Global Policy Forum

By Peter Weiss*

On the morning of November 14, 2006, a 220 page complaint (without appendices) was sent from the Berlin office of Wolfgang Kaleck a noted German human rights lawyer, to that of the German General Prosecutor, Monika Harms, in Karlsruhe. It was filed on behalf of the New York based Center for Constitutional Rights (CCR), the Paris based International Human Rights Federation (FIDH), the Berlin based Republican Lawyers Association (RAV) and over 40 other human rights associations and activists from around the world.

In addition to Donald Rumsfeld, the outgoing US Secretary of Defense, the complaint named as defendants former CIA Director George Tenet, Undersecretary of Defense Stephen Cambone, four generals, two colonels and five lawyers, including Alberto Gonzalez, the present Attorney General of the United States. The plaintiffs are 12 torture victims, 11 "graduates" of Abu Ghraib and one current Guantanamo detainee. The charge is ordering, failing to prevent and aiding and abetting war crimes.

The case is the latest in a series of "universal jurisdiction" prosecutions, the previously best known of which is the case brought in Spain against Augusto Pinochet, who would have been extradited from the UK to Spain following a decision by the House of Lords, but for the questionable decision of Jack Straw, then the Home Secretary, that Pinochet was not fit to stand trial for medical reasons.

This filing was Rumsfeld II. Rumsfeld I was filed two years earlier and was eventually dismissed on the perfectly ludicrous ground that there was no reason to believe that the accused would not be prosecuted in the United States. This is known as the principle of subsidiarity, or complementarity, in the relatively new field of universal jurisdiction, which states that a country without one or more contact points with the accused should not get involved unless a country with such contact points is unable or unwilling to prosecute. Such a nexus could be the nationality or residence of the accused, or of the victim, or the location of the crime or crimes alleged.

Why then, did we decide to throw ourselves "once more into the breach"? For a number of reasons. First, the amnesty provision of the Military Commissions Act signed into law by President Bush on October 17 ensures that Rumsfeld and the other civilians accused will not be prosecuted in the US, while the amnesty has no effect in Germany. Second, we have new plaintiffs and new witnesses, including former General Janis Karpinski, who was in charge of the Abu Ghraib prison when the order to "take off the gloves" came down from above. Third, we are this time suing the lawyers who, through their contorted and indefensible legal memos gave the green light for torture. Fourth, and most importantly, when the law goes off in a new direction, it needs a period of seasoning before judges and prosecutors take it seriously. This is particularly true when the new departure threatens the sense of impunity which leads mandarins to do things which ordinary mortals cannot get away with.

In fact, however, universal jurisdiction, the principle that certain crimes – now generally war crimes, crimes against humanity, genocide and aggression – are so heinous that those who commit them should be subject to prosecution and conviction anywhere on earth, is not all that new. Two thousand years ago Cicero wrote that pirates were hostis humani generis, enemies of all humanity. In 1980 Judge Kaufman (who sent the Rosenbergs to their death) said this in the Filartiga case, which held that a Paraguayan torturer could be sued in the United States: "The torturer has become, like the pirate and slave trader before him, hostis humani generis, an enemy of all mankind."

Another phrase that goes back to the Romans, who missed few tricks of the legal trade, is aut dedere aut judicare. It means, in free translation, "if you're not going to extradite this felon for trial you have to try him here." Like much of Roman law, this principle went into a long period of hibernation after the collapse of the Roman empire, but it came back to life at the beginning of the nineteenth century. European countries, starting with Austria, and later Latin American countries, began to negotiate treaties with other countries which defined certain crimes subject to the principle of aut dedere. The idea behind these treaties was the same as that behind universal jurisdiction: some crimes are so odious that those who commit them should not escape punishment; if the country of primary jurisdiction doesn't want to try them, they should be tried wherever they are found. In this sense, universal jurisdiction can be considered to be an extension throughout the whole world of a mechanism previously applicable only to countries bound by treaties between them.

In recent times, Belgium was the first country to enact a universal jurisdiction law as early as 1993. It was used, with exemplary non-discrimination, to bring cases against Ariel Sharon and Yasser Arafat, as well as a number of other VIPs, most of whom enjoyed immunity by virtue of their official positions. But when, in 2003, the roster of the accused began to include Norman Schwarzkopf, George H.W. Bush, Dick Cheney and Colin Powell for war crimes allegedly committed during the 1991 Gulf War and Tommy Franks for war crimes allegedly committed during the 2003 invasion of Iraq, Donald Rumsfeld – there you go again, Rummy – threatened to pull NATO headquarters out of Brussels if the Belgian legislature did not severely limit the jurisdictional provisions of the law, which it promptly did.

The next big development in universal jurisdiction was the adoption of the Rome Statute of the International Criminal Court in 1998. It entered into force in 2002 and counted 104 ratifying states as of November 2006. The legislative history of the Rome Statute indicates clearly that the ICC is not intended to be the exclusive venue for the trial of international crimes, but that all states are encouraged to adopt their own universal jurisdiction laws. Several, including Germany, have indeed done so. Others are bound, in principle, to apply universal jurisdiction in their courts by virtue of their adherence to the Geneva Conventions or the Convention Against Torture. The former require each state party – which at this point is every state in the world – to search for persons "alleged to have committed, or to have ordered to have committed" grave breaches of the Conventions and "to bring such persons, regardless of their nationality, before its own courts". The latter obliges every state party to detain a suspected torturer, investigate the alleged torture, no matter where committed, notify other States having certain contact points with the suspect and, depending on the results of a preliminary investigation, proceed to prosecute the suspect in its own courts if it decides against extradition. Not a lot of that is happening right now, partly because many states do not enforce their treaty obligations unless they are ratified by domestic legislation, partly because many prosecutors are ignorant about these obligations and partly because, even if they know about them, they have no intention of enforcing them.

Universal jurisdiction is the codification of the public revulsion against torture and other heinous crimes which are still par for the course in much of the world. Our press conference in Berlin on November 14 produced a storm of media attention throughout the world, including, inter alia, Kenya and Aruba, and most of it favorable. This is, as it should be, because, as Elihu Root, the Republican Wall Street lawyer and Secretary of State, wrote in 1907 in the first issue of the American Journal of International Law, "The increase of popular control over national conduct which marks the political development of our time makes it constantly more important that the great body of the people in each country should have a just conception of their international rights and duties."

In this famous passage from Act IV of King Henry V, Henry says:

But hark! What new alarum is this same? The French have reinforc'd their scattered men: Then every soldier kill his prisoners: Give the word through.

Which prompts Fluellen, the Welsh captain who provides some of the play's comic relief, to exclaim:

Kill the poys and the luggage! ‘tis expressly against the law of arms: ‘tis as arrant a piece of knavery, mark you now, as can be offer't; in your conscience now, is it not?

If we are serious about reining in the murderous instincts of kings, and secretaries of defense who behave like kings, we must cast our lot with the Fluellens of this world.

About the Author: Peter Weiss is a Vice-President of the Center for Constitutional Rights and of the International Federation of Human Rights (FIDH).