part of a terrorist operation.
163
Nevertheless, there may be circumstances where an action taken by a
state as a consequence of hostile hijacking or terrorist operations would
be justifiable in the context of self-defence.
164
Illegal apprehension of suspects and the exercise of jurisdiction
165
It would appear that unlawful apprehension of a suspect by state agents
acting in the territory of another state is not a bar to the exercise of ju-
risdiction. Such apprehension would, of course, constitute a breach of
international law and the norm of non-intervention involving state re-
sponsibility,
166
unless the circumstances were such that the right of self-
defence could be pleaded.
167
It could be argued that the seizure, being a
violation of international law, would only be compounded by permitting
the abducting state to exercise jurisdiction,
168
but international practice
on the whole demonstrates otherwise.
169
In most cases a distinction is
clearly drawn between the apprehension and jurisdiction to prosecute
and one should also distinguish situations where the apprehension has
163
See
The Times
, 5 February 1986, p. 1.
164
See e.g. as to the 1976 Entebbe incident, below, chapter 20, p. 1143.
165
See e.g. F. Morgenstern, ‘Jurisdiction in Seizures Effected in Violation of International
Law’, 29 BYIL, 1952, p. 256; P. O’Higgins, ‘Unlawful Seizure and Irregular Extradition’,
36 BYIL, 1960, p. 279; A. Lowenfeld, ‘US Law Enforcement Abroad: The Constitution
and International Law’, 83 AJIL, 1989, p. 880, Lowenfeld, ‘US Law Enforcement Abroad:
The Constitution and International Law, Continued’, 84 AJIL, 1990, p. 444, Lowenfeld,
‘Kidnapping by Government Order: A Follow-Up’, 84 AJIL, 1990, p. 712, and Lowenfeld,
‘Still More on Kidnapping’, 85 AJIL, 1991, p. 655. See also F. A. Mann, ‘Reflections on the
Prosecution of Persons Abducted in Breach of International Law’ in
International Law at
a Time of Perplexity
(ed. Y. Dinstein), Dordrecht, 1989, p. 407, and Higgins,
Problems and
Process
, p. 69.
166
See e.g. article 2(4) of the United Nations Charter and
Nicaragua
v.
US
, ICJ Reports, 1986,
p. 110; 76 ILR, p. 349. See further below, chapter 20.
167
Note, in particular, the view of the Legal Adviser of the US Department of State to
the effect that ‘[w]hile international law therefore permits extraterritorial “arrests” in
situations which permit a valid claim of self-defence, decisions about any extraterritorial
arrest entail grave potential implications for US personnel, for the United States, and for
our relations with other states’, 84 AJIL, 1990, pp. 725, 727.
168
See Mann, ‘Jurisdiction’, p. 415.
169
See e.g. the
Eichmann
case, 36 ILR, pp. 5 and 277.
j u r i s d i c t i o n
681
taken place on or over the high seas from cases where it has occurred with-
out consent on the territory of another state. A further distinction that
has been made relates to situations where the abduction has taken place
from a state with which the apprehending state has an extradition treaty
which governs the conditions under which movement of alleged offenders
occurs between the two. A final distinction may be drawn as between cases
depending upon the type of offences with which the offender is charged,
so that the problem of the apprehension interfering with the prosecu-
tion may be seen as less crucial in cases where recognised international
crimes are alleged.
170
Of course, any such apprehension would constitute a
violation of the human rights of the person concerned, but whether that
would impact upon the exercise of jurisdiction as such is the key issue
here.
Variations in approaches are evident between states. The US Court
of Appeals in
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