The following is an excellent excerpt from the book an“CHEATING JUSTICE; How Bush and Cheney Attacked the Rule of Law and Plotted to Avoid Prosecution—and What We Can Do About It” by Elizabeth Holtzman with Cynthia L. Cooper from Chapter Five “International Justice: Accountability for the Bush Team Abroad” on page 147 and I quote: “Universal Jurisdiction: Other Nations Fill a Gap – In Belgium, three lawsuits against members of the Bush administration, including President Bush, Defense Secretary Donald Rumsfeld, Deputy Defense Secretary Paul Wolfowitz, General Tommy Franks, and others, were filed by confidential complainants in 2003 for crimes against humanity in Iraq and Afghanistan, reported Reuters. The United States objected and Rumsfeld publicly threatened to halt funding for a new NATO headquarters in Brussels and move it elsewhere, reported the “Guardian.” In response, Belgium repealed its universal jurisdiction law in August 2003, according to Human Rights Watch, and limited the ability to prosecute matters of genocide, war crimes, and crimes against humanity to cases involving Belgian nationals or residents, or to situations in which Belgium had a treaty obligation to prosecute. The cases against U.S. officials were all dismissed.
The Center for Constitutional Rights in New York, working with civil rights attorney Wolfgang Kaleck in Berlin, urged Germany in November 2004 to exercise universal jurisdiction and take criminal action on behalf of four Iraqi citizens against then defense secretary Donald Rumsfeld under Germany’s Code of Crimes Against International Law, citing abuse at Abu Ghraib and Guantanamo. The Center for constitutional Rights explained in “German War Crimes Complaint Against Donald Rumsfeld et al.” that the German law “provides for ‘universal jurisdiction’ for war crimes, crimes of genocide and crimes against humanity. It enables the German Federal Prosecutor to investigate and prosecute crimes. . . irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved.” Prisoners alleged that they had been beaten, kicked, sexually harassed, stripped naked, bound for long periods, intimidated by the use of dogs, subjected to degrading treatment, and, in one case, raped, according to documents posted by the Center for Constitutional Rights. Rumsfeld was not amused. “The case provoked an angry response from [the] Pentagon, and Rumsfeld himself was reportedly upset,” wrote Adam Zagorin in “Time” magazine. “U.S. officials made clear the case could adversely impact U.S.-Germany relations, and Rumsfeld indicated he would not attend a major security conference in Munich, where he was scheduled to be the keynote speaker, unless Germany disposed of the case.” The day before the conference, the prosecutor dropped the case, saying the United States was the appropriate venue for these complaints.
After Rumsfeld resigned as secretary of defense, the Center for Constitutional Rights and Kaleck decided to try again, refiling the case in Germany in November 2007, wrote “Time.” the lawyers argued that the United States did not intend to prosecute the case, and filed on behalf of forty-four plaintiffs, including organizations from Argentina, Bahrain, Canada, France, Germany, and elsewhere, and twelve Iraqi citizens with claims of torture. This time, a second German prosecutor dismissed their case, stating that it seemed to be a “symbolic” prosecution and, again, that handling the cases of abuse “remains the task of the justice system of the United States of America.”
The attempt to secure prosecution of Rumsfeld in France also fizzled in a case that the Center for Constitutional Rights attempted to bring in 2007. The prosecutors declined, finding that Rumsfeld, although no longer a government official, had immunity since the acts complained of were taken in his official capacity when he was a government official, explained Katherine Gallagher in the “Journal of International Criminal Justice.”
The concept of universal jurisdiction is important and bringing about accountability for heinous crimes when a national government does not have the political will or capacity to act. But President Bush and his team may have calculated correctly that there was a slim likelihood that other nations would dare to take on the prosecution. Where they have dared, the U.S. government has pushed back hard, both privately and publicly, to quash proceedings that might finally expose the crimes and wrongdoings of Bush administration officials.
The International Criminal Court Addresses Crimes Against Humanity—Maybe – On May 6, 2002, President Bush “unsigned” a treaty that had created the International Criminal Court (ICC), the first permanent international court on war crimes and crimes against humanity. President Clinton had signed the treaty on December 31, 2000. But the U.S. commitment didn’t last long. John R. Bolton, Bush’s undersecretary of state, wrote to the United Nations: “The United States does not intend to become a party to the treaty,” according to the “New York Times.”
The ICC was under steady attack by the Bush administration. Defense Secretary Rumsfeld said that the court would be “putting U.S. men and women in uniform at risk of politicized prosecutions. “ But he actually may have had himself and the suits in the White House in mind. After all, the “unsigning” came only three months after the February signature of President Bush on a memo unleashing brutal treatment in interrogating detainees, precisely the kind of case that might end up in the International Criminal Court. Ironically, the court came into existence on July 1, 2002, at the very same time that Abu Zubaydah was being tortured at the hands of CIA interrogators in a secret prison abroad.
The creation of the court was “the result of a concerted international effort to combat impunity for what are considered to be the most egregious international crimes—crimes that . . .’deeply shock the conscience of humanity,’” explained Lynn Gentile in a book on international criminal justice. The court has subject-natter jurisdiction limited to “the most serious crimes of concern to the international community as a whole, namely, genocide, crimes against humanity and war crimes,” wrote Gentile.
There are three triggers, described in an Amnesty International fact sheet, that can put a case before the ICC, which is physically located in The Hague in the Netherlands. One way is that the court can take jurisdiction of a matter when a country has signed the Rome Treaty establishing the court and asks the ICC to prosecute a case. Second, the UN Security Council can refer matters to the court. This happened in the case of Omar al Bashir, the president of Sudan—particularly significant because it involved a sitting head of state. Al Bashir was indicted for war crimes and crimes against humanity occurring in Darfur: “Not even presidents are guaranteed a free pass for horrific crimes,” said Richard Dicker of Human Rights Watch. The United States didn’t use its veto to block the Security Council action.
The final way a case comes before the court is when the ICC prosecutor initiates a matter based on events that occurred on the territory of a country that has signed the Rome Treaty. To commence an investigation, the prosecutor needs the approval of a panel of ICC judges, which determines that there is a reasonable basis to proceed with an investigation and that the case falls within the jurisdiction of the court. Before any such prosecution is brought it must be clear that the countries whose nationals are responsible for the crimes are unwilling or unable to investigate or prosecute. According to a report by the Congressional Research Service in July 2010, the court had indicted sixteen people.
Torture is a topic that could potentially be addressed by the ICC—if it has jurisdiction. And jurisdiction might be possible because of the wide-ranging geography of U.S. torture activities. One basis of jurisdiction, as noted above, is when acts occur in countries that are signatories of the Rome Treaty.
CIA agents transported one hundred or more detainees to black sites in other countries, where the prisoners were tortured. Some of those countries—Lithuania, Poland, Romania—are also signatories of the Rome Treaty. Afghanistan, where torture of U.S. detainees is documented, is a signatory of the Rome Treaty, and the CIA air carriers used bases or stopovers in several signatory nations for rendition flights. As a result, the International Criminal Court could take prosecutorial action against those responsible, including U.S. personnel.
A U.S. law professor submitted a complaint to the ICC prosecutor in January 2010, asking for an investigation and arrest warrants for six top U.S. officials—President Bush, Vice President Cheney, Secretary of Defense Rumsfeld, CIA director George Tenet, Condoleezza Rice, and Alberto Gonzales—for the “widespread “ and “systemic” policy of rendering individuals to black sites. Even though the United States is not a signatory to the Rome Treaty, the legal complaint asserts that the ICC should open an investigation on its own. Of course, using the ICC poses its own set of difficulties, not the least of which is securing the presence of the U.S. persons before the court.
As in other areas, however, President Bush and his team were taking no chances in protecting themselves. Not only did the president “unsign” the Rome treaty and withdraw all support for the ICC, the United Stated began a heavy-handed campaign in August 2002—only a month after the court first opened—to force other countries to sign immunity agreements. These “Bilateral Immunity Agreements,” as they are called, prevent other nations from sending claims against U.S. nationals to the ICC for prosecution. The United States threatened to withdraw military aid, and later economic support as well, if immunity agreements were not signed (and virtually all nations, excepting Cuba, Iran, and one or two others, get U.S. aid). Romania—home to a U.S. black site for prisoners—was among the countries that quickly signed the immunity agreement. The Bilateral Immunity Agreements signed by the Bush administration—more than one hundred of them—are still in office, according to the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC).
In a 2005 column titled “Schoolyard Bully Diplomacy” “New York Times” writer Nicholas Kristof commented that ”the Bush administration is delusional in its terror of the [international criminal]court.” But perhaps Kristof was wrong, and the Bush administration had everything to fear.
Prosecutions in Other Nations Based on Country Jurisdiction – It’s a given that every nation has its own justice system, and that each can prosecute crimes that occur on its lands or have another strong connection to the nation. Some countries drawn into the swirl of U.S. torture have started to respond.
Torture at the hands of U.S. personnel or their proxies occurred in many nations—from prisons in Afghanistan to the globally dispersed black sites operated by the CIA. The United States also sent detainees to other nations, knowing that they would be tortured.
In addition, U.S. personnel took part in actions related to torture in other nations, such as Italy and Macedonia, where individuals were kidnapped and forcibly removed to torture sites. Other nations, including Spain and the United Kingdom (for the use of Diego Garcia), were potentially implicated in torture because their airstrips were used for CIA rendition flights. The Legal Affairs Committee of the Council of Europe found that fourteen European countries collaborated with the CIA in a :”global spiders’ web” of sites.
Any one of these countries could pursue investigations and prosecutions against U.S. persons for violations of criminal laws on the books in their nations—whether murder, assault, kidnapping, or torture. Prosecutions may also be brought for war crimes and other violations of international human rights standards and treaties that have been incorporated into the nation’s laws.
If the countries are signatories to the Convention Against Torture or the Geneva Conventions, they are actually obligated to investigate and hold accountable anyone who has violated those treaties. Not only are those who committed the crimes subject to prosecution, but those who planned and ordered heinous crimes such as torture can be charged, as well.
A few countries have prosecuted individuals or taken action because of crimes committed by U.S. nationals on their territory.
One of the most dramatic actions emerged in Italy, where twenty-six Americans were put on trial in absentia, along with four Italian officers. They were accused of seizing Abu Omar, a Muslim cleric, from the streets of Milan in February 2003 and transporting him to Egypt, where he was tortured. Abu Omar was released four years later; no charges were filed against him. In 2009 he told the “Guardian” that his treatment in a Cairo jail had reduced him to a “human wreck.”
Following the trial—with the CIA personnel absent—the Italian court released its decision on November 4, 2009, convicting twenty-two CIA operatives and a U.S. Air Force officer, along with two Italian intelligence officials. The judge, in announcing the decision, called it “a significant event,” said the “Guardian,” and the case stands as the first—and only– prosecution for the snatching of suspects by the United States and their rendition to torture sites. The verdict was secured even though much of the prosecution’s case was hobbled by Italian state secrecy laws, which caused the exclusion of a great deal of evidence. Each American was sentenced to five years in jail and will be regarded as a fugitive under Italian law. While it is unlikely that the United States will turn over the air force or CIA officers to the Italian government, these individuals might want to curb their travel outside the United States for worry of facing arrest by Interpol.”
(THIS CHAPTER (FIVE) TELLS JUST EXACTLY HOW THE BUSH-CHENEY ADMINISTRATION BROKE THE LAW AND SHOULD BE PROSECUTED JUST EXACTLY THE WAYS THE NUREMBERG TRIALS (INTERNATIONAL MILITARY TRIBUNAL-NUREMBERG) PROSECUTED GERMANY AFTER WORLD WAR II, WHICH CAN TAKE PLACE AFTER THEY ARE OUT OF OFFICE.
LaVern Isely, Progressive, Overtaxed, Independent Middle Class Taxpayer and Public Citizen and AARP Members