Illegal Extra-Territorial Abductions and Reconceptualising Mala Captus, Bene Detentus

Abstract

The abduction of British-Nigerian citizen, Mr Nnamdi Kanu from Nairobi, Kenya for trial in Abuja, Nigeria provides the context for this paper which interrogates the legality and propriety of municipal courts assuming and exercising trial jurisdiction over victims of illegal extraterritorial abduction. The previous part of this paper,1 considered the principle of territorial inviolability in international law, and the proposition that every State, to the exclusion of every other state, exercises dominion over persons on its territory. It scrutinised the status of forceful extra-territorial abductions in international law, including abductions by state and non-state agents, and when abductions by non-state agents could be attributed to the state. It examined the traditional Anglo-American doctrine of mala captus bene detentus, which stands for the proposal that courts may assert in personam jurisdiction without inquiring into the means by which the presence of the defendant was secured. This current paper considered the more nuanced view of the mala captus doctrine and examined the way and manner in which states are gradually moving away from the principle in its absolute sense. It established that while international tribunals accept the mala captus doctrine, however, if defendant’s attendance was attained though violation of his human rights, international tribunals would stay the proceedings particularly, if their own staff were complicit in the violations. Within the context of whether an abducting country should exercise jurisdiction over the abductee, this paper dealt with the cardinal duty of the abducting country to terminate its breach of international law and make restitution by returning the abductee to the country from which he was taken. The paper iterated the principle that unless there is reason not to exercise jurisdiction, all municipal courts, including Nigerian courts are required to exercise jurisdiction to try and determine every case which comes before them initiated by due process of law. The paper considered legal developments within and outside the commonwealth in respect of courts assuming jurisdiction over victims of illegal extraterritorial abduction, and established that current jurisprudence allows courts to assume jurisdiction and stay the proceedings. The paper also established that despite the reticence of US courts in staying proceedings, if egregious or unconscionable violation of human rights are established, they would stay proceedings. In conclusion, the paper suggested the existence of sufficient precedent for the Nigerian court to stay proceedings in the current matter of Mr Kanu.