As expounded today, however, universal jurisdiction would permit the courts of any state to prosecute and punish the leadership of any other state for violations of international humanitarian norms. In this regard, the rule's proponents should keep in mind that any independent state, not just "right thinking" Western ones, would be entitled to prosecute such "violations" on a universal jurisdiction approach. Most recently, the courts of Yugoslavia tried (in absentia) and convicted the NATO leaders responsible for the spring 1999 air campaign against Serbia for crimes against humanity. (President Clinton was sentenced to twenty years' imprisonment.) This proceeding was obviously absurd. Yet, legally, it was just as "legitimate" as Spain's attempt to prosecute Pinochet.
AS AN ALTERNATIVE to expansive universal jurisdiction and the ICC, the United States should promote a renewed commitment to the prosecution of "international" crimes in national judicial systems. Under the traditional rules of international law, some national court system almost always has jurisdiction, either on the basis of territoriality (the country where the crime took place) or nationality (the citizenship of the accused), over crimes against the law of nations. For crimes committed beyond the borders of any state, the traditional universal jurisdiction principle would be available.
This solution, often derided by international humanitarian activists who are impatient with the whole notion of national sovereignty, shows real promise. Although states are often reluctant to prosecute their own nationals, concerted international pressure has produced results. For example, the Cambodian government is moving, albeit slowly, toward establishing a domestic tribunal to investigate and prosecute the crimes of the Khmer Rouge, and Libya was ultimately forced to surrender the individuals responsible for the terrorist attack on Pan Am Flight 103 over Lockerbie, Scotland. The Lockerbie case also demonstrates the potential flexibility of the "national" solution: the court that is trying the Lockerbie defendants has been convened in the Netherlands, but will apply the law of Scotland--the territory where the crime took place. Finally, in cases where the territory upon which the criminal acts took place has been militarily occupied (as in Kosovo), the Nuremberg model (courts established by the occupyin g or administering power) may be used.
At the same time, to make U.S. opposition to the ICC and to the expansion of universal jurisdiction more credible, the next president should seriously reconsider several attempts to subject foreign nationals to U.S. law. The enforcement of U.S. antitrust laws against foreign corporations is deeply resented in Europe and elsewhere. In addition, over the past decade the federal courts have increasingly entertained lawsuits, brought by U.S. citizens and foreign nations, arising out of acts taken in foreign countries by government officials and private citizens. These suits, brought under the 1789 Alien Tort Claims Act (which was originally passed to enable Americans to seek redress for piracy), have become vehicles for judicial examination of the internal policies of foreign states. Even the Washington Post argued, in an August 12 editorial, that this
carries real dangers. The court system is designed to resolve disputes between people over whom the courts are actually capable of exercising authority. Here they are being used instead to convey moral messages and purvey essentially advisory opinions on questions of international human rights and foreign relations--not the courts' traditional province.
Along these same lines, Congress should temper its exuberance in allowing U.S. courts to consider claims brought by American nationals regarding terrorist acts overseas. Over the last few years, Congress has overturned the traditional principles of sovereign immunity, amending the Foreign Sovereign Immunities Act to permit civil suits against certain foreign countries (Iran, Syria, Libya, Iraq, North Korea, Sudan and Cuba) designated by the State Department as sponsors of terrorism against U.S. citizens. Under traditional legal principles, such foreign countries may be considered to have committed an act of war against the United States, entitling us to strike back at them or to bring a lawsuit at the International Court of Justice. It is not at all clear that converting an act of war into a subject for a civil suit, which can be brought by private litigants, is either good law or good foreign policy. A U.S. strategy of prompt reprisals against countries sponsoring terrorism--fully permissible under the trad itional law of nations--should offer much more effective means of both deterring and punishing terrorism.
The restoration of the law of nations to its rightful place is an essential task for the next president. Accomplishing this goal will require a clear vision, sound public diplomacy, and a serious commitment to the rule of law in our international practices. Its realization would bolster American statecraft, enhance our global leadership position, and create a secure and prosperous international environment for the United States in the twenty-first century.
David B. Rivkin, Jr., and Lee A. Casey are partners in the law firm of Baker & Hostetler LLP. Both have practiced before the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia.Essay Types: Essay