consider the rule of law. The term "rule of law" has often been abused, so it must be carefully defined.12 The rule of law is not only formal in nature, but has important substantive elements as well. It is used in this Article to describe three related concepts. The first is a traditional concern with the prevention of executive unlawfulness under domestic law. Simply put, the courts must be prepared to exercise judicial review to ensure that the domestic execu- tive acts according to the ordinary law of the land. The second strand of the rule of law embodies a concern that the domestic authorities comply with international legal norms. This element of the rule of law is the one most directly connected with the proposal that domestic courts must take more seriously their rule as agents of the international legal system. The third component of the rule of law relates to the concern domestic courts should display in ensuring that the domestic executive does not violate individual human rights, derived as they are from both international and domestic law. These three elements of the rule of law, though conceptually distinct (and often treated as such by the courts), are closely connected in practice. A breach of international human rights norms may be a violation of domes- tic law, and vice versa. Where the domestic executive observes interna- tional legal norms, a healthy respect for both international human rights and domestic law is the likely result. Justice Steyn of the Appellate Divi- 12. See generally Joseph Raz, The Rule of Law and its Virtue, in THE AurnoRry OF LAw: ESSAYS ON LAW AND MoRAiTm 210 (1979). Cornell InternationalL aw Journal Vol. 29 sion of the Supreme Court of South Africa recognized the links between these three ideas in State v. Ebrahim,w hen he referred to the fundamental legal principles of the preservation and promotion of human rights, friendly international relations and the sound administration of justice.13 Justice Stevens, dissenting in Alvarez-Machain, adopted a similar approach.14 Respect for one of the three principles normally entails obser- vance of the others. B. Transnational Forcible Abduction: Why and How? The process of returning a fugitive from one state to another is generically described as "rendition." Rendition may be subdivided into three catego- ries: extradition, deportation, and abduction. States resort to transna- tional forcible abduction because bringing fugitives to trial is a difficult business.15 The ease of international travel makes it relatively simple for an individual to escape from a state's prosecuting authorities by fleeing abroad. Once abroad, the obstacles to the return and prosecution of a fugi- tive are numerous. The usual method of securing the fugitive's presence for trial is through extradition, either by treaty or through reciprocity.16 A state seeking to prosecute a fugitive who has fled to another state may request that the asylum state either extradite him or prosecute him domes- tically.17 However, in the absence of an extradition treaty, the asylum state 13. State v. Ebrahim, [1991] 2 S.A. 553 (S. Afr. App. Div.). 14. United States v. Alvarez-Machain, 504 U.S. 655, 670 (1992) (Stevens, J., dissenting). 15. "Fugitive" is a convenient, if at times misleading, shorthand. Its use is not intended to imply either that the individual is necessarily guilty of an offense (although he may be), or that he has actually fled from one state to another and is thus a "fugitive" from the former (although this is common enough). For the purposes of this Article, a "fugitive" is an individual sought by the abducting state for the purpose of charging him with criminal offenses, or punishment for a conviction previously entered. See Extradi- tion Act, R.S.C. ch. E-23, § 2 (1985) (Can.). Situations where states intervene to evacu- ate their own nationals from another state (e.g., the 1976 Entebbe rescue) are thus excluded because there the intent is protection rather than prosecution. Generally, a state is unlikely to abduct an individual from abroad unless it intends to try him for criminal offenses under its own domestic law. However, an individual could be abducted or induced to leave state X to state Y with the intention of extraditing him to state Z. See Ahmad v. Wigen, 726 F. Supp. 389 (E.D.N.Y. 1989), affd, 910 F.2d 1063 (2d Cir. 1990), stay denied, 111 S. Ct. 23 (1990) (irregular rendition from Venezuela to United States for extradition to Israel); Schmidt II, [1995] 1 App. Cas. at 343-45 (Eng. H.L 1994) (fugitive lured from Ireland to England to be extradited to Germany); Liang- siriprasert v. United States, [1991] 1 App. Cas. 225, 231 (P.C.) (appeal taken from Hong Kong) (individuals lured from Thailand to Hong Kong to be extradited to the United States); Bozano v. France, 9 Eur. H.R. Rep. 297 (1987) (Eur. Ct. H.R.) (rendition from France to Switzerland for extradition to Italy). 16. On extradition generally, see 1 M. CHim BAssiouNI, INTERNATIONAL ExTRADTON: UNrErD STATES LAW AND PRACnCE (2d rev. ed. 1987); MicHAE. FoRDE, THE LAW OF EXTRA. DrrON T EmU Nrn KiNGDOM (1995); ALUN JONES, JONES ON ExTRADION (1995); ANNE WANm LA FOREST, LA FORESr'S ExTRADrnoN To AND FROM CANADA (3d ed. 1991). 17. Extradition is "the formal surrender of a person by a State to another State for prosecution or punishment." Draft Convention on Extradition,A rt. l(a), 29 Am.J. INT'L L. 21 (Supp. 1935); 1 RESTATEmENT (THIRD) oF FOREIGN RLATIONS LAw § 475 (1987); Sir Arnold McNair, Extradition and ExterritorialA sylum, 28 Bmur. Y.B. INT'L L. 172, 172 (1952). 1996 English-SpeakingJ ustice is under no international legal obligation to either extradite or prosecute a 8 fugitive.' Even the existence of an extradition treaty between the requesting state and the asylum state is no guarantee of successful recovery of a fugi- tive. Several barriers may prevent the return of a fugitive from abroad through the extradition process. First, the asylum state may decline to extradite a fugitive if it views the offense with which he has been charged as political in nature.'9 Second, many states refuse to extradite their own nationals for offenses committed abroad.20 Third, there is a requirement of double criminality.21 Most extradition treaties provide that extradition is available only for certain specified offenses. Finally, the extradition pro- cess can be painfully slow.22 Faced with a foreign state's reluctance to extradite a fugitive, other options may appear more attractive to the requesting state, including the forcible abduction of the fugitive from abroad to face trial. A transnational forcible abduction consists of four elements. This Article focuses upon transnational forcible abductions with the under- standing that each of these four elements is present, while recognizing that cases may stray from this paradigm. By setting out guidelines for the model case, a solution for less dear cases may be derived by analogy. The first element of a transnational forcible abduction requires there to be a fugitive, an individual suspected (or already convicted) of having 18. There is no duty under customary international law either to prosecute or extra- dite fugitives. United States v. Allard, I S.C.R. 861, 865 (Can. 1991); BASsIouNI, supra note 16, at 10; Manuel Adolfo Viera, L'evolution Recente de L'extradition dans le Conti- nent Amdricain, 185 REcuEIL DES CouRs 151, 301 (1984-I1). Such a duty arises only under treaties. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. 7, 78 U.N.T.S. 277, 282; Convention For the Suppression of Unlawful Seizure of Aircraft (Highjacking), Dec. 16, 1970, art. 7, 22 U.S.T. 1641, 1646, 10 I.L.M. 133 134-35; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), Sept. 23, 1971, art. 7, 24 U.S.T. 565, 571, 10 LL.M. 1151, 1154; International Convention Against the Taking of Hostages, art. 8, G.A. Res. 146, U.N. GAOR, 34th Sess., Supp. No. 46, at 245, 246, U.N. Doc. A/RES/34/46 (1979). See generally M. CHEmF BASSIoUNi & EDw-A1D M. WISE, Aur DEDERE Air JuDicARE: THE DUTY TO EXrRADrrE OR PROSECUTE IN INTERNATIONAL LAw (1995). While under interna- tional law there is no duty to extradite in the absence of a treaty obligation, a state may choose to extradite even though no treaty requires it to do so. Extradition in this man- ner, however, may be prohibited by the domestic law of some states. 19. For an in-depth analysis of this defense, see CHsrlI VAN DEN WIJNGAERT, THE POLITICAL OFFENSE ExCEPTION TO EXTRADITION (1980). 20. IAN BROwNIE, PRINCIPLES OF PUBLC INTERNATIONAL LAW 317 (4th ed. 1990); IvAN A. SHEARE , EXrRADmON IN INTERNATIONAL LAw 94-96 (1971). States which do not extra- dite their nationals usually prosecute on the basis of the nationality principle. There- fore, even though the fugitive is not extradited, he may be prosecuted under the laws of the asylum state. A state's willingness to extradite its nationals tends to vary directly with the scope of the adjudicative competence which it claims under the nationality principle. Jose Francisco Rezek, Reciprocity as a Basis of Extradition,5 2 Brr. Y.B. INT'L L. 171, 184-85 (1981). 21. It is a common treaty provision that the offense for which the fugitive is sought must be a criminal offense in both states. United States v. Lpine, 1 S.C.R. 286, 297 (Can. 1994). 22. Cardozo, supra note 5, at 128-32. Cornell InternationalL aw Journal Vol. 29 committed a criminal offense23 in one state, who has fled to another state. The nationality of the fugitive is unimportant.24 The only requirement is that the fugitive be physically present in one state and be sought by the authorities of another state. The second substantive element is that the fugitive must have been abducted by force. A state may also use the threat of force or similar sanctions in order the secure the presence of a fugitive within its jurisdiction. Third, there must be an aspect of extraterritorial enforcement by the abducting state. The abducting state must have acted outside its own territory. The fourth element requires that the abduction has been carried out by state agents, either state employees or private indi- viduals working under state direction. Transnational forcible abduction must be distinguished from the prac- 23. Civil proceedings are a distinct matter. The general rule is that jurisdiction for civil proceedings cannot be grounded by force or fraud, and service will be set aside. See generally ROBERTJ. SHA"E, THE LAw or HABEns CoRus 181 (2d ed. 1989); 1 DIcEY AND MORMs ON THE CoNFucr oF LAws 300 n.84 (Lawrence Collins ed., 12th ed. 1993). Case law also supports this distinction. See In reJohnson, 162 U.S. 120, 126 (1897); Watkins v. North American Land and Timber Co. Ltd., 20 T.L.R. 534, 535-36 (Eng. H.L. 1904); Fitzgerald and Mallory Const. Co. v. Fitzgerald, 137 U.S. 98, 105 (1890); Perrett v. Robinson [1985] 1 Q.R. 83, 84-85 (Queensland (Austl.)); Colt Indus. Inc. v. Sarlie, 1 W.L.R. 440, 443-444 (Eng. Q.B. 1966); Stein v. Valkenhuysen, 120 Eng. Rep. 431, 432 (Q.B. 1858); Adam v. Crowe, 14 . 800 n.* (Scot. 1st Div. 1897); Lewis v. Wiley, 53 O.L.R. 608, 609 (Ont. (Can.) S. Ct. 1923). Even this rule is limited in its application. Service will not be set aside where service of the writ upon the defendant was not the sole reason for having lured him into the jurisdiction. Watkins, 20 T.L.R. at 536. A defendant who has been brought into the jurisdiction by force of law may be served with a writ. Baldry v.Jackson, [1976] 1 N.S.W.L.R. 19, 23 (New S. Wales (Austl.) S. Ct.); John Sanderson & Co. (N.S.W.) Pty Ltd. v. Giddings, [1976] V.. 421, 424 (Victoria (Austl.) S. Ct.). Several forcible abduction cases explicitly distinguish criminal cases from civil cases. In re Harmett, 1 0.R. 2d 206, 209-10 (Ont. (Can.) High Ct. ofJustice 1973); In re Johnson, 162 U.S. at 126; Sinclair v. H.M. Advocate, 17 P. 38, 43 (Scot. 1890). 24. In most situations, the fugitive will be a citizen of the state requesting extradition for an alleged offense committed within that state. Ker v. Illinois, 119 U.S. 436, 437-39 (1886); The King v. Walton, 10 C.C.C. 269, 272-73 (Ont. (Can.) C.A. 1905); Regina v. Hartley, [1978] 2 N.Z.L.R. 199, 215 (N.Z. C.A.); State v. Ebrahim, [1991] 2 S.A. 553, 562-63(a) (S. Mr. App. Div.), translated in 31 I.L.M. 888, 890 (1992); Mackeson v. Minis- ter of Info., Immigration, and Tourism, [1980] 1 S.A. 747, 749 (Zimbabwe/Rhodesia Div.); Regina v. O./C. Depot Battalion, R.A.S.C., Colchester (Ex parte Elliot), [1949] 1 All Eng. Rep. 373, 375 (K.B. Div'l Ct.); Ex parte Scott, 109 Eng. Rep. 166, 166 (K.B. 1829); Sinclair v. H.M. Advocate, 17 R. 38, 41, 44. In some cases, the fugitive will not be a citizen of the abducting state. Jaffe v. Smith, 825 F.2d 304,305 (1lth Cir. 1987); Regina v. Plymouth Magis. Ct. (Ex parte Driver), [1986] 1 Q.B. 95, 103 (Eng.). In other cases, the alleged offense may have occurred outside the territory of the abducting state. Thomas L. Friedman, Israel Confirms It Is Holding Missing Nuclear Technician, N.Y. TIMES, Nov. 10, 1986, at A1O (former technician at Israeli nuclear plant who revealed details of Israeli nuclear capacity lured to Italy from London and abducted by Israeli agents); Christopher Walker, Vanunu's Kidnap Story Confirmed by Israeli Report, THE TIMES (London), Mar. 24, 1995, at 13 (same). The fugitive may also be a non-citizen accused of a crime committed outside the abducting state's territory. Alvarez-Machain, 504 U.S. at 670 (Stevens, J., dissenting); United States v. Noriega, 746 F. Supp. 1506, 1510 (S.D. Fla. 1990) (Commander-in-Chief of Panamanian Defense Forces seized by invading U.S. forces and brought to face drug trafficking charges in United States); United States v. Yunis, 681 F. Supp. 896, 898 (D.D.C. 1988); Attorney-General v. Eichmann, 45 Resakim Mehozim 3 (Isr. Dist. Ct. 1961), translated in 36 I.L.R. 18, 28-29 (1968), affd, 16 P.D. 2033 (Isr. 1962), translated in 36 I.L.R. 277 (1968). 1996 English-SpeakingJ ustice 391 tice of "disguised extradition," with which it has some similarities.25 Dis- guised extradition occurs when an individual is deported by state X to state Y, state Y seeks his return for prosecution, and state X deports the individ- ual in order to bypass the regular extradition process between the two states. Extradition and deportation are conceptually distinct procedures with different purposes. The purpose of deportation is to expel unwanted immigrants. In theory, a state which deports an individual has no prefer- ence as to her destination-it simply wants her to leave. Extradition, by contrast, is concerned with the transfer of an individual to a specific for- eign state so that she may be prosecuted there for specified offenses. There are a number of other important distinctions between extradition and deportation. Only aliens may be deported, whereas a state may extradite both aliens and nationals. Further, extradition arises from the request of a foreign state, whereas deportation is in theory a unilateral act of the deport- ing state. Finally, disguised extradition by way of deportation necessarily involves the consent and participation of the officials of the deporting state, whereas a transnational forcible abduction may or may not. Deportation to a specific foreign state may give rise to the suspicion that "disguised extradition" is taking place, thus depriving the individual of the procedural protections inherent to formal extradition proceedings. Deportation decisions, which are themselves subject to controls in both domestic and international law,26 cannot be made in a vacuum. An indi- vidual who is to be deported must be deported to some other state, and in many cases only one or two states may be willing to accept the deportee. The receiving state may wish to press criminal charges against the individual. Although the problem is worthy of concern, the term "disguised extra- dition" should not be used too broadly. The mere fact that an individual has been deported from state X to state Y, and Y seeks to prosecute him, is neither inherently objectionable nor a violation of international law.27 It 25. On disguised extradition, see Schlieske v. Minister for Immigration and Ethnic Affairs, 84 A.L.R. 719, 724-29 (Austl. Fed. Ct. 1988); Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839 (Can.); Halm v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 547, 560-65 (Can. Fed. Ct.); Hahn v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 331, 365-67 (Can. Fed. Ct.); Mensinger and Minister of Employment and Immigration v. Canada (M.E.I.), [1987] 1 F.C. 59, 68- 70 (Can. Fed. C.); Kindler v. MacDonald, [1985] 1 F.C. 675, 683-89 (Can. Fed. Ct.); Bembenek v. Canada (Minister of Employment and Immigration), 69 C.C.C. 3d 34, 48 (Ont. (Can.) Gen. Div. 1991) (recognizing phenomenon, but holding that it was not made out on the evidence); In re Shepherd and Minister of Employment and Imnmigra- tion, 70 O.R. 2d 765, 773-74 (Ont. (Can.) CA 1989), leave to appeal refused, 68 D.L.R. 4th vii (Can. 1989); Regina v. Governor of Brixton Prison (Ex parte Soblen), [1963] 2 Q.B. 243, 300-02 (Eng. C.A.); Regina v. Guildford Magis. Ct., (Ex parte Healy), [1983] 1 W.L.R. 108, 111-14 (Eng. Q.B. Div'l Ct.). See generally SHEAaR, supra note 20, at 76-9 1. 26. Ex parte Soblen, [1963]2 Q.B. 243;J. M. EvANs, IMMINGRATION LAw 274-78 (2d ed. 1983); Guy S. GooowiN-GLL, INTERNATONAL LAw AND ThE MOVmE OF PERSONS BErWEEN STATES 307-10 (1973); 1 OPmHamM's ITERNAa-ioNAL LAw: PRAcE 940-48 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 1992). 27. App. No. 10893/84 v. Germany, 9 Eur. H.R. Rep. 124, 126 (1985) (Commission report).