Bringing justice to torture enablers
Tuesday, 21 April 2009
Jorge Heine and Ramesh Thakur
WHEN, after his sixteen-month arrest, General Augusto Pinochet was sent back from London to his native Chile, Geoffrey Robertson, a constitutional lawyer, was asked whether it was likely the general would spend any time behind the bars. "No but a fate worse than prison awaits him. He will spend the rest of his days surrounded by lawyers." This is exactly what happened.
The Spanish judge, who hounded, humiliated and ultimately humbled Pinochet, was Baltasar Garzén. He now has the torture enablers of the Bush administration in his crosshairs. The development comes with the confluence of three forces.
First, humans have a powerful sense of justice for the satisfaction of which they are prepared to pay a cost if need be. Where wrong has been seen to be done and the decent opinion of mankind has been outraged, punishment is demanded. Second, in a deeply globalised world, with an internationalized human conscience, justice too has a global domain. Citizens expect and demand accountability for overseas and domestic acts of criminality, and foreigners demand it for criminal acts committed within domestic jurisdictions. And third, where wrong has been done to fellow-citizens, and institutions and regimes in whose jurisdictions the crime was committed are unwilling or unable to bring perpetrators to justice, people want their own governments to reach deep onto the world stage to inflict punishment and exact justice.
President George W. Bush tapped into these sentiments in the immediate aftermath of 9/11 when he promised that whether the murderers came to justice, or justice came to them, justice would be done. How fitting then that those who exploited the post-9/11 fear to take him down the wrong turn to violate, fundamental American precepts and international laws against torture now have cause to fear international justice.
Judge Garzén is gearing up for a criminal investigation of the Bush lawyers who constructed the legal scaffolding for Army and CIA interrogators to engage in torture. The principals involved -- Alberto Gonzales, Douglas Feith, David S. Addington, Jay S. Bybee, William J. Haynes, John C. Yoo -- should not take this lightly.
Every day the evidence that is released about what happened in the so-called "black sites", under the legal umbrella provided by the legal memos of the Justice Department Office of Legal Counsel is more disturbing. Waterboarding, beatings and locking up in coffin-like boxes seem to have been established practices, all of this aided by medical personnel.
When Judge Garzén, by now a legendary figure in the Spanish-speaking world and the subject of an acclaimed documentary film ("El Caso Pinochet" by Patricio Guzmdn), started the criminal proceedings against Pinochet in the mid-nineties, on the basis of a complaint filed by a human rights NGO, he was widely derided as a latter-day Don Quixote taking on a general 10,000 km away, with no jurisdiction over problematic cases that, if at all, fell under the purview of the Chilean judiciary.
Yet, slowly but surely, he kept building up his case. In a remarkable case of deploying the law to bring about both criminal, and in the deepest sense of the word, political justice, the lawyer behind that case was Joan Garces, who, 25 years earlier, as a freshly minted political scientist, had been Salvador Allende's political advisor and speechwriter, and had gotten to know Pinochet in the days when the latter put on his mask as a strict constitutionalist and ardent supporter of Allende.
When Augusto Pinochet, after leaving his position as Army Chief, and taking up the one as appointed Senator he had engineered in his own 1980 Constitution, was imprudent enough to travel to London in October 1998, shortly after the 25th anniversary of the military coup that he led to topple President Salvador Allende, under the false impression that a diplomatic passport and his friendship with Margaret Thatcher would provide him with immunity in a country he much admired, Garzon pounced.
Contrary to what is sometimes argued because he was ultimately not convicted of any crimes, that arrest marked the end of the Pinochet legend and the halo that had surrounded him until then, as the dictator that had opened up the Chilean economy and brought modernity to his country. Upon his return to Chile, the Supreme Court lifted his parliamentary immunity and he had to face hundreds of criminal cases. In 2003, the Chilean government appointed a Commission on Political Imprisonment and Torture to investigate the human rights violations that had not fallen under the mandate of Chile's Truth and Reconciliation Commission in the early nineties. A few years later, a US Senate investigation on the financing of terrorist activities uncovered hundreds of bank accounts of his at Riggs Bank, leading to further prosecutions. By the time he died a few years ago, his reputation was in tatters.
In a vivid proof of the "snowball effect," these legal precedents have internationally, the Peruvian courts recently took this one step further. After extraditing him from Chile, where he had sought refuge, they convicted former dictator Alberto Fujimori (known popularly as "Chinochet") to 25 years in prison for the human rights violations committed during his two-term presidency, mainly for excesses in the repression against the Maoist Shining Path guerrilla movement. The latter were a bad lot, but the Peruvian courts decided that even the imperatives of the struggle against such a cruel terrorist movement did not justify state actions leading to torture and illegal killings.
Why should a Spanish judge take on a Chilean dictator, and now a bunch of US lawyers?
The answer is "universal jurisdiction": the legal capacity to bring to justice human rights violators anywhere in the world, and one of the most encouraging trends in international human rights law. Although as a rule criminal jurisdiction is determined by the crime's location rather by the nationality of the victim, in today's globalised world strict territorial jurisdiction is less clear-cut. Pinochet was the first former head of state arrested for crimes committed at home, followed shortly by the indictment of Slobodan Milosevic: the first sitting head of state, and that too in the midst of war. The recent international arrest order for Sudanese President Omar al-Bashir issued by the International Criminal Court (ICC) has made world headlines.
The United States, which not only did not ratify the Rome Treaty that established the ICC in 1998 and has by now been ratified by 105 countries, a majority of the United Nations members, has not exactly been at the forefront of this trend ( having gone to the extreme of actually unsigning this treaty). Yet, it has not been totally estranged from it either. In October of 2008, a Miami court convicted from Liberian strongman Charles Taylor for torture crimes committed in Liberia, a decision praised by then US Attorney General Michael B. Mukasey.
Spain's 1985 law allows for universal jurisdiction in crimes against humanity if there is a Spanish connection. In the case of Spanish citizens living in Chile who traveled to Argentina, were kidnapped there, and sent back to Chile to be tortured and killed, the question of who prosecutes the culprits did not have an obvious answer -- until Judge Garzén stepped in.
What about Spanish citizens or residents of Spain kidnapped somewhere around the world, forcibly taken to Guantanamo and tortured there? Given Guantanamo's legal limbo (which is precisely why the detention camps were set up there in the first place) the answer to that question is not obvious either.
Practices such as waterboarding, beatings and placement in coffin-like boxes, described in detail in a leaked ICRC report about the treatment of detainees in US custody, could constitute war crimes and/or violate the 1984 Convention Against Torture, to which the US is party.
In arguing against a truth commission to investigate torture practices under Bush, Senator Arlen, Specter said "this is not Latin America." Well, in some ways it is. "Enhanced interrogation techniques" were originally exported by US specialists to Latin American military regimes, including Pinochet's, in the 1960s-70s to help fight the enemy of the day -- communism. They were then applied at home to fight the new enemy of choice, terrorism.
There are some fifty former senior aides to Pinochet, both military and civilian, who have been advised not to travel abroad if they want to avoid being arrested. They have not dared to leave Chile for ten years now. If Judge Garzén were to go ahead with his criminal investigation of the former Bush administration lawyers, if is unlikely these defendants would be extradited to Spain. But it would probably be advisable for them not to leave the United States.
(The writer is Professor of Global Governance at the Balsillie School of International Affairs, whose founding Director is Ramesh Thakur. They are both Distinguished Fellows at the Centre for International Governance Innovation (C/Gl) in Waterloo, Ontario)
WHEN, after his sixteen-month arrest, General Augusto Pinochet was sent back from London to his native Chile, Geoffrey Robertson, a constitutional lawyer, was asked whether it was likely the general would spend any time behind the bars. "No but a fate worse than prison awaits him. He will spend the rest of his days surrounded by lawyers." This is exactly what happened.
The Spanish judge, who hounded, humiliated and ultimately humbled Pinochet, was Baltasar Garzén. He now has the torture enablers of the Bush administration in his crosshairs. The development comes with the confluence of three forces.
First, humans have a powerful sense of justice for the satisfaction of which they are prepared to pay a cost if need be. Where wrong has been seen to be done and the decent opinion of mankind has been outraged, punishment is demanded. Second, in a deeply globalised world, with an internationalized human conscience, justice too has a global domain. Citizens expect and demand accountability for overseas and domestic acts of criminality, and foreigners demand it for criminal acts committed within domestic jurisdictions. And third, where wrong has been done to fellow-citizens, and institutions and regimes in whose jurisdictions the crime was committed are unwilling or unable to bring perpetrators to justice, people want their own governments to reach deep onto the world stage to inflict punishment and exact justice.
President George W. Bush tapped into these sentiments in the immediate aftermath of 9/11 when he promised that whether the murderers came to justice, or justice came to them, justice would be done. How fitting then that those who exploited the post-9/11 fear to take him down the wrong turn to violate, fundamental American precepts and international laws against torture now have cause to fear international justice.
Judge Garzén is gearing up for a criminal investigation of the Bush lawyers who constructed the legal scaffolding for Army and CIA interrogators to engage in torture. The principals involved -- Alberto Gonzales, Douglas Feith, David S. Addington, Jay S. Bybee, William J. Haynes, John C. Yoo -- should not take this lightly.
Every day the evidence that is released about what happened in the so-called "black sites", under the legal umbrella provided by the legal memos of the Justice Department Office of Legal Counsel is more disturbing. Waterboarding, beatings and locking up in coffin-like boxes seem to have been established practices, all of this aided by medical personnel.
When Judge Garzén, by now a legendary figure in the Spanish-speaking world and the subject of an acclaimed documentary film ("El Caso Pinochet" by Patricio Guzmdn), started the criminal proceedings against Pinochet in the mid-nineties, on the basis of a complaint filed by a human rights NGO, he was widely derided as a latter-day Don Quixote taking on a general 10,000 km away, with no jurisdiction over problematic cases that, if at all, fell under the purview of the Chilean judiciary.
Yet, slowly but surely, he kept building up his case. In a remarkable case of deploying the law to bring about both criminal, and in the deepest sense of the word, political justice, the lawyer behind that case was Joan Garces, who, 25 years earlier, as a freshly minted political scientist, had been Salvador Allende's political advisor and speechwriter, and had gotten to know Pinochet in the days when the latter put on his mask as a strict constitutionalist and ardent supporter of Allende.
When Augusto Pinochet, after leaving his position as Army Chief, and taking up the one as appointed Senator he had engineered in his own 1980 Constitution, was imprudent enough to travel to London in October 1998, shortly after the 25th anniversary of the military coup that he led to topple President Salvador Allende, under the false impression that a diplomatic passport and his friendship with Margaret Thatcher would provide him with immunity in a country he much admired, Garzon pounced.
Contrary to what is sometimes argued because he was ultimately not convicted of any crimes, that arrest marked the end of the Pinochet legend and the halo that had surrounded him until then, as the dictator that had opened up the Chilean economy and brought modernity to his country. Upon his return to Chile, the Supreme Court lifted his parliamentary immunity and he had to face hundreds of criminal cases. In 2003, the Chilean government appointed a Commission on Political Imprisonment and Torture to investigate the human rights violations that had not fallen under the mandate of Chile's Truth and Reconciliation Commission in the early nineties. A few years later, a US Senate investigation on the financing of terrorist activities uncovered hundreds of bank accounts of his at Riggs Bank, leading to further prosecutions. By the time he died a few years ago, his reputation was in tatters.
In a vivid proof of the "snowball effect," these legal precedents have internationally, the Peruvian courts recently took this one step further. After extraditing him from Chile, where he had sought refuge, they convicted former dictator Alberto Fujimori (known popularly as "Chinochet") to 25 years in prison for the human rights violations committed during his two-term presidency, mainly for excesses in the repression against the Maoist Shining Path guerrilla movement. The latter were a bad lot, but the Peruvian courts decided that even the imperatives of the struggle against such a cruel terrorist movement did not justify state actions leading to torture and illegal killings.
Why should a Spanish judge take on a Chilean dictator, and now a bunch of US lawyers?
The answer is "universal jurisdiction": the legal capacity to bring to justice human rights violators anywhere in the world, and one of the most encouraging trends in international human rights law. Although as a rule criminal jurisdiction is determined by the crime's location rather by the nationality of the victim, in today's globalised world strict territorial jurisdiction is less clear-cut. Pinochet was the first former head of state arrested for crimes committed at home, followed shortly by the indictment of Slobodan Milosevic: the first sitting head of state, and that too in the midst of war. The recent international arrest order for Sudanese President Omar al-Bashir issued by the International Criminal Court (ICC) has made world headlines.
The United States, which not only did not ratify the Rome Treaty that established the ICC in 1998 and has by now been ratified by 105 countries, a majority of the United Nations members, has not exactly been at the forefront of this trend ( having gone to the extreme of actually unsigning this treaty). Yet, it has not been totally estranged from it either. In October of 2008, a Miami court convicted from Liberian strongman Charles Taylor for torture crimes committed in Liberia, a decision praised by then US Attorney General Michael B. Mukasey.
Spain's 1985 law allows for universal jurisdiction in crimes against humanity if there is a Spanish connection. In the case of Spanish citizens living in Chile who traveled to Argentina, were kidnapped there, and sent back to Chile to be tortured and killed, the question of who prosecutes the culprits did not have an obvious answer -- until Judge Garzén stepped in.
What about Spanish citizens or residents of Spain kidnapped somewhere around the world, forcibly taken to Guantanamo and tortured there? Given Guantanamo's legal limbo (which is precisely why the detention camps were set up there in the first place) the answer to that question is not obvious either.
Practices such as waterboarding, beatings and placement in coffin-like boxes, described in detail in a leaked ICRC report about the treatment of detainees in US custody, could constitute war crimes and/or violate the 1984 Convention Against Torture, to which the US is party.
In arguing against a truth commission to investigate torture practices under Bush, Senator Arlen, Specter said "this is not Latin America." Well, in some ways it is. "Enhanced interrogation techniques" were originally exported by US specialists to Latin American military regimes, including Pinochet's, in the 1960s-70s to help fight the enemy of the day -- communism. They were then applied at home to fight the new enemy of choice, terrorism.
There are some fifty former senior aides to Pinochet, both military and civilian, who have been advised not to travel abroad if they want to avoid being arrested. They have not dared to leave Chile for ten years now. If Judge Garzén were to go ahead with his criminal investigation of the former Bush administration lawyers, if is unlikely these defendants would be extradited to Spain. But it would probably be advisable for them not to leave the United States.
(The writer is Professor of Global Governance at the Balsillie School of International Affairs, whose founding Director is Ramesh Thakur. They are both Distinguished Fellows at the Centre for International Governance Innovation (C/Gl) in Waterloo, Ontario)