"Avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws." (1)
Adolf Eichmann's evasion of arrest and prosecution after World War II until he was located, captured, and brought to Israel for prosecution by Mossad agents is one of the most famous and earliest examples of state-sanctioned kidnapping. (2) Israel ignored the proper channels for obtaining custody of Eichmann and violated the sovereignty of Argentina by sneaking into the country, overpowering Eichmann, and dragging him to Israel to stand trial for his crimes against the Jewish people. (3) Sixty years later the U.S. Supreme Court sanctioned this kind of transborder abduction and found it a proper method for obtaining jurisdiction over a defendant located abroad. (4) In United States v. Alvarez-Machain, (5) DEA agents abducted Alvarez-Machain and brought him to the United States to stand trial for the torture and murder of a DEA agent. (6) Alvarez-Machain challenged jurisdiction, asserting that he was illegally before the California court, but the Supreme Court held that absent explicit language in the extradition treaty between Mexico and the United States withdrawing jurisdiction resulting from transborder kidnapping, circumventing an extradition treaty does not itself violate the treaty. (7)
The Supreme Court's decision in Alvarez-Machain set a dangerous precedent for circumventing extradition law, which could be exploited when the United States seeks to prosecute a criminal physically present in a state with an unfavorable extradition treaty. (8) This risk is most prominent for states that assert an exception to the duty to extradite for capital offenses in their extradition treaties. (9) This death penalty exception is written into many of the extradition treaties to which the United States is party. (10) In the context of the United Nations Convention Against Torture as codified by the United States, the Alvarez-Machain precedent would allow the United States to prosecute torturers domestically and to subject them to the death penalty upon conviction, despite any death penalty exception that would otherwise prevail. (11) The International Criminal Court (ICC) and the domestic law of most of the rest of the countries of the world prohibit the death penalty, so domestic prosecution under 18 U.S.C [section] 2340, in conjunction with the Alvar ez-Machain precedent, would be the only way to implement the death penalty in torture prosecutions. (12)
This Note will argue that the potential for severe exploitation of this precedent in the context of 18 U.S.C. [section] 2340 warrants protecting against it, and will suggest two methods for doing so. Part II of this Note will address the history of extradition law and the death penalty exception, the Alvarez-Machain case, and the ramifications of U.S. codification of the Convention Against Torture. Part III of this Note will describe the reaction to Alvarez-Machain, and its effect on extradition law. Part IV will identify how the Alvarez-Machain and 18 U.S.C. [section] 2340 precedents create a mechanism for circumventing the ICC in order to punish torture defendants with the death penalty, and will suggest two methods for preventing this circumvention.
A. Extradition Law Requirements and Procedures
This note concerns extradition to the United States, which is the formal surrender of a person by a foreign state of refuge to a requesting state for prosecution or punishment. (13) Because extradition is a function of treaty, bilateral or multilateral, it requires compliance with several specific procedures and doctrines. (14) The United States relies almost exclusively on bilateral extradition treaties that enumerate, inter alia, extraditable offenses, exceptions to the duty to extradite, and the required protocol for extradition. (15) Because a valid extradition request carries with it an affirmative duty to either extradite or prosecute the individual domestically, several criteria precede invocation of an extradition treaty. …