Thursday, August 6, 2009

To Prosecute or Not to Prosecute: the Weight on Eric Holder's Shoulders

Last month, we wrote about the United States government's notorious opposition to the International Criminal Court (ICC), an international tribunal that provides a judicial forum for victims to seek legal redress against states responsible for some of the gravest violations of international law, including genocide, crimes against humanity, and war crimes. This month, we tie together three recent events -- two of which involve the ICC -- that demonstrate the expanding role that international law plays in what were once considered to be U.S. domestic affairs.

Although the ICC was created in 2002, the United States has yet to sign and ratify the Rome Statute, the treaty that established the ICC. However, recent remarks attributed to Secretary of State Hillary Clinton and Attorney General Eric Holder evidence a shift in attitude, one that could mean greater U.S. support for the international tribunal specifically, and accountability for human rights more generally. But it could also mean greater diplomatic entanglements with other countries.

In response to a question she received from a student during a talk at the University of Nairobi in Kenya today, Secretary Clinton remarked that it is a "great regret" that the United States is not a party to the ICC, adding: "I think we could have worked out some of the challenges that are raised concerning our membership by our own government, but that has not yet come to pass." Somewhat optimistically, she noted that the United States has "supported the court and continue to do so."

Meanwhile, over in the Justice Department, it was recently reported that Attorney General Eric Holder is leaning towards appointing an independent prosecutor to investigate and, where warranted, prosecute former Bush administration officials responsible for detainee abuse and torture. What do these two events have in common? Secretary Clinton's comment about the United States' continuing support of the ICC could carry more weight than she intended, depending on how the Attorney General plays his cards.

While unrelated to Secretary Clinton's remarks, Attorney General Holder's ultimate decision regarding the appointment of an independent prosecutor could have a profound effect on the United States in the long run, both with respect to its relationship with the ICC and its diplomatic relations with other countries. To understand the interconnectedness of the two worlds that the Attorney General and Secretary of State inhabit, consider the following scenarios:

If the Attorney General declines to prosecute the allegations of serious human rights violations against former Bush administration officials, the ICC could, as a court of last resort, exercise jurisdiction over the case under limited circumstances. Jurisdiction would only extend to cases where, for instance, the state on whose territory the crime was committed refers the matter to the ICC Prosecutor. Although this possibility seems unlikely, there are a great number of countries in which abuses amounting war crimes or crimes against humanity were allegedly committed. Those countries include the following ICC member states:

Afghanistan (which became a party to the ICC on 10 Feb. 2003); Albania (31 Jan. 2003); Austria (28 Dec. 2000); Bosnia-Herzegovina (11 Apr. 2002); Bulgaria (11 Apr. 2002); Canada (7 July 2000); Croatia (21 May 2001); Cyprus (7 Mar. 2002); Denmark (21 June 2001); Estonia (30 Jan. 2002); Finland (29 Dec. 2000); France (9 June 2000); Germany (11 Dec. 2000); Greece (15 May 2002); Hungary (30 Nov. 2001); Iceland (25 May 2000); Ireland (11 Apr. 2002); Italy (26 July 1999); Jordan (11 Apr. 2002); Lithuania (12 May 2003); Malta (29 Nov. 2002); Netherlands (17 July 2001); Norway (16 Feb. 2000); Poland (12 Nov. 2001); Portugal (5 Feb. 2002); Romania (11 Apr. 2002); Spain (24 Oct. 2000); Sweden (28 June 2001); Switzerland (12 Oct. 2001); and the United Kingdom (4 Oct. 2001).

A complaint filed by any one of those 30 countries could bring former U.S. officials before the very court the Bush administration so desperately sought to marginalize.

ICC jurisdiction would also extend in cases where the Security Council refers a matter to the ICC Prosecutor (a less likely proposition, given the United States' influence on the Council). Under an equally unlikely scenario, the United States, as a non-party to the ICC, could accept the Court's jurisdiction only with respect to a particular crime in question. These scenarios are all, of course, purely hypothetical at this point. But the ICC is young: just because U.S. citizens have not been called to account before the Court does not mean that it can't happen.

The Attorney General's decision whether or not to appoint an independent prosecutor could also affect a criminal complaint currently pending before a Spanish court. In early May, human rights lawyers filed a complaint in Spain's National Court, alleging that six Bush administration officials (the "Bush six") created a legal framework for torture against U.S. detainees, in violation of international human rights law. The Spanish judge in charge of the complaint, Judge Eloy Velasco, said that before he decides whether to open his own investigation in Spain, he plans to ask the United States whether it intends to investigate such abuses. Attorney General Holder stated his intent to cooperate with whatever investigation might take place in Spain.

Under the principle of universal jurisdiction, a foreign country can exercise criminal jurisdiction over a case involving the commission of serious human rights crimes by U.S. citizens only if the U.S. government refuses, or fails, to take action. Attorney General Holder's decision to appoint an independent prosecutor could, for that reason, thwart any efforts by other countries to seek accountability themselves.

Conversely, the Attorney General's decision not to prosecute former U.S. officials could also have serious consequences overseas, but for different reasons. The United States' refusal to prosecute serious human rights violations would open up the door for another state to prosecute those crimes under its universal jurisdiction statute. Judge Velasco, or any other foreign judge considering such a complaint, could then exercise universal jurisdiction over the case. Should any of the named defendants in the case travel to the country in which the complaint is being investigated, they risk arrest, trial, and punishment overseas. Even if they step foot in a country other than the one in which the complaint was filed, they could still be extradited to the prosecuting state in order to stand trial.

The decision whether or not to appoint an independent prosecutor is no doubt a difficult one. Whatever choice he makes, Attorney General Eric Holder's decision is sure to make waves at home, across the Atlantic, and throughout history.

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