Getting away with torture: Part II

This article originally appeared in New York Review of Books and is republished here with permission

More than sixty years ago, in a series of trials conducted in Nuremberg, Germany, the United States and its allies made history by holding Nazi officials accountable for war crimes and crimes against humanity committed during World War II—including abductions, disappearances, torture, and genocide. The Nuremberg judgments in turn had a critical part in the birth of international human rights. In the ashes of World War II, many nations, working with the United States, created a regime of rights and responsibility designed to affirm the inviolability of human dignity and to ensure that such atrocities would not happen again.

The legacy of that period includes a set of charters defining the scope of human rights, such as the Universal Declaration of Human Rights, the Geneva Conventions, and the international treaty prohibiting torture. Equally if not more importantly, however, the same legacy includes the establishment of forums for holding rights violators accountable — including international war crimes tribunals, regional human rights courts (such as the European Court of Human Rights), the International Criminal Court, and domestic courts that hear international human rights claims. Nuremberg was as much about the necessity of a forum for accountability as it was about the norms themselves. In the absence of effective enforcement, international human rights are mere words on paper.

The last forum I have mentioned — the domestic court—may be the most important. By bringing human rights home, domestic courts give them a concreteness and immediacy that is critical to their effectiveness. Here, too, the United States has been a leader. In 1980, the same court that dismissed Arar’s case ruled, in a landmark decision, Filartiga v. Pena-Irala, that federal courts could adjudicate claims by foreign citizens against foreign defendants for human rights violations committed abroad. Filartiga involved a young man who had been abducted, tortured, and killed by a Paraguayan police chief. When the family learned that the officer had fled to the United States, they sued him in US court. The Court of Appeals for the Second Circuit declared that the torturer is the “enemy of all mankind,” and therefore may be sued for his wrongdoing wherever he is found.

The usual reluctance to have a US court pass judgment on overseas conduct not involving any American citizens was overcome by the fact that the prohibition on torture is universal. Since that decision, US courts have adjudicated human rights claims involving brutality in Burma, South Africa, Yugoslavia, Nigeria, Mexico, the Philippines, Argentina, and many other nations. The Supreme Court upheld the practice in 2004. Yet according to the Second Circuit, the same sorts of claims are too sensitive to permit adjudication when brought against US officials.

In addition to a forum for enforcement, human rights also require equal application. Their purpose is to identify those norms so fundamental to human dignity that no government may violate them. Indeed, Nuremberg’s legacy has always been somewhat clouded by the fact that the Soviet Union, itself responsible for terrible crimes against humanity, participated as a prosecutor, but was never held accountable for its own crimes. If international human rights are to be legitimate, they must be universal, and not a euphemism for “victor’s justice.” The torture standard does not differ based on whether the United States, Haiti, or Paraguay is engaged in the practice. The Italian court convicted Italians and Americans alike. If anything, it should be easier, not more difficult, to hold one’s own government officials accountable than to hold foreign government officials accountable.

The notion that domestic courts can hold another country’s torturers accountable is not an American anomaly, as the Italian case illustrates. International law recognizes a principle of “universal jurisdiction,” which holds that torturers can be held to account anywhere. Applying that principle, a Spanish judge in 1998 issued an arrest warrant for former Chilean dictator Augusto Pinochet for crimes against humanity, including torture. Great Britain’s highest court, the Law Lords, ruled that the warrant could be enforced to extradite Pinochet from England to stand trial. (In the end, Pinochet was returned to Chile on medical grounds, but was then indicted there.) The same Spanish judge, Baltasar Garzón, is currently investigating whether criminal charges should be leveled against the Bush administration lawyers responsible for authorizing torture at Guantánamo — John Yoo, Alberto Gonzales, David Addington, Jay Bybee, William Haynes, and Douglas Feith. The torture they authorized was inflicted on several Spanish citizens at Guantánamo, causing terrorist charges against them in Spain, also prosecuted by Garzón, to be dismissed.

The principle of universal jurisdiction recognizes that if a country is responsibly pursuing accountability for its own wrongs, a foreign court should defer to the domestic process. In his speech at the National Archives on May 21, 2009, President Obama insisted that the Justice Department and the courts “can work through and punish any violations of our laws or miscarriages of justice.” Cases like Arar’s belie his confidence, as does the Justice Department’s failure even to investigate the lawyers who authorized the CIA and the military to engage in torture and disappearances as a means of getting suspects to talk.

If we fail to carry out this responsibility, other nations, using principles that the US did much to develop, may take up the charge.