It's no defense: nullum crimen, international crime and the gingerbread man.

AuthorPaust, Jordan J.
PositionConceptualizing Violence: Present and Future Developments in International Law

INTRODUCTION

The primary focus of this Article is on certain alleged claims of defense or

of international crime. In the past, certain defendants, such as foreign officials, have made claims that domestic sanctions should not pertain because their conduct involves nonjusticiable "political questions" or acts of state, or foreign officials are otherwise entitled to immunity under foreign domestic law or notions of "sovereign immunity."(1) Claims might also arise that prosecution in the United States would violate the prohibition of "double jeopardy" when the accused has already been subject to prosecution abroad.(2) More recently, authors have raised questions concerning the meaning of the principles nullum crimen sine lege (no crime without law) and nulla poena sine lege (no penalty without law).(3) Are they legal principles, and do they constitute a defense to prosecution of violations of customary international law or treaties? If domestic or international statutes or charters incorporate such international laws by reference, are the nullum crimen principles necessarily violated? Moreover, are such forms of incorporation violative of ex post facto prohibitions? Finally, if an accused international criminal is captured abroad without the express consent of the state in which capture took place, is enforcement jurisdiction necessarily obviated?

  1. JUSTICIABILITY AND NONIMMUNITY

    With respect to sanctions against alleged perpetrators of international crime, it should be clear that defense claims of "political question," "act of state" or "sovereign immunity" should not be allowed to obviate jurisdiction in U.S. courts. Under international law, it is clear that universal jurisdiction exists in the United States, and any foreign state, to prosecute those reasonably accused of violations of customary international law even if there is no nexus with the forum.(4) Jurisdiction is also appropriate under a principle of "universal by treaty" with respect to treaty-based violations perpetrated by nationals of signatories to such a treaty and possibly to aliens with a significant nexus to a signatory state.(5) Given that some form of universal jurisdiction necessarily applies to international crime and that international law is at stake, the question shifts to whether issues concerning violations of international law as such are properly classified as raising merely nonjusticiable political as opposed to legal questions and whether foreign official violations of international law are lawful and protectable "acts of state" or "sovereign" acts. At the international level, the International Military Tribunal (IMT) at Nuremberg provided guidance that is widely accepted concerning such claims. The IMT specifically held:

    The principle of international law, which under certain circumstances

    protects the representatives of a state, cannot be

    applied to acts which are condemned as criminal by international

    law. The authors of these acts cannot shelter

    themselves behind their official position in order to be freed from

    punishment in appropriate proceedings.(6)

    The general principle of nonimmunity for violations of international law was also expressed in the Nuremberg Principles(7) which recognized, for example, that in the case of war crimes or crimes against humanity "[a]ny person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment," and "[t]he fact that a person . . . acted as Head of State or responsible Government official does not relieve him from responsibility under international law."(8) More recently, and with respect to the nature of international crime, the International Criminal Tribunal for Former Yugoslavia (ICT) recognized:

    Crimes against the laws and customs of war cannot be considered

    political offences, as they do not harm a political interest of a

    particular State, nor a political right of a particular citizen. They are,

    instead, crimes of lese-humanite (reati di lesa umanita) and, as

    previously demonstrated, the norms prohibiting them have a universal

    character ....(9)

    Authors also generally affirm that claims of "act of state" or "sovereign" or "official" immunity with respect to international criminal activity, are inappropriate when criminal sanctions are sought,(10) and most seem to agree that they are also inappropriate with respect to civil claims against the perpetrators.(11) When civil suits are brought against a foreign government or governmental entity, section 1604 of the Foreign Sovereign Immunities Act (FSIA)(12) can provide an exception to immunity with respect to certain violations of international law,(13) and the new subsection 7 to section 1605 (a) can also provide an exception with respect to certain acts of "torture, extrajudicial killing, aircraft sabotage, hostage taking," and the "provision of material support or resources" for such acts if stated conditions are met--e.g., if the state is "designated as a state sponsor of terrorism."(14)

    Authors also seem to generally agree that the "political question" doctrine should have no application with respect to violations of international law.(15) Indeed, an increasingly common pattern in U.S. judicial decisionmaking recognizes that acts in violation of international law, or otherwise taken outside the scope of official authority or foreign law, do not raise nonjusticiable political questions(16) or "acts of state,"(17) or require recognition of immunity.(18) Rule 106 of the Rules of Procedure and Evidence of the ICT for Former Yugoslavia also contemplates domestic lawsuits and adds that a "judgment of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury."(19)

  2. DOUBLE JEOPARDY

    The prohibition of double jeopardy merely forbids double jeopardy within the criminal processes of a single sovereign.(20) In the United States, for example, both federal and state governments may prosecute an accused, since they are different sovereign entities.(21) Similarly, there is no general prohibition under customary international law or human rights law, in particular, against prosecution by one state after another state has attempted to prosecute or actually has prosecuted an accused.(22) The same points underlie the fact that a foreign grant of amnesty or immunity does not bind other states.(23) Additionally, the 1949 Geneva Conventions expressly prohibit any party from absolving itself, or any other, of any liability incurred.(n24)

    The Ad Hoc Tribunals with respect to Former Yugoslavia and Rwanda, however, have special provisions in their constitutive instruments prohibiting subsequent prosecution in certain limited circumstances. These provisions are found in portions addressing non bis in idem (not twice for the same) and generally preclude prosecution in national courts if the person has already been tried for the same crimes by the relevant international tribunal "for acts constituting serious violations of international humanitarian law."(25) The provisions do not, however, preclude subsequent prosecution of such international crimes by the international tribunals if "(a) the act for which he or she was tried was characterized as an ordinary crime [by the prosecuting state]; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted."(26)

    Since the statutes of the Ad Hoc Tribunals change customary law, which does not preclude subsequent prosecutions by different sovereign entities, they should be interpreted liberally in order to retain jurisdiction.(n27) The same interpretive approach seems preferable with respect to special international agreements adopting the principle of non bis in idem concerning more ordinary crimes.(28)

  3. NULLUM CRIMEN AND EX POST FACTO

    If an individual accused of an international crime is being prosecuted under a domestic statute or an international tribunal's statute or charter created after the commission of an alleged offense, does the accused have a legal defense to prosecution under a principle of nullum crimen sine lege (no crime without law)? Further, if the statute merely incorporates the international crime without setting forth a definition of the crime or providing listed elements of the offense, is the statute legally defective and inoperative? Does a statute lacking any mention of particular penalties violate the principle of nullum crimen sine lege or a related principle expressed as nulla poena sine lege (no penalty without law)?

    Unlike many domestic statutes, international instruments setting forth international criminal proscriptions often lack detailed definitional orientations or elements of crimes.(29) Penalties are rarely set forth, the word "crime" often does not appear, and mention of particular fore for prosecution is scarce.(30) It is widely recognized, however, that international criminal laws do not thereby run afoul of the principle nullum crimen sine lege or otherwise lack legal validity.(31) Similarly, the fact that new domestic laws incorporate what had been international criminal law at the time of an alleged violation, or that new fore (domestic or international) allow prosecution of what had been an international crime, does not violate such a principle or the related prohibition of ex post facto law.(32)

    During the World War II era, in United States v. Altstoetter (The Justice Case),(33) before the U.S. military commission established under Control Council Law No. 10, the Tribunal appropriately denied defense claims that the principle nullum crimen sine lege applied:

    Obviously the principle in question constitutes no limitation upon the

    power or right of the Tribunal to punish acts which can properly be

    held to have been violations of international law when committed . . . .

    C.C. Law 10, Article II, paragraph 1 (b), "War...

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