ShareThisThe United States is not a signatory to the International Criminal Court, and Spanish judge and prosecutor Baltasar Garzon is a good reason why.
He is considering a lawsuit by lawyers for human rights groups seeking the arrest and extradition of six former Bush administration officials for sanctioning torture at Guantanamo Bay. The New York Times quoted an official as saying it is "highly probable" Garzon will grant the arrest warrants.
Spanish law and a doctrine called universal competence -- an underpinning of the ICC -- allow Spain and other governments to arrest and try persons for heinous offenses, generally war crimes, even if the crime did not occur on Spanish soil or involve Spanish citizens.
Those named in the suit are ex-Bush administration officials Attorney General Alberto Gonzales, undersecretary of Defense Douglas Feith, Vice President Dick Cheney's top aide David Addington, Pentagon general counsel William Haynes and Justice department officials John Yoo and Jay Bybee.
It seems farfetched, but at a certain level Garzon has to be taken seriously. In 1998 he succeeded in having ailing former Chilean dictator Augusto Pinochet held under house arrest for 18 months in England, where Pinochet had gone for medical treatment, while Garzon sought his extradition for crimes against humanity. The British would have extradited him too except that he was finally deemed too sick and frail and thus allowed to return to Chile.
These nuisance lawsuits trivialize war crimes. The ICC recently issued an arrest warrant for Sudanese strongman Omar al-Bashir but he travels freely in Africa and the Mideast because no Arab or African country will arrest him.
The Bush administration's interrogations may well have been illegal but the momentary discomfort of Khalid Sheikh Mohammed, who has admitted to masterminding the deaths of over 3,000 Americans, hardly rises to the level of Bashir's responsibility for the deaths of tens of thousands in Darfur.
The international criminal laws are intended for nations that are unable or unwilling to enforce their own laws against war crimes. The United States is a democracy, founded on the rule of law, and we are fully capable of enforcing those laws.
The United States went through something like this in 2003 when Belgium enacted a universal competence law and its courts were suddenly hit by suits seeking the arrest of President George W. Bush, Defense Secretary Donald Rumsfeld, Gen. Tommy Franks, Henry Kissinger and assorted other American villains of the European left. The U.S. threatened to pull NATO headquarters out of Belgium on the grounds that we couldn't have our military officers and diplomats traveling to and from Brussels if they were liable to be arrested.
The Obama administration should be similarly forceful with this latest intrusion into our sovereignty.
(Distributed by Scripps Howard News Service, http://www.scrippsnews.com)
Fact-Checking?
It's very hard to take seriously anyone who doesn't know that the term is "universal jurisdiction" and not "universal competence." But it is certainly helpful to know that you do not actually research your editorials before you write them.
And for the record, the second clause of your first sentence is a complete non-sequitur -- and another indication that you have no idea what you're writing about. The ICC is based on traditional principles of territorial and active-nationality jurisdiction. It does not make use of "universal competence."
Kevin Jon Heller
Senior Lecturer
University of Melbourne School of Law
More Fact-Checking
Oh, and by the way, the US is a signatory to the Rome Statute. It simply hasn't ratified it. Look it up -- the relevant information is in something called "books." You might want to try reading one sometime.
U.S. Not a democracy
The author got it wrong -- with the heart in the right place -- however ignorance is harmful. The US is a Constitutional Republic, founded on natural (or Gods) law. Nowhere in the Constitution nor Bill of Rights is "Democracy" mentioned. The Founding Fathers knew better. Democracy is mob rule, uncivil and pretext to tyranny, as Germany vividly demonstrated with their elected Fuehrer. Democracy means: 5 foxes and for hens decide what's for dinner.
Best to turn off your TV and educate yourself from non-state manipulated information sources before becoming an unwitting tool to the global fascist state (New World Order).
A badly written article
I am almost baffled by where to begin a critique of this incredibly badly done piece. I agree with the above posts pointing out obvious problems such as the signatory issue, but I won't repeat the rest.
The Torture Convention (which the US pioneered) includes an obligation on all states to either prosecute or extradite individuals for prosecution for torture. The US has signed and ratified this treaty! The US is also not prosecuting cases, even where the officials admitted (!) they committed torture. Therefore, under the Convention other countries MUST prosecute and the US MUST extradite those persons for prosecution (or prosecute them itself). How is this far fetched?
By the way, the ICC does not have jurisdiction to hear Torture Convention cases.
I also find it interesting that the author essentially argues that these cases of torture are trivial compared to the case of Bashir. Yes, Bashir should be held to account, but I fail to see how one alleged crime by one person has any bearing on whether another alleged crime by another person should be prosecuted. So if one person kills 1 person, we should not prosecute him because someone else killed a million? I don't think we value human suffering compratively. The author clearly concedes that the acts "may well have been illegal"! If a crime was committed, then the person should be prosecuted. End of story.
In any event, even if this comparison was an accurate way to go about criminal law, it is also weak on another ground. The crime alleged is a crime that the US fought tooth and nail to have codified at the international level! Surely that argues in favor of prosecution.
Lastly, international criminal law is not just to rein in states that are unable or unwilling to prosecute. That is a standard for measure of the ICC, meant to limit the ICC's jurisdiction. The Torture Convention has no such limitation - just the obligation to prosecute or extradite.
Even if it was the case that this was about states that are unable or unwilling to prosecute, the author's argument that the US is a "democracy, founded on the rule of law, ... fully capable of enforcing those laws" has a further flaw. It is not capability that is the problem. No one doubts the US is capable of prosecution. It is that the US is just not doing it.
Let's not have the US in position of saying to the rest of the world that we will prosecute torture under universal jurisdiction when it involves you, but not us. We are far better than that kind of hypocrisy. The greatness of the US is that it stands for rule of law - no special privileges.