Thursday, November 17, 2005

Is Philippe Sands Serious about the Pinochet Precedent?

Philippe Sands is at it again. In an article in the San Francisco Chronicle last week, available here, Sands appears to be publicly pushing his idea that David Addington, John Yoo, and others he describes as "higher in the administration's hierarchy" (read: someone higher than the V.P.'s chief of staff!) should think twice about travelling abroad or they might suffer the same fate as Augusto Pinochet. It is precisely the same argument that Sands made in his debate with John Yoo a couple of weeks ago.

I would be curious if others have thoughts on whether this is a serious possibility. I have not heard anyone but Philippe Sands outspokenly and seriously pushing this idea. Is it in fact a plausible possibility that if a senior Bush Administration official, current or past, who was involved in the "torture memos" travels to Europe, they might be slapped with an arrest warrant from a Spanish prosecutor (or the like) and subject to an extradition proceeding? It seems highly implausible to me that Vice President Cheney's chief of staff (or various senior deputies in the Justice Department) could be arrested if one of them took a trip to London or Madrid. But then again, I don't know the mindset of an independent-minded Spanish prosecutor like Baltasar Garzón. I would be curious if others take a different view, particularly any international lawyers steeped in the details of the Torture Convention.

In short, is Sands dead serious about the Pinochet precedent?


Blogger KA said...

Well, this is what Amnesty International called for in the press release for its latest world report - identified the supposed architects of torture and proposed precisely that they be detained by ofreign countries if they traveled. Sands is merely giving, in that sense, the Euro-NGO party line. The AI 2005 report can be found here, (although the really inflammtory stuff is rather dubiously not included in the report, but only in the press releases and speeches of both AI and AIUSA), and I, among a zillion other people, say nasty things about it in a Weekly Standard piece, here, Kenneth Anderson

11/17/2005 5:34 PM  
Blogger Seth Weinberger said...

This is a not-quite-yet serious problem, but one that should definitely be on the radar screens. Belgium had to take its universal jurisdiction laws off the books for this very reason: suits were being filed that would have required them to arrest world leaders like Sharon, Arafat, Clinton (for the Kosovo bombings), and so on. This is the obvious drawback to expanded jurisdiction for actions previously protected by sovereign immunity.

There's a more dangerous problem posed by the Pinochet precedent, however. Granting immunity is a standard and time-honored method of achieving a transition away from authoritarian rule. To encourage a dictator and his henchmen to step down, provide them with immunity from the crimes committed under their rule. If the dictators have good reason to suspect that their immunity will not be honored, they will certainly have less incentive to step down. So, these prosecutions may be undermining the chances of ending brutal governments. I'm not so sure that is a worthwhile trade-off.

11/17/2005 6:13 PM  
Blogger Milan said...

Under the Convention against Torture, nations have an obligation to criminalize complicity in torture. Most nation-states, however, would not have the jurisdiction to prosecute Yoo's (alleged) complicity. The CAT does not contemplate universal jurisdiction over torture.

Nevertheless, a state would have jurisdiction over Yoo if one of its citizens was a victim of US torture. Thus, if Yoo were to visit Bosnia (which is a party to the CAT) and Bosnian citizens have been victims of torture in US hands, it would be possible for Bosnia to prosecute Yoo. Indeed, one could argue that as a matter of international law, it is obliged to prosecute Yoo.

Obviously it would be difficult to prove that Yoo's memos directly led to the torture of any particular person. Nevertheless, procedurally, Sands's argument is not as absurd as it may seem at first glance.

Query: Could Yoo be sued under the Alien Tort Statute here in the US? Or does he enjoy absolute immunity for anything he wrote while working at the White House?

11/17/2005 9:54 PM  
Blogger Dapo Akande said...

Milan is wrong when he asserts that "the CAT does not contemplate universal jurisdiction over torture." The CAT (to which the US is a party) does not merely contemplate universal jurisdiction, Art. 5 REQUIRES it in cases where an alleged offender is in the territory of a State party and that State does not extradite him to a State with jurisdiction.

So, the question is not whether a State is permitted to exercise universal jurisdiction, it is whether the relevant prosecuting authority in States are likely to conclude (i) people like Yoo are complicit in torture and (ii) that they should be prosecuted in their State.

In the UK, Criminal Justice Act 1988 allows for universal prosecution for torture but the prosecution must be authorized by the Attorney General. The first such prosecution took place earlier this year of an Afghan warlord. Since these prosecutions are subjected to high level political control it is unlikely that they will be initiated lightly or without serious consideration taken of political consequences. However, in European civil law countries where prosecutions can be initiated by independent prosecutions it is much more likely that this type of action can be brought. In short, it is a serious possibility in that latter group of countries.

11/18/2005 6:06 AM  
Blogger randomopinion said...

Is Sands dead serious? Lets see: (1) Philippe Sands is a lawyer specialized in human rights, (2) one with lengthy experience in cases of this kind, (3) one good enough to be a college professor at an internationally renouned institution, (4) his article cites previously made arguments that have made it through the courts of several countries, and (5) he presents it all as a hypothesis with several very significant caveats. Yes, I believe it’s reasonable to state that he’s dead serious.

What I don’t find so serious is that someone can ask whether such a person, with such arguments, presented in such way, is dead serious. Actually, considering the gravity of the subject matter and the condition of who poses the question, I find it rather frivolous, almost disrespectful.

11/18/2005 7:21 AM  
Blogger Milan said...


Article 5 does not allow for universal jurisdiction. Article 5 contemplates jurisdiction when the torture occurred on one's territory or when the victim is a national of a state or when the perpetrator is a national of the state. The extradition clause you refer to Article 5(b) says that if you do not extradite the alleged torturer to a state with jurisdiction, you must take jurisdiction over the crime. This essentially prevents nations from shielding people from prosecution but would not allow a nation who has no interest under 5(a) to have a separate basis to prosecute. Perhaps it all comes down to what people think "universal" means.

Any thoughts on the Alien Tort Statute and Yoo?

11/18/2005 1:53 PM  
Blogger Dapo Akande said...

Milan, I can't find anything in Art. 5(b) or Art. 7 that supports your point. Art. 5(a) provides for (i) territorial jurisdiction, (ii) nationality jurisdiction and (iii) passive personality or passive nationality jurisdiction. It then provides in 5 (b) that each STate party shall exercise jurisdiction where an alleged offender is present in its territory and it doesn't extradite him. Sounds like universal jurisdiction to me!

11/21/2005 10:59 AM  
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