Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-008 Last-Modified: 1999/05/27 45. The first judgment that spoke of a (possible) violation of the sovereignty of another state and laid down an express ruling on this matter was the American judgment (1835) in State v. Brewster 7, Vt. 118, given by the Supreme Court of the State of Vermont. The respondent, a foreigner, who was found guilty of theft by one of the courts of that state, pleaded before the Supreme Court of the State that he was forcibly and against his will carried from Canada, the country of his domicile, by citizens of Vermont and brought to that state to be placed on trial, and that in these circumstances the court had no jurisdiction to try him. The Supreme Court dismissed the respondent's contention on the following grounds: "The respondent, although a foreigner, is, if guilty, equally subject to our jurisdiction with our own citizens. His escape into Canada did not purge the offence, nor oust our jurisdiction. Being retaken and brought in fact within our jurisdiction, it is not for us to inquire by what means, or in what precise manner, he may have been brought within the reach of justice. It becomes then immaterial, whether the prisoner was brought out of Canada with the assent of the authorities of that country or not. If there were anything improper in the transaction, it was not that the prisoner was entitled to protection on his own account. The illegality, if any, consists in a violation of the sovereignty of an independent nation. If that nation complain, it is a matter which concerns the political relations of the two countries, and in that aspect is a subject not within the constitutional powers of this court. Whether the authorities of Canada would have surrendered the prisoners, upon due application, is a question of national comity, resting in discretion. The power to do so will not be questioned. If they have the power to surrender him, they may permit him to be taken. If they waive the invasion of their sovereignty, it is not for the respondent to object, inasmuch as for this offence, he is, by the law of nations, amenable to our laws." Here was established for the first time the principle which guided American judgments, namely that a basic distinction must be drawn between the rights of the accused and the rights of the sovereign state from which the accused was kidnapped or carried forcibly. "The illegality (if any) is in the violation of the sovereignty of an independent nation" who may "complain" of or "waive the violation." If it complains, that would be a matter at issue between two sovereign states, which is not within the jurisdiction of the court. If it does not complain, it may be assumed that it has waived the invasion of its sovereignty. It is true that the reference to the possibility that the Canadian authorities "waived the invasion of their sovereignty" refers, in the context of the judgment, to a waiver at the time of the act, namely to the possible consent of the Canadian authorities to the apprehension of the respondent. But the principle has valid application to any waiver by a state of the invasion of its sovereignty, whether by abstaining from lodging a complaint, or by the abandoning of such a complaint, or by the amicable settlement of the dispute between the two countries. At all events, the accused has no right to oppose his trial, since in accordance with international law he is subject to the laws of the state which he violated. In that brief judgment of 1835 are embodied all the foundations requisite for the resolution of the question at issue in the present case. 46. On 6 December 1886 the United States Supreme Court gave "twin" judgments, namely in United States v. Rauscher (1886), 119 U.S. 407 (30 L. Ed. 425) and Ker v. Illinois (1886), 119 U.S. 436 (30 L. Ed. 421), which laid down basic rulings for cases of "fugitive offenders." It is hardly necessary to add that, as regards the legal issue under discussion, the same rule applies to a "foreign offender" as to a "fugitive offender" (see Chandler v. U.S. (1949), 171 F 2d 921, Gillars v. U.S. (1950), 182 F 2d 962). In U.S. v. Rauscher, the Court heard the case of a fugitive offender who was extradited to the United States by Great Britain under an extradition agreement of 1842 between the two countries. The judgment laid down the principle that (p. 432) - "The weight of authority and of sound principle are in favor of the proposition that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings." This principle, known as the "specialty principle" in the extradition laws of most countries (cf. section 19 of the English Extradition Law of 1870, section 24 of the Extradition Law 5714-1954), limits the jurisdiction of the court to such offence or such offences as have been the subject of the extradition in the specific case, and thereby vests personal immunity in the accused not to be tried (nor to be extradited to a third state) for any other offence committed prior to his extradition. The reason for this principle has been explained as follows in U.S. v. Rauscher (p. 432): "As this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited and of bad faith to the country which permitted his extradition. No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them." On the other hand, in Ker v. Illinois the court held that the principle of immunity does not apply to the case of a fugitive offender (a foreign offender, see supra) who has not been extradited to a country, but has arrived in the area of its jurisdiction by any other way, even by an unlawful way, such as kidnapping from a foreign country. The applicant in Ker v. Illinois pleaded that he was kidnapped by an agent of the United States in a sovereign country (Peru), was forcibly brought to the State of Illinois, was tried for theft and found guilty of embezzlement. The Supreme Court of Illinois rejected his contention against the jurisdiction of the court that convicted him, and the United States Supreme Court refused to interfere with that decision, saying (p. 424): "The question of how far his forcible seizure in another country, and transfer by violence, force or fraud to this country, could be made available to resist trial in the state court, for the offense now charged upon him is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws, or treaties, of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense, and presents no valid objection to this trial in such a court. Among the authorities which support the proposition are the following: Ex parte Scott, 9 Barn & C. 446 (1829);... State v. Brewster, 7 Vt. 118 (1835)..." Counsel for applicant sought to base himself indirectly on the extradition treaty between the United States and Peru (which had not been given effect to in the case) by pleading that any extradition treaty between two countries limits the powers of the two countries with respect to any fugitive offender who found asylum in either of these countries, by giving the offender a positive right, valid in both countries, to remain in the land of his asylum, unless duly and lawfully extradited to the country demanding his extradition pursuant to the extant treaty. The United States Supreme Court squarely dismissed that contention when it said (p. 424): "There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It will not be for a moment contended that the Government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. "The right of the Government of Peru voluntarily to give a party in Ker's condition an asylum in that country is quite a different thing from the right in him to demand and insist upon security in such an asylum. "In the case of United States v. Rauscher, just decided, and considered with this, the effect of extradition proceedings under a treaty was very fully considered; and it was there held that, when a party was duly surrendered, by proper proceedings, under the Treaty of 1842 with Great Britain, he came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him. One of the rights with which he was thus clothed, both in regard to himself and in good faith to the country which had sent him here, was that he should be tried for no other offense than the one for which he was delivered under the extradition proceedings... But it is quite a different case when the plaintiff in error comes to this country in the manner in which he was brought here, clothed with no rights which a proceeding under the treaty could have given him, and no duty which this country owes to Peru or to him under the treaty." These principles have been applied by the courts of the United States in a continuous and consistent line of precedents until today. See, the following, among others: Mahon v. Justice, 127 U.S. 700 (32 L.E. 283); Lascelles v. Georgia (1892), 148 U.S. 537 (37 L.E. 549); Pettibone v. Nichols (1906), 203 U.S. 192 (51 L.E. 148); Frisbie v. Collins (1952), 342 U.S. 519 (96 L.E. 591); United States v. Sobell (1957), 244 F. 2d 520 (524). 47. An analysis of these judgments reveals that the doctrine is not confined to the infringement of municipal laws, as distinct from international law, but the principle is general and comprehensive, as was summed up in Moore (ibid.) and adopted in Criminal Appeal 14/42 supra, or as summed up in 35 Corpus Juris Secundum para. 47 (p. 374): "Even though a person has been brought into the country by force or stratagem, and without reference to an extradition treaty, he is within the jurisdiction of domestic courts so as to be liable to trial on a regular indictment and imprisonment under a valid judgment and sentence." See also Hackworth, Digest of International Law (Department of State Publication), (1942) IV para. 345, pp. 224-228; Hyde, International Law (1947), II 1032: "Whatever be the right of the State from which he has been withdrawn, the prisoner is not entitled to his release from custody merely by reason of the irregular process by which he was brought into the State of prosecution." In United States v. Unverzagt (1924), 299 Fed. 1015, (1017) the accused pleaded that he was abducted from British Columbia by American officials. The District Court dismissed his application for habeas corpus, stating (p. 1017): "The defendant states he is a citizen of the United States. He is now before the courts of the United States. Canada is not making any application to this court in his behalf or its behalf because of any unlawful acts charged, and if Canada or British Columbia desire to protest, the question undoubtedly is a political matter, which must be conducted through diplomatic channels. The defendant cannot before the court invoke the right of asylum in British Columbia." In Ex parte Lopez (1934) 6 F.Supp. 342, the court heard the application for habeas corpus by a man who was abducted from Mexico to the United States and there charged with an offence under United States laws. The Government of Mexico interfered in the judicial proceedings on the ground that Mexico's sovereignty was violated through the abduction, and asked that the applicant be surrendered to them with a view to their holding him in custody in Mexico pending the hearing of the application for extradition (if any) under the extradition treaty between the two countries. The District Court, basing itself on Ker. v. Illinois and subsequent precedents, dismissed the applicant's application and also, relying on State v. Brewster (supra), rejected Mexico's intervention, saying: "The intervention of the government of Mexico raises serious questions, involving the claimed violation of its sovereignty, which may well be presented to the Executive Department of the United States, but of which this court has no jurisdiction. State v. Brewster, 7 Vt. 121." See also United States v. Insull (1934) 8 Federal Suppl. 310 (313). 48. The Anglo-Saxon doctrine was accepted by continental jurists as well. We have already referred above to the views of Travers. See also Dahm, Voelkerrecht (1958), who says, basing himself on Ex parte Elliott, Ex parte Lopez, U.S. v. Insull, and Afuna v. A.G. (Criminal 14/42), that "even if... the accused arrived in the area of jurisdiction by irregular means such as kidnapping or mistake, it is not he, the accused, but only the country wronged which can invoke irregularities of this type, and this does not concern his trial" (p. 280, note 26). So far as we have been able to examine legal literature, we found only one conflicting precedent, namely, In re Jolis (Annual Digest 1933-34, Case No. 77, a judgment given by a French Criminal Court of First Instance (tribunal correctionnel) of 1933. The accused, a Belgian citizen, visited a cafe in a French village and, following upon his visit, cash was missing from the till. The owner of the cafe suspected the accused and called in two village constables, and together with them pursued the accused until they apprehended him across the border. The Belgian government lodged an official protest with the French government against the arrest which was effected in Belgium by French policemen and demanded the return of the accused. The Court of Avesnes decided to release the accused on the ground that: "The arrest, effected by French officers on foreign territory, could have no legal effect whatsoever, and was completely null and void. This nullity being of a public nature, the judge must take judicial notice thereof. The information leading to the proceedings of arrest...and all that followed thereon must therefore be annulled." 49. Criticism of British and American judgments from the point of view of international law was levelled by Dickinson, "Jurisdiction Following Seizure or Arrest in Violation of International Law, 28 American Journal of International Law (1934), 231, and Morgenstern, "Jurisdiction in Seizures Effected in Violation of International Law," 29 British Yearbook of International Law (1952), 265. See also Lauterpacht in 64 Law Quarterly Review (1948), p. 100, note (14). It is not for us to enter into this controversy between scholars of international law, but we would draw attention to two points which are important to the present case. (1) The critics admit that established judicial precedent is as summed up above; (2) To the case before us that controversy is immaterial. In his above-mentioned article on the principles involved, Professor Dickinson proposes that the ruling in Ker v. Illinois be set aside, and to apply the ruling in U.S. v. Rauscher also to cases of seizure in violation of international law, and states his view (p. 239) that "In principle, in the international cases, there should be no jurisdiction to prosecute one who has been arrested abroad in violation of treaty or international law." In conformity with that view, the learned author proposes the following provision (p. 653, our emphasis) in the Harvard Research for which he is responsible, as part of the "Draft Convention on Jurisdiction with Respect to Crime," Article 16. Apprehension in Violation of International Law. "In exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or international convention without first obtaining the consent of the State or States whose rights have been violated by such measures." In his observations on that article the author says (p.624): "...It is frankly conceded that the present article is in part of the nature of legislation," and adds (p. 628): "In Great Britain, the United States, and perhaps elsewhere, the national law is not in accord with this article in cases in which a person has been brought within the State or a place subject to its authority by recourse to measures in violation of customary international law." He proposes this article de lege ferenda to ensure "an additional and highly desirable sanction for international law" (p. 624). It appears from the learned author's exposition that the proposed "sanction" of the limitation on the jurisdictional power of the state forms no part of positive customary international law. What is more, it is worthy of note that, also under the proposed Article 16, the jurisdictional power would not be limited by the right or for the benefit of the accused, but only by the right and for the benefit of the injured state; for after receiving the consent of the state, "the rights of which have been violated by the above_mentioned measures," the state within whose limits the accused is found will also under this proposal have jurisdiction to try the accused. The "sanction" is thus designed to lead to direct negotiations between the two countries concerned at the proper international level, to the end of making good the violation of the sovereignty of the one, and the regularization of the jurisdiction of the other, by mutual consent - and the results of the negotiations between the two countries are binding upon the accused. Indeed, it is stated in the explanatory notes (p. 624, our emphasis): "And if, peradventure, the custody of a fugitive has been obtained by unlawful methods, the present article indicates an appropriate procedure for correcting what has been done and removing the bar to prosecution and punishment." This proposal in the Harvard Research proves, in our view, that even he who subjects the rule in force to criticism and proposes changes in judicial decisions or by legislation, does not negate the basic view that, in substance, the violation by one country of the sovereignty of the other is susceptible of redress as between the two countries and cannot vest in the accused rights of his own.
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