International Criminal Adjudication and the Right to Punish

North American Philosophical Publications

International Criminal Adjudication and the Right to PunishAuthor(s): Michael BlakeSource: Public Affairs Quarterly, Vol. 11, No. 2 (Apr., 1997), pp. 203-215Published by: University of Illinois Press on behalf of North American Philosophical PublicationsStable URL: http://www.jstor.org/stable/40435991 .

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Public Affairs Quarterly Volume 11, Number 2, April 1997

INTERNATIONAL CRIMINAL ADJUDICATION AND THE RIGHT TO PUNISH

Michael Blake

have long been concerned with the justification of legal punishment. This justification has tended to assume the existence

of a state as the exclusive punishing agent; accordingly, while philosophers have spent a great deal of time trying to articulate justifications for the practice of legal punishment, very little work has been done which deals directly with the identity of the appropriate agent of legal punishment.1 This is, of course, hardly surprising. Le- gal punishment has been the more or less exclusive prerogative of sovereign states during the period in which liberal political philosophy has come into its own. The question of who may punish has therefore been seen as less pressing - and less interesting - than the related question of why punishment may be inflicted.

Recent political events have, however, increased the relevance of the first question. In 1993 the Security Council of the United Nations passed a resolution setting up a criminal tribunal to prosecute war crimes and breaches of international humanitarian law in the former Yugoslavia.2 The tribunal was authorized under Chapter VII of the Charter of the United Nations, which allows the Security Council to determine the existence of any threat to the peace and to take measures to maintain or restore peace and security. Since by 1993 the government of Yugoslavia had disintegrated,3 and no successor entity or entities had emerged to take its place, the Security Council set up the tribunal as part of a package of responses to the situation in the former Yugoslavia - including efforts at peacekeeping by troops under United Nations command.4 The resolution creating the tribunal set up the first international war crimes tribunal since Nuremberg; indeed, inasmuch as the Nuremberg tribunals were prosecuted by victorious parties in a war, the present tribunal is much more international than Nuremberg - it is the first tribunal set up by the international community

203



204 PUBLIC AFFAIRS QUARTERLY

itself, if the Security Council may be so understood, rather than by some coalition of states already parties to the occurrence in question.5 In this way, the link between legal punishment and state punishment has been broken. The international tribunal has all the trappings of a domestic court, and imposes the punishments of a domestic court, but answers only to the international institution of the Security Council. The punishment it threatens those few individuals over whom it has acquired custody is very real - the tribunal has the power to impose sentences of life imprisonment upon those convicted. This paper will examine whether such punishment is legitimately inflicted by the international tribunal as currently constituted. If we accept, as I think we must, that not every entity has a right to punish even those individuals most deserving of being punished - if, for example, we would think that a wealthy industrialist had no right to impose life sentences on even the most egregious of Serbian ethnic cleansers - then we must examine the status of the international community as embodied in the United Nations to see if such an entity has the right to punish offend- ers in the former Yugoslavia. Does the Security Council have the right to punish such individuals? If not, what - if anything - could it do so as to acquire this right?

This paper will argue that the UN does not have the moral right to punish individuals in the former Yugoslavia. The UN response to widespread atrocities in Yugoslavia has negated any claim it might once have had to being a legitimate protective agency for the victims of ethnic cleansing; without such a relationship to the victims of crime, the right to punish the criminal is lost. I would emphasize here that my argument is not that the international community may not act in the face of state disintegration and widespread violence - indeed, my argument is that the international community has lost the right to punish precisely because it did not act in a strong enough manner. Still less is my argument that those indicted by the tribunal are not, if guilty, deserving of punishment; I take it as self-evident that perpetrators of attempted genocide are, under any plausible moral or legal theory, deserving of punishment. The question of this paper is whether the international tribunal, as set up by the Security Council, is an entity which has the moral right to give such individuals what they deserve to receive. It would be a mistake to let our revulsion at the crimes of such individuals prevent the exploration of this question.

To begin, we must have some way of approaching the right to punish. My approach will examine the jurisdictional rules of international law, with a view towards understanding these rules as evidence of our moral intuitions regarding the right to punish. The rules, after all, determine which state has the right to prosecute which individuals and



INTERNATIONAL CRIMINAL ADJUDICATION 205

for which offenses; it would be odd if these rules did not shed some light upon our moral beliefs in this area. I do not argue that these prin- ciples of jurisdiction are necessarily equivalent to our best normative understanding of this right; indeed, given the fact that the rules are motivated in part by concerns of state sovereignty and the avoidance of interstate conflict, it would be surprising if these rules matched exactly with our moral intuitions. However, I think a careful examination of these rules will be valuable; they are a first step towards an understanding of those relationships which do - and those which do not - give rise to the right to punish.

I. Jurisdiction and the Right to Punish

The rules of international law are less easily articulated than the rules of a domestic legal system. They exist, in the case of customary international law, as generally accepted state practices taken as bind- ing by those who participate in them.6 The rules of jurisdiction are such practices, and are generally described under five headings. The first of these is the most important: the principle of territoriality, by which any state has jurisdiction to prescribe law with regard to (a) conduct taking place within its territory; (b) the status of persons or property within its territory; and (c) conduct outside the territory which has or is intended to have substantial effect within its territory.7 That states are given this jurisdictional power by international law should not be surprising. States are, first and foremost, agencies which exist for the protection of individuals. The state is, as Robert Nozick has it, a protective agency which claims a monopoly on force within a cer- tain geographic region.8 States are protective agencies which define themselves in large part based upon geography. It is therefore hardly surprising that they would see themselves as legitimately concerned with the rights of individuals within their territory, whether those rights are threatened by villains within or without.

This, moreover, seems to correspond nicely with our philosophical image of what the state should do. For while we may disagree on the precise form of protection offered by the state - from the protections offered by Nozick's minimal state to the more substantive protection of the Rawlsian state - we seem to agree that the state exists to protect the interests of that set of individuals from which the state draws its support. This image of the state is implicit in the social contract tradition, including that tradition's modern incarnations in Nozick and Rawls. It does not, however, seem limited to social contract theories. Robert Goodin uses this image of the state to explain the moral relevance of nationality; the general duty to protect individuals against




harm is satisfied through the special responsibility of each state for those within its charge. Thus, states exist to press the claims of those who have been harmed and to seek the punishment of those who have done the harming, and the state system is legitimate to the extent that every individual has an adequate protector.9 The boundaries of state protective authority, however, may be defined either through geographic boundaries or through citizenship, since the state is responsible both to a political community and for a geographic region. Although political philosophers often forget this last fact, it is not hostile to their theories; it is simply another way of defining the boundaries of the state's protective responsibility. Inasmuch as states exist to protect individuals within their protective responsibility, it is not surprising that any state would wish to claim jurisdiction over actions harmful to individuals within state borders. Thus, since states claim the duty of protection for those found within its boundaries, they claim the right to punish individuals who cause harm to those within its boundaries - whether such individuals are citizens or aliens, and whether they are to be found within state boundaries or not.

The second basis for jurisdiction is called the passive personality principle, and is generally more controversial than the first. Under this principle, a state may "punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime."10 If this principle has generally been controversial, it is because it has often been employed by stronger nations to justify what might be considered as violations of the sovereignty of other nations. That the concerns of weaker nations here are justifiable is given evidence by the recent case of a Mexican citizen accused of the murder in Mexico of an American agent of the Drug Enforcement Agency. The forcible kidnapping of the Mexi- can citizen by American government agents was deemed by the Supreme Court no barrier to indictment of that foreign national in a U.S. court.11 This decision was, as Justice Stevens noted in dissent, a "monstrous" one,12 but cases such as this should not reflect on the moral basis of the passive personality principle itself. For, on the understanding of the role of the state outlined above, it seems clear that a state may legitimately concern itself with the defense of the individuals within its sphere of protection - and, if the geographic boundaries of the state are one way of describing this sphere, then so are the political. States may legitimately protect the interests of their nationals, especially in virtue of the fact that states may legitimately demand more of their nationals than they do of foreigners.13 The violation of sovereignty involved in a kidnapping, that is, is morally separable from the principle of jurisdiction involved in an indictment.




The former should not be used to condemn the latter. It seems clear, then, that the passive personality principle, however controversial it is because of issues of sovereignty, reflects a vision of the right to punish equivalent to that described above: the state which stands in a protective relationship to the victim may legitimately act to punish the criminal.

The third principle of jurisdiction is the principle of nationality - the nationality, that is, of the criminal. The state may, that is, prosecute the crimes of its nationals even when those crimes are committed abroad. This principle of jurisdiction is not, at first glance, terribly problematic; the state, after all, stands in a relationship with its citizens which justifies the imposition of punishment no matter where the relevant crime has occurred. This basis, however, is not in itself sufficient; even if the criminal is, in virtue of his citizenship, legitimately under the authority of the state, we may still ask where the state ob- tains its moral authority to inflict punishment for the specific action in question. Even if the state may generally punish this person, that is, what justifies the state in punishing the person for this act! What are the moral grounds for the authority of the state to exercise its power over its citizens in this specific case? The only warrant for this authority, I believe, stems from the relationship in which the punishing state stands with the victim of the crime. Whether the point of punishment is retribution or deterrence, the authorized punishing agent must stand in a protective relationship with the victim - a relationship which, we have seen, is displayed in the first two bases of jurisdiction. In the present basis for jurisdiction, therefore, it is best to see the authority of the punishing state as stemming from the punitive authority of the victim's state. The punishing state, that is, acts as agent for the protective entity authorized to protect the victim; in punishing the criminal, it acts on behalf of the state of the victim. This image of the punishing relationship seems borne out by many extradition treaties; such treaties, in the context of the present jurisdictional basis, regu- larly give states a choice between prosecuting their own nationals or extraditing them to the state of the victim.14 Such treaties reflect the judgment that the appropriate agent of punishment must in some way act out of concern for the rights of the victim which were violated in the crime; whatever the general justifying aim of punishment, an entity which claims the right to punish must stand - either directly or mediately - as protector of the rights of the victim.

The final two bases of jurisdiction do not require a great deal of explanation. The fourth, called the protective principle, authorizes prosecution of conduct outside the state's territory "by persons not its nationals that is directed against the security of the state."15 Such a




principle seems necessary to support the state system itself, and so seems compatible with the picture of state authority to punish painted above. Since it is not directly relevant in the case of the international tribunal, however, I will not discuss it further here. The fifth and final principle of jurisdiction, however, is directly relevant to the tribunal, and is indeed the jurisdictional principle upon which the court's proceedings are premised. The principle of universal jurisdiction authorizes any state to prosecute and punish offenses "recognized by the community of nations as of universal concern,"16 including piracy, the slave trade, and abuses of humanitarian law such as genocide. This principle might be thought to provide an easy basis for the jurisdiction of the international tribunal, and as a matter of international law it might well do so. As a matter of moral right, however, the jurisdiction of the tribunal is not so clear. This basis, after all, allows any state to prosecute for those crimes which all states are bound - whether by covenant or by jus cogens norms - to act to prevent. All states, that is, are bound to work for the prevention of these crimes; all are bound to protect their own citizens against these abuses. In this way, the principle of universal jurisdiction might be best regarded as an extension of the jurisdictional principle of nationality. Even as, in this latter case, a state may punish as agent for another state, in the present case any state may punish as agent for the state of the victim those crimes which all states are bound to work to eliminate. The purpose of universal jurisdiction is an attempt to prevent jurisdictional escapes from actions so heinous that all states regard them as crimes.17 Inasmuch as all states are bound to work for their elimination, any state might rightly regard itself as acting on behalf of the protective agency of the victim of these crimes. This does not, however, mean that any agency may prosecute these crimes. The states comprising the international community have all bound themselves to prevent these crimes and protect their citizens from such wrongs. As such, they may regard themselves as legitimately acting, through their domestic legal systems, on behalf of the specific states bound to protect the victims in each instance. The principle does not, as a matter of morality, extend the same right to any entity which decides to take an interest in the case. Whether the international community, acting through the Security Council, may claim this privilege is something which remains to be examined. It is to this question that I now turn.

II. The Right to Punish and the International Community

What has this discussion of international law demonstrated? If anything, I think it is that the right to punish arises from the status of the




punishing agent as protective agent for the victim of the crime. The international law of jurisdiction, I think, can be rationally reconstructed as a series of rules embodying a recognition of the moral necessity of some such relationship between the victim and the punishing entity. It is important, in this context, to note that the rules we have discussed are designed as much to forbid jurisdiction as to allow it. A state which cannot justify its taking of jurisdiction under one or more of these headings, that is, has no legal right to take jurisdiction. The moral right to punish - the moral analogue to the rules of jurisdiction - will reflect this restriction. An entity which proposes to inflict legal punishment must first establish that it stands in the appropriate relationship with the victim of crime; if it cannot establish such a relationship, it has no moral right to punish. A first effort at making this moral relationship precise might rely on the first two bases of jurisdiction, those of the passive personality principle and the principle of territoriality. Looking only at these two rules, we might arrive at the following description of the right to punish: an entity does not have the right to punish offenses unless the punishing agent exists as a protective agent for the victim of the crime; that is, where it is engaged in systematic efforts to prevent the violation of the rights of the victim. The subsequent bases of jurisdiction, I think, demonstrated that this account of the right to punish was not adequate to deal with the multiplicity of punishing agents which occur in the international context. Punishing agents may legitimately punish where they punish on behalf of agents which exist as protective agents for the victims. Thus, the following revision of the principle might be adequate to explain the lesson of international law in this area: an entity does not have a right to punish offenses unless either (1) the punishing agent exists as a protective agent for the victims of the crime, and so is engaged in systematic efforts to prevent the violation of the rights of the victim, or (2) the punishing agent punishes on behalf of such a protective agent, and is confident that another protective agent exists for the purposes of de- fending the rights of the victim and is attempting to protect these rights. Entities which fail this test are, I think, morally unable to inflict legitimate legal punishment in the specific case at issue.

The principle, as expressed above, embodies a simple and, I think, quite plausible moral intuition: punishment is not legitimate unless it is part of a general package of measures taken for the defense of the rights of the victim. Entities which lack the right to punish lack the distinctive concern for the rights of the victim which is the mark of a legitimate punishing agent - we might return to the wealthy industrialist, who was (presumably) not on hand earlier in the situation to protect and preserve the rights of the victims of ethnic cleansing. What



2 1 0 PUBLIC AFFAIRS QUARTERLY

marks him out as an illegitimate punisher is, I think, that he does not display the sort of care for the rights of the victims which would legitimate his status as punisher. His punishment, however richly deserved by those he punishes, does not display the appropriate concern for the rights of the victims, since he was neither on hand earlier to prevent those offenses nor did he ensure that some other protective agency was there to adequately defend them.

It is worthwhile, further, to note that this insight does not depend upon the acceptance of any specific general justifying aim of punishment. Whether one's theory of punishment is based upon deterrence or retribution, it is compatible with the above account of the right to punish. Even retributive theories, after all, are compatible with the belief that not every agency capable of punishing is thereby authorized to administer punishment; both Kantians and utilitarians might agree that the wealthy industrialist given above has no legitimate authority to administer punishment. And, if this is so, then the above account of the right to punishment may well be a plausible and coher- ent story of how such a right to punish might be obtained.

I would now like to focus more closely upon the second formulation of the principle identified above, since it is this formulation which I argue demonstrates the lack of the international community's right to punish in the former Yugoslavia. Yugoslavia, recall, was a case of state disintegration, rather than a simple belligerency in which one or more effective civil governments persisted. There existed no protective agency able and bound to protect individuals against widespread abuses of basic human rights. Under these circumstances, an international body could not regard itself as legitimately punishing on behalf of a protective state: there was, quite simply, no state from which it could draw its authority. If it is true that no entity may legitimately punish without taking its authority from an agency bound to protect the rights of individual citizens, then no entity could legitimately punish under these circumstances. This is not, I would say in the strongest terms, to argue that the international community cannot punish war crimes in the absence of a functioning state presiding over the area in which those crimes are occurring; such a principle, in addition to being morally perverse, ignores the fact that it is precisely in these circumstances that international efforts are most necessary. Rather, the argument I make is that an agency which presumes to punish violations of rights must either ensure that these rights already enjoy some degree of protection or must provide this protection itself. If the international community wishes to punish individuals who commit war crimes, that is, it must employ this punishment only in conjunction with efforts to prevent these war crimes from occurring in the first



INTERNATIONAL CRIMINAL ADJUDICATION 2 1 1

place. If the international community wants to take over the role of a state in the area of punishment, it must take over those aspects of a state which enable it to legitimately punish. It cannot refuse to exercise the protective function of a state and presume to exercise the right of a state to punish. The right to punish comes only at the price of some level of effective protection and prevention; punishment without such protection is punishment without right.

I do not know what level of protection is the minimal amount required for the right to punish to become effective; however, it is clear that the level of prevention the United Nations provided in the former Yugoslavia was not sufficient. The efforts at peacekeeping employed in the former Yugoslavia were aptly described as "quintessential ex- amples of wishful thinking and piecemeal action."18 They suffered from the UN's fundamental uncertainty about its role in circumstances of state dissolution; while the traditional role of the UN has been in peacekeeping - by definition, preserving an endangered but existent domestic order - what happened in Yugoslavia required a more substantive and forceful response, if the UN was to lay claim to status as a protective agent for the citizens of the former Yugoslavia. As Rosalyn Higgins has noted, the UN chose to respond to widespread violence not by acting so as to stop the violence, but by trying to relieve suffering - and this policy choice allowed the violence causing the suffering to continue unabated.19 Because of the UN's uncertainty about its role in the former Yugoslavia, it was unable to provide a clear mandate for the small, ill-equipped and organizationally unclear forces sent to maintain a non-existent order.20 The response of the international community was effective only at convincing the West that something was being done about the ongoing atrocities in the former Yugoslavia; the action was, according to the first head of UNHCR operations in the area, "a palliative, an alibi, an excuse."21 Indeed, it is plausible that the response of the international community to the situation in Yugo- slavia was worse than ineffective - the premature recognition of seceding republics, in violation of the traditional international legal rules of state recognition, may have paved the way for civil war and violence, inasmuch as it was far from clear that the republics thus recognized could in fact survive independently.22

The lack of a clear mandate to forcibly prevent atrocities, and the lack of effective personnel and equipment to fulfill that mandate, turned the UN operation in Yugoslavia into a debacle - the UN personnel were, in the phrase circulating in UNPROFOR headquarters, eunuchs at the orgy.23 If the UN is to have the right to punish those who committed atrocities in Yugoslavia, it must have demonstrated some minimal level of commitment to the protection of the rights of Yugoslavians from




those atrocities. I do not think that any reading of the facts of UN operations in Yugoslavia allows the interpretation that such a level was reached.

My argument, in sum, has been that an agency which presumes to punish must accept the burdens of this role, and that these burdens require that agency to be able to assert, with some degree of plausibil- ity, that it has ensured a minimal level of protection from violence is in place. This the UN failed to do. Punishment without such protection is, perhaps, a salve for the Western conscience, but it is not a legitimate form of legal punishment.

I should note, finally, that I am not entirely confident that my argument works the other way - that, if the UN had been able to protect the rights of the Yugoslavians, it would have had the right to punish what rights violations nonetheless occurred. The principle I have identified articulates only a necessary condition for legitimate punishment; simply meeting this test does not in itself guarantee that the right to punish exists. Unlike the legal right to punish, the moral right to punish may also require the punisher to hold appropriate attitudes towards those within its power; I am not sure the tribunal would meet this re- quirement. The tribunal was set up - indeed, under the current Charter system the Security Council was bound to set the tribunal up - as a mechanism for the maintenance of international peace; Chapter VII actions are only permitted for this purpose. This purpose, however, seems somewhat in conflict with the institution of legal punishment. It seems to make explicit what makes many people uncomfortable about deterrence theories of punishment; it asserts explicitly that punishment shall be undertaken only pour encourager les autres. The very setup of the tribunal, that is, demands that individuals be punished only insofar as that punishment is effective in preserving and promot- ing international peace. It is not hard to see that many moral theories would condemn such a treatment of even the worst of human crea- tures.24 Since I am not confident of my argument here, however, I will not pursue it in this paper. I will note only in closing that, whatever we think of this second problem with the legitimacy of the tribunal, the first would be cured in subsequent situations such as Yugoslavia by a coordinated and effective protective response to state dissolution and imminent atrocity. Whether such a solution is feasible, of course, is a problem for practical politics rather than philosophy.

I will conclude by acknowledging that the conclusions I have reached in this paper are troubling. Most thoughtful persons, faced with the images of concentration camps and mass graves recently seen on the evening news, will respond with a desire to do something - and the tribunal, whatever its problems, seems like a start. It seems, that




is, almost perverse to argue against an institution such as the tribunal; if we want, as I think we all do, a global increase in the rule of law and a decrease in atrocities, it seems tempting to remain quiet about minor philosophical quibbles and accept the tribunal as a sign that things are going in the right direction. I sympathize with this response, but I believe it is fundamentally mistaken. It is wrong to focus on easy solutions which comfort the conscience in preference to what actually comports with our considered moral judgments. Just institutions must be concerned with doing the right thing, despite the understandable desire to be seen as doing something in face of atrocities and violations of humanitarian law. It is my fervent hope that in future cases of ethnic violence and hatred - and it seems sadly likely that such cases will exist - the international community will comport itself in a manner which would give rise to the moral right to punish. In the present case, however, the response of the international community seems unable to ground such a right. The international community, therefore, is unable to legitimately act as agent of legal punishment, and the international tribunal it has set up is a morally illegitimate institution.25

Stanford University

Received November 19, 1996

NOTES

1 . Most of the work dealing directly with the right to punishment argues from neo-Lockean premises, in which a right to punish is attributed to all individuals in the state of nature and is subsequently attributed to the state upon its formation. This work tends, however, to absorb the question of the legitimacy of punishment into the question of the legitimacy of the state; since what is at issue in the present paper is the legitimacy of punishment by an agency which is not the state, and since I have trouble accepting the notion of a natural executive right to punish, this work has little bearing on the present paper. See, e.g., A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992) pp. 121- 167; Robert Nozick, Anarchy, State and Utopia (Cambridge: Harvard University Press, 1974) pp. 3-146; Daniel M. Farrell, "Punishment Without the State", Nous 22 (1988), pp. 437-53.

A notable exception to this trend is Jeffrie Murphy's "Marxism and Retribution," which addresses the right to punish from a Marxist perspective. Inasmuch as Murphy also attempts to derive minimal conditions for legitimacy of a punishing agent, and then argues that some current practices of punishment do not meet these conditions, I see my project as being in line with Murphy's. However, since the conditions identified by Murphy as negating the right to




punish are the economic and social institutions of capitalism, rather than aspects of the relationship between the punishing agent and the victim of the crime, my project is significantly different as well. Jeffrie G. Murphy, "Marxism and Retribution," Philosophy and Public Affairs vol. 2. no. 3 (1973), pp. 217-243.

2. Security Council Resolution 827 (1993), S/RES/827, May 25, 1993. A good account of the organization and setup of the tribunal is found in The International Criminal Tribunal for the Former Yugoslavia: Establishment, Organization, Jurisdiction and Proceedings to Date, memorandum of the Lawyers Committee for Human Rights, New York, 1995.

3. In 1992 the EC Conference on Yugoslavia declared that, contrary to the assertion of Serbia, there was no successor state to Yugoslavia, since the Socialist Federal Republic of Yugoslavia was in the process of dissolution. EC Conference on Yugoslavia Arbitration Committee, Opinion No. 1 (1992).

4. See generally Rosalyn Higgins, "The New United Nations and Former Yugoslavia," International Affairs 69 (1993).

5. The fact that the present tribunal was organized by states not party to the hostilities themselves means that the legitimacy of the tribunal cannot be gauged by our responses to Nuremberg. This is not too much of a problem, however, as very few philosophical explorations of Nuremberg seem to exist; the most explicit account I have found is Nicholas Moseley, The Ethics of Punishment (London: Archon, 1968), pp. 302-29. Nuremberg might, I think, be problematic for a variety of reasons, but the lack of proper relationship between the punisher and the punished is not one of them; indeed, Nuremberg might be best understood as state punishment of citizens of another state for violations of laws which all states are bound to enforce - a situation which, as will be explained, is hardly a novel one in international law.

6. My account of international law draws on Louis Henkin, et al., International Law Cases and Materials, 3d ed. (St. Paul: West, 1993), pp. 1046-1 125.

7. This description is adapted from Restatement (Third) Foreign Relations Law of the United States,^ 403 (1). The Restatement is not a canonical description of international legal rules, but is generally accepted as a reasonable summary of these rules.

8. Nozick, supra note 1, at pp. 23-25. 9. Robert Goodin, "What Is So Special about Our Fellow Countrymen?"

Ethics vol. 98, no. 4 (1988), pp. 663-687. 10. United States v. Fawaz Yunis, 94 F.2d 1086, 1087 (D.C. Cir. 1991)

(upholding indictment of defendant accused of terrorism affecting Americans in Lebanon). See also United States v. Benitez, 741 F.2d 1312, 1316 (1 lth. Cir. 1984) (invoking passive personality principle to approve prosecution of Colombian citizen convicted of shooting a U.S. drug agent in Colombia).

11. United States v. Humberto Alvarez-Machain, 112 S.Ct. 2188 (1992). 12. Alvarez-Machain, 112 S.Ct. at 2188, 2206 (1992). 13. See Goodin, supra note 9, on this point. 14. See, for example, the 1971 Convention for the Suppression of Unlawful

Acts Against the Safety of Civil Aviation, which gives states the duty to either




prosecute their own nationals or extradite them in cases of terrorism. The fact that such prosecution is done as agent for the victim's state (which, in turn, is protective agent for the victims themselves) may perhaps be seen by the response of the Security Council to Libyan prosecution of Libyan nationals accused of exploding a Pan Am flight over Lockerbie in 1988. Since the prosecution was felt by the U.S. and the U.K. to be insufficiently rigorous, the Security Council acted pursuant to Chapter VII to force Libya to hand over its nationals. The real right to punish, stemming from the duty of the U.S. and the U.K. to those of their nationals injured in the explosion, was held by the U.S. and the U.K.; Libya held this right only as agent for these states, and its lack of care for the rights of the victims caused it to lose this right. See Libyan Arab Jamahirya v. United States of America, I.CJ. Reports 1992, p. 114.

15. Restatement {Third) § 402(3).

16. Restatement {Third) § 403.

17. In the domestic context, the Alien Torts Statute, 28 U.S.C, n 1350, has been interpreted by some circuits as allowing the civil - although not criminal -

prosecution of crimes against the law of nations. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d. Cir. 1980) (upholding federal jurisdiction in tort suit for torture in Paraguay); Kadic v. Karadzic, 70 F. 3d. 232 (2d. Cir. 1995) (upholding federal jurisdiction in tort suit for violations of international law in the former Yugoslavia).

18. Thomas G. Weiss, "UN Responses in the Former Yugoslavia: Moral and Operational Choices," in Joel H. Rosenthal, ed., Ethics and International Affairs: A Reader (Washington: Georgetown University Press, 1995), p. 219.

19. Higgins, supra note 4, at 469.

20. Weiss, supra note 18, at 220-221.

21. Quoted by Stanley Meisler, "UN Relief Hopes Turn to Despair," Washington Post, October 25, 1993, Al.

22. See Antonio Cassese, "Self-Determination of Peoples and the Recent Break-Up of USSR and Yugoslavia," in R. MacDonald, ed., Essays in Honour of Wang Tieya (Amsterdam: Kluwer, 1993), pp. 131-144. 1 am grateful to Robert L. Holmes for this point.

23. Weiss, supra note 18, at 232.

24. This aspect of the tribunal seems particularly troublesome in view of the small number of individuals actually indicted by the tribunal, and the even smaller number actually in custody. Although there are, as I write, signs that this aspect of the tribunal may improve, it seems poised to become a public trial of a few minor players in the Yugoslavian war designed explicitly to use these individuals as spectacles for the purposes of public order.

25. I would like to thank Jules Coleman, Avrom Faderman, Jonathan Kaplan, Lisa J. McLeod, Sonja Petersen, Debra Satz, and the editor of this journal for

helpful discussions of the issues underlying this paper. I am especially grateful to Paul W. Kahn of the Yale Law School for encouraging and guiding my philosophical examination of international legal issues.



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International Criminal Adjudication and the Right to Punish