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[1] 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.
I
Genocide, in all of its
manifestations, is a crime under international law.[2] 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."[3] Yet, in all instances of genocide and
genocide‑like crimes,[4] which are more general than crimes against
humanity,[5] 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[6] (direct
enforcement}.[7] 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.[8] Today,
there exists a well‑established regime for the protection of all human
rights. This regime, which includes international humanitarian law,[9] is comprised of peremptory norms,[10] rules
that endow all human beings with a basic measure of dignity and that permit no
derogation by states.[11]
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.[12] The
right of the international community to prevent and suppress such conduct is
well established in positive international law and in natural law.[13]
The more relevant example stems from
the Nuremberg Trials.[14] 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".[15] 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.[16]
II
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.[17]
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[18] 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.[19] 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.[20]
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.[21] 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.[22]
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.[23]
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."[24] 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"[25] 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."[26] 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,[27] 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.[28] 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."[29]
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."[30]
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.[31]
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."[32]
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.[33]
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;[34] 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.
III
Genocide and genocide‑like
crimes as well as other related violations of fundamental human rights such as
terrorism[35] 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."[36] 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:[37] "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."[38]
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.[39]
Protagoras's theory of punishment
rejects the alleged violence and irrationality of straight retributivism.[40] 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."[41] 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."[42] The pre-Socratic philsophers, especially
Anaximander, Heraclitus and Parmenides, displayed a metaphysical view of
retributive jutice as inherent in the cosmos itself.[43] 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.[44]
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.[45]
It follows here that utilitarian
views of punishment,[46] 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.[47]
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.[48] 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.[49]
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.[50] 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."[51] 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."[52]
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.[53] 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.[54] 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.[55] 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.[56]
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.[57] 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,[58] 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."[59] Nevertheless, where the alleged crimes[60] in
question are of a Nuremberg-category offense[61] (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.[62]
IV
But forcible abduction of
genociders, irrespective of jurisprudential correctness, may not prove
feasible.[63] 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.[64] 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,"[65] 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.[66] 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.[67]
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."[68]
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.[69]
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?[70]
[1]Currently the
best expression of this primacy can be found in Ernest Becker, THE DENIAL OF
DEATH (New York: Collier, 1973); and Ernest Becker, ESCAPE FROM EVIL (New York:
Collier, 1975).
[2]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).
[3]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).
[4]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.
[5]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.
[6]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).
[7]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.
[8]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).
[9]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.
[10]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.
[11]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.
[12]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.
[13]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.
[14]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.
[15]"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).
[16]See E. Borchard, The
Diplomatic Protection of Citizens Abroad or the Law of International Claims
14 (1922).
[17]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).
[18]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.
[19]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.
[21]In response to
the issues of Israel's non‑existence at the time of the Holocaust, Gideon
Hausner, who prosecuted Adolf Eichmann before the Jerusalem District Court,
makes the following point:
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.
[22]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 ---.
[26]See Blackstone, Commentaries
on the Laws of England, Introduction: cited by G. Hausner, Justice in
Jerusalem, 411 (1966).
[27]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).
[28]See Llandovery
Castle case, cited by T. Taylor, Nuremberg and Vietnam, An American Tragedy,
24 (1970).
[33]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 ---.
[34]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.
[35]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).
[36]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.
[37]See THE
NUREMBERG PRINCIPLES, reprinted in R.A. Falk, et. al., eds, CRIMES OF WAR, 1971, p. 107.
[38]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.
[39]See PLATONIC
DIALOGS; PROTAGORAS; sec. 324. See
also: GORGIAS; sec. 525; REPUBLIC; sec. 380, 615; PHAEDO; sec, 113; LAWS; sec. 854, 862, 934, 957.
[40]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).
[43]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).
[46]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).
[47]See: Immanuel
Kant, THE METAPHYSICAL ELEMENT OF JUSTICE, in THE METAPHYSICS OF MORALS 102 (John Ladd tr., 1965).
[48]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).
[49]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).
[50]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).
[53]See M. Cherif
Bassiouni, "Unlawful Seizures and Irregular Rendition Devices as
Alternatives to Extradition," 7
VANDERBILT JOURNAL OF TRANSNATIONAL LAW,
25, 30 (1973).
[54]See generally,
Gregory v. Gooding, "Fighting Terrorism in the 1980s: The Interception of
the Achille Lauro Hijackers," 12
YALE JOURNAL OF INTERNATIONAL LAW 158 (1987).
[55]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).
[56]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.
[60]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.
[61]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).
[62]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).
[63]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.
[64]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.
[65]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.
[66]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.
[67]Elsewhere,
Ionesco comments: "People kill and are killed in order to prove to
themselves that life exists." See
the dramatist's only novel, THE HERMIT (New York: Seaver Books, 1973), p. 102.
[69]See: Carl Jung,
"Psychology and Religion," in
G.B. Levitas, THE WORLD OF PSYCHOLOGY,
Vol. 2., "Identity and
Motivation," New York: George
Braziller, 1963, pp. 476 - 477.
[70]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).