Independent Prosecutor MUST be Given Broad Mandate to Investigate Senior Officials Who Authorized Detainee Abuse

As we reported last week, Attorney General Eric Holder is leaning towards appointing an independent prosecutor to investigate detainee abuse committed during the Bush administration. Sources close to Holder recently said that the scope of any independent investigation is likely to be limited, focusing only on CIA interrogators whose actions exceeded the broad rules set by the former administration.

In response to this news, Human Rights USA, along with a number of other human and civil rights groups, have called for the Attorney General to broaden the scope of the investigation to include senior government officials responsible for directing, approving, or authorizing the use of such techniques.

Since 2004, Human Rights USA has been calling for the appointment of an independent prosecutor to investigate senior officials' involvement in detainee abuse and the extraordinary rendition program.

Read our full Press Release below (also available here).

Press Release

August 13, 2009

Human Rights USA Calls for Appointment of Independent Prosecutor to Investigate Full Scope of Crimes Committed by Former Administration Officials

Sources close to the Attorney General claim that he is close to making a decision on the appointment of an independent prosecutor. But, according to these sources, rather than seek an investigation into the full range of crimes committed by former administration officials, Holder is only considering cases in which CIA interrogators exceeded the techniques approved by administration attorneys. That news is discouraging.

By now, it is apparent that lawyers for the Bush administration wrote legal memoranda approving techniques that clearly violate the Geneva Conventions and U.S. laws. To investigate only the CIA interrogators who exceeded the broad rules set by the administration is to repeat the faulty investigations conducted by the former administration.

The Bush administration was widely criticized for blaming widespread detainee abuse on a handful of “bad apples.” Despite the fact that more than 600 civilian and military personnel have been implicated in detainee abuse, investigations have yielded few prosecutions: less than 50 people have been held to account, all of them low-ranking military or civilian personnel. Even then, many of the punishments meted out have been mild relative to the crimes committed.

An investigation into crimes committed by low-level CIA interrogators is an attempt to again blame detainee abuse on just a few “bad apples.” This kind of limited investigation does not reach the heart of the problem: the administration authorized tactics that violated accepted standards of domestic and international law.

The Attorney General must appoint an independent prosecutor to investigate those who authorized and approved these abuses, not only those who committed them.

To ensure that an investigation is not hampered by artificial limitations imposed for political reasons, the independent prosecutor must be given: a broad mandate to conduct an investigation into the origins of the detainee abuse program; wide latitude to pursue any prosecutions deemed necessary as a result of the investigation; freedom to operate outside the day-to-day control of the Justice Department; sufficient funding to carry out the mandate; and ample time, with possibility for extension, to conduct the investigation.

Attorney General Holder must not allow former administration officials to enjoy impunity for their crimes. To do so would be to condone serious transgressions of some of the most basic and fundamental human rights protections our laws afford. Investigating and prosecuting these abuses affords justice to the victims and their families, deter future administrations from committing these crimes, and send a message to the rest of the world that America is a country of laws. In short, Attorney General Eric Holder must put “justice” back in the Justice Department.

I SEE WHAT? A Discussion of the International Court of Justice (ICJ) and a quick look at the International Criminal Court (ICC)

In recent postings, we have discussed the International Criminal Court (ICC), both in the context of the United States' opposition to the Court and of Attorney General Holder's pending decision regarding the appointment of an independent prosecutor. In response, some of our readers have asked about the difference between the ICC and the International Court of Justice (ICJ). From a city where there seem to be more acronyms than people (especially in August), we bring you a discussion of these two courts...

In October 1943, in the midst of a devastating world war, several States spoke out for the creation of a mechanism capable of ensuring the peaceful settlement of State disputes. The United States was among the leaders of this movement and, together with China, the USSR, and the United Kingdom, issued a declaration urging the prompt establishment of “a general international organization, based on the principle of the sovereign equality” to maintain “international peace and security.” To that end, in 1945, a committee of jurists, chaired by American judge G. H. Hackworth, began to draft the statute of what would become the International Court of Justice (ICJ).

Many Americans are accustomed to attitudes of national isolationism or exceptionalism, but a look at our not-so-distant history reveals we once took a very different approach to international issues. There was indeed a time when the United States was progressive in its view of international law; in fact, the United States was once a vanguard for ensuring international accountability and the building and strengthening of international institutions.

Sadly, not quite forty years later, in 1984, the United States withdrew itself from the compulsory jurisdiction of the ICJ – a court it helped create. (“Compulsory jurisdiction” means that if a dispute involving the US was submitted to the Court, the United States would be required to subject itself to the Court's authority.) In 2005, the United States terminated its acceptance of the Court’s jurisdiction over disputes arising under the Vienna Convention on Consular Relations, a treaty that specifically named the ICJ as the venue for settling such cases.

This blog takes a look at the nature of the ICJ, the United States’ history with the Court, and the implications of our shifting stance with this international body.

What is the International Court of Justice?

The ICJ is the primary judicial organ of the United Nations (U.N.) and has been functioning in this capacity since 1946. The authority to establish the Court is found in Chapter VI of the U.N. Charter on the Pacific Settlement of Disputes, which lists judicial settlement as one of the means suggested to peacefully resolve disagreements between States. [1] (In other words, make complaints, not war.) The Court is only concerned with resolving matters between governments; individuals or other private entities cannot file cases with the ICJ. A “contentious case” before the Court may look like this: Two coast countries, State A and neighboring State B, cannot agree about where to mark the border of the continental shelf (the shallow landmass that extends into the sea), so bring the case before the ICJ to resolve.

Notably, the Court’s jurisdiction over disputes between states exists only on the basis of consent, which means that each State makes the decision regarding the extent to which it will submit to the Court’s authority. Nearly 70 States (or 1/3 of U.N. Member States) recognize the jurisdiction of the Court as compulsory, which, as mentioned above, allows that State to initiate proceedings with the Court, but also requires that State to appear before the Court should proceedings be initiated against it by one or more other States.

States that have not agreed to compulsory jurisdiction can still come before the Court in two ways 1) as signatories to a treaty that specifically names the ICJ as the venue to settle disputes, (approximately 300 treaties refer to the Court in settling disputes); and 2) on a case-by-case basis. Finally, as a court of “dual jurisdiction,” the ICJ not only has the authority to decide contentious cases between States, but may also provide advisory opinions on legal questions at the request of the organs of the U.N. or other specialized agencies.

So why did we need the ICC?

As you may recall from an earlier post, in 2002, the international community established the International Criminal Court – a venue to prosecute individuals responsible for the gravest violations of international law: genocide, crimes against humanity, and war crimes. Unlike the ICJ, which handles disputes between States, the ICC handles cases against individuals and offers recourse to the victims of their heinous crimes. The ICC addressed a significant gap in international accountability by allowing individual victims to assert their human rights, often against leaders of their own State. While the ICC has successfully ended impunity for some of the most serious human rights abuses in recent history, its effectiveness has been weakened by the United States’ refusal to become a party.

The United States and the ICJ

As a founding member of the ICJ, the United States accepted compulsory jurisdiction of the ICJ in 1946. In the next thirty-eight years, the United States was a party to ten cases, in which the Court facilitated the peaceful resolution of disputes, as well as clarified Treaty obligations and principles of international law. However, in 1984, in a dispute between Nicaragua and the United States, the Court held that the United States had violated obligations under the United States-Nicaragua Friendship, Commerce and Navigation Treaty by supporting and aiding military and paramilitary activities in and against Nicaragua.[2] In response to this judgment, the United States withdrew from the case and terminated its acceptance of compulsory jurisdiction.[3] This defiant response to the Court and international community in the mid-80s set the United States on the path to exceptionalism.

At that time, the United States still accepted jurisdiction on a case-by-case basis and as a party to Treaties naming the ICJ as the venue to settle disputes. However, in 1999, another unfavorable judgment planted the seed of complete separation. Under the Optional Protocol to the Vienna Convention on Consular Relations, any alleged violation of the Convention would be resolved by the ICJ. The Protocol requires signatories to submit to the jurisdiction of the ICJ, and allows the Court to “make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad.”

In 1999, under the auspices of the Convention, Germany sought to halt the imminent execution of Walter LaGrand, a German national being held in the US. In response, the ICJ issued a provisional measure calling on the United States to ensure LaGrand’s death sentence was not carried out, but LaGrand was executed the same day. Two years later, Germany asserted that the United States had 1) violated its legal obligation under the Vienna Convention to give consular officers access to imprisoned nationals; and 2) failed to comply with the ICJ’s provisional measure.

The ICJ found in Germany’s favor, ruling: 1) the United States violated the Convention by not informing the German consulate of the imprisonment and subsequent sentence of LaGrand and his brother (who had been executed for the same crime before Germany made its initial request to the ICJ in 1999); and 2) the provisional measure of the ICJ was binding on the U.S. government. Three years later, after a similar case in which the ICJ ordered the United States to review the convictions of 51 Mexicans who had been sentenced to death without being informed of their right to consular assistance, the United States withdrew from the Optional Protocol. Any guesses who proposed the Protocol in 1963? The United States.

Conclusion

Last March, the U.S. Supreme Court addressed the ICJ’s aforementioned “order to review” regarding the 51 Mexicans sentenced to death in the case Medellin v. Texas. In 2004, President Bush had cooperated with this ruling and ordered trial revisions. However, most courts, including a court in Texas that had sentenced convicted murderer Jose Ernesto Medellin, did not comply with Bush’s instruction. In reviewing the lower court’s “disobedience,” the Supreme Court ruled in favor of Texas and held that “neither (the ICJ) nor the president’s memorandum constitutes directly enforceable federal law that pre-empts state limitations.” [4]

The implications of the landmark Medellin judgment are felt far beyond the enforceability of Consular Treaties, and further erode the United States’ international reputation. A State’s refusal to respect its decisions compromises the ICJ’s ability to function effectively as a forum for peaceful resolution on the international stage. Sixty years ago, the United States was proudly at the center of that stage. Unfortunately, much has changed in a few decades. While most States throughout the world recognize the value and legitimacy of international law, U.S. indifference (at best) and hostility (at worst) to the ICJ and similar international institutions threatens to undermine the very system the United States helped create.

By Nadia Ben-Youssef, Legal Intern, International Justice Project

[1] U.N. Charter. Chapter VI (Art. 33).

[2] Nicaragua v. United States, 1984 I.C.J.Rep. 169 (Order of May 10).

[3] Morrison, Fred L. (January 1987). "Legal Issues in the Nicaragua Opinion”, 81 Am. J. Int'l L. 160, 162.

[4] See Medellin v. Texas, 128 S.Ct. 1346, 1353 (2008).

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.

POSTPONED: "Torture: Too High a Cost"

UPDATE: Due to unforeseen circumstances, this event has been postponed until September. We will re-post the event details when a new date is confirmed. We apologize for the inconvenience.

Human Rights USA, in collaboration with Amnesty International-American University chapter and the United Nations Association-National Capital Area, is proud to present a film screening of "Torture on Trial," followed by a panel event on the damaging and costly impact of torture committed during the 'war on terror,' the harmful effects on victims and their families, and the need for accountability.

Our panel features three prominent D.C.-area human rights advocates:

-Harold Nelson, Torture Abolition Support and Survivors Coalition

-Tom Parker, Amnesty International USA

-Shaikh Shaker El-Sayed, Universal Justice Foundation

The panel will be moderated by Colleen Costello, attorney for the Human Rights & Anti-Terrorism Project at Human Rights USA.

Please join us! *Food and refreshments will be provided*

ROAD TO RATIFICATION: The Convention on the Rights of Persons with Disabilities

Today we start a new series bringing you the latest news and insights about the human rights treaties the U.S. has, and hasn't yet, ratified.

You may have heard last week that U.S. Ambassador Susan Rice signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD). By signing the treaty, Ambassador Rice added the U.S. to the list of141 countries that recognize the fundamental, inherent rights of persons with disabilities. The Convention promotes, protects and ensures “the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities…” and promotes “respect for their inherent dignity.”

But signing the CRPD was important for other reasons too. As Human Rights Watch noted, this is a major policy shift. After years of scoffing at multi-lateral treaty agreements, signing onto the CRPD signals a return to U.S. engagement in international human rights issues. The State Department's official blog acknowledged this change, trumpeting that at the signing in New York, "there was palpable excitement in the air — the United States is back to fully participate on human rights issues on the international stage."

Signing the CRPD also opens the possibility that the administration may take a more holistic view of human rights than the U.S. has in the past. President Obama called the Convention the first human rights treaty of the 21st century, and for good reason. The treaty embraces a unified vision of civil, political, economic, social, and cultural rights as interconnected. Compare this to some of the core human rights treaties developed over the last 60 years. In the past, some of the basic concepts of human rights -- that they are indivisible and interdependent -- got lost in the Cold War. As a result, we ended up with two treaties implementing the Universal Declaration of Human Rights: one on civil and political rights, another on economic, social, and cultural rights. The U.S. has ratified the International Covenant on Civil and Political Rights (ICCPR). On the other hand, the U.S. signed the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1977, but has never ratified it. Is the Obama Administration moving toward a more integrated approach to protecting human rights? We don't know yet, but signing onto the CRPD provides a glimmer of hope.

Signing is only the first step. Full status as a member of the treaty agreement requires ratification by the Senate. The White House has not yet indicated when the Senate might take up the CRPD, but according to Human Rights Watch, the State Department (which will send the treaty to the Senate) has the CRPD "under active review." Two other treaties that the U.S. has signed but not ratified may also come before the Senate soon: the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

For more information on these treaties, and others the U.S. has signed but not ratified, Human Rights Watch has this helpful guide. Over at IntLawGrrls, Hope Lewis wrote about the significance of joining the CRPD and about treaty ratification more generally.

Watch the Human Rights USA blog for updates on national efforts to ratify these treaties. Over the coming months, we will post details about each of the conventions, the legal implications of ratifying human rights treaties, and how the treaties play out in the courtroom when we bring legal actions to enforce the rights the treaties are intended to protect.

IN THE NEWS: Gender Equality

By Piper Hendricks, International Justice Project Director

When things happen in sets of 3, I tend to take notice. So when, in the past few days, I came across three matters addressing the human rights of women, I thought I'd pass word along to our readers:

1) Former U.S. President Jimmy Carter wrote a thought-provoking piece for The Age, an Australian site, in which he discusses how often religions are twisted to justify disparate treatment of women. (And I use the word "disparate" to keep this a G-rated post.) You can find his article here.

2) Exhibit A to support Carter's article: Sudanese female journalist Lubna Hussein has taken a brave stand for women's rights in one of Africa's most conservative nations. Her crime? Wearing pants instead of a dress. What makes her even more amazing is that she was willing to step down from her UN post (and thus waive immunity) in order to challenge the public dress code law at issue. Amazing. To give you a sense of how "noble" the police are who enforce this law, I've excerpted a bit of a report from the UK:

Like many other women in the capital, Mrs Hussein fell foul of Sudan's Public Order Police, hated groups of young puritans employed by the government to crack down on illegal drinkers of alcohol and women who, in their view, are insufficiently demure. Despite their claims of moral superiority, [the Police] have a reputation for dishonesty and for demanding sexual favours from women they arrest.

Click here to read the rest of the article.

3) The Center for Reproductive Rights issued "Defending Human Rights," its first fact-finding report on the United States. The report discusses the many challenges doctors and clinics providing abortions face and recognizes that these providers are human rights defenders who persevere despite threats to their personal safety, their reputations, and their economic well-being. The report is available on CRR's website.