Wednesday, 22 April 2009

How to Prosecute US Torture Cases

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.


Luís Paulo said...

Interesting ideias...I don't think they'll never happen, but in the near future I'd say that it is unlikely, mainly for political reasons.
Even though the Bush administration has shielded US nationals against the ICC in every way they could, it would be great to see at least someone trying to prosecute them.

Be it the ICC, Belgium or other countries, it would definitely be a good sign that universal jurisdiction is really universal and would take the focus off Africa for a while, thus bringing more support and legitimacy for international criminal justice...

leli said...

Dear Mr. Schabas,

I am a Phd student from Münster, Germany and I daily visit your blog. I really think it is one of the best ones! As you have always commented on the decision ot the ICTR not to refer cases to Rwanda and the extradition decision of the british magistrate court, I am now missing your comment on the recent High court decision which granted the appeal against the extradition decision. I would be very interested in your comments since it is for the very first time that the UK has refused extradition based on Art. 6 ECHR (at least this is what they say in the press). Do you know where I can get the full decision? I tried to find it at - no success. The link to the magistrate court decision was posted in your blog. Maybe you could post a link to this one too. Thank you very much and once again thank you for a great informative blog!

leli said...

Dear Mr. Schabas,

I am a Phd student at the University of Münster, Germany. I am following your blog on a daily basis. It is one of the best and most informative ones. Great job! As you have always commented on the ICTR decisions not to refer cases to Rwanda and the national decisions refusing/granting extraditon to Rwanda, I am now missing your comments on the recent UK High Court appeal decision (April 7 or 8) refusing the extradition to Rwanda. I am very interesting what you think about the decision as it is (at least that what they say in the british daily press) the first time ever that a UK court has refused extradition based on Art. 6 ECHR. The link to the first instance decision was posted in your blog. Unfortunately I did not find the recent decision on the internet- may you can give me a hint or even post a link again. Thank you so much and please keep blogging. Best wishes from Germany!

neska said...

Why does not Spain do it?

Anonymous said...

Dear Prof. Schabas,
you mention the case of Afghanistan but Afghanistan signed an 'article 98 agreement' with the US in 2002 which prevents the prosecution of US personnel involved in torture.
In the case of Cuba I see one major problem namely who is sovereign of the military base? If it is Cuba as Cuba claims than an action under article 12(3) is indeed feasible but I guess that the US will oppose to this or how do you see this issue?
Now, regarding the question why so far no country has sued the US I am particularly puzzled why Venezuela, a staunch critic of the US, hasn't do it so far nor does it show any intentions to do so. Are there any explanations for this?
thanks a lot for your good work!