How Far Can We Go?

Some of the more profound legal questions surrounding the American invasion of Panama have been set aside by the decision of Gen. Manuel A. Noriega to surrender to American troops. Nevertheless, the legality of the military action and the authority of the United States to seize an indicted person on foreign soil and try that person in American courts remain unresolved.

The Bush Administration, through legal opinions drawn in the Justice Department in June and November, has asserted a right to seize suspected criminals in foreign nations even in the absence of permission from the foreign government and to bring them to the United States to stand trial without further formality. The claim reversed a 1980 Justice Department opinion. In the Dec. 20 invasion, the Administration also offered a novel interpretation of the inherent right of self-defense provided in the Charter of the United Nations.

These broad assertions of authority have been motivated in large measure by concern about illicit drug traffic. An earlier action by Congress claimed similar authority in the extraterritorial pursuit of suspected terrorists.

On the legal issues, the United States has acknowledged that taking on such new powers is not in conformity with customary international law. A Justice Department opinion has argued, however, that the President is not bound by international law unless it is codified in American domestic law. The use of article 51 of the U.N. Charter to justify the military action also appears to go beyond past interpretations of the provisions for self-defense, ignoring the charter’s strict limitations on the use of force as a temporary emergency expedient when under enemy attack and before the U.N. Security Council is able to act.

These novel interpretations of international law pose two risks. They could serve to set back the slow but steady progress that has been made in constructing a rule of law at a moment in history when even the Soviet Union has shown renewed interest in using the Charter of the United Nations to regulate international relations more effectively. And, given the importance of reciprocity in international relations, these assertions of national authority on the sovereign territory of other nations could invite unwelcome applications by other nations. For example, the radical government of the Islamic Republic of Iran has adopted legislation authorizing the seizure of alleged enemies of the state on foreign soil.

Diplomatic immunity, an essential element of international relations, was also brought under a cloud by the behavior of American occupation forces who harassed the Nunciature where Noriega had sought asylum and who entered and ransacked the residence of the Nicaraguan ambassador. It is critically important to the protection of all diplomats, including American diplomats, that these mistakes be more openly acknowledged and steps taken to avoid a repetition. It is clear that the Holy See acted correctly in providing asylum and in negotiating resolution of the custody of Noriega. To argue otherwise would jeopardize the asylum granted in recent months to the respected Chinese dissident Fang Lizhi in the U.S. Embassy in Beijing.

To these unresolved legal issues will now be added the question of Noriega’s status in an American court of law. Is the essential principle of legal extradition eroded by his removal without formalities from Panama? Or is this merely a pragmatic response to the acknowledged breakdown of the system of justice in Panama?

The ramifications of the new interpretation of old international law by President Bush and his Administration are substantial. These concepts could be interpreted as licensing unilateral interventions in violation of the sovereignty of other nations, an interpretation that almost certainly accounts for the votes criticizing the American action in Panama in the U.N. Security Council and General Assembly and in the Organization of American States. They could serve to diminish the limitations on the use of force that are part of the OAS and U.N. Charters, while inviting each nation to define independently what is appropriate international behavior. That could risk a revival of anarchy in place of a renascent rule of law.