When Due Process Bends: Is Male Captus, Bene Detentus Still Justifiable in Modern Justice of Grave Offences?
Authors
Abstract
The doctrine of male captus, bene detentus translated as “wrongly captured, lawfully detained” raises legal questions among legal scholar and practitioners about the balance between administration of justice and individual rights. Though controversial, it has been upheld in various jurisdictions to allow prosecution despite irregular or unlawful arrest, so long as fair trial standards are met. Courts in AlvarezMachain (U.S.) and Eichmann (Israel) endorsed this approach, while the UK’s decision in Bennett rejected it on rule of law grounds. International tribunals have also engaged the doctrine. The ICTY in Nikolić and the ICTR in Ntakirutimana and Barayagwiza allowed trials to proceed despite questionable transfers, emphasizing the fairness of proceedings over the legality of apprehension. The ICC, by contrast, operates under the Rome Statute and places greater emphasis on lawful surrender and state cooperation, though it has tolerated minor procedural irregularities, as in Ongwen’s case. Given Rwanda’s persistent challenges in extraditing genocide suspects and addressing cross-border crimes, this article argues for a cautious, rights-based reinforcement of male captus, bene detentus through judicial decisions. Such a move could strengthen Rwanda’s capacity to hold fugitives accountable while aligning with international practice. However, robust safeguards must be in place to prevent abuse and protect human rights. Properly constrained, the doctrine could serve justice without compromising legal integrity.
Table of Contents
- 1. INTRODUCTION
- 2. HISTORICAL DEVELOPMENT OF THE DOCTRINE OF MALE CAPTUS, BENE DETENTUS
- 2.1. Arguments Supporting Male Captus, Bene Detentus
- 3. JURISPRUDENTIAL ASPECT OF THE DOCTRINE OF MALE CAPTUS, BENE DETENTUS
- 3.1. USA
- 3.2. UNITED KINGDOM
- 3.3. ISRAEL
- 3.4. SOUTH AFRICA
- 4. INTERNATIONAL CRIMINAL TRIBUNALS AND COURT
- 4.1. The International Criminal Tribunals
- 4.2. The International Criminal Court (ICC)
- 5. BRIDGING LAW AND JUSTICE: THE RATIONALE FOR APPLYING THE DOCTRINE IN RWANDA
- 6. CONCLUSION AND SUMMARY OF FINDINGS