International House of Dan: The Joy of Loopholes

Monday, May 09, 2005

The Joy of Loopholes

Few things are as satisfying as finding and exploiting loopholes. Some might say that the practice of law is based entirely on this, and perhaps that was what drew me to it. Perusing the BBC's website I came across what may be the mother of all loopholes, and it's right here in America. Law Professor Brian Kalt of Michigan State speculates that one can escape prosecution in parts of Yellowstone National Park because since nobody lives there, it would be impossible to assemble a jury as required for conviction under the Sixth Amendment. Intriguing as his argument is, what really excited me is the thought of engaging in the Yogi Bearish crime spree he envisions: "you make some moonshine, you poach some wildlife, you strangle some people and steal their picnic baskets." I don't know, to me that sounds like fun... Kalt's paper, "The Perfect Crime" is available here.

But loopholes are not always this wonderful invitation to mischief, they can also lead to impunity for the authors of acts of unspeakable evil. Following World War II, the international community struggled with the legality of prosecuting Nazis for crimes which had not been illegal at the time of their commission. Nobody had ever actually said "you're not allowed to kill 6 million people." The world finally decided that the doctrines of nullum crimen sine lege and nulla pena sine lege were outweighed by the need to punish genocide, and so the trials went forward and we looked the other way. The ICC is an important step in the closing of this loophole, but even the Rome Statute (Part III, Arts. 22 and 23) recognizes that its jurisdiction is limited by time, place, and the existing body of law applicable to the crimes before it: the non-retroactivity of criminal law.

Not all is lost, though, as loopholes cut both for and against tyrants and despots. One of the problems human rights advocates face in Latin America is the investigation and prosecution of past atrocities within legal frameworks that are often designed to frustrate them. Forward thinking dictators gave themselves immunity, or implemented statutes of limitation to prevent their prosecution after stepping down, a good example is Argentina's "full stop and due obedience laws" (leyes de punto final y obediencia debida), by which the outgoing military regime effectively insulated itself from domestic prosecution. The laws were later declared null and void, but non-retroactivity prevented the nullification from applying to past crimes. A loophole was used by prosecutors to get ex-dictators to admit that thousands of disappeared Argentinians had been killed. The loophole was in the kidnapping laws, which consider the offense ongoing until the kidnapped person is recovered or known dead. Changes in sentencing for kidnapping would have applied to the disappeared because they are not retroactive justice, rather the offense never ended. Facing tougher penalties for ongoing crimes, the military instead admitted to its role in the deaths of thousands.

More on the subject of loopholes in the future, I need to book a flight to Yellowstone...


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