JURIST Guest Columnists Amy Ross of the University of Georgia Department of Geography and Chandra Lekha Sriram, Chair of Human Rights at the University of East London School of Law (UK), say that former US Defense Secretary Donald Rumsfeld's quick exit from a Paris speaking event last week in the face of a torture lawsuit brought by human rights organizations in a French court shows that univeral jurisdiction laws are making an impact by limiting "zones of impunity," even if the most powerful often remain beyond the reach of actual prosecution…
Donald Rumsfeld should be more careful about where he travels.
In Paris last week, Rumsfeld left a prestigious speaking event in haste, slipping out a side door to avoid the human rights lawyers and journalists waiting to confront him with criminal charges of torture. He reportedly avoided the confrontation by sneaking out a door that attached the conference venue to, of all places, the United States Embassy.
The charges have been filed in a French court by international human rights organizations. The claim is that France is under a legal obligation to investigate and prosecute Rumsfeld's accountability for alleged crimes.
The legal pursuits against Rumsfeld are the latest in a trend toward invoking universal jurisdiction.
The essence of the principle is that some crimes are so serious as to be of "international concern.” Hence torture in Guantanamo and Iraq is the business of all humanity, existing everywhere, and should be heard in the French courts. Indeed, any court in the world could host such a trial.
Rumsfeld’s presence on French territory last week sparked the demand that a judge investigate the charges. France must refuse to provide safe haven for torturers, the lawyers insist.
Universal jurisdiction received little attention until it ensnared Chile’s General Augusto Pinochet Ugarte in October 1998. While he was in London receiving medical treatment, British officials, acting on a warrant issued by a Spanish judge, placed Mr. Pinochet under arrest, triggering a decade-long, multi-national drama.
For populations subject to the threat of torture, "disappearance" and other human rights abuses, the struggle to hold the most powerful perpetrators accountable has spawned a creative cartography. Faced with impunity at home, human rights activists have sought out sympathetic jurisdictions abroad.
Today, there are dozens of cases before courts involving the principle of universal jurisdiction. Many high-level state figures, traditionally protected at home, are facing increasing pressure in foreign courts.
Henry Kissinger reportedly fled Paris in 2001 after being tipped off to an imminent summons by a French judge; he later cancelled a trip to Brazil after being warned by the government there that he might face an international arrest warrant. Suits in Madrid against Guatemala’s Efrain Rios Montt, charging him with genocide of Mayan Guatemalans during his government’s scorched earth policy in the 1980s, have restricted his travel options.
Shortly after a suit was filed against Ariel Sharon in Brussels, the government of Israel put out a travel-advisory to its high-ranking officials, alerting them to foreign countries that might be keen to entertain universal jurisdiction. The list includes many of the western social-democracies.
Efforts to prosecute Israeli Major-General (reserve) Doron Almog for war crimes in Gaza were derailed when the accused managed to dodge an indictment in the United Kingdom. In 2005 Almog got as far as the jetway at Heathrow; when tipped off to his imminent arrest he was allowed to remain on board and return with the plane to Israel.
Even the president of the United States of America has to be careful where he travels. In November 2004, during a visit by Bush, the Chilean government announced that the US president would have immunity during his visit. The unusual declaration was made after lawyers filed a criminal complaint against Bush in court, claiming that he and other U.S. officials were guilty of war crimes in Iraq. On a subsequent trip by Bush to Canada, lawsuits were filed against him in Vancouver under Canada's Crimes Against Humanity and War Crimes Act.
George W. Bush currently enjoys official immunity from prosecution, as a serving government official. Come January 2009, he might very well forego visits to Germany, where suits have been filed on behalf of four Iraqi victims of torture.
Cases filed against Rumsfeld in Germany and other countries were barred while he was Secretary of Defense. But Rumsfeld resigned. He no longer enjoys the shield of official immunity.
Nonetheless, he still has access to exclusive zones of impunity. While it may appear that universal jurisdiction is forcing even the powerful to confront their crimes, Rumsfeld’s escape-route illustrates that certain global figures remain beyond the aspirations of international human rights law.
It is a paradox of power. The most powerful are in a position to prosecute others for abuses, even as they commit crimes themselves, and avoid prosecution.
Amy Ross is a professor in the University of Georgia Department of Geography specializing in human rights, international justice, geographies of justice, genocide, and the spatiality of violence. Chandra Lekha Sriram is Chair of Human Rights at the University of East London School of Law (UK).
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