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Don’t Mind the Gap: The Consequences of JASTA

Over the last eight years, the US Congress has established a long track record of not doing things. But on September 28, for the first time in Obama’s administration, Congress mustered up a rare showing of bipartisan cooperation and overrode the president’s veto. Unfortunately, this exceptional time for Congress to decide to get something done was in support of a highly problematic bill, the Justice Against Sponsors of Terrorism Act (JASTA). JASTA lowers the United States’ court standards on sovereign immunity, allowing US citizens to sue foreign governments and foreign nations if they were victims of terrorist acts inside the United States. Specifically, it was designed and advertised as a way to get justice for families who lost lives and loved ones during the September 11 attacks. Under the bill, US citizens can sue for damages by charging Saudi-held assets within the United States.

Though the intentions may seem noble, this law will actually impede progress towards a universal system of international justice. There are two main conditions for making a system of global justice effective: first, all parties involved must agree on the standards of justice they seek to enforce; second, that system must be enforceable. While historical attempts of global justice have consistently failed on the second account, this new policy manages to fail the first standard completely and only dubiously adhere to the second.

Ironically, the Nuremberg Trials — the first ever international criminal trials — represent an exception to the rule that international justice always fails. After World War II, many began to believe sovereign immunity was no longer a valid enough reason to justify every action committed by states and people within states. What the Nazi officers had done during the war was technically legal domestically, given the Nazis were in power, but could not be reconciled based on any human standards. So, other nations banded together and put the Nazi officials on trial. In the 1947 edition of the International Law Quarterly Journal, it was speculated that the precedent for International Law set at Nuremberg would serve as a standard of justice for years to come. In the end, thousands of Nazi officers were tried and sentenced.

Unfortunately, this initial success in international justice quickly became the exception rather than the rule. The Geneva Convention, which shortly followed the Nuremberg trials, failed spectacularly. Among other flaws, the agreement lacked teeth – the ability to be effectively enforced. A paper from the Hebrew University of Jerusalem observed that “in the absence of a serious implementation mechanism in the Geneva Conventions…much of the leading responsibility for promoting their observance of the Conventions falls upon the International Committee of the Red Cross.” Since many of the signing nations did not actually want this international standard enforced upon them, they left the Red Cross, which has no mechanism for holding nations accountable, in charge.

Unsurprisingly, with the Red Cross holding little political power, nations can often get away with violating these supposedly agreed-upon rules of conflict. The agreement therefore is only enforced when countries unilaterally decide to enforce it on each other – something that often only occurs in pursuit of some political gain, which really isn’t the gold standard of justice. To make matters worse, hegemons like the United States can rarely be held accountable as no other nation has the sufficient political capital to pressure them. This would be like having a legal system that lets the rich hire lawyers and get off easy while the poor are forced into plea deals and overly long sentencing.

The International Criminal Court (ICC), the present iteration of international justice, falls victim to the exact same issues that plagued the Geneva Convention. The ICC is designed to specifically target crimes against humanity, genocide, and war crimes. However, like the Geneva Convention, it lacks enforcement power; the court can only function in countries that agree to be bound by its jurisdiction. If states don’t feel like following its rules, then there is nothing to compel them to. For example, the United States has refused to sign onto the court, partially out of fear that it would have its military officials prosecuted. As a result of this state-based power imbalance, the ICC has become an organization that disproportionately targets Africa and often ignores the offenses of more established states.

Now, thanks to the override of President Obama’s veto, the US espouses a noticeably different understanding of international justice. Under the Geneva Convention and the ICC, even though enforcement was weak, there was still a general agreement on the principles of law and justice to be protected. This bill, however, grants the US wide legal power abroad without any regard for reciprocity or international cooperation.

At its core, the bill threatens the sovereign immunity of other states to dictate their own systems of justice. If other nations were to follow a similar course, Americans would find themselves at the mercy of justice systems clearly opposed to American values. If Saudi Arabia were to impose its system of justice on Americans, homosexuals would find themselves facing the death penalty. As just as fighting terrorism sounds, the hypocrisy of placing our standard of justice over the standards of others hampers America’s ability to operate in a world community. This will lead to a world where other countries either ignore these rules or try to enforce their own laws on the rest of the global community. If the goals of fighting terrorism are as important and as universal as the United States claims, then it ought to join an international justice organization like the ICC, and work to make those principles more universally enforceable. Instead, the United States is trying to have its cake and eat it too; it wants a sense of global justice that it can enforce worldwide, yet reject that same standard for itself.

In passing this bill, the effects of this new principle of international law will be significant. Other countries will now have justification for taking countermeasures to try to hold the United States responsible for its actions overseas. These are unlikely to succeed as they do not have the political power to actually enforce any rulings against the US. Nevertheless, groups in Iraq are reportedly already urging their government to sue the United States over crimes committed during Operation Iraqi Freedom, an idea that under previous standards of international law would have little merit. The problem is that the United States set a precedent of unilateral justice-seeking in passing JASTA. This means that by refusing to acknowledge other nations playing by the rules that it set, the US undermines its credibility, and will damage any hopes of cooperation between the US and other nations both on foreign policy, and on an eventual fair system of universal justice.

Other nations, especially those in the Middle East, feel as though US foreign policy has been destructive and imperialist. Relationships matter in international politics; imposing American legal standards is likely to sour relationships that the US crucially needs for its foreign policy goals. The United States relies heavily on Saudi Arabia for intelligence information regarding terrorism; it would be much harder to catch terrorist acts before they occur if Saudi Arabia’s royal family and decides to stop sharing their intelligence.

On top of all these problems, the fact remains that the law is simply impotent — it fails the second requirement for international justice of enforceability. Yes, America can bluster about trying to punish those responsible for terrorism, but at the end of the day, all we can do is seize their American-held assets. Foreign countries have the ability to take their assets, liquidate them, and move them overseas if they ever fear prosecution. Even more significant is the blow this law deals to creating a better system. With the United States working unilaterally, it now has no incentive to work on creating an actual system of justice that would be agreed upon by the nations of the world, while the rest of the world is more likely to refuse to work with the US on this project. If a justice system is ever to be created, it must start with a shared sense of accountability.

In the end, this bill fails both standards for international justice, as it spawns from unenforceable US law, not an internationally agreed-upon set of standards. If the US is really serious about global justice, it should stop the hypocrisy and hold itself accountable. With much of Congress already regretting this vote, we can only hope that our representatives will get their act together and undo this historic mistake.


About the Author

Josh Beck '20 is a US Section Staff Writer for the Brown Political Review.