International Law: The of Kawakita versus the United States - Case Study Example

International Law There is no legal ambiguity in the Saudi Arabian government’s assertion that the United s has no right to prosecute persons involved in an incident that occurred in Saudi Arabia. All International jurisdiction laws enforce the sovereign rights of states to try and prosecute criminal offences occurring in that state. Saudi Arabian Defense Minister’s argument that “any legal steps in the case fall within the jurisdiction of Saudi Arabia” do not infringe any international law. Various UN charters and The World Court, International Court of Justice (ICJ) have laid down clear guidelines with regard to international criminal jurisdiction. ICJ has ruled that “in the absence of a specific permissive rule to the contrary, a state may not exercise its power in any form in the territory of another state. A governments investigation in another states territory, for the purpose of gathering evidence for the prosecution of a crime, would be considered an exercise of power there." see Serbia and Montenegro v. United Kingdom (1999) and Yugoslavia v. Spain (1999). Though the World Court has added exclusion that a trial at home for a crime committed in other state do not require consent from other state if the perpetrators of crime can be brought before local court, this kind of legal instruments can only be implemented by bilateral treaties. The International Convention for the Suppression of Terrorist Bombings approved by United Nations General Assembly in 1997 that reflect the opinion of the U.N. membership for tackling act of terrorism and bombings goes a step ahead for the matters of territorial jurisdiction and states that jurisdiction to prosecute in such cases is not necessarily limited to the territorial state or the state of the perpetrators nationality. In this case, U.S. may argue that the case falls within the scope of the UN convetion on terrorism but this argument do not hold legal validity as the case in question occurred before this convention and both the state have not accepted the convention. As both U.S. and the Saudi Arabian Government have not ratifies this charter , the United States power to prosecute the perpetrators of the truck bombing of an apartment building in Saudi Arabia are limited and depends upon the mutual bilateral understanding of the two states.  International Law about the Preservation of Cultural Heritage Scope of international laws in preserving cultural heritage is very limited. The destruction of two ancient statues of the Buddha called Bamiyan by Talibans in an attempt to cleanse the country of Afghanistan of what they perceived as Hindu heresy has again raised several questions about the preservation of cultural heritage. It has also initiated a fierce debate over the subject of cultural property ownership. Cultural heritage and world monuments are increasingly being held hostage to political and ideological aims. Several questions have been raised on the ownership and guardianship of cultural heritage properties but, though there is consensus in world community about the protection of these properties, there are limited options available to international community to interfere in these matters. Preservation of the cultural heritage is generally left the respective states and there is no mechanism available to protect them in war and conflict zones. Moreover various UN charters that enforce sovereignty of the states above all, leave little scope for actions from international community. The organizations such as UNESCO have been consistently working on possibility of international laws but all the action in this front is generally consensual in nature. As observed in Bamiyan case the international community is rendered a meek spectator if occupying forces in a disturbed zone destroys the cultural heritages. Bamiyan case resulted in the adoption of the Declaration concerning the Intentional Destruction of Cultural Heritage by the UNESCO General Conference known as 2003 UNESCO Declaration. The declaration is weakened by the reluctance of states to be signatory. States generally avoid legal obligations to such declarations which is equal to not having any international law as such to protect cultural heritage. Similarly, the the 1907 Hague IV Convention for protection of cultural heritage contains specific protection for ‘buildings dedicated to religion, art, science, or charitable purposes, historic monuments’ during hostilities (Article 27); and during occupation such protection also extends to ‘works of art and science’, that is, movable heritage (Article 56). The articulation of the crimes relating to the confiscation and destruction of cultural property in the Statute of the ICTY replicates Article 56 of the 1907 Hague IV Convention. Article 3(d) of the Statute includes among the violations of the laws and customs of war: [S]eizure, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice have reaffirmed that the 1907 Hague IV Convention and its Regulations are customary international law. See also Kordić and Cerkez, Trial Judgment, para. 206; Strugar, Trial Judgment, para. 227. A trial by ICTY resulted in sentencing of perpetrators of bombardment of the historic city of Dubrovnik, Croatia in October 1991. Such cases set precedent for international actions to protect cultural heritage and clearly highlights need for specific mechanism to deal with this issue. Kawakita v. United States, 343 US 717 (1952) U.S. Supreme Court KAWAKITA v. UNITED STATES, 343 U.S. 717 (1952) CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 570. Argued April 2-3, 1952. Decided June 2, 1952. Facts: Petitioner Tomoya Kawakita was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. In 1939, at the age of 17, while minor, he swore his allegiance to U.S. held a U.S. passport and went to Japan on a personal visit but was unable to return to U.S. due to outbreak of war. During that period of time in Japan he reached his majority, changed his registration from American to Japanese. He was accused and found guilty of brutally abusing American prisoners of war who were forced to work for the mining company Oeyama Nickel, also involved in producing war materials for Japan, while working there as an interpreter between the Japanese and the prisoners of war. It was also contended that he showed sympathy with Japan and hostility to the United States while working in Japan and in his treatment with American prisoners of war. After Japans surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport. The Federal District Court has pronounced death sentence for petitioner against which he has appealed in the Supreme Court of the United States. His conviction for treason is affirmed in Court of Appeals. Procedural History and Context: On his return to U.S. appellant was arrested by FBI on June 5, 1947, and was charged for treason. An indictment charging him with treason was returned by the United States Grand Jury on June 11, 1947, to the United States District Court for the Southern District of California. The District Court found the petitioner guilty of eight acts of treason and trial jury pronounced a death sentenced.96 F. Supp. 824. Issue of the Case: The petitioner claimed that during his time in Japan, he had effectively renounced his U.S. citizenship, and thus could not be tried for treason. He also claimed that he lost his U.S. citizenship when he was registered in Japans family census, the Koseki, in 1943. However, his statements were countered by his own affirmation while reapplication for a US passport in 1945, in which he claimed that he had never renounced his US citizenship while in Japan. The major issue for the jury to decide was whether Kawakita’s action of registering in the Koseki (a family census register) and changing his registration from American to Japanese amounted to a renunciation of American citizenship within the meaning of 401 of the Nationality Act. Pp. 343 U. S. 722-725. Rule(s): The definition of treason is a part of the supreme law of the land. United States Constitution, Article III, Sec. 3, provides: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * * Title 18 U.S.C.A. § 1, Act of March 4, 1909, c. 321, Sec. 1, 35 Stat. 1088, as it stood at the time of the alleged overt acts, provided: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason. Congress has provided by 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168, as amended, 8 U.S.C. 801, that a national of the United States may lose his nationality in certain prescribed ways. It provides in relevant part, "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: "(a) Obtaining naturalization in a foreign state . . .; or "(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or "(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; or "(d) Accepting, or performing the duties of, any office, post, or employment under the government of a [343 U.S. 717, 722]   foreign state or political subdivision thereof for which only nationals of such state are eligible; . . . ." Application: The court charged that petitioner cannot be held guilty if the jury found that he had lost his American citizenship prior to or during the period specified in the indictment as par the Nationality Act of 1940 even if he has committed alleged overt acts. The court further added that if the jury finds beyond a reasonable doubt that during the period in question petitioner was an American citizen, he owed the United States the same duty of allegiance as any other citizen. However, the concept of dual citizenship recognizes that a person may have citizenship two countries and exercise rights of nationality in two countries and be subject to the responsibilities of both. [343 U.S. 717, 724].   The mere fact that he asserts the rights bestowed by a citizenship does not mean that he renounces the other. Combined with petitioner’s formal declaration of allegiance to U.S. and that he had never renounced his US citizenship while in Japan, the jury came to conclusion that the petitioner can be punished for treason. Conclusion: The trial judge at the Federal District Court imposed the death sentence. The argument is that that sentence was so severe as to be arbitrary. It was, however, within the statutory limits. The Court of Appeal affirmed the conviction. Significance of the Case: Kawakita v. United States, 343 US 717 (1952) is a landmark case for naturalization, citizenship and treason. Courts across U.S. have extensively referred to the case, e.g. VANCE v. TERRAZAS, 444 U.S. 252 (1980), while hearing these issues. References: 1. A. F. Vrdoljak, Intentional Destruction of Cultural Heritage and International Law, Department of Law, European University, Florence and Senior Lecturer, Faculty of Law, University of Western Australia (2007), Available at SSRN: http://ssrn.com/abstract=1142806. 2. Gal-Or, Noemi,Suspending Sovereignty: Reassessing the Interlocking of Occupation, Failed and Fragile State, Responsibility to Protect, and International Trusteeship (Lessons from Lebanon)(November 1, 2008). Israel Law Review, Vol. 41, pp. 302-330, 2008; Hebrew University International Law Research Paper No. 19-08. Available at SSRN: http://ssrn.com/abstract=1293291. 3. Kawakita v. United States, 343 U.S. 717 (1952). Supreme Court of the United States. 4. Restatement Third of Foreign Relations Law of the United States § 404 (1987). 5. Whincop, Michael J.,Three Positive Theories of International Jurisdiction(August 2000). Melbourne University Law Review, Vol. 24, 2000. Available at SSRN: http://ssrn.com/abstract=254137 or DOI:  10.2139/ssrn.254137. 6. International Court of Justice, Legality of Use of Force (Yugoslavia v. Spain and Serbia and Montenegro v. United Kingdom), Available at: http://www.icj-cij.org/. Read More