Academic journal article Albany Law Review

It's No Defense: Nullum Crimen, International Crime and the Gingerbread Man

Academic journal article Albany Law Review

It's No Defense: Nullum Crimen, International Crime and the Gingerbread Man

Article excerpt

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?

I. 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. …

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