The politics of international justice - U.S. policy and the legitimacy of the Special Tribunal for Lebanon.

• Author: Cerone, John

The pioneering work of Professor Ved Nanda in the field of international criminal law, (1) as well as his commitment to international justice, inspired the subject to the present article--the legitimacy of international criminal courts.

In his July 10, 2011 opinion piece in the Denver Post, Professor Nanda wrote of the International Criminal Court's (ICC) issuance of arrest warrants for Moammar Qaddafi, his son Seif al-Islam, and his intelligence chief. (2) As Libya is not a party to the ICC Statute, the Court's jurisdiction arose from a Security Council resolution referring the situation in Libya to the Court. Alternatively, the Security Council could have followed past practice and established an ad hoc international criminal tribunal, such as the International Criminal Tribunal for Rwanda, or a hybrid tribunal, such as the Special Tribunal for Lebanon, to prosecute international crimes perpetrated in Libya.

The decision to establish an ad hoc tribunal is necessarily a political one. In elaborating the statute of such tribunal, the Security Council could decide the personal, geographic, and temporal scope of its jurisdiction, as well as the crimes that would fall within its subject matter jurisdiction. The law establishing and shaping the tribunal's jurisdiction is similarly driven by a political process. The jurisdiction of such a tribunal could be limited temporally to a relatively narrow period of a few months--perhaps January through March 2011. It could be limited geographically to the territory of Libya, or even to subdivisions of Libyan territory. Its personal jurisdiction could be limited to Libyan nationals, or to those fighting on behalf of the Qaddafi regime. It is even conceivable that its personal jurisdiction could be limited to certain named individuals.

The U.S. government has played a key role in establishing and circumscribing the jurisdiction of international and hybrid criminal courts. In so doing, the U.S. has not been shy about insisting on certain jurisdictional exclusions. It is debatable whether the fashioning of the contours of an international tribunal's jurisdiction is subject to any legal constraints. The present article focuses on whether there are constraints of a different nature. Is there a point at which the fine-tuning of a tribunal's jurisdiction deprives it of legitimacy?

This article traces the evolution of policy strands underpinning the U.S. government's attitudes toward international criminal courts and examines how these policy strands converged in a position of support for the Special Tribunal for Lebanon (STL). It also demonstrates how U.S. foreign policy interests helped to shape the contours of the STL. The article then discusses some of the features of the tribunal that flow from these interests, and examines the merits of challenges to the legitimacy of the tribunal made at least in part on the basis of these features. It concludes with an examination of a spectrum of policy choices in relation to the creation of international criminal courts and implications for their legitimacy.

1. THE EVOLUTION OF U.S. POLICY TOWARD INTERNATIONAL CRIMINAL COURTS (3)

   Assessing the state of U.S. policy toward international criminal courts is a complex, if not impossible, undertaking. Indeed, there is no coherent U.S. policy on international criminal courts generally. This is attributable on the one hand to the multifaceted nature of international criminal courts, and on the other to the fact that U.S. policy is an amalgamation of diverse views reduced in some cases to written form, which is itself subject to varying interpretations. Policy is also in a continual state of flux, and its fluctuations in this arena are particularly dynamic at the present moment in history.

   Nonetheless, examining the behavior of the U.S. government over the past one hundred years or so reveals a pattern of identifiable policy lines relevant to the establishment of international criminal tribunals. The U.S. has been generally supportive of the development of international law, and of the law of armed conflict in particular. It has also supported the establishment of international courts and the incidental development of international legal jurisprudence. Nonetheless, its support of international courts has never been absolute, and has always been subject to competing foreign policy interests.

   Its selective use of international courts is most visible, and perhaps most controversial, in the realm of international criminal justice. While the U.S. has been generally supportive of ad hoc international criminal tribunals, it has consistently taken the position that there should be no international criminal court of universal compulsory jurisdiction, and in particular vis-a-vis the United States and its nationals.

   U.S. Attitudes in the Pre- World- War II Era

   The U.S. has been a strong supporter of the development of the international law of armed conflict since at least the mid-nineteenth-century. However, the issue of whether international law should provide rules regulating armed conflict is quite different from whether there should be an international mechanism to adjudicate whether those rules have been violated.

   During the Hague Peace Conferences of 1899 & 1907, the U.S. supported the creation of an arbitral tribunal to resolve inter-state disputes. Although it was unwilling to submit to compulsory jurisdiction matters implicating strong national interests, the U.S. nonetheless welcomed the creation of the Permanent Court of Arbitration, with its purely consent-based jurisdiction, in part because of the role it would play in developing an international jurisprudence.

   At the conclusion of World War I, the victorious powers at the Paris Peace Conference considered the creation of an international criminal court to prosecute abuses committed during the war. The U.S. was opposed to the creation of such a court for a range of reasons. Perhaps most significantly, accountability for war crimes simply did not rank high on President Woodrow Wilson's post-war list of priorities. He was far more concerned with a "moderate peace, a viable democratic government for Germany, and, most of all, a League of Nations to secure future peace." (4) The U.S. delegation was instructed to express serious reservations, rejecting the tribunal and opposing the trial of the Kaiser, who, in the meantime, had found refuge in the neutral Netherlands. (5) Specifically, the U.S. argued that there was no "precedent, precept, practice, or procedure" for such a tribunal, and that perpetrators should instead face prosecution before national military justice machinery. (6) Specifically, the U.S. favored the creation of a joint, multinational tribunal or commission. In this way "existing national tribunals or national commissions which could legally be called into being would be utilized, and not only the law and the penalty would be already declared, but the procedure would be settled." (7)

   The creation of an international criminal court was also considered under the auspices of the League of Nations. Proposals to create such a court never came to fruition. The U.S. view at that time, and indeed the prevailing contemporary position, was that the creation of such a court was premature. Manley Hudson, U.S. jurist and former judge of the Permanent Court of International Justice, wrote in 1944, "[i]nstead of attempting to create an international penal law and international agencies to administer it, perhaps attention may more usefully be given to promoting the cooperation of national agencies in such matters as extradition, judicial assistance, jurisdiction to punish for crime, and coordinated surveillance by national police." (8) Hudson speculated that "[t]he local impact of anti-social acts inspires the desire of States to safeguard local condemnation and local punishment, and impingement on national prerogatives in this field will become possible only as the need for international action is clearly demonstrated." (9)

   U.S. Attitudes toward International Criminal Courts in the PostWorld-War II Era

   The horrors of World War II provided the necessary catalyst to overcome the inertia of the international community. In striking contrast to its position at the 1919 Paris Conference, the U.S. was strongly supportive and played a central role in the establishment of both the Nuremberg and Tokyo International Military Tribunals (IMTs). While the U.S. was initially reluctant to endorse the proposal to create these tribunals, Secretary of War Henry L. Stimson is credited with persuading the U.S. government to adopt a "judicial solution" to dealing with Axis war criminals. (10)

   Although U.S. support for the creation of the IMTs may appear irreconcilable with the position taken by the U.S. delegation to the 1919 Paris Conference, it is worth noting the similarities between the IMTs and the U.S. counterproposal to create a multinational commission or tribunal. In addition to being run by the military, the tribunals were operating in Germany and Japan, territories over which the U.S. was exercising authority as an Occupying Power. Another key feature of the tribunals is that their personal jurisdiction was expressly limited to those acting on behalf of enemy states. Thus, there was no possibility that those acting on behalf of the Allies would face prosecution.

   A key difference from the "mixed tribunals" proposed by the U.S. in 1919, however, is that the IMTs were mandated to prosecute violations of international law, and not the domestic law of any country. Both tribunals were given jurisdiction to prosecute crimes against peace, war crimes, and crimes against humanity.

   Early UN Efforts to Create an International Criminal Court

   From the earliest days of the United Nations, the creation of an international criminal court was on its agenda. In 1946, acting on the initiative of the U.S. delegation, (11) the UN General Assembly affirmed the...