e torture and murder of a United States drug enforcement agent. OAS, Permanent Council, Legal Opinion on the Decision of the Supreme Court of the United States of America, 4 Crim. L.F. 119, 125 (1993).
Traditionally, it was not a violation of customary international law for a country to assert jurisdiction over a criminal defendant who had been wrongfully abducted by the agents of that country from another country. The traditional Roman law principle of male captus, bene detentus ("improperly captured, properly detained") allowed a country to assert criminal jurisdiction over a defendant who had been taken from a foreign country without is permission. See, Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952). Although adopted by almost all states in the international community, this principle defeats the purpose of the other principle prohibiting unpermitted arrest in a foreign country. Because of the contradiction between the two principles, it has been widely suggested by many commentators that male captus, bene detentus has outlived any usefulness it may ever have enjoyed. See Bassiouni, Unlawful Seizures of Persons by States as Alternatives to Extradition, in International Terrorism and Political Crimes 343, 356-57 (1975).
It has been suggested that there is an exception to this principle prohibiting state-sponsored kidnapping. This argument says that under Article 51 of the United Nations Charter, a nation may exercise a "defensive use of force" against another nation in order to protect itself. Under this argument, a nation may exercise jurisdiction over a criminal defendant forcibly abducted from a foreign country in order to protect itself; the basis for such an exercise of jurisdiction is the protective principle, which has been universally recognized as providing a basis for the exercise of subject-matter jurisdiction over crimes committed abroad. The problem with this theory is that it ...