Academic journal article
By Burr, Sherri L.
Denver Journal of International Law and Policy , Vol. 29, No. 2
Throughout human history, people have committed atrocities against each other. Numerous instances of genocide, slavery, and wholesale annihilation have been committed on several continents. The recent incidents in East Timor, Kosovo, Rwanda, and Sierra Leone are, unfortunately, continuations of the theme of abomination. Many scholars have addressed the moral and legal ramifications of military intervention on humanitarian grounds in these and similar cases. (1)
This article concerns the moral conceptions of justice and whether there should be an international legal right to kidnap individuals accused of gross human rights violations, and whether they should be brought before national and international judicial forums. My interest in this topic grew initially from teaching the case of Dr. Humberto Alvarez Machain. Dr. Alvarez Machain, a Mexican citizen, was kidnapped from his medical office in Guadalajara, Mexico, at the behest of United States Drug Enforcement Agents (DEA) in 1990. (2) For a promised reward of $50,000, Mexican kidnappers flew him to the U.S.-Mexico border where the DEA took him into custody. (3) The United States never submitted a request to the Mexican government to extradite Dr. Alvarez Machain. (4) To extradite him would have required an official transfer from the Mexican to the U.S. government. Instead, the U.S. Government opted to kidnap him.
Dr. Alvarez Machain appealed his capture to the United States Supreme Court on grounds that he had been brought to this country in violation of the US-Mexico Extradition Treaty, (5) and thus the District Court lacked jurisdiction over his person. Kenneth Starr, the Bush Administration's Solicitor General at the time, argued before the Supreme Court that the federal government had the right to kidnap foreigners and prosecute them in the United States for crimes committed abroad. (6) Mr. Starr contended that the extradition treaty between the United States and Mexico is a "tool" that does not limit the Government's freedom to use other means to pursue "narco-trafficking." (7)
The Supreme Court, in a decision written by Chief Justice Rehnquist, held that Alvarez Machain's capture did not deprive the U.S. courts of jurisdiction because the US-Mexico extradition treaty was silent on the issue of kidnapping. (8) Since the treaty did not forbid kidnapping, it was permitted, Rehnquist maintained.
The outcome seemed shocking at the time, (9) yet the theory that international law permits what it does not forbid was also postulated in the SS Lotus case. (10) In the SS Lotus case, France sued Turkey before the Permanent Court of International Justice after Turkey established jurisdiction over Lieutenant Demons, a French citizen, and captain of a boat that collided with a Turkish Steamer on the high seas, resulting in the death of several Turkish citizens. (11) France contended that in order for Turkish courts to have jurisdiction over Demons, they must present a jurisdictional principal recognized by international law in favor of Turkey. The court rejected this theory and affirmed the conviction of Lt. Demons of manslaughter. (12)
II. THE STRUGGLE OVER PINOCHET
Another example of the use of kidnapping individuals accused of evil acts is the case involving General Augusto Pinochet. Pinochet was under house arrest in London for 16 months awaiting extradition to Spain on charges of genocide, torture, kidnapping and murder in connection with the disappearance of 3,197 people in the years after he seized power in a 1973 coup. (13) Spain's initial warrant for Pinochet's arrest was declared defective because: no alleged offense was committed in Spain, Pinochet was not a Spanish citizen, and the UK had no jurisdiction over Pinochet. (14) Spain amended its complaint to allege that Pinochet murdered Spanish citizens in Chile, and committed torture and hostage-taking, both universal crimes triable in Britain, specifically under the Criminal Justice Act of 1988 and the Hostage Taking Act of 1982. …