Judgment in the Trial of Adolf Eichmann 

[Part 5]

41. It is an established rule of law that a person standing trial for an offence against the laws of a state may not oppose his being tried by reason of the illegality of his arrest, or of the means whereby he was brought to the area of jurisdiction of the state.  The courts in England, the United States and Israel have ruled continuously that the circumstances of the arrest and the mode of bringing of the accused into the area of the state have no relevance to his trial, and they consistently refused in all cases to enter into an examination of these circumstances. 

The principle was first established in Ex parte Susanna Scott (1829) 9 B. & C. 446; 109 E.R. 106. The applicant was charged in England with the misdemeanour of perjury.  A British police officer, in executing the warrant of arrest, specifically addressed to him by Lord Chief Justice Tenterden, arrested the applicant in Belgium.  The applicant appealed to the British Ambassador in Belgium, who refused to intervene, and the police officer brought her to England, where an order was issued for her imprisonment pending her trial.  She then filed an application for her release by way of abeas corpus.  Lord Chief Justice Tenterden dismissed the application, saying: 

"I consider the present question to be the same as if the party were now brought into Court under the warrant granted for her apprehension... The question, therefore, is this, whether if a person charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here.  I thought, and still continue to think, that we cannot inquire into them.  If the act complained of were done against the law of a foreign country, that country might have vindicated its own law.  If it gave her a right of action, she may sue upon it... For these reasons, I am of opinion that the rule must be discharged." 

In his summing up to the jury in the case R. v. Nelson and Brand (1867), the Lord Chief Justice, Sir Alexander Cockburn, said (as quoted in O'Higgins, "Unlawful Seizure and Irregular Extradition," 36 British Yearbook of International Law, 1960, p. 285): 

"Suppose a man were to commit a crime in this country, say murder, and that before he can be apprehended he escapes into some country with which we have not got an extradition treaty, so that we could not get him delivered up to us by the authorities, and suppose that an English police officer were to pursue the malefactor, and finding him in some place where he could lay his hands upon him, and from which he could easily reach the sea, got him on board a ship and brought him before a magistrate, the magistrate could not refuse to commit him.  If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice, and that by some illegal means he had been brought back.  It would be said, `Nay, you are here; you are charged with having committed a crime, and you must stand your trial.  We leave you to settle with the party who may have done an illegal act in bringing you into this position; settle that with him'." 

In Ex parte Elliott, 1 All E.R. 373, the court heard an application for habeas corpus of a British soldier who deserted his unit in 1946, was arrested in 1948 in Belgium by two British military officers escorted by two Belgian police officers, was transferred by the British military authorities to England, and was there held in custody pending his trial for desertion.  Counsel for applicant pleaded inter alia that the British authorities in Belgium had no power to arrest the applicant, and that he was arrested contrary to Belgian law.  Lord Goddard dismissed the application, saying in his judgment (p. 376): 

"The point with regard to the arrest in Belgium is entirely false.  If a person is arrested abroad and he is brought before a court in this country charged with an offence which that court has jurisdiction to hear, it is no answer for him to say, he being then in lawful custody in this country: `I was arrested contrary to the laws of the State of A or the State of B where I was actually arrested.'  He is in custody before the court which has jurisdiction to try him.  What is it suggested that the court can do?  The court cannot dismiss the charge at once without its being heard.  He is charged with an offence against English law, the law applicable to the case." 

The Lord Chief Justice concluded his pronouncement on this issue by saying (p. 377): 

"We have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here.  The circumstances in which the applicant may have been arrested in Belgium are no concern of this court." 

42. The principle is also acknowledged in Palestine judicial precedent.  In the application for habeas corpus by Isaac Katz (on behalf of Chaim Novik against the General Officer Commanding the Polish Forces in Palestine, High Court of Justice 71/44 (Palestine Law Reports, Vol. 11, p. 355), Advocate Olshan (as he then was) submitted that Novik, who was tried for desertion by a Polish military tribunal, was brought before that exterritorial tribunal without any decision by a civil court of Palestine, as is required under the Allied Forces Act, was directly surrendered to the Polish forces and was tried.  The Chief Justice dismissed the application on the ground that (p. 358) "Provided the Court Martial is properly constituted, and provided the accused, who is before it, is subject to its jurisdiction, the circumstances in which he was arrested and arrived before the Court are not relevant to the question of the jurisdiction of the Court." 

In the appeal of Mahmoud Hassan Yassin, known as Afuna v. Attorney General, Criminal Appeal 14/42 (PLR, Vol. 9, p. 63), the Supreme Court heard the case of a "fugitive criminal" who was arrested in Syria by a Palestine Police Sergeant, was forcibly returned to the country, and was sentenced to death by the Court of Criminal Assizes.  Counsel for appellant pleaded that by reason of the non-enforcement of the extradition agreement obtaining between the two countries, his client's arrest in Syria and forcible transfer to Palestine were unlawful and the Jerusalem court had no jurisdiction to convict him.  The Court of Appeal dismissed the contention on the ground that: 

"In our opinion, the law is correctly stated in volume 4 of Moore's Digest of International Law, at page 311.  The authority cited is an American (State) case which, of course, is not binding on this Court.  Nevertheless we adopt the language used, which is as follows: `Where a fugitive is brought back by kidnapping, or by other irregular means, and not under an extradition treaty, he cannot, although an extradition treaty exists between the two countries, set up in answer to the indictment the unlawful manner in which he was brought within the jurisdiction of the court.  It belongs exclusively to the government from whose territory he was wrongfully taken to complain of the violation of its rights.' 

"Accepting that view of the law, we think that there is no substance in the extradition point." 

The precedent quoted in Moore (ibid.) and referred to in that judgment as "an American (State) case" is no other than Ker v. Illinois, 119, U.S. 436, the leading case in the United States Supreme Court on this issue.  At all events, it must be stressed that the American ruling, as summed up by Moore, was in this case expressly "adopted" by the Supreme Court of Palestine. 

43. Before we proceed, in the wake of this "adoption," to American judicial precedent, we would dwell briefly on the import of the judgments we have hitherto surveyed from the point of view of international law.  The question which presents itself from this point of view is - whether the principle of Ex parte Scott and Ex parte Elliott that the accused may not oppose his being tried by reason of the illegality of his arrest or of the means whereby he was brought to the area of jurisdiction, is limited to the illegality of those means in the sense of the municipal law of the country in question, or is general and also applies to the use of means which are a violation of international law, namely a violation of the sovereignty of a foreign state.  The recently published article of O'Higgins quoted above is devoted to the analysis of these judgments, especially the English judgments, from this point of view.  The learned author's conclusion is as follows (p. 319): 

A British court will probably exercise jurisdiction over a criminal brought before it as the result of a violation of international law.  There is, however, no precedent which binds any British court to adopt this view." 

This careful evaluation is based on the learned author's view that most English precedents do not, in effect, deal with cases of violation of international law, and that although in Emperor v. Vinayak Damodar Savarkar (1910), I.L.R. 35 Bombay 225 (228) the principle of Ex parte Scott and R.V. Nelson and Brand, was applied in effect to a case where the accused pleaded violation of international law (ibid., p. 286), Lord Reading had expressed a reservation on this issue in R. v. Garrett (1917), 86 L.J. (K.B.) 894, 898. 

44. American judicial precedent on this issue is more unequivocal (and this is apparently the reason why the Supreme Court of Palestine, in Criminal Appeal 14/42, (Afuna v. A.G.) preferred to base themselves on this established rule as summed up in Moore's book, rather than on Ex parte Scott (see p. 66 of that judgment).  American judgments expressly establish that it makes no difference whether or not the measures whereby the accused was brought into the area of jurisdiction were unlawful in the sense of municipal law or of international law: The uniform rule is that the court will not enter into an examination of this question which is not relevant to the trial of the accused.  The ratio of this ruling is that the right to plead violation of the sovereignty of a state is the exclusive right of that state.  Only the sovereign state may raise, or waive, that contention, and the accused has no right to represent the rights of that state.  That principle found expression also in English judgments, and indeed American judgments view Ex parte Scott as one of their own precedents. 

That principle was well explained by Travers, author of the well-known work Droit Penal International, in his article: "Des arrestations au cas de venue involontaire sur le territoire," 13 Revue de Droit International Prive et de Droit Penal International (1917), 627 et seq. 

The learned author, who supports that doctrine as established in the United States, says (p. 643): 

"Mais - et c'est un point que nous tenons a mettre en relief - si l'Etat, dont les agents ont ete fautifs, peut, par courtoisie internationale et pour eviter toute tension de rapports, agir d'office, c'est-a-dire ordonner l'elargissement immediat et exprimer des regrets; si l'Etat, dont le territoire a ete viole, peut, de son co66te, adresser toutes protestations et exiger toutes satisfactions, les personnes arre66tees n'ont, par contre, aucun droit de reclamation. 

"Elles ne peuvent se faire un titre de l'irregularite commise et profiter de sa perpetration pour obtenir la cessation de leur detention. 

"La raison en est double. 

"D'abord, l'individu arrete n'a aucune qualite pour parler au nom de la souverainete etrangere; il n'en est pas le representant.  

"En second lieu, l'Etat etranger qui, maitre de sa souverainete, peut faire telles concessions qu'il juge convenables; est libre de ratifier tous actes irreguliers.  Son silence constitue, tout au moins, une presomption de ratification." 

Considerable importance attaches to this pronouncement for the present case, in view of the settlement of the dispute between Argentina and Israel.  Whatever we may think of the general legal problem, now that the Governments of Argentina and Israel have issued their joint communique of 3 August 1960 to the effect that both governments have decided to view as liquidated the "incident" whereby the sovereignty of Argentina was violated, the Accused in this case can certainly retain no right to base himself on the "violated sovereignty" of the State of Argentina.  The indictment in this case was  presented after Argentina had forgiven Israel for that violation of her sovereignty, so that there no longer subsisted any violation of international law.  In these circumstances, the Accused cannot presume to be speaking on behalf of Argentina and cannot claim rights which that sovereign state has waived.  As Travers said in summing up his article (p. 646): 

“Les Etats etant seuls juges des exigences de leur droit de souverainete, le vice, existant en ce cas, ne peut etre invoque que par le gouvernement lese.  Il ne saurait appartenir a un malfaiteur quelconque de parler au nom de la souverainete violee." 

45. The first judgment that spoke of a (possible) violation of the sovereignty of another state and laid down an express ruling on this matter was the American judgment (1835) in State v. Brewster 7, Vt. 118, given by the Supreme Court of the State of Vermont.  The respondent, a foreigner, who was found guilty of theft by one of the courts of that state, pleaded before the Supreme Court of the State that he was forcibly and against his will carried from Canada, the country of his domicile, by citizens of Vermont and brought to that state to be placed on trial, and that in these circumstances the court had no jurisdiction to try him.  The Supreme Court dismissed the respondent's contention on the following grounds: 

"The respondent, although a foreigner, is, if guilty, equally subject to our jurisdiction with our own citizens.  His escape into Canada did not purge the offence, nor oust our jurisdiction.  Being retaken and brought in fact within our jurisdiction, it is not for us to inquire by what means, or in what precise manner, he may have been brought within the reach of justice.  It becomes then immaterial, whether the prisoner was brought out of Canada with the assent of the authorities of that country or not.  If there were anything improper in the transaction, it was not that the prisoner was entitled to protection on his own account.  The illegality, if any, consists in a violation of the sovereignty of an independent nation.  If that nation complain, it is a matter which concerns the political relations of the two countries, and in that aspect is a subject not within the constitutional powers of this court.  Whether the authorities of Canada would have surrendered the prisoners, upon due application, is a question of national comity, resting in discretion.  The power to do so will not be questioned.  If they have the power to surrender him, they may permit him to be taken.  If they waive the invasion of their sovereignty, it is not for the respondent to object, inasmuch as for this offence, he is, by the law of nations, amenable to our laws." 

Here was established for the first time the principle which guided American judgments, namely that a basic distinction must be drawn between the rights of the accused and the rights of the sovereign state from which the accused was kidnapped or carried forcibly.  "The illegality (if any) is in the violation of the sovereignty of an independent nation" who may "complain" of or "waive the violation."  If it complains, that would be a matter at issue between two sovereign states, which is not within the jurisdiction of the court.  If it does not complain, it may be assumed that it has waived the invasion of its sovereignty.  It is true that the reference to the possibility that the Canadian authorities "waived the invasion of their sovereignty" refers, in the context of the judgment, to a waiver at the time of the act, namely to the possible consent of the Canadian authorities to the apprehension of the respondent.  But the principle has valid application to any waiver by a state of the invasion of its sovereignty, whether by abstaining from lodging a complaint, or by the abandoning of such a complaint, or by the amicable settlement of the dispute between the two countries.  At all events, the accused has no right to oppose his trial, since in accordance with international law he is subject to the laws of the state which he violated.  In that brief judgment of 1835 are embodied all the foundations requisite for the resolution of the question at issue in the present case. 

46. On 6 December 1886 the United States Supreme Court gave "twin" judgments, namely in United States v. Rauscher (1886), 119 U.S. 407 (30 L. Ed. 425) and Ker v. Illinois (1886), 119 U.S. 436 (30 L. Ed. 421), which laid down basic rulings for cases of "fugitive offenders."  It is hardly necessary to add that, as regards the legal issue under discussion, the same rule applies to a "foreign offender" as to a "fugitive offender" (see Chandler v. U.S. (1949), 171 F 2d 921, Gillars v. U.S. (1950), 182 F 2d 962). 

In U.S. v. Rauscher, the Court heard the case of a fugitive offender who was extradited to the United States by Great Britain under an extradition agreement of 1842 between the two countries.  The judgment laid down the principle that (p. 432) - 

"The weight of authority and of sound principle are in favor of the proposition that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings." 

This principle, known as the "specialty principle" in the extradition laws of most countries (cf. section 19 of the English Extradition Law of 1870, section 24 of the Extradition Law 5714-1954), limits the jurisdiction of the court to such offence or such offences as have been the subject of the extradition in the specific case, and thereby vests personal immunity in the accused not to be tried (nor to be extradited to a third state) for any other offence committed prior to his extradition.  The reason for this principle has been explained as follows in U.S. v. Rauscher (p. 432): 

"As this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited and of bad faith to the country which permitted his extradition.  No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them." 

On the other hand, in Ker v. Illinois the court held that the principle of immunity does not apply to the case of a fugitive offender (a foreign offender, see supra) who has not been extradited to a country, but has arrived in the area of its jurisdiction by any other way, even by an unlawful way, such as kidnapping from a foreign country.  The applicant in Ker v. Illinois pleaded that he was kidnapped by an agent of the United States in a sovereign country (Peru), was forcibly brought to the State of Illinois, was tried for theft and found guilty of embezzlement.  The Supreme Court of Illinois rejected his contention against the jurisdiction of the court that convicted him, and the United States Supreme Court refused to interfere with that decision, saying (p. 424): 

"The question of how far his forcible seizure in another country, and transfer by violence, force or fraud to this country, could be made available to resist trial in the state court, for the offense now charged upon him is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws, or treaties, of the United States guarantee him any protection.  There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense, and presents no valid objection to this trial in such a court.  Among the authorities which support the proposition are the following: Ex parte Scott, 9 Barn & C. 446 (1829);... State v. Brewster, 7 Vt. 118 (1835)..." 

Counsel for applicant sought to base himself indirectly on the extradition treaty between the United States and Peru (which had not been given effect to in the case) by pleading that any extradition treaty between two countries limits the powers of the two countries with respect to any fugitive offender who found asylum in either of these countries, by giving the offender a positive right, valid in both countries, to remain in the land of his asylum, unless duly and lawfully extradited to the country demanding his extradition pursuant to the extant treaty.  The United States Supreme Court squarely dismissed that contention when it said (p. 424): 

"There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind.  It will not be for a moment contended that the Government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. 

"The right of the Government of Peru voluntarily to give a party in Ker's condition an asylum in that country is quite a different thing from the right in him to demand and insist upon security in such an asylum. 

"In the case of United States v. Rauscher, just decided, and considered with this, the effect of extradition proceedings under a treaty was very fully considered; and it was there held that, when a party was duly surrendered, by proper proceedings, under the Treaty of 1842 with Great Britain, he came to this country clothed with the protection which the nature of such proceedings and the true construction of the treaty gave him.  One of the rights with which he was thus clothed, both in regard to himself and in good faith to the country which had sent him here, was that he should be tried for no other offense than the one for which he was delivered under the extradition proceedings... But it is quite a different case when the plaintiff in error comes to this country in the manner in which he was brought here, clothed with no rights which a proceeding under the treaty could have given him, and no duty which this country owes to Peru or to him under the treaty." 

These principles have been applied by the courts of the United States in a continuous and consistent line of precedents until today.  See, the following, among others: Mahon v. Justice, 127 U.S. 700 (32 L.E. 283); Lascelles v. Georgia (1892), 148 U.S. 537 (37 L.E. 549); Pettibone v. Nichols (1906), 203 U.S. 192 (51 L.E. 148); Frisbie v. Collins (1952), 342 U.S. 519 (96 L.E. 591); United States v. Sobell (1957), 244 F. 2d 520 (524). 

47. An analysis of these judgments reveals that the doctrine is not confined to the infringement of municipal laws, as distinct from international law, but the principle is general and comprehensive, as was summed up in Moore (ibid.) and adopted in Criminal Appeal 14/42 supra, or as summed up in 35 Corpus Juris Secundum para. 47 (p. 374): 

"Even though a person has been brought into the country by force or stratagem, and without reference to an extradition treaty, he is within the jurisdiction of domestic courts so as to be liable to trial on a regular indictment and imprisonment under a valid judgment and sentence." 

See also Hackworth, Digest of International Law (Department of State Publication), (1942) IV para. 345, pp. 224-228; Hyde, International Law (1947), II 1032: 

"Whatever be the right of the State from which he has been withdrawn, the prisoner is not entitled to his release from custody merely by reason of the irregular process by which he was brought into the State of prosecution." 

In United States v. Unverzagt (1924), 299 Fed. 1015, (1017) the accused pleaded that he was abducted from British Columbia by American officials.  The District Court dismissed his application for habeas corpus, stating (p. 1017): 

"The defendant states he is a citizen of the United States.  He is now before the courts of the United States.  Canada is not making any application to this court in his behalf or its behalf because of any unlawful acts charged, and if Canada or British Columbia desire to protest, the question undoubtedly is a political matter, which must be conducted through diplomatic channels.  The defendant cannot before the court invoke the right of asylum in British Columbia." 

In Ex parte Lopez (1934) 6 F.Supp. 342, the court heard the application for habeas corpus by a man who was abducted from Mexico to the United States and there charged with an offence under United States laws.  The Government of Mexico interfered in the judicial proceedings on the ground that Mexico's sovereignty was violated through the abduction, and asked that the applicant be surrendered to them with a view to their holding him in custody in Mexico pending the hearing of the application for extradition (if any) under the extradition treaty between the two countries.  The District Court, basing itself on Ker. v. Illinois and subsequent precedents, dismissed the applicant's application and also, relying on State v. Brewster (supra), rejected Mexico's intervention, saying: 

"The intervention of the government of Mexico raises serious questions, involving the claimed violation of its sovereignty, which may well be presented to the Executive Department of the United States, but of which this court has no jurisdiction. State v. Brewster, 7 Vt. 121." 

See also United States v. Insull (1934) 8 Federal Suppl. 310 (313). 

48. The Anglo-Saxon doctrine was accepted by continental jurists as well.  We have already referred above to the views of Travers.  See also Dahm, Voelkerrecht (1958), who says, basing himself on Ex parte Elliott, Ex parte Lopez, U.S. v. Insull, and Afuna v. A.G. (Criminal 14/42), that "even if... the accused arrived in the area of jurisdiction by irregular means such as kidnapping or mistake, it is not he, the accused, but only the country wronged which can invoke irregularities of this type, and this does not concern his trial" (p. 280, note 26). 

So far as we have been able to examine legal literature, we found only one conflicting precedent, namely, In re Jolis (Annual Digest 1933-34, Case No. 77, a judgment given by a French Criminal Court of First Instance (tribunal correctionnel) of 1933.  The accused, a Belgian citizen, visited a cafe in a French village and, following upon his visit, cash was missing from the till.  The owner of the cafe suspected the accused and called in two village constables, and together with them pursued the accused until they apprehended him across the border.  The Belgian government lodged an official protest with the French government against the arrest which was effected in Belgium by French policemen and demanded the return of the accused. The Court of Avesnes decided to release the accused on the ground that:  

“The arrest, effected by French officers on foreign territory, could have no legal effect whatsoever, and was completely null and void.  This nullity being of a public nature, the judge must take judicial notice thereof.  The information leading to the proceedings of arrest...and all that followed thereon must therefore be annulled." 

49. Criticism of British and American judgments from the point of view of international law was levelled by          Dickinson, "Jurisdiction Following Seizure or Arrest in Violation of International Law, 28 American Journal of International Law (1934), 231, and Morgenstern, "Jurisdiction in Seizures Effected in Violation of International Law," 29 British Yearbook of International Law (1952), 265. 

See also Lauterpacht in 64 Law Quarterly Review (1948), p. 100, note (14).  It is not for us to enter into this controversy between scholars of international law, but we would draw attention to two points which are important to the present case.  (1) The critics admit that established judicial precedent is as summed up above; (2) To the case before us that controversy is immaterial. 

In his above-mentioned article on the principles involved, Professor Dickinson proposes that the ruling in Ker v. Illinois be set aside, and to apply the ruling in U.S. v. Rauscher also to cases of seizure in violation of international law, and states his view (p. 239) that 

"In principle, in the international cases, there should be no jurisdiction to prosecute one who has been arrested abroad in violation of treaty or international law." 

In conformity with that view, the learned author proposes the following provision (p. 653, our emphasis) in the Harvard Research for which he is responsible, as part of the "Draft Convention on Jurisdiction with Respect to Crime," Article 16.  Apprehension in Violation of International Law. 

"In exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or international convention without first obtaining the consent of the State or States whose rights have been violated by such measures." 

In his observations on that article the author says (p.624): 

"...It is frankly conceded that the present article is in part of the nature of legislation,"

and adds (p. 628): 

"In Great Britain, the United States, and perhaps elsewhere, the national law is not in accord with this article in cases in which a person has been brought within the State or a place subject to its authority by recourse to measures in violation of customary international law." 

He proposes this article de lege ferenda to ensure "an additional and highly desirable sanction for international law" (p. 624). 

It appears from the learned author's exposition that the proposed "sanction" of the limitation on the jurisdictional power of the state forms no part of positive customary international law.  What is more, it is worthy of note that, also under the proposed Article 16, the jurisdictional power would not be limited by the right or for the benefit of the accused, but only by the right and for the benefit of the injured state; for after receiving the consent of the state, "the rights of which have been violated by the aboveÞmentioned measures," the state within whose limits the accused is found will also under this proposal have jurisdiction to try the accused.  The "sanction" is thus designed to lead to direct negotiations between the two countries concerned at the proper international level, to the end of making good the violation of the sovereignty of the one, and the regularization of the jurisdiction of the other, by mutual consent - and the results of the negotiations between the two countries are binding upon the accused.  Indeed, it is stated in the explanatory notes (p. 624, our emphasis): 

"And if, peradventure, the custody of a fugitive has been obtained by unlawful methods, the present article indicates an appropriate procedure for correcting what has been done and removing the bar to prosecution and punishment." 

This proposal in the Harvard Research proves, in our view, that even he who subjects the rule in force to criticism and proposes changes in judicial decisions or by legislation, does not negate the basic view that, in substance, the violation by one country of the sovereignty of the other is susceptible of redress as between the two countries and cannot vest in the accused rights of his own.

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