Will former Bush administration officials be prosecuted in foreign countries?

Phillipe Sands says yes, here and here. He might be right, but there are grounds for skepticism.

First, some background. International law carves the world into states; within each state, the national government takes primary responsibility for enforcing the criminal law when crimes occur on its territory. States also claim jurisdiction when nationals commit crimes in foreign countries and sometimes when nationals are victims in foreign countries—leading to overlapping jurisdiction that is sorted out in various ways. States typically do not exercise jurisdiction over foreigner-against-foreigner crimes that occur in foreign territory. If a Russian murders another Russian in Russia, then travels to the United States, American authorities will not prosecute him, no matter how horrible the crime.

There is an exception to this rule—the principal of universal jurisdiction, which applies to certain international crimes. In the old days, the rule applied to piracy, which took place outside the territory of any state, and hence did not naturally fall within any state’s jurisdiction. Today, many international lawyers claim that universal jurisdiction applies to a poorly defined group of crimes that includes genocide and probably torture. Thus, in principle, Spain could exercise jurisdiction over certain international crimes committed by Americans against Afghans in Guantanamo Bay. A former Bush administration official or soldier or CIA agent who travels to Madrid in order to take in the splendors of the Prado could conceivably find himself staring at a cell wall.

I write with more hesitation than most international lawyers would. They have been persuaded by the Pinochet case that universal jurisdiction is now an accepted part of international law. In 1998, Pinochet, the then-former, now-dead, Chilean dictator, traveled to Britain for medical treatment, where he was detained on account of an extradition request filed by the Spanish judge, Baltasar Garzón. The British high court ruled that the extradition request was valid, rejecting the argument that Spain’s assertion of universal jurisdiction violated international law. Riots ensued in Chile, where a fragile democracy existed thanks to a tenuous amnesty program that protected Pinochet and his supporters (many in the army), who had killed and tortured thousands during Pinochet’s regime. Despite the high court’s ruling, the British government sent Pinochet home, claiming that he was too ill to stand trial. Pinochet would linger on for another six years after his release in 2000.

The denouement was a disappointment but the precedent had been set, and it is on this basis—plus the existence of laws in various countries that claim universal jurisdiction, and a handful of treaties—that the principle of universal jurisdiction rests.

It doesn’t count, as far as the international lawyer is concerned, that the British government engineered Pinochet’s escape and hence that he was never tried. Nor does it count that Spanish courts refrained from relying on universal jurisdiction when reviewing Garzón’s legal moves. It doesn’t count that when Garzón turned his sights on Spain itself, and sought to scare up Franco’s ghost, which had been so carefully laid to rest in Spain’s transition, the Spanish government showed as much enthusiasm for this inquiry as the Chilean rioters showed for Garzón’s earlier effort, and squelched it. It is all very well to prosecute a traveling foreigner from a developing country whose political system rests on a fragile compromise between authoritarians and democrats, but when it comes time to investigate our (much worse) crimes, well, forget about it!

Nor does it count that the various statutes that assert universal jurisdiction are, by design, limited, to say the least. The Belgian parliament emasculated its statute when Donald Rumsfeld pointed out that western governments would not want to hold NATO meetings in a place where government officials might be indicted—at the time, Ariel Sharon was under investigation, and (possibly frivolous) complaints had been filed against American generals and President George H.W. Bush, on account of the first Gulf War. Other countries, like Germany, ensure that complaints can’t lead to investigations without the consent of government authorities, in a departure from civil law criminal procedure. Amnesty International claims that most countries recognize universal jurisdiction in domestic statutes, but the number of successful prosecutions based on that principle is extremely low. The political risks of prosecuting foreigners for their crimes against foreigners on foreign soil are usually just too high.

All of this suggests that the hoped-for foreign trials of former Bush administration officials will not happen anytime soon. But this is not to say that such trials are impossible. Pinochet’s lawyers did not expect his apprehension in Britain. European countries have independent judiciaries, and they are capable of acting in ways that their governments—which, for reasons I explained in my last post, have no interest in prosecuting former Bush administration officials—disapprove. Still, the short, undistinguished history of universal jurisdiction so far might give pause even to crusaders like Garzón.