Aruba Case Raises Issues of Sovereignty, International Law

The investigation of Natalee Holloway's (search) disappearance continues apace in Aruba. Aruban and Dutch authorities appear to be tracking down every possible lead and investigating every possible site that might be relevant to locating her.

Despite early criticisms of that investigation, it appears that local authorities are doing a capable job of determining where and how Holloway disappeared, and now, U.S. authorities, in the form of a search team from Texas, have been invited to participate. And with that, the issues of international law and sovereignty become even more pronounced.

Aruba falls under the jurisdiction of the Kingdom of the Netherlands, and has its own governor, in much the same way Hong Kong did before it reverted to China in 1997. It is almost entirely regulated by Dutch law, and its full autonomy was achieved only in 1986, though by agreement the Netherlands is still responsible for Aruba's foreign affairs and its defense. It has virtually no legal system of its own, so it's at least theoretically possible that the individuals arrested in connection with Holloway's disappearance will be flown to the Netherlands and tried in a Dutch court.

In the days following Holloway's disappearance, many in the United States wondered why the FBI was not leading the investigation, even though Aruba is part of a foreign, sovereign land. No authorities other than Aruban police have any investigative or arrest power on the island. Dutch authorities are involved only because they have been invited to take part in the investigation.

Suppose the FBI had flown to the island and located the individuals who might be responsible for Holloway's disappearance. Suppose the FBI possessed enough information to make what would be a legal arrest, as the U.S. formulates it. Because the arrested suspect would have to be tried in a Dutch court, there is no guarantee that the arrest would pass legal muster in the Netherlands. It's conceivable that it might even violate the defendant's rights in such a way as to mandate his release.

There are certain circumstances under which a person who has murdered a U.S. national in a foreign country can be arrested by U.S. authorities anywhere in the world and tried for the murder, but the murder must be related to an act of terrorism. Even then, to assure that the arrest is legal, U.S. agents frequently bring the suspect to U.S. soil — a “transborder abduction (search)” that can confer U.S. jurisdiction over the suspect — and arrest him here.

In the early 1990s, Mexican nationals in Mexico kidnapped a Mexican wanted for the murder of a DEA agent (the murder occurred in Mexico). The Mexican defendant, Humberto Alvarez-Machain (search), was flown to El Paso, Texas, and arrested there by DEA agents. He then stood trial for murder in a U.S. court.

After Alvarez-Machain was acquitted, he sued the United States. (This prompted some to observe that the rights of foreign nationals to sue the U.S. are far more expansive than the rights of the U.S. to arrest foreign nationals abroad.)

Regarding the far less esoteric Holloway case, it has been a principle of U.S. law since 1824 that a state's law enforcement agents are prevented from exercising their functions in the territory of another state without the latter's consent. So while it might have been legal under Dutch law for the FBI to fly to Aruba the day after Holloway's disappearance and begin an investigation, it probably would not have been authorized under U.S. law.

There are indications that Dutch law, at least as it concerns the detention and questioning of suspects in criminal cases, is unexpectedly more robust than U.S. law. Joran van der Sloot, who in recent days looks to be the chief suspect in Holloway's disappearance, has been held for an extensive period of time for questioning and was not permitted to see his father, though he had requested it. It's possible, however unlikely, that van der Sloot remained and spoke with police voluntarily, though the turning down of a request to see his father indicates against it.

In the United States, police frequently succeed in detaining uncharged suspects who are legally not in custody and therefore legally free to leave. However, the legal status of being "in custody" triggers a suspects' Fourth, Fifth and Sixth Amendment rights, and in the U.S., the longer an uncharged suspect is with police, the greater the presumption that he is in custody and that his Fourth, Fifth, and Sixth Amendment protections are triggered. It's possible that a six-hour stint in a police station is not custodial, but that an hour-long visit is, depending on what occurs there.

In the United States, the average suspect would by now be deemed to have been in custody, which would implicate his constitutional rights. As a general matter, in the United States, people must be charged or released within 24 hours of being taken into custody, and must have the charges read before a judge or magistrate (with the defendant present) within 24 hours of that.

In the U.S., in all non-terrorist cases, days spent incommunicado with police are always deemed custodial. Were the Aruba defendants in U.S. custody, they would either already have seen a judge or would have been released. In fact, this would almost certainly have occurred within the first 48 hours.

Whatever the outcome of law enforcement's involvement with van der Sloot, it's clear that Aruban and Dutch authorities have been relentlessly focused on finding Holloway. The sheer number of sites combed by police, the speed of the initial arrests, and now the extended custody of the most recent set of suspects, all indicate that a small island, unaccustomed to murder, is doing its level best to resolve the matter with the resources it has, and when those resources are lacking, calling in more.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon-to-be-published "The New Immigration Law and Practice."

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