A few days ago, Human Rights USA was part of a loud chorus of international anti-torture advocates urging Swiss government officials to take swift action if former President Bush went through with announced plans to visit Switzerland. We are gratified that the calls for Switzerland to uphold its international obligations seem to have prompted President Bush to call off the trip. (Anyone who says international human rights law doesn't have any teeth hasn't been forced to cancel their travel plans for fear of indictment.)
The law is clear: no one, not even former heads of state, enjoys immunity from prosecution for torture. The Pinochet Precedent took that principle from theory to practice. As quoted in an article in The Guardian:
"Nobody – from those who administered the practices to those at the top of the chain of command – is under a shield of absolute immunity for the practices of secret detention, extraordinary rendition and torture," said Martin Scheinin, UN special rapporteur on human rights and professor of public international law at the European University Institute. "Legally this case is quite clear. Bush does not enjoy immunity as a former head of state, and he has command responsibility for the decisions that were taken."
How did we get to the point that a former U.S. president is not free to travel the world for fear of prosecution and protests? More importantly, how do we prevent this from happening again? Here at Human Rights USA, we believe that fully implementing the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is a good place to start. The Convention requires governments to fully investigate allegations of torture, hold perpetrators accountable, and provide redress to victims. When the U.S. government fails to uphold its obligations, other countries, like Switzerland, are obliged to step in.
British human rights lawyer Geoffrey Robertson was quoted in the British press this week as saying Bush's admission could leave him open to arrest and possible prosecution if he visits countries that have ratified the UN torture convention.
"George W Bush has confessed to ordering waterboarding, which in the view of almost all experts clearly passes the severe pain threshold in the definition of torture in international law," Robertson said. "[H]e is an ex-head of state so he is not entitled to immunity from arrest and trial."
Robertson added: "So his retirement travel plans may well be circumscribed, although he never ventured abroad before he became President, and no doubt made the statements in his book having been advised of this potential consequence."
On Friday, a U.S. District Court Judge sentenced an Arlington, Texas couple for holding their domestic worker in involuntary servitude for more than eight years. The couple will serve prison time and pay over $300,000 in fines for conspiracy to commit forced labor, forced labor, conspiracy to harbor an alien for financial gain, harboring an alien for financial gain, document servitude and false statements to an FBI agent.
According to a Department of Justice press release, the victim, "a widowed mother of six children, including a chronically ill child, was recruited in Nigeria with promises that her children would be cared for in exchange for her work in the United States. Upon arrival in the United States, the defendants confiscated the victim’s passport and never returned it. For more than eight years, the victim cared for the defendants’ children day and night, and cooked and cleaned with no days off. The defendants did not allow the victim out unsupervised; prohibited her from speaking with her children on the phone unsupervised; and forbid her to make friends or converse with the defendants’ friends. According to evidence at trial, the victim also testified that Emmanuel Nnaji also sexually assaulted her. Although the victim was promised that her family would be cared for, her family received a total of about $300 over the eight years. When the victim asked to return to Nigeria, the defendants refused. The victim was ultimately rescued with the assistance of a Catholic priest."
We at Human Rights USA wish these cases were unusual -- but sadly, they are not. So it is encouraging to see the Department of Justice aggressively prosecuting these crimes. We agree with Thomas E. Perez, Assistant Attorney General for the Justice Department’s Civil Rights Division: "The involuntary servitude and mistreatment that this victim endured is intolerable in a nation founded on freedom and individual rights."
On Tuesday, October 6, 2009, at 10 am, the Senate Committee on the Judiciary Subcommittee on Human Rights and the Law will hold its second ever hearing addressing how to hold human rights violators found in the United States accountable for their crimes. The Subcommittee will focus on important developments in this area of law, including the successful prosecution and conviction of Charles ("Chuckie") Taylor, Jr. We encourage our readers to attend the hearing or tune in via webcast for this important discussion. You can read Human Rights USA's submission to this hearing here.
On August 28, 2009, Colleen Costello joined Press TV’s American Dream program to talk about the recently released documents CIA documents and Attorney General Eric Holder’s appointment of a special prosecutor to investigate abuses allegedly committed by CIA and private contractor interrogators.
Ms. Costello, an attorney for the Human Rights & Anti-Terrorism Project at Human Rights USA, discussed the violations of U.S. and international law that were documented in the recently-released 2004 CIA Inspector General’s report, which highlighted, among other things, the fact that interrogators had threatened detainees with death and personal injury, and had threatened the rape and murder of detainees’ family members.
“What has been described so far in this recently released version of the Inspector General’s report . . . is really shocking. First of all, threatening a detainee with a power drill, with a gun – it’s unlawful under international and U.S. law. . . . [I]t’s great that the Attorney General is looking to investigate exactly what happened and who is responsible. . . .”
Turning to the Attorney General’s decision to investigate these abuses, Ms. Costello emphasized the need for a full investigation of those responsible for authorizing detainee abuses – something that Human Rights USA has consistently called for over the past several years.
“Americans have a right to know what their government officials are doing in their name and on their behalf. . . . What we’re doing now, we’re looking at maybe a dozen or so interrogators from the CIA and private contractors, and we’re trying to determine whether the abuses they committed exceeded the already very broad limits set by the former administration’s Justice Department. Now, that’s ok, that’s a step, but . . . what we need to do is figure out who was responsible for authorizing even those very broad limits set by the former administration. . . . [I]f you have the former President admitting, and the former Vice President admitting that they authorized the use of waterboarding, . . . that certainly warrants an investigation.”
Watch the full program here:
American Dream is a production of Press TV, an Iranian international news network that broadcasts around the world.
On August 24, Attorney General Eric Holder named a special prosecutor to conduct a preliminary investigation into CIA interrogations that exceeded the already-broad list of techniques approved by Bush administration attorneys. Below, we address some of the most common questions raised by the Attorney General’s decision.
What did the Attorney General authorize? Attorney General Eric Holder expanded the scope of an investigation already being undertaken by special prosecutor John Durham. The expanded scope of Mr. Durham’s mandate will allow him to conduct a preliminary investigation into the dozen or so cases of detainee interrogation that the DOJ previously declined to prosecute. This preliminary review will allow him to determine whether a sufficient basis exists for a more thorough investigation into these cases. If a full investigation is deemed necessary, it is possible – but not guaranteed – that some CIA interrogators could be prosecuted.
What was the reason for the Attorney General’s decision to appoint a special prosecutor? The Attorney General based his decision on two reports: the Department of Justice’s Office of Professional Responsibility (OPR) review of detainee interrogations and the 2004 CIA Inspector General’s (OIG) report on detainee interrogations.
The OPR report reviewed DOJ Office of Legal Counsel (OLC) memos written by former administration attorneys who attempted justify the use of torture and other abusive interrogation tactics. The OPR report also examined the DOJ’s decision, under the Bush administration, to decline prosecution in certain detainee abuse cases involving CIA interrogators and recommended that the DOJ reexamine those decisions not to prosecute. The CIA OIG report enumerates several instances of detainee abuse committed by CIA interrogators and private contractors, including waterboarding, mock executions, and improvised interrogation techniques, such as pointing a weapon at a detainee.
Based on the OPR’s recommendation and the evidence of abuse outlined in the CIA OIG report, the Attorney General determined that further investigation was required. He asked Mr. Durham to broaden the scope of his investigation to include the detainee abuse cases that the DOJ previously decided not to prosecute.
Were torture and other human rights abuses actually committed during the “war on terror”? Yes. Numerous internal U.S. agency, U.S. congressional, foreign legislative, media, and independent non-governmental reports have repeatedly confirmed that detainees held by U.S. forces at Guantánamo, bases in Iraq and Afghanistan, and at secret CIA “black sites” in various locations around the world suffered grave human rights abuses. Significantly, former administration officials have publicly confirmed the use of torture and other forms of human rights abuse against detainees. Among the abuses reported are:
Forced disappearances
Waterboarding
Beatings
Deprivation of sanitary conditions
Deprivation of basic necessities
Rape
Stress positions
Sensory deprivation
Sensory bombardment
Sleep deprivation
Prolonged isolation
Confinement in a box
Prolonged use of handcuffs and shackles
Exposure to extreme hot or cold
Serious bodily injury
Deprivation or restricted provision of solid food
Threats of physical violence, rape, and death against detainees
Threats of physical violence, rape, and murder against detainees’ family members
Denial of medical care
Exploitation of fears
Sexual, religious, cultural, or other forms of degrading treatment
Forced disappearances
Murder
Sexual assault or abuse
Mutilation or maiming
Who committed these abuses? Individuals working for the CIA, the Defense Department, and those agencies’ private contractors were all directly involved in the abuse of detainees. However, responsibility for detainee abuse does not stop there. Former President Bush and former Vice President Cheney have both publicly admitted that they approved of and authorized the use of waterboarding – a form of torture – in violation of U.S. and international law. Other high-ranking administration officials from the DOJ, DOD, CIA, and DOS were also complicit in the development and implementation of the detainee interrogation program.
Why prosecute torture and other human rights abuses? The United States is party to a number of international treaties that prohibit torture and cruel, inhuman, and degrading treatment, including the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, both of which are also codified under U.S. federal criminal law, and the International Covenant on Civil and Political Rights. Torture is universally prohibited under international law, and may not be justified under any circumstances, including during times of war or for purposes of national security.
Criminal accountability is a fundamental element of human rights protection. Without it, abusers enjoy impunity for their crimes, an undesirable result in any democratic system. The necessity of criminal accountability for human rights crimes is reflected in U.S. domestic law as well as several binding international treaties to which the United States is a party, including the Convention Against Torture and its domestic implementing legislation, 18 U.S.C. § 2340, and the Geneva Conventions and their implementing legislation, 18 U.S.C. § 2441 (the War Crimes Act).
As with other crimes, prosecuting human rights violations accomplishes three primary goals: deterrence, punishment, and justice. The enactment and enforcement of criminal law serves as a deterrent to would-be violators, putting them on notice that they will be held to account for their wrongdoing. By punishing criminals, we incapacitate abusers so that they cannot continue to violate the law, and we ensure that no person remains above the law. Finally, under federal law, crime victims are entitled to certain rights, including the right to participate in criminal proceedings, confer with the government about the case, and the right to full and timely restitution. The prosecution of their abusers gives victims a sense of closure and finality to their suffering.
In the words of Justice Brandeis, “[i]f the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The public has a strong interest in ensuring that government officials conduct business on behalf of the electorate in an open, honest, and lawful manner. When government leaders violate the law, the public has an interest in ensuring that wrongdoing by public officials be exposed and that criminal law be fairly and expeditiously administered.
Will a criminal investigation into interrogation practices limit our national security by causing interrogators to shy away from certain techniques? This concern involves two issues: the efficacy of harsh interrogation techniques and the rules under which interrogators are expected to operate.
Harsh interrogation techniques such as torture are unlawful and possess little, if any, long-term value. Career interrogators attest that harsh interrogation tactics authorized by the former administration were ineffective, likely doing more harm than good to our national security. The coercive techniques used on detainees during the “war on terror” were modeled after those used by Communist China on American soldiers during the Korean War. According to a government study conducted after the war, the techniques used by China were meant to elicit false confessions. In other words, the point of the interrogation techniques was not to elicit truthful confessions, but rather, any confession that the Chinese government could use to support its anti-America propaganda.
Interrogation experts believe that the most effective interrogations are those that do not involve the use of harsh techniques. The FBI has demonstrated its longstanding success at interrogating terror suspects using “rapport-building” techniques, which are non-coercive and non-abusive in nature, unlike many of the tactics approved by former administration officials.
Interrogators need clear rules, not vague legal memos or shifting policies, to guide them. Part of the problem created by the former administration was its inconsistent policy on detainee interrogations. During the “war on terror,” the rules for interrogation changed several times, and could differ depending on whether an interrogator was working in Guantanamo, Iraq, Afghanistan, or at a secret CIA “black site.” This constant shifting meant that interrogators were unsure of the rules that applied to them, or if any applied at all.
As the recently-released CIA OIG report determined, under the former administration’s policies, interrogators were aware that their actions likely violated the law and were concerned that they would be “vulnerable to legal action in the United States or abroad . . . ” (p. 101), or that CIA officers would one day “wind up on some ‘wanted list’ to appear before the World Court for war crimes . . . .” (p. 94). Investigating violations of U.S. domestic and international law, and punishing those responsible, ensures that future interrogators will have clear guidance of what is, and is not, permitted under the law.
Why do we want to “look back” on the past? The criminal justice system is, inherently, retrospective in nature. One of the key goals of criminal justice is to deter people from violating the law. The only way our laws have power is if we enforce them, which requires investigating and prosecuting crimes that have occurred. Unless administration officials responsible for directing or authorizing the use of torture and other human rights abuses are held to account, future administrations may engage in the same unlawful behavior, without fear of repercussions.
Wouldn’t a criminal investigation distract the public from other important issues? There is no excuse to turn a blind eye to transgressions committed by officials entrusted by the American people to lawfully serve them. Enforcement of the law is a non-negotiable issue. The best way for the current administration to address, and ultimately, put to rest, the torture issue is to appoint a special counsel to fully investigate the scope of the abuses committed. If no one violated the law, no one will be punished. Conversely, if any are found to have violated the law, they should be held to account.
What authority does the Special Prosecutor have to conduct his preliminary investigation? Special prosecutor Durham was originally appointed by former Attorney General Michael Mukasey to investigate the CIA’s destruction of detainee interrogation tapes. At the time of his appointment, Mr. Durham was an Assistant U.S. Attorney for the District of Connecticut, which means that he was an employee of the Justice Department.
Under 28 U.S.C. § 509 et seq., the Attorney General may delegate any of his powers to a Justice Department employee, and may authorize the employee to conduct any legal proceeding that a U.S. Attorney is permitted to conduct. Under these procedures, the Attorney General often determines the scope of the special prosecutor’s mandate, may require the prosecutor to report directly to him, and may also limit the prosecutor’s ability to investigate related criminal matters that could arise during the course of his investigation.
Although Attorney General Holder has not yet explained the details of Mr. Durham’s mandate to investigate unlawful interrogations allegedly committed by CIA interrogators, the scope of Mr. Durham’s investigative authority appears to be limited. The preliminary investigation will focus only on approximately twelve detainee abuse cases, and Mr. Holder has not stated whether Mr. Durham has the flexibility to investigate any related criminal matters that arise during his investigation. For instance, although Mr. Durham will investigate whether certain CIA interrogators exceeded the rules set out by the DOJ’s Office of Legal Counsel, it seems he will not have the power to investigate whether those rules were consistent with U.S. domestic and international law.
Is the special prosecutor’s authority sufficient? Although Mr. Durham is a highly respected federal prosecutor who has been developed a reputation as a tough, impartial, and relentless prosecutor, the authority from which he derives his investigative powers is not sufficient to ensure a full or impartial investigation. While the selection of special prosecutor Durham permits the investigation of detainee abuse to move forward quickly, the decision does not ensure a complete investigation.
First, the Attorney General cannot escape the fact that the mandate for Mr. Durham’s investigation is unnecessarily limited. Mr. Holder should, therefore, appoint a Special Counsel, unaffiliated with the Justice Department, to conduct a more comprehensive investigation into the role played by former top-level government officials in the detainee abuse. The Attorney General derives the authority to appoint a Special Counsel from DOJ regulations, codified at 28 C.F.R. § 600.1 et seq., which allow him to appoint an attorney from outside the DOJ when the subject of investigation presents a conflict of interest for the DOJ and where the public interest requires it.
Every official – current or former – is entitled to a fair and impartial investigation, not tainted by accusations of partiality or bias. A Special Counsel will be able to independently, and without the same personal or professional constraints as the Attorney General, exercise prosecutorial discretion to decide whether charges should be brought against any of the individuals investigated. The appointment of Special Counsel under these circumstances would also allow the Attorney General to avoid any appearance of impropriety, should the Special Counsel decline to prosecute.
Moving forward, the Attorney General should allow Mr. Durham to complete his preliminary investigation, and if a full investigation is warranted, the Attorney General should appoint a Special Counsel – someone who comes from outside the DOJ – to carry forth a full investigation.
Human Rights USA is pleased to share news that Attorney General Holder has decided to appoint a prosecutor to investigate interrogations that may have violated U.S. obligations not to torture. For more on this story, read the coverage in The Washington Post and The Washington Times.
As we explained earlier this month, the Attorney General should ensure that the scope of the investigation includes senior government officials responsible for directing, approving, or authorizing the use of such techniques. At this time, the focus of the investigation appears to be too narrow to include all individuals responsible for the abuses committed during the last administration. As previously discussed on this blog, failure to fully investigate the abuses could have international repercussions for the United States.
Human Rights USA has closely followed the detainee abuse issue, and has called for accountability, for the past several years. We encourages our readers to check here for additional information over the coming days, weeks, and months. For a more complete take on the Attorney General's decision, please visit our website.
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 saidthat 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 civilrights 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.
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.
Following the First Liberian Civil War, Charles Ghankay Taylor was elected to the Liberian presidency on August 2, 1997. He garnered ninety-seven percent of the vote running on the campaign slogan "[h]e killed my ma, he killed my pa, but I will vote for him." A Libya-trained warlord and commander of the National Patriotic Front of Liberia(NPFL), Taylor and his troops terrorized civilians from 1997 to 2003 as he sought to retain control of Liberia's natural resources and forcibly ward off armed rebel groups such as Liberians United for Reconciliation and Democracy (LURD) and Movement for Democracy in Liberia (MODEL). By August 2003, rebels closed in on the capital city, Monrovia, and thousands of civilians were killed or forced to flee to neighboring countries. United Nations Mission in Liberia (UNMIL) forces soon intervened to implement a cease-fire and facilitate the signing of a comprehensive peace agreement between the warring factions. UNMIL escorted the parties to Accra, Ghana where negotiations ensued.
Meanwhile, the Special Court for Sierra Leone, a joint effort between the UN and Sierra Leone,[1] released Taylor's formerly-sealed indictment as he crossed the border into Ghana. Several months earlier, on March 7, 2003, the UN-backed Special Court had indicted Taylor on 17 counts of crimes against humanity and war crimes in violation of Article 3 and Protocol II of the Geneva Conventions. It is important to note that this indictment resulted from Taylor's role in the Sierra Leonean Civil War, notthe Liberian conflict. Charges included murder, sexual enslavement, rape, terrorist acts, cruel and inhumane treatment, collective punishment of civilians, conscripting child soldiers, and pillage. The UN later amended the indictment to 11 counts, but further charged Taylor with funding, arming, and training the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) of Sierra Leone, allegedly in exchange for a stake in the illicit diamond trade and political support. Leaders from these same rebel groups gained worldwidenotoriety for their brutal torture tactics, including decapitation, mass rape, and severing the hands and feet and other body parts of suspected dissidents. In 1997, they became the first parties to be convicted in an international court of conscripting child soldiers.
Facing international pressure from NGOs and heads of state alike, Taylor signed the pending peace agreement on August 11, 2003, stepped down as President, and fled to Nigeria, where he had been offered asylum by then-President Olusegun Obasanjo. On December 4th, the International Criminal Police Organization (INTERPOL) issued an international warrant for Taylor's arrest, but he continued to evade authorities for the next three years. During his disappearance, Taylor's counsel brought a motion to challenge the indictment based on sovereign immunity and extraterritoriality, which the Appeals Chamber of the Special Court dismissed on May 31, 2004. On March 29, 2006, Nigerian authorities apprehended Taylor and returned him to Monrovia upon orders from the newly-elected Liberian President, Ellen Johnson-Sirleaf. Taylor was then delivered into UN custody and transferred to Freetown, Sierra Leone to stand trial.
Taylor made his initial appearance at the Special Court on April 3, 2006, where he pled not-guilty to all charges. However, a UN Resolution determined that his presence in northwest Africa posed too great a threat to stability and peace in the region to continue the trial in Sierra Leone, and that no other African tribunal had the requisite space and security to host it. Thus, on June 30th, the Security Council ordered Taylor transferred to the International Criminal Court in the Hague, Netherlands. Despite the transfer of venue, the Special Court for Sierra Leone retains full jurisdiction over Taylor's case. Nearly one year later, on June 4, 2007, Brenda Hollis (Principal Attorney) delivered the Prosecution's opening statement. Taylor then delayed the proceedings by dismissing his counsel and asking the judge for an adjournment until new counsel could be retained. The trial resumed in January 2008, and for the next year the Prosecution introduced the testimony of 91 witnesses, including amputees, rape victims, and former child soldiers, many of whom requested partial face or voice distortion and closed sessions to ensure their safety. The Prosecution rested its case on February 7, 2009. Taylor's attorneys next filed a Motion for Judgment of Acquittal, which asked the judge to rule for Taylor because the evidence presented was insufficient to support a conviction. Presiding Judge Richard Lussick dismissed the motion on May 4, 2009, and scheduled a status conference for July 6th in anticipation of the Defense's opening statement.
At the conference, both Prosecution and Defense raised issues ranging from the trial schedule to the Prosecution's request that Taylor be denied contact with Defense Witnesses. Defense Counsel Courtaney Griffiths said he planned to begin opening arguments on July 13, 2009, but asked to push Taylor's testimony back one day to July 14th. Justice Lussick agreed, but warned Griffiths that the opening statement must not reach beyond the scope of the presented evidence. The most contentious issue was the 256 people listed as potential witnesses for the Defense. Hollis pointed out that this number was three times more than those called by the Prosecution, and that if they were allowed to testify, the trial would continue for 94 more weeks (4 years). Hollis deemed this time frame unacceptable, and Griffiths asserted that not all persons listed would testify, noting that the Prosecution itself had listed 300 witnesses before calling only 91 to the stand. Hollis then requested a list of core and back-up witnesses, and an order from Justice Lussick stating that the Defense must revise and clarify the background summaries of many defense witnesses. This request for a formal order was rejected by the court as unnecessary. Hollis further asserted that the summaries of three layperson witnesses—one who will frame the war as an ethnic conflict, one who will testify to the cause of death of a victim, and one who will contest the statements of the Prosecution's expert witness—imply that they are in fact expert witnesses. Justice Lussick ruled that the Defense could proceed, but that the witnesses would be prohibited under the Rules of Evidence and Procedure if the testimony suggests they are experts.
Sentencing would follow roughly one month after the verdict, with the appeals process ending six months later. Under a January 2002 agreement between Sierra Leone and the UN, Taylor cannot be sentenced to life in prison; however, Britain has volunteered to imprison Taylor for the anticipated 50-year sentence if he is convicted. [1]
by Ally Basak Russell, International Justice Project Legal Intern Summer 2009
[1] The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996. See Special Court for Sierra Leone: Home, http://www.sc-sl.org/ (last visited July 7, 2009).
In July 1998, world leaders convened to adopt the Rome Statute, the Treaty to create the first permanent International Criminal Court (ICC). The ICC would provide a forum to prosecute individuals responsible for the gravest violations of international law: genocide, crimes against humanity, and war crimes. When the final votes were tallied, the numbers reflected overwhelming international support -- 120 countries voted in favor of the Treaty, with just 7 in opposition. [1] The United States, along with China, Israel, Libya, Qatar, Yemen and Iraq, were the seven who voted “No.”
In the last eleven years, the United States has remained either staunchly opposed or profoundly skeptical of the ICC. This blog post takes a brief look at the United States government's apparently uneasy relationship with the ICC, followed by a discussion of three common misunderstandings of the nature of the Court. In short, the ICC allows individuals to assert their human rights against the power of the State, and the Court has had tremendous success in ending impunity for some of the 21st Century’s most serious abuses (click here for Chief Prosecutor Luis Moreno-Ocampo’s reflection). But even as other countries continue to ratify the Treaty (this week, Chile became the 109th State Party), the United States' resistance threatens both the legitimacy and effectiveness of the ICC. Unpacking the myths about the ICC reveals what membership to the Court really means for the United States, and why America’s support is so critical.
A History of Resistance
In the drafting stages of the Treaty, the US supported an arrangement under which the United Nations (UN) Security Council (of which the US is a permanent veto-holding member) would maintain control over the cases that the ICC pursued. Instead, the final form of the Treaty provides for an independent prosecutor and the UN Security Council has the ability to defer – not forego – an investigation. [2] However, the Treaty contains numerous mechanisms to guard against malicious prosecutions and other unwarranted investigations. Despite these safeguards, which are described in more detail below, the United States was unsatisfied with the final version of the Treaty. Thus, many were surprised when President Clinton signed the Treaty on the last possible day, December 31, 2000, in what is known as a midnight action.
The decision to sign demonstrated symbolic support, but, as Clinton simultaneously announced that he would not forward the Treaty to the Senate for ratification, his signing is remembered essentially as an empty political move. On April 11, 2002, the day that the Treaty reached the necessary sixty ratifications to enter into force, the Bush administration “unsigned” the United States, and thus removed any lingering indication of potential support. However, with President Obama indicating legitimate interest in the ICC, it is possible that the US government may be shifting its stance.
Susan E. Rice, U.S. Ambassador to the UN, noted in her first appearance before the UN Security Council that the ICC "looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda, and Darfur." Below we’ll discuss why an overt engagement by the United States in this “instrument of accountability” will only strengthen the global response to atrocities, and heighten respect for human rights around the world.
Myth #1 – If the US signed the Treaty, the ICC would prosecute Americans for politically-motivated reasons.
A chief public concern is that if the United States became a signatory to the Rome Statute, other countries would use the ICC as a tool to conduct politically-motivated investigations that would embarrass or undermine the authority of U.S. military and political officials. However, the Rome Statute has numerous safeguards to prevent frivolous or malicious prosecution.
First, before initiating an investigation, the Prosecutor needs the approval of a panel of impartial judges. These judges are nominated by State Parties to the ICC and elected by a 2/3 majority of the parties present (provided that an absolute majority of States Parties constitutes the quorum for voting) [3] and are chosen “from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.” [4] If judges or prosecutors do not live up to these high standards, the Rome Statute includes procedures for removal for abuse of authority or where impartiality is reasonably doubted. [5]
Second, the ICC can only investigate and prosecute cases of genocide, crimes against humanity and war crimes. Each of these three grounds for prosecution has very demanding standards (for example, genocide requires a specific intent to destroy a particular group, crimes against humanity must be “widespread” and “systematic,” and war crimes have very stringent contextual requirements). [6] The Office of the Prosecutor has received over 8137 communications since July 2002 from more than 130 countries, and yet has only proceeded with 4 investigations, dismissing the rest for failing to have “a reasonable basis to proceed.”
Finally, the UN Security Council – on which the United States plays a powerful role – has the ability to adopt a resolution that will defer a prosecution indefinitely. [7] The combination of these three factors informed the Chief Prosecutor’s decision not to move forward with an investigation of the highly political and controversial war in Iraq. The ICC would not have been able to prosecute U.S. or Iraqi officials, as those countries are not State Parties, but could have proceeded with an investigation of the UK, the United States' closest ally with a substantial presence in Iraq, and party to the ICC.
However, in response to the over 240 communications received regarding the situation, the Chief Prosecutor offered a thorough and reasoned analysis of why the case fell outside of the Court’s jurisdiction. (Read Chief Prosecutor Luis Moreno Ocampo’s letter here.) The ICC’s management of the situation in Iraq, one of the most contentious armed conflicts in the history of the Court, seems to speak directly the fear of wrongful prosecution. The decision taken by Prosecutor Ocampo reflects the efficacy of the safeguards within the Treaty, the respect of the Prosecutor for the rule of the law, and the substantial limits of the ICC’s authority.
Myth #2 – The ICC could bypass the American judicial system and haul our leaders and our soldiers off to the Netherlands.
Even if a case involving the United States did fall within the jurisdiction of the ICC – i.e., the US was a party to the ICC and the crime alleged was genocide, crime against humanity, or war crime -- the Court still does not have immediate authority to investigate and prosecute. It is important to remember that the ICC is a court of complementarity, or a court of last resort. That means that the ICC cannot consider prosecution until the State concerned has exhausted all of its judicial and legal resources.
Under the Rome Statute, in order for the ICC to act, the State’s national system must be unwilling or unable carry out its own genuine investigation and/or prosecution. [8] The threshold for ‘unwillingness’ and ‘inability’ is extremely high. To be ‘unable’ requires nothing less than massive disruption of a legal system (i.e., a natural disaster, debilitating civil war, or complete lack of unqualified or impartial judges). And to be ‘unwilling’ requires that a country take active steps to shield someone from responsibility for ICC crimes or otherwise obstruct justice. Making a good-faith decision not to prosecute does not mean that a country is unwilling to prosecute, and such a decision must be respected by the ICC. [9]
Myth #3 – There is nothing in it for the United States.
Given the unlikelihood of a case involving the United States - a stable democratic government with an established and well-respected judiciary - coming before the international tribunal, it may seem easy to dismiss the need for American participation in and support of the ICC. Some may question whether involvement in the ICC would be of any use to the United States. We must recognize that the United States' rejection of the Court has seriously weakened the ability of the international community to take an effective stand against the gravest of human rights abuses.
While the Court can function without the United States, the lack of backing (as a signatory or donor) undermines the credibility and sustainability of the institution, especially as rejection by the world’s hegemony discourages other states from both signing and financially supporting similar international judicial institutions. The Chief Prosecutor in the case against former Liberian President Charles Taylor for atrocities committed in West Africa, noted rightfully that, no matter how good his case, "if we run out of money, I lose." The United States, and indeed the world, cannot afford to release those accused of the gravest abuses of human rights due to failure to provide adequate resources to tribunals.
As the United States takes seemingly hypocritical stances on the ICC intervention in certain crises (for example, abstaining from (thus, arguably implicitly supporting) the UN Security Council vote to indict President Omar al-Bashir of Sudan), many have noted “[t]he United States wants to create a world of universal values, rules and institutions. But [they] can't abide the fact that they might apply to [them].” Though the United States continues to be viewed as a leader in the realms of law and justice, resistance to international standards projects a dangerous double standard. Joining the ICC is an opportunity for the United States to make an overt commitment to human rights – a move that will have an instrumental impact in the promotion and protection of human rights throughout the world.
-Nadia Ben-Youssef, International Justice Project Legal Intern
[1] Van Schaack & Slye, International Criminal Law and Its Enforcement (Foundation Press 2007)
The Senate Armed Services Committee’s report on the treatment of detainees in U.S. custody – the product of a 2-year-long bipartisan inquiry – heightens the need for a criminal investigation into abuse and torture authorized by officials of the previous administration.
The extensive report [pdf], numbering over 260 pages, found not only that interrogation techniques used on detainees were designed with a purpose of eliciting false confessions, but also that top-level government officials were involved from the early stages and throughout the development of the interrogation program.
The indefinite detention of any person solely for the purpose of interrogating him is prohibited under the laws of war and under U.S. law. The United States government recognized this longstanding legal principle in the 2004 Supreme Court case Hamdi v. Rumsfeld, in which the Court recognized that “indefinite detention for the purpose of interrogation is not authorized.” United Nations human rights officials [pdf] and the International Committee of the Red Cross have been equally clear in addressing U.S. policy, stating that the indefinite detention of prisoners of war or civilian internees solely for purposes of interrogating them contravenes the provisions of the Geneva Conventions.
The SASC report also details the fact that senior-level government officials were involved in the design, development and implementation of such practices. According to a former senior U.S. intelligence official, former Vice President Cheney and former Defense Secretary Donald Rumsfeld were, “for most of 2002 and into 2003 . . . demanding proof of the links between al Qaida and Iraq.”
Former U.S Army psychiatrist Maj. Charles Burney, who was deployed to Guantanamo Bay in mid-2002, confirms these statements in the SASC report: “while we were there a large part of the time we were focused on trying to establish a link between AI Qaeda and Iraq and we were not being successful in establishing a link between AI Qaeda and Iraq. The more frustrated people got in not being able to establish this link . . . there was more and more pressure to resort to measures that might produce more immediate results.” The former administration’s fixation on eliciting false confessions to establish such a link is demonstrated by the CIA’s interrogation of two detainees a combined total of 266 times, from 2002-2003.
That high-level officials demanded the use of harsher interrogation techniques in order to elicit a confession, with no regard for veracity, to establish a link between al Qaida and Iraq demonstrates their complicity in acts that violate U.S. and international law. As the Senate Armed Services Committee concluded in its report:
The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
In addition to compromising our moral authority, these acts violate our laws. As Senator Levin, Chairman of the Senate Armed Services Committee, said in his remarks announcing the release of the report, “senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques. Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.”
Attorney General Eric Holder must appoint an independent counsel to investigate those officials responsible for directing, authorizing, or otherwise facilitating these practices, and prosecuting those found to have violated the law. He must do so in order to ensure that the American people have a full understanding of the role that the U.S. government played in these damaging human rights violations, to ensure that those individuals victimized by such abuse receive justice and full disclosure of the reasons for their suffering, and to ensure that those responsible for such grievous violations of basic human rights norms are held to account.
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