International law, Sixth edition
part of a terrorist operation
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International Law MALCOLM N. SHAW
part of a terrorist operation. 163 Nevertheless, there may be circumstances where an action taken by a state as a consequence of hostile hijacking or terrorist operations would be justifiable in the context of self-defence. 164 Illegal apprehension of suspects and the exercise of jurisdiction 165 It would appear that unlawful apprehension of a suspect by state agents acting in the territory of another state is not a bar to the exercise of ju- risdiction. Such apprehension would, of course, constitute a breach of international law and the norm of non-intervention involving state re- sponsibility, 166 unless the circumstances were such that the right of self- defence could be pleaded. 167 It could be argued that the seizure, being a violation of international law, would only be compounded by permitting the abducting state to exercise jurisdiction, 168 but international practice on the whole demonstrates otherwise. 169 In most cases a distinction is clearly drawn between the apprehension and jurisdiction to prosecute and one should also distinguish situations where the apprehension has 163 See The Times, 5 February 1986, p. 1. 164 See e.g. as to the 1976 Entebbe incident, below, chapter 20, p. 1143. 165 See e.g. F. Morgenstern, ‘Jurisdiction in Seizures Effected in Violation of International Law’, 29 BYIL, 1952, p. 256; P. O’Higgins, ‘Unlawful Seizure and Irregular Extradition’, 36 BYIL, 1960, p. 279; A. Lowenfeld, ‘US Law Enforcement Abroad: The Constitution and International Law’, 83 AJIL, 1989, p. 880, Lowenfeld, ‘US Law Enforcement Abroad: The Constitution and International Law, Continued’, 84 AJIL, 1990, p. 444, Lowenfeld, ‘Kidnapping by Government Order: A Follow-Up’, 84 AJIL, 1990, p. 712, and Lowenfeld, ‘Still More on Kidnapping’, 85 AJIL, 1991, p. 655. See also F. A. Mann, ‘Reflections on the Prosecution of Persons Abducted in Breach of International Law’ in International Law at a Time of Perplexity (ed. Y. Dinstein), Dordrecht, 1989, p. 407, and Higgins, Problems and Process, p. 69. 166 See e.g. article 2(4) of the United Nations Charter and Nicaragua v. US, ICJ Reports, 1986, p. 110; 76 ILR, p. 349. See further below, chapter 20. 167 Note, in particular, the view of the Legal Adviser of the US Department of State to the effect that ‘[w]hile international law therefore permits extraterritorial “arrests” in situations which permit a valid claim of self-defence, decisions about any extraterritorial arrest entail grave potential implications for US personnel, for the United States, and for our relations with other states’, 84 AJIL, 1990, pp. 725, 727. 168 See Mann, ‘Jurisdiction’, p. 415. 169 See e.g. the Eichmann case, 36 ILR, pp. 5 and 277. j u r i s d i c t i o n 681 taken place on or over the high seas from cases where it has occurred with- out consent on the territory of another state. A further distinction that has been made relates to situations where the abduction has taken place from a state with which the apprehending state has an extradition treaty which governs the conditions under which movement of alleged offenders occurs between the two. A final distinction may be drawn as between cases depending upon the type of offences with which the offender is charged, so that the problem of the apprehension interfering with the prosecu- tion may be seen as less crucial in cases where recognised international crimes are alleged. 170 Of course, any such apprehension would constitute a violation of the human rights of the person concerned, but whether that would impact upon the exercise of jurisdiction as such is the key issue here. Variations in approaches are evident between states. The US Court of Appeals in US v. Toscanino 171 held that the rule that jurisdiction was unaffected by an illegal apprehension 172 should not be applied where the presence of the defendant has been secured by force or fraud, but this approach has, it seems, been to a large extent eroded. In US ex rel. Lu- Download 7.77 Mb. Do'stlaringiz bilan baham: |
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