WITH the imposition of Security Council sanctions against Libya for failing to extradite two Libyans accused of bombing the Pan Am jetliner over Lockerbie, Scotland, and for four other Libyans accused of downing a French airliner in 1989, international law has fallen under the force of the White House's whirlwind new world order. While international jurists have always been sensitive to arguments that their field is more politically linked and thus less legal than others, until April 14, international la wyers had law to apply; now coercive authority rules.
The coup in international law has been overshadowed by salutary commentaries about the United Nations finally taking an effective role in combating terrorism. A truly effective strategy to combat terrorism begins at home. This would mean prosecuting all those in United States borders accused of crimes against humanity and the discontinuation of US aid to all regimes linked to terrorism.
Instead, the US has decided to utilize its post-cold-war hegemony over the UN Security Council to take over the legislative, judicial, and administrative roles of the world body. Few dare to criticize this phenomenon and none have power to change this usurption. The Security Council, a product of the fears and political jockeying of UN founders, institutionalized the distribution of political power that existed in the late 1940s. While its permanent members are the same today, their ideologies are not.
The glacial pace and deadlock are gone. For the first time, politically expedient actions, even in violation of the spirit and letter of international law, are possible. This expediency is problematic given the UN Charter's generous grant to the Security Council of jurisdiction over matters of international peace and security.
Previous to the Security Council actions, the Libyans accused of crimes against humanity were subject to universal jurisdiction. Any state could try them if physically present. Libya has an international legal obligation to try them, something the Libyans have offered to do, not to extradite them. No international custom, convention, or bilateral agreement mandates that Libya extradite these nationals to stand trial in a foreign land. In effect, unless one is willing to accept the Security Council's abil ity to create ex post facto law, Libya is not violating international law by refusing the extradition requests.
LIBYA went to the International Court of Justice to prove this point. But in an 11-5 decision, the court held it had no ability to act, for the Security Council already had. This decision does not mean the World Court believes Libya has an international legal obligation to extradite its nationals, but it gives the Security Council carte blanche to act as if it does.
Certainly, it would be better to try those accused of crimes against humanity in an international forum, or for an international judicial body to examine the factual and legal legitimacy of extradition requests, but the statute of the International Court of Justice is excessively limited. Nonetheless, it did have the authority to decide on Libya's international legal obligation to extradite. No such decision was issued.
Without clear international legal support, without even as much as an evidentiary hearing, or allowing the Libyan trials to move forward, UN sanctions have been imposed. Apparently, the US State Department, through the UN Security Council, has become the final arbiter of world justice. Unfortunately, it is an arbiter not interested in reforming a system that has come up short, but in taking advantage of its shortcomings to gain a few percentage points in the opinion polls.
The last time we usurped the role of arbiter of world justice in relation to Libya was following the terrorist bombing of a Berlin discotheque. At that time, before at least a facially neutral adjudicator examined the proof, the Reagan administration, and its prestigious team at the State Department, acted on a published report in Bild Zietung - a German daily that hovers in crediblity somewhere between the New York Post and the National Enquirer - and bombed Libya, causing a number of civilian deaths. T his harsh response, after a careful investigation, was found inadequately supported by facts.
While Libya is not without culpability for supporting terrorism, neither is the US. Made-for-media election-year snipes at Libya in the name of fighting terrorism will in the long run have a detrimental impact on world order. A serious strategy for fighting terrorism begins with foreign policy grounded in respect for human rights, not attacks that trample principles of international law.