THE United States Supreme Court has sent a signal to the world that the US will not let international law stand in the way of its "war on drugs."
The court ruled June 15 that the US government has the right to prosecute a Mexican doctor implicated in the 1985 killing of a US drug agent, even though the doctor was kidnapped by US-paid agents and forcibly transferred into the US over Mexican government objections.
In writing the majority opinion, Chief Justice William Rehnquist said that the kidnapping may have been "shocking" and "in violation of general international- law principles," but that it did not explicitly violate the US-Mexican extradition treaty.
It is up to the Bush administration to decide whether Humberto Alvarez-Machain should be returned to Mexico without standing trial, Justice Rehnquist wrote.
Writing for the minority in the 6-3 decision, Justice John Paul Stevens lamented the negative example such a "monstrous" decision would set around the world.
Conservative legal experts supported the court's decision, saying it was a cut-and-dried case of simply going by what the extradition treaty did and did not say.
"If they had wanted it [a ban on kidnapping] in there, it could have been," says Paul Kamenar of the Washington Legal Foundation. He agreed that the decision may have "shock value," but said "the courts are not supposed to adjudicate on the basis of shock value." He also said that, since such kidnappings are rare, the case will have limited impact.
Other legal scholars wonder whether extradition treaties with the US have now been rendered moot. Why work out a formal treaty, if the US believes it can go anywhere and snatch a suspected criminal? the argument goes.
Tom Farer, a professor of law and international relations at American University, strongly disagrees with the Supreme Court's ruling, but does not foresee the US government kidnapping suspects on foreign soil at will. May tie executive hands
"Ironically, the ruling may inhibit the executive branch," says Professor Farer. "Suddenly, this is a higher-profile issue with diplomatic consequences. A lot of countries will condemn it (the ruling). There will be an uproar in Mexico and pressure on Bush" to let Dr. Alvarez go. Theoretically, however, he says, there's nothing left to the "doctrine of sovereignty" if one country can go into another and perform the police and security functions that are fundamental to a nation's identity as a sovereign e ntity.
But Farer does not believe that a seizure of a person on foreign soil constitutes a violation of international law in all circumstances. If a country is consciously providing safe haven for terrorists, then such a seizure might be warranted, he says.
Indeed, the June 15 ruling has raised questions over whether the US might go after the two Libyans indicted in the downing of Pan Am Flight 103. Libya has refused to hand the men over. There's also Abul Abbas, who has been sentenced in absentia for his role in the 1985 hijacking of the Achille Lauro cruise ship. No regard for outside law
The sad aspect of this ruling, say Farer and other legal experts, is that it shows that the Supreme Court views international law as being "out there," and that it views the US as not being an integral part of the world - particularly at a time when the US is touting itself as an architect of a "new world order" under which respect for law is vital.
Charles Gustafson, a law professor at Georgetown University, sees the court's ruling as supporting a tendency on the part of the US government to flout international law when it does not suit its goals, such as the condemnation by the World Court of the CIA's mining of Nicaraguan harbors. "The US is very preachy about international law, though customary international law is such an ephemeral thing," he says.
In the case of Panamanian strong man Manuel Noriega, currently standing trial in the US, "kidnapping" would not describe his arrest by the US in Panama, say administration officials. Therefore, the outcome of the Alvarez case in the Supreme Court would not have any bearing on Noriega.
The Panamanian government had invited the US military into Panama and allowed the arrest of Noriega, the US says, so the two cases are not comparable.