Johan D. Van Der Vyver, Prosecuting Offenses Against the Law of Nations in the United States

• Citation: Vol. 20 No. 2
• Publication year: 2006

ARTICLES

PROSECUTING OFFENSES AGAINST THE LAW OF NATIONS IN THE UNITED STATES

Johan D. van der Vyver^*

In 1986, the United States ratified the Convention on the Prevention and Punishment of the Crime of Genocide.¹It subjected its ratification instrument to a package of reservations, understandings and declarations (RUDs)²which prompted one analyst to say that ratification of the Convention by the U.S.

Senate was merely "a symbolic act."³Another opined that the Senate, by insisting on the so-called Sovereignty Package reflected in the RUDs, was determined to "reduce the convention to nothing more than a symbol of opposition to genocide"⁴-or in the words of Jordan Paust, "to gut the treaty of any meaningful effect."⁵

One declaration included in the package of RUDs made the ratification instrument's entering into force conditional on the enactment of implementation legislation, which occurred in 1988 when the Genocide Convention Implementation Act became law.⁶The Act, among other things, restricts U.S. federal court jurisdiction to instances of genocide committed in the United States and to acts of genocide committed by an American citizen abroad. Its ultimate effect is therefore to preclude the prosecution in the United States of foreign nationals who have committed acts of genocide in a foreign country, thereby precluding the exercise of universal jurisdiction by U.S. courts in respect to prosecutions under the Act, and possibly rendering the United States a safe haven for foreign perpetrators of genocide.⁷

This interpretation raises the following problem: Can an alien who committed genocide in a foreign country, who is not subject to the jurisdiction of an American court under the Genocide Convention Implementation Act, nevertheless be brought to trial in a federal court on charges founded on the law of nations? Can Congress, by enacting implementation legislation in regard to a treaty entered into by the United States, exclude from the jurisdiction of federal courts the power to prosecute someone for an offense against the law of nations related to the subject-matter regulated by the treaty?

Consider the following hypothetical:⁸Elizaphan Ntakirutimana is wanted by the International Criminal Tribunal for Rwanda (ICTR) for crimes committed in that country as part of the genocidal onslaught of the Hutu against the Tutsi. Ntakirutimana, a pastor of the Seventh Day Adventist Church, found his way to Texas, where he was detained. He could not be extradited to Rwanda under any extradition treaty that might exist because the ICTR is not part of the criminal justice system of Rwanda. The United States therefore enacted special legislation to authorize the surrender of persons wanted for prosecution in the ad hoc criminal tribunals.⁹On January 24, 1995, the United States entered into an international agreement to surrender persons suspected of committing the genocide in Rwanda to the ICTR and sought to surrender Ntakirutimana to the ICTR pursuant to that agreement. The Federal District Court would have nothing of it. Because the agreement was not entered into in accordance with the constitutional treaty procedures, requiring approval of an international treaty by a two-thirds majority of the Senate, it was unenforceable and indeed unconstitutional. The Court ordered the release of the suspect from custody.¹⁰

Because Ntakirutimana is not an American citizen and the criminal acts of which he is suspected have not been committed in the United States, he cannot be prosecuted in the United States under the Genocide Convention Implementation Act. The question therefore arises whether the United States is precluded by its own legislation from assuming universal jurisdiction to prosecute acts of genocide as offenses against the law of nations committed by persons in the position of Ntakirutimana.

Part I of this Essay scrutinizes the Constitutional provisions that have a bearing on the problem at hand, in particular Article VI, Clause 2 proclaiming treaties entered into by the United States to be the supreme law of the land, and Article I, Section 8, Clause 10 authorizing Congress "to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the

Law of Nations."¹¹This section contends that Article VI, Clause 2 in principle renders treaties self-executing in the United States but that this general rule is subject to a number of exceptions. As far as Article I, Section 8, Clause 10 is concerned, this section contends that the power of Congress to define and punish offenses against the law of nations will not preclude the prosecution of such offenses in the United States in cases in which Congress has not defined the offense, provided only that the offence has been defined with sufficient clarity in international law, and that the legislature has entrusted a court of law with jurisdiction to prosecute such offenses.

Part II considers the liability of individuals for international crimes under the rules of international law and argues that states cannot through a treaty arrangement per se render their nationals, other than those acting as organs of the state, criminally liable for offenses stipulated in the treaty, but that charges based on customary international law offenses can indeed be brought against persons acting in their private capacity.

Part III looks into the liability of individuals for international crimes under the municipal law of the United States. It would seem that treaty-based crimes require implementation legislation, but that is not the case as far as offenses against the law of nations are concerned. The law of nations constitutes part of the common law of the United States and has been incorporated into the municipal law of the United States by virtue of Article I, Section 8, Clause 10 of the Constitution.

Part IV considers the power of U.S. courts to exercise universal jurisdiction in respect of offenses against the law of nations. The power of federal courts in this regard derives from Article I, Section 8, Clause 10 of the Constitution. It is also important to note that the United States is quite unique in that it affords federal courts the competence to exercise universal jurisdiction in civil matters.

Part V seeks to define "the law of nations" and to identify international crimes that qualify as "offenses against the law of nations." This section argues that for purposes of Article I, Section 8, Clause 10, "the law of nations" is to be confined to customary international law with the force of jus cogens. Looking at the jurisprudence founded on universal jurisdiction and the Alien Tort Statute, quite an impressive list of offenses have thus far been identified by American courts as deriving from the law of nations.

The Conclusion seeks to answer the question of whether the legislature can limit or obstruct the constitutional competence of federal courts or military tribunals to prosecute offenses against the law of nations. There is merit in the argument that it cannot do so without constitutional amendment.

I. CONSTITUTIONAL DIRECTIVES

Article VI, Clause 2 of the Constitution of the United States proclaims that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."¹²Under Article I, Section 8, Clause 10 of the Constitution, Congress has been given the power "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations."¹³

A. Article VI, Clause 2

The Constitution, by proclaiming that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land,"¹⁴in principle renders international treaties self-executing in the

United States.¹⁵There are, however, several exceptions to the rule. According to the Restatement (Third) of the Foreign Relations Law of the United States, an international agreement entered into by the United States will not be self- executing:

(a) if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation;

(b) if the Senate in giving consent to a treaty, or Congress by resolution, requires implementation legislation;

(c) if implementation legislation is constitutionally required.¹⁶

Crime-creating treaties place upon states parties the obligation to criminalize in their respective national criminal justice systems the offenses stipulated in the convention. The Convention on the Prevention and Punishment of the Crime of Genocide thus provides:

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article III.¹⁷

The Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment provides in similar vein:

(1) Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

(2) Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature.¹⁸

Provisions such as these are commonly interpreted in the United States as reflecting the drafters' intent that the Convention's provisions will not be self- executing because the Convention itself makes provision for implementation legislation.¹⁹However, the question of whether a treaty is self-executing is not governed by international law but by the constitutional law of each state. The Genocide Convention only requires the enactment of "necessary legislation," and implementation legislation is not necessary in cases where the substantive convention provisions are self-executing...