Selective Jurisdiction

The News on Sunday, Pakistan

May 29, 2005

By Fawzia Naqvi


For now those in positions of authority have been exonerated for the torture of detainees in Abu Gharaib prison. General Ricardo Sanchez, former top commander in Iraq, Major General Geoffrey Miller transferred from command of Guantanamo to command of Abu Gharaib and Defense Secretary Donald Rumsfeld, all claim they knew nothing or knew too late. Miller is widely believed to have instituted harsh interrogation techniques at Guantanamo, especially the use of dogs to terrorise prisoners and to have recommended these techniques during his visit to Abu Gharaib months before the torture story broke.

The officer in charge of Abu Gharaib Brig General Janis Karpinsky has been demoted but will keep her pension benefits. Only a few low ranking soldiers and prison guards face charges and prison sentences, the most memorable being the lady with the leash, Lynndie England and the apparent ring leader Pvt. Charles Graner. None are going down without a fight claiming they were merely following orders from high-ups, and are easy scapegoats for the military high command.

Few around the world accept the Pentagon's position and indeed that of the US administration's that 'some bad apples' at Abu Ghariab committed isolated incidents of torture, violating almost every tenet of the Geneva Convention. Most human rights activists and legal experts worry that the US military justice system will not provide fair and adequate redress for human rights violations committed by US military personnel. The exoneration of all senior military and civilian command accountable for Iraq and Abu Ghariab lends credibility to this perception.

Judge Antonio Gonzalez's confirmation as the US Attorney General has also outraged human rights advocates who claim that he paved the legal road for torture by authoring the infamous 'torture memorandum' dismissing the Geneva Conventions as 'quaint' and 'obsolete'.

Almost daily the disturbing litany of torture continues to spew from Guantanamo, Iraq and Afghanistan, involving American, British and Danish soldiers. 'Extraordinary rendition' is the latest disclosure. The US has been extraditing terror suspects to countries where they will be tortured, Pakistan included. American hands remain legally clean while other countries torture detainees on behalf of the US. There is adequate data supporting the claim that torture and violation of Geneva Conventions seem to be the preferred modus operandi in the US military detention facilities.

As difficult as it is to fathom, human rights justice is moving ever so gradually in the right direction. General Pinochet's arrest in the UK in 1998 created the landmark legal principle that 'universal jurisdiction' applies where war crimes and crimes against humanity are indictable and punishable anywhere in the world. This means that, in theory, any country has the right to try any perpetrator, no matter where the crime was committed or by whom.

This is a legal godsend for victims and human rights advocates, and highly discomfiting for those enjoying unmitigated power and immunity from prosecution. And this is a warning to perpetrators that they will be held accountable should they partake in the victimisation of their own citizens or of others anywhere in the world. Immunity may last only so long -- General Pinochet seems to have outlived his.

The birth of the International Criminal Court was another landmark development for human rights justice, even though in 1998 and again in 2002 the US alone vigorously opposed the creation and jurisdiction of the ICC. The US strong-armed and bullied many nations into granting immunity to its military personnel, claiming this necessity to prevent what it termed potentially 'politically motivated' cases. But revelations of torture of Iraqi detainees considerably weakened the US argument. And recent efforts to renew this immunity have failed in the wake of the torture disclosures.

Meanwhile, numerous international human rights cases are being tried in the US courts. Recently, a US federal judge found an El Salvadorian retired air force colonel liable for the murder of an archbishop in the 1980s. Apparently, there are so many international human rights cases pending that the US government has tried to limit the number being brought in front of the US courts.

Human rights cases and criminal complaints have also been filed in Belgium against Israel's Prime Minister Ariel Sharon for the 1982 Sabra and Shatilla massacre in Lebanon. The US, through Donald Rumsfeld bullied Brussels into backing down for now by threatening to withdraw NATO headquarters.

Donald Rumsfeld himself has criminal complaints filed against him in Germany by American Civil Liberties attorneys on behalf of four Iraqi prisoners. The complaints also name former CIA director George Tenet and former commander in Iraq Lt. Gen. Ricardo Sanchez. The German Federal Prosecutor is deciding whether to investigate complaints filed against all three. These cases could gain momentum now that the US army, under pressure from Human Rights Watch, has had to admit that eight detainees died in its custody in Afghanistan. HRW alleges that all eight died from torture.

Ten years on since the Dayton peace accords, Bosnia still awaits the capture of Radco Mladic, the former Bosnian-Serbian military commander and Radovan Karadzic, the former Bosnian-Serbian President. Along with former Serbian President, Slobodan Milosevic, now being tried in The Hague, these two are the most notorious war criminals believed to be given sanctuary by Republica Srpska.

Their names are synonymous with the rapes of at least 30,000 Bosnian Muslim women, with Omarska, the notorious Serbian concentration camp for Muslim captives near Prijedor in north-eastern Bosnia and with Sbrenica where 8000 Muslim men and boys were executed and dumped into mass graves.

The International Community's High Representative, Paddy Ashdown, has forced the resignation of the Bosnian Serb Prime Minister for failing to hand over war criminals, namely Mladic and Karadzic. But for Europe, the term 'civilized' rings hollow unless and until these mass murderers are brought to justice.

Today several Latin American former military dictators and their helpers are mired in a myriad of expensive human rights litigations at home and also in the US and Europe. Life has indeed become treacherous for many former strongmen, in no small part due to the threat of being served an indictment anywhere. But unlike the torture and terror these men deployed against their political opponents, they themselves are guaranteed due process.

Despite some positive developments in the human rights arena, countless lives continue to be destroyed at the will of despots the world over. Tragically tens of thousands are still the 'disappeared' and 'missing' on virtually every continent. Mass graves are unearthed in Africa, Asia, the Balkans, Latin America and the Middle East, but only when the international community finally acts with its conscience, albeit belatedly for thousands of victims.

Although the continued exoneration of senior level US personnel for crimes of torture is shameful, indictments and trials of men like Pinochet and Milosevic give victims of tyranny some optimism that justice is not impossible. Dictators, old or newly minted and those who commit torture or give orders to do so should heed these indictments as warnings of what might lie ahead for them.

Neither quaint nor obsolete, the principle of universal jurisdiction is definitely in their future.