Snatch-and-Grab Ops: Justifying Extraterritorial Abduction
Gregory S. McNeal
Pepperdine University School of Law; Pepperdine University - School of Public Policy
Brian J. Field
Case Western Reserve University - Institute for Global Security Law and Policy
November 17, 2011
Transnational Law & Contemporary Problems, Vol. 16, No. 2, 2007
Case Legal Studies Research Paper No. 07-03
The United States government is actively engaged in a search for individuals believed to have killed American citizens and destroyed American property. As most of these individuals live openly in foreign states hostile to the United States, achieving extradition often proves impossible. Despite repeated diplomatic efforts to secure the transfer of these terrorists to America, many continue to operate in foreign states under the protection of the host country's continued denial of the terrorist's presence within their borders.
The problem of bringing these individuals to justice is further complicated by the fact that the United States is rarely able to pinpoint their precise location. Terrorists typically reside in host countries where it is nearly impossible to find them amongst the citizens. Thus, the broad question is what tools are available to the U.S. government if it was to actually find a terrorist's location? Considering the inherent difficulty in finding that individual again, and the strong likelihood that leaving the individual to his own devices will yield further attacks on the United States, what ought the U.S. President do to preserve the peace and safety of American citizens? Specifically, are the options of the U.S. military restricted by international law trends?
This Article addresses these questions by specifically discussing whether a terror suspect who was forcibly abducted may be prosecuted by the United States despite possible territorial violations under the doctrine of male captus, bene detentus. The Article directly addresses whether territorial sovereignty can trump an effort to capture a terrorist who is planning future attacks.
The article concludes that it will benefit the international community to codify exactly what will warrant extraterritorial abductions and specifically how such actions may be used. Given the likelihood that the United States and other countries will increase their use of extraterritorial kidnapping, the international community should act proactively to address the issue. Until the international community does codify the specific circumstances under which extraterritorial kidnapping is permissible, the United States is justified in exercising extraterritorial abductions under universal jurisdiction, passive personality, and finally, efficient breach.
Number of Pages in PDF File: 44
Keywords: Extraterritorial abduction, abductions, abduction, kidnap, capture, male captus bene detentus, Alvarez-Machain, counterterrorism, national security, terrorism, universal jurisdiction, passive personality, efficient breach, detention, detain, al qaeda, enemy combatant, military commission, military
JEL Classification: K14, K33
Date posted: February 5, 2007 ; Last revised: November 18, 2011