A Minimalist International Legal Order: Enforcing Jus Cogens Norms Through the Fiduciary Jurisdiction of National Courts.

• Date: 01 July 2018
• Author: Boudreau, Thomas

INTRODUCTION: AN OVERVIEW OF A MINIMALIST INTERNATIONAL LEGAL ORDER.

The initial axiom of this paper is that a new Law of Nations was created in international law due to the solemn promises made in good faith by the Allied powers during World War II to their own, neutral, conquered and colonial peoples of the world. Specifically, this New Law of Nations emerged out of the Atlantic Charter, the Declaration of [the] United Nations on January 1, 1942, the Moscow Declaration and other promissory statements made by Allied governments especially during the darkest times of the war. These declarations contained solemn promises that, in essence, created fiduciary obligations, duties, interests, and norms that were to be recognized on the international level by governments and enjoyed by the peoples of the world if the war was won.

This fiduciary Law of Nations now governs the relationship of governments to their own and other peoples and enunciates the rights of such nations to, among other things, human rights, humanitarian law, self-determination, trusteeship and collective security as embodied in the Charter of the United Nations and other post war documents. The Law of Nations enunciates the legal rights and protections that the peoples within a state and throughout the world possess in relation to their own and other governments. In particular, the modern Law of Nations limits and sharply curtails the unilateral violence that a government can legitimately use against its own or other peoples as the Nuremberg Charter, the four new Geneva Conventions (1949), the Convention on the Crime and Punishment of Genocide and as other subsequent legal conventions attest. In short, if there are new or unprosecuted laws on the books, courts should have the concurrent effective judicial capacity to enforce them.

Yet, while the scope and complexity of international law have greatly expanded--such as the vital Nuremberg legacy (1) resulting from World War II--there has not been a concurrent expansion of judicial capacity, especially at the national level, to insure the effective enforcement of this priceless legal inheritance. While the recent creation of the International Criminal Court (ICC) is a promising beginning, the ICC with its limited resources simply can't do this--effective enforcement--alone; so, the Rome Statute (2002) specifically call for the critical and complimentary role of national courts in enforcing international criminal law. (2)

The pioneering Pinochet case, coming some 55 years after the World War II, was still seen by many as a novelty since a national court was interpreting international law; so, this case, while cogently decided by the House of Lords, (3) nevertheless illustrates the compelling need for much greater use of national courts to decide international law. Lord Browne-Wilkinson makes this very clear when he states in the decisive Pinochet III decision that:

My Lords, this is an area where international law is on the move and the move has been effected by express consensus recorded in or reflected by a considerable number of international instruments. Since the Second World War states have recognised that not all criminal conduct can be left to be dealt with as a domestic matter by the laws and the courts of the territories in which such conduct occurs. There are some categories of crime of such gravity that they shock the conscience of mankind and cannot be tolerated by the international community. Any individual who commits such a crime offends against international law. The nature of these crimes is such that they are likely to involve the concerted conduct of many and liable to involve the complicity of the officials of the state in which they occur, if not of the state itself. In these circumstances it is desirable that jurisdiction should exist to prosecute individuals for such conduct outside the territory in which such conduct occurs. [Emphasis Added] (4) This emerging "best practice" of the judiciary can most effectively be achieved by expanding the necessary judicial capacity of national courts through appropriate national legislation or customary law to decide such questions of international law. In this context, judicial capacity can be preliminarily defined in three interrelated ways; in the first instance, judicial capacity simply refers to the entire judicature collective capacity to enforce the laws on the books; this could actually be considered global in scope. Second, and more importantly for our purposes, judicial capacity refers to a national judiciary's authority and ability to enforce effectively the law and legal norms that actually exists in international law, either in written form or in customary law, especially jus cogens norms. (5)

As such judicial capacity is obviously a separate issue from judicial competence in administering the law or independence from the political branch, though all of these are related to the basic question concerning the best practice of a judiciary. On a more specific level, thirdly, judicial capacity involves a particular court's capacity to adjudicate effectively the cases that come before the presiding judge. Yet, in all three instances, the judicial capacity to enforce effectively basic jus cogens norms necessary for the maintenance of a minimal international legal order is largely missing, as modern atrocities continue to be committed largely with legal impunity. For instance, due to this lack of appropriate national capacity, war crimes and torture continue to be committed up to current times, as even tomorrow's headlines may reveal.

A key theme of this article is that international and national courts must be simultaneously involved in adjudicating the appropriate law, especially fundamental jus cogens norms, in order to secure the effective rule of law in international affairs. Since 2002, International Court (ICC) has operated yet still unfortunately has too limited scope and resources to do this effectively. So the national judicial capacity to enforce international law must be increased to match the growth of international norms during and after World War II; this is also essential in order to match the increasing degree of apparent law breaking in international affairs, such as the drafting of the infamous "torture memos," with still apparent legal impunity from due process or a day in court for the advisors, authors and co-signers of these documents in the second Bush Administration; we will come back to this issue shortly. (6)

Furthermore, with so many wars and massive civilians casualties from raging conflicts, the ICC apparently can't keep up with the demand; for instance, the lack of such judicial capacity to enforce the laws on the books can be seen in the seemingly endless current attacks and atrocities committed against civilians, soldiers and "enemy combatants" throughout the world during the early part of the 21st without any apparent legal repercussions or consequence. Two genocides are occurring as this article is being written in Yemen and in Myanmar. The civilian leadership of the United States decided to attack a country in the spring of 2003 that never attacked it, namely Iraq, which subsequently descended into death and mass destruction; almost every city there has been leveled, either in the original US invasion, or in the subsequent war against ISIL which took over much of the countryside as a result. After the drafting of the infamous "Torture Memos" by a coterie of American lawyers within the second Bush Administration, there were subsequent widespread and credible reports and photographic evidence of torture being used by Americans in Abu Ghraib as well as other Iraqi prisons or so-called "safe houses in other countries to which illegal renditions occurred. (7)

These memos occurred due in part to the legal advocates of torture within the second Bush administration tried to distinguish torture from other cruel, degrading and unusual punishment, even though the Convention is entitled in the conjunctive, as follows: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (8) furthermore, any such action is specifically prohibited by the U.S Constitution. (9) Yet, none of these legal advisors have been charged or brought into a court of law anywhere in the world to have their day in court to face the facts and legally determine their innocence or guilt. (10) The American international legal community, including scholars and policymakers, have been largely silent, or even complicit, as the drafters of these memos travel to law conferences in the us and even abroad with impunity or even professional scrutiny from their peers; so obviously others must act first, in other lands, as Lord Browne-Wilkinson states if the rule of law is to be upheld. (11) In the Pinochet iii case, brought about due to the request for Pinochet to Spain by the great Spanish Judge Baltasar Garzon, Lord Browne-Wilkinson specifically focuses upon the allegations concerning the act of torture, stating "to regard the rule against torture as jus cogens and erga omnes underlines its fundamental pace in the public policy of international law." (12)

So, without the appropriate expansion of national judicial capacity, the post war Corpus Juris is in danger of becoming a dead letter and a meaningless legal footnote in history. In particular, the resulting modern and fiduciary Law of Nations during and after the war at first, especially after the Nuremberg trials, promised to place on trial those individuals accused or suspected of committing the most heinous crimes imaginable, especially those crimes that violate the most serious crimes defined in the Nuremberg Charter and trials, including the critical Allied Control Council Law No. 10; (13) so, these crimes now include, as we will see below, widely accepted and critical jus cogens norms concerning crimes against peace, war crimes, crimes against...