Few pleasures are more intense than that of contemplating one's ideological opponents being punished for their errors, an activity that we law professors have so far been able to indulge only in our fantasies. But the times are changing, or seem to be. Witness Philippe Sands' almost palpable
at the prospect of John Yoo and others in the Bush administration being picked up by the police when they are traveling in foreign countries and tried for international crimes in foreign courts: "And for some the future may hold a tap on the shoulder," he purrs. Jack Balkin
. Sands has also been involved in a popular
in London titled
, which features a trial (actually, a pretrial hearing) of former British Prime Minister Tony Blair to determine whether his participation in the invasion of Iraq amounted to a crime of aggression under international law.
I'm all in favor of letting people live out their fantasies, but we're lawyers here at Convictions, and even our fantasies must conform to the rule of law. The principle is that American lawyers should be called to account in foreign courts if their legal advice leads to violations of international law by the United States and (as is virtually always the case) domestic courts offer no remedy. And unless we are to live in a world in which only lawyers go to jail, and not the people who actually make the decisions based on the legal advice, foreign courts are going to have to try the relevant political decision-makers as well. They will be busy.
Nuremberg established the crime of aggression, which though not yet formally incorporated in an international instrument ratified by the United States is widely believed to be a part of customary international law, bolstered by the rules of the U.N. Charter, which permit the use of military force only in self-defense or with the authorization of the Security Council. It is on this premise that Sands' play considers the indictment of Blair—from which it would follow that there should be indictments of Bush and other high-level officials in Britain, the United States, and other countries that participated in the intervention. The invasion of Iraq was not authorized by the Security Council, and it was not an act of self-defense. The crime-of-aggression argument is really not bad—impractical (for both political and jurisdictional reasons), to be sure, but in our fantasies, and on the stage, impracticality is no barrier to action.
Which brings us to the Clinton administration, which in 1999 launched an invasion of Yugoslavia on behalf of Kosovo, its renegade province, now independent. The Clinton administration failed to secure the consent of the Security Council (or even the consent of Congress) but went ahead anyway. In May 1999, the Office of Legal Counsel gave its approval in an oral opinion later memorialized in a memo issued in December 2000. The memo fails to mention that international law prohibited the invasion, perhaps because OLC had exhausted itself trying to prove that Congress had agreed to the use of military force even though the bill to authorize it was voted down. Panting and winded, it had no energy left to address international law. John Yoo, are you listening? Do you see how the pros do it? Next time, refrain from mentioning the Convention Against Torture rather than trying to explain it away.
Should these Clinton lawyers also be "called to account" (along with Clinton himself, of course, and his senior staff, and the former decision-makers and legal advisers of all other NATO countries)? We don't know whether Clinton's lawyers failed to warn him of the relevant international legal prohibitions, or did so only orally, or in a secret memo. Perhaps they gave him good legal advice that he chose to ignore, and they silently resigned their positions in protest. An investigation should be launched so that the truth can be ascertained. Subpoenas issued, witnesses corralled, suspects named. We will also need to look for any legal advice, oral or written, pertaining to other Clinton-era actions that were dubious on international law grounds—the launching of missiles against Afghanistan and Sudan, bombing tactics in Yugoslavia, and the economic sanctions against Iraq, which caused many foreseeable deaths.
Alas, it's not going to happen. International justice has achieved such perfection only in the vivid hallucinations of international lawyers. You former OLC lawyers—next time you're vacationing in Europe, don't be alarmed if you feel a tap on your shoulder. It'll just be me: Boo!