""I'm Guilty, But I'm Not a War Criminal!": Fixing Treaty Crimes" by Dyllan M. Taxman
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Abstract

This Article examines the Supreme Court's test for treaty crime constitutionality against the gauntlet of time and application. Treaty crimes are criminal behavior violating statutes penalizing private individuals for disobeying the terms of an international treaty obligation. The current treaty crime test from Bond v. United States has produced inconsistent results resting on shaky constitutional grounds. This Article proposes a new test relying on constitutional delegations of authority and treaty drafting history to determine when a treaty crime statute violates the Tenth Amendment. It measures the new test's effectiveness by applying the test to cases in which the Bond test has produced problematic results.

In the ten years since Bond was decided, courts have clung to its language that a purported treaty crime implicates a federal interest and does not offend the Tenth Amendment if it has the potential to cause mass suffering. That has led lower courts to uphold convictions for minor offenses bearing little relation to treaty prohibitions. Some courts have used this language to overturn convictions for conduct clearly prohibited by treaties and abhorred by the international community. Others have used that test to expand federal authority in areas entirely unrelated to treaty crimes.

This piece proposes that courts should instead consider whether applying a treaty crime statute furthers the object and purpose of the treaty it implements. If conduct offends the underlying treaty's object and purpose, then criminalizing it is a necessary and proper means to effectuate the constitutionally-delegated federal treaty power. If the offense is unrelated to the treaty's object and purpose, then the Tenth Amendment prohibits applying a federal statute to the offense. This test relies on constitutional delegations of authority in the Treaty Clause, Supremacy Clause, and Necessary and Proper Clause. When applied to cases in which Bond's test produces undesirable or even absurd results, this Object and Purpose Test would punish offenses that violate valid treaties, while filtering out minor offenses unrelated to international prohibitions. This new test also closely tracks the international community's standard for treaty compliance, which requires treaty signatories to refrain from upsetting the treaty's object and purpose.

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