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