Terrorism and Unilateralism: Criminal Jurisdiction and International Relations

International terrorism sits at the cusp of crime, domestic politics, and international relations.Precisely because terrorist offenses are poised at that volatile intersection, significant practical, legal, and political difficulties attend the exercise of criminal jurisdiction over terrorist crimes in any forum.Prosecutions in the domestic courts of affected states pose one set of concerns, while prosecutions in an international criminal court, or in the domestic courts of third-party states under universal jurisdiction, pose others.While the impetus to "internationalize" enforcement of antiterrorism laws is understandable and its logic compelling in certain respects, this essay will conclude that the United States' preference for domestic prosecutions reflects a sensible choice and, likely, the best choice among the available range of imperfect options. I. The Impetus to Internationalize EnforcementMost crime is prosecuted at the national, not the international, level.This is true even of cross-border crime.For the most part, states criminalize conduct domestically.Where states need to cooperate with other states to enforce their domestic criminal law, they do so through mutual legal assistance agreements, extradition treaties, coordination of investigations, and the like.But terrorism is not ordinary crime.It is not even ordinary cross-border crime.Although the term "terrorism" has no international legal definition, the term would seem to indicate, at a minimum, an unlawful violent act committed for a political purpose.Unsurprisingly, since terrorism has political motives, states are typically the targets and, not infrequently, the sponsors of terrorism.This fact enormously complicates the issue of criminal jurisdiction over terrorism.The likely involvement of states as targets or sponsors of terrorism creates an impetus to resort to some authority above the state for the handling of terrorist offenses.It is easy to understand this impulse to seek an authority above the state for the handling of terrorist offenses when the alternative would be to rely for law enforcement on the very state that has sponsored the terrorist act.Consider, for example, the bombing of Pan Am flight 103, the flight that exploded over Lockerbie, Scotland.It appears that the bombing was in fact sponsored by the government of Libya. 2 The Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) criminalizes and provides for the prosecution of aircraft bombing.3 Libya, the UK, and the United States each were parties to that treaty at all times relevant to the 2. Libya has formally accepted responsibility for the bombing.See Letter of Aug. 15, 2003 from the Representative of the Libyan Arab jamahiriya to the President of the U.N. Security Council; see also U.N.S.C. Res.731, Preamble (1992) (in which the Security Council states that it is "[d]eeply concerned over the results of investigations, which implicate officials of the Libyan government" in the bombing of Pan Am flight 103).3. Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177 [hereinafter "Montreal Convention"].Vol. 36