Title Extraterritorial abduction under the framework of international law

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Extraterritorial abduction under the framework of international
Title
law: Does irregular mean unlawful?
Author(s) McDermott, Helen
Publication
2014-05-09
Date
Item record http://hdl.handle.net/10379/4486
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EXTRATERRITORIAL ABDUCTION UNDER THE
FRAMEWORK OF INTERNATIONAL LAW:
DOES IRREGULAR MEAN UNLAWFUL?

A Thesis Submitted for the Degree of Ph.D. to the National
University of Ireland, Galway by:

Helen McDermott, B.A. (NUIG), LL.B. (NUIG), LL.M.
(Irish Centre for Human Rights, NUIG).

Supervised by:
Dr. Shane Darcy

February 2014

Irish Centre for Human Rights
School of Law College of Business, Public Policy and Law
National University of Ireland Galway
TABLE OF CONTENTS

Declaration of Originality…………………………………………….1
Acknowledgments…………………………………………………….2

INTRODUCTION
1. Research Question and Contribution……………………………5
2. Outline of Study…………………………………………………9

Chapter 1: State Cooperation in the Transfer of Suspects
Introduction……………....…………………………………………20
1. History of Extradition.……..…………………………………..22
1.1 Antiquity…………………………………………………….23
1.2 Eighteenth and Nineteenth Centuries…….…..……………..24
1.3 Modern Day………………………………………………....25
1.3.1 Counterterrorism…………………………………….27
1.3.2 International Criminal Justice……………………….31
2. The Basis of International Cooperation………………………..35
2.1 Theories on International Relations…...…………………….37
2.2 The Obligation to Act in Good Faith………………………..40
2.3 Extraterritorial Jurisdiction………………………………….43
2.4 The Duty to Extradite or Prosecute…………………………46
3. Difficulties with the Existing Framework………………………51
3.1 The Political Offence Exception……………………………51
3.2 Dual Criminality……………………………………………56
3.3 Evidentiary Requirements…...……………………………..57
3.4 Non- Extradition of Nationals……………………………...59
4. The Extradition Relationship between Colombia
and the United States…..……………………………………...61

Conclusion…….…………………………………………………...64
Chapter 2: Kidnapping
Introduction…………………………………………………………..67
1. The Modalities of Forcible Abduction…………………………..71
2. Kidnapping under Public International Law…………………….78
2.1 The Threshold of Force………………………………………80
2.2 Against the Territorial Integrity and Political Independence...83
2.3 Self-Defense……..…………………………………………...88
3. The Application International Humanitarian Law
to Kidnapping………………………………………………….95
3.1 Classification of The Afghan Conflict….……………………96
3.1.1 Al-Qaeda as an Armed Group………………………..98
3.2 Territorial Scope of Armed Conflict………………………...101
3.3 Categories of Individuals in an Armed Conflict…………….104
3.3.1 Loss of Civilian Immunity…………………………..107
3.4. The Relocation of Fighters………………………..........109
4. Kidnapping under International Human Rights Law…………..116
4.1 The Human Rights Committee……………………………...120
4.2 The European Court of Human Rights……………………...121
4.3 Extraterritorial Applicability of Human Rights Law…….….125
Conclusion…………………………………………………………..129

Chapter 3: Luring
Introduction………………………………………………………….132
1. Modalities………….…………………………………………….134
2. Luring under Public International Law………………………….138
2.1 The Principle of Non-Intervention…….…………………….141
2.1.1 Luring as Intervention……………………………….144
2.1.2 The Threshold for Non-Intervention…………...........148
3. Luring under International Human Rights Law…………………150
3.1 The Right to Liberty and Security of the Person……………152
3.1.1 Deprivation of Liberty……………………………….153
3.1.2 Arbitrary Arrest and Detention………………............156
Conclusion…………………………………………………………...161
Chapter 4: Disguised or De Facto Extradition
Introduction……………………………………………………………163
1. Modalities...………………………………………………………165
1.1 Immigration Control……………………………………...168
1.2 Deportation and Exclusion……………………………….171
2. Disguised or De Facto Extradition under International
3. Human Rights Law………………………………………………178
2.1 European Court of Human Rights……………………….179
2.2 The Principle of Non Refoulement………………………183
2.3 Diplomatic Assurances…………………………………..187
Conclusion………………………………………………………….....192

Chapter 5: Legal Consequences of Extraterritorial Abduction
Introduction……………………………………………………….......195
1. Jurisdiction……………………………………………………....197
1.1 Domestic Courts………………………………………....197
1.2 International Courts……………………………………...208
2. State Responsibility for Extraterritorial Abduction……………..225
2.1 Attribution of Conduct…………………………………..227
2.1.1 Direction or Control……………………………..229
2.1.2 Acknowledges and Adopts………………………232
2.2 Private Individuals…………………………………………….....234
3. Consent Precluding Responsibility………………………………237
4. Reparations and Remedies………………………………………..240
4.1 Human Rights Violations………………………………..247
Conclusion…………………………………………………………....251

CONCLUSION………………………………………………………253
Bibliography………………………………………………………......263
Table of Selected Cases……………………………………………….280
DECLARATION OF ORIGINALITY

I, Helen McDermott, do hereby declare that the work submitted for
examination is my own and that due credit has been given to all sources of
information contained herein. With this declaration, I certify that I have not
obtained a degree at National University of Ireland Galway or elsewhere on
the basis of this work. I acknowledge that I have read and understood the
Code of Practice dealing with Plagiarism and the University Code of
Conduct of the National University of Ireland Galway and that I am bound
by them.

Signature: ____________________________________

Date: ____________________________________

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ACKNOWLEDGEMENTS

I would like to offer particular thanks to my supervisor, Dr. Shane Darcy,
for his support, encouragement and advice. This work would not have been
possible without the benefit of his guidance and careful supervision. I also
wish to convey my deepest gratitude to the Irish Centre for Human Rights
for the financial support that I received in the form of a Doctoral
Fellowship.

I am greatly indebted to all of my friends from the Irish Centre for Human
Rights who discussed and offered feedback on chapters of the work
especially Alexis Bushnell, Amina Adanan, Yingxi Bi and Yvonne
McDermott. I would also like to thank Annabel Brody, Ciara McLaughlin
and Kate Doran for their camaraderie and encouragement.

A special word of thanks is owed to my brother, John, my sister Eileen, and
my parents, John and Margaret. My parents have never wavered in their
faith in me. I thank them for their support, love and encouragement
throughout this project and it is my great pleasure to dedicate this thesis to
them.

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INTRODUCTION

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.1 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.2 Other factors that can

1 The Attorney-General of the Government of Israel v. Adolf Eichmann, District Court of
Jerusalem, ‘Judgment’, 12 December 1961, Criminal Case No. 40/61 (36 International
Law Reports 1968, pp. 18-276); Adolf Eichmann v. The Attorney-General of the
Government of Israel, Supreme Court of Israel, ‘Judgment’, 29 May 1962, Criminal
Appeal No. 336/61 (36 International Law Reports 1968, pp. 277-342); ‘US capture Libyan
al-Qaida leader Anas al- Liby officials say’, The Guardian, (6 October 2013), available at:
http://www.theguardian.com/world/2013/oct/06/us-capture-al-qaida-leader-anas-liby-libya.
2 ‘Lebanon- 2 Year Sentence in Plot to Blow up Hudson River Tunnels’, The New York
Times, (17 February 2012) available at:
http://www.nytimes.com/2012/02/18/world/middleeast/lebanon-2-year-sentence-in-plot-to-
blow-up-hudson-river-tunnels.html; The United States does not have extradition
agreements with many states in which those suspected of terrorism are often located-
Afghanistan, Libya, Lebanon, Somalia and Syria. See Title 18 United States Code §3181;
Charles Kallenbach, ‘Plomo O Plata Irregular Rendition as a Means of Gaining
Jurisdiction over Colombian Drug Kingpins’, 23 International Law and Politics (1990)

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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.3 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

169, at 170; Michael Plachta, ‘(Non-) Extradition of Nationals: A Neverending Story’, 13
Emory International Law Journal (1999) 77.
3 The Lebanese government has often refused extradition requests from the United States;
See Gregory McNeal and B.J. Field, ‘Snatch and Grab Ops: Justifying Extraterritorial
Abduction’ 16 Transnational Law and Contemporary Problems, (2007) 491, at 492.

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states to take measures to this effect.4 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.

1. RESEARCH QUESTION AND CONTRIBUTION

The research question underpinning this project is whether extraterritorial
apprehensions conducted outside formal procedures violate international
law; in other words does irregular mean illegal? To answer this, the thesis
identifies the international legal frameworks that apply to the different
forms of the practice, clarifies the principles and rules triggered within each
framework and considers the way in which national and international courts
and tribunals have dealt with the issue.
The development of a sound and comprehensive answer to the research
question posed demands consideration of a series of pertinent issues that
underlie the issue of extraterritorial abduction. A determination as to the
motivations for extraterritorial abduction begins with an examination of
formal systems of extradition and surrender. This analysis raises the
following questions: what is the basis of state cooperation in the transfer of
suspects between jurisdictions? What aspects of the formal mechanisms
established for the transfer of suspects lead to the employment of
extraterritorial abduction? An understanding of the factors that contribute to

4 Security Council Resolution 1373 (2001); Security Council Resolution 1438 (2002);
Security Council Resolution 1440 (2002); Security Council Resolution 1530 (2004);
Security Council Resolution 1611 (2005).

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