from The New York Times, Jan 10 1990 Scholars Say Arrest of Noriega Has Little Justificati
from The New York Times, Jan 10 1990
Scholars Say Arrest of Noriega Has Little Justification in Law
by Neil A. Lewis
Special to The New York Times
WASHINGTON, Jan. 9 -- The apprehension of Gen. Manuel Antonio Noriega on
drug charges was basically a blunt political act with only an
after-the-fact legal rationale, several legal scholars say.
Some even said that to find a direct precedent one would have to go back
two millennia: when the ancient Romans brought back in chains leaders of
conquered lands. It is an image brought to mind by the pictures of
General Noriega being shackled in the hold of a C-130 aircraft as he was
brought to United States soil last week.
The official United States position is that he was not seized but
rather surrendered voluntarily. Yet no United States official seriously
argues in private that the General was not coerced into surrendering [to]
American military authorities.
No Change in Prosecution
Official also said the General was not arrested until he was aboard the
American aircraft. Bruce Zagaris, a Washington lawyer who is chairman
[sic] of an American Bar Association panel on international criminal law,
disputed that contention, saying the arrest occurred when General Noriega
was taken into custody and deprived of his liberty.
Mr. Zagaris said that while there was little legal justification for
what the United States did, nonetheless, the questionable way General
Noriega was brought to the United States would not affect the Bush
Administration's efforts to prosecute him. United States courts generally
disregard how a foreign defendant was brought before them.
Mr. Zagaris said the United States's legal basis for seizing General
Noriega was weak and "fashioned after the fact." He said the Noriega
arrest raises the disturbing possibility that unfriendly governments
could have justification for seizing former United States officials when
they travel abroad.
Alfred P. Rubin, a professor of international law at the Fletcher School
of Law and Diplomacy, said the arrest was no more legal than if the
Ayatollah Khomeini had ordered the seizure on British soil of the author
Salman Rushdie to be brought to Iran on charges of blasphemy.
Harold Berman, a professor of international law for many years at
Harvard University who is now at Emory University, said, "I can't think
of anything we've ever done quite like this." Professor Berman said it
was reminiscent of feudal times or earlier when wars were more personal.
A senior lawyer at the World Court, who did not want to be identified
because the Noriega case could come before the court, offered a similar
observation. "I can't think of any really good examples unless you go
back in history almost 2,000 years," the lawyer said. "It was like the
Romans leading back defeated leaders and taking them to the circus to be
General Noriega surrendered on January 3, 10 days after taking refuge
at the Vatican Embassy and 14 days after the United States invaded
Panama. The Bush Administration had contended the General was not
Panama's true head of government since the election of Guillermo Endara
as president last year.
Among the issues raised in the legal discussions about the United
States actions is whether General Noriega was, in fact, Panama's leader
during the time he ran the country.
Gideon Gottlieb, a professor of international law at the University of
Chicago and a senior fellow at the Council on Foreign Relations, said
that since the United States did not regard General Noriega as the legitimate
leader, he would not enjoy the immunity that heads of state are
If General Noriega does not have immunity, he would then be no
different than several other drug suspects apprehended by the United States.
Abraham Abramovsky, a law professor at Fordham Law School, said United
States courts have not dismissed any cases because of the way a suspect was
brought back from foreign soil for trial.
Violation Against Panama
Professor Gottlieb, citing the case of Adolf Eichmann who was kidnapped
by Israeli agents from Argentina in 1960 to stand trial for war crimes,
said that if any violation of international law occurred it was against
the country of Panama, not General Noriega.
"The offense, if any, would be to Panama's sovereignty, not Noriega,"
he said. As such, only Panama could raise the issue in protest as did
Argentina in the Eichmann case.
Israel acknowledged it had violated Argentine national rights but that
did not help Eichmann, who was tried and executed.
Professor Rubin of the Fletcher School said that in cases like
Eichmann's or other Nazi war criminals, a different standard applies.
"There is in international law a concept of universal crimes, crimes
against the civilized order, that any nation may prosecute," Mr. Rubin
said. Drug dealing and money laundering are not in that category, he
Professor Rubin said he thought there were analogies to what the United
States did in Panama in some of the actions taken by the British in the 19th
century. The British, he said, invoked the Law of Paramount Power,
meaning they were stronger than local governments in several countries
where they sought to depose local leaders.
Another basis for the United States action city by Government lawyers
is a recent opinion by the Justice Department's legal counsel that the
Posse Comitatus Act, a 111-year-old law that forbids the military from
arresting criminal suspects, does not apply overseas.
E-Mail Fredric L. Rice / The Skeptic Tank