Citation

McDermott H. J. Int. Crim. Justice 2016; 14(1): 145-169.

Copyright

(Copyright © 2016, Oxford University Press)

DOI

10.1093/jicj/mqv080

PMID

unavailable

Abstract

In the pursuit of criminal justice, securing the presence of the accused before an adjudicatory body can, at times, be challenging. This may be particularly so in relation to international courts. Should a state refuse to comply with a transfer request or be unable to capture the accused, alternative methods may be used, with the result that the suspect is brought before a court by irregular forms of apprehension. Irregular apprehension, which can take the form of physical kidnapping or luring of the suspect before the court, is likely to arise as an issue before the International Criminal Court. This article identifies the international rules and principles triggered by these practices, and examines the effect the associated violations can have on the trial of international criminal suspects. The hypothesis will be tested that the gravity of international crime renders the raising of unlawful arrest by an accused a frivolous exercise by surveying existing jurisprudence interpreting the rights of the individual that are at play and state sovereignty in the context of the abuse of process doctrine. Finally, this article explores whether raising irregular apprehension before an international court is doomed from the start or whether there are other avenues open that may offer a lesser, but more realistic, remedy, such as compensation or a reduction in sentence.

Language: en