Nevertheless, the Court has inserted the judiciary into an area uniquely reserved to the political branches, and particularly to the president. Although circumstances arise when the courts are properly called on to interpret or apply treaties to which the United States is party,66 on the international level it is the president who must construe the United States’ legal obligations—whether in treaties or customary international law. He is, as John Marshall noted while serving in the House of Representatives:
[T]he sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.67
The power to interpret American international law obligations is a critical authority. Nation-states often disagree over the content and meaning of international law, whether in treaties or custom, and the view of one state (or grouping of states) is inherently no better or worse than that of others. The right of every state to interpret and apply international law for itself is an essential attribute of sovereignty and, although that right may be subordinated by consent, as when a state has agreed to accept the ruling of an international arbitral body like the ICJ, it cannot be extinguished. When American courts recognize and vindicate claims based on an interpretation of international law that is inconsistent with the executive branch’s position, they both trench on the president’s constitutional authority and undercut the United States’ ability to “speak with one voice” in foreign affairs.
In the process, they may very possibly put the United States in an impossible position relative to other powers. Although, all things being equal, the Court’s cautious language about the possibility that new ATCA claims can develop may well lessen the potential for interbranch conflicts over the meaning and content of international law, it does not rule them out. It is also important to recall that assertions of jurisdiction by the United States over events overseas can no more make international law, in and of themselves, than can Belgium’s ill-starred foray as an international prosecutor. However, the potential damage to the foreign relations of the United States, and to the operation of the international system itself, by such assertions remains substantial.
The Future
Although those who claim that universal jurisdiction is an established fact are asserting far more than they can prove based on the actual practice of states, doubtless a determined effort is under way to create such authority. As noted above, the appeal of “universality” to international activists is obvious, as is its attraction for states who wish to increase their stature in a world where the ability to project military power is increasingly beyond their material means. Moreover, as this effort to substitute what foreign policy wonks call “soft” power for military might is dressed in the language of reason and law—the creation of an international system governed by law and not by force—dissension begins to sound positively seditious.
Basing such a system on universal jurisdiction principles, however, is a short route not to the elysian fields but to international anarchy. Universality presupposes the right of a single state to act on behalf of all in punishing conduct that all consider criminal, regardless of the citizenship or official capacity of the victims and perpetrators. Even if there were agreement among all nations on what conduct that might be (and there is not), the interpretation of even the most well-established international norms differs from state to state. Take, for example, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. This widely accepted treaty defines genocide to include “[c]ausing serious bodily or mental harm to members of [a protected] group.” In ratifying this convention, the United States noted an understanding to the effect that “the term ‘mental harm’ . . . means permanent impairment of mental faculties through drugs, torture or similar techniques.”68 It was the only state to note such a limitation. Similarly, the United States also noted a reservation providing that “nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”69 Other states may interpret the convention more broadly (to include causing anguish or depression, for instance) and, in fact, the U.S. reservation on authorizing legislation prohibited by its Constitution was questioned or rejected by as many as thirteen other state-parties. These included Germany, the United Kingdom, Spain, Sweden, Norway, the Netherlands, Mexico, Italy, Ireland, Greece, Finland, Estonia, and Denmark.70 Under universal jurisdiction theories, these differing views could be imposed on the United States, despite its objections, through prosecutions against American citizens or officials.
Similarly, although it is widely accepted that the laws of war prohibit indiscriminate attacks that result in disproportionate damage to civilians, there is wide disagreement over what constitutes such an attack. This issue is raised nearly anytime the United States chooses to use force overseas. It was raised during the 1990–1991 Persian Gulf War, the 1999 NATO campaign against Slobodan Milosevic’s Serbia, and, most recently, in Afghanistan and Iraq. Although the United States follows the traditional formulation, that collateral damage to civilians cannot be disproportionate to the military advantage sought to be gained, many of its allies have accepted an arguably far more restrictive standard, based on the 1977 Protocol I Additional to the 1949 Geneva Conventions. The United States has refused to become a party to that protocol.
In fact, under the doctrine of universal jurisdiction, each and every state would be perfectly entitled to interpret the requirements of international law in accord with its own values, traditions, and national interests and then to impose that interpretation on any other state through the device of a criminal prosecution. Thus, for example, if Saddam Hussein’s Iraq (or Libya, or China, or the Principality of Monaco) had concluded that the United States and its NATO allies had violated the laws of war by attacking (over the issue of Kosovo) the Federal Republic of Yugoslavia in 1999, it would have been perfectly entitled to indict President Clinton, Secretary of State Madeleine Albright, General Wesley Clark, and any other potentially responsible official, as well as their counterparts in NATO’s other member states, and demand their extradition for trial in Baghdad. The Allies would have had no choice but to comply. That, of course, is not the law, and this is precisely and exactly why it is not. Universality cannot work in a system of independent and equal states, in which all may interpret and enforce the law with equal authority—unless it is limited to stateless persons, as pirates once were considered to be.
The International Criminal Court
The lack of such a universal imperium, in which states are subordinate to an international judicial authority, has not stopped determined efforts to create a new international criminal judicial system, based on principles of universality. A little over four months after the ICJ held Belgium’s universal jurisdiction experiment to violate international law, the first permanent international criminal court was established (July 1, 2002) at The Hague. Unlike the two United Nations’ ad hoc criminal tribunals, for the former Yugoslavia and Rwanda, which have a limited territorial and temporal jurisdiction based ultimately on state consent (under the U.N. Charter all members agree to carry out Security Council resolutions adopted, as these were, under Chapter VII), the ICC asserts a worldwide jurisdiction.71
Created in accord with the 1998 Rome Statute, under which the court was not actually established until sixty countries had deposited instruments of ratification, the ICC has competence to investigate, try, and punish dozens of offenses falling into four broad categories: (1) genocide, (2) crimes against humanity, (3) war crimes, and (4) aggression. Under Article 12 of the Statute, the ICC claims the right to exercise this authority with respect to the citizens of state-parties, and of nonstate-parties when an offense has allegedl
y taken place on the territory of a state-party. This claim violates international law.
Despite its grandiose title of “statute,” the ICC’s founding document is nothing more than a treaty. Like all other treaties, it cannot regulate the rights and obligations of third-party states unless they have ratified the instrument through their own constitutional processes. The Rome Statute’s effort to upset this long-settled rule is one of the fundamental reasons why the United States has rejected the ICC project. It was noted both by President Clinton, who cited this aspect of the Rome Statute in urging President Bush not to submit the treaty for the Senate’s consideration, and by the Bush Administration in explaining why the United States was formally rejecting or “de-signing” the Rome Statute: “We believe that in order to be bound by a treaty, a state must be party to that treaty. The ICC asserts jurisdiction over citizens of states that have not ratified the treaty. This threatens US sovereignty.”72
A New Sovereignty
The United States’ participation in the ICC regime, or even acceptance of a “universal” criminal jurisdiction like that asserted by Belgium, would not merely threaten U.S. sovereignty; it would require a revolution in the very conception of “sovereignty,” or self-government, as Americans have understood it for the past two and a quarter centuries. When thirteen of Britain’s American colonies established a political union and declared their independence in 1776, they claimed the right to “assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” That claim was vindicated by war and accepted by Great Britain in the 1783 Treaty of Paris. Since that time, all the other “powers of the earth” have accepted American independence. Among the attributes of sovereignty that came along with this separate and equal station was the right to interpret and apply international law, or the “Law of Nations” as the Republic’s founders would have known it, by and through American institutions, established by and accountable to the American people.
Universality, of course, posits that there is some authority higher than the individual nation-state, an authority capable of second-guessing any particular country’s conclusions about what international law requires, what conduct it condemns as criminal, and who may have committed violations. No such authority has been recognized, either spiritual or temporal, since the Peace of Westphalia in 1648, when the Holy Roman Emperor effectively surrendered his claims to a universal authority over central Europe. Today, no single state, or collection of states, can legitimately claim such power. This includes modern, multilateral organizations such as the United Nations (whose Charter plainly reaffirms the “principle of the sovereign equality of all its members”), the ICJ (or the “World Court”), and the World Trade Organization. The legal authority of these institutions rests not on some generalized lawmaking power embodied in the “international community” but solely on the consent of states—a consent that could be withdrawn in appropriate circumstances.
As an institution, the ICC is different from these others in quality and kind. As noted above, the court has asserted jurisdiction over the citizens and public officials of all states, with or without consent. The circumstances in which this claim would apply are as follows. If an offense, otherwise subject to the ICC’s authority, is alleged to have been committed on the territory of an ICC member state by the citizen of a nonmember, under the Rome Statute the court would be free to investigate, prosecute, try, and punish that person—regardless of his or her citizenship. Moreover, the court also would be able to reach the citizens and officials of nonpartystates in such circumstances, who may have never set foot in the territory of a member state, on theories of intended consequences and command responsibility. This goes far beyond any territorial or extraterritorial jurisdiction recognized by modern international law. It ignores a number of fundamental limits that international law has traditionally imposed on the ability of one state to prosecute the citizens and officials of another, limits that apply even to prosecutions for offenses committed on a state’s own territory.73
The ICC’s pretensions in this respect are entirely unprecedented, because they involve a kind of criminal enforcement power never before claimed, or conceded, by the community of nations. Unlike traditional “universal” jurisdiction claims, which involve individual states enforcing international norms through national judicial authority, the ICC wields a supernational authority that is exercised in contravention of ordinary state power. Under the doctrine of “complementarity” set forth in Article 17 of the Rome Statute, the court can generally take a case only if national institutions fail to pursue the matter in an impartial manner.74 The court, of course, is the sole judge (under Rome Statute Article 119) of whether this standard is met. Therefore, in most circumstances, when the ICC goes forward with a case, it will do so in contravention of decisions already made by competent national authorities. The ICC is not, in short, the agent of its member states; it is the principal. This is a fundamentally different kind of international judicial authority than that acknowledged, and exercised, by multilateral institutions in the past.
Not only does this revolutionary institution, as a new species of judicial authority, challenge traditional notions of sovereignty and self-government, it also constitutes a new and dangerous form of executive or prosecutorial power. The ICC, of course, does not merely act as a court. Its judicial bench is only one of the ICC’s organs. The others are the registrar—who handles administrative matters—and the prosecutor. The power of the ICC prosecutor is enormous and, for all practical purposes, unchecked. Under the Rome Statute, prosecutors may initiate investigations on their own authority, and the court’s judges must permit an investigation to proceed if it has a “reasonable basis.” Although a prosecutor may be removed from office for “serious misconduct or a serious breach of his or her duties,”75 these terms have been defined in relation to personal misconduct or attempting to obstruct the course of justice.76 How he exercises his office, his agenda, is entirely up to the prosecutor.
Powerful prosecutors, of course, are nothing new. As Justice Robert Jackson (then serving as U.S. Attorney General) explained about federal prosecutors:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the cases before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.77
In the United States, however, this power is tempered by democratic accountability. State prosecutors are generally elected officials—often the most important local elected officials. United States Attorneys are appointed by the president, but only by and with the Senate’s advice and consent. As Jackson further explained:
Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.78
Moreo
ver, in actual practice, the enforcement policies and decisions of individual United States Attorneys are subject to the president’s direction and to oversight by Congress.
Perhaps more to the point, even assuming that a prosecutor is acting from good and honorable motives, he exercises some of the most fundamental powers of government—and this must be accomplished in the context of his or her own body politic. The essence of prosecutorial discretion is balancing the necessity of punishing an individual against broader societal interests. At one level, it entails examining the accused’s genuine culpability—whether the alleged violation was willful and deliberate, whether the person involved was a repeat offender, and how serious the offense was compared with other offenses that might merit expending prosecutorial resources. The answers to these questions are often highly localized, and this is particularly true of resource allocation questions. One area may have significant problems with street crime, while another may be plagued by organized crime, and still another by a corrupt local political system. In exercising his discretion, a democratically accountable prosecutor must address the needs of the community he serves. From this grows legitimacy.
A Country I Do Not Recognize Page 21