The Washington Post

April 18, 1999, Sunday, Final Edition

"A LOOK AT . . . The Future of Internationalism: Beyond National Interests"

by Bruce Zagaris

Nearly two weeks ago, two Libyan intelligence agents boarded an Italian

plane in Tripoli and were flown under U.N. authority to a naval base in the

Netherlands. Wanted in the downing of Pan Am Flight 103 and the deaths of

its 259 passengers and crew members as well as 11 residents of Lockerbie,

Scotland, the two now face trial on Dutch soil under Scottish law--a

welcome sign of progress in a 10-year-old international legal stalemate.

But the Lockerbie case also highlights an important question that will not

be solved by the conviction or acquittal of those two men: How should

disputes that fall under more than one jurisdiction be settled?

Seeking refuge from the law, as the two accused terrorists succeeded in

doing for a decade, is nothing new, of course. From Butch Cassidy and the

Sundance Kid to Mohammad Reza Pahlavi, the former shah of Iran, suspects

have crossed borders to escape the posse. But in recent years, the

questions of where to try a crime--and under whose law--have become more

perplexing. In an age of electronic commerce and international trade and

terrorism, incidents may take place in a country where they are not illegal

and have repercussions in another part of

the world where they are considered criminal acts.

These new kinds of crimes, combined with an increasing need to present a

united front against the internecine warfare and human rights violations

that plague the modern world, demand international legal cooperation--and

U.S. leadership--as never before. Without it, transnational criminals will

continue to prosper, war crimes will continue to go unpunished and U.S.

actions, even in the name of humanitarian goals, will lack the diplomatic

support they need.

In recent months, a number of attention-catching crimes have highlighted

the complex problem of achieving justice when there are overlapping

jurisdictions. Think of the legal wrangling in London leading up to the

decision to extradite former Chilean president Gen. Augusto Pinochet to

face trial in Spain for crimes he is accused of committing against Spanish

citizens in Chile; of the controversy over the jurisdiction of the

International Criminal Tribunal for War Crimes in the former Yugoslavia to

investigate atrocities in Kosovo; or of the outrage expressed by Americans

at Israel's refusal to extradite Maryland murder suspect Samuel Sheinbein

to stand trial in this country.

This last case is instructive. Israel's obligation under international law

is to prosecute or extradite the teenager, and the Israelis seem prepared

to do the former in a fair way. Thus, Israel does no damage to

international justice--even if it strains international friendships and

presents logistical challenges--by holding the trial on its own soil.

Such a solution was out of the question in the Lockerbie case. Since the

United States believes the Libyan government was complicit in, if not

actually responsible for, the bombing, there is no way a trial could be

held in Libya. Hence the protracted international negotiations with Libya,

the use of U.N. sanctions, and the resort to litigation in the

International Court of Justice (ICJ) in the Hague--the arbiter on many

international disagreements over issues such as extradition treaties--over

how and where the trial should be held. Indeed, what the Lockerbie case

best reflects is the growing need for international institutions, such as

the ICJ, to resolve such difficult cases.

But resorting to the decision-making processes of such an international

institution requires giving up some degree of sovereignty--something the

United States has often seemed unwilling to do. In the Lockerbie case, the

United States tried unilateral sanctions and fought to have the U.N.

Security Council, over which it has greater influence, act as arbiter.

In other instances, the United States has given mixed signals about how it

asserts its legal influence overseas.

On the one hand, the United States has been an innovator and leader in

promoting the rule of law. With the establishment of ad hoc war crimes

tribunals after World War II and more recently for war crimes in the former

Yugoslavia and Rwanda, in criminalizing transnational corruption with the

1976 Foreign Corrupt Practices Act, and in leading the negotiation of last

fall's Organization for Economic Cooperation and Development (OECD)

Anti-Corruption Convention, the United States has helped develop creative

laws and institutions to prevent and

combat transnational crime.

On the other hand, though, the United States has often sacrificed law on

the mantle of aggressive and illegal Realpolitik. In some highly publicized

incidents (with the loss of life caused by the use of U.S. armed forces in

Panama to arrest President Manuel Noriega for drug trafficking, for

example) and some less well-known ones (including a case that I have been

involved in for the past five years in which a Cypriot businessman, Hossein

Alikhani, who was accused of violating U.S. sanctions against Libya, was

lured on board a plane in the Bahamas in a U.S. Customs sting and abducted

to Miami), the United States has put self-interest before principle.

Indeed, the United States does not hesitate to pursue its own interests

overseas. It has always been the most aggressive country in extending

unilateral jurisdiction beyond its shores. Initially this practice was

restricted largely to antitrust and economic cases, where the conduct

occurs entirely abroad but has "effects" in the United States. But in the

1980s and '90s, the federal and

state governments expanded their jurisdiction over contraband, narcotics

and gambling on "cruises to nowhere" (just outside the U.S. maritime

territory). And to combat the growing threat of international terrorism,

the United States has continued to expand its jurisdiction over violent

acts committed abroad against U.S. nationals and property. From the 1987

arrest of Fawaz Yunis, in which the FBI lured the Lebanese hijacker to a

boat in the Mediterranean from where he was taken to stand trial in the

United States, to last year's bombing of the

pharmaceutical plant in Sudan and the base camps of Osama bin Laden in

Afghanistan in retaliation for the attacks on the U.S. embassies in Kenya

and Tanzania, the United States has refined and increased its determination

to act in its own interests outside its own borders.

The reach of the U.S. extraterritorial jurisdiction, combined with

aggressive investigative techniques, means that for a wide variety of

crimes the United States now stations its own law enforcement agents

abroad, conducts wiretaps and undercover stings, and arrests foreigners for

conduct (such as export control or Internet gambling) that is criminalized

only in the United States.

Even close allies sometimes find this hard to tolerate: So infuriated was

the Canadian government that it rejected a U.S. request to convene an

extradition hearing for a Canadian citizen, Kenneth Walker, who had failed

to return to the United States for sentencing on charges of violating arms

export laws. (Walker had originally been lured from Canada and arrested in

a U.S. Customs sting.)

To many foreign governments, the United States' use of extraterritorial

enforcement simply seems to be out of control and dangerous. This comes at

a time when the sole surviving superpower needs more than ever before to

take the lead in developing consistent policies to confront international

crime. On several key issues--from the proposed U.N. convention against

transnational crime, to the effective operation of war crimes tribunals for

the former

Yugoslavia and Rwanda, as well as the establishment of the proposed permanent

international criminal court--the United States' conduct and apparent

desire to go it alone risk marginalizing its leadership and eroding its

credibility.

Indeed, the United States' failure to pay the $ 1.6 billion it owes in U.N.

dues and its radical positions on international law threaten to undermine

diplomacy. The United States was one of the few countries that refused to

sign the 1997 convention to prohibit the production, stockpiling, use and

transfer of land mines. But perhaps most troubling of all is the United

States' feeble protestations over the permanent international criminal

court's proposed

jurisdiction. The court would obviate the need for an ad hoc tribunal each

time individuals are accused of war crimes. It would adjudicate cases of

genocide, crimes against humanity and aggression only if the suspect's home

country refuses or is not able to prosecute and only after an elaborate

number of safeguards verify the existence of sufficient evidence to

proceed. The United States joined the company of China, Libya, Iraq,

Israel, Qatar and Yemen as the only seven countries voting against the

permanent international criminal court treaty last year.

What's more, the United States' rigidity on many international criminal

issues threatens to compromise its authority on both national security and

key international economic issues, jeopardizing its ability to build a

consensus for its sanctions policies (against Cuba, Iran, Iraq and Libya)

and to gain support for its frequent resort to bombing (in both Iraq and

Yugoslavia at the moment).

The fact is that, ultimately, economic sanctions only work when the bulk of

the world participates. The European Union has initiated action in the

World Trade Organization against Cuban sanctions--a case that is currently

suspended. Also, the proposed Multilateral Agreement on Investment, which

would provide for rules on direct investment, and whose negotiation the

United States promoted in the OECD, has been blocked, in part because of

the United States' refusal to agree on stricter rules that would restrain

the use of unilateral economic sanctions.

The need to combat transnational crime must be addressed on both global and

regional scales. Today, the Western hemisphere and regions outside of

Europe cry out for a new architecture for criminal justice. Establishing

international enforcement bodies does, of course, require each

participating country to cede some degree of sovereignty. But that is a

small price to pay for what the United States and the rest of the world

stand to gain.

Bruce Zagaris, a specialist in international criminal law, is a partner at

the Washington law firm of Berliner, Corcoran and Rowe.

Copyright 1999 The Washington Post