By Prof Lawrence Davidson
One of the really progressive acts that followed the end of World War II was the establishment of the principle of universal jurisdiction (UJ). UJ is a legal process that allows states that are signatories to various international treaties and conventions (such as the Geneva conventions) to prosecute alleged violators of these treaties, even when these violations are committed outside the country’s usual jurisdiction. This is particularly so if it can be demonstrated that the home government of the accused has no intention of bringing them to trial for the alleged offense. The assumption behind this principle is that the crime committed is so egregious as to be seen as a crime against humanity at large. In the wake of the Nazi Holocaust and other such crimes against humanity, UJ was accepted as a necessary and positive legal step by almost all Western nations. So, with the images of concentration camps freshly impressed upon their minds, one can only imagine that the leaders who agreed to UJ in the mid to late 1940s never imagined the possibility that their own successors might someday be subject to its consequences. Yet, fast fowarding to our own time, that is exactly what is happening (albeit rather imperfectly).
Now, on February 8, an announcement was made that former President George W. Bush had suddenly cancelled a trip to Geneva, Switzerland. He had been invited to give a February 12 speech on "freedom" at a fund raising event sponsored by the United Israel Appeal. Almost immediately upon learning of Bush’s visit to Geneva, several human rights organizations, including the New York based Center for Constitutional Rights, announced that they would seek a warrant for Bush’s arrest for violation of the Convention Against Torture. While the Swiss Justice Ministry suggested that Bush would have immunity for actions taken while he was in office, the human rights organizations quickly pointed out that, under the Convention to which Switzerland is a signatory, no such immunity exists. Then, upon learning that Bush decided not to test the issue, but rather cancelled his trip, Katherine Gallagher, a spokesperson for the Paris based International Federation for Human Rights, responded "the reach of the Convention Against Torture is wide, this case is prepared and will be waiting for him wherever he travels next."
Bush is not the only former leader susceptible to universal jurisdiction. His companions such as Dick Chaney, Donald Rumsfeld, Alberto Gonzalez and his accomplice lawyers, and all the CIA "perpetrators" who used "it is not torture" procedures such as waterboarding to torture and sometimes murder suspects in the dark dungeons of out of the way places, are equally vulnerable. The fact that on 7 February 2002 President Bush signed a memorandum stating "I determine that common Article 3 of Geneva [governing treatment of prisoners of war] does not apply to either al Qaeda or Taliban detainees" has no legal standing. Presidents can do a lot of things but, it turns out, they cannot arbitrarily create exemptions when it comes to negotiated treaties (which by the way have the status of being laws of the land). The category of "enemy combatant" will not save Mr. Bush and his associates if ever they are caught abroad.
Nor is it just Americans who are candidates for UJ. Indeed, the number of nations whose leaders have of late made the mistake of considering these sort of international laws just too "quaint" to take seriously is embarrassing long. Second only to the Americans are the Israelis, and it was interesting that it was to an Israeli fund raiser that Mr. Bush was heading. The Israelis have made a virtual art of defying their treaty obligations to, as "common Article 3 of Geneva" requires, foreswear "torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment" of prisoners of war and non-combatants. Several members of the former Israeli government, the one that invaded Gaza, such as ex-Foreign Minister Tzipi Livni, have cancelled trips to England and elsewhere in Europe. One IDF general got as far as Heathrow Airport and then thought better of debarking the plane. Another had to be ushered out of New Zealand two steps ahead of a suddenly threatening legal action. It is perhaps a significant sign of legal equality between East and West/North and South that Western leaders who turn criminal are now, potentially at least, in the same legal boat as Pol Pot and Augusto Pinochet.
What all this does is narrow the range of movement for people like Bush and Livni. It is not quite the "stay in your home country" version of house arrest. Bush can still go to China or Saudi Arabia if he wants and, I am told, high ranking Israelis and their bodyguards like to vacation in Goa, India. However, the range of choices is getting narrower.
There is, however, a really big loophole, and that is the ability of these criminals to safely stay home. This too is a standing violation of international treaty obligations. A spokesperson for Human Rights Watch pointed out that the "U.S. government should take the lead to investigate former President George W. Bush and other senior officials…rather than leaving prosecutions to other countries." This is, of course, absolutely true. However, one of the first things that President Barack Obama did upon taking office was to shut down any possibility of this happening. Not only will he not countenance such investigations at home but he has tried very hard to prevent other countries, such as Spain, doing so. What do you call someone who hides evidence and refuses to cooperate in the investigation of a crime? Isn’t there some domestic law against that? Unfortunately, there is a working assumption in the United States that presidents can not only break the law at will, but also protect former ones who have done so. Gerald Ford protected Richard Nixon for plain old criminal breaking and entering, almost everyone in the government shied away from punishing Ronald Reagan for violating the Constitution and illegally arming gangsters who, in his myopic old age, he mistook for freedom fighters. Instead of prosecuting Reagan, Congress named a Washington DC area airport after him! And now it is George W.’s turn. Being an even bigger offender than Reagan, perhaps the state legislature will vote to rename Texas after him.
All kidding aside, the threat of universal jurisdiction worries many leaders in the developed world and they are looking to do away with it. And, unless human rights groups can organize sufficiently to keep up political pressure, these people have half a chance of succeeding. Here are a couple of reasons why this is so:
1. Most people, particularly in the Western democracies, just don’t care. They are hardly aware of the things their leaders do, especially abroad, and among those who are aware, some think that the resulting crimes are warranted.
2. As the massive crimes of WWII recede into the past, Western leaders forget the horrors that are possible right in their own backyard. It was the concentration camps and holocaust of Westerners in the West that shook up the great powers and convinced them that universal jurisdiction was necessary. No similar concern was ever expressed as long as such horrors were committed by Westerners in the non-Western world. In any case, the memories have dimmed and concern among the elites now is focused on how UJ complicates diplomatic relations between states if one of those states has notable citizens chargeable under the treaties.
So, as we all celebrate the power of Egypt’s organized masses to bring down dictators, and hope that example will spread far and wide, let us not forget our own homegrown monsters. UJ is the best hope the world has to at least hem in the criminal leaders of great power states who everyone had assumed were untouchable. It is a major tool for justice and we should all cherish and protect it and, most of all, use it.
Lawrence Davidson is a Professor of Middle East History at West Chester University in West ChesterPennsylvania.He is
the author of America’s Palestine: Popular and Official Perceptions from Balfour to Israeli Statehood (University Press of Florida, 2001), Islamic Fundamentalism (Greenwood Press, 2003), and, co-author with Arthur Goldschmidt of the Concise History of the Middle East, 8th and 9th Editions (Westview Press, 2006 and 2009). His latest book is entitled Foreign Policy, Inc.: Privatizing American National Interest (University of Kentucky Press, 2009). Professor Davidson travels often and widely in the Middle East. He also has taken on the role of public intellectual in order to explain to American audiences the impact of U.S. foreign policy in the Middle East.
Davidson is a regular contributor to Opinion Maker.