A Country I Do Not Recognize

by Robert H. Bork

  In response to the claim that the charge would violate the maxim nullum crimen sine lege (no crime without a law), the tribunal first noted that it was not bound by such principles: “The law of the Charter is decisive, and binding upon the Tribunal. . . . The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement.”18 This was obviously a strange claim to make for a tribunal then engaged in trying individuals for having themselves recognized no authority higher than their own will, but, nevertheless, it was the actual “holding” of the court. In addition, the court noted that this rule, which is enshrined in the United States Constitution as the injunction against expost facto laws, is on the international level simply a “general principle of justice” and not an actual “limitation on sovereignty.”19

  Second, the IMT ruled that individual state officials could not claim “immunity.” In this regard, the court noted: “He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state authorizing action moves outside its competence under International law.”20 It further noted: “The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such act of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment.”21

  This reasoning, of course, merely suggests that government officials are not above the law and that their actions may constitute criminal violations. It does not answer the far more difficult question of under what circumstances, and by what authority, a government official may be tried and punished for such violations. The International Court of Justice (ICJ) noted this important distinction in its 2002 opinion in Congo v. Belgium.22 As will be discussed below in detail, that case involved an assertion of universal jurisdiction by Belgium against the Congolese foreign minister, who was accused of war crimes and crimes against humanity in the Congo. After examining state practice in this area, the court concluded that the Congolese foreign minister was immune from Belgium’s criminal jurisdiction. It noted, however:

  The immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. . . .

  Accordingly, the immunities enjoyed under international law by an incumbent or former Minister of Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.

  First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law.

  Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity.23

  And, in fact, the ultimate basis of the IMT’s refusal to recognize any immunity for the accused Nazis was very much in accord with these principles.

  As noted above, the IMT justified itself with reference to its Charter. Article 7 of that Charter stated plainly that “[t]he official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.”24 The Charter, as the court also stated, was lawful as an exercise of the Allies’ “undoubted right . . . recognized by the civilized world” to legislate for a defeated Germany. It was an exercise of German sovereignty and, as a consequence, whatever immunity the Nuremberg defendants might have been entitled to claim in a foreign court, they could assert no such immunity before the IMT.25 Stated differently, because their immunity as state officials under international law belonged to the German state, and not to the individual defendants themselves, that immunity could be, and was, lawfully waived by the Allies who were then exercising Germany’s sovereignty.

  The Trial of Adolph Eichmann

  The IMT, of course, did not try all the top Nazis. A number of the men who were the most important cogs in Hitler’s murder machine escaped after the war, many to South America. The most notorious and culpable of these was Adolph Eichmann. His prosecution and execution by Israel may well be the only instance in which a truly universal jurisdiction was exercised over the offenses—war crimes, crimes against humanity, and genocide—for which that jurisdiction is most often asserted by its proponents. It was, however, by no means a clear case.

  Although reared in Austria, Eichmann was German by birth and trained for a time at least as an engineer; however, he was working as a traveling salesman when he joined the Nazi Party in 1932. By 1934 Eichmann had joined Heinrich Himmler’s SS and was working in Berlin as an SD (SS security service) official with expertise in “Jewish issues.” In 1939 he became head of the RSHA (Reich Main Security Office) section dealing with Jewish “evacuation” and “resettlement” (euphemisms for deportation and murder) under the authority of Reinhard Heydrich (known, before he was successfully targeted by British-backed Czech partisans, as the Butcher of Prague, or Hangman Heydrich). In that capacity, Eichmann attended the 1942 Wansee Conference at which the extermination of Europe’s Jews was mapped out. He was, in short, the official responsible for the day-to-day implementation of the Final Solution.

  For fifteen years after Germany’s defeat, Eichmann remained one of the world’s most wanted men. Israeli agents finally located him in Argentina, and on May 11, 1960, he was seized by the Israeli Secret Service and taken to trial in Israel. There, he was charged under the Nazis and Nazi Collaborators (Punishment) Law, and his case presented the Israeli courts with a substantial problem of jurisdiction. All Eichmann’s offenses had been committed in the territory of countries other than Israel, against citizens of countries other than Israel, at a time when Israel did not exist. In other words, under the normal rules governing the exercise of judicial authority, national and international, the state of Israel had no right to try Adolph Eichmann who was not an Israeli national.

  In addressing this question both the Israeli trial court and the Israeli Supreme Court on appeal referred to principles of universal jurisdiction. There was little question that, as the courts observed, Eichmann’s offenses had been universally condemned or that, as the Israeli Supreme Court noted, “their harmful and murderous effects were so embracing and widespread as to shake the international community to its very foundations.”26 However, neither the trial court nor the Israeli Supreme Court was content to rest its decision on universal jurisdiction. Like the IMT at Nuremberg, the courts’ actual holdings rested on the relevant statutory authority, rather than on international law. In this respect, both courts ruled inadmissible the argument, raised by Eichmann’s lawyers, that the Nazis and Nazi Collaborators (Punishment) Law was inconsistent with international law because “it conflict[ed] . . . with the principle of territorial sovereignty, which postulates that only the country within whose territory the offense was committed or to which the offender belongs—in this case Germany—has the right to punish therefore.”27 Both courts concluded that they were bound to apply that law whether or not it was inconsistent with international law principles. The Israeli Supreme Court noted that

  where such a conflict [between international and municipal law] does exist, it is the duty of the Court to give preference to and apply the laws of the local Legislature . . . True, the presumption must be that the Legislature strives to adjust its laws to the principles of international law which have received general recognition. But where a contrary intention clearly emerges from the statute itself, that presumption loses its force and the Court is enjoined to disregard it.28

  In other words, whatever the correct ans
wer under international law might be, the courts of Israel were bound to apply the municipal law of Israel as enacted by the Knesset, and arguments suggesting that the law was beyond the Knesset’s authority under international law were inherently insufficient to defeat the courts’ jurisdiction.

  Moreover, even in the courts’ dicta, discussing universality at great length, neither body was content to rest on universal jurisdiction alone. Both also invoked the somewhat less controversial “protective” principle, as well as ideas of passive personality jurisdiction.29 Here, the trial court reasoned that

  [i]f an effective link (not necessarily an identity) existed between the State of Israel and the Jewish people, then a crime intended to exterminate the Jewish people has an indubitable connection with the State of Israel [presumably sufficient to justify protective jurisdiction].

  The connection between the State of Israel and the Jewish people needs no explanation. The State of Israel was established and recognized as the State of the Jews.30

  On this point, the Israeli Supreme Court noted that “we fully agree with every word said by the [trial] Court on this subject.”31

  Thus, the actual metes and bounds of the Eichmann decision severely undercut its value as a precedent for universal jurisdiction. That value is further reduced because Germany appears, at least tacitly, to have consented to Eichmann’s prosecution in Israel. As noted above, the decisive test of the universal jurisdiction principle is not the assertion of power by one or more states but its vindication over the objections of the defendant’s own state of citizenship. Eichmann was a German national, at least at the time his offenses were committed. Germany, however, chose neither to contest his prosecution nor to champion his case. In fact, Germany’s refusal to assert authority over Eichmann (by rejecting his demand to be extradited to the Federal Republic of Germany for trial), or otherwise to intervene, was noted as significant by the Israeli Supreme Court in its conclusion that his trial in Israel would not violate the territoriality principle of international law.32

  The Attempted Extradition of Augusto Pinochet

  Besides the Eichmann case, the effort by Spanish investigating magistrate Balthazar Garzon to extradite, for trial in Spain, former Chilean dictator Augusto Pinochet is also usually cited as support for universal jurisdiction. As an instance of state practice, however, the Pinochet case stands for just the opposite proposition.

  Augusto Pinochet Ugarte seized power in 1973, deposing Chile’s leftist government, led by Salvador Allende. At the time, Pinochet was commander-in-chief of Chile’s armed forces. He was named president in 1974, after having shut down Chile’s parliament. He finally surrendered power in 1990, when a democratic government was elected, although he remained as military commander-in-chief until 1998. He then became a “senator for life” and effectively enjoyed immunity from prosecution in Chile. He remains a highly controversial figure in Chile and elsewhere.

  There is little doubt that, during Pinochet’s dictatorship, the Chilean government engaged in torture, murder, and other forms of political repression on a large scale. In addition, a portion of Pinochet’s rule corresponded to years of military dictatorship in neighboring Argentina, including the so-called Dirty War from 1976 to 1983—in which he allegedly cooperated. Thousands of people disappeared during the Dirty War, in an effort by the Argentine military to eliminate left-wing dissent. Some were thrown out of aircraft flying over the South Atlantic Ocean. Although the Argentine military junta relinquished power in 1983, after its humiliating defeat by Great Britain in the Falklands War, a general amnesty was granted in 1991, at a time when Argentina’s president feared a new military coup.

  Beginning in the 1990s Balthasar Garzon, an investigating magistrate working for Spain’s highest criminal court, the National Court, initiated an investigation into Argentina’s Dirty War—in which a number of Spanish citizens had been killed. Garzon, a socialist who has served as a junior minister in the Spanish government, first made his name pursuing Basque separatists. His Argentine investigation led him to Pinochet’s role in the so-called Operation Condor, a program under which various South American security services, including those of Chile and Argentina, cooperated to eliminate left-wing opponents. (One target of Operation Condor was Orlando Letelier, former Chilean ambassador to the United States, who was murdered in Washington, D.C., in 1976.)

  When Pinochet traveled to Britain in 1998 seeking medical treatment, Garzon issued an international arrest warrant and a request for extradition. This led to a seventeen-month drama, during which Pinochet was held under house arrest in Britain while his ultimate fate was debated in the courts. In the end, his case was heard by the House of Lords, which ruled that he could be extradited to Spain. As in previous supposed universal jurisdiction cases, however, that doctrine was not the basis of the court’s decision. Although a number of the judges discussed universal jurisdiction in their opinions and even concluded that it was an accepted principle of international law, like the Israeli Supreme Court in the Eichmann case, they looked to national law—and to the law of treaties—for a rule of decision.

  In this regard, a majority of the lords reached two conclusions. First, Pinochet could be extradited from Britain but only for offenses cognizable under legislation passed to implement the International Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment of 1984 (“Torture Convention”), that is, after September 29, 1988. Second, Pinochet could not claim immunity from prosecution for offenses alleged to have taken place after that date because the Torture Convention implied a waiver of such immunity, or because, after the convention’s effective date, torture was no longer viewed as an official act covered by immunity.33

  The fundamental linkage to the Torture Convention is, of course, highly significant. Although more than one of the judges suggested that torture constituted an international crime well before the Torture Convention took effect, the panel nevertheless concluded that Pinochet was extraditable to Spain only for offenses after that time. Thus, to the extent that there was a “universal” jurisdiction in this case, it was based on a treaty—to which both Britain and Chile were parties—and not on a customary international law that would, or could, bind nonparties. In such instances, all treaty parties are, at least in theory, permitted to enforce the treaty’s terms. This, however, is based on the consent of the relevant states, and not on some legal or judicial authority otherwise inherent in the international community as a whole. Moreover, even with respect to these instruments, there is little state practice actually supporting the right of an otherwise uninvolved state-party to take judicial action against the citizens or officials of another state-party for violations against a third, with the targeted state accepting its right to do so. If, as universal jurisdiction proponents claim, the doctrine is so very well established, there should be many such cases.

  In the end, however, even the Pinochet matter did not provide such an example. Chile strongly objected to Spain’s efforts to extradite Pinochet and, after all of the legal wrangling was over, with the House of Lords concluding that Pinochet was subject to extradition, the British government still did not consider itself legally compelled to make the transfer. The responsible official, British Secretary of State for Home Affairs Jack Straw, acknowledged his own belief that “universal jurisdiction against persons charged with international crimes should be effective” but nevertheless concluded that Pinochet was medically unfit to stand trial, and released him.34 This was, of course, a diplomatic rather than a legal solution. Shortly after his release, Pinochet was awarded legal costs of £500,000, paid by the British taxpayer.35

  Belgian Weltmacht

  In setting Pinochet at liberty in March 2000, Secretary Straw also declined to extradite him to at least three other European states, France, Switzerland, and Belgium, which had made requests similar to that of Spain.36 The last, Belgium, has clearly been the most aggressive universal jurisdiction aspirant in the past decade, and the rise, decline,
and fall of its universal jurisdiction law reveals, perhaps better than anything else, how dubious and flawed is the universal jurisdiction doctrine.

  Belgium’s Law of June 16, 1993, on the Punishment of Serious Violations of International Humanitarian Law, as amended in 1999, purported to vest jurisdiction in the Belgian courts over a series of international criminal offenses (including war crimes), regardless of the nationality of the defendants, the victims, or where the offenses took place. The law also provided that official governmental immunity “shall not prevent the application of the present Law.”37 Before the 2003 Iraq war, when the law was finally invoked against the United States, its most spectacular application was against the Democratic Republic of the Congo’s foreign minister, Abdulaye Yerodia Ndombasi. Because of allegations forwarded by a number of private citizens, an international arrest warrant was issued for this man, to which his government took the gravest exception. As noted above, the Congo challenged Belgium’s jurisdictional claims, as well as its right to initiate prosecutions against foreign government officials, in the ICJ. On the question of universal jurisdiction, its Application noted that Belgium’s law was in “[v]iolation of the principle that a State may not exercise its authority on the territory of another State and of the principle of sovereign equality among all Members of the United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations.”38

  The ICJ chose not to address the universal jurisdiction question so presented but ruled instead that Belgium’s arrest warrant violated international law by ignoring the well-settled immunity of high-level government officials from criminal prosecution while in office. This ruling, however, was significant in and of itself, since this rule of immunity had been considered by many to have been fatally undercut across the board by the Nuremberg and Tokyo tribunal trials. In that regard, the ICJ stated, citing both national efforts to prosecute foreign officials and the Nuremberg and Tokyo military tribunals: