The State of the State— Sovereignty in the New Millennium
Trends and Developments
Trends evident in 2003 reflect the foregoing discussion. In advanced states, post-industrial society has replaced basic industry and manufacturing, which has migrated to less-developed countries with lower labor costs. Globalization draws nations and peoples closer, despite recent economic setbacks. The World Trade Organization is a powerful international force that influences decisions of the leading economic powers, including the United States.69 International labor organizations demand basic standards and benefits for workers and workplaces. These trends undermine sovereignty and reflect a tightly structured international environment that constrains even the strongest states to behave in ways promoting international order.
Human rights influence international agendas and domestic actions. International humanitarian intervention, evident in Kosovo, East Timor, and possibly Iraq, is an emerging precedent that demands attention. It is not yet customary international law, but lively debate on the subject tends to redefine how we view sovereignty.70 This represents, ironically, the triumph of values advanced by Woodrow Wilson at Versailles almost a century ago. The principles of the American and French revolutions have become universal, though not all states concede that individual rights supersede the welfare of the state, most notably China, the world’s most populous state. Themes for the Twenty-first Century
International law will play an important role in addressing issues and trends likely to persist for decades to come. The most important of these include a globalized economy, urbanization, intrastate conflict, clash of cultures, unequal distribution of wealth, environmental degradation, transnational crime, collective security, multilateralism, and humanitarian intervention. Global problems require global solutions; sovereign states cannot solve them, although they can address symptoms within their borders. Most, eventually, will require international cooperation. Implications for Strategic Leaders
International law challenges strategic leaders to think globally, not nationally. The positivist approach to international law expressed in the S.S. Lotus case: “Restrictions upon the independence of States cannot therefore be presumed, ”71 is threatened by a new paradigm: “a law more readily seen as the reflection of a collective juridical conscience and as a response to the social necessities of States organized as a community.”72 UN Secretary General Kofi Annan articulated this new paradigm as follows:
State sovereignty, in its most basic sense, is being redefined—not least by the forces of globalization and international cooperation. States are now widely understood to be instruments at the service of their peoples, and not vice versa.73 The implications of this principle are staggering. Yet Kofi Annan is no revolutionary; his language is reminiscent of Thomas Jefferson’s in the Declaration of Independence: “That to secure these rights, Governments are instituted among Men, deriving their just power from the consent of the governed.”States exist to promote and protect individual rights and freedoms. The challenge for international leaders is what action the international community should take in those cases where states deliberately and systematically violate the human rights of their citizens.74
None of this implies that sovereign states cannot guarantee, promote, and advance human rights. To the contrary, the American experience teaches us that individual rights and rule of law are mutually supportive and thrive in a strongly nationalistic, democratic environment. Ironically, the American experience also encourages internationalism in the promotion of democratic values. As President Bush has stated in his National Security Strategy: “We will defend the peace by fighting terrorists and tyrants. We will preserve the peace by building good relations among the great powers. We will extend the peace by encouraging free and open societies on every continent.”75
This sentiment resembles Woodrow Wilson’s and, indeed, those of most presidents since 1918. Kissinger portrays this as an essential element of American altruism motivating our actions abroad: “Wilson put forward the unprecedented doctrine that the security of America was inseparable from the security of all the rest of mankind. This implied that it was henceforth America’s duty to oppose aggression everywhere. . . .”76
The current world situation encourages debate over the scope and authority of international law. Recent American actions in Iraq, taken contrary to international public opinion, without the endorsement of the UN Security Council, and against the wishes of longstanding allies such as France, Germany, and Turkey, support Mersheimer’s proposition that great powers behave as their interests dictate.77 Perhaps sovereignty is alive and well after all.
Unilateral action can, at least in certain cases, achieve the same results as multilateral efforts. Proponents of international order and rule of law argue that lasting order cannot be imposed unilaterally. The Congress of Vienna in 1815, which created the “Concert of Europe, ”was a collective, multilateral effort, albeit predicated on sovereignty. But it took enormous cooperation to maintain international order for a hundred years. Even the British Empire at its height in the nineteenth century realized its limitations and attempted to construct a favorable balance of power. John Ikenberry, in After Victory, analyzes the rebuilding of international order after major wars. He says the diplomats of 1815 created a “constitutional order, ”which are “political orders organized around agreed-upon legal and political institutions that operate to allocate rights and limit the exercise of power.”78
Ikenberry’s concept of “constitutional order”helps to explain how the current international system evolved after World War II, and how it operates today. At its heart was the sharing of power by the United States, by far the most powerful state in the world in 1945. The framework was an extensive system of multilateral institutions, including alliances, which bound the United States and its primary partners in Europe together. The Cold War may have accelerated this process, but it did not create it.79
If this theory is correct, then the primacy of international law and institutions is no accident, but instead the direct and expected result of efforts to create a framework of mutually supporting and binding ties. As we have seen, these international institutions have performed as designed. It should come as no surprise, viewing the international system in this way, that international organizations and politics restrain the choices and actions of sovereign states. From this perspective, international order displays many of the characteristics of municipal order. Ikenberry explains this: “if institutions—wielded by democracies—play a restraining role . . . it is possible to argue that international orders under particular circumstances can indeed exhibit constitutional characteristics.”80 The New World Order and American Hegemony
Who Owns International Law?
What is America’s role as the sole superpower in the current environment? How will the international system respond to the threat of global terrorism? Can it maintain the security and prosperity created by American leadership since 1945? Can the rule of law accommodate the national interests of the great powers and protect the interests of weaker states threatened by demagogues, genocide, civil war, and internal armed conflict? The remainder of this chapter will attempt to suggest answers to these questions.
Dynamic, disparate forces challenge the international order. Globalization promises prosperity and freedom, but failed states, disease, pollution, and rising birthrates hold large segments of the world’s population hostage. Furthering individual rights and enforcing collective security requires international cooperation, but depends at present on the good will and determination of powerful sovereign states.
A brief look at two recent developments illustrates the nature of the challenge and provides insights as to possible courses of action. The first of these is the creation of the International Criminal Court (ICC); the second is the American-led war on terrorism.
The International Criminal Court is an idea whose time has come. It fulfills the hopes and aspirations of a majority of the world’s nations. Eighty years in the making, from Versailles in 1919 to the Rome Statute in 1997, it reflects a new consensus on international justice and the rule of law. Recognizing that sovereignty protected rulers and their agents from accountability for crimes ranging from aggressive war to democide, 81 the ICC provides a permanent forum for prosecution when state courts cannot or will not act. As of this writing, 139 nations have signed the treaty, and 89 have ratified it. The Court commenced operations on July 1, 2002, and according to its charter enjoys almost universal jurisdiction.82 Its potential impact is enormous, even without U.S. participation.83
At the same time, the United States leads international efforts to locate, isolate, and destroy international terrorist groups with global reach. These groups threaten international order and prosperity. They promote extremist views and promise false hopes to states and individuals left behind on the road of progress. While most states support and encourage American efforts to eradicate this plague, the international system is not well-suited for the struggle. There is no international agreement on terrorism, and none that even attempts to define the term. Several treaties address individual terrorist acts—hijacking, murder, money laundering, illegal crossing of borders, etc., but their solutions require state action— apprehension, extradition, and prosecution of individual terrorists.84
To date, therefore, the international response to terrorism depends on American leadership, moral and physical. Coalitions are formed to fight terrorism, but they form and reform constantly depending on where American efforts are focused. In Afghanistan a multilateral effort enjoyed broad international support;85 in Iraq, another theater in this global war, the coalition fell short of expectations, and the intervention remains controversial.86 The search for order and the rule of law means different things to different states. America may lead, but others need not follow.
These events are closely related. They represent opposite poles of debate over how we are to pursue Ikenberry’s “constitutional order”on a global scale. While most states agree in theory with multilateral institutions, the utility of the United Nations, and the need for rule of law within and among states, international law must contend with the “friction”of sovereignty.87 This uneasy relationship is likely to continue. Ironically, some states and prominent individuals have called for the ICC to investigate American intervention in Iraq as an “illegal”use of force in violation of treaty law and customary law.88 Unilateralism: What Price Sovereignty?
This situation is unhealthy for international order. The new world order described in preceding sections of this chapter is real, and it is here to stay. The ties that bind the international community are strong and enduring, and international institutions enjoy unprecedented support and influence. Perhaps the most amazing point of all is that American values and leadership were instrumental in creating this environment. We are reminded once again that we have to be careful what we wish for.
American actions are well-intended, although many people sympathetic to American interests do not accept this proposition at face value. To the extent that American national interests must be served, we can continue to make unpopular decisions and execute American grand strategy without broad international support. But we cannot do so indefinitely. America may act unilaterally on a case-by-case basis, weighing costs and benefits. We need to be honest with ourselves when we do so, however. Others may perceive our actions as excessive and bullying.
The cost of military intervention can be high: proponents must establish a legal basis, a jus ad bellum, for action; they must apply force consistent with the laws of armed conflict and possible mandates of the UN Security Council; the fighting must be controlled both in time and in space; fallout and political reactions must be anticipated; and, lastly, those advocating intervention must expect the unexpected. Murphy’s Law applies to all human endeavors. Given the national interest in defeating terrorism and preserving international order, some degree of risk is normal and expected. The Road Ahead: Surviving in the New World Order
We do not operate in a vacuum. The international environment outlined in this article demands our attention if not our cooperation. It provides several useful lessons to guide our conduct in the twenty-first century.
First, multilateral action is preferred in most cases. America lacks the political and military strength to go it alone in every instance. U.S. economic and military power provides the mobility and ability to go anywhere, but coalitions provide additional resources, political support, and legal justification and legitimacy for international operations. If international relations theorists are correct, states that pursue hegemonic order motivate other powers to combine to frustrate their efforts. Although such a backlash against American hegemony is not evident at present, no one can guarantee that further unilateral adventures will not produce one.
Second, the United States has tremendous capabilities at its disposal without employing the military element of power. Diplomatic, economic, and informational tools provide enormous flexibility in formulating strategy and handling complicated problems as they arise. Infrequent demonstration of American military power will suffice to remind opponents of military capabilities, while diplomats pursue peaceful resolution of disputes by other means. This approach will also reassure friends, allies and critics alike of American intentions and demonstrates a willingness to exhaust all reasonable alternatives before applying force. It will preserve valuable goodwill.
Third, every crisis does not require international intervention or the use of military forces. Acknowledging the threat posed by global terrorist networks, most international crises are local and have little impact on terrorism or global security. Many of them, we need to remind ourselves, may be safely ignored and left to others to solve. Unless international stability is seriously threatened, mobilizing the international community and its resources might prove counterproductive. We have learned, since the heady days of 1991 and the great Gulf War Coalition forged by President Bush, that the new world order promised by the collapse of the Soviet Union and the end of the Cold War has not come to pass, at least not in the way we imagined it. But there is a new world order, and nation-states have to live in it.
The fourth and final lesson we can draw from this analysis of international law and sovereignty is that the international system as it exists (and as it was designed) reflects American values and American visions for the future. It is a legitimate part of our heritage. When we presume that all institutions oppose our interests because some do, or presume that all treaties are suspect because some are, we deny that heritage. More often than not, international institutions and agreements further American interests.
It is important for us to remember that democracies tolerate differences, and in fact thrive on them. If the core of “constitutional order”in the world is Western democracy, then we must expect that there will be disagreements and heated debate among states. We will not always agree on everything. But in a constitutional system, everyone must play; the rules don’t allow a state to simply take its ball and go home whenever it doesn’t get its way. True, no referee will step in, blow a whistle, and impose a penalty, but true international order, just like domestic order, depends on mutual respect and cooperation and responsible behavior. Those who claim global leadership within the system have the greatest responsibility to ensure the system works. It is time to reassess America’s role and reclaim our rightful position as the leader of the world community. Struggling against the ties that bind us, like a modern Gulliver, is counterproductive. Notes -Chapter 4
1 George H. Bush, “Address to the Nation Announcing Allied Military Action in the Persian Gulf, ”January 16, 1991, available at http://bushlibrary.tamu.edu/papers/1991/91011602.html
, accessed 24 July 2003.
2 U.S. War Department, General Orders No. 100, Instructions for the Government of the Armies of the United States in the Field, April 24, 1863. The first comprehensive summary and codification of the humanitarian rules governing land warfare. Frequently called the “Lieber Code”after its author, Dr. Francis Lieber, G.O. No. 100 furnished inspiration for the Geneva Conventions of 1864 and 1929 and the Hague Conventions of 1899 and 1907.
3 Werner Levi, Contemporary International Law (Boulder, Westview, 1991), 14.
4 John J. Mersheimer, The Tragedy of Great Power Politics (New York, W.W. Norton
& Company, 2001), 2-3.
5 John W. Spanier and Robert L. Wendzel, Games Nations Play, 9th Ed. (Washington, DC, Congressional Quarterly, Inc., 1996), 22.
6 George W. Bush, The National Security Strategy of the United States of America (Washington, DC, The White House, September 2002), 3.
7 Blackstone, Commentaries on the Laws of England, Book One, Chapter One, p.118. Available from The Avalon Project, Yale Law School, at www.yale.edu/lawweb/avalon/blackstone
. Accessed 11 April 2003.
8 Alexander Hamilton, “The Federalist, No. 15, ”The Federalist (New York, The Modern Library, 1941), 86.
9 E.g., The prohibition of alcohol, U.S. Constitution, amendment 18. It was repealed by the Twenty-First Amendment fourteen years later.
10 J.L. Brierly, The Law of Nations, 6th Ed. (Oxford, Oxford Press, 1991), 1.
11 E.g., Convention on International Civil Aviation (Chicago Convention, 1944); United Nations Convention on the Law of the Sea (UNCLOS III, 1982).
12 E.g., The United Nations Framework Convention on Climate Change (9 May 1992); Kyoto Protocol to the United Nations Framework Convention on Climate Change (11 December 1997).
13 Rome Statute of the International Criminal Court (United Nations Diplomatic conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998).
14 Horace B. Robertson, Jr., “Contemporary International Law: Relevant to Today’s World?”U.S. Naval War College
International Law Studies, Vol. 68, ed. John Norton Moore and Robert F. Turner (Newport, Naval War College Press, 1995), 3.
15 Brierly, 17.
16 Levi, 6.
17 Brierly, 17.
18 Ibid., 3. See also Levi, 6-9.
19 Statute of the International Court of Justice, Article 38.
20 The SS Lotus Case (Fr. v. Turk.), 1927, Permanent Court of International Justice, 1927 (Ser.A), No. 10, at 18-19 (7 September): “The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law. . . .”International law scholars disagree on the fundamental nature of law.
There are two distinct schools of thought. The Monist view holds that international law and municipal (state) law are simply parts of an integrated system. The focus is on the individual. Dualists believe that international law and municipal law are two distinct systems. The focus of domestic law is the individual; the focus of international law is on states. These views influence contemporary debate. See Levi, 22-23.
21 Levi, 35. Levi cites as an example the launching of Sputnik by the Soviet Union, which claimed that artificial satellites could fly unimpeded over state territory, and the general acceptance of this proposition.
22 Ibid., 5.
23 Brierly, 66.
24 Although both predictability and stability are encompassed in the phrase “rule of law, ”the phrase is itself of fairly recent origins, representing the triumph of the western democracies since World War II. Historically, international law has concerned itself more with creating a stable, predictable world, rather than with a particular technique used to accomplish these ends.
25 Democracy in ancient Greece, notably Athens, was real and vibrant but limited in modern terms: only citizens could exercise political rights or hold land; women had few rights; slavery was an essential institution. None of this, however, diminishes the power and influence of Greek thought on leaders of the Enlightenment. See William Y. Elliott and Neil A. McDonald, Western Political Heritage (New York, Prentice-Hall, 1955), 63-74.
26 Brierly, 7.
27 Ibid., 13.
28 Mel Brooks, Director, History of the World, Part I, Fox Films, 1981.
29 Levi, 10.
30 Bernard Grun, The Timetables of History, 3rd Ed. (New York, Touchstone, 1991), 294.
31 Levi, 8.
32 Ibid, 9.
33 Henry Kissinger, Diplomacy (New York, Touchstone, 1994), 78.
34 Ibid., 40, 127.
35 See Fareed Zakaria, From Wealth to Power (Princeton, Princeton University Press, 1998), Chapter 5: “The New Diplomacy, 1889-1908.”
37 Eric. S. Krauss and Mike O. Lacey: “Utilitarian vs. Humanitarian: The Battle Over the Law of War, ”Parameters, 32 (Summer 2002): 73, 76.
39 General Orders No. 100, supra note 1.
40 The Hague Conventions of 1899 were largely incorporated in the Conventions of 1907, of which five are important: (1) Convention Relative to the Opening of Hostilities, 18 October 1907, 36 Stat. 2259; (2) Convention Respecting the Laws and Customs of War on Land and Annex, 18 October 1907, 36 Stat. 2277; (3) Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907, 36 Stat. 2310; (4) Convention Concerning Bombardment by Naval Forces in Time of War, 18 October 1907, 36 Stat. 2351; and (5) Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 6 July 1906, 18 October 1907, 36 Stat. 2371.
41 Kenneth Anderson, “Who Owns the Rules of War?, ”New York Times Magazine, 13 April 2003, 38.
42 Kissinger, 259.
43 Ibid., 247.
44 Department of the Army, Pamphlet 27-161-2, International Law, Vol. II (Headquarters, Department of the Army, 1962), 221. These trials, known as the Leipzig trials, demonstrated the problem obtaining jurisdiction over war criminals—Germany was not defeated and occupied as in World War II. The Leipzig trials did motivate the allies in 1945 to establish an international tribunal at Nuremberg.
45 Kissinger, 247.
46 Ibid., 373. The Washington Conference of 1922 attempted to regulate capital ships; the London Conference of 1930 attempted to regulate submarines as well. See Department of Army Pamphlet 27-161-2, supra, at 16. For a detailed study of the Naval Treaties, see W. Hays Parks, “Making Law of War Treaties: Lessons from Submarine Warfare Regulation, ”U.S. Naval War College International Law Studies, Vol. 75, Michael N. Schmitt, ed. (Newport, Naval War College Press, 2000), 339.
47 The Kellogg-Briand Pact, or Pact of Paris, is formally known as The General Treaty for the Renunciation of War (27 August 1928), 46 Stat. 2343.
48 Kissinger, 40.
49 Brierly, 47, quoting from the International Conciliation Pamphlet, 1941.
50 Universal Declaration of Human Rights, UN General Assembly, 10 December 1948.
51 Ibid, Preamble.
52 See the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277, art.VI; the Geneva Conventions of 1949 (four separate conventions—on the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, on the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, the Geneva Convention Relative to the Treatment of Prisoners of War, and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War); and Protocols to the Geneva Conventions of 1949 (1977). These conventions form the nucleus of what is commonly called “International Humanitarian Law.”
53 E.g., The Food and Agriculture Organization, the World Health Organization, the International Civil Aviation Organization, the United Nations Educational, Scientific and Cultural Organization, the International Labor Organization, and the International Monetary Fund, to name only a few.
54 E.g., the START and SALT strategic arms negotiations and Anti Ballistic Missile (ABM) treaties with the U.S.S.R, and multilateral international agreements, including the Conventional Weapons Treaty (1980), the Chemical Weapons Convention (1993), and the Ottawa Treaty on Anti-Personnel Land Mines (1997).
55 Notes 11 and 12, supra.
56 E.g., Ivo H. Daalder, “The United States and Military Intervention in Internal Conflict, ”in International Dimensions of Internal Conflict, Michael E. Brown, ed. (Cambridge, MIT Press, 1996), 461.
57 UN Charter, Chapter I, Article 2, para. 1 and Chapter XI.
58 Eric Larabee, Commander in Chief (New York, Touchstone, 1987), 632.
60 E.g., Vietnam. Our efforts to combat aggressive communist expansion encountered international opposition both at the UN and in other international forums. Agreements such as Protocols I and II to the Geneva Conventions of 1949 and the UN Convention on Law of the Sea displayed a distinct anti-Western and anti-American bias, yet reflected the considered opinion and practice of many states. International law was no longer the sole province of the great powers and the “civilized”states, and traditional American leadership in international law began to fade.
61 SALT, START, ABM, START II, etc.
62 Nuclear weapons (and other weapons of mass destruction) have been banned from space, although space has not been “demilitarized.”Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies (Outer Space Treaty, 1967).
63 International Humanitarian Law essentially encompasses the principles enunciated in the Geneva Conventions of 1949 and Protocols I and II of 1977.
64 See Joint Pub 3-08, Interagency Coordination During Joint Operations, Vol. II, 9 October 1996, Appendix B, for a detailed listing of NGOs and countries in which they operate.
65 There are many examples. International support of the Palestinians is one; international efforts to remove white racist governments in Rhodesia and South Africa are another.
66 The Ottawa Treaty, formally known as the “Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction, ”December 1997. The Ottawa process featured active participation by NGOs and international celebrities. Their priorities were humanitarian, not utilitarian, in nature. See Krauss and Lacey, supra, note 36 at 81.
67 Preface to the Ottawa Treaty, ibid.
68 On 17 September 1997, President Clinton announced that the United States would develop alternatives to anti-personnel land mines by 2003, and would replace all “dumb”land mines in South Korea by 2006. The principle U.S. objection to the Ottawa Process was its failure to acknowledge U.S. fielding of “smart”or self-destructing land mines. The Conventional Weapons Convention of 1980 prohibits indiscriminate laying of mine fields and requires mapping, marking, and removal, among other requirements. The Ottawa Process is unlikely to stop rogue states and revolutionary movements from indiscriminately laying and abandoning mines.
69 World Trade Organization sessions have attracted enormous demonstrations by diverse groups ranging from environmentalists to religious organizations to unrepentant communists.
70 See, e.g., George K. Walker, “Principles for Collective Humanitarian Intervention to Succor Other Countries’ Imperiled Indigenous Nationals, ”American University International Law Review, Vol. 18, No. 1, 35; John C. Yoo, “The Dogs That Didn’t Bark: Why Were International Legal Scholars MIA on Kosovo?, ”Chicago Journal of International Law, Spring 2000, 149, accessed on line at www.proquest.umi.com/pqdweb?TS
on 27 January 2003.
71 Supra, note 19.
72 Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, 8 July 1996, Declaration of President Bedjaoui at para. 13., quoted in Robert F. Turner, “Nuclear Weapons and the World Court: The ICJ’s Advisory Opinion and Its Significance for U.S. Strategic Doctrine, ”U.S. Naval War College International Law Studies, Vol. 72, Michael N. Schmitt, ed. (Newport, Naval War College Press, 1998), 309, 312.
73 Kofi A. Annan, “Two Concepts of Sovereignty, ”The Economist, 18 September 1999, p. 49.
74 See Thomas W. McShane, “Blame it on the Romans: Pax Americana and the Rule of Law, ”Parameters, Vol. 32 (Summer 2002): 57.
75 Bush, National Security Strategy, supra, note 5, Preface.
76 Kissinger, 47.
77 Mersheimer, supra, note 3.
78 G. John Ikenberry, After Victory: Institutions, Strategic Restraint, and The Rebuilding of Order after Major Wars (Princeton, Princeton University Press), 29.
79 Ibid, 163, 166. These institutions included the United Nations, NATO, The Marshall Plan, and the World Bank, among others.
80 Ibid, 4, 6.
81 Democide refers to the torture and killing of citizens by their own governments, generally despotic and totalitarian in form. One figure attributes 170 million deaths to democide over the course of the twentieth century, a number two to four times greater than the total number killed in war. See John Norton Moore, “Opening Comments, ”Vol. 149, Military Law Review, 7, 10 (1995). Professor Moore, Director of the Center for National Security Law at the University of Virginia School of Law, made these comments in a symposium on “Nuremberg and the Rule of Law: A Fifty year Verdict”at the U.S. Army Judge Advocate General’s School, 17 November 1995.
82 Universal Jurisdiction is based upon the principle that certain crimes violate international interests and norms and that states may take action regardless of the location of the crime or the nationality of the perpetrator or the victim. At present international law recognizes universal jurisdiction for certain offenses (e.g., crimes against humanity, war crimes) covered by the Geneva Conventions of 1949.
The apprehension of Nazi war criminal Adolf Eichmann in Argentina and his trial in Israel in 1961 is often used to illustrate the concept. Others would extend the principle further, to cover domestic crimes that violate humanitarian principles not formally recognized in international law. See The Princeton Principles on Universal Jurisdiction, the Princeton Project on Universal Jurisdiction (Princeton, Program in Law and Public Affairs, 2001).
83 President Clinton signed the treaty on behalf of the United States on 31 December 2000. It was never sent to the Senate for ratification, and on 6 May 2002 the United States officially notified the United Nations of its intention not to become a party. See U.S. Department of State Press Statement containing the official notice, accessed on line at www.state.gov/r/pa/prs/ps/2002/9968pf.htm
on 29 October 2002.
84 See, e.g., Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 14 September 1963, 20 U.S.T. 2941; Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), 16 December 1970, 22 U.S.T. 1641; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), 23 September 1971, 24 U.S.T. 564.
85 The United Nations Security Council endorsed, although it did not direct, efforts to remove the Taliban and destroy Al Qaeda
bases in Afghanistan.
86 The UN Security Council did not support intervention in Iraq beyond weapons inspectors. With at least two of the permanent members, France and Russia, likely to veto any Security Council Resolution sanctioning invasion, the United States led a “coalition of the willing.”
87 As Undersecretary of State Marc Grossman stated on 6 May 2002, as he explained why the United States withdrew from the ICC Treaty: “We believe that states, not international institutions, are primarily responsible for ensuring justice in the international system.”Remarks at the Center for Strategic and International Studies, distributed via email by Listmgr@PD.STATE.GOV
on 6 May 2002.
88 This represents politics as much as law. UN Security Council sanction is not a prerequisite for intervention. Article 51of the Charter permits state action in self defense, and customary law provides an independent basis for action. The Kosovo precedent of international humanitarian intervention without Security Council approval also supports American intervention to remove the rogue regime of Saddam Hussein. International law scholars do not agree on these points.