GENOCIDE, DEATH AND ANXIETY
A JURISPRUDENTIAL/PSYCHIATRIC ANALYSIS
Louis Rene Beres
Nietzsche, in THE BIRTH OF TRAGEDY, launches a well-founded frontal assault on optimism. Rejecting the "Greek cheerfulness" that is associated with Plato's ideal of the dying Socrates, he understands both the essential primacy of individual death fears to human evil and the impossibility of canceling such fears through knowledge and reason. It is with this kind of understanding that we must now approach the overwhelming problem of genocide under international law.
Genocide, in all of its manifestations, is a crime under international law. This is the case whether one speaks of literal genocide (e.g. the Holocaust, Rwanda, or the Armenian tragedy), genocidal extermination without genocidal intent (e.g., Biafra, Bangladesh or Cambodia), or any other forms of "ethnocide," "politicide," or "ethnic cleansing." Yet, in all instances of genocide and genocide‑like crimes, which are more general than crimes against humanity, there is still significant divergence between the binding expectations of international law and actual compliance by states.
To remedy this divergence, a number of law enforcement measures have been proposed, ranging from expanded patterns of humanitarian intervention, extradition and use of domestic courts for adjudication of international proscriptions (indirect enforcement) to the creation of an international criminal court (direct enforcement}. In all of these measures, however, effectiveness is contingent upon the presumed imperatives of Realpolitik. It follows that before we can expect international law to inhibit the practice of genocide and genocide‑like crimes, we must first learn how to align the pertinent norms with actual state practice.
The fact that the Genocide Convention excludes liability when the victims are annihilated solely on political grounds has nothing to do with the effective problem of limiting mass murder by international law. Today, there exists a well‑established regime for the protection of all human rights. This regime, which includes international humanitarian law, is comprised of peremptory norms, rules that endow all human beings with a basic measure of dignity and that permit no derogation by states.
The Genocide Convention, however, represents the end of the notion of absolute sovereignty concerning non‑intervention in the internal affairs of a state when human rights are in grievous jeopardy. The right of the international community to prevent and suppress such conduct is well established in positive international law and in natural law.
The more relevant example stems from the Nuremberg Trials. The indictments of the Nuremberg Tribunal were cast in terms of existing positive law but the judgment of the Tribunal clearly reveals that the existence and validity of international law does not only depend upon its "positiveness" but also upon the higher law of humankind, natural law principles. The relevant words used by the Tribunal are: "So far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished". These words derive from the principle: nullum crimen sine poena (no crime without a punishment). This principle contradicts the central idea that underlies "positive jurisprudence" or law as command of a sovereign without a concomitant requirement that there can be no punishment without law. Thus the international crime of genocide as presently defined, and other genocide‑like crimes not yet embodied in a convention derive from the natural law that no state or power has the right to take the life, and for that matter any other basic human right, of a person or group of persons without a lawful process based on a just law. Thus at least two initial problems arise, namely how to define these crimes and how to enforce the prohibition (and implicitly, how to prevent the prohibited conduct). Probably among the most important deterring preventive and control mechanisms is humanitarian intervention, which because of its more particular public international law aspects will not be covered here. The following statement however succinctly captures the interest and spirit of that remedy. E. Borchard stated in 922:
Where a state under exceptional circumstances disregards certain rights of its own citizens, over whom presumably it has absolute sovereignty, the other states of the family of nations are authorized by international law to intervene on grounds of humanity. When the "human rights" are habitually violated, one or more states may intervene in the name of the society of nations and may take such measures as to substitute at least temporarily, if not permanently, its own sovereignty for that of the state thus controlled. Whatever the origin, therefore, of the rights of the individual, it seems assured that these essential rights rest upon the ultimate sanction of international law and will be protected, in last resort, by the most appropriate organ of the international community.
Another way of enforcing norms prohibiting genocide involves the use of courts, domestic and international. Under Article V of the Genocide Convention, signatory states are required to enact "the necessary legislation to give effect to" the Convention. Article VI of the Convention further provides that trials for its violation be conducted "by a competent tribunal of the state in the territory of which the act was committed, or by any such international penal tribunal as may have jurisdiction.
Here, of course, there are some special problems. The International Court of Justice at the Hague has no penal or criminal jurisdiction. It does, however, have jurisdiction over disputes concerning the interpretation and application of a number of specialized human rights conventions. Such jurisdiction is accorded by the Genocide Convention (Article 9); the Supplementary Convention on the Abolition of Slavery; the Slave Trade and Institutions and Practices Similar to Slavery (1956, Article 10); the Convention on the Political Rights of Women (1953, Article 9); the Convention Relating to the Status of Refugees (1951, Article 38); and the Convention on the Reduction of Statelessness ( 1961, Article 14). in exercising its jurisdiction, however, the ICJ must still confront significant difficulties in bringing recalcitrant states into contentious proceedings. There is still no way to effectively ensure the attendance of defendant states before the Court. Although many states have acceded to the Optional Clause of the Statute of the ICJ (Article 36, Paragraph 2), these accessions are watered down by many attached reservations.
Second, courts of the states where acts in violation of the Genocide Convention have been committed are hardly likely to conduct proceedings against their own national officials (excluding, of course, the possibility of courts established following a coup d'etat or revolution). What is needed, therefore, is an expansion of the practice of states after World War IICa practice by states that had been occupied during the warCof seeking extradition of criminals and of trying them in their own national courts.
Let us briefly review the basic policies of this practice:
After the Second World War, three judicial solutions were adapted to the problem of determining the proper jurisdiction for trying Nazi offenses by the victim states, solutions that were additional to the specially constituted Nuremberg Tribunal.
The first solution involved the creation of special courts set up expressly for the purpose at hand. This solution was adopted in Romania, Czechoslovakia, Holland, Austria, Bulgaria, Hungary, and Poland.
The second solution, adopted in Great Britain, Australia, Canada, Greece and Italy, involved the establishment of special military courts.
The third solution brought the Nazis and their collaborators before ordinary courtsCa solution accepted in Norway, Denmark, and Yugoslavia. This solution was also adopted by Israel, although the State of Israel did not exist at the time of the commission of the crimes in question.
Israel's trial of Nazi war criminal Adolph Eichmann was fully consistent with Nullum crimen sine poena expectations of international criminal law, and its jurisdiction in the matter flowed, inter alia, from the principle of universal jurisdiction. The crimes set forth by Israeli law, namely crimes of war and crimes against humanity, had been established clearly as crimes by the Nuremberg Tribunal and by the authoritative human rights regime derivative from that Tribunal. All of the crimes set forth under the Israeli indictment had been recognized by the universal conscience of humankind and by its institutional expressions as delicta juris gentium, or as crimes against international law.
An international criminal tribunal that might have judged Eichmann's crimes did not exist. Nuremberg had dealt only with "humanity," and not with the Jewish People. Israel simply invested its legislative and judicial organs of state with essential power of enforcement. In so doing, it acted upon the well-established practice that each state reserves the right to punish a crime that violates the norms of international criminal law, regardless of the place in which the offense occurred or the nationality of the accused or of the victim. In acting to punish crimes of genocide, Israel acted to secure justice not only for itself and for the Jewish People, but also for the entire community of humankind. By accepting, concretely, the imperative principle of universal jurisdiction, it established beyond any reasonable doubt that the punishment of Hostes humani generis or common enemy of mankind is not an internal question for any state, but a peremptory obligation of all states.
In the future, there need be no war or occupation to justify the use of domestic courts to punish crimes of genocide. There is nothing novel about such a suggestion since a principal purpose of the Genocide Convention lies in its explicit applicability to non‑wartime actions. Limits upon actions against enemy nationals are as old as the laws of war of international law. But the laws of war do not cover a government's actions against its own nationals. It is, therefore, primarily in the area of domestic atrocities that the Genocide Convention seeks to expand pre‑existing international penal law.
Going beyond Article VI of the Genocide Convention, which holds to the theory of "concurrent jurisdiction" (jurisdiction based on the site of the alleged offense and on the nationality of the offender), any state may now claim jurisdiction when the crime involved is a species of genocide. There is already ample precedent for such a rule in international law, a precedent based upon the long‑standing treatment of "common enemies of mankind" (hostes humani generis) or international outlaws as within the scope of "universal jurisdiction." In Vattel's 1758 classic, The Law of Nations, the following argument is advanced:
. . . while the jurisdiction of each State is in general limited to punishing crimes committed in its territory, an exception must be made against those criminals who, by the character and frequency of their crimes, are a menace to public security everywhere and proclaim them selves enemies of the whole human race. Men who are by profession poisoners, assassins, or incendiaries may be exterminated wherever they are caught; for they direct their disastrous attacks against all Nations, by destroying the foundations of their common safety.
Vattel's argument echoes the sixth century A.D. Corpus Juris Civilis (especially Chapter 111, 15, "ubi de criminibus agi oportet") and Grotius' The Law of War and Peace (especially Book 11, Chapter 20). it also parallels the whole corpus of cases, since antiquity, involving piracy (hostes humani generis) and is built into the four Geneva Conventions of August 12, 1949, which unambiguously impose upon the High Contracting Parties the obligation to punish certain grave breaches of their rules, regardless of where the infraction is committed or whether the nationality of the authors of the crime is in question (see Art. 49 of Convention No. 1; Art. 50 of Convention No. 2; Art. 129 of Convention No. 3; and Art. 146 of Convention No. 4). Most importantly, the post‑Nuremberg international legal order obligates states to recognize universal jurisdiction in punishing crimes against humanity. Such punishment directly concerns each state since fundamental human rights have now been consecrated by international law as an imperious postulate of the general community of humankind. By acting in compliance with this postulate, each state protects the interests of this entire community at the same time as it safeguards its own interests.
The case for universal jurisdiction in matters concerning genocide and genocide‑like crimes is further strengthened by the difficulties surrounding extradition. In this connection, the best example is the case of Israel in the apprehension, trial and punishment of Adolph Eichmann. In 1950, Israel enacted the Nazis and Nazi Collaborators Punishment Law. In this enactment, Israel did nothing different than other states that had been occupied during the war, althoughCof courseCthe State of Israel did not exist at the time of the commission of the crimes. Yet, its subsequent efforts to obtain certain major war criminals (e.g., Joseph Mengele) from Argentina and elsewhere via extradition were improperly rebuffed.
Why were the refusals to extradite contrary to international law? For the most part, these refusals were grounded in the argument that the crimes in question were of a "political nature." Although there is a "political offense" exception to the international law of extradition, this exception is explicitly precluded by the Genocide Convention. Moreover, under the Grotian formula, aut dedere aut punire (extradite or prosecute), the states refusing extradition were obligated to prosecute the alleged offenders themselves. Needless to say, no attempts at prosecution were undertaken. Finally, these refusals to extradite were contrary to longstanding principles of international law as elucidated by the teachings and writings of highly‑qualified publicists. According to Vattel, for example:
If the sovereign of the country in which the crimes of this nature (crimes involving "common enemies of mankind") have been committed requests the surrender of the perpetrators for the purpose of punishing them, they should be turned over to him as being the one who has first interest in inflicting exemplary punishment upon them and as it is proper that the guilty should be convicted after a trial conducted with due process of law, we have another reason why criminals of this class are ordinarily delivered up to the States in which the crimes have been committed.
Yet, Vattel recognized that extradition could not always be expected and that the interests of justice could be served only through the universalization of jurisdiction on matters concerning hostes humni generis. Thus, he also understood that "pirates are hanged by the first person into whose hands they fall." On such reasoning, Israel's secret service abducted Eichmann in Buenos Aires and returned him to Jerusalem for trial and, ultimately, execution. Had it not acted on the correct principle of "universal jurisdiction," Eichmann would almost surely never have been brought to trial for the offenses he committed .
During the time that the abduction and trial took place, there was no longer any legal or technical difficulty with the idea of "crimes against humanity" (or its derivative, "crimes against the Jewish people") since the issues of retroactivity, superior orders and tu quoque had already been resolved at Nuremberg.
With respect to the issue of retroactivity, Nuremberg established that there had been operative certain principles of positive law at the time of the crimes (e.g., the laws of war, international custom, the general principles of law recognized by civilized nations and the writings of qualified scholars) and of natural law. Moreover, the Tribunal concluded that retroactivity need not be unjust and that, indeed, its application might be necessary to the interests of justice. In the words of the Tribunal, "So far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished" CNullum crimen sine poena.
In rendering its judgment on Adolph Eichmann, the Israeli court built upon this reaffirmation of natural law, noting that there may be special occasions and circumstances for which the law, for want of foresight, failed to make
provision. Moreover, citing an important case from English law, the Israeli court offered a vital conceptual distinction between retroactive law and ex post‑facto law. Drawn from Blackstone's Commentaries, this distinction held that "ex post facto laws are objectionable when, after an action indifferent in itself is committed, the legislator then, for the first time, declares it to have been a crime and inflicts a punishment upon the person who has committed it.... Here it is impossible that the party could foresee that an action, innocent when it was done, should afterwards be converted to guilt by subsequent law. He had, therefore, no cause to abstain from it and all punishment for not abstaining must, in consequence, be cruel and unjust." In the Eichmann case of course, the laws involved did not create a new crime and it certainly could not be said that he did not have criminal intent (mens rea). The accused's actions were hardly "indifferent" and they were assuredly considered crimes at the time of their commission by all civilized nations.
With respect to the issue of superior orders, the classical writers on international law had long rejected that doctrine as a proper defense against the charge of war crimes. The German Code of Military Law operative during the war provided that a soldier must execute all orders undeterred by the fear of legal consequences, but it added that this would not excuse him in cases where he must have known with certainty that the order was illegal. This view was upheld in an important decision of the German Supreme Court in Leipzig in 1921. According to the Court, a subordinate who obeyed the order of a superior officer was liable to punishment if it were known to him that such an order involved a contravention of international law.
The defense of "superior orders" was also rejected at the Einsatzgruppen Trial undertaken by an American military tribunal. According to the tribunal: "The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. It is a fallacy of widespread consumption that a soldier is required to do everything his superior officers order him to do. The subordinate is bound only to obey the lawful orders of his superior."
Ironically, Goebbels himself spoke against the plea of superior orders during the war. In an article in the German Press on May 28, 1944, he wrote: "No international law of warfare is in existence which provides that a soldier who has committed a mean crime can escape punishment by pleading as his defense that he followed the commands of his superiors. This holds particularly true if those commands are contrary to all human ethics and opposed to the well established international usage of warfare." It was the bombing of Germany by the allies to which Goebbels referred. and he was attempting to justify the Nazi practice of shooting captured Allied airmen.
In terms of the broad issue of using domestic courts to uphold international law, the example of the United States may be of particular interest. Since its founding, the United States has reserved the right to enforce international law within its own courts. Article I. Section 8, Clause 10 of the American Constitution confers on Congress the power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." Pursuant to this Constitutional prerogative, the first Congress, in 1789, passed the Alien Tort Statute. This statute authorizes United States Federal Courts to hear those civil claims by aliens alleging acts committed "in violation of the law of nations or a treaty of the United States" when the alleged wrongdoers can be found in the United States. At that time, of course, the particular target of this legislation was piracy on the high seas.
Over the years, United States federal courts have rarely invoked the "law of nations," and then only in such cases where the acts in question had already been proscribed by treaties or conventions. In 1979, a case seeking damages for foreign acts of torture was filed in the federal courts. In a complaint filed jointly with his daughter, Dolly, Dr. Joel Filartiga, a well‑known Paraguayan physician and artist and an opponent of President Alfredo Stroessner's repressive regime, alleged that members of that regime's police force had tortured and murdered his son, Joelito. On June 30, 1980, the Court of Appeals for the Second Circuit found that since an international consensus condemning torture has crystallized, torture violates the "law of nations" for purposes of the Alien Tort Statute. United States courts, it was held, therefore do have jurisdiction under the statute to hear civil suits by the victims of foreign torture, if the alleged international outlaws are found in the United States.
Although this case was a civil suit brought by a dissident against a representative of the Paraguayan regime, the court held, in effect, that torture is a violation of the law of nations and can be redressed in United States courts. According to the Second Circuit's ruling, "For purposes of civil liability, the torturer has becomeClike the pirate and slave trader before himChostis humani generic an enemy of all mankind." With this view, the stage has been set for further expansion of international law into American municipal jurisprudence.
The obligation of the United States Courts to identify and punish gross violations of international law concerning human rights is roughly analogous to these courts' traditional role in redressing deprivations of civil liberties that occur at home. In the words of Judge Irving R. Kaufman, who wrote the opinion of the Court on Filartiga:
In many respects, there is a parallel between Filartiga and the Supreme Court decision in Brown v. Mississippi, which held that state‑court murder convictions based on confessions obtained through torture were unconstitutional. Just as our Federal courts traditionally defer to the judicial findings of state courts, Americans are reluctant to interfere in overseas disputes between two foreign nationals. But where torture is involved, on the state or international level, the Federal courts have no choice. The articulation of settled norms of international law by the Federal courts, much like their adherence to constitutional precepts, is an expression of this nation's commitment to the preservation of fundamental elements of human dignity throughout the world.
With this in mind, it would be enormously useful C in reference to the control of genocide and genocide‑like crimes C if the United States were to expand its commitment to identify and punish such transgressions within its own judicial System and also if other states were prepared to take parallel judicial measures. At the same time, it is arguable that no judicial measures can ever be equal to the task of dealing with overwhelming lawlessness of the sort exhibited by genocide and genocide-like crimes. Here, prosecution of pertinent egregious crimes could be identified as a mockery of authentic law-enforcement not because of perceived abuses of power and legal procedure, but because judicial measures would allegedly be wholly insufficient; that is, they could not possibly be adequately proportionate to the expressed degree of criminality.
This argument, which holds that in cases of certain altogether horrendous crimes, no amount of judicial procedure could produce justice, can lead only to diametrically opposite courses of action: (1) extra-judicial punishment, "normally" assassination; or (2) leaving the crimes unpunished. The first course of action would be unsatisfactory because it would contain all of the elements of infinite regress, i.e., when, if ever, would the amount of extra-judicial punishment finally be commensurate with the crime, and because of the tactical difficulties involved in killing an "adequate" number of perpetrators. Moreover, this option would be plagued by evidentiary issues concerning the proper identification of criminal wrongdoers, "probable cause," and "beyond a reasonable doubt." The second course of action would be unsatisfactory because it would represent flagrant disregard for Nullum crimen sine poena.
Genocide and genocide‑like crimes as well as other related violations of fundamental human rights such as terrorism must be prevented, controlled and punished.
To make more effective national criminal jurisdiction the principle of universality must be universally adopted. States must be encouraged to develop national legislation to enforce such norms. International cooperation for the effective investigation, prosecution and punishment of such offenders must be developed. Nullum crimen sine poena "No crime without a punishment." When the victorious allied powers established a special military tribunal at Nuremberg on August 8, 1945, they reaffirmed this elementary principle. In 1946, this reaffirmation was underscored in Principle I of the binding Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." These Nuremberg Principles were later formulated by the United Nations International Law Commission, at the request of the General Assembly in 1950, stipulating: "Offenses against the peace and security of mankind....are crimes under international law, for which the responsible individuals shall be punished."
The philosophic rationale of punishment lies in part in the imperative to incapacitate particular persons from the commission of further genocide and genocide-like crimes and to inhibit other prospective criminals from commiting similar grave offenses. The entire argument, in fact, can be abstracted from Plato's Protagoras:
No one punishes those who have been guilty of injustice solely because they have committed injustice, unless he punishes in a brutal and unreasonable manner. When anyone makes use of his reason in inflicting punishment, he punishes not on account of the fault that is past, for no one can bring it about that what has been done may not have been done, but on account of a fault to come in order that the person punished may not again commit the fault, that his punishment may restrain from similar acts those persons who witness the punishment.
Protagoras's theory of punishment rejects the alleged violence and irrationality of straight retributivism. For Plato, the very rationale of punishment lies in its orientation to the future, preventing the offender himself from repeated wrongdoing and deterring others from similar offenses. Punishment is meant to turn others from doing harm and to teach virtue.
Also regarding punishment, the ancient Hebrews viewed the shedding of blood as an abomination that requires expiation, "for blood pollutes the land, and no expiation can be made for the blood that is shed in it, except by the blood of him who shed it." This belief in "pollution" parallels that
of certain ancient Greek theory. "The (Greek) Erinyes," says Marvin Henberg, "do for the Greeks of the seventh to fourth centuries BCE what Yahweh does for the ancient Hebrews; they dewmand the blood of homicides." The pre-Socratic philsophers, especially Anaximander, Heraclitus and Parmenides, displayed a metaphysical view of retributive jutice as inherent in the cosmos itself. Among the ancient Greeks, homicide pollution extended to those guilty of accidental murder and, left unpunished, even threatened the community at large. According to Marvin Henberg:
Homicide pollution entails the following: One guilty of murder, deliberate or accidental, contracts a metaphysical stain, invisible save to the Erinyes and to the gods. Like a deadly disease, pollution renders the agent a danger to others, for until the stain is purified or the polluted person exiled the public at large stands threatened. Crops may be blighted (witness OEDIPIS REX) as incentive for the populace to seek out the murderer. Liability to suffering, then, is collective; and in its nearly allied form of the curse, pollution can be hereditary as well as collective, visiting each generation of a single family with renewed suffering. Finally, the doctrine of pollution imposes strict liability for its offenses. No excuse, justification or mitigation of penalty is allowed: The accidental manslayer must seek purification equally with one who kills out of greed or passion.
Aeschylus offers a sense of the Greek view of punishment. In THE LIBATION-BEARERS (310-14) the chorus intones: "The spirit of Right cries out aloud and extracts atonment due: blood stroke for the stroke of blood shall be paid. Who acts, shall endure. So speaks the voice of the age-old wisdom."
Let us return to Plato. Thinking of vice, the source of crime, as an ailment of the soul, just as physical disease to the body, he recommends punishment to restore order in the soul. The criminal, therefore, derives a positive consequence from punishment. Discarding the claims of retributivism, as we have already noted, Plato views punishment as just and good only to the extent that it serves human welfare. Punishment, in this view, should turn others away from vice and teach virtue. Aristotle, Cicero, St. Thomsas Aquinas, Hobbes, and Bentham have taken similar positions. Says Bentham:
The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, everything that tends to subtract from that happiness; in other words, to exclude mischief....But all punishment is mischief; all punishment in itself is evil. Upon the principle utility, if it ought at all to be admitted, it ought to be admitted in as far as it promises to exclude some greater evil.
It follows here that utilitarian views of punishment, in contrast to retributivist perspectives, may or may not support the principle of Nullum crimen sine poena. As to the retributivist perspective, Immanuel Kant remains the classical example of this view of legal punishment, but in this case retributive justice is not a matter of revenge. Rather, Kantian retribution, as an action of the state against the criminal, is always an impersonal action, one undertaken without passion, and as a sacred duty. For Kant, the legal punishment of criminals is a distinct categorical imperative. It is in Kant that we recognize the strongest possible reaffirmation of Nullum crimen sine poena:
Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the blood-guilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice.
Kant returns to the beginning, to the concept of "blood guilt," and to the insistence that society has a duty to punish even without resulting utilitarian consequences. For the United States, the Nuremberg obligations to bring Hostes humani generis to trial are doubly binding. This is because these obligations represent not only current obligations under international law, but also the obligations of a higher law embedded in the United States political tradition. By codifying the idea that justice is peremptory, that it cannot be traded-off for reasons of political expedience or even for presumed conditions of peace, the Nuremberg obligations reflect perfect convergence between international criminal law and the law of the American Republic. Of course, all international criminal law is already part of the law of the United States, an incorporation expressed at Art. VI of the U.S. Constitution and by associated Supreme Court decisions.
Optimally, custody over genociders would be possible via the established mechanisms of extradition and prosecution and by the associated means of "indirect enforcement" (prosecution within authoritative municipal courts in the absence of a permanently-constituted international criminal court or in an ad hoc Nuremberg-style tribunal), but these prospects are generally unrealizable when the alleged wrongdoers are political leaders. Thus, the method of forcible abduction, though hardly ideal, may be required. According to Vattel: "If a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him, any foreign power may rightfully give assistance to the oppressed people who ask for its aid." Indeed, continues Vattel: "As for those monsters who, under the name of the sovereigns, act as a scourge and plague of the human race, they are nothing more than wild beasts, of whom every man of courage may justly purge the earth."
Forcible abduction is not an unknown remedy under international criminal law. While great care must be taken not to violate peremptory human rights, where extradition is not a viable option the only real alternative may be to leave genocide and genocide-like crimes unpunished. Here, forcible abduction may be the only way (excluding, perhaps, in absentia trials or assassination) to give effect to Nullum crimen sine poena.
There are several recent examples of forcible abduction under international criminal law. Israel, in 1960, abducted Nazi war criminal Adolph Eichmann from Argentina on charges of Nuremberg-category crimes. In 1985, a United States military aircraft forced down an Egyptian aircraft over international waters on the grounds that the Egyptian plane held accused terrorists in the Achille Lauro Affair. In 1987, again in international waters, the F.B.I. lured Fawez Younis, a Lebanese national, on to a yacht and transported him by force to the United States for trial. And on April 2, 1990, Humberto Alvarez-Machain, a medical doctor and a citizen of Mexico, was forcibly abducted from his ofice by persons answerable to the Drug Enforcement Agency (DEA), and flown by private plane to Texas to face charges of kidnapping and murdering a DEA agent and the agent's pilot.
Regarding custody over genociders by forcible abduction, two issues present themselves: (1) seizure of Hostes humani generis when custody cannot be obtained via extradition; and (2) seizure of Hostes humani generis who happens to be a sitting head of state or leader of a political faction. On the first issue, we may consider that President Ronald Reagan, in 1986, authorized procedures for the forcible abduction of suspected terrorists from other states for trial in United States courts. Here the statutory authority for Reagan's position was contingent upon the terrorist acts being linked with the taking of U.S. citizens hostage (acts that are subject to the jurisdiction of U.S. courts under the Act on the Prevention and Punishment of the Crime of Hostage-Taking. In 1987, as already noted, the FBI lured a Lebanese national named Fawaz Younis on to a boat and transported him to this country for trial. His abduction was premised upon his suspected involvement in a 1985 hijacking of a Jordanian airliner at Beirut Airport, in which U.S. nationals had been held hostage.
On the second issue, there normally exists, under international criminal law, a substantial distinction between abduction of a terrorist or other Hostes humani generis and the abduction of a head of state or political leader. Indeed, there is almost always a presumption of sovereign immunity, a binding rule that exempts each state and its high officials from the judicial jurisdiction of every other state. Although the rule of sovereign immunity is certainly not absolute in the post-Nuremberg world legal order, the right of any one state to seize a high official from another state is exceedingly limited. In an 1812 case before the Supreme Court of the United States, Chief Justice Marshall went so far as to argue for "the exemption of the person of the sovereign from arrest or detention within a foreign territory." Nevertheless, where the alleged crimes in question are of a Nuremberg-category offense (and surely genocide and genocide-like crimes fit this requirement), and where no other means exist whereby to gain custody of the pertinent official(s), the peremptory or jus cogens expectations of Nullum crimen sine poena may clearly override those of sovereign immunity.
But forcible abduction of genociders, irrespective of jurisprudential correctness, may not prove feasible. Moreover, such abduction misses the overriding and underlying problem, i.e., the capacity of individual human beings to perpetrate such egregious harms in the first place. As a species, after all, our record of compassion is more than a little deficient.
In world affairs, as in other matters, all things move in the midst of death. For human beings, one's own death is the prototype of injustice, and the overriding source source of one's own anxiety. Ironically, it is by bringing death to certain others that such injustice can be eradicated and such anxiety relieved. To deal effectively with genocide and genocide-like crimes, students of international law must first come to recognize that throughout history, societies have treated death as essentially a zero-sum phenomenon: The more death that can be meted out to "others," the less liklely that we, ourselves, must die. Thus, power is always a function of the capacity to bring mass mortality to these other human beings, and ultimate power is to remain the only one left standing.
Elias Canetti, winner of the 1981 Nobel Prize for Literature, has written of "not being dead" as the essence of power. Confronted by what he called "the terror at the fact of death," human beings - individually and collectively - seek above all else to "remain standing." In the final analysis, it is those of us who remain upright (however temporarily) who are the victors. It is these fortunate ones, those who have "diverted death" to others, who have real power.
"Normally," the living person never considers himself/herself more powerful that when he/she faces the dead person. Here, the living one comes as close as he can to feelings of immortality. The living state, in similar fashion, never regards itself as more powerful than when it confronts the "death" of an enemy state.
In world politics, power is so closely attached to the terror of death that it has been overlooked altogether. As a result, students of genocide and genocide-like crimes continue to focus unproductively on epiphenomena, on ideologies, on territories, on implements of mass killing, on legal rules. It is not that these factors are unimportant to power and law (indeed, they are not) but rather that they are of secondary or reflected importance.
During war and mass killings, the individual who does the killing - an individual who cannot expereince comparable power in peacetime - is offered a chance at immortality. The presence of dead men here cannot be minimized. It is the central fact of war and genocide. The soldier/killer who is surrounded by corpses and knows that he is not one of them is imbued with the radiance of invulnerability, with the aspect of truly monumental power.
Today, some terrorists, in the fashion of genociders, seek above all else to "remain standing" in the struggle against a particularly despised "other." Yet, there is an apparent paradox here because these terrorists are seemingly willing to die themselves in order to carry out their missions of death. But the paradox is apparent, not authentic, because to die "for the sake of God," which is what such terrorists are doing, is not to die at all. By dying in the "divinely commanded" act of killing enemy populations, the suicidal terrorist actually seeks to conquer death (which he feels with special terror) by living forever. Sometimes these terrorists claim to "love death," but the "death" that they "love" is not only temporary, it is a precondition for eternal life.
The "love of death" described by the suicidal terrorist is the ironic consequent of an all-consuming wish to avoid death. The objective to "remain standing" can be realized by this terrorist only when its enemy has become the dead man lying down. When the civilized and decent human being watching the evening news about the latest suicide bombing asks incredulously: "Why do they do this?," there is a correct answer: They do this out of desire for the ultimate form of power; the greater the number of enemy corpses, the more powerful they feel. Real power, as a zero-sum commodity, is to gain in aliveness through the death of despised enemies.
There is more. A terrorist cannot possibly kill as many enemies as his passion for survival may demand. This means that he may seek to induce or direct others to meet this passion. As a practical and jurisprudential matter, this points toward an undeniable impulse for genocide or genocide-like crimes, an impulse that could be actualized by future resort to higher-order forms of terrorism (chemical/biological/nuclear) and/or unconventional forms of war.
What a mistake it is for students of international law to believe that Reason governs the world. The true source of effective law is Power, and Power is ultimately the conquest of Death. This conquest is a generic matter, a more or less universal effort. On this matter, consider the remark made by Eugene Ionesco in his Journal in 1966. Describing killing as an affirmation of one's own survival, Ionesco says:
I must kill my visible enemy, the one who is determined to take my life, to prevent him from killing me. Killing gives me a feeling of relief, becuase I am dimly aware that in klilling him, I have killed death. My enemy's death cannot be held against me, it is no longer a source of anguish, if I killed him with the approval of society; that is the purpose of war. Killing is a way of relieving one's feelings, of warding off one's own death.
Genocide is a collective response to the individual terror of mortality. In this response, a "herd" of human beings sets upon a particular class of victims to distance its members from personal death. Aware of the fearful claims of membership, Nietzsche declared with remarkable prescience: "To lure many away from the herd, for that I have come. The people and the herd shall be angry with me. Zarathustra wants to be called a robber by the shepherds."
The danger of genocide stems from the combining of individuals into herds. Not every herd is genocidal, of course, but genocide cannot take place in the absence of herds. The pertinent dynamic is that individuals seek safety from mortality in herds, and some of these herds, in turn, discover the "immortality benefits" of slaughtering "others." According to Carl Jung:
If people crowd together and form a mob, then the dynamics of the collective man are set free - beasts or demons which lie dormant in every person till he is part of a mob. Man in the crowd is unconscuiously lowered to an inferior moral and intellectuial level, to that level which is always there, below the threshold of consciousness, ready to break forth as soon as it is stimulated through the formation of a crowd.
We have seen that it is anxiety over one's own death that leads to the formation of herds and to the commission of genocide. Whether we like it or not, the essential remedies to genocide now depend less on "progress" toward more centralized arrangements of global power (e.g., collective security or world government) than upon appropriate transformations of human anxiety. These transformations will require individuals to come to terms with the primacy of personal death fears and with the grave genocidal harms that are the product of such fears.
How, then, can this be accomplished? How might we reduce or end the overriding death fears of individuals, the fears of nonbeing? Precisely what sorts of self-liberation should be sought?
See Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature, December 9, 1948, entered into force, January 12, 1951, 78 U.N.T.S. 277. Although the criminalizing aspect of international law that proscribes genocide‑like conduct may derive from a source other than the Genocide Convention (i.e. it may emerge from customary international law and be included in different international conventions), such conduct is dearly a crime under international law. Even where the conduct in question does not affect the interests of more than one state, it becomes an international crime whenever it constitutes an offense against the world community delicto ius gentium. See M.C. Bassiouni, International Criminal Law: A Draft International Criminal Code 30‑44 (1980). See also Bassiouni, "The Penal Characteristics of Conventional International Criminal Law," 15 Case W. Res. J. Int'l 27‑37 (1983).
The term "ethnic cleansing" is now tied inextricably to certain crimes committed in the former Yugoslavia, primarily by various Serb forces. According to the INTERIM REPORT OF THE COMMISSION OF EXPERTS, U.N. Document S/25274 (January 2, 1993), "The expression `ethnic cleansing' is relatively new. Considered in the context of the conflicts in the former Yugoslavia, `ethnic cleansing' means rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area. `Ethnic cleansing' is contrary to international law....'"(6)(55).
In such instances there are also likely violations of international humanitarian law, including "Grave Breaches." The term "Grave Breaches" applies to certain infractions of the Geneva Conventions of 1949 and Protocol I of 1977. The actions defined as "Grave Breaches" in the four Conventions must be performed wilfully or intentionally, and against the different groups of "protected person" identified by each Convention. The High Contracting Parties to the Geneva Conventions are under an obligation "to enact any legislation necessary to provide effective penal sanctions for persons commiting, or ordering to be committed," a grave breach of the Convention. As defined at Art. 147 of Geneva Convention(IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516; signed on Aug. 12, 1949, at Geneva), Grave Breaches "shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military nrecessity and carried out unlawfully and wantonly." Reference to Grave Breaches can also be found in the INTERIM REPORT OF THE COMMISSION OF EXPERTS, United Nations Document, S/25274, January 2, 1993; at Sec. 3., Art. 47: "The Geneva Conventions and Additional Protocol I contain rules on the treatment of grave breaches. While "Grave Breaches" are carefully defined in each of these instruments, they fall under the general heading of war crimes." (Cited in W. Michael Reisman and Chris T. Antoniou, THE LAWS OF WAR (New York: Vintage, 1994), p. 387. A listing of Grave Breaches of the Geneva Conventions of 1949 can be found at Art. 2 of the STATUTE OF THE INTERNATIONAL TRIBUNAL, TERRITORY OF THE FORMER YUGOSLAVIA, S.C. Res. 827(1993), May 25, 1993; cited in Reisman, supra, p. 393.
Crimes against humanity are defined as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during a war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated...." Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6(c), 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288.
The origin of the idea for an established international criminal court is embedded in the Hague Convention (I) for the Pacific Settlement of International Disputes, July 19, 1899, 32 Stat. 1779; reprinted in THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 and 1907, at 41 (James B. Scott., ed., 1918). For development of this idea, see generally: M. Cherif Bassiouni & Christopher L. Blakesley, THE NEED FOR AN INTERNATIONAL CRIMINAL COURT IN THE NEW INTERNATIONAL WORLD ORDER, 25 VANDERBILT JOURNAL OF TRANSNATIONAL LAW, 151 (1992); M. Cherif Bassiouni, A DRAFT INTERNATIONAL CRIMINAL CODE AND DRAFT STATUTE FOR AN INTERNATIONAL CRIMINAL TRIBUNAL (1987); Symposium, DRAFT INTERNATIONAL CRIMINAL COURT, 52 REVUE INTERNATIONALE DE DROIT PENAL 331 (1984); DRAFT STATUTE FOR AN INTERNATIONAL COMMISSION OF CRIMINAL INQUIRY; reprinted in INTERNATIONAL LAW ASSOCIATION, REPORT OF THE SIXTIETH CONFERENCE ON THE INTERNATIONAL LAW ASSOCIATION 445 (1983).
An international criminal court could be permanent or ad hoc. The latter option was used for the Nuremberg Trials and, currently, for war crimes trials in the former Yugoslavia. In 1992, the U.N. Security Council, in response to journalistic accounts of genocide and genocide-like crimes in the former Yugoslavia, established - by Resolution Number 780 - a Commission of Experts to examine and gather pertinent information regarding grave breaches of the Geneva Conventions and other violations of humanitarian international law. The five-member commission issued an interim report to the Secretary-General on February 10, 1993, defining its mandate as the gathering of evidence "not merely to establish the existence of certain patterns of criminality, but also to obtain specific evidence such as an investigative body would need for prosecution purposes." Although some of the relevant conflicts were "internal," the Commission decided to apply the law applicable in international armed conflicts to all of the armed conflicts in the territory of the former Yugoslavia. (See: Interim Report of the Commisssion of Experts established pursuant to Security Council Resolution 780 (1992), S/25274, January 26, 1993, distributed with a letter from the Secretary-General to the President of the Security Council on February 10, 1993; Doc. S/25274.
According to the language of the Genocide Convention, it is unlikely that such mass murders as took place in Indonesia in 1965 (the victims were identified as communists) or in Cambodia from 1975‑1979 (meted out to suspect classes by the Khmer Rouge) can be called genocide. Helen Fein calls these "ideological slaughters" (See Fein, "Scenarios of Genocide: Models of Genocide and Critical Responses," in Toward the Understanding and Prevention of Genocide. Proceedings of the International Conference on the Holocaust and Genocide (Israel W. Charny, ed. 1984). And Leo Kuper calls them "genocidal massacres" (See L. Kuper, Genocide (l981). In this connection, we may also note Stalin's liquidation of the Kulaks and Idi Amin's murders in Uganda. In Uganda, although the killings were sometimes ethnically motivated (as in the massacre of Acholi and Lango soldiers in the Ugandan army), there were also instances of political massacres (e.g., the annihilation of the supporters of the ousted president and of political opponents in general).
International humanitarian law, or the laws of war, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at the Hague and Geneva Conventions, and known thereby as the law of the Hague and the law of Geneva, these rules seek to bring discrimination, proportionality and military necessity into belligerent calculations. On the main corpus of jus in bello, see: Convention No. IV, Respecting the Laws and Customs of War on Land, With Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the "Hague Regulations"); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.
A contra view is offered by Robert A. Friedlander, "The Foundations of International Criminal Law A Present‑Day Inquiry," 15 Case W. Res. I. Int'l L.,13,21 ‑22 (1983]. According to Friedlander, "While genocide in theory has come to be labeled an international criminal act, it really is only a principle of public international lay and not a mandatory prohibition of positive law or part of the flus cogeils. ' (21‑22) Professor Friedlander's argument appears to rest on the prevalence of genocide, I.e., on the fact that genocide, rather than effective genocide prevention is a dominant characteristic of world politics and world tavern "Indeed," says Friedlander, "Genocide has been attempted or practiced so often in so many places during the past half‑century that some critics maintain that international barbarism. in point of fact, has replaced the legal fiction of a world community bound by law." (22) This position seems to be based upon a particular interpretation of Article 53 of the Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27, at 289 (1969) which deals with "Treaties Conflicting with a Peremptory Norm of General International Law Jus Cogens)." According to Article 53, ". . . a peremptory norm of general international law Is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted...." Presumably, Professor Friedlander believes that the antigenocide norm fails to meet this standard because it is so flagrantly violated in actual state practice. By this reasoning, the definition of "a norm accepted and recognized...." is tied to general and effective Compliance rather than to general acceptance of pertinent treaties and conventions.
One such norm is that of Nullum crimen sine poena, "No crime without a punishment." Without punishment of egregious crimes, there can be no meaningful distinction between a penal statute and any other statute. (See Redding v. State, 85 N.W. 2d 647, 652; Neb. 1957)(concluding that a criminal statute without a penalty clause is of no force and effect). The earliest statements of Nullum crimen sine poena are found at the Code of Hammurabi (c. 1728 - 1686 BCE); the Laws of Eshnunna (c. 2000 BCE); the even earlier Code of Ur-Nammu (c. 2100 BCE); and, of course, the Lex Talionis or law of exact retaliation that is presented in three separate passages of the Jewish Torah or Biblical Pentateuch. At Nuremberg, the words used by the Court, "So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished," represented an unambiguous reaffirmation of Nullum crimen sine poena. For the Court statement, see: A.P. d'Entreves, NATURAL LAW (London: Hutchinson University Library, 1964), p. 110. The exact words of the Court, issued on September 30, 1946, were as follows: "To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished." See: Excerpts From Judgment of the Nuremberg Tribunal, September 30, 1946 (Appendix D), in M. Cherif Bassiouni, "International Law and the Holocaust," CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL, Vol. 9, No. 2., Spring 1979, p. 284.
It is important to note here that the Genocide Convention proscribes conduct that is juristically distinct from other forms of prohibited wartime killing involving acts constituting crimes of war and crimes against humanity. Although crimes against humanity are linked to wartime actions, the crime of genocide can be committed in peacetime or during a war.
For a discussion of natural law by this author, see: Louis Rene Beres, "Opposing the `Peace Process:' Israel, Civil Disobedience and the Principle of Higher Law," ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 13, No. 1., 1996, pp. 117 - 133.
Between October 1943 and January 1944, the United States and Great Britain, bowing to rising pressure for post-war punishment of "Hitlerite Criminals," worked to establish a United Nations Commission for the Investigation of War Crimes (commonly known as the United Nations War Crimes Commission - UNWCC). Once established, the Commission, meeting in London in 1944, assembled lists of war criminals and planned for the creation of special war crimes tribunals. The special trial of major Nazi leaders began in November 1945, a little more than three months after victorious allied powers had authorized proceedings in their London Charter of August 8, 1945. See: Louis Rene Beres, "Toward Prosecution of Iraqi Crimes Under International Law: Jurisprudential Foundations and Jurisdictional Choices," CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL, Vol. 22, No. 1, 1991-1992, pp. 127 - 134.
"Trial of the Major War Criminals before the International Military Tribunal " Nuremberg, 14 November 1944‑1 October 1946, 42 vols., IMT Secretariat, Nuremberg, 1947‑9. Cited by A.P. D'entreves, Natural Law 110 (1951).
Of the 312 international instruments dealing with international criminal lava between 1815 and 1982, only two others have made specific reference to an international criminal court: the 1937 Terrorism Convention (Convention for the Prevention and Punishment of Terrorism), which never entered into force because of insufficient ratification) and the 1973 Apartheid Convention (International Convention on the Suppression and Punishment of the Crime of Apartheid), entered into force, July 18,1976, G.A. Res.3068, 28 U.N. GAOR, Supp. (No. 30), U.N. Doc. A/9030 (1973), which states at Article 5 that offenders under the Convention may be tried by an international penal tribunal." But as Professor Bassiouni correctly points out, political/ideological differences between states make it "unlikely that a tribunal acceptable to all can be established or that any direct enforcement scheme will be adopted in the foreseeable future." See Bassiouni, "The Proscribing Function of International Law in the Processes of International Protection of Human Rights," at 208, 9 Yale I. World Pub. Order 193, 194 (1982). See also Report of M. C. Bassiouni to the Ad Hoc Working Group of Experts for the Commission on Human Rights, U.N. Doc. E/CN.4/AC/22 CRP, 19 Rev. 1 (1980). See also International Convention on the Elimination of All Forms of Racial Discrimination, entered into force, Jan. 4, 1969, G.A. Res. 2160, 20 U.N. GAOR, Supp. (No. 14), U.N. Doc. A/6014 (1966).
For an excellent treatment of this concept, see: Robert Alfert Jr., "Hostes Humani Generis: An Expanded Notion of U.S. Counterterrorist Legislation," EMORY INTERNATIONAL LAW REVIEW, Vol. 6, No. 1., Spring 1992, pp. 171 - 214.
In addition to the territorial principle and the nationality principle, there are three other traditionally recognized bases of jurisdiction under international law the protective principle determining jurisdiction by reference to the national interest injured by the offense: the universality principle, determining jurisdiction by reference to the custody of the person committing the offense and the passive personality principle, determining jurisdiction by reference to the nationality of the person injured by the offense. See Bassiouni, supra note 7, at 206.
The argument that Israel did not yet exist when the offenses were committed was highly technical. She could certainly. as a member of the family of nations, claim her right to share in the universal jurisdiction over crimes against humanity. Moreover, the State of Israel had crown from the Jewish community in Palestine, which had been internationally recognized since 1917 under the Balfour Declaration and later under the Peace Treaty, which gave it the status of a "Jewish National Home.'' Palestinian Jews had fought under their own flag in World War It; post‑war Israel had been recognized by the Western allies as having been a cobelligerent and had been invited to join them in terminating the state of war with Western Germany.
A number of other international criminal law conventions also include an explicit reference to aut dedere aut punire to support indirect enforcement in a decentralized legal order. Moreover as Professor Bassiouni has written, even where the Grotian maxim is not explicitly stated in particular Conventions, it can be inferred to obtain from the provisions of all such conventions. See Bassiouni, supra note--- , at 208. See also Bassiouni, supra note ---.
The principle has been well-established that orders pursuant to municipal law are no defense to violations of international law. See: Vienna Convention on the Law of Treaties, Art. 27, U.N. Conference on Law of Treaties, Doc. A/CONF. 39/27, May 23, 1969, reprinted in 8 I.L.M. 679 (1969); Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1932, P.C.I.J. (ser. A/B), No. 46, at 167; Treatment of Polish Nationals in Danzig (parties abbreviated), 1932 P.C.I.J. (ser. A/B), No. 46, at 24; see also: RESTATEMENT (second) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES. Secs. 3.2 (collected in Legal Advisor), U.S. Dept. of State, Memorandum on the Application of International Law to Iranian Exchange Regulations (Feb. 15, 1984), reprinted in 130 Cong. Rec. S. 1679, 1682 (1984).
See Kaufman, "A Legal Remedy for International Torture," N.Y. Times, November 9, 1980 (Magazine) at 52. The author, a judge of the U.S. Court of Appeals for the Second Circuit, wrote the opinion of the court in Filartiga v. Pena‑Irala supra note ---.
See, by this author: Louis Rene Beres, "Assassinating Saddam: A Post-War View From International Law," DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Vol. 19, No. 3., Spring 1991, pp. 613 - 623; Louis Rene Beres, "Victims and Executioners: Atrocity, Assassination and International Law," CAMBRIDGE REVIEW OF INTERNATIONAL AFFAIRS, Summer 1993, pp. 1 - 11; and Louis Rene Beres, "Assassination and the Law: A Policy Memorandum," STUDIES IN CONFLICT AND TERRORISM, October/December 1995, pp. 299 - 315.
Terrorism is a "conglomerate" crime under international law. For current conventions in force on terrorism, see: Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, adopted Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167; Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95; Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, 704 U.N.T.S. 219; Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 565, 10 I.L.M. 1151; International Convention Against the Taking of Hostages, Dec. 17, 1979, 18 I.L.M. 1456; European Convention on the Suppression of Terrorism, opened for signature, Jan. 27, 1977, Europ. T.S. No. 90, 15 I.L.M. 1272 (entered into force, Aug. 4, 1978).
Here it is important to understand that affirmations of "No crime without a punishment" do not reject the corollary principles of Nullum crimen sine lege ("No crime without a law!") or Nulla poena sine lege ("No punishment without a law!") because these affirmations are founded upon already settled and incontrovertible norms of international criminal law. The doctrine of Nullum crimen sine poena could conceivably be abused were the definition of crime left in each case to ad hoc determinations of prevailing public authority (such as in situations where punishment is based upon retroactive declarations of penal law, or where normative ambiguity makes it impossible to know in advance precisely which conduct is criminal), but such abuse could not possibly obtain in the prosecution of genocide and genocide-like crimes. This is because the categories of criminal conduct that would form the pertinent indictments are already fixed, clear and binding.
See PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL. Report of the International Law Commission, 2nd Session, 1950; U.N. G.A.O.R. 5th Session, Supp. No. 12, A/1316, p. 11.
A supporter of straight retributivism was Immanuel Kant. Writing in his PHILOSOPHY OF LAW, Kant identifies a purposeful conception of punishment as follows: "This is the right of retaliation (justalionis), and properly understood, it is the only principle which in regulating a public court...can definitely assign both the quality and the quantity of a just penalty." Immanuel Kant, PUBLIC RIGHT, in PHILOSOPHY OF LAW (Hastie tr., 1887). On the retributive view generally, see: M. Cherif Bassiouni, SUBSTANTIVE CRIMINAL LAW 91-139 (1978); Sir Walter Moberly, THE ETHICS OF PUNISHMENT 96-120 (1968); C.L. Ten, CRIME, GUILT AND PUNISHMENT 38-65 (1987); Robert Nozick, PHILOSOPHICAL EXPLANATIONS 363-97 (1981); John Kleinig, PUNISHMENT AND DESERT (1973); D.J. Galligan, THE RETURN TO RETRIBUTION IN PENAL THEORY, in CRIME, PROOF AND PUNISHMENT 154-157 (C. Tapper, ed., 1981); Igor Primoratz, JUSTIFYING LEGAL PUNISHMENT 67-110 (1989); Ted Honderich, PUNISHMENT: THE SUPPOSED JUSTIFICATIONS 22-51 (1969); A TEXTBOOK OF JURISPRUDENCE 320 - 326 (G. Paton and Durham, eds., 1964); Heinrich Oppenheimer, THE RATIONALE OF PUNISHMENT (1975); Mary Margaret MacKenzie, PLATO ON PUNISHMENT 21-33 (1981).
See: Werner Jaeger, 1 PAIDEIA: THE IDEALS OF GREEK CULTURE 150 - 169 (Gilbert Highet, tr., 1945); Gregory Vlastos, SOLONIAN JUSTICE, in 41 CLASSICAL PHILOLOGY 65 (1946); and Hugh Lloyd-Jones, THE JUSTICE OF ZEUS 80 - 81 (1971).
From the utilitarian perspective, only consequences constitute good reason for punishing or abstaining from punishment; desert and justice do not count in their own right. Punishment is an evil which a utilitarian considers morally justified only when it is a means for securing a greater good. Because of this, the principle of Nullum crimen sine poena is not necessarily accepted always by utilitarians. There are occasions, from the utilitarian perspective, where punishment is judged inappropriate because it would produce worse consequences than non-punishment. According to utilitarian thought, every unprofitable punishment is ipso facto morally unjustified. Or as Bentham puts it: "It is cruel to expose even the guilty to useless sufferings." See: Jeremy Bentham, THEORY OF LEGISLATION 345 (R. Hildreth, ed.; E. Dumont, tr.; 1871).
Since its founding, the United States has reserved the right to enforce international law within its own courts. Article 1, Sec. 8, Clause 10 of the United States Constitution confers on Congress the power "to define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations." Pursuant to this Constitutional prerogative, the first Congress, in 1789, passed the Alien Tort Statute. This Statute authorizes United States federal courts to hear those civil claims by aliens alleging acts committed "in violation of the law of nations or a treaty of the United States" when the alleged wrongdoers are in the United States, 28 U.S.C. Sec. 1350(1988).
On the incorporation of international law into United States law, the key case is The Paquete Habana. There, the U.S. Supreme Court stated: "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, resort must be had to the customs and usages of civilized nations." See: The Paquete Habana, 175 U.S. at 700 (1900).
In this connection, see, by this author: Louis Rene Beres, "After the Gulf War: Iraq, Genocide and International Law," 69 U DET. MERCY L. REV.., 13 (1991); Louis Rene Beres, "Iraqi Crimes and International Law: The Imperative to Punish," 21 DENV. J. INT'L L & POLICY 335 (1993); Louis Rene Beres, "Iraqi Crimes During and After the Gulf War: The Imperative Response of International Law," 15 LOY.L.A. INT'L & COMP. L.J. 675 (1993); Louis Rene Beres, "Iraqi Deeds and International Law: The Question of Punishment," 14 JERUSALEM J. INT'L REL. 22 (1992); Louis Rene Beres, "Prosecuting Iraqi Crimes Against Israel During the Gulf War: Jerusalem's Rights Under International Law," 9 ARIZ. J. INT'L & COMP. L., 337 (1992); Louis Rene Beres, "Prosecuting Iraqi Crimes: Fulfilling the Expectations of International Law After the Gulf War," 10 DICK. J. INT'L L., 425 (1992); Louis Rene Beres, "Prosecuting Iraqi Crimes Under International Law: An American Constitutional Imperative," 15 HOUS. J. INT'L L. 91 (1992); Louis Rene Beres, "Prosecuting Iraqi Gulf War Crimes: Allied and Israeli Rights Under International Law," 16 HASTINGS INT'L & COMP. L. REV. 41 (1989); Louis Rene Beres, "Toward Prosecution of Iraqi Crimes Under International Law: Jurisprudential Foundations and Jurisdictional Choices," 22 CAL. W. INT'L L.J. 127 (1991-92); Louis Rene Beres, "The United States Should Take the Lead in Preparing International Legal Machinery for Prosecution of Iraqi Crimes," VA J. INT'L L., 381 (1991); Louis Rene Beres, PROSECUTING IRAQI CRIMES UNDER INTERNATIONAL LAW: AN AMERICAN CONSTITUTIONAL IMPERATIVE (1992)(Occasional Paper, The Joan B. Kroc Institute for International Peace Studies, Univ. of Notre Dame); Louis Rene Beres, PUNISHING GENOCIDE AND CRIMES AGAINST HUMANITY: AFTER THE GULF WAR: IRAQI CRIMES AND INTERNATIONAL LAW 41 (1990)(Occasional Paper, Graduate Institute of International Studies, Programme for Strategic and International Security Studies, Geneva, Switzerland).
See G. Gregory Schuetz, "Apprehending Terrorists Overseas Under United States and International Law: A Case Study of the Fawaz Younis Arrest," 29 HARVARD INTERNATIONAL LAW JOURNAL, 499, 501 (1988).
See United States v. Alvarez - Machain, No. 91 - 712 (U.S. June 15, 1992), which held that a respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws.
Here it is important to note that responsibility of leaders for pertinent crimes is not limited by official position or by requirement of direct personal actions. On the principle of command responsibility, or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb) 12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1, 71 (United Nations War Crimes Commission Comp. 1949); see: Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES, 62 MIL.L.REV. 1 (1973); O'Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM, 60 GEO.L.J. 605 (1972); U.S. DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 - 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907) 10 (1970). The direct individual responsibility of leaders for genocide and genocide-like crimes is unambiguous in view of the London Agreement, which denies defendants the protection of the Act of State defense. See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Strat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, Art. 7. Under traditional international law, violations were the responsibility of the state, as a corporate actor, and not of the individual hunman decision-makers in government and in the military.
A case in point is that of Iraqi crimes committed during the 1991 Gulf War. The official account of the Gulf War is found in U.S. DEPARTMENT OF DEFENSE, CONDUCT OF THE GULF WAR (1992). Appendix O of this document addresses the following issues under the law of war: Hostages; treatment of civilians in occupied territory; targeting; collateral damages and civilian casualties; enemy prisoner of war programs; treatment of prisoners of war; repatriation of prisoners of war; uses of ruses and perfidy; war crimes; environmental terrorism; conduct of neutral nations; and "surrender" in the conduct of combat operations. For an excellent policy-centered treatment of these issues, see: W. Hays Parks, THE GULF WAR: A PRACTICIONER'S VIEW, 10 DICKINSON JOURNAL OF INTERNATIONAL LAW, 393-423 (1992).
The rule of Sovereign Immunity may be traced to Roman Law and to the maxim of English law that "The King can do no wrong." Under current United States law, the authoritative expression of this rule may be found in the Foreign Sovereign Immunities Act of 1976, 23 U.S.C. Secs. 1602 - 1611 (1976).
Alternatively, persons accused of genocide or genocide-like crimes could be tried in absentia, but such trials would have little practical effect, and would hardly satisfy the expectations of Nullum crimen sine poena. Moreover, trials in absentia (although authorized by the IMT Charter at Nuremberg; Art. 12 at 1548) may run counter to long-settled principles of justice and due process in national and international law. In the United Nations Report of the 1953 Committee on International Criminal Jurisdiction, the Committee reaffirmed the general principle of law that an accused "should have the right to be present at all stages of the proceedings." U.N. GAOR, 9th Sess., Supp. No. 12, at 19, U.N. Doc. A/12645 (1953). In the Annex to the Report, the Committee's Revised Draft Statute for an International Criminal Court, the rights of the accused to a "fair trial" include "the right to be present at all stages of the proceedings." Id. at 25. The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on November 4, 1950, also stipulates that anyone charged with a criminal offense has the right "to defend himself in person or through legal assistance of his own choosing." The European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4., 1950, Art. 6(3)(c), 213 U.N.T.S. 221. The same right is affirmed in the International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16 at 52, U.N. Doc. A/6316(1966). Strictly speaking, anyone who is charged with a criminal offense who is offered representation "through legal assistance of his own choosing" as an alternative to defending himself in person, is being allowed essential minimum guarantees under law and is not being deprived of due process by trials in absentia. Id. Similarly, anyone who is charged with a criminal offense who is offered the opportunity "to defend himself in person," but declines to do so, is not being mistreated under the law.
Most recently we see such egregious infliction of harms in the area of the former Yugoslavia. See: THE UNITED NATIONS AND THE SITUATION IN THE FORMER YUGOSLAVIA, United Nations, Reference Paper, Department of Public Information, DPI/1312/Rev.4, July 1995, 10M, New York.
See, for example, statement by Jamal Abdel Hamid Yussef, explaining operations of the Izzedine al-Qassam Brigades (military wing of Hamas) in Gaza: "Our suicide operations are a message...that our people love death. Our goal is to die for the sake of God, and if we live we want to humiliate Jews and trample on their necks." See: Louis Rene Beres, "Power and Survival: Some Pertinent Reflections on Israel and the Middle East Peace Process," in FACING THE APOCALYPSE: ISRAEL'S "PEACEFUL" MARCH TO DISAPPEARANCE.
Should we stand exclusively in the tradition of Greek philosophy and Renaissance science, we would discover little to support a purposeful individual life. On the contrary, it seems it is the utter pointlessness of individual life that is underscored by the application of Reason to the vast panorama of life in general.
On the idea of self-liberation, see: Max Stirner, THE EGO AND HIS OWN: THE CASE OF THE INDIVIDUAL AGAINST AUTHORITY; tr. Steven T. Byington (1845: New York: Libertarian Book Club, 1963). A formidable assault on authoritarianism in the mid-nineteenth century, Stirner's book represented a "third force" - neither a defender of the theological or monarchical state, nor a supporter of models offered by Liberals and Socialists. Conceived as the rejoinder to Hegel, it argued that all freedom is essentially self-liberation (an argument that influenced the dramatic writings of Henrik Ibsen).