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Male Captus, Bene Judicatus: disguised extradition and other practices.

Published online by Cambridge University Press:  21 July 2009

Tineke Poort
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Abstract

On the basis of four ‘irregular’ extradition cases, the author demonstrates that states sometimes violate generally accepted rules of extradition law. Legitimate grounds for the refusal of, as well as procedural impediments to extradition are evaded -for instance by simply kidnapping the individual involved. Also, the so-called ‘disguised extradition’ is used by states, when expelling a person in stead of extraditing him, but in fact accomplishing the same result. Despite such apparent failures in the procedure of obtaining an individual (‘male captus’), states maintain that the individuals can nevertheless be legitimately tried (‘bene judicatus’). According to the author, these practices are incompatible with certain general principles of international law.

Type
Student Contributions
Information
Leiden Journal of International Law , Volume 1 , Issue 1 , May 1988 , pp. 65 - 77
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1988

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References

1. O, 'Higgins, Unlawful seizures and Irregular Extradition, 36 British Yearbook of International Law, 280 (1960): (1) Recovery of fugitive criminals in violation of international law; (2) Apprehension of a fugitive criminal in the territory in state X by private individuals, nationals of state Y, with the connivance of the officials of Y; (3) Same as B only without the connivance; (4) Irregular apprehension of a fugitive criminal in state X prior to his extradition to state Y; (5) Mistaken surrender of a fugitive criminal by one state to another.Google Scholar

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3. According to art 24 of the Dutch Act, an alien should be given a reasonable period of time to leave; art. 25 provides that.if his health or that of his family does not allow expulsion, it will not take place.

4. Swart, A.H J., Nederlands Uitleveringsrecht, 9 (1986). Among the Benelux countries such a treaty has been concluded; the Benelux as an entity has made agreements with the F.R.G., Austria and France.Google Scholar

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20. Pursuant to art. 35 par. 1 jo art. 24 of the UN Charter.

21. Resolution of June 23,1960, U.N.Doc. S/4349. See also art. 36 par. 1 of the Charter.

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34. Id., at 151.

35. All facts mentioned in this paragraph have been taken from NRC Handelsblad, May 11–16,1987.

36. See NRC Handelsblad, May 11,1985. Until then, the Bolivian Supreme Court had refused to extradite Barbie, see 20 Annuaire Francais du Droit Intern'l 1111 (1974).

37. See NRC Handelsblad, May 15,1985. According to Akehurst, the requirement that “a state must have a government capable of maintaining effective control over its territory (...) is not always strictly applied; thus a state does not cease to exist when it is temporarily deprived of an effective government as a result of civil war or similar upheavals” (see M. Akehurst, A Modem Introduction to International Law, 53 (1984).

38. See Shearer, , supra, note 8,74; Argoud-case (Paris: Cour de Cassation, June 4,1964)Google Scholar, La semaine juridique no. 13806 (1964). This decision has been criticized by Doehringer, Restitutionsanspruch.Asylrecht undAuslieferungsrecht im Fall Argoud, 25 ZaöRV 209 (1965).

39. See 51 NJ.B. 828–831 (1976).

40. See NRC Handelsblad, Oct. 6,1987.

41. See art 344 Codigo Penal y Legislation Complementaria), and art. 4 par. 3 of the Spanish Extradition Act, respectively.

42. Art. 103, par. 4, Grundgesetzes. The German Public Prosecutor can, however, refrain from prosecution if the accused has been tried before: art. 153, par. 3, RistBv.

43. See also the Records of the Dutch Second Chamber, Handelingen 1985/86, Kamervraag 846, App. D.

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47. In the Eichmann case, Argentina was not so much interested in the well-being of Eichmann, as in the violation of its territory by Israel.

48. Cf. Bassiouni, supra, note 6,145.

49. See, e.g., Shearer, supra, note 8,21