Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-008
Last-Modified: 1999/05/27

45. The first judgment that spoke of a (possible) violation
of the sovereignty of another state and laid down an express
ruling on this matter was the American judgment (1835) in
State v. Brewster 7, Vt. 118, given by the Supreme Court of
the State of Vermont.  The respondent, a foreigner, who was
found guilty of theft by one of the courts of that state,
pleaded before the Supreme Court of the State that he was
forcibly and against his will carried from Canada, the
country of his domicile, by citizens of Vermont and brought
to that state to be placed on trial, and that in these
circumstances the court had no jurisdiction to try him.  The
Supreme Court dismissed the respondent's contention on the
following grounds:

     "The respondent, although a foreigner, is, if guilty,
     equally subject to our jurisdiction with our own
     citizens.  His escape into Canada did not purge the
     offence, nor oust our jurisdiction.  Being retaken and
     brought in fact within our jurisdiction, it is not for
     us to inquire by what means, or in what precise manner,
     he may have been brought within the reach of justice.
     It becomes then immaterial, whether the prisoner was
     brought out of Canada with the assent of the
     authorities of that country or not.  If there were
     anything improper in the transaction, it was not that
     the prisoner was entitled to protection on his own
     account.  The illegality, if any, consists in a
     violation of the sovereignty of an independent nation.
     If that nation complain, it is a matter which concerns
     the political relations of the two countries, and in
     that aspect is a subject not within the constitutional
     powers of this court.  Whether the authorities of
     Canada would have surrendered the prisoners, upon due
     application, is a question of national comity, resting
     in discretion.  The power to do so will not be
     questioned.  If they have the power to surrender him,
     they may permit him to be taken.  If they waive the
     invasion of their sovereignty, it is not for the
     respondent to object, inasmuch as for this offence, he
     is, by the law of nations, amenable to our laws."

Here was established for the first time the principle which
guided American judgments, namely that a basic distinction
must be drawn between the rights of the accused and the
rights of the sovereign state from which the accused was
kidnapped or carried forcibly.  "The illegality (if any) is
in the violation of the sovereignty of an independent
nation" who may "complain" of or "waive the violation."  If
it complains, that would be a matter at issue between two
sovereign states, which is not within the jurisdiction of
the court.  If it does not complain, it may be assumed that
it has waived the invasion of its sovereignty.  It is true
that the reference to the possibility that the Canadian
authorities "waived the invasion of their sovereignty"
refers, in the context of the judgment, to a waiver at the
time of the act, namely to the possible consent of the
Canadian authorities to the apprehension of the respondent.
But the principle has valid application to any waiver by a
state of the invasion of its sovereignty, whether by
abstaining from lodging a complaint, or by the abandoning of
such a complaint, or by the amicable settlement of the
dispute between the two countries.  At all events, the
accused has no right to oppose his trial, since in
accordance with international law he is subject to the laws
of the state which he violated.  In that brief judgment of
1835 are embodied all the foundations requisite for the
resolution of the question at issue in the present case.

46. On 6 December 1886 the United States Supreme Court gave
"twin" judgments, namely in United States v. Rauscher
(1886), 119 U.S. 407 (30 L. Ed. 425) and Ker v. Illinois
(1886), 119 U.S. 436 (30 L. Ed. 421), which laid down basic
rulings for cases of "fugitive offenders."  It is hardly
necessary to add that, as regards the legal issue under
discussion, the same rule applies to a "foreign offender" as
to a "fugitive offender" (see Chandler v. U.S. (1949), 171 F
2d 921, Gillars v. U.S. (1950), 182 F 2d 962).
In U.S. v. Rauscher, the Court heard the case of a fugitive
offender who was extradited to the United States by Great
Britain under an extradition agreement of 1842 between the
two countries.  The judgment laid down the principle that
(p. 432) -

     "The weight of authority and of sound principle are in
     favor of the proposition that a person who has been
     brought within the jurisdiction of the court by virtue
     of proceedings under an extradition treaty can only be
     tried for one of the offenses described in that treaty,
     and for the offense with which he is charged in the
     proceedings for his extradition, until a reasonable
     time and opportunity have been given him, after his
     release or trial upon such charge, to return to the
     country from whose asylum he had been forcibly taken
     under those proceedings."

This principle, known as the "specialty principle" in the
extradition laws of most countries (cf. section 19 of the
English Extradition Law of 1870, section 24 of the
Extradition Law 5714-1954), limits the jurisdiction of the
court to such offence or such offences as have been the
subject of the extradition in the specific case, and thereby
vests personal immunity in the accused not to be tried (nor
to be extradited to a third state) for any other offence
committed prior to his extradition.  The reason for this
principle has been explained as follows in U.S. v. Rauscher
(p. 432):

     "As this right of transfer, the right to demand it, the
     obligation to grant it, the proceedings under which it
     takes place, all show that it is for a limited and
     defined purpose that the transfer is made, it is
     impossible to conceive of the exercise of jurisdiction
     in such a case for any other purpose than that
     mentioned in the treaty, and ascertained by the
     proceedings under which the party is extradited,
     without an implication of fraud upon the rights of the
     party extradited and of bad faith to the country which
     permitted his extradition.  No such view of solemn
     public treaties between the great nations of the earth
     can be sustained by a tribunal called upon to give
     judicial construction to them."

On the other hand, in Ker v. Illinois the court held that
the principle of immunity does not apply to the case of a
fugitive offender (a foreign offender, see supra) who has
not been extradited to a country, but has arrived in the
area of its jurisdiction by any other way, even by an
unlawful way, such as kidnapping from a foreign country.
The applicant in Ker v. Illinois pleaded that he was
kidnapped by an agent of the United States in a sovereign
country (Peru), was forcibly brought to the State of
Illinois, was tried for theft and found guilty of
embezzlement.  The Supreme Court of Illinois rejected his
contention against the jurisdiction of the court that
convicted him, and the United States Supreme Court refused
to interfere with that decision, saying (p. 424):

     "The question of how far his forcible seizure in
     another country, and transfer by violence, force or
     fraud to this country, could be made available to
     resist trial in the state court, for the offense now
     charged upon him is one which we do not feel called
     upon to decide, for in that transaction we do not see
     that the Constitution, or laws, or treaties, of the
     United States guarantee him any protection.  There are
     authorities of the highest respectability which hold
     that such forcible abduction is no sufficient reason
     why the party should not answer when brought within the
     jurisdiction of the court which has the right to try
     him for such an offense, and presents no valid
     objection to this trial in such a court.  Among the
     authorities which support the proposition are the
     following: Ex parte Scott, 9 Barn & C. 446 (1829);...
     State v. Brewster, 7 Vt. 118 (1835)..."

Counsel for applicant sought to base himself indirectly on
the extradition treaty between the United States and Peru
(which had not been given effect to in the case) by pleading
that any extradition treaty between two countries limits the
powers of the two countries with respect to any fugitive
offender who found asylum in either of these countries, by
giving the offender a positive right, valid in both
countries, to remain in the land of his asylum, unless duly
and lawfully extradited to the country demanding his
extradition pursuant to the extant treaty.  The United
States Supreme Court squarely dismissed that contention when
it said (p. 424):

     "There is no language in this treaty, or in any other
     treaty made by this country on the subject of
     extradition, of which we are aware, which says in terms
     that a party fleeing from the United States to escape
     punishment for crime becomes thereby entitled to an
     asylum in the country to which he has fled; indeed, the
     absurdity of such a proposition would at once prevent
     the making of a treaty of that kind.  It will not be
     for a moment contended that the Government of Peru
     could not have ordered Ker out of the country on his
     arrival, or at any period of his residence there.

     "The right of the Government of Peru voluntarily to
     give a party in Ker's condition an asylum in that
     country is quite a different thing from the right in
     him to demand and insist upon security in such an
     asylum.
     
     "In the case of United States v. Rauscher, just
     decided, and considered with this, the effect of
     extradition proceedings under a treaty was very fully
     considered; and it was there held that, when a party
     was duly surrendered, by proper proceedings, under the
     Treaty of 1842 with Great Britain, he came to this
     country clothed with the protection which the nature of
     such proceedings and the true construction of the
     treaty gave him.  One of the rights with which he was
     thus clothed, both in regard to himself and in good
     faith to the country which had sent him here, was that
     he should be tried for no other offense than the one
     for which he was delivered under the extradition
     proceedings... But it is quite a different case when
     the plaintiff in error comes to this country in the
     manner in which he was brought here, clothed with no
     rights which a proceeding under the treaty could have
     given him, and no duty which this country owes to Peru
     or to him under the treaty."

These principles have been applied by the courts of the
United States in a continuous and consistent line of
precedents until today.  See, the following, among others:
Mahon v. Justice, 127 U.S. 700 (32 L.E. 283); Lascelles v.
Georgia (1892), 148 U.S. 537 (37 L.E. 549); Pettibone v.
Nichols (1906), 203 U.S. 192 (51 L.E. 148); Frisbie v.
Collins (1952), 342 U.S. 519 (96 L.E. 591); United States v.
Sobell (1957), 244 F. 2d 520 (524).

47. An analysis of these judgments reveals that the doctrine
is not confined to the infringement of municipal laws, as
distinct from international law, but the principle is
general and comprehensive, as was summed up in Moore (ibid.)
and adopted in Criminal Appeal 14/42 supra, or as summed up
in 35 Corpus Juris Secundum para. 47 (p. 374):

     "Even though a person has been brought into the country
     by force or stratagem, and without reference to an
     extradition treaty, he is within the jurisdiction of
     domestic courts so as to be liable to trial on a
     regular indictment and imprisonment under a valid
     judgment and sentence."

See also Hackworth, Digest of International Law (Department
of State Publication), (1942) IV para. 345, pp. 224-228;
Hyde, International Law (1947), II 1032:

     "Whatever be the right of the State from which he has
     been withdrawn, the prisoner is not entitled to his
     release from custody merely by reason of the irregular
     process by which he was brought into the State of
     prosecution."

In United States v. Unverzagt (1924), 299 Fed. 1015, (1017)
the accused pleaded that he was abducted from British
Columbia by American officials.  The District Court
dismissed his application for habeas corpus, stating (p.
1017):

     "The defendant states he is a citizen of the United
     States.  He is now before the courts of the United
     States.  Canada is not making any application to this
     court in his behalf or its behalf because of any
     unlawful acts charged, and if Canada or British
     Columbia desire to protest, the question undoubtedly is
     a political matter, which must be conducted through
     diplomatic channels.  The defendant cannot before the
     court invoke the right of asylum in British Columbia."

In Ex parte Lopez (1934) 6 F.Supp. 342, the court heard the
application for habeas corpus by a man who was abducted from
Mexico to the United States and there charged with an
offence under United States laws.  The Government of Mexico
interfered in the judicial proceedings on the ground that
Mexico's sovereignty was violated through the abduction, and
asked that the applicant be surrendered to them with a view
to their holding him in custody in Mexico pending the
hearing of the application for extradition (if any) under
the extradition treaty between the two countries.  The
District Court, basing itself on Ker. v. Illinois and
subsequent precedents, dismissed the applicant's application
and also, relying on State v. Brewster (supra), rejected
Mexico's intervention, saying:

     "The intervention of the government of Mexico raises
     serious questions, involving the claimed violation of
     its sovereignty, which may well be presented to the
     Executive Department of the United States, but of which
     this court has no jurisdiction. State v. Brewster, 7
     Vt. 121."

See also United States v. Insull (1934) 8 Federal Suppl. 310
(313).

48. The Anglo-Saxon doctrine was accepted by continental
jurists as well.  We have already referred above to the
views of Travers.  See also Dahm, Voelkerrecht (1958), who
says, basing himself on Ex parte Elliott, Ex parte Lopez,
U.S. v. Insull, and Afuna v. A.G. (Criminal 14/42), that
"even if... the accused arrived in the area of jurisdiction
by irregular means such as kidnapping or mistake, it is not
he, the accused, but only the country wronged which can
invoke irregularities of this type, and this does not
concern his trial" (p. 280, note 26).

So far as we have been able to examine legal literature, we
found only one conflicting precedent, namely, In re Jolis
(Annual Digest 1933-34, Case No. 77, a judgment given by a
French Criminal Court of First Instance (tribunal
correctionnel) of 1933.  The accused, a Belgian citizen,
visited a cafe in a French village and, following upon his
visit, cash was missing from the till.  The owner of the
cafe suspected the accused and called in two village
constables, and together with them pursued the accused until
they apprehended him across the border.  The Belgian
government lodged an official protest with the French
government against the arrest which was effected in Belgium
by French policemen and demanded the return of the accused.
The Court of Avesnes decided to release the accused on the
ground that:

     "The arrest, effected by French officers on foreign
     territory, could have no legal effect whatsoever, and
     was completely null and void.  This nullity being of a
     public nature, the judge must take judicial notice
     thereof.  The information leading to the proceedings of
     arrest...and all that followed thereon must therefore
     be annulled."

49. Criticism of British and American judgments from the
point of view of international law was levelled by
Dickinson, "Jurisdiction Following Seizure or Arrest in
Violation of International Law, 28 American Journal of
International Law (1934), 231, and Morgenstern,
"Jurisdiction in Seizures Effected in Violation of
International Law," 29 British Yearbook of International Law
(1952), 265.

See also Lauterpacht in 64 Law Quarterly Review (1948), p.
100, note (14).  It is not for us to enter into this
controversy between scholars of international law, but we
would draw attention to two points which are important to
the present case.  (1) The critics admit that established
judicial precedent is as summed up above; (2) To the case
before us that controversy is immaterial.

In his above-mentioned article on the principles involved,
Professor Dickinson proposes that the ruling in Ker v.
Illinois be set aside, and to apply the ruling in U.S. v.
Rauscher also to cases of seizure in violation of
international law, and states his view (p. 239) that

     "In principle, in the international cases, there should
     be no jurisdiction to prosecute one who has been
     arrested abroad in violation of treaty or international
     law."

In conformity with that view, the learned author proposes
the following provision (p. 653, our emphasis) in the
Harvard Research for which he is responsible, as part of the
"Draft Convention on Jurisdiction with Respect to Crime,"
Article 16.  Apprehension in Violation of International Law.

     "In exercising jurisdiction under this Convention, no
     State shall prosecute or punish any person who has been
     brought within its territory or a place subject to its
     authority by recourse to measures in violation of
     international law or international convention without
     first obtaining the consent of the State or States
     whose rights have been violated by such measures."

In his observations on that article the author says (p.624):

     "...It is frankly conceded that the present article is
     in part of the nature of legislation,"
     and adds (p. 628):
     
     "In Great Britain, the United States, and perhaps
     elsewhere, the national law is not in accord with this
     article in cases in which a person has been brought
     within the State or a place subject to its authority by
     recourse to measures in violation of customary
     international law."

He proposes this article de lege ferenda to ensure "an
additional and highly desirable sanction for international
law" (p. 624).

It appears from the learned author's exposition that the
proposed "sanction" of the limitation on the jurisdictional
power of the state forms no part of positive customary
international law.  What is more, it is worthy of note that,
also under the proposed Article 16, the jurisdictional power
would not be limited by the right or for the benefit of the
accused, but only by the right and for the benefit of the
injured state; for after receiving the consent of the state,
"the rights of which have been violated by the
above_mentioned measures," the state within whose limits the
accused is found will also under this proposal have
jurisdiction to try the accused.  The "sanction" is thus
designed to lead to direct negotiations between the two
countries concerned at the proper international level, to
the end of making good the violation of the sovereignty of
the one, and the regularization of the jurisdiction of the
other, by mutual consent - and the results of the
negotiations between the two countries are binding upon the
accused.  Indeed, it is stated in the explanatory notes (p.
624, our emphasis):

     "And if, peradventure, the custody of a fugitive has
     been obtained by unlawful methods, the present article
     indicates an appropriate procedure for correcting what
     has been done and removing the bar to prosecution and
     punishment."

This proposal in the Harvard Research proves, in our view,
that even he who subjects the rule in force to criticism and
proposes changes in judicial decisions or by legislation,
does not negate the basic view that, in substance, the
violation by one country of the sovereignty of the other is
susceptible of redress as between the two countries and
cannot vest in the accused rights of his own.

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