Abducting Noriega, and International Law

CITING the FBI's 1987 abduction of a Lebanese hijacker as precedent, President Bush hinted recently that this country might seize Gen. Manuel Antonio Noriega of Panama and that such seizure would be legal. ``We have an indictment out against General Noriega for drug trafficking. I'm told that it's a good indictment,'' the president said.

General Noriega, however, is in effect a high official of another country; he's therefore in a jurisprudentially different category from Fawaz Younis, who was grabbed aboard a yacht off the coast of Cyprus on Sept. 13, 1987. Mr. Younis was later convicted in Washington for the hijacking of a Jordanian flight, after which 70 passengers and crew members were held hostage in Beirut.

Although Noriega is nobody's candidate for Man of the Year, his abduction by US agents would be problematic under international law. Officials of other governments are not automatically exempt from the normal processes of extradition and prosecution, but such officials are subject to the extra-territorial reach of another state's jurisdiction only under the most extraordinary circumstances.

The principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the tribunal (1946) acknowledge the individual legal obligations of government officials, but these principles may justify abduction of such officials only for ``crimes against peace,'' ``war crimes,'' or ``crimes against humanity.'' And even in those cases involving ``Nuremberg crimes,'' the right of seizure must be extrapolated from a general principle of justice affirming nullum crimen sine poena (``no crime without a punishment''). This right is not explicitly codified as an expectation of international law.

Normally, international law rests upon a foundation of sovereign immunity, a binding rule that exempts each state and its officials from the judicial jurisdiction of another state. Although the rule of sovereign immunity is not absolute in the post-Nuremberg world order, the right of one state to seize a high official from another state is exceedingly limited. In fact, in an 1812 case before the US Supreme Court (The Schooner Exchange v. M'Faddon), Chief Justice John Marshall went even further, arguing for ``the exemption of the person of the sovereign from arrest or detention within a foreign territory.'' Applied to the prospective abduction of Noriega from Panama, Marshall's argument suggests that such action would be patently illegal. If Noriega would be exempt from apprehension within the US, he could hardly be subject to American jurisdiction while within his own country.

The rule of sovereign immunity may be traced to Roman law and to the maxim of English law that the king can do no wrong. Under current American law, the authoritative expression of this rule may be found in the Foreign Sovereign Immunities Act of 1976, which accepts the ``restrictive theory'' that ``states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned.'' But as this acceptance is limited to civil actions, it has no bearing on the Noriega matter.

Might it be argued that Noriega is not authentically a high official in Panama? After all, he tried to steal the May 7 elections and then had them annulled. Regrettably, the answer is ``no.'' International law generally lacks competence to delve into matters involving internal authority processes or to ensure the operation of democratic procedures. The fact is, the Panamanian chief of staff runs Panama, and thus enjoys far-reaching immunity.

President Bush should abandon any notions of abducting the drug-dealing strongman. While this may appear contrary to the requirements of criminal justice, the alternative would impair the essential bases of lawful relations in a world of sovereign states and would likely undermine US foreign policy in much of the region.

Moreover, if the president's overriding interest lies in curbing drugs and drug-related crimes, there are many other even more nefarious figures to indict and arrest within the US.