Wednesday, December 01, 2004

Universal Jurisdiction and Abu Ghraib

On Sunday, Nicole Garcia e-mailed me to ask whether it would be possible for a country other than the United States, employing the universality principle of jurisdiction, to prosecute Americans for the crimes at Abu Ghraib. (Under the concept of universal jurisdiction, any state may prosecute a crime that is deemed to violate the “law of nations.” Such crimes–-including crimes against humanity, war crimes, genocide, torture, slavery, and piracy–-are held to be so heinous that they constitute crimes against the international community as a whole. Consequently, those who commit these crimes are hostis humanis generis–-enemies of humankind–-and may be prosecuted, on behalf of the international community, by any state.) When Nicole and I talked a day or two later, I said that while the universality principle would provide legal grounds for another state to assert jurisdiction over Americans responsible for torture at Abu Ghraib (or at Guantánamo, for that matter), it was not likely to happen given the fact of American power. After all, sometimes what is legal is not politically expedient.

Apparently my faith in the power of law is not as strong as that of Michael Ratner and the Center for Constitutional Rights (CCR).

Here’s how the CCR describes the action it took yesterday: “In a historic effort to hold high-ranking U.S. officials accountable for brutal acts of torture including the widely publicized abuses carried out at Abu Ghraib, on Tuesday November 30, 2004, the Center for Constitutional Rights (CCR) and four Iraqi citizens filed a criminal complaint with the German Federal Prosecutor’s Office at the Karlsruhe Court, Karlsruhe, Germany.”

Michael Ratner, the CCR’s president, said:

From Donald Rumsfeld on down, the political and military leaders in charge of Iraq policy must be investigated and held accountable. It is shameful that the United States of America, a nation that purports to set moral and legal standards for world, refuses to seriously investigate the role of those at the top of the chain of command in these horrible crimes. Indeed, the existence of “torture memos” drafted by administration officials and the authorization of techniques that violated humanitarian law by Secretary Rumsfeld, Lt. General Sanchez and others make clear that responsibility for Abu Ghraib and other violations of law reaches all the way to the top.

The four Iraqi citizens listed, along with the CCR, as plaintiffs in the case are all former prisoners of the United States in Iraq. Two were detained and allegedly tortured at Abu Ghraib. The ten defendants include Secretary of Defense Donald Rumsfeld, former Director of the CIA George Tenet, Undersecretary of Defense for Intelligence Dr. Stephen Cambone, Lieutenant General Ricardo Sanchez, and six other high-ranking officers.

One of the ironies of this situation is that the German legal system, which the United States had to reform so thoroughly after World War II, now presents itself as the one legal system in the world that is most hospitable to an investigation of American human rights abuses.

For further reading:

The CCR’s account of its legal action is here. Reuters reports the story here. For those who can read German (or who know how to use AltaVista Babel Fish Translation), the Frankfurter Rundschau article on yesterday’s filing is here.

Incidentally, I picked up the story from Matthew Gross who, in turn, got it from Blue Lemur. (That’s how it often works in the blogosphere.)