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The concept of nonextradition for military offenses is Supreme Court said, in Blackmer v. United States, 92
illustrated in an extradition case decided in 1977. 89 d An "With respect to such an exercise of authority, there is no
Irish national in the United States armed forces was con- question of international law, but solely of the purport of
victed by a general court-martial in Vietnam for several the municipal law which establishes the duties of the
offenses, including murder and absence without leave. He citizen in relation to his government." 93 Hall writes:
escaped from confinement and was subsequently irn- Its laws travel with them [its nationals] wherever they go, both in
prisoned for a different offense in Canada. At the request places within and without the jurisdiction of other powers. A state can-
of the Secretary of the Army, the Secretary of State for- not enforce its laws within the territory of another state, but its subjects
remain under an obligation not to disregard them, their social relations
mally asked for the serviceman's extradition to the United
for all purposes as within its territory are determined by them, and it
States for the murder offense only. Canada granted the preserves the power of compelling observance by punishment if a per-
extradition request and the serviceman was returned. son who has broken them returns within its jurisdiction. 94
e. Methods Other Than Extradition. Where extradition 6. States exercise their jurisdiction to prescribe rules
is not possible because of the lack of a treaty or for some governing the conduct of their nationals in various
other reason, or where extradition is not feasible because degrees. In the United States, a number of statutory pro-
of the time and expense involved, states may resort to visions, in addition to that under which Blackmer was
other methods of surrendering or recovering fugitives. If convicted, specifically apply to the conduct or income of
the fugitive is not a national of the asylum state, it may United States nationals abroad. 95 The U.S. does not,
deport him as an undesirable alien or exclude him (i.e.,
however, use extensively its prescriptive jurisdiction
deny him permission to enter the country). In either case, based on nationality. Generally, the use of this jurisdic-
the fugitive may be turned over directly to the state that tional theory is the exception, rather than the rule, in
desired to prosecute him, or may be sent to a third state common law states. Civil law countries usually make
from which his extradition is possible. The United States much more use of this concept, sometimes going so far as
and Mexico and the United States and Canada have fre- to provide that all, or nearly all, offenses committed by
quently resorted to exclusion or deportation in order to their nationals abroad are punishable if these citizens are
deliver fugitives to each other without going through the
ever found in the national territory. Some examples
process of extradition. 89 e
States may also acquire custody of fugitives by kidnapping follow.
or through the failure of police officials to observe the (1) In the United Kingdom, statutes provide for the
procedures governing extradition, deportation, or exclu- punishment of not only treason, but also homicide,
sion. In these situations, the United States courts have bigamy, perjury, and other crimes, when committed
assumed jurisdiction over the fugitive in spite of the illegal abroad by a British subject. 96 India has provided that its
manner in which he may have been brought into the criminal law applies to Indian nationals everywhere, no
country. 90 These methods of acquiring custody do,
nevertheless, constitute violations of municipal or inter- 92. 284 U.S. 421, (1932).
93. Id. at 437. The statute involved in Blackmer v. United States is
national law. 91
now as 28 U.S.C.A. 5 1783 (1964), and is incorporated by
4-7. Jurisdition Based on Nationality. a. A state has ju-
reference into Fed.R.Civ.P. 45(e)(2) and Fed.R.Crim.P. 17(e) (2). It
risdiction to prescribe rules governing the conduct of its provides in relevant part that a United States court may order the is-
nationals outside its territory. As a result, it may use its suance of a subpoena requiring the appearance as a witness of a "na-
enforcement jurisdiction to give effect to such rules by ac- tional or resident of the United States who is in a foreign country" if
tions taken against its nationals if they are found in the ter- such testimony is "necessary in the interest of justice." For another
case upholding jurisdiction over nationals abroad, see United States v.
ritory or, if they are not, by action taken against their
Bowman, 260 U.S. 94 (1922) (Prosecution for acts committed abroad to
property in the territory. Upholding a judgment for con- defraud the United States): "[Tlhe three defendants who were found in
tempt against an American citizen who refused to return New York were citizens of the United States and were certainly subject
from France to testifl when ordered to do so, the to such laws as it might pass to protect itself and its property. Clearly it is
no offense to the dignity or right of sovereignty of Brazil to hold them
89 *. See DAJA-IA 1977/1064, dated 31 August 1977, Subject: for this crime against the government to which they owe allegiance."
Extradition of Servicemen from Canada; DAJA-IA 1977/1084, dated 260 U.S. at 102.
20 December 1977, Subject: Extradition Case. 94. W. Hall, International Law 56-57 (8th ed. 1924).
89 e. See Evans, Acquisition of Custody over the International 95. See 18 U.S.C.A. 8 2381 (1964), proscribing treason by anyone
Fugitive Offender-Alternatives to Extradition: A Survey of United "owing allegiance to the United States within the United States or
States Practice, [I9641 Brit. Y.B. Int7 L. 77. elsewhere"; 18 U.S.C. 5 953 (1964), punishing unauthorized attempts
90. SeeU.S. v. Insull, 8 F. Supp. 310 (1934); Ex parte Lopez, 6 F. by "any citizen of the United States, wherever he may be," to influence
Supp. 342 (1934); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. a foreign government in its relations with the United States; Internal
421 (1886); Evans, supra at 89-93. Revenue Code 8 1, imposing an income tax on "all citizens of the
91. The most celebrated case of illegally acquired jurisdiction is that United States, wherever resident"; and 50 U.S.C.A. app. 5 435 (1964),
of the Israeli kidnapping of Adolf Eichmann from Argentina. For the in- requiring "every male citizen of the United States," inter alia, to
ternational issues raised by this act, see W. Friedmann, supra, note 32 at register for military service.
495-97. A bibliography on the Eichmann trial is included in G. Mueller 96. 10 Halsbuty's Laws of England 322-24 (Simonds ed. 1955).
& E. Wise, International Criminal Law, 370-71 (1965). See also, 2 D. O'Connell, supra, note 55 at 898-99.