By JEREMY BRECHER & BRENDAN SMITH
From the November 20, 2006 issue of The Nation
http://www.thenation.com/doc/20061120/brechersmith:
On November 14 a group of lawyers and other experts will come
before the German federal prosecutor and ask him to open a
criminal investigation targeting Donald Rumsfeld, Alberto
Gonzales and other key Bush Administration figures for war
crimes. The recent passage of the Military Commissions Act
provides a central argument for the legal action, under the
doctrine of universal jurisdiction: It demonstrates the intent
of the Bush Administration to immunize itself legally from
prosecution in the United States, even for the most serious
crimes.
The Rumsfeld action was announced at a conference in New York
City in late October titled "Is Universal Jurisdiction an
Effective Tool?" The doctrine allows domestic courts to
prosecute international crimes regardless of where the crime
was committed, the nationality of the perpetrator or the
nationality of the victim. It is reserved for only the most
heinous offenses: genocide, war crimes and crimes against
humanity, including torture. A number of countries around the
world have enacted universal jurisdiction statutes; even the
United States allows it for certain terrorist offenses and
torture.
Many ofthe participants in the New York conference were human
rights lawyers who have been expanding the use ofuniversal
jurisdiction since it was employed against former Chilean
dictator Augusto Pinochet. In a recent case brought in
Spain,for example, Argentine Adolfo Scilingo was tried and
found guilty of crimes against humanity he committed in
Argentina and sentenced to serve a 640-year prison term [see
Geoff Pingree and Lisa Abend, "Spanish Justice,"October 9].
The decision was made to try to prosecute Rumsfeld in Germany
becauseits laws facilitate the use of universal jurisdiction.
The conference was sponsored by the Center for Constitutional
Rights (CCR), which is bringing the case against Rumsfeld, and
by the International Federation for Human Rights (FIDH), a
network of 141 national human rights organizations founded in
1922.
An earlier case against Rumsfeld was brought two years ago in
Germany by CCR on behalf of four Iraqi victims of Abu Ghraib,
drawing largely on documents and photos that revealed abuse at
the prison. As the case was being considered, a security
conference loomed in Munich. Rumsfeld, who could have been
served papers or even arrested, refused to attend unless the
case was dismissed. It was dismissed February 10; Rumsfeld
flew to Germany the next day.
The reason the prosecutor gave for the dismissal was that
there was "no reason to believe that the accused would not be
prosecuted in the United States"--notwithstanding powerful
evidence that the officials who controlled prosecution were
themselves part of the conspiracy to commit war crimes. The
new complaint will be based on the failure of US authorities
to investigate and prosecute high-level officials.
The case will draw on a powerful new argument. The Military
Commissions Act of 2006,which the President promoted and
recently signed into law, provides retroactive immunity for
civilians who violated the War Crimes Act, including officials
ofthe Bush Administration. Such an attempt to provide immunity
for their crimes,it will be argued, is in itself evidence of
an effort to block prosecution ofthose crimes. Indeed,
according to Scott Horton, chair of the International Law
Committee of the New York City Bar Association, when
Yugoslavia sought to immunize senior government officials, the
United States declared the act itself to be evidence of such a
conspiracy.
The new case will introduce other important elements as well.
Lawyers who served as advocates, architects and enablers of
prisoner abuse policies, like Alberto Gonzales and John Yoo,
will be added as defendants. Abuse in Guantánamo will be added
to that in Abu Ghraib. The complaint will present new evidence
showing responsibility for torture and prisoner abuse at the
highest levels of the chain of command.
Wolfgang Kaleck, a German human rights lawyer who is bringing
the case in cooperation with CCR, FIDH and other groups, told
the conference in New York that he is often asked, Do you
really expect Rumsfeld to be arrested for war crimes? His
answer is that he doesn't expect it immediately. "But we make
it possible that someday Rumsfeld will be arrested," he says.
According to Kaleck, the German government regularly receives
calls from potential high-level visitors asking,"Are there any
complaints against me?"
Antoine Bernard, FIDH executive director, says that although
there have been few convictions so far based on universal
jurisdiction, "now fear is not just on the side of the victims
but also of the torturers." And that,supporters argue, will
have a deterrent effect on government officials who
contemplate using torture.
Peter Weiss, vice president of both CCR and FIDH and an elder
statesman of international human rights law, notes that it
took fifty years to get the Supreme Court's Brown decision
outlawing school segregation, but during all that time people
kept bringing cases that eventually changed the legal system's
fundamental position."New norms are being constituted to deal
with the reality on the ground,"he said. "Later those norms
become real, practical, enforceable law."
[Legal analyst Brendan Smith and historian Jeremy Brecher are
the editors of In the Name of Democracy: American WarCrimes in
Iraq and Beyond (Metropolitan/Holt, 2005).]
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