Cheating Justice (26 page)

The rationale for universal jurisdiction is that impunity for horrific crimes threatens the well-being of people everywhere. In essence, the stain of the crimes reaches beyond territorial borders. Without universal jurisdiction, proponents argue, there may be no way to hold top leaders accountable for grave crimes since many of these leaders control the justice systems in their own countries or have populations unwilling or unable to demand a prosecution. Universal jurisdiction becomes a possibility when the nation responsible for the criminal activity fails to act.
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The case of Adolf Eichmann, a Nazi tried in Israel, involved the principle of universal jurisdiction. His criminal activity as one of the architects of the “Final Solution” resulted in the murder of millions of Jews. The crimes had taken place in Europe, but thousands of Holocaust survivors in Israel had been victims of his policies.

In the case of the former Chilean dictator Augusto Pinochet, universal jurisdiction had a major role. In 1998, the former dictator was detained in London based on an arrest warrant issued by Baltasar Garzón, a magistrate in Spain. The Spanish judge asked that Pinochet be extradited to Spain to stand trial for genocide, terrorism, and torture as commander and head of state in Chile.

Pinochet's brutal regime in Chile began in 1973 after he led a military coup against the democratically elected president, Salvador Allende. At least 3,100 people were killed or disappeared in the next seventeen years, and thousands more were tortured or exiled. No action had been taken against Pinochet in Chile, and, in fact, his military junta had granted amnesty to him and others for their atrocities. He claimed additional immunity from prosecution as a former head of state.

The Pinochet arrest warrant, notes
Human Rights Brief
, placed the concept of universal jurisdiction front and center. British law lords ruled that Pinochet did not have immunity as a former head of state. But the British foreign minister, Jack Straw, allowed Pinochet to return to Chile on grounds of ill health.
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Even though the refusal to extradite Pinochet to Spain disappointed human rights advocates, the matter didn't end there. Pinochet's arrest in London “changed the perception of what was possible,” according to legal scholar Naomi Roht-Arriaza.
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Galvanized by Garzón's bold steps, human rights lawyers and victims initiated proceedings in Chile, filing nearly three hundred cases by the end of 2003. The courts there found Pinochet ineligible for amnesty because some cases of disappearance were still active and the required investigations had not taken place. Pinochet was placed under arrest. Even though he died in Chile without being brought to trial for his crimes, the proceedings against Pinochet suggest that heads of state cannot commit crimes with impunity, and that international processes for accountability can trigger long-overdue actions inside the home country.

Other Chilean officials were brought to justice: hundreds were arrested and dozens were convicted. The Pinochet case emboldened human rights
activists in Argentina and created “an unmistakable trend towards greater international justice,” wrote Stacie Jonas of the Institute for Policy Studies, “reminding government and military officials that neither amnesty laws nor the mere passage of time could silence the call for justice.”
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Some cases using the mechanism of universal jurisdiction have been initiated against the Bush administration in other nations, although not with much success. The WikiLeaks release of U.S. State Department cables indicates why: in several instances, the United States strongly pressured other countries to drop cases.

The same Spanish judge who issued the extradition request for Pinochet, Baltasar Garzón, commenced an inquiry into U.S. torture, especially looking at whether lawyers John Yoo, Alberto Gonzales, David Addington, Jay Bybee, William Haynes, and Douglas Feith—sometimes called the “Bush Six”—had facilitated torture, according to the Center for Constitutional Rights.
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In his original complaint filed on March 17, 2009, Garzón noted that several Spanish citizens were incarcerated in Guantánamo and mistreated there. The case ran into rough seas rather quickly, as described by the Center for Constitutional Rights. The attorney general in Spain raised objections to the case on April 16, 2009, and by April 23 responsibility for inquiring into the matter—which in Spain's system is placed in the hands of an investigating judge—was removed from Garzón and given to Judge Eloy Velasco. Separately, a judicial complaint was filed against Garzón for a completely unrelated matter (allegedly going beyond his authority in launching an investigation into the identity of bodies in mass graves from the fascist Franco era, as described by Carol Rosenberg in the
Miami Herald
).
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Serious inquiry into the “Bush Six” came to a halt when Velasco decided that he could not proceed without a statement from the U.S. Justice Department that it was
not
investigating the case.

WikiLeaks cables reveal a whole other drama behind the scenes. “Over the last several years, the Embassy of the United States in Madrid wielded powerful resources in an extraordinary effort to impede or terminate pending criminal investigations in Spain which involved American political and military figures assumed to have been involved incidents of torture,” wrote the Spanish newspaper
El País
in December 2010.
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El País
, which had full access to WikiLeaks documents, said that cables relating to this cover-up extended from 2005 through 2009 under Ambassador Eduardo Aguirre, a Bush appointee, and continued into the Obama administration. In the
weeks before the case was taken away from Garzón in mid-April 2009, officials from the United States, including two U.S. senators, met with the chief prosecutor in Spain, as well as the Spanish foreign ministry and the ministry of justice, pressuring them to stop the “Bush Six” inquiry. According to one diplomatic cable, the U.S. officials “underscored that the prosecutions . . . would have an enormous impact on the bilateral relationship” between the United States and Spain, wrote David Corn in
Mother Jones
.
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After Garzón was pulled off the case, the U.S. embassy officers reported—with approval—that the second judge was “trying shelve the case,” according to an embassy cable.
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The WikiLeaks releases brought sudden new attention to the “Bush Six”—at least in Spain, where the case was at the top of the news in late November 2010. Faced with Spanish fury and a new petition by human rights lawyers urging the Spanish court to move forward without further delay, Judge Velasco indicated that he must have a response to his inquiry about whether the United States was pursuing the matter of the “Bush Six.”
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Finally, on March 1, 2011, the U.S. Justice Department sent a response, claiming that it intended to investigate and asking that the case be sent to the United States for investigation.
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Judge Velasco complied, essentially putting the Spanish proceedings on semi-permanent hold. Lawyers from the Center for Constitutional Rights and the European Center for Constitutional and Human Rights appealed Judge Velasco's decision, saying that the United States did not have a serious intent to pursue the matter, wrote Sarah Posner in
Jurist.
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In Belgium, three lawsuits against members of the Bush administration, including President Bush, Defense Secretary Donald Rumsfeld, Deputy Defense Secretary Paul Wolfowitz, General Tommy Franks, and others, were filed by confidential complainants in 2003 for crimes against humanity in Iraq and Afghanistan, reported Reuters.
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The United States objected and Rumsfeld publicly threatened to halt funding for a new NATO headquarters in Brussels and move it elsewhere, reported the
Guardian
.
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In response, Belgium repealed its universal jurisdiction law in August 2003, according to Human Rights Watch, and limited the ability to prosecute matters of genocide, war crimes, and crimes against humanity to cases involving Belgian nationals or residents, or to situations in which Belgium had a treaty obligation to prosecute.
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The cases against U.S. officials were all dismissed.

The Center for Constitutional Rights in New York, working with civil rights attorney Wolfgang Kaleck in Berlin, urged Germany in November 2004 to exercise universal jurisdiction and take criminal action on behalf of four Iraqi citizens against then defense secretary Donald Rumsfeld under Germany's Code of Crimes Against International Law, citing abuse at Abu Ghraib and Guantánamo. The Center for Constitutional Rights explained in “German War Crimes Complaint Against Donald Rumsfeld et al.” that the German law “provides for ‘universal jurisdiction' for war crimes, crimes of genocide and crimes against humanity. It enables the German Federal Prosecutor to investigate and prosecute crimes . . . irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved.”
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Prisoners alleged that they had been beaten, kicked, sexually harassed, stripped naked, bound for long periods, intimidated by the use of dogs, subjected to degrading treatment, and, in one case, raped, according to documents posted by the Center for Constitutional Rights. Rumsfeld was not amused. “The case provoked an angry response from [the] Pentagon, and Rumsfeld himself was reportedly upset,” wrote Adam Zagorin in
Time
magazine. “U.S. officials made clear the case could adversely impact U.S.-Germany relations, and Rumsfeld indicated he would not attend a major security conference in Munich, where he was scheduled to be the keynote speaker, unless Germany disposed of the case.”
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The day before the conference, the prosecutor dropped the case, saying the United States was the appropriate venue for these complaints.

After Rumsfeld resigned as secretary of defense, the Center for Constitutional Rights and Kaleck decided to try again, refiling the case in Germany in November 2007, wrote
Time.
The lawyers argued that the United States did not intend to prosecute the case, and filed on behalf of forty-four plaintiffs, including organizations from Argentina, Bahrain, Canada, France, Germany, and elsewhere, and twelve Iraqi citizens with claims of torture. This time, a second German prosecutor dismissed this case, stating that it seemed to be a “symbolic” prosecution and, again, that handling the cases of abuse “remains the task of the justice system of the United States of America.”
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The attempt to secure prosecution of Rumsfeld in France also fizzled in a case that the Center for Constitutional Rights attempted to bring in 2007. The prosecutors declined, finding that Rumsfeld, although no longer a government official, had immunity since the acts complained of were
taken in his official capacity when he was a government official, explained Katherine Gallagher in the
Journal of International Criminal Justice.
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The concept of universal jurisdiction is important in ending impunity and bringing about accountability for heinous crimes when a national government does not have the political will or capacity to act. But President Bush and his team may have calculated correctly that there was a slim likelihood that other nations would dare to take on the prosecution. Where they have dared, the U.S. government has pushed back hard, both privately and publicly, to quash proceedings that might finally expose the crimes and wrongdoings of Bush administration officials.

On May 6, 2002, President Bush “unsigned” a treaty that had created the International Criminal Court (ICC), the first permanent international court on war crimes and crimes against humanity. President Clinton had signed the treaty on December 31, 2000. But the U.S. commitment didn't last long. John R. Bolton, Bush's undersecretary of state, wrote to the United Nations: “The United States does not intend to become a party to the treaty,” according to the
New York Times
.
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The ICC was under steady attack by the Bush administration. Defense Secretary Rumsfeld said that the court would be “putting U.S. men and women in uniform at risk of politicized prosecutions.” But he actually may have had himself and the suits in the White House in mind. After all, the “unsigning” came only three months after the February signature of President Bush on a memo unleashing brutal treatment in interrogating detainees, precisely the kind of case that might end up in the International Criminal Court. Ironically, the court came into existence on July 1, 2002,
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at the very same time that Abu Zubaydah was being tortured at the hands of CIA interrogators in a secret prison abroad.

The creation of the court was “the result of a concerted international effort to combat impunity for what are considered to be the most egregious international crimes—crimes that . . . ‘deeply shock the conscience of humanity,'” explained Lynn Gentile in a book on international criminal justice. The court has subject-matter jurisdiction limited to “the most serious crimes of concern to the international community as a whole, namely, genocide, crimes against humanity and war crimes,” wrote Gentile.
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There are three triggers, described in an Amnesty International fact
sheet, that can put a case before the ICC, which is physically located in The Hague in the Netherlands.
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One way is that the court can take jurisdiction of a matter when a country has signed the Rome Treaty establishing the court and asks the ICC to prosecute a case. Second, the UN Security Council can refer matters to the court. This happened in the case of Omar al Bashir, the president of Sudan—particularly significant because it involved a sitting head of state. Al Bashir was indicted for war crimes and crimes against humanity occurring in Darfur: “Not even presidents are guaranteed a free pass for horrific crimes,” said Richard Dicker of Human Rights Watch. The United States didn't use its veto to block the Security Council action.
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