Universal Jurisdiction and the Bush Administration

By Donald Gutierrez

Is Donald Rumsfeld a war criminal? If so, can he be prosecuted and put behind bars? These are crucial questions to anyone who feels that the ex-defense secretary was not only sizably responsible for the practice of torturing Mid- and Far Eastern detainees, but guilty of war crimes for his part in implementing an illegal and unjust attack on a sovereign nation, Iraq.

These considerations invite some reflections on the legal concept of universal jurisdiction. According to the legal analyst Brendan Smith and the historian Jeremy Brecher, this "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" (The Nation, "War Criminals, Beware," 11/20/06).

More than a few unconstitutional laws and covert practices hammered or snuck through by the Bush administration makes Universal Jurisdiction an increasingly relevant juridical tool against the enlarging authoritarianism in White-House governance. These pernicious developments have included, among others (including the Patriot Act and Abu Ghraib), the terrifying Military Commissions Act of 2006 and barely noticed Defense Authorization Act, which was passed last year for the fiscal year 2007. This last Act, undercutting the Posse Comitatis Act, facilitates the president's ability to introduce martial law. Also, it is possibly the most sinister of all these proto-totalitarian measures, for it would impose military domination over civil institutions and civilian life, and easily slide into targeting ultimately anyone as an "illegal enemy combatant."

The act most likely to lead to future war crimes by high-placed officials however, is the Military Commissions Act because it exonerates war crimes already committed. This Act in effect provides legal protection for, among other transgressions, the White House's violation of habeas corpus, denial of access by detainees to evidence tortured out of them and the imposition of indefinite confinement. The Bush administration can now do punitively whatever it wants to anyone, including any American.

Worth considering then is both the potential as well as actual power of universal jurisdiction in relation to war crimes committed by government officials.The concept fits neatly into such American-backed global ideals as the post-World-War II Universal Declaration of Human Rights to both of which the United States is a signatory. Initially designed to end the "scourge of war," the Declaration is expansive enough to stigmatize high-placed political leaders who commit war crimes, crimes against humanity, torture and genocide. Accordingly, such an American-supported international ideal could reinforce universal jurisdiction in condemning specific acts and individuals who violate these formalized ideals.

Still, these are only ideals and moral sanctions. Top-level American officials like Bush II, Cheney, Rumsfeld, Rice would not likely be arrested and detained anywhere through universal jurisdiction. If Germany, say, arrested any one of the above while in Germany, Washington might well threaten Germany formidably. Could it, however, threaten a Germany, Belgium, Spain serving as the vehicle of international, even global, authority?

The possible confrontation of a super state and an international institution leads to the thorny problem and concept of state sovereignty. Theoretically, this doctrine means that all states are, according to the United Nations Charter, entitled to have not only their borders respected but their leaders as well. Further, what gives one state (Germany, Belgium, etc.) the right to try a key statesman of another state?

That right could be based on a sufficient number of significant states responsibly accepting the concept of universal jurisdiction either as a United Nations resolution or through some other international institution or procedure such as the World Social Forum, with its powerful drive for global social-economic egalitarianism and its potential for world-wide grass-roots organization promoting peace, justice and environmental sustainability. If universal jurisdiction is truly universal, then it's not only a matter of Germany indicting an American statesman (or vice-versa) but of the international community through Germany (Spain, etc.) indicting a Rumsfeld, Pinochet, Putin for crimes against humanity or a Bush/Cheney for initiating war crimes. This would put the massed weight of the international community upon a transgressor state.

Washington, however, has shown scant respect for international institutions and directives, especially the UN. When, for example, the Reagan administration bombed Managua's harbors and financed and trained the Contras, it was condemned almost unanimously by the UN and penalized by the International Criminal Court. Washington totally ignored these two expressions of virtually universal censure.

However, a contemporary UN that included not only a united Europe but powerful states like China, Japan and Russia, not to mention rising economic powers like India and South Korea, could provide the UN deliberative force against absolutist state sovereignty, especially if these nations were to recognize that their own interests resided in a flexible balance between sovereignty and just international allegiance. Acting on this awareness could lead to some diminution of states to committing war crimes.

Amnesty International states that the United States is one of a dozen nations undertaking investigations, prosecutions and trials employing universal jurisdiction to extradite individuals for crimes including torture. Amnesty also insists that crimes such as genocide, crimes against humanity, war crimes and torture fall under international jurisdiction ("Universal jurisdiction," Wikipedia). Washington shouldn't have it all its own way; if it utilizes universal jurisdiction to charge foreigners for war crimes abroad (let alone invading nations that allegedly harbor terrorists), it should accept extradition or detention of Americans indicted by other nations for war crimes as well.

Amnesty's position, let alone the recent action by a team of lawyers from the Center for Constitutional Rights (N.Y.), serving formal notice in Germany that Rumsfeld committed crimes relevant to international jurisdiction, suggests that universal jurisdiction could some day harbor potency. Realistically, the value of universal jurisdiction boils down to might versus right. Washington would not tolerate any nation or international court arresting Kissinger, Rumsfeld or Dick Cheney for violations of international law-at least, while such individuals are in office. Their vulnerability out of office could, however, be another matter. They would not be protected by the armor of official status. General Pinochet once held absolute power over Chile; today, Chile has officially convicted Pinochet of crimes against humanity..

Labeling the Rumsfelds war criminals subject to at least virtual trial and legal guilt could have significant symbolic, psychological and deterrent force. Both Rumsfeld and Kissinger have been known to contact foreign states to make sure they would not be detained during a visit; detainment, and what it stands for, must at least prey on their minds. More significantly, other powerful leaders could feel more restrained if their foreign policy might acquire criminal status or liability internationally. If even such inhibiting action reduced only torture globally, this would be an enormous advancement toward extending human decency universally. Deterring the war crimes of statesmen would require concerted international condemnation and it might take time and persistence, especially in view of the nationalistic arrogance and unilateralism of administrations like Bush Jr's.

However, the more nations that get behind international condemnation of war crimes and crimes against humanity, the more impact such sanctioning would likely have. The consequence of powerful states like ours going their own way is so dangerous to the world that the instinct of survival, if nothing else, should make such nations come to terms with the crucial value of their international interdependence through such institutions as universal jurisdiction.

Donald K. Gutierrez is professor emeritus of English at Western New Mexico University. Email dongut@juno.com.

From The Progressive Populist, August 15, 2007

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