Tigar, Michael E.

English

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REVIEW ESSAYSNew Frontiers: The Expansion ofInternational Criminal LawtMICHAEL E. TIGARtProfessor Bassiouni's International Criminal Law is the successor to ATreatise on International Criminal Law, published in 1973 by ProfessorsBassiouni and Ved Nanda. The earlier treatise proved extremely valuable tothose of us with a scholarly and practical interest in international criminallaw and enforcement. It was almost the only resource available in Englishand was always the first place one looked to begin research.The present three-volume set is a worthy successor and supplement andhas brought together the work of forty authors from fourteen countries inarticles that cover almost all aspects of this field. In addition, a number ofappendices reproduce the texts of basic documents that a researcher or prac-titioner might have trouble locating in all but the best-equipped law library.The field of international criminal law has attracted the interest of ever-larger numbers of lawyers since World War II. The reasons are not hard tofind; in the past forty years, public international law has found a new basis,its scope has expanded to recognize new bearers of rights, and internationalbodies have come to play a larger role in its development.The first of these reasons for the expansion of international criminal law,its newly found basis, evolved in the wake of World War II. Because statescreated after the war have been unwilling to accept a set of rules largelyinherited from big power principles of coexistence, transnational criminallaw has evolved and expanded.The next reason for this expansion, the greater number of groups seen aspossessing rights, grew out of the historical view that the sole subjects ofinternational law were states. Almost without exception, an individual'srights under international law depended solely upon the state's willingness toassert them; violation of a personal right was typically thought of as anaffront to the sovereign, not the individual. The human rights movement ofthe past forty years has affirmed, repeatedly and increasingly effectively, thatt The full title of the reviewed text is INTERNATIONAL CRIMINAL LAW (M. Bassiouni,ed. 1986).T B.A. 1962, J.D. 1966, University of California (Berkeley). Thomas Watt GregoryProfessor of Law, University of Texas School of Law.TEXAS INTERNATIONAL LAW JOURNALindividuals are bearers of international rights. In turn, this development hasled to the expansion of categories of international crime. Formerly, thearchetypical international crime was an individual or sovereign taking upsword and thereby giving offense to another sovereign. But as individualsbecome bearers of rights, they can become victims of international crimes-even crimes committed by the sovereign in whose territory they dwell andwhose subjects they are.The third and final reason for the expansion of international criminal lawis the ever-larger role that international bodies have assumed in defining gen-erally accepted principles of international law. To the traditional institu-tions, one must add the General Assembly of the United Nations, theregional courts of human rights, and a number of international bodies thatoperate in affiliation with the United Nations.One must not, however, imagine that these volumes take the reader to thepinnacle of theory and stop there. Although there are many articles on fron-tier theoretical questions confronting the international and multinationalsystems of criminal justice, the lawyer with immediate workaday problemswill also find these books useful. They answer basic and commonly encoun-tered questions about such topics as extradition and the permissible territo-rial reach of a given sovereign's criminal law.Volume I, entitled "Crimes," is in two parts. The first contains severalarticles and documents on the framework of international criminal law, withspecial emphasis upon international human rights law, and crimes againstthe peace or against state security. The second part deals with individualinternational crimes and is divided into chapters on "Crimes Against thePeace, .... Armed Conflict and War Crimes," "Crimes Against FundamentalHuman Rights," "Crimes of Terror Violence," and "Crimes Against SocialInterests." The first three of these groups obviously address the interna-tional legal principles that developed in large measure from the Nurembergjudgments. These principles are important in the municipal context as well.Many states have incorporated specific penal sanctions against such conductinto their national codes. Moreover, such articles as "The Crime of Tor-ture" and "The Crime of Human Experimentation" address conduct thattakes place within the boundaries of a single state, even without the sover-eign's approval. Some of the articles, such as "The Crime of Apartheid,"treat conduct of particular, identifiable sovereigns within their own territory.It is difficult at times to sort out the different senses in which these articlesuse the word "crime." The general articles in Part I of Volume I help todefine the context, but the problem persists. Two hundred years ago, the listof international crimes was relatively short. Piracy was perhaps the arche-typical offense. Under the laws of any civilized state, a pirate was subject toprosecution wherever he might be apprehended and held. This was either asa result of codification, or by direct application of customary internationallaw-a kind of international common law crime.[Vol. 22:411INTERNATIONAL CRIMINAL LAWTwo related events have shattered this simple mold. First, nations areincreasingly responding to pressure from international and multinationalorganizations to create crimes addressed to international and multinationalconduct. For example, the American statutes on air piracy and assaultsagainst internationally protected persons are the direct result of internationalaccords to which the United States is a party. Despite their origins in inter-national agreement, these crimes fit the traditional mold: each sovereign cre-ates and enforces a norm according to its own views of the proper territorialreach of its penal law. A second development, commented on in severalchapters of Volume I, is the effort to create a consensus that certain conductis so odious that it violates the law of nations. This view holds that a stateshould not only punish such violations when they occur within its territoryor are committed by its nationals, but that states should assert their powersto condemn such conduct without reservation and punish violators whereverthey may be found.The first type of new international crime, multinational crime, raises littlecontroversy because its creation and enforcement are ultimately a matter ofmunicipal concern. One might ask whether violations of the law of nations,the second type of new international crime, has any business being consid-ered in a treatise on criminal law.The answer, for me, is yes. The denunciation of terrorism, apartheid,genocide, torture, and kindred practices as a matter of international law is ameans of asserting the existence, and defining the content, of norms that donot depend upon acceptance by a particular sovereign or government. Thesenorms can be defined and elaborated just like any other norm of interna-tional law.Expressing these norms is not merely an exercise in propaganda, althoughit may at times be precisely that. It is a means of stating principles that maycommand assent under the municipal law of individual states, and lead tocreation and enforcement of norms by the criminal law systems of individualstates. Eventually, for instance, one may see the creation of internationaltribunals possessing criminal jurisdiction. I should add that I find the propa-ganda effect of defining and denouncing this sort of behavior not at all unset-tling. It is a proper purpose of criminal law to express by means of norms alegitimate community concern about conduct the community finds odious.The editor expresses a "humanist" hope that international norms of crimi-nal law will do some good in these difficult times. Few would disagree.More specifically, norms about state sponsored terrorism, war crimes, andcrimes against the peace permit one to assess the conduct of sovereigns withsome degree of objectivity. One can, for example, arraign American policytowards Nicaragua. The United States claims that it systematically opposesstate sponsored terrorism and supports the rule of law in the internationalcommunity. Yet it mines the harbors of a nation-Nicaragua-with whichwe are at peace, abets the contras in attacks on civilian installations and19871TExAS INTERNATIONAL LAW JOURNALtargets, and condones practices by the contras that violate clearly establishedinternational norms.The example I have chosen illustrates, however, that the prospect of broadinternational agreement on norms affecting foreign and military policy isdim. So long as states have fundamentally different social systems, the sameschism that has characterized the debate over the specific content of interna-tional human rights will prevent consensus. In that debate, the capitalistcountries place emphasis upon political rights, and the socialist countriesupon social rights. The specific formulation of "rights" advocated by eachgroup proceeds directly from the legal ideology of their respective social sys-tems. By the same token, big powers are unlikely to agree that their geopo-litical posturing can be characterized as criminal, or metropolitan countriesare unlikely to regard the impoverishment of the Third World as other thanneutral operation of the market.But enough of theory. There is practical wisdom in these pages. TheChapters in Volume I treat current international and multinational criminalenforcement in the narcotics, intellectual property, and environmental pro-tection fields. Although I recognize the limits of space in an effort of thiskind, Volume I would have benefited from elimination of some appendicesand inclusion of more information on current criminal law problems. Forexample, the editor might have devoted more space to discussing measuresagainst assaults on internationally protected persons. The recent Letelierlitigation, involving the assassination by Chilean secret police of a prominentcritic of the Pinochet regime, comes immediately to mind. Those of us whohave participated in that litigation, and who continue to pursue it, have hadsome role in defining the meaning of internationally protected person, and insecuring recognition that such doctrines as "act of state" are not a shield forstate sponsored terrorism.Moreover, the authors might profitably have broadened their concernbeyond the relatively narrow range of "internationally protected persons,"which includes mainly diplomats and foreign official guests. There is a genu-ine need for international norms that would protect all refugees, and notonly internationally protected persons, from assault. Various treaties, provi-sions of municipal law, and rules of customary international law aredesigned to recognize the special status of those fleeing armed conflict orpolitical persecution. The work of the United States Senate committeechaired by Frank Church showed that a number of foreign secret policeagencies are permitted to operate in the United States, and that these agen-cies have not limited themselves to surveillance of refugees. An instance ofthese operations can be found in the Letelier litigation, as well.[Vol. 22:411INTERNATIONAL CRIMINAL LAWIn addition, the hostile attitude of some countries towards refugees-and Imean to include American policy-has been the subject of legitimate criti-cism from the United Nations High Commissioner. It is urgent for all inter-national actors to develop and enforce international norms relating to statebehavior towards those fleeing persecution. aWhile the topics chosen by the editor for discussion certainly merit atten-tion, he would have made the book even more useful to practicing lawyersby including chapters on the international financial markets and the relatedtopic of international fiscal crimes. There was a time when the near-univer-sal refusal of countries to enforce one another's fiscal laws, and the relativeimpregnability of bank secrecy laws, left little for international criminal law-yers to do in these fields. The play was in the hands of the planners, andonce the funds disappeared behind the walls of a friendly tax haven, only thetaxpayers or a plea-bargaining tattletale would bring the criminal practi-tioner into the matter.Times have changed. Bilateral treaties and understandings have grown innumber and have been expanded in content. Courts domestic and foreignhave assaulted the citadel of secrecy. They have been willing to assert crimi-nal jurisdiction over conduct that has an adverse effect on forum markets.Yet these volumes tell us little of that story.True, Volume II, subtitled "Procedure," has chapters on extraterritorialenforcement and on international exchange of information. These areimportant parts of the great changes that have taken place in the last decade,and these chapters are worthwhile additions to the literature.The puzzle has more pieces, however. We want to know state practicewith respect to assertion of jurisdiction over conduct that arguably takesplace outside state borders but has impact on the forum or some affiliatingcircumstance. We also want to know what information nations are customa-rily exchanging today in criminal matters, and by what means. Volume IIserves us well in these respects. But neither of these procedural subjects issufficiently norm-specific to tell us anything about the consensus, or lack ofit, with respect to prescribing conduct related to financial markets and enter-prise behavior.More attention to fiscal crimes would also be valuable because of therecent trend towards internationalization of finance capital. In 1985, forinstance, the United States became a net debtor nation for the first time since1914-one more indication of this phenomenon. The possibility of interna-tional manipulation of financial markets grows greater every year, and theenforcement authorities of capitalist countries have expressed increasingconcern on this score. The solutions have been largely unilateral and ad hoc.The subject deserves treatment in a comprehensive work on internationalcriminal law.Also missing from this work is any systematic treatment of antitrustnorms in the international and multinational arena. Perhaps the editor19871TEXAS INTERNATIONAL LAW JOURNALthought this specialized subject was beyond the scope of his project, and onecould certainly understand such a decision ("understand" does not mean"agree"). Multinational enterprises have shown time and again their abilityto engage in market control that evades the regulatory powers of nationaland even regional enforcement authorities. A study of this phenomenonwould probably reveal that states cannot agree on norms because there arecontradictions among ruling groups in advanced countries. To this must beadded the very different approaches to control of anticompetitive conduct-for example, the different attitudes towards cartels in the United States andthe European Economic Community.Yet, on the whole, Volume II is first-rate. The material on territorialitywill be helpful to practitioners and scholars alike, although the AmericanLaw Institute's Foreign Relations Restatement will have something to add.The sections on enforcement of judgments, transfer of prisoners, and inter-national exchange of information are good introductions to their subjects.The material on extradition might have included further treatment of theways in which states have been acquiring what prosecutors call "personaljurisdiction" over defendants. Extradition law is fairly straightforward: It isgoverned by treaty. The accused cannot be tried for an offense other thanthat for which he was extradited. Political crimes are customarily excluded.Fraud by the demanding state is frowned upon, although there are Americandecisions declining to grant relief based upon American deceit of a foreigngovernment in the extradition process. Notable among these is the FBI'sshameful manufacture of evidence against Native American activist LeonardPeltier, for whom I was one among a number of lawyers that included JohnPrivitera. John would have been able to add something to the discussion ofextradition in these volumes.Prosecutors and police are impatient with the delays and limitations onextradition. They have therefore resorted with increasing frequency to sub-terfuge. One government will ask another to deport the accused into thewaiting arms of its police. However, this device requires government-to-gov-ernment contact, often at high levels. It is more efficient simply to kidnapthe defendant. The Israeli government has apparently resorted to this tacticto bring Mordechai Vanunu to Jerusalem to face charges of unauthorizeddissemination of secret information-he blew the whistle on Israel's nuclearintentions. Recently in a federal criminal case in Austin, Texas, the defend-ant, who had been captured in Mexico, moved to dismiss because he wascharged with an offense other than that for which he was extradited. Theprosecutor responded that the defendant had not been extradited; he hadbeen kidnapped by Drug Enforcement Administration personnel. There-fore, argued the prosecutor, no legal wrong had been committed.These iniquities are permitted because the offense of kidnapping, or theindiscretion of evading an extradition treaty, is thought to be an affront tothe sovereign of the state of refuge and not to the defendant. This theory is[Vol. 22:4111987] INTERNATIONAL CRIMINAL LAW 417unsupportable in a world that increasingly recognizes individuals as bearersof rights under international law.I want to add that none of my comments should be taken as denying thegreat value of these volumes. I salute Professor Bassiouni for undertakingthis task, and the authors for their contributions. To allow the reader togauge my feeling about these volumes, I add this: I agreed to do this bookreview, although I have manuscripts overdue and too many projects under-way, on three conditions. First, that the review be an essay, and contain nofootnotes. Second, that it be brief. Third, and most important to me, that Iget to keep the books. They will, I think, be a valuable reference in solvingpractical problems, and a starting point for academic research.

New Frontiers: The Expansion of International Criminal Law

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