Friday, March 14, 2008

Legality in the absence of government

International law is different than every other type of law because there is no central government to create and enforce legislation. The central principle of public international law is that States are sovereign; they can do whatever they like. The only international law is what States agree to -- supplemented ever so slightly by what a vast majority of other states agree to and are willing to enforce. This lack of government and inability to bind has generated a debate among legal scholars: if States can do whatever they want, does international law actually exist?

This is the field I want to work in -- a field so discredited in the United States, a major Ivy League university like Penn only has one assistant professor teaching the subject as an elective. Of course, different countries treat international law with varying degrees of respect. In Europe, for example, international law is still regarded as a significant force. Study is mandated, and students memorize the Geneva Conventions, the U.N. Charter and other such sources of international law. The law is taught as if rules lead to the outcome of every case. By contrast, in the United States we determine the politics underlying a case and assume that States will strategically employ international legal rules to reach the politically desirable outcome. Professor Burke-White says that a good international lawyer can figure the law like a European and like an American.

The problem with adhering strictly to legal codes is that sometimes there is no rule leading to an outcome that seems absolutely necessary. And in the absence of a legislature, how else can a set of laws develop except by new activities that eventually become customary practice or are codified into the law?

I encountered an excellent example early this week while I was working on my criminal law outline. I found this material especially useful because it refers specifically to the concerns presented to the International Criminal Court. But before I address the ICC, more background on legality for my non-legal readers:


Background in Criminal Law

In the United States, we employ a criminal code established by the legislature and a set of interpretive rules that almost always favors the defendant. The U.S. justice system would rather let guilty defendants go free than impose penalties on the innocent. It embodies a strong preference for leniency and popular oversight, and as follows:

1. Our laws rely on elected officials to determine what is and is not criminal, because that gives the public voting power over the individuals who make acts criminal. If the populace disagrees with a proposed code, the power of our vote should make legislators responsive to that intuition.

2. The court cannot spontaneously decide that an act is a crime without a prior legislative act criminalizing that activity -- protecting defendants from arbitrary, political, or retributivist criminalization.

3. A defendant must have sufficient notice that his or her act is criminal.

4. The court cannot interpret an ambiguous statute to make an act criminal unless there is strong evidence that such interpretation was intended by the legislature.

Collectively, we call these ideas the "legality principle." It has its advantages and disadvantages. Take this situation for example (taken from Professor Paul Robinson's criminal law book, and based on a true story):

Keeler and his wife Theresa get a divorce. Five months later, Keeler learns that Theresa is eight months pregnant with another man's baby. He stops her on the road one day as she is returning from dropping off their daughters at his house. He helps her out of the car, saying he wants to talk. Then he shows his anger. Yelling "I am going to kick it out of you," Keeler knees his ex in the abdomen, hard. She starts experiencing pain, and goes to the hospital. The fetus has suffered a fractured skull. If it had been born that day, it would have had more than a 75 percent chance of survival.

But Keeler was not prosecuted for murder -- or any other kind of criminal homicide, for that matter. The laws for criminal homicide only forbid the killing of a human being. Neither the Model Penal Code nor the state code include the unborn in their definition of "human being," so Keeler could not be found guilty on those specific charges.

As a result of the legality principle, working with the criminal code is like writing a poem. There's an old Latin saying: nulla crimen sine lege, nulla poena sine lege (no crime without a law, no punishment without a law). Prosecutors have to figure out how to achieve a desired effect within rules that frequently seem to work against their objective. The art lies in taking these rules that could work contrary to your objective, and turning them into advantage.

In Keeler's case, prosecution tried him for assault on the mother and illegal abortion -- a felony offense that earns a punishment as severe as some homicide convictions.


Synthesizing My Homework: The Legality Principle's Relevance in International Law

Warning, Graphic Subject Matter Below

But as I mentioned earlier, international law has no legislature to establish a code. Instead it evolves around concerted State practice. So what happens when a case falls outside traditional definitions and rules, like Keeler's did?

This problem came up in the early prosecution of war crimes. There was no rule, "No person, group of persons, or State shall systematically kill members of a specific race, religion, or social group so as to eliminate that group for a perceived social purpose." There was no rule, "No person, group of persons, or State shall form alliances with political parties which kill members of a specific social group." Imagine, at Nuremberg, having to try a high-ranking member of the Nazi party for direct or complicit involvement in the deaths of hundreds of victims who might not be identifiable, with little direct evidence of the defendant's specific involvement in that case. So the international community defined new crimes and began to prosecute in new ways, contrary to the legality principle.

Justice Robert H. Jackson, Chief of Counsel for the United States in the Prosecution of War Criminals, justified the prosecutions by asserting that "our test of what legally is crime gives recognition to those things which fundamentally outraged the conscience of the American people and brought them finally to the conviction that their own liberty and civilization could not persist in the world with the Nazi power." The problem with that defense is that it imposes the values of one culture on the people of another culture. Who is to say that the accused knew that their acts were criminal, or that they were acting with some sort of blameworthiness? It may be easy to incriminate Adolf Hitler, but what about the Japanese general who is directing his troops as per the orders of his government? Do you hold him accountable for following orders? Is that fair?

This is not equitable, this is victor's justice, the critics say. This is revenge seeking, not law.

Hard to argue. Still, even divorced from emotion there seems to be an intuitive split between what is necessary to war, and what is unnecessary to war. Burning crops so that military forces cannot be fed -- that makes some sense, in its cruelty. Raping a woman with a foreign object. That may have a psychological objective, but it has no direct impact on troops and seems unnecessary.

Professor Burke-White actually encountered the latter case during his work with the International Criminal Tribunal for the former Yugoslavia. To strengthen the prosecution, he had to find definitions of rape that included the insertion of foreign objects (as opposed to traditional sexual contact). In a world of vastly different standards governing sexual contact, it wasn't easy. In some societies, punishment might be imposed just for unlawfully touching a woman's hair. In other societies, it might not be unlawful for a man to engage in nonconsensual sexual intercourse with a woman provided he does not cause her lasting physical harm. With so many varied definitions, how do you prove to a judge who may or may not share your cultural standards that what the defendant did is wrong?

The answer, of course, lies in aggregating as much law in your favor as possible: treaties, State practice, learned opinions, legislative histories, custom, etc. You construct the most powerful argument possible, and then you hope the court finds in your favor. I'll tell you what I hope. A thousand years from now, if humankind still exists, I hope we will have worked out a better system. Until then, however, I really have my work cut out for me.

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