WRONGFUL CAPTURE, PROPER DETENTION CHALLENGING THE DOCTRINE OF MALE CAPTUS,BENE DETENTUS IN INTERNATIONAL LAW

Roland Glenn T. Tuazon (JD'11)
 

ABSTRACT

International law commentators have accorded Male Captus, Bene Detentus ["MCBD"] with doctrinal, or arguably, customary status. Therefore, despite the glaring absence of any treaty or convention that expressly allows States to validly detain and prosecute those forcibly abducted and rendered from another State's territory without the latter's consent, States have flaunted the imprimatur to do so. MCBD, translated to "wrongly captured, properly detained," has been widely accepted in International law. The acceptance of MCBD as doctrinal is problematic. There has been a "spiral of silence" as to practices contrary to MCBD — thus, in order to establish consistency in State practice, it has been easy to frame domestic decisions from various States to simply highlight those that uphold MCBD. Commentators have silenced dissenting State practices, artificially establishing consistency. States have also acceded to MCBD not because of any perceived legal obligation, but in due deference to their respective executive branches. Due to this "hands-off' approach by some judiciaries, they have allowed practices constituting MCBD to stand not because these are valid, but because they refuse to impinge on the executive's prerogative. Moreover, one must also consider the special circumstances attending the cases where courts have applied MCBD, which belie any attempt to extrapolate a general rule that would apply to any situation.

A proposed six-step framework addresses the resulting legal lacuna from the rejection of MCBD. One: The framework will only apply for international crimes committed anywhere in the world, or non-international crimes committed in a different territorial jurisdiction from the apprehending State. For the latter, the apprehending State must possess prescriptive jurisdiction over the act. Two: If the apprehending State violated an existing extradition treaty with the host state, the latter may demand restitution under the Articles on State Responsibility. Three: The three actors empowered to protest an illegal apprehension are the host State, a State entitled to exercise diplomatic protection over the apprehended individual, and the apprehended individual him or herself, contrary to what both Ker and Eichmann posit. Four: One must distinguish between extraterritorial apprehensions and torture or CIDT: torture has attained jus cogens and erga omnes status; while extraterritorial apprehensions are subject to derogation provisions under the ICCPR, in situations where the life of a nation is threatened. Torture, in exceptional circumstances like the ticking time bomb scenario, however, may be justified ex post facto. Five: The court determines whether there are exigent circumstances. Should the court deem that there are no exigent circumstances, and law enforcers committed infringing acts, it must divest itself of jurisdiction. When there are exigent circumstances, if the infringing acts "shock the conscience," then the court must divest itself as well of jurisdiction; if they exceed necessity but do not shock the conscience, the court maintains jurisdiction, without prejudice to liabilities imposed If the acts done by the law enforcers are proportionate to need, then the court may maintain jurisdiction. Six: Finally, the framework allows the court to motu propio apply the framework during the trial itself, when facts evincing infirm acts by the law enforcers during the apprehension become apparent, even without prior protest.