A Country I Do Not Recognize

by Robert H. Bork

  A similar strategy is now being applied on the international level in an effort to achieve substantive policy results (some laudable and some not so laudable) that could not otherwise be obtained through the ordinary political processes of national governments in general, and of the United States in particular. Of course, the tactics are necessarily different from those employed by judicial activists in the United States, since there is no established international court system. The efforts to create such a system, however, are well under way—most notably with the establishment, in July 2002, of an International Criminal Court (ICC) in The Hague. That institution has the authority to investigate, prosecute, and punish the elected leaders of its member states for the criminal offenses defined in its founding statute (the “Rome Statute,” having been originally agreed upon at the city of Rome in 1998), including “aggression,” war crimes, crimes against humanity, and genocide. In addition, the ICC asserts jurisdiction over the officials and citizens of nonstate-parties in certain circumstances (when the alleged offense took place on the territory of a state-party)—a claim inconsistent with the international law of treaties and repudiated by the United States under both the Clinton and George W. Bush administrations.

  Besides making this unprecedented effort to manufacture and impose a “universal” form of jurisdiction on countries that have not ratified the Rome Statute, activists have turned to the principle of “universal jurisdiction” in national courts to achieve their ends. That doctrine—which first appeared as a means of combating piracy in the seventeenth and eighteenth centuries—suggests that any state can define and punish certain “international” criminal offenses, regardless of where the relevant conduct took place or what the nationality of the perpetrators or victims may be. One commentator described the logic of universal jurisdiction as follows: “Since each sovereign power stands in the position of a guardian of international law, and is equally interested in upholding it, any state has the legal right to try war crimes, even though the crimes have been committed against the nationals of another power and in a conflict in which that state is not a party.”2

  From an activist’s perspective, the attraction of universality is obvious, particularly in view of concomitant claims (largely based on the Nuremberg Trials following World War II) that government officials enjoy no immunity from prosecution for such offenses. For example, universality would allow a “human rights” lawyer, who opposed the recent war to depose Saddam Hussein, to initiate a criminal prosecution against the American general who commanded that campaign, so long as a cooperative state—in that instance, Belgium—could be found. Although that particular case was dropped, after causing a severe strain on U.S.-Belgian relations and after the consequent repeal of the universality component of Belgium’s Law on the Punishment of Serious Violations of International Humanitarian Law, universal jurisdiction remains something like the Holy Grail for international activists, who—without so much as a blush—assert that it is a well established and binding norm of international law. It is, in fact, nothing of the sort.

  Although innumerable claims have been made for universal jurisdiction, by activists, academics, and even state officials, even a cursory examination of the actual practice of states—which is what ultimately determines the scope and content of international law—reveals that the doctrine remains an aspiration rather than an established fact. This much is admitted by the most knowledgeable and candid commentators. For example, as Professor Cherif Bassiouni, who was elected as the Chairman of the Drafting Committee of the United Nations Diplomatic Conference on the Establishment of an International Criminal Court, has written:

  Universal jurisdiction is not as well established in conventional and customary international law as its ardent proponents, including major human rights organizations, profess it to be. These organizations have listed countries, which they claim rely on universal jurisdiction; in fact, the legal provisions they cite do not stand for that proposition, or at least not as unequivocally as represented.3

  If universal jurisdiction did exist, one would expect to find dozens of cases, from every corner of the globe, in which the citizens and state officials of one country had been prosecuted and punished by a second country, for offenses on the territory, or against the citizens, of a third. Yet no such body of precedent exists. At most, there are a handful of isolated instances in which universal jurisdiction principles have been cited, although almost never relied upon, by the courts.

  Nevertheless, activists continue to invoke the doctrine as a regular aspect of their political or polemical discourse, and many are clearly determined, by any means, to make universal jurisdiction a reality. As a result, the most frequently claimed legal bases for the doctrine of universal jurisdiction, as well as the likely consequences should such a principle become part of international law, deserve examination.

  The Enemies of All Mankind

  The origins of universal jurisdiction are invariably traced to the law of piracy.4 At least in Great Britain, claims to a universal criminal jurisdiction over pirates were made as early as the seventeenth century. Pirates, the theory went, were the common enemy of mankind (hostis humani generis in Latin), and consequently, all states were lawfully entitled to punish the offense. As British Admiralty Judge Sir Charles Hedges famously instructed the grand jury in Rex v. Dawson:

  The king of England hath not only an empire and sovereignty over the British seas, but also an undoubted jurisdiction and power, in concurrency with other princes and states, for the punishment of all piracies and robberies at sea, in the most remote parts of the world; so that if any person whatsoever, native or foreigner, Christian or Infidel, Turk or Pagan, with whose country we have no war, with whom we hold trade and correspondence, and are in amity, shall be robbed or spoiled in the Narrow Seas, the Mediterranean, Atlantic, Southern, or any other seas, or the branches thereof, either on this or the other side of the line, it is piracy within the limits of your enquiry, and the cognizance of this court.5

  However, the extent to which these claims ever evolved into accepted principles of international (as opposed to Anglo-American domestic) law can be, and has been, seriously questioned.

  The development of a tangible, as opposed to rhetorical, international law norm supporting universal jurisdiction in piracy cases would have required, as it would for other alleged criminal offenses against international law, a substantial body of precedent in actual state practice. That is, it would require real prosecutions brought by one state against the citizens of another for offenses, otherwise beyond its recognized territorial jurisdiction, against the nationals of a third. This body of law simply does not exist, even with respect to piracy. Indeed, some four years after Sir Charles Hedges charged the jury in Rex v. Dawson, King William III took care to inquire whether Louis XIV (with whom he was unusually, and momentarily, at peace), would rather deal with several score of French pirates, who had been captured off the Virginia coast and were then awaiting trial in England. Louis declined, suggesting that such “vermin” were entitled to no favors and that English justice was as good as any.6 That the question was asked, however, suggests a far more ambivalent state practice than might be supposed from Hedges’ assertions, taken in isolation.

  As the leading authority on the subject, Professor Alfred Rubin, points out in his magisterial The Law of Piracy, since the year 1705 there have been only three cases “of jurisdiction over accused ‘pirates’ being exercised in the absence of a link to some traditional basis for jurisdiction” other than universal jurisdiction.7 At most, there was a largely nineteenth-century effort, principally by Great Britain but to a lesser extent by the United States, to use universal jurisdiction claims as a way of justifying claims to police the seas. As explained by Professor Rubin:

  It may be concluded that “universal jurisdiction” when extended beyond the bounds of jurisdiction to prescribe and applied to notions of enforcement and adjudication under national criminal laws, was at best a rule of international
law only for a limited period of time [largely in the 19th century] and under political circumstances that no longer apply; at worst, it was merely a hobby horse of Joseph Story and some other learned Americans, and a British attribution to the international legal order of substantive rules forbidding “piracy” and authorizing all nations to apply their municipal laws against it on the high sea, based on a model of imperial Rome, and British racial and commercial ambitions that never did reflect deeper realities, as part of the rationalization of imperialism never really persuasive outside of England and some equally race-proud Europeans and Americans alone.8

  In short, even in the area where it is supposedly best accepted, universal jurisdiction, as an established legal principle, is a phantom.

  Moreover, the universal jurisdiction so often claimed for piracy was more narrow by far than the principles asserted for, and necessary to, the broad universality claims made for national universal jurisdiction laws, like those of Belgium or of institutions such as the ICC. In this regard, there were three essential characteristics attributable to the pirates who were said to be the subject of universal jurisdiction. First, they were recognized as individuals who, by their own acts and choice, had put themselves beyond the authority, allegiance, or protection of any state—including and especially their own. Such men sailed against all flags. Second, by definition, pirates acted privately, with the purpose and intent of private gain (animo furandi, i.e., with the intent to steal) without the benefit of state authority. They were, by definition, not state actors.9 Finally, their offenses took place largely beyond the territory (including the territorial sea) of any state.

  In these circumstances, a universal authority in states to prescribe the activities of pirates, and to bring them to book when possible, can be maintained more or less consistently with the fundamental principles of the international system—the sovereignty and equality of nation-states. The assertion of jurisdiction over essentially stateless men operating on the high seas does not interfere with the rights of any other sovereign state to protect its nationals or interests. Emphatically, this is not the case for the universality principles claimed by the ICC and its proponents or by the proponents of universal jurisdiction laws like those of Belgium. This form of universality posits the right (and some would even argue the obligation) of states or international institutions both to prescribe certain conduct and to prosecute and adjudicate allegations brought against the nationals of a state, regardless of where the alleged offense may have taken place and of whether the accused was acting under the color of state authority.

  The right to prosecute and punish state officials is, of course, a crucial aspect of this universality. The ordinary rule of international law is that government officials are immune from the legal processes of foreign countries because of the fundamental principle that equals cannot judge each other, as described in the maxim par in parem non habet jurisdictionem.10 Universal jurisdiction posits that government officials are not only subject to the relevant substantive legal norms but also that they can be prosecuted for violating those norms, even if the violation took place in the execution of their official duties and even if it was otherwise consistent with the constitution and laws of their own country. The Nuremberg Trials, through which the surviving Nazi leadership was punished after World War II, are usually cited in support of this principle—as it happens, incorrectly.

  The Nuremberg Legacy

  When the twentieth century began, the city of Nuremberg had a long and honored history. An independent, prosperous, and politically important town during the Middle Ages (joined to the neighboring kingdom of Bavaria only during the Napoleonic wars), it was a favorite of nineteenth-century German romantics, including Richard Wagner, who wrote “Die Meistersinger” in the city’s honor. Unfortunately, Nuremberg’s rich history also attracted one particularly zealous, and infamous, Wagner fan—Adolph Hitler—who used the city as something of an unofficial capital for the Nazi Party. It was here that the massive party rallies of the 1930s took place and that the odious “Nuremberg Laws,” depriving Germany’s Jews of citizenship and civil rights, were promulgated. Also an armaments manufacturing center, Nuremberg was 90 percent destroyed by Allied bombing during World War II. Its close connection to Nazi pageantry and its location in the American occupation zone made Nuremberg an obvious choice for the trials by which it is best known today.

  The Nuremberg Trials—actually the proceedings of the International Military Tribunal (IMT) which convened in the city’s only partly destroyed “palais de justice” from 1945 to 1946—are often cited, certainly by casual commentators and sometimes even by courts, as the foundation of modern “universal” jurisdiction.11 Nothing, however, could be further from the truth. Despite the efforts by many proponents of universality to use the Nuremberg Trials as a precedent for that principle, both in practice and theory the IMT’s authority was far less sweeping. It never claimed to act under the principles of universal jurisdiction but represented an ad hoc institution created by the victorious Allies to punish men who could not be permitted to go free.

  Like much during and after World War II, the Nuremberg Trials were the result of a compromise. Winston Churchill wanted simply to shoot the defeated Nazi leadership—within six hours of capture, after proper identification.12 This became the principal position of the British government, which maintained that, although “[l]esser war criminals might be tried within the limits of established law on war crimes . . . a Hitler trial would require new laws to be made up to match the crimes, and this was not only legally dubious, but would give the defence endless opportunities to argue so.”13

  Ironically, it was the Soviet Union that insisted most strongly on a “trial.” From Stalin’s perspective, it would be the grandest of his show trials,14 an open statement to the world of Communism’s triumph over National Socialism, and of his personal triumph over Hitler. The Roosevelt administration was divided, with Secretary of the Treasury Henry Morganthau Jr. supporting Churchill’s view, and Secretary of War Henry Stimson arguing for due process of law consistent with the Bill of Rights. Ultimately, the matter was in Stimson’s portfolio, and he prevailed, relying, as one author notes, “on a strange alliance with a Soviet system almost entirely at odds with American conceptions of justice.”15

  With both the United States and the Soviet Union, for their very different reasons, insisting on a trial, the British Government acceded—perhaps not coincidentally after Hitler committed suicide, since giving the fallen dictator yet another “platform” was one of Churchill’s principal objections to a trial. However, the fundamental legal issues pointed out by the British remained. Although there was a long and accessible tradition for punishing violations of the laws and customs of war, there was no obvious legal basis for reaching beyond the Third Reich’s military leadership into the Nazi Party hierarchy itself. Limiting postwar justice to the German high command would have pulled in a number of the chief surviving culprits, including Hermann Goering, but would not have reached men such as Albert Speer, Hitler’s armament minister, Joachim von Ribbentrop, Hitler’s foreign minister, and Robert Ley, head of the Nazi “labor front” who, along with Speer, oversaw one of the most brutal and widespread forced-labor systems in history.

  As the British government anticipated, the Nuremberg defendants challenged the IMT’s authority, as well as the legality of charges, particularly “crimes against peace,” that had not been recognized as criminal offenses before the war. In response to the first claim, the court did not rely on some generalized legal authority inherent in the “international community,” nor did it cite principles of “universal jurisdiction.” Instead, it openly and unequivocally relied on the rights of Germany’s conquerors to legislate for that defeated state. In this regard, the court noted as follows:

  The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out i
n Article 6. The law of the Charter is decisive, and binding upon the Tribunal.

  The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.16

  Indeed, the authority of the Nuremberg Trials as precedent for any legal proposition is doubtful. The two most important “innovations” claimed for the IMT were the principles, stated in Article 6 and 7 of its Charter, that individuals could be tried and punished for criminal offenses against international law, even though those offenses had not also been properly enacted into national legal codes and regardless of the immunity traditionally recognized for high government officials. Neither has been borne out in the ensuing years by actual state practice.

  The most controversial aspect of the Nuremberg Trials was the arraignment of individuals on a charge of waging, and conspiring to wage, an aggressive war. This charge did not exist in the German criminal code before the war, nor did it figure in the criminal codes of the other Great Powers. To justify the charge against the Nazis, the IMT cited the Kellogg-Briand Pact of 1928, under which the parties (including Germany and the Allied powers), had renounced war as an instrument of policy. This treaty, however, had none of the normal characteristics of criminal law, such as a definition of the elements of the “offense” or an established range of punishments.17