GEORGE W. Bush, former US president, and ex vice-president Dick Cheney and defence secretary Donald Rumsfeld should think twice before they embark on travel outside their country. As Prof Stephen I. Vladeck of the American University in Washington warned, “If I am someone implicated in the torture report, I am thinking twice about travelling to Europe any time soon.”

He was alluding to a document and a famous precedent. The US Senate had released the report of an internal investigation into CIA interrogation techniques which clearly established that they had been approved by Bush, Cheney and Rumsfeld.

The precedent was the detention of the former Chilean dictator, Augusto Pinochet, in Britain for several years as a result of an extradition request from a judge in Spain who sought to try him for crimes committed against Spanish nationals in Chile when he was its president. He was charged with practice of torture. In issue was the applicability of the Con­vention against Torture and other Cruel, Inhu­man or Degrading Treatment or Punish­ment. It defines the offence in the widest terms to include “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”, is authorised, or acquiesced in, by a public official, inter alia to obtain information or a confession.

Ironically, it is the US which blazed the trail for ‘universal jurisdiction’.

More, it binds the states to punish torturers, including one of a foreign nationality, even if the offence was committed on foreign soil, once he “is present” in the state’s own territory; provided that the victim was its national and it chooses not to extradite the offender to his country. On March 24, 1999 the House of Lords ruled (6-1) that Pinochet was not entitled to claim immunity from the jurisdiction of the English courts.

The impact of the ruling was well described by Philippe Sands in his book Lawless World: “Internationally, every head of state now knows that he or she may be accountable for the consequences of acts which massively and systematically violate fundamental human rights laws and international criminal laws. Despots and dictators, indeed anyone who might be accused of committing international crimes, will now travel abroad with a great deal more trepidation.”

Which is why, no sooner than the US Senate released the report, the UN high commissioner for human rights, Zeid Ra’ad Zeid al-Hussein said in a formal statement last month that while he welcomed the release of the Senate report, he hoped it would lead to accountability of those who ordered, enabled or carried out torture. “The convention lets no one off the hook — neither the torturers themselves, nor the policymakers, nor the public officials who define the policy or give the orders.”

A few days later, the chief prosecutor at the International Criminal Court at The Hague Fatou Bensouda confirmed she was assessing available information on the American military’s “enhanced interrogation techniques”. Over 120 countries have submitted themselves to the authority of that court. Any of them can arrest a torture suspect and then turn him over to the court; especially if the country of which the suspect is a national evinces no interest in trying him.

The dishonest legal memoranda by the US administration’s lawyers in justification of the practice of torture themselves nail Bush & Co. They would not have been manufactured if torture was not in vogue.

They dutifully opined that international conventions did not apply. The abuses at Abu Ghraib and Guantan­amo, including waterboarding, followed inexorably.

Ironically it is the US itself which blazed the trail for the establishment of “universal jurisdiction”. The Alien Tort Claims Act of 1789 says “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”, wherever it may have taken place.

In 1980, the family of a Paraguayan man who had been tortured to death brought a civil action against the alleged perpetrator while he was physically present in the US. Plaintiffs have brought several other cases against perpetrators of human rights violations committed abroad.

Cases have been brought against contractors providing interpretation and interrogation services to the US at Abu Ghraib prison in Iraq in respect of torture and inhuman or degrading treatment and against Blackwater (a private military contractor) alleging war crimes in connection with the killing of civilians.

The Pinochet precedent proved as infectious. A case was brought in Belgium against Israel’s late prime minister Ariel Sharon for his role in the killings of Palestinian refugees in Lebanon.

As the Nuremberg tribunal, which tried the Nazi leaders for war crimes, said: “Crimes against international law are committed by men, not by abstract entities; and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, January 10th, 2015

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