Protection of American Citizens Abroad
Burton F. Beers
In December 1995 Peruvian police arrested and jailed twenty-one members of a terrorist group, the Tupac Amaru Revolutionary Movement (MRTA). Among those jailed was Lori Berenson, an American woman, then twenty-seven years old, accused of having conspired with leaders of the MRTA to seize and hold members of Peru's Congress as hostages who would be exchanged for imprisoned members of the MRTA. Beren son and the Peruvians arrested with her were promptly tried in secret sessions of a military court, one of several tribunals established outside the civil court system to expedite the trials of prisoners swept up in police raids. The judges—military officers untrained in law—excelled at conducting swift trials, and almost everyone coming before the courts went to jail. In January 1996 the court found Berenson guilty and sentenced her to life in prison.
In August 2000 the highest military tribunal threw out the 1996 verdict, finding that the prosecution had failed to establish that Berenson had been a leader of the terrorists as they shaped their plot. The evidence at best demonstrated only a close association between the American and leaders of the MRTA. The prosecution ordered a second trial, on the new charge of "collaboration with terrorists," a crime carrying a maximum twenty-year sentence. The case was transferred to a civil court where the sessions were open and transmitted to the public in live telecasts. In June 2001 Berenson was convicted for the second time and given the maximum penalty, reduced by the five years she had already served. Her release was scheduled for 2015. As of the summer of 2001, the defense has filed an appeal with Peru's Supreme Court, and if that fails, Berenson's parents say that they will seek a hearing before one or more international bodies.
At this point, even as unfinished business, the Berenson case is worth examining as an introduction to one of the most serious challenges that the United States faces in its efforts to protect American citizens abroad. In some respects the case is much like those of other Americans imprisoned abroad. Berenson, like other Americans on foreign soil, is subject to overlapping jurisdictions of two nations. The United States has defended her because she is one of its citizens, but she is also subject to the laws of Peru. Under international law, Peruvian authorities may arrest her, put her on trial, and imprison her for any violation of law. Thus far the circumstances of the case seem much like those of other Americans imprisoned abroad but, unlike others, Berenson has suffered the misfortune of becoming involved in international politics. This latter entanglement has made a solution elusive. The continuing disagreement has been deeply disturbing for the Berenson family, and it has imposed strains on American-Peruvian relations.
Borchard, Edwin M. The Diplomatic Protection of Citizens Abroad. New York, 1928. Remains basic, despite its age.
Crane, Katherine. Mr. Carr of State. New York, 1960. Biography of the man who helped transform the Department of State into a twentieth-century institution.
Dunn, Frederick S. The Protection of Nationals. Baltimore, 1932. An older but still indispensable study.
Frey, Linda S., and Marsha L. Frey. The History of Diplomatic Immunity. Columbus, Ohio, 1999. A splendid study of the origins of modern immunity bestowed on diplomatic personnel and the roots of extraterritoriality.
Gordon, Wendell C. The Expropriation of Foreign-Owned Property in Mexico. Washington, D.C., 1941.
Hack worth, Green H. Digest of International Law. 8 vols. Washington, D.C., 1940–1944. Updates and supplements John B. Moore's older multiple-volume work (1906).
Law, Castor H. P. The Local Remedies Rule in International Law. Geneva, 1961. Deals with the complex interplay between municipal and international laws.
Lee, Luke T. Consular Law and Practice. New York, 1961.
——. The Vienna Convention on Consular Relations. Leiden, 1966. Complements Lee's 1961 study.
Lillich, Richard B. The Protection of Foreign Investment: Six Procedural Studies. Syracuse, N.Y., 1965.
——. "The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law Under Attack." American Journal of International Law 69 (1975). Criticizes the tendency of nations to subordinate the protection of nationals to political considerations.
McDougal, Myres S., Harold Laswell, and Lungchu Chen. "The Protection of Aliens from Discrimination: Responsibility of States Conjoined with Human Rights." American Journal of International Law 70 (1976). Another criticism of the subordination of human rights to politics.
Plischke, Elmer. Conduct of American Diplomacy. 3d ed. Princeton, N.J., 1967. Offers insights into the impacts of Cold War politics on the protection offered by the United States to its citizens.
Stuart, Graham H. The Department of State: A History of Its Organization, Procedure, and Personnel. New York, 1949. A classic.
——. American Diplomatic and Consular Practice. 3d ed. New York, 1976. Especially useful for the early work of the consular service.
Von Glahn, Gerhard. Law Among Nations: An Introduction to Public International Law. 3d ed. New York, 1976. Contains four chapters summarizing the nature of law pertaining to the protection of foreign nationals abroad.
White, Gillian. Nationalization of Foreign Property. New York, 1962.