Male captus bene detentus?

The infamous abduction of Adolf Eichmann in Argentina on 11 May 1960 and the recent kidnapping of suspected terrorist Abu Omar in Italy on 17 June 2003 show that the use of irregular means was and is still considered an option in apprehending suspects, especially when the interests are (considered to be) strong. This study’s central question is how the ICC currently copes with the dilemmas that a male captus case can give rise to and how this approach is to be assessed.
Auteur(s):
Christophe Paulussen
Reeks:
Human Rights Research Series
Volume:
41
boek | verschenen | 1e editie
september 2010 | xvii + 1195 blz.

Paperback
€ 129,-


ISBN 9789400001008


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Special mention from Jury of the Max van der Stoel Human Rights Award 2011

The infamous abduction of Adolf Eichmann in Argentina on 11 May 1960 and the recent kidnapping of suspected terrorist Abu Omar in Italy on 17 June 2003 show that the use of irregular means was and is still considered an option in apprehending suspects, especially when the interests are (considered to be) strong.

Since the International Criminal Court (ICC) also has to deal with suspects of serious crimes, one wonders what the position of this Court, arguably the most important institution in the field of international criminal justice, is towards suspects who claim that the way they were brought into the Court’s jurisdiction was irregular (male captus).

Basically, does it opt – taking into account, of course, that much will depend on the exact circumstances of the case – for effectiveness (in the sense of achieving prosecutions and convictions) and will it continue to exercise its jurisdiction notwithstanding the male captus (male captus bene detentus) or is it of the opinion that values such as fairness, human rights and the integrity of its proceedings demand that in the case of a male captus, the exercise of jurisdiction must be refused (male captus male detentus/ex iniuria ius non oritur)?

This study’s central question is how the ICC currently copes with the dilemmas that a male captus case can give rise to and how this approach is to be assessed. For this purpose, the author creates two evaluative frameworks; an external one (to find out how similar or different the ICC male captus position is to the position of other courts that have dealt with this problem before) and an internal one (to find out how the ICC position is to be assessed in relation to its own law).

Besides answering this specific central question, this study more generally combines two fascinating subjects which have not previously been put together in one book: the ICC and the much-debated male captus bene detentus maxim. Moreover, it makes a contribution to the male captus discussion itself, to the discussion as to how ICC judges and judges in general can best deal with alleged irregularities in the pre-trial phase of their case, to the discussion on how proceedings can be achieved which are considered both effective and fair.


About the book
‘True to the aims of the study, Christophe Paulussen provides a comprehensive assessment of the subject which will prove a useful tool for scholars and judges alike. The author’s authoritative command of the area is evinced by his ability to draw from an extensive list of material in support of arguments and theories. Although Paulussen was unable to provide a definitive answer to the central question, the book represents an important contribution to this field of literature and in the words of the author the real value of this study will be found […] in its elaborate and more timeless corpus, in its effort to position the complex male captus topic into the equally intricate ICC context. […] it is a highly recommended text.’
Helen McDermott in 2011 Criminal Law Forum

From the Jury report for the Max van der Stoel Human Rights Award 2011
‘This book is very well-documented and well-written and the author has performed a thorough analysis of the many legal and moral problems that surround the arrest and extradition of suspects of international crimes to the ICC. Paulussen certainly deserves high praise for the in-depth quality of his work […] [T]he jury […]is convinced that this PhD thesis will make a great reference book that will prove to be of high value to academics and legal practitioners alike.’

Hoofdstukken

Table of Contents (p. 0)

PART 1. INTRODUCTION

Chapter I. General introduction (p. 1)

PART 2. ANALYSING MALE CAPTUS BENE DETENTUS

Chapter II. The origin of the maxim (p. 17)

Chapter III. Dissecting the maxim: concepts, delimitations and definitions (p. 29)

PART 3. MALE CAPTUS BENE DETENTUS IN PRACTICE

Chapter IV. Introduction (p. 179)

Chapter V. Cases between States (p. 185)

Chapter VI. Cases between States and international(ised) criminal tribunals (p. 347)

Chapter VII. Creating an external evaluative framework: principles distilled from Part 3 (p. 611)

PART 4. THE INTERNATIONAL CRIMINAL COURT

Chapter VIII. General information on the arrest and surrender regime (p. 673)

Chapter IX. Creating an internal evaluative framework: Article 21 of the ICC Statute (p. 755)

Chapter X. Finding the current ICC position on the male captus issue (p. 839)

PART 5. CONCLUSION

Chapter XI. Answering the central question, recommendations and epilogue (p. 963)

Summary (p. 1017)

Samenvatting (Dutch summary) (p. 1053)

Bibliography (p. 1093)

Table of selected cases (p. 1141)

Index (p. 1173)

Curriculum vitae (p. 1189)

School of Human Rights Research Series (p. 1191)

Over de reeks

Human Rights Research Series

The Human Rights Research Series’ central research theme is the nature and meaning of international standards in the field of human rights, their application and promotion in the national legal order, their interplay with national standards, and the international supervision of such application. Anyone directly involved in the definition, study, implementation, monitoring, or enforcement of human rights will find this series an indispensable reference tool.

The Series is published together with the world famous Netherlands Network for Human Rights Research (formerly School of Human Rights Research), a joint effort by human rights researchers in the Netherlands.

Editorial Board: Prof. dr. Antoine Buyse (Utrecht University), Prof. dr. Fons Coomans (Maastricht University), Prof. dr. Yvonne Donders (Chair - University of Amsterdam), Dr. Antenor Hallo de Wolf (University of Groningen), Prof. dr. Kristin Henrard (Erasmus University Rotterdam), Prof. dr. Nicola Jägers (Tilburg University), Prof. Titia Loenen (Leiden University) Prof. dr. Janne Nijman (T.M.C. Asser Instituut) and Prof. dr. Brigit Toebes (University of Groningen).

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