Today's news is full of the unfolding debate about prosecuting torture cases in the United States. There is not much controversy nowany more about whether or not torture took place. Dick Cheney is being quarrelsome, but his arguments seem based on the idea that the torture delivered results in the 'war on terror', not that it didn't happen.
Last Friday, I attended a conference at the new Rule of Law Centre at West Point, where the US Military Academy is located. I heard former counsel to the US Navy, Alberto J. Mora, denounce the torture practices of the previous administration. He explained that is was contrary to US law and to US interests. He was given a standing ovation by the military cadets in the audience. Very impressive.
Of course, torture is also contrary to international law. Two treaties ratified by the United States, the International Covenant on Civil and Political Rights and the Convention Against Torture, are of special relevance here.
Obama has his own political reasons for not wanting to prosecute the crimes that were committed. International law has an answer. Under the Torture Convention, if the US is not prepared to put those responsible on trial, it must extradite them to a State that will.
Who should seek their extradition? My suggestion is Belgium. Right now Belgium is suing Senegal at the International Court of Justice under the try or extradite provision of the Torture Convention. So its willingness to fulfil its international duty cannot be in doubt.
Africans have, perhaps with some justification, criticised various international justice initiatives as being one-sided and selective, in that they focus on only one continent. To date, Belgium's idea of universal jurisdiction has been directed mainly at Africa, perhaps because of its historic interest in the continent (as Mark Twain, Roger Casement and, more recently, Adam Hochschild have documented). Here is an opportunity for Belgium to show that its perspective on universal jurisdiction really is universal!
There are a couple of other possibilities here too. Among the locations where these crimes of torture took place are Bagram prison, in Afghanistan, and Guantanamo, in Cuba. Afghanistan is a member of the International Criminal Court. Why doesn't Belgium or one of the other NATO members who are such keen defenders of international justice refer the situation in Afghanistan involving torture committed by the US to the International Criminal Court, in accordance with aritcle 14 of the Rome Statute.
Cuba, unfortunately, is not a member of the International Criminal Court. But without even joining the Court, it can give jurisdiction over Guantanamo, retroactive to 1 July 2002, by making a declaration, pursuant to article 12(3). Then Belgium, or one of the other NATO states, can trigger the jurisdiction in accordance with article 14.
It'll never happen, you say? They said an African-American could never be elected president too. As Yogi Berra said, never say never.