Constructing transjurisdictional criminal justice in a - Hartwick College

Constructing transjurisdictional criminal justice in a ‘global war 

on terror’—Guantánamo Bay, ‘extraordinary renditions’, 

sovereignty, and human rights after 11 September. 

Noah T. Paul 

HARTWICK COLLEGE 

Department of Political Science 

Oneonta, NY 

Submitted in partial fulfillment of 

the requirements for the degree of: 

Bachelor of Arts in Political Science 

Thesis Advisor: Professor Neil DeVotta

PAUL – Constructing Transjurisdictional Criminal Justice in a ‘Global War on Terror’ 

CONSTRUCTING TRANSJURISDICTIONAL CRIMINAL JUSTICE IN A ‘GLOBAL 

WAR ON TERROR’—GUANTÁNAMO BAY, ‘EXTRAORDINARY RENDITIONS’, 

SOVEREIGNTY, AND HUMAN RIGHTS AFTER 11 SEPTEMBER. 

Noah T. Paul ‘08, Department of Political Science, Hartwick College, Oneonta, NY 

Submitted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Political Science. 

THESIS ADVISOR – Professor Neil DeVotta. 

The evil of protecting malefactors of every dye is sensibly felt here, as in other 

countries; but, until a reformation of the criminal codes of most nations, to 

deliver fugitives from them, would be, to become their accomplices. The former, 

therefore, is viewed as the lesser evil. 

THOMAS JEFFERSON 1 

1

TABLE OF CONTENTS 

ABSTRACT ............................................................................................................2 

INTRODUCTION—Transjurisdictional criminal justice in a shrinking world........2 

PART I—Normative process of extradition and nonextradition...........................10 

§1.1, Extradition in municipal law and conflicts between the political and the judicial, 12 

§1.2, Extradition in international law—aut dedere, aut judicare, and extradition treaties, 17 

§1.3, Causes of dispute and restrictions on return I—extradition of nationals and of individuals 

subject to head of state immunity, 19 

§1.4, Causes of dispute and restrictions on return II—political offenses, human rights, and the 

death penalty, 22 

PART II—Extradition accomplished by irregular means......................................28 

§2.1, Abduction as an alternative to extradition under international and municipal law, 28 

§2.2, Extradition by way of abduction—the Álvarez-Machain debacle and the doctrine of male 

captus bene detentus, 30 

§2.3, Extradition achieved by military force and abduction of individuals subject to head of state 

immunity, 34 

PART III—Extraterritorial jurisdiction in the war on terror 

..................................................................................................................Er 

ror! Bookmark not defined.


§3.1, Extraterritorial jurisdiction before 9/11—the promise and pitfalls of the Lockerbie tribunal, 

36 

§3.2, Changing directions—defining criminal justice for terror suspects captured in the course of 

a ‘global war on terror’, 42 

§3.3, The detention center at Guantánamo and the status of individuals detained during wartime 

as ‘enemy combatants’ under Geneva III, 45 

PART IV—Rendition to third states and the torture connection...........................50 

§4.1, Extradition by way of abduction resulting in rendition to a third jurisdiction, 50 

§4.2, Sidestepping proscriptions of non-refoulement and torture under international law, 52 

§4.3, The maturation of extraordinary rendition and the ‘outsourcing of torture’—revelations and 

responses of the United States government, 56 

§4.4, Further obligations of the United States under international law and illegality of renditions 

to torture under the same, 58 

CONCLUSION—Whither extradition in a war on terror?.......................................62 

APPENDIX A: Narrative of Khalid El-Masri.........................................................66 

APPENDIX B: Table of Acronyms.........................................................................70 

APPENDIX C: Table of Authorities .......................................................................74 

NOTES ..................................................................................................................80 

1


ABSTRACT 

The process of extradition of criminal suspects between states is necessarily 

complicated by the fact that it is at times an awkward intersection between the purview of 

the political and judicial sectors. In spite of this, it typically proceeds in an orderly 

fashion and is rarely contested, but in other cases, extradition proceedings may no longer 

be uncontroversial, foolproof, or ‘clean,’ leading to enduring contention between the noncompliant 

state of asylum and the petitioning state, which may in response resort to 

radical measures to obtain custody of the suspect. Such radical measures have of late 

been the policy of the current administration in the U.S., and coupled with the practice of 

‘extraordinary rendition’ to third jurisdictions in which the accused may face, inter alia, a 

lack of due process and even torture. This policy poses various challenges to domestic 

and international jurisprudence relating to the disposition of terror suspects in a variety of 

legal situations. Unfortunately, these policies may not necessarily lend themselves to 

international comity or, in the long run, to the promotion of American interests and 

security, and are highly questionable, from a number of angles, under both customary and 

codified international law, in addition to the municipal jurisprudence of the United States. 

We will examine in short form the nature of extradition generally, and as applied to 

organized crime and terror cases in recent history, with an eye towards the future of 

American extradition policy if current trends continue, and if other policy alternatives are 

not adopted. 

2


INTRODUCTION: TRANSJURISDICTIONAL CRIMINAL JUSTICE IN A SHRINKING WORLD 

The advent of globalization and the ‘shrinking’ of the world in terms of the 

availability of rapid transportation and instant communication has not been without it’s 

sequelae in the realm of criminal justice. It has never been easier for an individual to 

commit a crime in one jurisdiction and flee to another, or to commit a crime in one 

jurisdiction that has definitive consequences in another 2 . Organized crime, the 

international drug trade, and terrorism have only grown in salience in the latter half of the 

twentieth century, coupled with a new awareness, after the events of World War II, of 

human rights and an international jus cogens relative to transjurisdictional efforts to 

protect the same 3 . It is therefore of growing importance to states to assert their 

jurisdiction beyond their boundaries, that is, to implement their own brand of criminal 

justice in cases which are not, geographically speaking, within their purview. 

Although these trends are only increasing, the problem is nothing new. One of the 

earliest recorded instances of what we would know contemporarily as ‘extraordinary 

rendition’ is Biblical—the book of Jeremiah relates the story of Urijah, a prophet who 

dared criticize the wicked king Jehoiakim, was subject to what would now no doubt lead 

to an international incident—“Jehoiakim … sought to put him to death: but when Urijah 

heard it, he was afraid, and fled, and went into Egypt ... [and Jehoiakim’s men] fetched 

forth Urijah out of Egypt, and brought him unto Jehoiakim the king; who slew him with 

the sword 4 .” 

4


The response of Egypt, if there was any at all, is not recorded. Antedating even 

this account, however, is a remarkable document from the 13th century B.C., a treaty 

between Pharaoh Ramses II of Egypt and Hittite Prince Hattusili, stating: “If any great 

man flee from the land of Egypt … the great chief of Hatti shall not receive him … [but] 

shall cause them to be brought to … the great ruler of Egypt, on account of it … or if 

[men] who are unknown flee …, they shall not be left in the land of Hatti, they shall be 

brought to Ramesse-mi-Amun, the great ruler of Egypt … or if a great man flee from the 

land of Hatti … the great ruler of Egypt shall cause them to be brought to the chief [of 

Hatti]. Likewise, if one [men] who are not known flee to the land of Egypt … [the 

Pharaoh] shall cause them to be brought to the great chief of Hatti 5 .” 

This is recognizably what we would call a bilateral extradition treaty, and it is 

remarkable for its simplicity. Hittite criminals, whether petty thieves or noblemen, were 

to be handed over to the Hittites should they flee to Egypt; likewise with Egyptian 

fugitives from Egyptian justice. Extradition treaties, then, are hardly new, although 

naturally, the details of how extradition is implemented and to whom it was primarily 

applied have changed considerably over time. Modern extraditions are generally 

governed by the same sort of bilateral international agreements that the Pharaoh and King 

of Hatti negotiated millennia ago 6 , and similarly, this “piecemeal 7 ”, since the terms of 

which are not necessarily identical among different agreements signed by the same state. 

Even in the presence of well-wrought extradition treaties the process is not 

necessarily easy or without attendant controversy. Different countries have manifestly 

different internal systems of justice—with such ‘differences’ ranging from minor points 

of procedure to the vast differences between civil and common law 8 , to different 

5


conceptions of human rights and due process, not to mention a potential lack of 

correspondence between activities considered criminal, including particularly offenses of 

a political nature. Furthermore, extradition being a process that “blends 9 ” international 

and municipal law, and touches upon multiple jurisdictions, political as well as judicial 

concerns are manifestly in play 10 , that is to say, “tension between the principles of 

dualism and monism, between sovereignty and cooperation, and between comparative 

and international criminal law 11 .” Nowhere is this more obvious than in extradition cases 

relating to crimes which are of high salience both internationally and domestically, such 

as terrorism and the international drug trade. 

In spite of this, extradition typically proceeds in an orderly fashion and is rarely 

contested, but when they are, extradition proceedings may no longer be uncontroversial, 

foolproof, or ‘clean,’ leading to enduring contention between the non-compliant state of 

asylum and the petitioning state, which may resort to radical measures to obtain custody 

of the suspect. Such radical measures have of late been the policy of the current 

administration in the U.S., and pose various challenges to domestic and international 

jurisprudence relating to the disposition of terror suspects in a variety of legal situations. 

Unfortunately, these policies may not necessarily lend themselves to international comity 

or, in the long run, to the promotion of American interests and security. 

Extradition is a matter of foreign policy as much as it is a matter of law or of 

criminal justice 12 , and the entire tenor of United States foreign policy changed after the 

events of 11 September 2001. On 17 September, the United States Congress passed a 

joint resolution, the Authorization for the Use of Military Force (AUMF) 13 , stating that: 

“The President is authorized to use all necessary and appropriate force against [those 

6


responsible for] September 11th [or] … in order to prevent any future acts of 

international terrorism against the United States … Congress declares that this section is 

intended to constitute specific statutory authorization [under] the War Powers 

Resolution.” 

Three days later, President George W. Bush, addressing a joint session of 

Congress 14 , stating that “[al-Qaeda] and … Usama bin Ladin … are linked to many other 

organizations in different countries … there are thousands of these terrorists in more than 

sixty countries” and that America’s “demands are not open to negotiation or discussion 

… our enemy is a radical network of terrorists, and every government that supports them. 

Our war on terror begins with al-Qaeda, but does not end there. It will not end until every 

terrorist group of global reach has been found, stopped, and defeated.” Even if “declared” 

by the President 15 , and authorized by Congress under the War Powers Resolution 16 , the 

war on terror is not a “war” in the traditional sense 17 —it is a “war” on an ideology 18 , and 

in this respect, not unlike the former Cold War, even though this conflict is active and 

open. However, even when the Cold War was at times “hot” in the various and sundry 

continent-spanning proxy wars that it spawned, that enemy was well-defined 

geopolitically. Communism was centered upon Moscow and exerted influence over its 

satellites—but what is terrorism, geopolitically? President Bush is right that terrorism 

does not end in Afghanistan, or in Iraq, or with al-Qaeda or Osama bin Laden. Even if 

“terrorism” is taken as a dysphemism for “radical Islam”, there is no geopolitical 

definition here—for radical Islam is not merely a Middle Eastern affair. The “war” is not 

with nations, individuals, or organizations, but rather with an idea that is constrained by 

7


none of these. Such a “war”, clearly, cannot be conducted in ordinary terms or in an 

ordinary framework of international conflict. 

A good deal more than phraseology is shared with the “war on drugs”—the 

United States feels emboldened and morally justified by a “war” not against a concrete 

national enemy but rather against an abstraction which has been imbued with a sense of 

real threat to American security and the American way of life, whether it is the specter of 

the international drug trade or of international terror, and the “dignity of the United States 

[is seen to be] at stake 19 . However real the threat, the “war” is even less well-defined 

than, say, the undeclared “police action” of the Korean War, the undeclared Vietnam 

War, or the first Gulf War. That is to say, the clearest-cut difference between the war on 

terror and wars according to traditional models—that is, wars between states—is that the 

war on terror is, rather than being between two or more states or alliances of sovereign 

states, is between the United States and their allies and various non-state organizations or 

even individuals, at times aided and abetted by states, at times operating within clearlydefined 

national borders, but perhaps even more often the very opposite. Warlike action 

on the part of the U.S. against Iraq and Afghanistan is counted by the Bush 

administration as a part of the “war on terror 20 ”, thus confounding the issue even further 

by labeling wars along a more traditional model as part of the “new paradigm 21 ” of the 

war on terror. 

If the U.S. is engaged in a war against Iraq or Afghanistan, but also against 

terrorists and terrorist groups like Osama bin-Laden and al-Qaeda, this raises a variety of 

questions. Al-Qaeda is not a state and bin Laden is not a head of state, or even a 

government or military officer, rather, they are party to a who’s status relative to jus ad 

8


bellum and jus in bello is of an unprecedented and unclear nature 22 . Afghanistan is a 

failed state that played host to al-Qaeda, and the conflict there is “postmodern” in nature, 

“involving a ‘state-like apparatus within a state 23 .” Iraq is a functioning state, albeit one 

with a repressive government, with scant discernable ties to terrorist organizations, and 

Saddam Hussein is the head of that state, even if he is a war criminal, and the question of 

what rights he derives from that position is an extremely thorny one. 

Terrorism and terrorists may be addressed by various means—political, military, 

and judicial—and of late the United States has primarily pursued military alternatives, 

not to the exclusion of the other two alternatives, but in such a way that political and 

judicial standards and concerns are sacrificed on the altar of military necessity. Michael 

Scharf, who worked with the State Department on what would become the Lockerbie 

tribunal in trying two Libyan nationals accused of planning and executing the bombing of 

Pan Am Flight 103 in 1989, cautioned against this in a symposium in 2001 24 , just a few 

months before September 11th. Interestingly—or ironically—enough, Mr. Scharf praised 

the fact that “instead of just trying to blow up [Osama] bin Laden or just trying to execute 

him, [the U.S. executed] a public indictment 25 ”, and predicted rapturously the successes 

that we would enjoy in dealing with him accordingly. 

This sort of optimism seems unfounded today. Only a few months later, the Twin 

Towers were down, with bin Laden to blame, and the question of how to deal with him 

and his ilk was very much an open one. What we have arrived at now, nearly six years 

later, is a perverse admixture of multi- and unilateral approaches to attacking terrorism 

from all three angles. Our interest is in the legal approaches being taken to exert 

extraterritorial jurisdiction over individuals sought in connection with terror attacks, to 

9


wit, the future of extradition in the context of a global war on terror, with all the 

ambiguities that this entails. 

In Part I of this paper we will explore in short form the nature of normative 

extradition processes generally, as well as causes of failure in extradition proceedings and 

amicable venues for their resolution. Part II will explore how extrajudicial alternatives to 

extradition, particularly extradition by way of abduction, have evolved in historical 

context with a particular eye towards terror and organized-crime cases in the past twenty 

years. Finally, Parts III and IV will discuss the detention of so-called ‘enemy combatants’ 

in Guantánamo Bay and practices of so-called ‘extraordinary rendition’ and, respectively, 

relative to their status in international law and the municipal law of the United States. 

10


PART I: NORMATIVE PROCESSES OF EXTRADITION AND NONEXTRADITION 

We may do well to begin with some definitions. The layman may have a general 

idea of what constitutes extradition, and may even be able to name a few cases in which it 

was utilized, or lead to an international or domestic dispute which was, for a time, salient 

in the media, but at any level of detail, extradition proceedings remain a relatively 

esoteric topic in criminal law, and at the end of the day even most criminal attorneys are 

unfamiliar with the intricacies of the actual process 26 , which is a remarkably complex and 

sensitive one touching on the municipal law of at least two nations, as well as 

international law 27 and broader concerns surrounding an emergent preemptory jus 

cogens, so-called, relative to human and civil rights 28 in the context of an interchange 

between at least two states and an international community, each of which may have very 

different ideals and practices surrounding both. We can define extradition, with the 

United Nations, as “the surrender by one state to another of a person accused or convicted 

of a crime by virtue of a treaty, reciprocity, or comity … in order to restore a person to an 

authority competent to exercise jurisdiction 29 ”, or, more broadly, as “a process whereby 

States provide to each other assistance in criminal matters ... based on a treaty, bilateral 

or multilateral, or on … domestic extradition legislation 30 .” Common between these two 

definitions is a high emphasis on international comity, which is not surprising, given that 

extradition necessarily calls upon the state of asylum to abjure a degree of territorial 

sovereignty, that is to say, to permit the requesting state to exercise extraterritorial 

jurisdiction over an individual who has been found within the sovereign territory of the 

requested state 31 , in essence abrogating what is among the most valued and fundamental 

12


rights of a state in international law 32 . That such concessions would be commonplace on 

the international political scene may be surprising, but, in fact, such concessions, “which 

one nation allows within it’s territory to the … acts of another 33 ” serve both the interests 

of the state of asylum domestically and of worldwide law and order—in the words of the 

Marshall court, “common interests impelling [sovereign nations] to mutual intercourse, 

and an interchange of good offices with each other 34 ,” to wit, international comity and the 

expectation of quid pro quo reciprocity in later cases 35 . 

§1.1—Extradition in municipal law and conflicts between the political and the judicial. 

Thus is the stage set for extradition as process who’s primary concerns are not 

judicial but political, or rather, diplomatic 36 . Extradition is fundamentally an interchange 

between two sovereign states who are theoretically in equal standing with respect to their 

status as such, as opposed to an interchange between a state and it’s subject, within which 

the former has by virtue of it’s police powers a monopoly upon the lawful use of coercive 

force and straightforward resort to prosecution under criminal law in those cases in which 

it is contravened. What is more, extradition, at it’s heart, a matter of intercourse between 

the state of asylum and the would-be extraditee, but rather between the state of asylum 

and the requesting state 37 . 

Therefore, decisions of the asylum state in extradition cases often relate more to 

concerns relative to the relationship between the asylum state and the requesting state 

rather than the status of the accused, and, although extradition is, in most jurisdictions, 

including the United States, carried out in the courts rather than the chambers of state, 

there is a great deal of oversight from the diplomatic and political sectors 38 , rendering 

13


extradition, paradoxically, “a matter of foreign policy [in which the] Department of State 

plays a key role … [but the] Justice Department … assumes the primary role in 

complying with an extradition request 39 .” Thus, conflicts may well arise between 

potentially contradictory political and judicial concerns, as well as internal conflicts in 

both the political and the legal sectors. Historically, municipal courts are exempt from the 

responsibility, and moreover generally lack the right, to arrive at a conclusion as to the 

merits of the criminal charges from which an extradition request stems, and a great deal 

of discretion is provided to the executive branch as to the handling of extradition requests 

and the disposition of potential extraditees 40 , while the courts “eschew inquiries into the 

motivations of extraditing state 41 ,” indicating that more power is in the hands of 

diplomats and their political concerns rather than judges and their legal concerns. 

The First Circuit Court of Appeals articulated a three-pronged standard in the 

recent case of United States v. Lui 42 : “the executive branch’s construction of a treaty is 

entitled to great weight, at least in part because the executive branch wrote and negotiated 

the operative documents … the judicial officer’s inquiry is limited to a narrow set of 

issues concerning the existence of a treaty, the offense charged, and the quantum of 

evidence offered …[;] extradition treaties are to be construed liberally in favor of 

enforcement”, and the rule of noninquiry. This renders “extradition law … a matter of 

foreign policy 43 ” and, consequentially, “courts … [are given only] limited power to 

decide who is extraditable 44 .” 

This is the crux of the so-called doctrine, or rule, of non-inquiry, which holds that 

the state of asylum is, in it’s domestic legal proceedings, is not to inquire into the 

motivations of the petitioning state, or the merits of the case against the accused, but 

14


rather to limit it’s inquiries to questions which, strictly speaking, are relative to his 

extraditability 45 . In the U.S., the single role of the extradition court is to determine 

“whether a valid treaty [of extradition] is in existence; whether the crime is covered by 

the treaty; whether the conduct is criminal in the asylum state; whether the individual is 

the party sought by the petitioning state; and whether there is probable cause to believe 

… that the individual [sought] committed the crime 46 .” 

Thus, an extradition proceeding is, by definition, not a determination of the guilty 

or innocence of the accused; therefore, it takes the form of a legal proceeding sui generis 

which is technically not criminal in nature, by virtue of it’s intentions towards the 

defendant, i.e., not to prove his guilt or innocence, but certainly not civil in it’s ultimate 

effects, due to the consequences for the defendant should the decision not be made in his 

favor 47 . One of the most important consequences of this aspect of the nature of 

extradition proceedings is that the rights of the accused are not necessarily enjoyed by 

parties to extradition proceedings 48 —most notably, the burden of proof is not applied as it 

is in criminal cases, to wit, the onus is on the defendant to prove that he had ought not to 

be extradited, rather than on the prosecution to prove that he had ought to be. 

However, the emergence after the Second World War and subsequent growth of 

salience of the concept of an overriding jus cogens relating to human rights 49 is beginning 

to exert an influence in the arena of extradition proceedings. For example, the United 

Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading 

Treatment or Punishment (UNCAT), signed by the United States in 1988, holds that “no 

State Party shall expel, return (‘refouler’) or extradite a person to another State where 

there are substantial grounds for believing that he would be in danger of being subjected 

15


to torture 50 .” The Second Circuit can “imagine situations [in which] the relator, upon 

extradition, would be subject to procedures or punishments so antipathetic to a federal 

court’s sense of decency as to re-examine” the rule of non-inquiry 51 . The U.S. Ninth 

Circuit Court of Appeals took up this issue in Cornejo-Barreto v. Seifert 52 , in the case of 

an individual who was subject to extradition to Mexico, but claimed that should he be 

returned to Mexican jurisdiction, he would be subject to torture. The court of extradition 

saw no reason to dispute the validity of his claims, but held that “as a matter of law … 

[the] role [of a court of extradition] is confined to determining whether or not there is 

probable cause 53 ” to believe that the individual had ought to be extradited—a very 

different standard than that of criminal courts in the U.S. The appellate court, however, 

disagreed in a strongly worded decision, establishing for the first time in U.S. case law a 

right to judicial review in extradition cases 54 , although in the case of Mr. Cornejo-Barreto 

himself, the Ninth Circuit “deferred to the Secretary of State” to decide his disposition 55 . 

Nonetheless, even a cursory look at the actual proceedings of an extradition case 56 

reaffirms the idea that judicial review, and, for that matter, the rights of the accused, are 

not high on anyone’s list of priorities. Determination of guilt or innocence is expressly 

held to not be the responsibility of the court of extradition—and this, to some, is 

uncomfortably close to an abrogation of the principle of homo praesumitur bonus donec 

probetur malus, in that the individual is in essence presumed extraditable unless he can 

demonstrate otherwise. Diverse political motivations, both domestic, and international, 

tend to inform the reasons for an extradition to be pursued or not pursued. 

16


§1.2—Extradition in international law—aut dedere, aut judicare and extradition treaties. 

The processes of extradition, in terms of intercourse between two states, is 

governed by generally accepted principles which put in place obligations upon the 

requesting and requested states. For the state of asylum, the active principle is that of aut 

dedere, aut judicare 57 , to wit, the duty to either render (dedere), the individual in question 

to the requesting state, or to prosecute the individual within the criminal justice system of 

the requested state, in either event, hopefully exercising “competent jurisdiction.” This, 

which has been, at least since the time of Grotius, considered by many authorities to be 

an element of customary international law, but seeing as the principle is so delicately 

intertwined with that of sovereignty, i.e., by one or another mechanism, extraterritorial 

exercise of jurisdiction by another state or the exercise of the requested state’s 

jurisdiction at the behest of the requesting state, it has been codified in a dizzying array of 

bilateral and multilateral treaties, which assure, at least theoretically, that extradition 

requests result in, at least, an amicable and legitimate exercise of aut judicare, if not 

extradition, and in either case, a reasonable expectation of quid pro quo reciprocity and 

the orderly exercise of the principle according to a framework of accepted norms 58 . 

Absent such assurances, the position of a given state on the various questions 

raised in extradition controversies tends to depend upon who is requesting the extradition 

and who is contesting it, by way of example, on the question of the extraditability of 

nationals, the United States, on no less authority than that of the Supreme Court, holds 

that absent a treaty, nationals are not to be extradited 59 , yet it felt free to demand just such 

an extradition from Libya 60 . Since customary international law is murky and multilateral 

treaties are at once highly specific, with respect to the offenses covered, and overly 

17


general, with respect to the obligations that they impose, states, particularly, but by no 

means exclusively, geographically proximate states sharing borders, have found it in their 

interests to negotiate bilateral treaties amongst themselves. The United States has 

negotiated, and the Senate has ratified, over one hundred bilateral and multilateral treaties 

specifically relating to extradition of fugitives to and from other nations 61 . Bilateral 

treaties are the most common and simplest form of codification of extradition, and 

although they are “piecemeal 62 ” by nature, allow for consideration of the circumstances 

particular to the relationship between the two states involved. 

Regional treaties are few—with the exception of European Union 63 —and the 

scant number of multilateral treaties ratified 64 are concerned with extradition have 

historically focused on crimes of truly international concern, such as terrorism 65 and the 

international drug trade 66 . For example, the 1970 Hague Convention for the Suppression 

of the Unlawful Seizure of Aircraft 67 , codifies the principle of aut dedere aut judicare in 

article VII, “[the state of asylum], shall, if it does not extradite … be obliged, without 

exception whatsoever and whether or not the offence was committed in its territory, to 

submit the case to its competent authorities for the purpose of prosecution.” Aut dedere 

aut judicare also forms the fundamental framework of the United Nations Model Treaty 

on Extradition 68 . 

Exercise of aut dedere remains an option, at least in theory, however, the vast 

majority of requested extraditions will wind up as renditions. In actual practice, 

proceedings under aut judicare are relatively unusual, and often, not uncontroversial, as 

we shall see, infra, in our discussions of the Pan Am 103 and Sheinbein cases. More than 

anything else, then, aut dedere extradition is an expected and routine course of action—in 

18


fact, typically, extradition proceedings are uncontested and proceed without significant 

challenge. Either alternative, in ideal circumstances, is the exercise of a “competent” 

jurisdiction, to borrow the United Nation’s phraseology, under the rule of law, and will 

lead ultimately to an exercise of justice which is acceptable to both states. However, ideal 

circumstances are not always the rule in international politics—and the ensuing 

complications and controversies will be discussed in detail, infra. 

§1.3—Causes of dispute and restrictions on return I—extradition of nationals and sovereign 

immunity. 

There exists considerable incentive for states to be cooperative with extradition 

proceedings, especially if they are in fact party to an extradition treaty—not only by 

virtue of the principle of pacta sunt servada, but they are presented with compelling 

incentive to cooperate in the form of “a sovereign interest in preserving and protecting 

it’s jurisdiction over events that happen within it’s territory 69 .” Thus, in the interests of 

international comity and with the expectation of cooperation in future extraditions, quid 

pro quo, nations generally are fairly flexible when it comes to extradition, within certain 

restrictions, mostly relating to the classes of person being extradited. Even in the absence 

of a well-wrought extradition treaty, extraditions are usually successful and amicable. 

The relatively small numbers of instances in which extradition requests are 

refused cite a wide variety of motivating factors. Some of them are straightforward and 

built-in to extradition treaties, while some have come about to wide acceptance through 

their status as customary or codified international law outside of the extradition treaty in 

question. Others simply have come about because they are expedient for the asylum 

19


country—but that is a dangerous political game to play. These “restrictions on return”, or, 

less euphemistically, exceptions to extradition treaties, are legion on paper, but in 

practice relatively rare. Generally, they are self-explanatory. Typical language runs 

something like this: “extradition of nationals [of the asylum state], military offenses, 

triviality, passage of time … bad faith [on the part of the petitioning state], plea 

bargaining, specialty [that is, trial for only the offense specified in the writ of 

extradition 70 ], diplomatic immunity [and] and political offenses 71 .” 

Particularly significant is the question of extraditing nationals of the asylum state. 

In some times, this protection is absolute, particularly in the case of common-law states 72 , 

and at other times, only when a specific treaty to the contrary is absent 73 . This is not to 

say that the individual sought will not be punished—this is one instance in which the 

latter half of the Grotian aut dedere aut judicare, trial of the accused within the legal 

system of the asylum state, is applied. For example, in 1997, Samuel Sheinbein, a young 

American man of Jewish extraction, committed a murder in the United States and fled to 

Israel 74 . Israeli’s policy of nonextradition of nationals, intended for the protection of 

Israelis from malicious, i.e., anti-Semitic, prosecution abroad, became unflattering frontpage 

news in the United States, when Israeli denied the U.S. request for extradition on the 

grounds of nationality. Public outrage in the U.S. was palpable enough for some in 

Congress to call for sanctions against Israel in response 75 . 

The Israeli Department of State, however, was disposed to view Sheinbein’s 

claims of citizenship as tenuous, for they were grounded only in his father’s birth in the 

pre-Israeli British Mandate territories from 1944 to 1950. The case made its way to the 

Beyt Ha-Mishpat Ha’Elyon (Israeli Supreme Court), and although that body had 

20


previously held that there was a valid distinction between “citizenship for nationality and 

citizenship for extradition 76 ,” and that tenuous citizenship need not be recognized in 

international law 77 , the appeal was decided in Sheinbein’s favor and he was not 

extradited. Israel was more than amenable in fulfilling it’s obligations under aut judicare, 

sentencing Sheinbein to twenty-four years in prison, and outrage in the United States 

eventually died down. In subsequent proceedings against Sheinbein’s father for helping 

him flee, a Maryland court ruled that, “any country maintains the right to control the 

conduct of its citizens, regardless of where that conduct occurs”, but Maryland had a 

“direct interest” in prosecuting him that Israel lacked 78 . The Sheinbein case shows a 

degree of U.S. acceptance of Israeli aut judicare as an alternative to aut dedere, but the 

diplomatic sparks that flew between the two countries are indicative of just how seriously 

refusals of extradition can be taken. The ruffled feathers on the international scene were 

soon smoothed. More than anything else, this was possible because the U.S. is able to 

have a degree of trust in the integrity of the Israeli justice system. Naturally, the U.S. 

would have preferred to try Sheinbein on its own, but to attempt more radical measures 

against their ally would be counterproductive. 

Even more strongly ingrained than exceptions regarding the extradition of 

nationals are those which incorporate the doctrines of sovereign immunity, wellestablished 

in customary international law, that is, “the absolute immunity of a sitting 

head of state head from the criminal jurisdiction of other states 79 ”, which has it’s natural 

outgrowth in the law of extradition. However, it is a doctrine which is waning in it’s 

applicability, given the growth of international human rights law, which necessitates 

precisely what the doctrine of sovereign immunity precludes—the prosecution of a head 

21


of state for acts deemed criminal which were committed during the course of his tenure in 

office 80 . Such was the case of the trial against General Augusto Pinochet, arrested in 

London on a Spanish warrant to stand trial in Spain for human rights violations 

committed during the Pinochet regmine in Chilé 81 . However, here we see again the 

tension between the political and the judicial—while Pinochet was ruled not to enjoy 

sovereign immunity for his human rights offenses, the British executive branch released 

him 82 , albeit on “compassionate”, rather than legal grounds. Questions regarding 

sovereign immunity also surround the kidnappings of Adolf Eichmann and Mañuel 

Noriega, which will be treated infra, as well as the Nuremburg tribunal, but suffice to 

say, human rights violations are now almost universally viewed under customary 

international law as exceptions to the doctrine of sovereign immunity as relates to 

prosecution by another state or to extradition for the purposes of the same. 

§1.4—Cause of dispute and restrictions on return II—Political offenses, human rights, and the 

death penalty. 

Sometimes, the cause of dispute is not a refusal to extradite nationals, or a head of 

state, or other such general principle, but specific objections relating to the way in which 

the case at hand would likely be undertaken with regard to human and civil rights and 

questions of due process 83 . Such is the case of countries, particularly European countries, 

which take a strong stand against capital punishment and therefore object to the rendition 

of individuals, even, at times, U.S. citizens, in capital cases. Such is the case of Ira 

Einhorn, an American charged with and convicted, in absentia, of the gruesome murder 

of his girlfriend, who was a fugitive in Europe for the next sixteen years, before being 

22


finally apprehended in France whereupon a protracted series of legal battles 84 over the 

legitimacy of the verdict in absentia, the possibility of a fair trial, and, above all, the 

death penalty, quickly degenerated into a political sideshow 85 . Finally, the European 

Court of Human Rights (ECHR), citing Soering v. United Kingdom 86 , decided in the 

same court in 1989, which forbids extradition in capital cases as a human-rights 

violation 87 and a case in the Italian municipal courts of similar substance 88 , inter alia, 

absolutely refused to extradite Einhorn to the United States, seeing as he might face death 

by lethal injection. Eventually, the U.S. relented to the demands of the French, took the 

death penalty off the table, and vacated the guilty verdict arrived at in absentia. Einhorn 

was finally extradited to the U.S., and promptly convicted of murder and sentenced to life 

in prison 89 . 

The issue at hand is whether states can deny extradition for what they see as 

excessive punishments for crimes, particularly in the case of the death penalty 90 . One 

should think so, since human-rights mandates are now an important part of extradition 

practice and extradition law. Unfortunately, a uniform definition of ‘human rights’ is hard 

to agree upon. Case in point, the death penalty is largely seen in Europe as a barbaric 

anachronism. Refusal of extradition in capital cases 91 is seen as an acceptable form of 

militation against human rights abuse 92 . This can lead to diplomatic impasse in especially 

cases of high salience for the U.S., such as of individuals held in E.U. countries who 

accused of terrorism 93 , for the gravity or nature of the offense is taken as no exception to 

the principle that extradition in death penalty cases is a violation of international human 

rights norms. 

23


In a similar a vein to the restrictions on return that surround the disposition, in 

human rights terms, of the relator, after his extradition, are those regarding ‘offenses of a 

political character 94 ’, a concept born out of liberal jurisprudence in the 19th century to 

protect revolutionaries who sought refuge in liberal states 95 , and found it’s way fairly 

quickly into customary international law—as early as 1815, British legal scholars were 

referring to it as such 96 , and by the latter half of the 19th century, it was “boilerplate 97 ” 

language in most European and North American extradition treaties. The political 

offenses exception is not only humanitarian in it’s motivations, but allows the state of 

asylum to divest itself from inquires regarding the internal political affairs of the 

requesting state 98 , which is highly desirable in the context of international comity. 

However, the picture is made considerably murkier by the difficulty of providing a 

definition for “political offenses 99 ”, or determining when the exception had ought to be 

applied when the extradition of a political opponent of a particular regimé is sought for 

an offense which is not strictly of a political nature 100 , which requires just the sort of 

inquiries that should ideally be avoided, and which puts the political offenses exception 

and the rule of non-inquiry, both relevant provisions of customary international law, into 

direct conflict. 

From the second half of the nineteenth century into the first years of the twentieth, 

what could loosely be called modern style terrorism began to be, for the first time, a very 

real concern on the international scene 101 . It did not take long for questions to arise 

regarding the applicability of the political offenses exception to terrorists 102 —for what, 

after all, to ask the classic question, is the line between a terrorist and a freedom 

fighter 103 ? Exceptions relating to terrorism began to cloud the once-clear political offense 

24


exception, and by the last years of the twentieth century, which saw the rise of terrorist 

violence in, inter alia, Northern Ireland and the Middle East, the exception was 

considerably dulled in Anglo-American jurisprudence 104 . By the Reagan administration, 

the end result was the transference of responsibility for determining whether or not the 

offense was “of a political character” to the executive branch—moves which were framed 

as necessary to “combat terrorism and drug smuggling, and reverse judicial decisions that 

had barred the extradition” of known terrorists 105 . The rule of non-inquiry had firmly 

been placed above most restrictions on return—but at the same time, international human 

rights law was growing in just the opposite direction. 

All of this amounts to a delicate balancing act—the balancing of international 

comity, and often, treaties in force relative to extradition, with the jus cogens of human 

rights in customary and codified international law. Another dichotomy might be added— 

that of the rights of nations and that of individual persons. As we have seen above, the 

application of municipal extradition law in the requested state is often, from the 

perspective of the relator, highly favorable to the requesting state, since extradition is 

taken to be a matter of foreign policy and therefore for the executive, rather than the 

judicial, branch. Hence, any abrogation of the rights of individuals in extradition case has 

historically had a tendency to be taken as affronts to their state of nationality or residence 

rather than themselves individually, with only the former having right of action 106 . 

Although individuals, at least in common-law jurisdictions, have long had at least the 

codified right to mount a challenge of the extradition in the courts of the state of asylum, 

they have not until recently had any potential to mount a challenge to the requesting state 

themselves. This is not so much an issue in cases of an ordinary writ of extradition issued 

25


under questionable circumstances, but in cases in which the state desiring rendition 

engages in extralegal practices in the course of seeking to restore an individual to it’s 

jurisdiction—to wit, cases of extradition by abduction, which shall be discussed infra. 

26


PART II: EXTRADITION ACCOMPLISHED BY IRREGULAR MEANS 

§2.1—Abduction as an alternative to extradition under international and municipal law. 

When an extradition cannot be accomplished by normative diplomatic means, the 

requesting state may at times seek the rendition of the accused by extralegal measures—that is, 

the most direct sort of “extradition” possible—the physical removal of an individual out of one 

jurisdiction by the powers that be in another so that he can be brought to justice in their 

jurisdiction and on their terms 107 . This is an infringement on not only the jurisdictional but the 

territorial sovereignty of the state of asylum—and the latter has been called by the Permanent 

Court of International Justice “the first and foremost restriction imposed by international law 108 ” 

and codified in the Charters of the United Nations 109 and of the Organization of American 

States 110 . Abduction is extralegal a fortiori, for not only does it contravene such fundamental 

tenants of international law, but such renditions necessarily exceed the scope of a warrant issued 

in the municipal courts of one State 111 , and is a violation of the rights of “security of person 

guaranteed” to individuals by, inter alia, the Universal Declaration of Human Rights and the 

European Convention of Human Rights 112 , as well as protections against “inhuman or degrading 

treatment 113 . In the United States, these issue was taken up by the Second Circuit United States v. 

Toscanino 114 , which drew upon, inter alia, the provisions of the United Nations Charter to hold 

that “due process … [requires] a court to divest itself of jurisdiction over .. a defendant … [who] 

has been acquired as a result of the government’s deliberate, unnecessary and unreasonable 

invasion of the accused’s constitutional rights 115 .” Toscanino, while still “good law 116 ”, is 

difficult to apply since different jurisdictions within the U.S. disagree on not only it’s 

interpretation and applicability but it’s general precepts 117 . 

28


However, even when Toscanino is applicable, this does not amount to an absolute 

divesture of jurisdiction in cases involving abduction as a form of rendition. Instead, domestic 

jurisprudence has provided the opportunity to the executive branch to avail itself of a variety of 

legal loopholes to affect extradition by way of abduction, applying the Toscanino doctrine only 

in cases of “grossly cruel and unusual barbarities 118 ” committed, ex officio, by agents of the U.S. 

government. The true heart of these loopholes, however, is the so called Ker-Frisbie doctrine 119 , 

or that of male captus bene detentus, holding that the means of a defendant’s rendition into a 

court’s jurisdiction was immaterial to the fact of the court’s jurisdiction over the defendant. The 

sinea qua non of the exception granted Toscaninio is the fact of direct involvement with the 

kidnapping of agents of the government of the state staging the kidnapping, which is difficult to 

prove in cases involving private kidnappers or collusion between agents of the two states 

involve, as well as violations of the individual’s human rights which “shock the conscience.” The 

most celebrated application of the Ker-Frisbie doctrine of late was the strange case of Dr. 

Humberto Álvarez-Machain, a Mexican national and physician who, while in the employ of 

individuals high in the drug trade 120 in the narcotics ‘hot spot’ of Guadalajera, participated in the 

torture-murder of one Enrique Camarena, agent of the Unitede States Drug Enforcement 

Administration (DEA) working in Mexico 121 . DEA agents in Mexico have a thankless, 

frustrating, and often dangerous job, thanks to the ill-defined and tenuous role that the DEA 

takes outside of U.S. borders 122 . They are seldom armed, and are supported by a U.S. 

bureaucracy which was at best poorly responsive, having to deal with another, even less 

ineffectual, and constantly corrupt bureaucracy on the Southern side of the border. 

29


§2.2—Extradition by way of abduction—the Álvarez-Machain debacle and the doctrine of male captus, 

bene detentus. 

Consequentially, the DEA chose to implement its own brand of justice. As far as can be 

determined, they took the following actions rather independently, that is to say, without the 

explicit approval, and certainly without the oversight, of any persons high in the DEA, the U.S. 

Attorney's office, or any other agency in Washington 123 . In early 1989, it seems that DEA agents 

in Mexico discreetly made it known that they would pay handsomely for information leading to 

the capture of those involved with Camarena’s death. A mid-level official in the Mexican 

Federal Judicial Police 124 (PJF), who proposed to deliver one of the men responsible into DEA 

custody in exchange for aggressive pursuit of the deportation 125 of a certain Mexican fugitive 

believed to be residing in the U.S. 126 Two other Mexican nationals were also kidnapped by 

Mexicans acting outside the law and rendered to the United States 127 

Instead of being done through normal diplomatic channels, the exchange was instead 

sought “under the table 128 .” Eventually, this lead to the affirmed kidnapping, and possible 

torture, of Dr. Álvarez-Machain, who was abducted at gunpoint from his home by masked men 

who refused to present a warrant or identify themselves. He was then held for some time in 

Mexico, here he alleges that he was tortured, and then flown by chartered plane onto American 

soil, here DEA agents, who were ready to arrest him under a federal indictment. The U.S. had 

never formally sued for Álvarez-Machain extradition, but was more than happy to proceed with 

his prosecution. 

The burden of proof in the case proved difficult for the U.S. attorney’s office to meet on 

account of distance, time, and a distinct lack of cooperation from Mexican authorities angered by 

the methods by which Álvarez-Machain had been brought to U.S. jurisdiction in the first place. 

30


Lack of evidence later lead to a successful motion for acquittal, later upheld in U.S. district 

court 129 . In the meantime, Dr. Álvarez-Machain brought suit in federal court under the Alien Tort 

Claims Act of 1789 130 (ATCA) and the Federal Tort Claims Act of 1946 131 (FTCA) charging, 

inter alia, “kidnapping, assault and battery, false imprisonment, negligent and intentional 

infliction of emotional distress, and cruel, inhuman, and degrading treatment 132 .” Meanwhile, 

Mexico lodged three separate complaints with the State Department, and requested the 

extradition 133 of two individuals suspected of having been involved with the kidnapping, and 

relations between the two neighbors soured considerable for a time 134 . 

As this and another, related 135 civil case, made it’s way through the courts, the 9th Circuit 

Court of Appeals held that Congress had not “given the DEA carte blanche to effectuate arrests 

within any sovereign state” and that such an assumption would be tantamount to turning “a blind 

eye to the interests of equal sovereigns and the violations of international law that would 

inevitably ensue 136 ”, citing the Supreme Court, which had held that “an act of Congress had 

ought never to be construed to violate the law of nations 137 ”, and furthermore granted Dr. 

Álvarez-Machain standing to sue the federal government under the ATCA. 

The first civil case, however, had already made it's way to the U.S. Supreme Court, 

which, consisting with other precedent, overturned 138 of the 9th Circuit decision, holding that a 

“criminal defendant, abducted to the United States from a nation with which it has an extradition 

treaty’’ does not “thereby acquire a defense to the jurisdictions of this country's courts …, and 

that he may be tried in federal district court for violations of the criminal law of the United 

States 139 , even though “a defendant may not be prosecuted in violation of he terms of an 

extradition treaty 140 ”. Precedent was cited in Ker v. Illinois 141 , in which a U.S. national 142 was 

kidnapped by U.S. officials in a foreign nation, in which the court held that: “we do not see that 

31


the constitution or laws or treaties of the United States guaranty him any protection … 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 143 ”, as well as Frisbie v. Collins 144 , 

involving a similar situation involving two U.S. states and no foreign country 145 . These 

precedents were taken to indicate that the circumstances of a suspect’s rendition were immaterial 

with respect to his prosecutability. Chief Justice Rehnquist delivered the 6-3 opinion, holding 

that the “abduction [may have been] ‘shocking’ and … in violation of general international law 

principles … [however, the decision of whether Álvarez-Machain] should be returned to Mexico, 

as a matter outside of the [1979 Mexican-American Extradition] Treaty, is a matter for the 

executive branch … the fact of [his] forcible abduction does not therefore prohibit his trial in a 

court of the United States for violations of the criminal laws of the United States 146 .” 

Which is to say, the Supreme Court did not per se endorse the actions of the DEA, nor, 

necessarily, the entire concept of extradition-by-abduction, but saw no reason not to permit the 

prosecution of suspects who are rendered into U.S. jurisdiction, regardless of the circumstances, 

even insofar as those circumstances might violate international law, as long as the specific 

tenants of any treaty in force are not violated 147 . The extradition treaty in force between the U.S. 

and Mexico 148 did not specifically prohibit kidnapping; therefore, there was no violation of the 

treaty. Furthermore, since agents of the United States government did not, ex officio, themselves 

abduct Dr. Álvarez-Machain 149 , nor were they involved in the alleged torture that he suffered, 

Dr. Álvarez-Machain had no standing to sue the United States for either. 

Justices Stevens, Blackmun and O’Connor dissented, writing that the case “does not 

involve an ordinary abduction by a private kidnapper, or bounty hunter, as in Ker … nor … the 

apprehension of an American fugitive who committed a crime in one State and sought asylum in 

32


another, as in Frisbee … it involves this country’s abduction of another country’s citizen; it also 

involves a violation of the territorial integrity of that other country, with which this country has 

signed an extradition treaty,” and goes on to denounce the majority decision as the reduction of 

“provisions [of that treaty] into little more than verbiage,'' and appeals to age-old conceptions of 

international law with respect to the territorial integrity of nations, underscoring the difference 

between “private abductions” of the Ker-Frisbee doctrine, so called 150 , and official invasions of 

another sovereign’s territory. 

Not surprisingly, the decision was a controversial one. While not rendering an opinion as 

to the legality of the actions of the United States government, in a broad stroke the court ruled 

them irrelevant. This avoids, without direct confrontation 151 , the questions raised in Toscanino, 

and in customary international law, relating to the abrogation of both sovereignty and human 

rights which occur in abduction cases. However, Rehnquist’s opinion is very careful to avoid 

legitimizing the sort of gross misconduct which characterized the “cowboy” actions of relatively 

low-level persons in the DEA which lead up to the Álvarez-Machain incident—nowhere is there 

approval of the violation of the territorial integrity or the sovereignty of other nations; there is the 

assertion that once an individual has been rendered into United States custody, the process by 

which he got there is immaterial—the concept of male captus bene detentus 152 —an assertion 

which is, in vacuo, is not uncontroversial, but by no means equal to the assertion that the U.S. 

has an affirmative right to engage in extrajudicial forms of rendition. It has, in fact, been 

acknowledged by the U.S. government itself that no such right exists 153 , and that “it is a 

fundamental principle of the law of nations that a sovereign state is supreme within its own 

territorial domain and that it and its nationals are entitled to use and enjoy their territory and 

33


property without interference from an outside source … [and that] forcible abductions from a 

foreign state clearly violate this principle 154 .” 

The utilization of abduction and other extralegal measures as expedient extradition 

alternatives is hardly new 155 , and to show that they are illegal under commonly accepted 

principles of international law is trivial, but the status of such measures under United States law 

may surprise the reader. Since extradition is to be under international law a voluntary, bilateral 

process, what happens when it becomes necessary for a state to undertake unilateral action to 

render an individual into it’s jurisdiction? The question “defies easy answer 156 .” War criminals 

such as Adolf Eichmann, Slobodan Milošević, and others, were rendered to jurisdictions where 

they stood trial for there crimes after they were kidnapped out of jurisdictions friendly to them 157 . 

This may serve the interests of international justice, particularly in the presence of a jus cogens 

relative to torture and human rights, but international justice and human rights are also abrogated 

by the process of extradition by abduction, for the international norms of inviolable territorial 

sovereignty and exercise of jurisdiction over individuals within that territory are at stake, and the 

fact of kidnapping and rendition to a different jurisdiction is highly suspicious with regard to the 

human and civil rights of the accused. 

§2.3—Extradition achieved by military force and abduction of individuals subject to head-of-state 

immunity. 

Even more radical departures from normative extradition proceedings surround the case 

of Mañuel Noriega, the former military dictator of Panama, who, following a U.S.-lead invasion 

of his country 158 , surrendered to American troops and was brought to Florida to stand trial on 

charges relating to his involvement in cocaine trafficking. Noriega was convicted, and Noriega 

34


appealed “due to his status as a head of state and the manner in which the United States brought 

him to justice 159 ”.The court, citing the Ker-Frisbie doctrine, ruled immaterial Noriega’s 

objections to the circumstances of his rendition 160 , and also ruled that since the United States had 

not recognized Noriega as the head of Panama, it was not bound to extend to him the immunity 

that would be due to him in that capacity. 

The case of Noriega is all the more disturbing because it shows a real lack of regard for 

several generally accepted principles of international law, and the result—the extralegal rendition 

and domestic prosecution of a foreign head of state for charges stemming solely within the 

jurisdiction of his own state—is totally unprecedented 161 , outside cases involving human rights, 

such as that of Adolf Eichmann from Argentina to stand trial in Israeli 162 —a case which, while 

apt to induce sympathy in even the most ardent opponents of extradition by abduction 163 , 

nonetheless was highly controversial at the time. Argentina eventually declined to pursue the 

matter, and the Israeli court, operating with the concept of a peremptory jus cogens, was 

unimpressed by Eichmann’s claims of his human rights being violated or regarding the court’s 

lack of jurisdiction 164 . Israel responded to the first point that Israeli law had supremacy over 

international law within Israeli jurisdiction, and to the second by drawing an analogue to the 

legal status of a pirate, long-considered a hostis humani generis, “justiciable by any State 

anywhere 165 .” 

Not surprisingly, the court convicted Eichmann—hardly a sympathetic figure, whatever 

the legal strength of his arguments might be—and sentenced him to death. As far as Israeli law is 

concerned, Eichmann’s conviction was open-and-shut, and, as far as international law is 

concerned it is equally self-evident that Israel’s rendition of Mr. Eichmann was a flagrant 

violation of the sovereignty of the nation of Argentina, but, simultaneously, that by the principle 

35


extradition. Domestic Libyan law at the time did not allow for any extradition of nationals 

outside of the provisions of a treaty 168 , and the Libyan government, pointing this out, offered to 

proceed with a case under aut judicare. The U.S. and U.K., simply refused to accept 169 and 

refused to turn over the evidence that would be needed to try the two men 170 . 

In 1992, the United Nations Security Council passed a resolution 171 , likewise demanding 

that the two indicted Libyan nationals be extradited, or Libya would face sanctions, which came 

into effect in March of that year 172 and were strengthened in November 1993 173 , adding to the 

already-draconian American sanctions in place since the early Reagan administration. The 

resolutions of 1992 and 1993 were unprecedented 174 , with the law behind them tenuous at best, 

and at worst, contradictory. It is not all clear that Libya, in not rendering the suspects to the U.S. 

or the U.K., violated any law or generally accepted precept of international law 175 . 

Michael P. Scharf, a State Department lawyer during the heyday of the Flight 103 

investigation, in a keynote speech in a conference about the Lockerbie bombings 176 , criticizes 

what he sees as a false dichotomy between political and legal action, and characterizes the UN 

sanctions as an ideal third way, a “money bomb” that stands in stark contrast to bombs of the 

typical, explosive kind on one hand and acquiescence to Libyan demands on the other. The 

effects of the “money bomb” were to isolate Libya, rendering Qaddafi’s Jamahiriya nearly 

impotent by the time he relented. “Libya”, says Scharf, “was responsible for the Lobell Disco 

bombing. We responded by … dropping bombs, on Tripoli. They responded with Pan Am 103 

… [to which we responded within] the rule of law.” 

For Mr. Scharf, working within the rule of law means building a case, even issuing a 

public indictment, as opposed to the usual secretive, quasi-legal operations utilized to deal with 

terrorists 177 . Presenting evidence in the halls of the Security Council lead to the “money bomb” 

37


of UN sanctions being dropped, condemning Libya to existence as a “rogue state 178 .” In acting 

with accordance with the rule of law, rather than undertaking the sort of military action that 

became all to familiar after September 11th 179 , “some U.S. interest were clearly served by the 

Lockerbie prosecution and Libya … apparently [went] on the road to rejoining the non-terrorist 

word 180 .” The U.S. seems to have handled the Pan Am tragedy and its sequelae masterfully, from 

an international relations perspective. 

Jeffords 181 has a litany of praise for the way the United State, the United Kingdom and 

France (also a victim of a Libyan-sponsored terror attack) handled themselves throughout the 

entire process. He credits the troika’s success at passing the U.N. Security Council resolutions as 

a “tribute to their diplomacy”, and the three countries “earning respect … [and setting] a 

precedent worth following.” The U.N. response in the form of aggressive sanctioning was, for 

Plachta, “an extraordinary remedy which, while upholding the existing extradition system … 

[provided supplements for] extraordinary situations.” 

The sanctions, even if not threatening in a military sense, were highly coercive in that it 

established harshly punitive diplomatic and economic measures against Libya, which, by 

promoting isolation and a socioeconomic system devoid of upward 182 , irrevocably tied to any 

prospect of progress full submission to the demands of the troika and of the United Nations 183 . 

These sanctions proved crippling, depressing Libya’s economy and turning her into an 

international pariah 184 . It would be most of the decade of the 1990’s before any progress was 

made to lift the sanctions. In April 1999, Qadaffi gave in to the demands of the international 

community that he render up the Lockerbie suspects for trial, saying that “the world has changed 

radically and drastically … I have to follow this movement 185 .” This marked the beginning of the 

38


end of the most extreme of the sanctions and of Libya’s status as international pariah 186 , and 

marked the beginning of the strange saga of the Lockerbie trial. 

Libya had originally sought to try the case in a Libyan court under the principle of aut 

judicare, which was manifestly unacceptable to the troika of the bombing victims; the latter 

group managed to convince the U.N. Security Council of their concerns. Qaddafi had originally 

indicated his amenability to trial in a third jurisdiction 187 which the troika roundaboutly rejected. 

The matter of jurisdiction was no small question. The bombing was of an American plane by 

Libyan nationals in Scottish airspace leading to the deaths of individuals from twenty-one 

different countries. The U.S., U.K., and Libya each wanted a piece of the jurisdictional pie. As 

we saw in the Sheinbein case, the U.S. is often willing to allow countries whose judicial systems 

it trusts to try cases, so it is not surprising that there was no demand of a criminal trial of a U.S. 

court 188 ; in any event, there is no clear precedent for such a trial in international law. 

The most straightforward answer, and the one advocated for by the troika, would be a 

trial in the jurisdiction in which the crime occurred, to wit, Scotland. Libya was unconvinced that 

this was an appropriate venue for a fair trial, while the others were of the opinion that Libya was 

not likely to bring two of her star intelligence operatives to justice should the adjudication of the 

case come within her own courts. The compromise which was reached on this issue created what 

was either one of the most fascinating legal fictions in recent memory, or an innovative solution 

to an intractable jurisdictional dispute—or both at the same time. 

This involved holding the trial at a third, ostensibly neutral location. This had actually 

been on the table from the outset, suggested by Qaddafi 189 —involving France or an Arab state. 

The eventual compromise, finally hammered out in 1997, was, in the words of one British 

official 190 , “[an] ingenious use of international law”, largely the brainchild of Robert Black 191 , a 

39


distinguished Scottish law professor, and was as follows 192 : (a) that the trial was to be held at 

Camp Zeist, a U.S. military base in Holland; (b) that the accused were to be tried under Scots 

Law 193 ; (c) that the trial was to before not a jury, but by a panel of Scottish judges; (d) that there 

would be no interviews of the suspects by police; and (e) that no other Libyan nationals would be 

sought for the crime. 

Thus was the stage set for the Lockerbie tribunal, a strange, innovative, and ultimately 

frustrating exercise of criminal jurisprudence on the very frontiers of international law—a 

criminal trial of foreign nationals in a case in which the jurisdiction governing the actual actus 

reus was not precisely clear 194 . Libya was thrilled with the compromise—most of her demands, 

some of which dated almost to the beginning of the controversy, were met. The U.K. was 

satisfied in that the trial would be ultimately carried out under U.K. law (or rather, Scots law), 

albeit under unusual circumstances and physically in a third country. There were considerable 

concerns within the U.S. Department of Justice, however, that American interests were being 

given short shrift in the move towards compromise—eventually, these issues were resolved, with 

the U.S., at least in theory, reserving the right to indict the two at a later date 195 . 

Indictments were issued against Messrs. Al-Megrahi and Fhimah on the following 

charges: 259 counts of murder, conspiracy to commit murder, and violation of the Aviation 

Security Act 196 . Much of the evidence that presented was forensic and extremely technical, 

successfully established what happened 197 , “[leaving] no doubt” how the plane came down 198 . 

Libyan involvement was fairly clear, but the case for the involvement of the two defendants was 

tenuous and based around circumstantial evidence. The direct connection of Mr. Al-Megrahi and 

particularly of Mr. Fhimah was extremely difficult to prove. Eventually, the charges of 

conspiracy and violation of the Aviation Security Act were dropped 199 . 

40


In the end, the tribunal found one suspect, Al-Megrahi, guilty, citing a “real and 

convincing pattern 200 ” of evidence that he was “connected with the planting of the device 201 ”, 

although much of said evidence was circumstantial. Al-Megrahi’s sentence was to life 

imprisonment. In the case of Mr. Fhimah, no such pattern could be found, although certain of his 

actions were “sinister 202 ”, but the tribunal could only acquit. Mr. Al-Megrahi immediately 

appealed 203 , his appeal was summarily denied, and he was transferred to a U.K. prison to serve 

out his sentence. 

Many commentators seem prepared to grant the Lockerbie tribunal the status of at least a 

tentative success: Andrews 204 characterizes it as “well worth the cost … [but leading to] some 

important lessons”, not the least of which was the questionable benefits of a third-country venue, 

but in the end concedes that even that might have been necessary under the unique circumstances 

of the Lockerbie case. Anderson 205 agrees, denying that “[the] trial was unfair”, but takes 

Andrews’ concern about venue to the next level, thinking it “prudent for an international court to 

conduct the trial.” The central issue here is of international versus municipal law. Megrahi v. HM 

Advocate was an attempt to extend municipal law to its furthest limits. 

Knowles 206 , much less optimistic that Andrews or Anderson, maintains that the trial was 

biased from the beginning, “far from an independent determination [of fact]”, and the judgment 

characterized by “loops of reason” that “[defy] logic.” Such also was Tripoli’s assertion, even as 

Libya consented to pay damages 207 . Black 208 goes as far as to call the case a “shameful 

miscarriage of justice [causing] the Scottish criminal justice to be gravely sullied,” citing 

insufficient evidence, insufficient grounds for conviction, and inadequate representation. 

Despite enduring questions about jurisdiction, the circumstantiality of the evidence, the 

denial of the appeal, and, perhaps above and encompassing all, the only one conviction out of the 

41


indictments of two closely-connected individuals, the Lockerbie tribunal can be considered a 

remarkable success from at least one perspective—foreign policy, and lead at the end of the day 

to considerable movements on the part of Libya towards international legitimacy and a warming 

of her foreign relations. Scharf’s “money bomb”, it seemed, had succeeded, while Michael 

Plachta argued that a new alternative to aut dedere aut judicare, aut transfere, was on the verge 

of being added to customary international law relative to terror cases, bringing them on the 

international stage by an efficacious exercise of multilateral prosecution 209 

§3.2—Changing directions—defining criminal justice for terror suspects captured in the course of a 

‘global war on terror.’ 

All the optimism that Plachta, Scharf, and others could muster in early 2001, and any 

successes which the U.N. Security Council’s sanctions and the trial at Lockerbie might have had 

in dealing with Libya, seems quaint today in the age of a ‘global war on terror’ declared by the 

United States against the “network of terrorists [and] every government that supports them 210 ”, a 

conflict which is of unprecedented and unique nature in the history of warfare and of 

international law 211 . Terrorism, a term which lacks any precise legal meaning 212 , is a problem of 

international scale which the United States has sought in the past five years to address by a 

variety of means—a variety of multilateral and unilateral military, legal, and political alternatives 

have been contemplated and implemented. Given the nature of terrorism, the “war on terror” is 

not a conflict on a traditional military model with a well-defined enemy, the enemy must often 

be confronted not no a traditional battlefield but by nebulous “other” means, which largely target 

individuals. 

42


Since individuals (or loose-knit groups) are being targeted rather than nation-states, the 

approach of those who would fight a war on terror must be focused on those individuals, which 

places it on unprecedented ground in international law, which has only in the most limited of 

circumstances dealt with individual rather than state actors 213 . Individuals being the focus of the 

actions in the war on terror, the model begins to approach a criminal-justice one rather than a 

military one. As Joseph Margulies, who represented the plaintiff in Rasul v. Bush 214 , one of the 

Guantánamo Bay detention cases, puts it: “[in former conflicts,] the military could fairly assume 

… that the soldier across the field … was in fact a member of a belligerent force 215 .” The 

terrorist is not like a soldier in a traditional conflict, he is rather more like a criminal in the midst 

of a larger society, but he is politicized, and, having access to military-like resources, is a threat 

not only to citizens of the state but to the state itself. Military action, covert action by intelligence 

services, and international political maneuvering have all been brought into play to produce 

novel solutions to the problems of transnational criminal justice—mujahideen in Iraq or 

Afghanistan are not soldiers in a military but are engaged in conflict against the U.S. armed 

forces. Al-Qaeda and other terrorist groups have engaged in attacks against U.S. civilians and, 

presumably, would jump at the chance to do so again. All of these diverse individuals and groups 

are covered by the U.S. “war on terror”, but they are not all similar or equal in the eyes of 

international law. U.S. actions in the war on terror have frequently entered into uncharted waters 

regarding international law, particularly as regards the rights of terror suspects in the criminal 

justice system 216 prisoners of war, extradition proceedings, and the like. 

One particularly thorny issue that crops up over and over again is as follows: over the 

course of conducting the war on terror, there have been many instances in which the U.S. 

encounters an enemy in the “war on terror” which is a non-state entity like Al-Qaeda or is an 

43


individual like Osama bin-Laden. The war on terror is largely conducted overseas, and it is 

primarily the military that is charged with conducting it. In the war in terror, soldiers are not 

fighting soldiers of other states, but individuals who are members of terror groups which are 

unaffiliated or only loosely affiliated with states. Lacking the status of a state which may engage 

in warfare with another state, what category they belong in precisely is unclear—are they simply 

particularly heinous and well-organized criminals? This is where extradition enters into the 

picture. We will address two particularly timely dilemmas relating to the war on terror from the 

perspective of extradition: (a) disposition of terror suspects who are captured in the course of 

U.S. military actions overseas 217 ; and (b) the “extraordinary rendition” of terror suspects to third 

states. 

Both of these dilemmas deal with the proper disposition of individuals sought by the 

United States for crimes who are outside of the U.S.’s jurisdiction—i.e., one or another form of 

extradition. Traditional extraditions will prove difficult to accomplish in these cases for a number 

of factors. The first category of factors concerns the nature of the crimes from the perspective of 

the U.S.—(a), they are a matter of national security and therefore information regarding the 

charges may be secret; (b), the crimes and criminals are of remarkably high salience for both the 

government and in the arena of public opinion and therefore there is considerable pressure that 

they are brought to justice; and (c), given the nature of the criminals and their crimes, they may 

pose an imminent danger to U.S. interests and American lives, including civilian lives. 

The second category relates to factors in the state of asylum—terrorists are often found in 

states which are either (a), covert or overt sponsors of their ideologies or even their activities, 

and hence are reluctant to allow for their extradition; (b), failed states wi`th no judicial process to 

accomplish extradition; or (c), states which are reluctant to extradite to the U.S. because of 

44


human rights concerns—some of which go well beyond the death penalty á la the Einhorn case, 

as we will see. Therefore, the U.S. must step outside the boundaries of normative extradition 

proceedings. The high salience of and high threat posed by the individuals in question, coupled 

with the unlikelihood of a successful extradition or even, arguably, a successful multilateral 

solution—at least in time or in line with the U.S.’s expectations, make the most radical 

alternatives to traditional extradition likely. 

§3.3—The detention center at Guantánamo and the status of individuals detained during wartime as 

‘enemy combatants’ under Geneva III. 

In the case of individuals encountered during United States military operations abroad, 

new ground is being breached in international law with it’s war on terror—the disposition of 

non-state combatants captured in a war zone—although “non-state combatants are inevitably part 

of the equation … they have almost no place legally in the structure of interstate conflict 218 .” 

Since the “war on terror”, as discussed supra, is a war which is mostly conducted against nonstate 

combatants 219 , questions regarding their “place in the structure of interstate conflict” are 

more pronounced than ever before. The status of different types of combatants in armed conflicts 

in international law is controlled by the four Geneva Coventions of 1949 220 . Combatants engage 

“in armed hostilities and thus [are] not entitled to protection from attack”, but “when capture … 

are held as prisoners of war 221 ”, a category which entitles them to a swath of rights under the 

Geneva Convention Relative to the Treatment of Prisoners of War (Geneva III) 222 , including, 

inter alia, freedom from “punishment” and “mistreatment 223 .” An individual is held to be a 

prisoner of war if he is a “member of the armed forces of a Party to the conflict … fallen into the 

power of the enemy 224 .” 

45


However, the United States has created a category of detainees, “unlawful combatants”, 

an expression which first saw use in Ex parte Quirin 225 , a case involving German saboteurs 

captured within the United States. “Saboteurs, guerillas, and spies 226 ” are explicitly excluded 

from the Geneva convention 227 , but their precise status under international law is unclear, and 

“unlawful combatants” is a phrase which is not found in any of the Geneva conventions. Quirin 

holds that “lawful combatants are subject to capture and detention as prisoners of war by 

opposing military forces. Unlawful combatants are likewise subject to capture and detention, but 

in addition they are subject to trial and punishment by military tribunals for acts which render 

their belligerency unlawful 228 .” The Military Order of 13 November 2001 229 respecting 

“detention, treatment, and trial of certain non-citizens in the war against terrorism” establishes 

“military commissions” for the trial of individuals designated by the president as war criminals 

in the war on terror, and allows for their detention at the United States military base in 

Guantánamo Bay, Cuba 230 . 

These commissions feature few of the due-process trappings of civilian criminal 

proceedings 231 , and are explicitly prohibited for use in the cases of prisoners of war, who are 

entitled to various under the third Geneva convention of 1949 and U.S. case law. Historically, 

military commissions have been used in case of sabotage and other war crimes 232 , such as the 

Quirin 233 case, which revolved around a group of German saboteurs. The intended targets of the 

modern commissions are “current or past members of al-Qaeda, … [persons] involved in acts of 

international terrorism directed at the United States 234 ” who do not qualify for status as prisoners 

of war under the Geneva convention due to committing their acts of violence as non-state actors. 

Then-council to the president (now Attorney General) Alberto Gonzalez, wrote in a 

memorandum 235 stating that the global war on terror was “a new kind of war … not the 

46


traditional clash between nations adhering to the laws of war that formed the backdrop for 

[Geneva III] … this new paradigm renders obsolete Geneva’s strict limitations … and renders 

quaint some of it’s provisions.” 

The Bush administration holds it’s terror detainees to have neither the rights of U.S. 

civilians under the U.S. Constitution relative to due process in criminal proceedings nor the 

rights of prisoners or the rights of prisoners of war under the Geneva convention 236 . In United 

States v. Noreiga 237 , Panamian dictator and drug lord Mañuel Noreiga, was held to be “plainly a 

prisoner of war under the Gene 

va Convention … entitled to the full range of rights under the treaty … [but able to] serve 

his [criminal] sentence in a civilian prison … as long as he is afforded the full benefits of the 

constitution.” The situation in which Noreiga found himself—held prisoner and detained after a 

military operation—may seem to parallel that of the Guantánamo detainees, but Noreiga had all 

the benefits of the U.S. legal process, unlike the detainees at Guantánamo. By way of contrast, 

“unlawful combatant” terror suspects may be “[parties] to the conflict”, but they are not 

“member[s] of the armed forces” and therefore are not entitled to protection under Geneva III, 

or, for that matter, the Constitution—or so goes the argument of the Bush administration. At the 

outset of the “unlawful combatant” policy, many individuals were summarily held to be 

“unlawful”, even though under Geneva III and as affirmed in Noriega, a “competent tribunal” is 

necessary to determine the status of a defendant who is facing denial of his Geneva III rights. 

The Supreme Court took up this issue relative to war-on-terror “unlawful combatants” in Hamdi 

v. Rumsfeld 238 , which allowed for the detention of unlawful combatants, but required that those 

detainees who were U.S. citizens be allowed to file for habeas corpus, and Rasul v. Bush 239 , 

decided on the same day, held that the U.S. court also had the authority to rule on the detention 

47


of non-citizens. Not addressed, however, was the actual legality of the detentions, only the need 

for a “competent tribunal.” 

As hinted at in Noriega, and not surprisingly, given the general legal environment around 

extraditions and aliens in the justice system, there is a definitive tension between the executive 

branch and political concerns and the judicial branch and legal ones. This showed up Hamdi, and 

again, even more dramatically, in Rasul, which, reversing the lower courts, the Supreme Court 

claimed jurisdiction over Guantánamo detainee’s petitions for habeas corpus and their 

challenges of their detention 240 . Thus, so-called “Combatant Status Review Panels” were created 

to determine the status of detainees 241 , which at first glance to do not appear to be paticularly 

impartial—the defendants enjoyed “no right to council, [no right] to see classified evidence, or to 

learn the sources of allegations against them” and that out of 507 CSRP proceedings, only two 

individuals were found not to be “enemy combatants.” 

Many elements of the international community see this as an abuse of human rights (and 

hence a violation of jus cogens), if not an outright violation of the letter of Geneva III. Neither 

the military tribunals nor the CSRP’s seem to provide the accused with a fair trial as it is 

understood in terms of U.S. criminal procedure. A particular thorn in the side of numerous 

nations, many of whom are close allies with the U.S., is the fact that their own nationals are 

detained at Guantánamo 242 . Even more well-defined are the obligations imposed upon the United 

States under the Vienna Convention on Consular Relations (VCCR) 243 , which holds that “foreign 

nationals who have been arrested have the right to consular assistance, and, unless they object, 

the consulate has the right to know about any of its nationals who have been charged with a 

crime 244 .” This obligation has frequently been shrugged off by the United States, particularly in 

capital punishment cases 245 , and all the more in cases involving Guantanamo detainees. 

48


Amnesty International, Human Rights Watch, and the International Committee of the 

Red Cross have each come out against detainments under the status of “unlawful combatants”— 

the former calling Guantánamo the “gulag of our time 246 .” The U.S. Supreme Court has not 

directly addressed these issues, but took up the issue of the Guantánamo Bay detainees again in 

Hamdan v. Bush 247 , this time holding that the military commissions set up in response to 

Hamdi 248 “violate the [Uniform Code of Military Justice] and the four Geneva conventions.” 

Again, this did not address the issue, per se, of the legality of the detentions at Guantánamo or 

whether or not the detainees had ought to enjoy prisoner-of-war status, but rather held that the 

detainees must be tried in a court or military commission where the enjoy due process. 

The unprecedented 249 nature of the detainment of individuals without any due process or 

even rights as prisoners of war means that, domestically and internationally, there is a great deal 

yet to be worked out regarding the disposition of the detainees at Guantánamo and other 

extrajudicial prisoners of the United States. It is the conventional of the Bush administration that 

the U.S. government has the right to hold the individuals for the duration of the conflict without 

trial or even charge. Needless to say, this is quite controversial. The U.S. judiciary, in cases like 

Hamdi, Rasul, and Hamdan, as we have seen, does not seem to look favorably on the unbridled 

exercise of executive power that characterizes the detainments at Guantánamo and the 

extrajudicial nature of the detainments themselves and the proceedings surrounding them, and 

Hamdan, the latest case, begins to bring international law into the equation by virtue of it’s 

references to the Geneva convention. 

49


PART IV: RENDITION TO THIRD STATES AND THE TORTURE CONNECTION 

§4.1—Extradition by way of abduction resulting in rendition to a third jurisdiction. 

Since the opponents of the U.S. in the war on terror are non-state and trans-state 

entities which are not confined to national boundaries, they may be found anywhere— 

including within the borders of states with which the U.S. is not at war, states which may 

or may not George Bush’s quasi-declaration of war 250 against those who “harbor 

[terrorists] 251 ”. Normative processes of extradition may be deemed not sufficiently 

expedient, or subject to too many restrictions on return—for example, extradition from 

terror suspects for offenses carrying the death penalty from European states of asylum 

which accept the Soering doctrine 252 , or the ambiguous nature of the “political offenses” 

exception relating to terrorists 253 , so alternative measures are sought—and foremost 

among these has been extradition by way of abduction. 

This sort of irregular rendition had it’s start with isolated extrajudicial 

kidnappings of a small cadré of various “big league” criminals—drug lords, terrorists, 

and the like, has been growing more commonplace since the 1980’s 254 . Application to 

terrorism predates September 11th, 2001, but the process has only come into it’s own 

since the construction of the postmodern “global war on terror.” However, in cases 

relating to terrorism, Richard A. Clarke, a retired White House staffer, relates the 

following anecdote, taking place as early as 1993: “The first time I proposed a snatch … 

the White House Counsel, Lloyd Cutler, demanded a meeting with the President to 

50


explain how it violated international law. Clinton had seemed to be siding with Cutler 

until Al Gore belatedly joined the meeting … Clinton recapped the arguments on both 

sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, ‘That's a nobrainer. 

Of course it's a violation of international law, that's why it's a covert action. The 

guy is a terrorist. Go grab his ass. 255 ’” 

One terror suspect who was thus “grabbed”, post-9/11 is Hassan Mustafa Osama 

Nasr, an Egyptian national and imam loosely associated with al-Gama al-Islamiyya 

(Islamic Group [IG]), a radical Islamic group, which is a proscribed terrorist organization 

in Egypt, the United States, and the European Union. Nasr was an asylee in Italy who 

was kidnapped by agents of the American Central Intelligence Agency (C.I.A.) as he 

walked out of a Milan mosque 256 . This is an “exercise [of] power … in the territory 257 ” 

of Italy, which is as such a prima faciae violation of one of the most fundamental rights 

of a state enjoyed in international law 258 . This “snatch” executed without regard to the 

rights enjoyed by Italy, and in the presence of a well-wrought extradition treaty 259 , and as 

such, the issue at hand recalls, at least partially, the case of Dr. Álvarez-Machain—one 

significant difference, of course, being that Nasr was an asylee, and not a national, of 

Italy, placing him in a very different legal position with regards to extradition to the 

United States and also to Egypt. However, unlike the Álvarez-Machain case, Nasr was 

not rendered to United States jurisdiction for trial where, under Toscanino, he would have 

been able to present a jurisdictional claim against his prosecution on the basis of (a) the 

involvement of agents of the American government in his rendition, and (b) the 

mistreatment that he endured, detailed infra, but rather, he was placed on a chartered 

plane and flown to Egypt, where he alleges he was subject to detention incommunicado 

51


and torture 260 . Italy was incensed, and issued warrants 261 for the arrest of twenty two CIA 

agents 262 alleged to been party to the rendition. 

§4.2—Sidestepping by proscriptions of non-refoulement and torture under international law. 

It is abundantly clear that extraditions accomplished by way of extralegal 

abductions are illegal in a number of aspects—to wit, the sovereignty of the state of 

asylum 263 , the jurisdiction of the courts of the abducting state 264 , and the human rights of 

the abductee 265 . Modern practices of ‘extraordinary rendition’ on the part of the United 

States further complicate matters by introducing another aspect entirely—the removal of 

suspects to a third jurisdiction. “Rendition”, a term used since the Reagan 

administration 266 as a euphemism for extradition by abduction, without the benefit of 

legal recourse in the matter 267 , but “extraordinary rendition”, a term without precise legal 

meaning 268 , is “extraordinary” because of the involvement of the third jurisdiction 269 at 

times has a questionable human rights record 270 , and the accused may be likely to face 

torture, denial of due process, or other treatment which would be unacceptable under 

accepted human rights norms of both the United States and international law—in the 

words of the European Commission for Democracy Through Law, “extraordinary 

rendition may be defined as the transfer of an individual suspected of involvement in 

terrorism, captured and in the custody of American officials, who is sent to another 

country, often for interrogation, [and] sometimes facing torture there 271 .” 

The growth of extraordinary rendition, which is to say, extradition by abduction, 

up until the current administration and the growth of third-party renditions after 

September 11 th , parallels a growth in the power of the executive branch and a decline in 

52


the power of the judiciary 272 , and, consequentially, of the utilization of normative 

diplomatic avenues in extradition cases, hence returning us once more to the conflicts 

between the two branches which render extradition proceedings so delicate domestically. 

The true watershed for “extraordinary rendition” was September 11 th , the war on terror, 

and, apparently a decision very high in the current administration that traditional 

extraditions were going to be inadequate to pursue the goals of that war. 

The concept of “extradition” as normally understood involves the rendition of a 

suspect from a state of refuge to a petitioning state in who’s jurisdiction the alleged crime 

occurred. Modern “extraordinary rendition” takes this and places it firmly on it’s head— 

an individual is kidnapped from a state of asylum by what would be the equivalent of the 

“petitioning” state, and rendered to a third state, who may seemingly have very little 

interest in the suspect. Why, then, engage in the practice? The answer is deeply troubling. 

The third states in extraordinary-rendition cases are in fact willing and able to use torture 

in the interrogation the individuals rendered into their custody, and do in fact do so 273 . 

Consequently, the U.S. stands accused of engaging in “outsourcing of torture” and 

“gangster tactics 274 ”, and a severe international backlash, particularly from European 

states, has come to bear against the United States, as well as international organizations 

such as Amnesty International and Human Rights Watch. 

The C.I.A., it is claimed, routinely transfers individual from it’s custody in Iraq, 

Afghanistan, or engages in extrajudicial kidnappings, and then flies the detainees on 

unmarked planes to so-called “black sites”—“black” for their “invisibility” and lack of 

oversight over what goes on within them. An investigation by the European parliament 

found that over 1,000 such flights may have taken place 275 , involving perhaps over 100 

53


detainees 276 . The outrage is palpable in Europe and elsewhere that the actions of the U.S. 

are enabling and directly benefiting from torture. 

Unlike extradition by abduction, these practices is unprecedented and has very 

scant basis in legal theory 277 . Even assuming, arguendo, that ‘snatches’ are legally 

permissible under certain situations, renditions to torture do not enjoy the same status, in 

fact, they are expressly forbidden, albeit in a different context—international refugee law. 

The principle of non-refoulement, codified in, inter alia, the U.N. Convention Against 

Torture (U.N.C.A.T.) 278 , and the Convention on the Status of Refugees 279 , holds that no 

person should be by any means rendered to a state “where there are substantial grounds 

for believing that he would be in danger of being subjected to torture 280 .” Also prohibited 

are “direct commission of torture and cruel, inhuman or degrading treatment or 

punishment … [and] using the fruits of torture as evidence 281 ”, as well as imposing an 

obligation to “criminalize, investigate, and prosecute” torture 282 . 

The International Covenant on Civil and Political Rights (ICCPR) 283 universalizes 

the prohibition on torture, holding that “no one should be subject to torture”, and 

explicitly prohibits derogation of this prohibition even in case of war or national 

emergency 284 .” However, the ICCPR contains no provisions relative to non-refoulement, 

and, unfortunately, it is not as universal as it might be, holding that “each State party … 

within its territory and subject to its jurisdiction [must recognize] the rights” guaranteed 

under the covenant 285 .” Since the ‘extraordinary rendition’ of terror suspects to the U.S. 

is, by definition, extrajurisdictional both in the instance of the abduction and of the 

rendition, the ICCPR is, to take the letter of the law, irrelevant in this respect. The United 

States has held, even before the ‘war on terror’, that “unless explicitly specified 

54


otherwise, the human rights treaties it has ratified are limited in their application to U.S. 

territory 286 , which by virtue of what amounts to little more than a legal fiction excludes 

Guantanámo Bay, which is, technically speaking, sovereign Cuban territory 287 , and which 

clearly excludes third states such as Egypt and Syria, to which terror suspects have been 

‘extraordinarily rendered.’ Obviously, this does not dispel the obligations of those states 

under international humanitarian law, nor the obligations of the United States under the 

rule of non-refoulement. However, the present administration has, since the beginning of 

the ‘global war on terror’, attempted to contravene these restrictions. 

For example, while President Bush can address the nation, saying “America 

stands against … torture … [and will] undertake to prevent [it] in all territory under our 

jurisdiction 288 ”, which, while sounding good, keeps any territory outside said jurisdiction 

outside the provisions of the treaty 289 . This is the position taken by individuals high in the 

State Department, and reflected in the reservations, understandings, and declarations 

attached by the United States to the various human rights treaties it has signed 290 . In 

meetings regarding the first report of the United States of America to the U.N. Human 

Rights Commission, as early as 1995, the U.S. held that “the [ICCPR is] not regarded as 

having extraterritorial application 291 ”—a doctrine which was expanded upon 

considerably by the Second and Third reports in 2005, when the war on terror and the 

program of ‘extraordinary renditions’ was already well in place 292 . As early as 1995, as 

well, the U.N. disagreed with the American interpretation, holding that “in special 

circumstances, persons may fall under the subject-matter jurisdiction of a State party 

even when outside that State’s territory 293 .” The assertions of both parties involve, at their 

heart, very different, very delicate interpretations of the concepts of “territory” and 

55


“jurisdiction.” Attempts on the part of the United States to redefine the meaning of these 

terms, and, in fact, of torture itself, date to before 11 September but truly came into their 

own once the ‘war on terror’ was declared 294 . 

§4.3—The maturation of extraordinary rendition and the ‘outsourcing of torture’—revelations 

and responses of the United States government. 

With these redefinitions in hand, the United States has created, after 11 September 

and the declaration of a ‘global war on terror’, an entirely new way of dealing with terror 

suspects. A classified executive order by George W. Bush “empowered the CIA with 

unilateral authority to ‘render prisoners … for the purpose of detention and 

interrogation 295 .’” The result was a legal regime which would allow for terror suspects to 

be “taken—kidnapped if necessary—from any location in the world … without the 

knowledge or participation of the host government [i.e., state of asylum] and without any 

judicial process … [and sent to] an offshore prison … subjected to any conditions the 

military devises … without access to courts or counsel 296 .” The results are “thousands of 

people [incarcerated] in far-flung prisons around the world … several dozen … held by 

the CIA in secret locations … [and] approximately two others … rendered to countries 

with a long history of torturing prisoners 297 .” Put simply, if crudely, in the words of one 

unnamed source in the American government, “we don’t kick the shit out of them. We 

send them to other countries so they can kick the shit out of them 298 .” 

These processes were conducted secretly, out of view of the American public or 

of international oversight, even including the oversight of the nations in which the 

operations were being conducted 299 . Revelations were made and the program came into 

56


public view thanks the work of investigative journalists 300 , including, among other things, 

detailed inspection of flight logs of privately chartered planes used in renditions 301 . 

Revelations came early 302 as to the use of ‘renditions’, but the entire scope of the 

practice, and, what is more, the fact that operations were conducted within the 

jurisdiction—including, but not limited to, using the airspace of—friendly, in particular 

European, states 303 , would not come into full view for several years. 

The United States has never denied 304 that it holds prisoners according to this 

model, and has admitted, at least unofficially, that the practice exists 305 , but has at every 

venue either denied torture or claimed it to be the work of “a few bad apples 306 .” 

Plausible deniability comes into play here, for example, in the statement of Condoleezza 

Rice at Andrews Air Force Base in December 2005, where the Secretary of State asserted 

that the “United States dose not permit, tolerate, or condone torture under any 

circumstances”, and that it is the “policy … of the United States … not [to] transport … 

detainees … to a country when we believe he will be tortured”, and moreover that the 

United States, “when appropriate, seeks assurances that transferred persons will not be 

tortured 307 .” George Bush, Alberto Gonzalez, and others high in the administration have 

offered similar assurances 308 , which not only are not reflected in actual practice, but are 

contradicted by various unofficial statements and declassified documents. 

The assertion that the United States respects the principle of non-refoulement by 

not rendering detainees to jurisdictions utilizing torture is patently ridiculous. For 

example, Egypt, one of the most common destinations for renditions 309 , was the subject 

of a State Department report alleging “a systematic pattern of torture 310 ”. The U.S. seeks 

“diplomatic assurances” that torture will not occur from states which “routinely violate 

57


their own laws against torture and ignore their obligations under international 

conventions … [and who’s] assurances are simply not credible 311 .” These “assurances” 

are sought as a “cover 312 ” for the provision of plausible deniability for the United States 

government to in turn ignore it’s obligations under international conventions. 

However, the U.S. government is on remarkably shaky ground to do so. Not only 

is the reading of the ICCPR by the United States government relative to “territory” and 

“jurisdiction” questionable in international law, but immediately applicable doctrine of 

non-refoulement answers the questions at hand seemingly instantly. The applicable 

international law is the United Nations Convention Against Torture and Other Forms of 

Cruel, Inhuman or Degrading Treatment (UNCAT), signed by the U.S. in 1988, holding 

that “no State Party shall expel, return (‘refouler’) or extradite a person to another State 

where there are substantial grounds for believing that he would be in danger of being 

subjected to torture 313 .” The principle of non-refoulement stems from international 

refugee law, where it is a “preemptory norm 314 ”, to wit, jus cogens. It first became 

codified international law in 1951 with the Convention Relating to the Status of 

Refugees 315 , born out of lessons learned by European nations which did not accept 

persons fleeing the Holocaust. This Convention is rather limited in scope, covering only 

those who’s “life or freedom would be threatened on account of his race, religion, 

nationality, membership of a particular social group or political opinion” and for whom 

“there are reasonable grounds for regarding as a danger to the security of the country in 

which he is, or who, having been convicted by a final judgment of a particularly serious 

crime, constitutes a danger to the community of that country 316 .” 

58


The Convention Against Torture, however, expands the application of 

nonrefoulement to all persons who might experience torture or human rights violations. 

While arguments could be made regarding the Refugee Convention’s applicability, the 

Convention Against Torture is explicit. The ICCPR, also, has been held to contain an 

implicit prohibition on refoulement; in fact, the ECHR relied upon it in Soering to forbid 

extradition in capital cases 317 , holding that prohibition of torture would not be “practical 

and effective” absent a non-refoulment rule 318 —an insight which seems prescient today. 

With regard to the U.S.’s jurisdictional claims with regard to the ICCPR, these also have 

been rejected by international authorities, holding that the Convention should apply to 

both “(a) all individuals … within the territory … and (b) all individuals … subject to 

[the] jurisdiction 319 ” of a state party.” It would be difficult to argue that this would not 

include terror suspects who are captured by agents of the United States government. 

§4.4—Further obligations of the United States under international law and illegality of 

renditions to torture under the same. 

We have therefore established that practices of so-called ‘extraordinary rendition’ 

are manifestly illegal under the municipal law of the United States as well as international 

law. Extraordinary rendition as a process necessitates the involvement of three distinct 

jurisdictions—the nation which is performing the rendition, in this case, the United State; 

the nation from which the subject is rendered, and the nation to which the subject is 

rendered. At each level, we can discern a distinct legal argument as to why the process 

contravenes applicable laws. 

59


First, with respect to United States law, extraordinary renditions are warrantless, 

and, although searches and seizures conducted by agents of the United States in another 

jurisdiction without a warrant have been deemed admissible in court, under Verdugo- 

Urquidez 320 , this does not mean that they are necessarily appropriate. Chief Justice 

Rehnquist’s opinion in this case centered upon the concept of “the people” as enshrined 

in the Constitution, and held that a foreigner “lacked sufficient relationship” with the 

United States to come under such protections while outside of U.S. territory. More 

interesting is the concurring opinion of Justice Stevens, held the search to be admissible 

since the Mexican government cooperated, and no U.S. court had the authority to issue a 

warrant in the first place 321 . The key element here is the cooperation of the Mexican 

Government, whereas for Rehnquist, international law is subservient to municipal law, as 

it was in Álvarez-Machain, which is in fact a related case. Álvarez-Machain dealt, as the 

reader will recall, with extradition by means of abduction and, while the Supreme Court 

did not divest itself of jurisdiction as did the Second Circuit in Toscanino, it fell short of 

declaring the abduction legal—in fact, the abduction was declared “shocking 322 ” and in 

violation of international law. 

However, both Álvarez-Machain and Verdugo-Urquidez, as well as individuals in 

similar circumstances, enjoyed the full benefits of the U.S. criminal justice system after 

their rendition into it’s jurisdiction, whatever the circumstances that took place in their 

native countries. The Supreme Court felt it proper to extend at least some due process to 

the Guantánamo detainees, particularly in Hamdan 323 , even though they were not, per se, 

in the jurisdiction, or rather, the “sovereign territory” of the United States, and it seems 

improbable that such rights would not be extended to persons subjected to “extraordinary 

60


rendition”—if they had the opportunity to avail themselves of a writ of habeas corpus or 

other legal proceedings, as the Guantánamo detainees eventually did 324 . 

Customary international law relative to sovereignty of the second jurisdiction, the 

state of asylum, presents very clear answers regarding territorial integrity and 

extraterritorial exercise of police powers, which have been discussed at length supra, and 

the provisions of international treaties relative to torture and nonrefoulement just 

discussed aptly cover the legal issues relative to the state to which the individual is 

rendered. So much for the state actors in the equation—but the individual being rendered 

also has rights guaranteed under a variety of international treaties against torture, 

including “inhuman or degrading treatment”, taken to describe conduct not rising to the 

definition of torture, and right to “the security of person 325 ”, all of which are violated by 

the facts of (a) his kidnapping and (b) his rendition to a jurisdiction which will likely 

violate his human rights. 

61


CONCLUSION—WHITHER EXTRADITION IN A WAR ON TERROR? 

The process of ‘extraordinary rendition’, then, is left without a proverbial leg to 

stand on, legally speaking, but, after all, it was never intended as a legal process. It is, par 

excellance, an extralegal avenue of action which was concocted by the U.S. government 

to deal with situations in which normative proceedings of extradition are deemed 

insufficient, or, more disturbingly, where interrogation can proceed more liberally and 

without the oversight of the U.S. courts, international human rights apparatuses, or 

sympathetic eyes generally. Thus, extraordinary rendition can be deemed “the 

outsourcing of torture 326 .” 

Does the United States derive any real benefit from the practice of extraordinary 

rendition? It is difficult to arrive at a definitive answer. Persons involved with terrorism 

are removed from situations in which they can do harm, and useful intelligence may be 

gathered, but the costs in terms of human rights and international comity may be too 

great. Much has been said about the former, and a word or two about the latter may be 

appropriate here—the image of the United States has been greatly tarnished by the recent 

human rights abuses in which it’s government has indulged, and this can do great damage 

to our ability to conduct extraditions and other international proceedings under the rule of 

law. Under Soering, Einhorn, and many other cases, we plainly saw our use of the death 

penalty emerge as a significant barrier to our exercise of jurisdiction over individuals 

who committed serious crimes in the United States 327 —can our use of torture, 

‘extraordinary rendition’, and incommunicado detainment in facilities like Guantánamo 

Bay be far behind as a barrier to our transjurisdictional pursuit of terrorists? This has 

62


already begun to happen—for example, German courts have allowed for the extradition 

of al-Qaaeda suspects only on the conditions that they neither face the death penalty, nor 

be tried by military tribunal, nor be interned in Guantánamo Bay 328 . Furthermore, in a 

most basic sense, irreparable harm has been done to our image abroad, and the moral 

high ground that the U.S. could claim to enjoy regarding human rights is slipping rapidly. 

Human rights treaties and conventions that we would envision using against our enemies 

now are being used against the United States and our own interests abroad relative to 

international terrorism. 

Our ability to conduct the war on terror is also beginning to be hampered, both 

militarily, as the Netherlands questions it’s contributions to NATO activities in the war 

on terror 329 , and in terms of criminal justice as prosecutions in other nations are hampered 

and legal actions are taken against U.S. agents for their roles in kidnappings, or even, as 

in one German case 330 which has yet to mature, is being brought against the U.S. as a 

whole according to the doctrine of universal jurisdiction in human rights cases. The 

situation can only worsen. The U.S. is losing legitimacy in the war on terror as it begins 

to exercise extreme, unilateral measures outside the rule of law. 

Additionally, the United States has a moral duty to act as a role model for other 

nations in the fields of human rights and due process, particularly states such as Egypt 

and Saudi Arabia which are essential allies in the war on terror, despite their less-thanstellar 

human rights records, which, ideally, could be reformed to cause those nations to 

become bastions of democracy in the politically fragile Middle East. Instead of “gaining 

respect 331 ”, as we did at Lockerbie, we have not done so, and the “wages of [our] 

hypocrisy 332 ” are making themselves abundantly clear, rendering our nation “no longer a 

63


credible human rights advocate 333 ”, and allowing nations with long histories of human 

rights abuses are beginning to use the actions of the United States as justifications for 

their own foibles in the field. The Zimbabwean representative to the United States can 

now declare that “those who live in glass houses should not throw stones 334 ”, and the 

Egyptian president using American policies of extraordinary rendition as justification for 

similar practices in his regime 335 . 

We are failing as a nation to address terrorism in ways which are consistent with 

our fundamental values, values of democracy, due process, and human rights. Like the 

war on drugs, emboldened by the threat faced by our society, we have violated the rights 

of others—and whether or not they are bad men, the fact that their rights have been 

violated stands in judgment of our policies. The lessons of the Lockerbie tribunal, 

imperfect though it may have been, have been lost on our leaders today—although it 

resulted in only one conviction, that tribunal and the associated sanctions resulted in 

Libya “rejoining the non-terrorist world 336 ” and allowed terrorism to be dealt with, for 

once, in a fashion that was legitimized by the application of the rule of law. I would not 

argue that nothing has changed after 11 September, 2001—of course the picture, and the 

‘paradigm’, to borrow a phrase from the infamous “torture memos 337 ”, has changed. 

Desperate times, however, need not beget desperate measures. The United States can 

retrieve its legitimacy and it’s footing as a member of the international community 

respecting human rights. To do so, however, radical changes in our policy towards 

transjurisdictional criminal justice in terror cases must take place, to wit: 

(a) the application of a criminal justice framework to terror cases, rather than an 

intelligence or a military one, which is to say, that individuals should be 

64


prosecuted under the rule of law with the opportunity to vindicate claims 

made against them, rather than simply used as sources of information or 

“removed” to a place from which they can do no harm; 

(b) domestically, trends, which began with Cornejo-Barreto, which increase 

judicial review in extradition cases should continue. Toscanino should be 

further applied, as should the principles of nonrefoulement, political offenses, 

and the doctrine of non-inquiry should be retired in favor of an understanding 

that preemptory norms of international justice relative to human rights do, 

indeed, have an application in the law of extradition; 

(c) individuals detained in Guantánamo Bay and other facilities for “unlawful 

combatants” should be presumed prisoners of war, as is their right under the 

Geneva convention, unless proved otherwise. If deemed to be guilty of a 

crime prosecutable in U.S. jurisdiction, the U.S. courts should proceed under 

the precedent of the Noreiga case to try them in federal court; 

(d) extraditions should be conducted under the rule of law, even if this 

necessitates compromises relative to the disposition of the accused, including, 

but not limited to, restrictions on the utilization of capital punishment, 

rendition to third states, arbitrary detention, and torture; 

(e) extradition by way of abduction should be conceived of as a last possible 

resort, to be undertaken, if possible, as part of a military operation which is 

conducted according to the principles of the Charter of the United Nations. 

Sanctions and other legal remedies should be brought to bear as they were in 

the Pan Am 105 case; 

65


(f) rendition to a third jurisdiction should be reserved for cases in which there is a 

competent tribunal there with a good human rights record—the precedent set 

in the Lockerbie tribunal, and never fully realized elsewhere—this sort of 

multilateral rendition should displace the perverse sort of multilateral 

rendition to torture currently being employed; and 

(g) the provisions of nonrefoulement should be respected, as should conventions 

on torture and the rights of prisoners of war; any any conduct in, inter alia, 

Guantánamo Bay, Abu Ghraib, and CIA “black sites”, which violates 

international humanitarian law, should be immediately ceased. 

These actions are unequivocally necessary to bring United States policy into full 

congruence with relevant international law. Unfortunately, the current administration 

does not seem likely to undertake any of these alternatives. We can only hope that the 

political climate is changing, and that the next administration will be more respective of 

international law when it comes to the practice of transjurisdictional law in terror cases— 

for the sake not only of the human rights of those effected, but for the image of the U.S. 

and our legitimacy, and consequentially our efficacy in pursuing the war on terror 

wherever it may lead us. 

Noah T. Paul ’08 

May 2007 

66

PAUL – Reconstructing Transjurisdictional Criminal Justice in a ‘Global War on Terror’ 

APPENDIX A: NARRATIVE OF KHALED EL-MASRI 

The following is the narrative of one Khaled El-Masri, a German national who was a victim of a mistaken 

‘extraordinary rendition’ in 2004, when he was flown to Afghanistan and, he alleges, tortured by the CIA. 

This narrative, which was published in Harper’s Magazine 338 in 2006, gives a general flavor of what 

‘extraordinary rendition’ looks like on the ground. 

On December 31, 2003, I boarded a bus in Ulm, Germany, for a holiday … [at] 

the border, Macedonian officials confiscated my passport and detained me for several 

hours. Eventually, I was transferred to a hotel, where I was held for twenty-three days 

[and] I was repeatedly questioned about my activities in Ulm, my associates, my mosque, 

meetings with people that had never occurred, or associations with people I had never 

met … 

On January 23, 2004, I was handcuffed, blindfolded, and placed in a car. The car 

eventually stopped and I heard airplanes. I was taken from the car and led to a building 

where I was severely beaten. Someone sliced the clothes off my body, and when I would 

not remove my underwear, I was beaten again until someone forcibly removed it from 

me. I was thrown on the floor, my hands were pulled behind me, and someone's boot was 

placed on my back. Then I felt something firm being forced inside my anus … 

I was dragged across the floor and my blindfold was removed. I saw seven or 

eight men dressed in black and wearing black ski masks. One of the men placed me in a 

diaper and a tracksuit. I was put in a belt with chains that attached to my wrists and 

ankles, earmuffs were placed over my ears, eye pads over my eyes, and then I was 

68


blindfolded and hooded … at some point, I felt the plane land and take off again. When it 

landed again, I was unchained and taken off the plane. It felt very warm outside, and so I 

knew I had not been returned to Germany. I later learned that I was in Afghanistan. 

Once off the plane, I was … pushed roughly into a building, and left in a small, 

dirty, cold concrete cell. That first night I was interrogated by six or eight men dressed in 

the same black clothing and ski masks, as well as a masked American doctor and a 

translator. They stripped me of my clothes, photographed me, and took blood and urine 

samples. I was returned to my cell, where I would remain in solitary confinement, with 

no reading or writing materials, and without once being permitted outside to breathe fresh 

air, for more than four months … My requests to meet with a representative of the 

German government or a lawyer, or to be brought before a court, were repeatedly 

ignored. 

On May 28, I was led out of my cell, blindfolded and handcuffed. I was put on a 

plane and chained to the seat ... when the plane landed, I was placed in a car, still 

blindfolded, and driven up and down mountains for hours. Eventually, I was removed 

from the car and my blindfold removed. My captors gave me my passport and 

belongings, sliced off my handcuffs, and told me to walk down a dark, deserted road and 

not to look back. I believed I would be shot in the back and left to die, but when I turned 

the bend, there were armed men who asked me why I was in Albania and took my 

passport. The Albanians took me to the airport, and only when the plane took off did I 

believe I was actually returning to Germany. When I returned I had long hair and a beard, 

and had lost forty pounds. My wife and children had left our house in Ulm, believing I 

had left them and was not coming back. 

69


APPENDIX B: TABLE OF ACRONYMS 

AC 

AFI 

Appeals Cases (U.K.) 

Agencia Federal de Investigacion (Federal Agency of Investigation, 

Mexico) 

AJIL 

ATCA 

AUMF 

BLA 

CAT 

American Journal of International Law 

Alien Tort Claims Act (United States) 

Authorization for the Use of Military Force 

Baloch Liberation Army (Pakistan) 

Convention Against Torture and Other Forms of Cruel, Inhuman or 

Degrading Treatment or Punishment 

CIA 

Cr.A. 

CSRP 

DEA 

DOJ 

ECHR 

Central Intelligence Agency (United States) 

Court of Appeals (U.K.) 

Combatant Status Review Panel 

Drug Enforcement Administration (United States) 

(United States) Department of Justice 

European Court of Human Rights, European Convention for the Protection 

of Human Rights and Fundamental Freedoms 

ETS 

F,F.2d,F.3d. 

Fed. Reg. 

European Treaty Series 

Federal Reporter 

Federal Register 

70


F.Supp. 

FBI 

FSIA 

FTCA 

FTS 

GWOT 

ICCPR 

ICJ 

ILR 

IG 

ILM 

IRA 

L.Ed. 

LIS 

LTTE 

MCA 

OAS 

PCIJ 

PJF 

SCOTUS 

S.Ct. 

SCR 

TIAS 

Federal Supplement 

Federal Bureau of Investigation (United States) 

Foreign Sovereign Immunities Act 

Federal Tort Claims Act (United States) 

Finnish Treaty Series 

Global War on Terror 

International Covenant on Civil and Political Rights 

International Court of Justice 

International Law Review 

Islamic Group (al-Gama al-Islamiyya) (Egypt) 

International Law Materials 

Irish Republican Army 

Lawyer’s Edition (U.S. Supreme Court Reporter) 

Libyan Intelligence Service 

Liberation Tigers of Tamil Eelam (Sri Lanka) 

Military Commissions Act 

Organization of American States 

Permanent Court of International Justice 

Policía Judicial Federal (Federal Judicial Police, Mexico) 

Supreme Court of the United States 

Supreme Court Reporter (United States) 

Supreme Court Reporter (Canada) 

Treaties and other International Acts Series 

71


UCMJ 

UDHR 

UK 

UN 

UNCAT 

UNGA 

UNHRC 

UNTS 

UNSC 

UNSCR 

US 

UST 

Uniform Code of Military Justice (United States) 

Universal Declaration of Human Rights 

United Kingdom 

United Nations 

United Nations Committee Against Torture 

United Nations General Assembly 

United Nations Human Rights Committee 

United Nations Treaty Series 

United Nations Security Council 

United Nations Security Council Resolution 

United States, United States Supreme Court Reporter 

United States Treaty Series 

72


APPENDIX C: TABLE OF AUTHORITIES 

CASES (United States Courts) 

Álvarez-Machain v. United States, 107 F.3d. 696 (1996) 

Arar v. Aschroft, 414 F.Supp.2d. 250 (2006) 

Arnbjørnsdottir-Mendler v. United States, 721 F.2d. 679, 683 (1983) 

Cornejo-Barreto v. Seifert, 218 F.3d. 1004 (2004) 

Case of Jose Ferreira dos Santos, 2 Brock. 493, 2 Marshall’s C.C. 493 (C.C.D.Va., 1835) 

Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d. 1412 (11th Cir. 1995) 

Ex parte Quirin et al., 317 U.S. 1 (1947) 

Factor v. Laubenheimer, 290 U.S. 276, 287 (1933) 

Fong Yue Ting v. United States, 149 U.S. 698 (1892) 

Frisbie v. Collins, 342 U.S. 519, rehearing denied 343 U.S. 937 (1952) 

Gallina v. Fraser, 278 F.2d. 79 (1960) 

Hamdan v. Bush, 126 S.Ct. 2749 (2006). 

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) 

Hilton v. Guyot, 159 U.S. 113 (1895) 

Ker v. Illinois, 119 U.S. 436 (1886) 

Mainero v. Gregg, 164 F.3d. 1199, 1210 (1999) 

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 2 L.Ed. 208 (1804) 

Neely v. Henkel, 180 U.S. 109 (1901) 

74


Rasul v. Bush, 542 U.S. 466 (2004) 

Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.2d 748, 955 F.Supp 325, 327 

(1998). 

The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812) 

Sosa v. Álvarez-Machain, 331 F.3d. 629 (2003) 

United States v. Álvarez-Machain, 504 U.S. 658 (1992) 

United States v. Caro-Quintero, 745 F.Supp 599 (C.D.Cal 1990) 

United States v. Darby, 744 F.2d. 1508 (11th Cir. 1984) 

United States v. Lui, 83 F.3d 523 (2006) 

United States v. Lovato, 520 F.2d 1270 (1975) 

United States v. Noriega, 117 F.3d. 1206 (1997) 

United States v. Rauscher, 119 U.S. 407 (1886) 

United States v. Toscaninio, 398 F.Supp 916, 500 F.2d 267 (1975, 1974) 

United States v. Verdugo-Urquidez, 856 F.2d. 1214,1215 (1990) 

Valentine v. United States ex rel. Neidecker, 299 U.S. 5,11 (1936) 

CASES (International Courts) 

Einhorn v. France, no 71555/01, ECHR 2001 XI (ECHR 2001) 

Foreign Affairs Reform and Restructuring Act, Pub. L. 105-277 (1999). 

France v. Turkey [Case of the S.S. Lotus], P.C.I.J, Series A, no. 10 (1922) 

Lichtenstein v. Guatemala, WL 1 ICJ, 2nd phase I.C.J. reports (1955) 

Socialist People’s Libyan Arab Jamahiriya v. United States, G.L. No. 89 I.C.J. 2 (1998) 

Soering v. United Kingdom, 11 E.H.R.R. 439 (1989) 

75


CASES (Foreign Courts) 

Attorney General v. Eichmann, 36 ILR 277 (S.Ct. Israel), 36 ILR 18 (Dist Ct. Jerusaelm) 

(1968) 

In re Piracy Jure Gentium, [1934] A.C. 586 (U.K., 1934) 

Megrahi v. HM Advocate, 2002 SCCR 509, 68 Scots C.R. 517 (Lockerbie tribunal, 2002) 

United States v. Burns, 1 S.C.R. 283, 2001 SCC 7, CanLII (S.C.t. Canada 2001) 

Venezia v. Ministero di Grazia e Giusizia, 85 AJIL 128 (Corte de Cassazione, Italy, 

1991) 

STATUES (United States) 

Alien Tort Claims Act, 28 U.S.C. §1346,2671-2680 (1946). 

Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (1996) 

Authorization for the Use of Military Force, Pub L. 107-40 S.J.Res. 23 (2001) 

Criminal Procedure: Extradition, at 18 U.S.C. §3181 et seq. 

Federal Tort Claims Act, 28 U.S.C. §1350 et seq. (1789) 

Foreign Sovereign Immunities Act, 28 U.S.C. §1602 et seq. (1978) 

Military Commissions Act, Pub L. 109-366, 120 Stat. 2600 (2006) 

Uniform Code of Military Justice, at 10 U.S.C. §§801 et seq. 

War Powers Resolution, Pub. L. 93-148 (1973) 

STATUTES (Foreign) 

Aviation Security Act (U.K.), c. 36, Stones 7-5433 to 7-5436, §§2(1,5) (1982). 

76


TREATIES, CHARTERS, AND PROTOCOLS 

Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval 

Station, U.S.T. 418 (1903) 

Charter of the Organization of American States, 2 U.S.T. 2394, T.I.A.S. no 2361, art. 17 

(1948) 

Charter of the United Nations, 59 Stat. 1031, 21 U.S.T. 1418, 1 U.N.T.S. 16 (1946) 

Convention against Illegal Traffic in Narcotic Drugs and Psychotropic Substances, U.N. 

Doc. E/CONF.82/15, 28 ILM 493 (1989) 

Convention for the Suppression of the Unlawful Seizure of Aircraft [Hague Convention], 

860 U.N.T.S. 105; F.T.S. 458 (signed 1970, effective 1971) 

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 

[Montreal Convention], 974 U.N.T.S. 177 (1971). 

Convention relating to the Status of Refugees, 19 U.S.T. 6259, 6261, 189 U.N.T.S. 150, 

152 (1951); Protocol of 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (1967). 

European Convention for the Protection of Human Rights and Fundamental Freedoms 

(ECHR), ETS 5 (1950) 

European Convention on Extradition, ETS no. 24, 1 ECA 173, 359 UNTS 273 (1957), 

First Additional Protcol, ETS no. 86, 4 ECA 15, 1161 UNTS 450; Second Additional 

Protocol, ETS no. 98, 4 ECA 124, 1496 UNTS 328 (1978) 

Extradition Treaty between the United States and Italy, T.I.A.S. no 10837 (1984) 

Extradition Treaty between the United States and Mexico, 31 U.S.T. 5061 (1978) 

Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Time of 

War, 6 U.S.T. 3516, 75, T.I.A.S. no. 3365 U.N.T.S. 287 (1949). 

77


Geneva Convention (Third) Relative to the Treatment of Prisoners of War, 6 U.S.T. 

3316, T.I.A.S. no. 3364, 75 U.N.T.S. 135 (1949). 

International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 

art. 2, U.N. GAOR, 21st sess., Supp. No. 16, U.N. Doc. A/6316, 999 U.N.T.S. 171 

(1966) 

United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or 

Degrading Treatment or Punishment (CAT); 1465 U.N.T.S. 85; 23 I.L.M. 1027 

(1984), rev’d 24 I.L.M. 535 (1985) 

United Nations Model Treaty on Extradition, GA res. 45/116, annex, 45 UN GAOR 

Supp. (No. 49A) at 212; UN Doc. A/45/49 (1990), and complimentary provisions 

U.N. Doc. A/RES/52/88, annex I (1997) 

Universal Declaration of Human Rights (UDHR), U.N. General Assembly res. 217A(III) 

of 10 December 1948, UN Doc. A/810 at 71 (1948) 

Vienna Convention on Consular Relations (VCCR), 596 U.N.T.S. 261, 21 U.S.T. 77 

(1963). 

78


NOTES 

Notes to FRONT MATTER 

1. Letter of Thomas Jefferson of 12 September 1793 to Citoyen Ministre Edmond 

Charles Genet, 8 WORKS OF THOMAS JEFFERSON, FED. ED. 43 et seq. (New York: 

Putnam, Paul Leicester Ford, ed., 1907); see also Christopher Pyle, infra n.19, at 

6; See generally Case of Jose Ferreira dos Santos, 2 Brock. 493 (1835). 

Notes to INTRODUCTION, Transjurisdictional Criminal Justice in a Shrinking World (p. 2) 

2. Geoff Gilbert, “Transnational fugitive offenders in international law: extradition 

and other mechanisms”, 55 INT’L. STUDIES HUMAN IN RIGHTS 1-2, 337 (The 

Hague: Martinus Nijhoff, 1998) 

3. See generally Erika de Wet, “The prohibition of torture as an international norm 

of jus cogens and it’s implications for international law”, 15 EUR. J. INT’L. L. 97 

(2004). 

4. JEREMIAH, xxvi, 21-22 (King James Version). 

5. Daniel D. Luckenbill, “Hittite treaties and letters”, 37 AM. J. SEMITIC LANG. 3 

(1922), at 161; See also Ann Powers, “Justice denied? The adjudication of 

extradition applicatons”, 37 TEX. INT’L. L. J. 278, 281 (2002) 

6. Powers, supra n.5, at 283. 

7. Gilbert, supra n.2, at 32. 

8. For instance, Colombia, a civil law country, has a very well-used extradition 

bilateral extradition treaty with the United States, discussed in some detail in 

Powers, supra n.5, at 300. 

9. John Dugard and Christine van den Wyngært, “Reconciling extradition with 

human rights”, 92 AM. J. INT’L. L. 187, 188 (1998) 


11. Christopher L. Blakesly, “Autumn of the patriarch: The Pinochet extradition 

debacle and beyond—human rights clauses compared to traditional derivative 

protections such as dual criminality”, 91 J. CRIM. L. & CRIMINOLOGY 1, 15 

(2000). 

80



13. Authorization for the Use of Military Force [AUMF], Pub. L. 107-40 S.J.Res. 23 

(2001). 

14. George W. Bush, address to a joint session of Congress and to the American 

people, delivered September 20th, United States Capital, 107th Cong., 1st sess. 

89-011. 

15. The president—who does not, in the first place, have the constitutional authority 

to “declare war”, although such authority, resting with Congress, has laid dormant 

in the latter half of the twentieth century, even if the president’s power as absolute 

commander-in-chief absent Congressional oversight was tempered by the War 

Powers Resolution, infra nn.16-17. 

16. War Powers Resolution, Pub. L. 93-148 (1973) 

17. The question applicability of the War Powers Resolution to the “war on terror” is 

an interesting one, albeit entirely beyond the scope of this paper. See Jordan 

Paust, Addendum no. 2 to Frederic L. Kirgis, “Terrorist attacks on the World 

Trade Center and the Pentagon”, AM. SOCY. INT’L. L. INSIGHTS, September 2006. 

Suffice it to say, the “war on terror” is certainly not the sort of “war” envisioned 

in the War Powers Resolution, particularly since the enemy with which “war” is 

being conducted is so ill-defined—what, exactly, is being authorized here. For 

more on this question, viz. supra, at pp. 4-11 and §3.2. 

18. Joseph Marguiles, “A prison beyond the law”, 80 VIRGINIA Q. REV. 4 (2004) at 

37, 42. Mr. Marguiles presents a compelling description of the legal questions 

surrounding the Guantanámo Bay detainees, and his involvement as counsel for 

Shafiq Rasul of Rasul v. Bush, q.v., infra, at n.214, and supra, at §3.3. 

19. Christopher Pyle, Extradition, politics and human rights (Philadelphia: Temple, 

2001), at 21. 

20. Gilbert Guillaume, “Terrorism and international law”, 53 INT’L. COMP. L. J. 537, 

546 (2004). 

21. Memorandum of Alberto R. Gonzalez, Council to the President to George W. 

Bush, infra n.235. 

22. Jonathan Somer, “Acts of non-state armed groups and the law governing armed 

conflict”, 10 AM. SOCY. INT’L. L. INSIGHTS 21 (2004). 

23. Id., at 12. 

24. Michael P. Scharf, “The broader meaning of the Lockerbie trial and the future of 

international counterterrorism”, 29 SYR. J. INT’L. L. COM. 50 et seq. (2001). 

25. Id., at 63. 

Notes to PART ONE, Normative Processes of Extradition and Nonextradition (p. 10) 


81


27. Dugard and van den Wyngært, supra n.9, at 188. 

28. Erika de Wet, “The prohibition of torture as an international norm of jus cogens 

and it’s implications for national and customary law”, 15 EUR. J. INT’L. L. 97 

(2004). 

29. Rina Fujii, “Trial and tribulations: extraditing accused terrorists”, 24 HARV. INT’L. 

REV. 2 (2002) at 6. 


31. A word about vocabulary may be appropriate here: “state of asylum” and 

“requested state” are used interchangeably, indicating the state in which the 

fugitive has been found, and the state from which the “requesting state” seeks to 

extradite the “extraditee”, who is technically known in legal discourse as the 

“relator” (i.e., the subject of a proceeding ex relatione), but shall here, for 

simplicity’s sake, be referred to by the former, non-technical term, for discussion, 

see Dugard, supra n.9 at 278, n.2. 

32. See generally the Case of the S.S. Lotus, France v. Turkey, P.C.I.J, Series A, no. 

10 (1922), at 18. 

33. Hilton v. Guyot, 159 U.S. 113, 163 (1895); Powers, supra n.5, at 290n.94. 

34. The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 137 (1812). 

35. Powers, supra n.5, at 285. Such reciprocity is at the heart of the current Anglo- 

Pakistani dispute over the extradition of Rashid Rauf from Pakistan on terror 

charges, with Pakistan demanding the extradition of certain persons involved with 

the Baloch Liberation Army (BLA), a small insurgent group operating in 

Pakistan. See “Legal move to keep British airliner suspect in Pakistan”, Agence 

France-Presse, 5 April 2007, available online at . 

36. Id., loc. cit. 

37. Blakesley, supra n.11, at 5. 



40. Id., loc. cit.; Jacques Semmelman, “Cornejo-Barreto v. Seifert”, 93 AM. J. INT’L. 

L. 12 (2001); Dugard and van den Wyngært, supra n.9, at 189. 


42. United States v. Lui, 83 F.3d 523 (2006). 

43. Dina Maslow, “Extradition from Israel—the Samuel Sheinbein case”, 7 CARDOZO 

J. INT’L. & COMP. L. 387 (1999). 

44. Id. 

45. Vanessa Maaskamp, “Extradition and life imprisonment”, 24 LOYOLA L.A. INT’L 

& COMP. L. REV 741, 762 (2003); Powers, supra n.6, at 290; See also Neely v. 

82


Henkel, 180 U.S. 109 (1901); Arnbjørnsdottir-Mendler v. United States, 721 F.2d. 

679, 683 (1983); Mainero v. Gregg, 164 F.3d. 1199, 1210 (9th Cir. 1999). 

46. Maaskamp, supra n.45, at 762. 


48. Id., at 286-287. 

49. de Wet, supra n.3, at 99. 

50. United Nations Convention Against Torture and Other Forms of Cruel, Inhuman 

or Degrading Treatment or Punishment (CAT); 1465 U.N.T.S. 85; 23 I.L.M. 1027 

(1984), rev’d 24 I.L.M. 535 (1985), article 3(1). 

51. Gallina v. Fraser, 278 F.2d. 79 (1960). 

52. Cornejo-Barreto v. Seifert, 218 F.3d. 1004. Also see Semmelman, supra n.40, 

passim. 

53. Id., at 436. 

54. Id., at 435, 438. 

55. Cornejo-Barreto, supra n.52, at 1014. 

56. See Powers, supra n.6, a 284 et seq., for a much more detailed discussion of the 

specifics of these proceedings than I shall present here. 

57. Properly, “’to surrender’ or ‘to judge.’”, c.f. Cherif M. Bassiouni and Edward M. 

Wise, Aut dedere aut judicare: the duty to extradite or prosecute in international 

law (The Hague: Martinus Nijhoff, 1995), nn. 5-6 at 3, for a detailed discussion of 

usage; the term originates with Grotius, II De Jure Belli ac Pasis. At times, we 

find this maxim rendered aut dedere, aut punire, but this is misleading, the duty is 

not to “punish” but to exercise competent jurisdiction, see Fujii, supra n.29, at 6, 

over the accused. 

58. Gilbert, supra note 20, at 28. 

59. Powers, supra note 6, at 278; Ellen L. Lutz, “State-sponsored abductions—the 

human rights ramifications”, 9 WORLD POLICY J. 687 (1992); Valentine v. United 

States ex rel. Neidecker, 299 U.S. 5,11 (1936), nationals not to be extradited save 

in the presence of a bilateral extradition treaty; Factor v. Laubenheimer, 290 U.S. 

276, 287 (1933), right of the United States under international law not to extradite 

a national; 18 U.S.C. §3181, “The provisions of this chapter shall be construed to 

permit, in the exercise of comity, the surrender of persons, other than citizens, 

nationals, or permanent residents of the United States [emph. add.] … without 

regard to the existence of any treaty of extradition with such foreign government”, 

but conversely, see 18 U.S.C. §3196, “if the applicable treaty or convention does 

not obligate the United States to extradite its citizens … the Secretary of State 

may, nevertheless, order the surrender … of a United States citizen … if the other 

requirements of that treaty or convention are met.” 

83


60. Socialist People’s Libyan Arab Jamahiriya v. United States, G.L. No. 89 I.C.J. 2 

(1998), discussed in detail infra, at 34; Michael Plachta, “The Lockerbie case: the 

role of the Security Council in enforcing the principle aut dedere aut judicare, 12 

EUR. J. INT’L L. 125 (2001). 

61. Powers, supra n.6, at 283; Gilbert, supra n.2, at 28-30. 

62. Id., at 32. 

63. European Convention on Extradition, ETS 24; 1 ECA 173; 359 UNTS 273 

(1957). 


65. For detailed discussions of the terror issue, see Zdislaw Galicki, “International 

law and terrorism”, 48 AM. BEHAVIORAL SCIENTIST 743, 749 (2005), which lists 

important treaties on the subject, including the Montreal and Hague Conventions, 

infra n.67. 

66. Convention against Illegal Traffic in Narcotic Drugs and Psychotropic 

Substances, U.N. Doc. E/CONF.82/15, 28 ILM 493 (1989), art. VI of which 

concerns extradition. Several nations have lodged exceptions, reservations, and 

understandings regarding to this article, mostly regarding extradition of nationals 

The U.S., in particular, does not consider itself obligated under the Convention to 

extradite any person, national or otherwise, absent a bilateral extradition treaty. 

67. Convention for the Suppression of the Unlawful Seizure of Aircraft [Hague 

Convention], 860 U.N.T.S. 105; F.T.S. 458 (signed 1970, effective 1971); see 

also Convention for the Suppression of Unlawful Acts Against the Safety of Civil 

Aviation [Montreal Convention], 974 U.N.T.S. 177 (1971). 

68. United Nations Model Treaty on Extradition, GA res. 45/116, annex, 45 UN 

GAOR Supp. (No. 49A) at 212; UN Doc. A/45/49 (1990), and complimentary 

provisions U.N. Doc. A/RES/52/88, annex I (1997). 

69. Id., at 285. 

70. The doctrine of specialty is a provision of customary international law codified in 

most extradition treaties and controlled in the U.S. by Rauscher, infra n.140. 

71. John F. Murphy, review of Gilbert, supra note 30), 93 AM. J. INT’L. L. 752 (1999), 

viz. relevant portions of Gilbert at 175 et seq. 

72. Id., at 178. 

73. See supra, n.59, for a discussion of the relevant case law in the United States. 

74. Maslow, supra n.43, details the Sheinbein case and it’s implications. 

75. Lucille Barnes, “Maryland murder case prompts threat to cut U.S. aid to Israel”, 

16 WASH. REP. MID. EAST AFF. 1 at 61 (1997). 

76. Maslow, supra n.43. 

77. See Lichtenstein v. Guatemala, WL 1 ICJ, 2nd phase I.C.J. reports (1955). 

84


78. M. Mosk, “Dissent in the Scheinbein case has MD lawyers talking”, 

WASHINGTON POST, December 28th 2002, B-01. 

79. Sara Criscitelli, “The extradition question: immunity and the head of state”, 6 

GEO. J. INT’L. AFF. 81, 82 (2005). 

80. Id., at 82; de Wet, supra n.3, at 98, 105, 115. 

81. Rebecca Evans, “Pinochet in London—Pinochet in Chile: International and 

Domestic Politics in Human Rights Policy”, 28 HUM. RIGHTS Q. 207 (2006). 

82. Blakesly, supra n.11, at 16. 

83. de Wet, supra n.28, at 98, 105, 113 n.88, 115, 187, passim. 

84. Culminating in Einhorn v. France, no 71555/01, ECHR 2001 XI, decided in the 

European Court of Human Rights. 

85. King, “The death penalty, extradition, and the war against terrorism—the U.S. 

responds to European opinion about capital punishment”, 9 BUFF. HUM. RIGHTS 

REV. 161 (2003). 

86. Soering v. United Kingdom, 11 E.H.R.R. 439 (1989). Note that it was not the 

death penalty, which is not illegal under international law, Dugard and van den 

Wyngært, supra n.9, at 196, per se, which was objected to, Id., at 191 et seq, but 

rather the so-called “death row phenomenon”, Id., at 198. 

87. Richard D. Lillich, “The Soering case”, 85 AM. J. INT’L. L. 128 (1991). 

88. For more on this case, Venezia v. Ministero di Grazia e Giusizia, in the 

Constitutional Court of Italy, see 91 AM. J. INT’L. L. 718 (1997). 

89. King, supra n.85; Mosk, supra n.78; “Ex-fugitive convicted in 25-year-old 

murder”, New York Times, October 18th, 2002, p. A-19. 

90. Alan W. Clarke, Laurie Anne Whitt, Eric Lambert & Oko Elichi, “Does the rest 

of the world matter? Sovereignty, international human rights law and the 

American death penalty”, 30 QUEEN’S L. J. 260-310 (2004). 

91. Mexico is also reluctant to extradite in capital cases, as well as in cases involving 

a potential sentence of life imprisonment, Maaskamp, supra n.45, which is also 

prohibited under the Mexican constitution. Canada has attempted to implement a 

similar policy, but it lacks the teeth of it’s European equivalent, seeing as there 

have been deportations to the U.S. in capital cases, see Sean D. Murphy, 

“Canadian deportation to the United States of death penalty convict”, 98 AM. J. 

INT’L. L. 180 (2004), and also Pyle, supra n.19, at 207 et seq., for a discussion of 

deportation as a “back door” mechanism when extradition is not feasible or would 

run afoul of restrictions on return, also see Gilbert, supra n.2, at 362-375, for 

additional discussion of the same issue, as well as infra, at 30. The latest 

Canadian jurisprudence, United States v. Burns, 1 S.C.R. 283, 2001 SCC 7, 

CanLII (S.C.t. Canada 2001), allows for extraditions in capital cases for 

undefined “exceptional circumstances”, viz. William A. Schabas, “Extradition, 

85


death penalty, U.S.-Canadian extradition treaty—death penalty under 

international law”, 95 AM. J. INT’L. L. 666 (2001). 

92. Clarke et al., supra n.90, passim. 

93. Fujii, supra note 29, at 6. 

94. Pyle, supra n.19, at 79. 

95. Id., at 80-82. 

96. Id., at 80. 

97. Id., at 83. 


99. David M. Lieberman, “Sorting the revolutionary from the terrorist: the delicate 

application of the ‘political offense’ exception in U.S. extradition cases”, 59 

STAN. L. REV. 181, 182 (2006). 

100. Pyle, supra n.19, at 87. 

101. Id., at 83. 


103. See generally L.F.E. Goldie, “Profile of a terrorist: distinguishing freedom 

fighters from terrorists”, 14 SYR. J. INT’L. L. & COMM. 125 (1984). 

104. Id, at 197-206. 

105. Id., at 199. 

106. Gilbert, supra n.2, at 339, 342. 

Notes to PART TWO, Extradition Accomplished by Irregular Means (p. 28) 


108. France v. Turkey [Case of the S.S. Lotus], G.L. 22, P.C.I.J., ser. A., no 10 (1927), 

at 18. 

109. United Nations Charter, Art. II, at 5. 

110. 2 U.S.T. 2394, T.I.A.S. no 2361, art. 17 (1948, signed by the United States 1981) 

111. Pyle, supra n.19, at 263. 

112. Universal Declaration of Human Rights [UDHR], U.N. General Assembly res. 

217A(III) of 10 December 1948, art. 3, UN Doc. A/810 at 71 (1948); European 

Convention for the Protection of Human Rights and Fundamental Freedoms 

[ECHR], ETS 5 (1950), art. 5(1)(c), Gilbert, supra n.2, at 357. 

113. UDHR, art. 5; ECHR, art. 3 

114. United States v. Toscanino, 398 F.Supp 916 (1975) 

86


115. United States v. Toscanino, 500 F.2d 267 (1974) 


117. Id., at 345-346. 

118. Id., at 347 n.56; United States v. Lovato, 520 F.2d 1270, 1271 (1975, 9th Cir.) 

119. Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins 342 U.S. 519, rehearing 

denied 343 U.S. 937 (1952). 

120. Lutz, supra n.59, at 689. 

121. Andreas Lowenfeld, “Kidnapping by government order—a follow-up”, 84 AM. J. 

INT’L. L. 712 (1991). 

122. Lutz, supra n.59, at 690. 

123. Pyle, supra n.19, at 283. Or at least, whatever knowledge Washington had of 

these activities, no paper trail has been left. “Plausible deniability” for those 

higher in the bureaucracy of the actions of those lower in it, in furtherance of 

stated U.S. goals, may well play a significant role. 

124. The PJF is now defunct, having been replaced, due to pervasive corruption, in 

2002, by the reconstituted Federal Agency of Investigation (AFI). 

125. Note that the deportation, rather than the extradition, of this individual was 

sought. Deportation is at times used as a ‘back-door’ mechanism to speedily 

render an individual into another jurisdiction without going through the usual 

process of extradition, often in questionable circumstances regarding the 

extraditability of the accused or their fate after extradition. Though not, for 

obvious reasons, an appropriate venue for extradition of nationals, the 

mechanisms of deportation provide a convenient ‘back door’ to extradite persons 

to other jurisdictions. Deportation is “the removal of an alien out of this country, 

simply because his presence is deemed inconsistent with the public welfare, and 

without any punishment being imposed or contemplated … under the laws of the 

country … he is sent to … [not] to facilitate the punishment of one convicted of 

an offense against another country’s laws”, Fong Yue Ting v. United States, 149 

U.S. 698,725 (1892). However, it is all too often used as such, for example, in the 

case of Joseph Doherty, a member of the Irish Republican Army (IRA), Pyle, 

supra n.19, at 207-217, who’s offenses were arguably “of a political character” 

and who, in fact, was seeking political asylum in the United States, Id., at 212. 

Not dissimilarly, deportation has seen use in Canada in cases in which extradition 

to the United States would be prohibited by virtue of the possibility of the death 

penalty, q.v. supra n.91. 

126. This is not undisputed, c.f. United States v. Álvarez-Machain, 504 U.S. 658 

(1996) at n.2., “DEA officials had attempted to gain respondent's presence in the 

United States through informal negotiations with Mexican officials, but were 

unsuccessful. DEA officials then, through a contact in Mexico, offered to pay a 

reward and expenses in return for the delivery of respondent to the United States.” 

87


127. Pyle, supra n.19, at 282. One of them is Rene Martin Verdugo-Urquidez, of 

United States v. Verdugo-Urquidez, 856 F.2d. 1214,1215 (1990), q.v. infra n.145. 

128. Lutz, supra note 59, at 692. 

129. The motion was later upheld in Álvarez-Machain v. United States, 107 F.3d. 696 

(1996). 

130. Federal Tort Claims Act, 28 U.S.C. §1350 (1789). 

131. Alien Tort Claims Act, 28 U.S.C. §1346, 28 U.S.C. §§2671-2680 (1946). 

132. John F. Murphy, “Transnational fugitive offenders in international law— 

extradition and other mechanism”, 93 AM J. INT’L. L. 752 (1999). Note that the 

phrase “cruel, inhuman, and degrading treatment” is often used to describe 

mistreatment which does not rise to the definition of “torture” in a legal sense. 

133. Mexico’s largely symbolic attempt to what might be termed exercise poetic 

justice in the form of extraterritorial justice exerted against the perpetrators of 

extraterritorial abduction is prescient of the later cases of Osama Nasr and others, 

where European governments indicted American agents for their roles in 

“renditions.” 

134. Jennifer J. Veloz, “In the Clinton era, overturning Álvarez-Machain and 

extraterritorial abduction—how a unified western hemisphere, through the OAS, 

can win the war on drugs and do it legally", 12 TEMPLE INT’L. & COMP. L. J. 241 

(1998). 

135. Sosa v. Álvarez-Machain, 331 F. 3d. 629 (2003). 

136. Id.; Brad R. Roth, “Sosa v. Álvarez-Machain; United States v. Álvarez-Machain, 

124 S.Ct. 2739 (International Court Decisions)”, 98 AM. J. INT’L. L. 798 (2004). 

137. Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 2 L.Ed. 208 (1804); Roth, 

supra note 136. 

138. United States v. Álvarez-Machain, 504 U.S. 655 (1992). 

139. Id., at 657. 

140. Id., at 655; United States v. Rauscher, 119 U.S. 407 (1886). 

141. Ker v. Illinois, 119 U.S. 436 (1886), a case involving a Pinkerton security agent 

acting in Peru, but carrying an extradition warrant signed by the President of the 

United States. 

142. With regards to the questionable nature of Ker as precedent for Álvarez-Machain, 

I would highlight, inter alia, the fact that Ker was a U.S. national, not a Peruvian 

national, but the Supreme Court holds this to be immaterial, Álvarez-Machain at 

662 n.9, as well as the fact that a warrant of extradition had been issued, although 

not properly implemented, Id. at 660. 

143. Id., at 444. 

144. Frisbee v. Collins, 342 U.S. 519, rehearing denied 343 U.S. 937 (1952). 

88


145. Whether Frisbee, the inter-state abduction case, has much more than a tenuous 

relationship to Ker, aand applicability to international law is questionable, United 

States v. Verdugo-Urquidez, 856 F.2d. 1214,1215 (1990); Lowenfeld, supra 

n.121, at 658, since two states in the U.S. do not have the precisely same 

relationships as to equal sovereigns in international law, being united under a 

federal government. 

146. Álvarez-Machain, supra n.121, at 655. 

147. Interestingly, the 9th Circuit ruling being overturned held that the treatment of 

Álvarez-Machain did not violate international law, viz. Sean D. Murphy, 

“Transboundary abduction as a violation of international law”, 97 AM. J. INT’L. L. 

983 (2003), but claims under the ATCA were valid; here, SCOTUS ruled 

precisely the opposite on both points. 

148. U.S.-Mexico Extradition Treaty, 31 U.S.T. 5061, signed 1978, effective 1980. 

149. Álvarez-Machain, at 657, “The District Court concluded that DEA agents were 

responsible for respondent's abduction, although they were not personally 

involved in it, United States v. Caro-Quintero, 745 F.Supp. 599, 602-604, 609 

(CD Cal. 1990).” 

150. “The Ker-Frisbie doctrine … holds that a defendant cannot defeat personal 

jurisdiction by asserting the illegality of the procurement of his presence”, United 

States v. Darby, 744 F.2d 1508, 1530 (11th Cir. 1984). 

151. Id. 

152. Halberstam, Malvina, “In defense of the Supreme Court decision in Álvarez- 

Machain”, 86 AM. J. INT’L. L. 736, 737 (1992). 

153. Extraterritorial Abduction by the Federal Bureau of Investigation, 4B OP. OFF. 

LEGAL COUNSEL 543 (1980); Michael G. Glennon, “State-sponsored abduction: a 

comment on United States v. Álvarez-Machain”, 86 AM. J. INT’L L. 746 (1992). 

Here, the council of the Department of Justice makes this “acknowledgment.” It is 

not immediately clear if the present administration’s policies represent a 

movement away from this policy, or a redefinition of the problem, i.e. since the 

contemporary (post-9/11) “extraordinary renditions” in question are wholly 

extrajudicial and do not intend to be a part of the U.S. legal or criminal-justice 

system in any way, this does not apply. 

154. Id. at 747; FBI Authority to Seize Suspects Abroad: Hearing Before the 

Subcommittee on Civil and Constitutional Rights of the House Committee on the 

Judiciary, 101st CONG., 1st sess. 31 (1981) 

155. Plachta, supra n.60, at 313. 

156. Jonathan A. Bush, “How did we get here? Foreign abduction after Álvarez- 

Machain”, 45 STAN. L. REV. 939 (1993). 

157. Id., at 939. 


89


159. United States v. Noriega, 117 F.3d 1206 (1997). 


161. Pyle, supra n.19, at 279. 


163. Jonathan Bush, supra n.156, at 939. 

164. Attorney General v. Eichmann, 36 ILR 277 (S.Ct. Israel); 36 ILR 18 (Dist. Ct. 

Jerusalem) (1968). 

165. In re Piracy Jure Gentium, A.C. 586 (1934). 

166. de Wet, supra n.3, passim. 

Notes to PART THREE, Extraterritorial Jurisdiction in the War on Terror (p. Error! 

Bookmark not defined.) 

167. The story of how these names were arrived at is a testament to the skill and 

dedication of the investigators involved, viz. the first few pages of Michael P. 

Scharf, supra n.24. 

168. See Plachta, supra n.60; Anderson, supra n.182. This measure, which the U.S. so 

roundly criticized in Libya, is identical in substance to the Valentine in the U.S. 

169. Plachta, supra note 60. 

170. Lisa Anderson, “Muammar al-Qaddafi: the ‘king’ of Libya”, 54 J. INT. AFF. 515. 

(2001). 

171. UNSCR no. 731—Libyan Arab Jamahiriya (1992). 



174. Anderson, supra note 170. 

175. Since it is well-established in international and U.S. municipal law (for the latter, 

on no less authority than that of the U.S. Supreme Court, Factor v. 

Laubenheimer) that there is no obligation under customary or any other 

international law to render suspects for extradition outside of the provisions of a 

codified extradition treaty (Fujii, supra note 29; Powers, supra note 5; Lutz, supra 

note 59) it is difficult to see how failure to render suspects constitutes an act 

which justifies retaliation, however questionable Libyan justice was at the time. 

Of course, this says nothing against other actions against Libya, based on credible 

evidence that not only two individual Libyan nationals but individuals high in the 

Libyan government, possibly Qaddafi himself, were involved in the planning or 

the ordering of the Lockerbie bombing. 

176. Scharf, supra note 24. 

90


177. These remarks were given a few weeks before September 11th and, interestingly 

enough, conclude with a proposal to deal with an obscure terrorist leader named 

Osama bin-Laden after the model of Qaddafi and Libya. The pendulum of U.S. 

terrorism policy has clearly moved in the absolute opposite direction, q.v. infra at 

§§3.1 et seq. 

178. Id.; Ray Tayekh, “The rogue who came in from the cold”, 80 FOREIGN AFF. 3 

(2001) at 62; Andrew I. Kilgore, “Pan Am 103 settlement appears near—but 

questions remain.” 22 WASH REP. MID. EAST AFF. 8 (2003) at 31. (2003); Sean D. 

Murphy, “Libyan payments to families of Pan Am 103 victims”, 97 AM J. INT’L 

L. 987 (2003); Steve Emerson, “The Lockerbie terrorist attack and Libya—a 

retrospective analysis”, 36 CASE W. RES. J. INT. L. 487 (2004). 

179. Id. 

180. Id. 

181. J. Jeffords, “Who’s right in the U.S. and U.K. dispute with Libya over the 

bombing of Pan Am 103? Two views—U.S. response is shining example of 

collective action.” 10 WASH. REP. MID. EAST AFF. 9 (1992) at 49. 

182. Lisa Anderson, “Muammar al-Qaddafi: the ‘king’ of Libya”, 54 J. INT. AFF. 515. 

(2001). 

183. Jeffords, supra n.181. Needless to say, such a coercive model can be implemented 

only by a petitioning state which can make a credible threat against the state of 

asylum. Furthermore, the requesting and asylum states do not act in vacuo; any 

coercive action or threats made by the petitioning state, as well as the instigating 

actions and responses of the asylum state, is done in view of the international 

community, in which there is decreasing discontent with unilateral action. 

Contrast here, the brouhaha over the second U.S. invasion of Iraq under George 

W. Bush, done without the consent of the UN Security Council, and the 

successful multilateral coercion of Libya after the Lockerbie bombing. 

184. Steve Emerson, “The Lockerbie terrorist attack and Libya—a retrospective 

analysis”, 36 CASE W. RES. J. INT’L. L. 487. (2004); Anderson, supra n.170; 

Tayekh, supra note 178. 

185. Id. 

186. Id., Edward Murphy, “Libya opens up”, 22 HARV. INT’L REV. 3 at 8. (2000). 

187. David R. Andrews, “A thorn on the tulip—a Scottish trial in the Netherlands: the 

story behind the Lockerbie trial”, 36 CASE W. RES. J. INT’L. L. 307 (2004)). 

188. However, in the civil case of Rein v. Socialist People’s Libyan Arab Jamahiriya, 

162 F.2d. 748 (1998), surviving relatives of Lockerbie victims successfully sued 

Libya for damages under the Foreign Sovereign Immunities Act, 28 U.S.C. §1602 

et seq. (1978), and the Antiterrorism and Effective Death Penalty Act, Pub. L. 

104-132, 110 Stat. 1214 (1996), over the vigorous objections of the Libyan 

government. Tripoli claimed that the U.S. lacked jurisdiction, and, what is more, 

the FSIA was an abrogation of Libya’s right to sovereign immunity under 

91


customary and codified international law—a claim that the U.S. courts rejected, 

finding in favor of the victim’s survivors. 

189. Andrews, supra note 187. 

190. Id. 

191. For the details of the actual legal constructs in question, viz. Statutory Instrument 

of the High Court of the Justiciary, Proceedings in the Netherlands, United 

Nations 1998 No. 2251. 

192. Andrews, supra note 187; Robert Black, “Lockerbie—a satisfactory process but a 

flawed result”, 36 CASE W. RES. J. INT’L. L. 443. (2004); Emerson, supra n.184; 

Julian B. Knowles, “The Lockerbie judgments—a short analysis”, loc. cit. at 473; 

Laura K. Donohue, “Lockerbie—the story and the lessons”, 116 POL. SCI. Q. 656. 

(2002); Plachta, supra n.60; Scharf, supra note 24; Anderson, supra n.182; Sean 

D. Murphy, “Surrender of Libyan nationals for the Lockerbie bombing trial in the 

Netherlands”, 93 AM J. INT’L. L. 908. (1999). 

193. Scots Law, used in Scotland and nowhere else in the world, is an idiosyncratic 

mix of civil and common law with a number of interesting and unique features, 

including inter alia: the option to render a verdict of “not proven” in a case in 

which the jury believes that the defendant is guilty but evidence is insufficient; 

the necessity of corroboration of the accounts of two witnesses before a act is 

introduced into evidence; and the absence of the right of appeal for either the 

defense or the prosecution absent extraordinary circumstances. 

194. Plachta, supra n.60, presents in great detail the procedures surrounding the 

transportation and disposition of the suspects prior to and during the trial—suffice 

to say, they were unprecedented in the level of security, unique in the legal 

constructs involved, and yet to be repeated in any real way since. 

195. USDOJ attorneys determined “international double jeopardy” to be a nonissue as 

long as the involvement of U.S. prosecutors at trial was minimal, c.f. Andrews, 

supra n.187—this is hardly a foregone conclusion. The right to indict was 

apparently unilaterally reserved on the part of the USDOJ and is not a part of any 

of the compromises reached by Libya. It is not at all clear how these issues would 

have resolved themselves if the USDOJ had actually attempted such indictments. 

196. Aviation Security Act (U.K.), c. 36, Stones 7-5433 to 7-5436, §§2(1,5) (1982). 

197. Knowles, supra n.187. 

198. Murphy, supra n.187. 


200. Id.; Megrahi v. HM Advocate, 2002 S.C.C.R. 509, 68 Scots C.R. 517 (2002). 

201. Id. 

202. Id.; Knowles, supra n.192. 

92


203. Under Scots law, the defendant is allowed only 14 days to prepare an appeal and 

appeal is granted only in cases of a “grave miscarriage of justice.” The appeal did 

not attempt to claim that there was insufficient evidence, only that certain points 

of fact were misinterpreted. It is important to note that the appeals court did not, 

per se, uphold the findings of the Lockerbie tribunal but merely denied that 

grounds for appeal existed. 

204. Andrews, supra n.187. 

205. Anderson, supra n.182. 


207. Emerson, supra n.184. 

208. Supra note 192. 

209. Plachta, supra n.60, at 135 et seq. 

210. Address of President George W. Bush, supra n.14. 

211. Guillaume, supra n.20, at 537. 

212. Id., at 541, see loc. cit., n.10. 

213. John Cerone, “Acts of war and state responisibiltiy in ‘muddy waters’—the nonstate 

actor dilemma”, addendum no. 3 to Kirgis, supra n.17, at 2. 

214. Rasul v. Bush, 542 U.S. 466 (2004). 

215. Marguiles, supra n.18, at 42. 

216. Geoffrey Robertson, “Fair trials for terrorists?”, in Human Rights in the War on 

Terror (Wilson, ed., Cambridge: 2005). 

217. Leila Nadya Sadat, “Ghost prisoners and black sites: extraordinary rendition 

under international law”, 37 CASE W. RES. J. INT’L. L. 309 (2006). 

218. Michael H. Hoffman, “Terrorists are unlawful belligerents, not unlawful 

combatants: a distinction with implications for the future of international 

humanitarian law”, 34 CASE W. RES. J. INT’L. L. 227 (2002). 

219. Even the war in Iraq, after the downfall of Saddam Hussein’s regime in Baghdad, 

has degenerated into a war “mostly conducted agaist non-state combatants”, as are 

most of the military’s operations in Afghanistan. 

220. Hoffman, supra n.218, at 227. 

221. Id., at 228. 

222. Geneva III, 6 U.S.T. 3316, T.I.A.S. no. 3364, 75 U.N.T.S. 135 (1949). 


224. Geneva III, supra n.222, art. 4(a). 

225. Ex parte Quirin et al., 317 U.S. 1, 31 (1947). 

93



227. Although the status of guerilla warfare is considerably more complex, Id. at 227 

n.1, since the addition of Protocol I to the Geneva Convention in 1977. 

228. Quirin, supra n.225, at 31. 

229. Military Order of 13 November 2001—Detention, Treatment, and Trial of Certain 

Non-Citizens in the War Against Terrorism. 66 FED. REG. 57,833, 16 November 

2001. 

230. The war-on-terror detainees were not the first persons to be detained in 

Guantánamo Bay, nor were they the first to be subject to an argument by the 

United States government regarding “the right to process their respective claims 

… [and] generally inhumane conditions”, that dubious distinction belongs instead 

to a group of Haitian refugees, viz. Cuban American Bar Ass’n, Inc. v. 

Christopher, 43 F.3d. 1412 (11th Cir. 1995), Intervenor Plaintiffs’ Memorandum 

of Law in Support of Motion for Temporary Restraining Order and Motion to 

Expedite Discovery, Id., doc. no. 94-2183-CIV-ATKINS. 

231. Scott M. Silliman, “On military commissions”, 36 CASE W. RES. J. INT’L. L. 529, 

536 (2004). 

232. Id., at 530 et seq. 

233. Ex parte Quirin et al., 317 U.S. 1 (1947). 

234. Nicholas Stephanopoulos, “Solving the due process problem with military 

commissions”,114 YALE L. J. 921 (2005). 

235. Memorandum of Alberto R. Gonzalez, Council to the President to George W. 

Bush, President, Decision Re: Application of the Geneva Convention on Prisoners 

of War to the Conflict with Al-Qaeda and the Taliban (25 January 2002), 

reprinted in Karen L. Greenberg and Joshua L. Dratel, eds., The Torture Papers: 

The Road to Abu Ghraib (Cambridge, 2005), at 134; see Sadat, supra n.217, at 

311. 

236. Marguiles, supra n.18, at 47. 

237. Supra n.159. 

238. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), not to be confused with Hamdan v. 

Rumsfeld, a different but related case involving another individual. 

239. Rasul, supra n.214. 

240. David L. Sloss, “Rasul v. Bush”, 98 AM. J. INT’L. L. 788 (2004). 

241. John R. Crook, “Treatment of U.S. detainees at Guantánamo Bay”, 99 AM. J. 

INT’L. L. 261 (2005). 

242. John R. Crook, “Five Guantánamo detainees released after negotiations with the 

United Kingdom and Austria”, 99 AM. J. INT’L. L. 485 (2005). 

94


243. Vienna Convention on Consular Relations, 596 U.N.T.S. 261, 21 U.S.T. 77 

(1963). 

244. Clarke et al., supra n.90, at 278. 

245. Id., passim at 278 et seq.; see variously Breard v. Greene, 523 U.S. 371 (1998), 

Case Concerning LaGrand, Germany v. United States of America, 2001 I.C.J. 

466, Case Concerning Avena and Other Mexican Nationals, Mexico v. United 

States, GL 128 ICJ 111 (2004). 

246. Maggie Ardiente, “Everything but the truth: allegations of abuse and torture at 

Guantánamo Bay”, 99 THE HUMANIST 1 (2006), at 16. 

247. Hamdan v. Bush, 126 S.Ct. 2749 (2006). 

248. Military Commissions Act, Pub. L. 109-366, 120 Stat. 2600 (2006), amending 10 

U.S.C. chap. 47, the Uniform Code of Military Justice (§§801 et seq.) 


Notes to PART FOUR, Rendition to Third States and The Torture Connection (p. 50) 

250. Address of George W. Bush, supra n.14. 

251. Cerone, supra n.213, at 8. 

252. Fujii, supra n.29, at 6. 

253. Pyle, supra n.19, at 83. For example, the United States has historically been 

reluctant to extradite or prosecute certain members of the Irish Republican Army 

(IRA), Id. and Lieberman, supra n.99, as has, ironically, Great Britain, with 

respect to, inter alia, members of the Liberation Tigers of Tamil Eelam (LTTE) 

and persons connected with radical Islamic groups, Steven Coll and Susan B. 

Glasser, “In London, Islamic radicals have found a haven”, WASHINGTON POST, 

10 July 2005, at A-1. 

254. William G. Weaver and Robert M. Pallito, “The law: ‘extraordinary rendition’ 

and presidential fiat”, 36 PRES. STUDIES Q. 1 (2006), at 110. 

255. Richard A. Clarke, Against All Enemies: Inside America’s War on Terror (New 

York: Simon and Schuster), at 143-144. 

256. Frederic L. Kirgis, “Alleged CIA kidnapping of Muslim cleric in Italy”, AM. 

SOCY. INT’L. L. INSIGHTS, 7 July 2005. 

257. Case of the S.S. Lotus, supra n.32, at 18. 

258. Kirgis, supra n.256, at 3. 

259. U.S.-Italy extradition treaty, signed 13 December 1983, entered into force 24 

September 1984, T.I.A.S. no. 10837. 

260. Kirgis, supra n.256, at 1,4 et seq. 

261. Huq, infra n.308, at 31. 

95


262. Supra n.51. 

263. Case of the S.S. Lotus, supra n.32; Kirgis, supra n.219, at 3. 

264. Pyle, supra n.19, at 263. 

265. UNDR, ECHR, loc. cit. supra n.112. 

266. Margaret L. Sattherthwaite, “Extraordinary rendition and disappearances in the 

‘war on terror’”, 10 GONZAGA J. INT’L L. 70, 71 (2006). 

267. Margaret L. Sattherthwaite, “Rendered meaningless: extraordinary rendition and 

the rule of law” N.Y.U. PUB. L. & LEGAL THEORY WORKING PAPERS, no. 43 

(2006), at 2. 

268. Phillipe Sands, “Extraordinary rendition: complicity and it’s consequences”, 

INT’L. RULE OF L. LEC. 2006, Middle Temple Hall, London, 15 May 2006, at 2. 

269. “Torture by proxy: international law applicable to ‘extraordinary renditions.’”, 

briefing of the CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE, N.Y.U. 

SCHOOL OF LAW to the All Parliamentary on Extraordinary Rendition (2005), at 6, 

at 3. 

270. Nora Boustany, “Freed cleric is planning lawsuit—Egyptian abducted in Milan in 

2003, allegedly by CIA”, The Washington Post, 13 February 2007, at A-15. 

271. Olivier Dutheillet de Lamothe, “Extraordinary renditions: a European 

perspective”, EUR. COMM. FOR DEMOCRACY THROUGH LAW, opinion no. 363, 11 

October 2006; Bauer Lecture of 25 September 2006, CARDOZO SCHOOL OF LAW, 

at 1. 

272. Weaver and Pallito, supra n.254, passim. 

273. Donald Gutierrez, “The extraordinary cruelty of ‘extraordinary rendition’”, 66 

THE HUMANIST 1 (2006) at 11. 

274. Nicholas Watt Strasbourg, “U.S. accused of using gangster tactics over terror 

suspects”, THE GUARDIAN, 25 January 2006, at 4. 

275. John Crewdson, “E.U. parliament launches inquiry into ‘renditions’”, CHICAGO 

TRIBUNE, 20 January 2006. 

276. Lafranchi, “Why the CIA’s secret flights irk Europeans”, CHRISTIAN SCIENCE 

MONITOR, 28 April 2006, at 1. 

277. Sattherthwaite, supra n.266, at 72. 

278. UNCAT, supra n.50, article 3(1) 

279. Convention relating to the Status of Refugees, 19 U.S.T. 6259, 6261, 189 

U.N.T.S. 150, 152 (1951); Protocol of 1967 to same, 19 U.S.T. 6223, 606 

U.N.T.S. 267 (1967). 

280. UNCAT, supra n.50, article 3(1) 


96



283. International Covenant on Civil and Political Rights [ICCPR], G.A. res. 2200A 

(XXI), art. 2, U.N. GAOR, 21st sess., Supp. No. 16, U.N. Doc. A/6316, 999 

U.N.T.S. 171 (1966) 

284. Id., art. 4, 7; Sattherthwaite, supra n.267, loc. cit., n.4. 

285. ICCPR, supra n.283, art. 2. 

286. Sattherthwaite, supra n.267, at 16; Initial Report of the United States of America 

to the U.N. Human Rights Committee (UNHRC), U.N. Doc. CCPR/C/81/Add.4 

(24 August 1994), at 12-25 and Initial Reports of the United States of America 

to the Committee Against Torture (UNCAT), U.N. Doc. CAT/C/28/Add.5 (9 

February 2000), Annex to the Second and Third Periodic Report of the United 

States of America to the UNHRC, U.N. Doc. CCPR/C/USA/Q/3 (21 October 

2005). “US territory” is taken to mean “the fifty states plus the insular areas, 

which include Puerto Rico, Guam, and other similar spaces”, Initial Report of 

1994, loc. cit. 

287. The United States lease the military base in Guantánamo from Cuba, with Cuba 

retaining “ultimate sovereignty” but the United States holding “complete 

jurisdiction and control”, Agreement for the Lease to the United States of Lands 

in Cuba for Coaling and Naval Station, 23 February 1903, U.S.T. 418, see also 

Cuban American Bar Ass’n, Inc. v. Christopher, supra n.230. This provides the 

basis for the U.S. government’s unsuccessful arguments that, inter alia, detainees 

in Guantánamo Bay lack constitutional rights and that the federal courts have no 

jurisdiction over them, see Id., Rasul, supra n.214, Hamdi, supra n.238, Hamdan, 

supra n.247. 

288. Second Report, supra n.286, at 5; Sattherthwaite, supra n.267, at 16. 

289. Id. 

290. Sattherthwaite, supra n.267, at 21. See, inter alia, “Reservations, declarations, 

and understandings, Convention Against Torture and Other Cruel, Inhuman, or 

Dgrading Treatment or Punishment”, CONG. REC. S17486-01 (daily ed., 27 

October 1990). 

291. Sattherthwaite, loc. cit.; UNHRC, Summary record of the 1405th meeting— 

United States of America, U.N. Doc. CCPR/C/SR 1045, at 7,20 (24 April 

1995). 

292. Sattherthwaite, supra n.267, at 21 et seq. 

293. Id., at 21, Concluding Observations of the UNHRC—United States of America, 

U.N. Doc CCPR/C/79/Add.50, at 284 (3 October 1995) 

294. For discussions of the meaning of jurisdiction, territory, and state and non-state 

actors in terrorism, see generally Somer, supra n.22, Galicki, supra n.65, and 

Kirgis, supra n.17. 

97


295. Elena Landriscina, “Criminalizing extraordinary rendition: global civil society 

and the promise of international law”, Working Paper No. 27, Centro Argentino 

de Estudios Internacionales (5 March 2003); Joseph Marguiles, Guantánamo and 

the Abuse of Presidential Power (New York: Simon & Schuster, 2006), at 189, 

198-199. 

296. Id., at 3-4. 


298. Dana Priest and Barton Gellman, “U.S. decries abuse but defends interrogation: 

‘stress and duress’ tactics used on terrorism suspects held in secret overseas 

facilities”, WASHINGTON POST, 26 December 2002, at A1. 

299. These states often vigorously protested CIA operations within their borders, see 

the Italian reaction to the Nasr rendition, supra, at 51, and the reaction of 

Germany to the rendition of Khaled el-Masri, Craig Whitlock, “Germans charge 

13 CIA operatives”, WASHINGTON POST, 1 February 2007, at A1, although there 

have been allegations that, covertly, they were complicit in the operations, Tracy 

Wilkinson and Greg Miller, “Italy says it didn’t know of CIA plan”, L.A. TIMES, 

1 July 2005, at A1; 

300. Gloria Cooper, “State of the art: discovering the new disappeared”, 44 COLUM. 

JOURN. REV. 2 (2005), at 13. 

301. Landriscina, supra n.295, at 17 et seq. 

302. See supra, n.298, for one, coming in December 2002, Landriscina, supra n.295, at 

2 n.2., lists a few more. 

303. Geoffrey Hodgson, “The U.S.-European torture dispute: an autopsy”, 22 WORLD 

POL. J. 4 (2006), at 7; Crewdson, supra n.275, at 6. 

304. Admissions came as early as 2002, see supra nn. 298,302. 

305. Sadat, supra n.217, at 315. 

306. Landriscina, supra n.295, at 17. 

307. Remarks of Secretary of State Condoleezza Rice upon Her Departure for Europe, 

5 December 2005, Andrews Air Force Base. 

308. Aziz Z. Huq, “Extraordinary rendition and the wages of hypocrisy”, 23 WORLD 

POL. J. 1 (2006), at 25-26. 

309. Sadat, supra n.217, at 314. 

310. U.S. DEPT. OF STATE, “Egypt: Country Reports on Human Rights Practices” 

(2004); U.S. DEPT. OF STATE, “Syria: Country Reports on Human Rights 

Practices” (2004). 

311. Huq, supra n. 308, at 27. 

312. Id. 

313. UNCAT, supra n.50, loc. cit.. 

98


314. Huq, supra n. 308, at 27. 

315. Convention Relating to the Status of Refugees, supra n.279, art. 33. 

316. Id., art. 33, at 1,2. 

317. Sattherthwaite, supra n.267, at 20-21. 

318. Soering, supra n.86, at 86. 


320. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) 

321. The same argument is made in Pyle, supra n.19, at 263. 

322. Álvarez-Machain, supra n.126, at 665. 

323. Supra, n.247. 

324. The detainees were not, per se, exercising this right for themselves, but rather, 

friends and relatives exercised it on their behalf under the doctrine of “next 

friend” relative to habeas corpus, see Marguiles, supra n.18. Maher Arar, a 

Canadian national of Syrian extraction, who was sent to Syria under the 

“extraordinary rendition” program, later, after his release, sued several U.S. 

government officials, Arar v. Aschroft, 414 F.Supp.2d. 250, which was later 

dismissed on “national security grounds.” 

325. Supra, nn.112,113. 

Notes to CONCLUSION, Whither extradition in a war on terror? (p. 62) 

326. Huq, supra n.308. 

327. Clarke et al, supra n.90, at 260. 

328. Id., at 276. 

329. Huq, supra n.308, at 30. 

330. Described in Landriscina, supra n.295. 


332. Huq, supra n.308, at 25. 

333. Id., at 32. 




337. Memorandum, supra n.235, loc. cit. 

Notes to APPENDIX A, Narrative of Khaled El-Masri (p. 66) 

338. Partially excerpted from HARPER’S MAGAZINE, February 2006, at 12-24. 

99


100

Constructing transjurisdictional criminal justice in a - Hartwick College

Create successful ePaper yourself

Delete template?

Save as template?