Grossing Out Grotius


The Supreme Court ruled recently in U.S. v. Alvarez-Machain that the U.S. Drug Enforcement Administration could ignore the extradition treaty between the U.S. and Mexico and contract out the kidnapping of a criminal suspect in Mexico over Mexico's objections. Reasoned the Chief Justice, the extradition treaty didn't specifically rule out kidnapping, so what's the problem?

Of course, the treaty didn't specifically rule out commando raids and poison blow guns either, but never mind. The important thing is that the court has affirmed weaseling out of treaties as a legitimate exercise of U.S. foreign policy. Bad news for the namby-pamby New World Order crowd perhaps, but a renaissance for the classic writers on international law. From now on, lawyers negotiating treaties with the U.S. will have to brush up on the classics if they want to learn the tricks of the trade.

Hugo Grotius (1583-1645), a founder of modern international law, gave the ancient Locrians a world-class rating as treaty weaselers. In negotiating a peace treaty with the Siculi, Grotius reported, the Locrians swore that "as long as they stood upon the ground they then stood upon and kept their heads on their shoulders, they would be friendly to the Siculi and share the country with them."

Before they took their oath, however, the Locrians pulled the old dirt and garlic routine; They had put dirt in the bottoms of their sandals and hid heads of garlic on their shoulders. When the festivities were over, they shook the dirt from their sandals, threw the garlic away, and righteously drove the Siculi out of Calabria.

Samuel Pufendorf, noted 17th-century philosopher, lawyer and writer of many sleep-inducing volumes, provided some useful examples of strict construction to keep an eye out for in treaties. He mentioned:

* The Plateans who promised the Thebans that they would "restore all the Theban prisoners," and they did, after killing them.

* The Roman general who agreed with Antiochus to give him back half his ships and he did, by sawing them all in two.

* Rhadamistus, an Armenian leader with a penchant for poisoning people. He wanted to conclude a treaty with his uncle Mithridates, who ran things in Iberia. Mithridates was already taking a little poison every day to make himself immune from any unsolicited bon bons that might arrive from Rhadamistus.

As A.E. Housman wrote: "He gathered all that springs to birth/From the many venomed earth;/First a little, thence to more, He sampled all her killing store . . . I tell the tale that I heard told/Mithridates, he died old."

True enough, but not the whole story. Mithridates had finally agreed to a treaty with Rhadamistus only after Rhadamistus gave his word that he would not "unsheath his sword or use poison" against his beloved uncle. And he didn't. Rhadamistus tackled Mithridates and smothered him under a heap of clothes.

The handbook on international law by Emmerich de Vattel, a contemporary of Jean-Jacques Rousseau, was gospel from the middle of the 18th century until World War I. Vattel offered some nifty examples of interpretations folks used to get out of agreements. At the battle of Negropont, the Turkish leader Mahomet promised a fellow to spare his head. He had him cut in two through the middle of his body. Tamerlane, of Christopher Marlowe fame, promised that if the town of Sebastia capitulated, he would shed no blood. Sebastia capitulated, and Tamerlane was as good as his word. He had the garrison buried alive.

Voltaire remarked that international law was about as effective as a code of conduct for highwaymen. Still, you have to admire a pro when you see one: Pericles of Greece's golden age swore in a peace treaty to spare the enemy "if they laid down their steel." He then killed them all because they still had steel buttons on their cloaks.

It's nice to know that as sophisticated as our modern American legal system has become, there's still room for the old ways -- hair splitting, sophistry and mental reservations. The things that put treat into treaty making.

Grotius recounted that when a certain petty Indian prince fled to Persia, the ruler of India, relying on an extradition treaty between the countries, sent an ambassador demanding that the King of Persia give the fugitive up. While the ambassador was being shown in, the King of Persia put the fugitive in a basket hanging from a tree and then denied the fugitive was on his land.

We haven't gotten that crafty yet, but, as the Alvarez-Machain decision illustrates, we're getting there.

Frank Ruddy is a free lance.

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