LONDON – Just when the cause of human rights seemed becalmed a new wind has blown up. The Guantanamo case before the U.S. Supreme Court was but one sign. All manner of influences are driving U.S. law to practice what political leaders have preached against – the globalization of U.S. human rights law.
The Guantanamo case was the easy one. The Administration did not have that much of a leg to stand on. But in another more difficult decision decided the next day the Supreme Court protected the right of foreigners under the Alien Tort Claims Act to sue in U.S. courts over serious human rights offences committed outside the U.S..
Also in the same week the U.S. was forced into an important compromise over the reach of the International Criminal Court, established by statute in 1998 to try those accused of grave war crimes or crimes against humanity when the domestic courts of the accused refuse to act. Despite the latter provision the U.S. has bitterly fought against the reach of the Court, cajoling and threatening many countries into promising to exempt the U.S.. But Washington felt compelled last month to withdraw a UN resolution that would have given its troops working in Iraq, Afghanistan and other UN approved peacekeeping operations immunity from possible prosecution.
But all these developments have been creeping up on the Administration, even as it insisted it had taken the high ground against them. Back in 1994 the U.S. Congress passed a law that enabled the Department of Justice to prosecute people who committed torture anywhere in the world, so long as they were physically living in the U.S.. According to Amnesty International there are at least a thousand human rights abusers who have fled to the U.S. believing they can be lost in the crowd. However, until July 2002 the Department of Justice never successfully prosecuted any of these human rights abusers and then when it finally did it did so on the less direct grounds of perjury. The accused, Eriberto Mederos, was convicted of having lied on his citizenship application when he was asked if he had ever participated in the persecution of any person. The jury found that he had administered electro-shock therapy to political opponents of the Castro regime in Cuba.
The ruling of the Supreme Court will have the effect of giving this rather lethargic legislation an extra push besides opening the door to more cases brought under the Alien Tort statute. Moreover, we are much less likely to see a repeat of the case when one of Peru’s most notorious suspected torturers was freed, after the Department of Justice decided to prosecute him, when the State Department intervened claiming he had diplomatic immunity.
In recent years the San Francisco-based Center for Justice and Accountability has had some success in bringing to justice several human rights perpetuators resident in the U.S., ranging from a former Bosnian Serb soldier who tortured non-Serbs in detention camps to two retired Salvadoran generals who commanded forces that committed widespread torture. From now on, the Center’s director, Sandra Coliver, argues, it will easier to bring more cases to the courts and judges will have little reason to refuse to hear them.
The rulings of Britain’s highest court, the House of Lords, are often perused in landmark cases by the justices of the Supreme Court. One of the most recent was the decision in 1999 to lift the sovereign immunity of General Augusto Pinochet who was wanted for trial in Spain on charges of torture. The law lords decided that since the Thatcher government of the U.K. had ratified the UN Convention Against Torture (as did the Reagan Administration) there were grounds for lifting a former head of state’s traditional immunity. Since then there has been a great deal of legal discussion in the U.S. whether the Supreme Court would make a similar ruling in a similar case and the feeling is it might well. Not unconnectedly, there has been a noticeable drop in human rights abusers, who have held high office in government or the military, visiting both Europe and the U.S. Since they have often been wealthy enough to seek medical treatment and own property in the West this is a sacrifice.
What will be interesting to watch is if, given the legal wind blowing behind them, some of the activist human rights groups in the U.S. decide that the Administration has not been thorough enough in its prosecution of alleged U. S. war crimes in Iraq and find a way to bring a case against high military and civilian officials, and how the Supreme Court will eventually rule on that.
Henry Kissinger recently wrote in a disparaging, even despairing, tone in Foreign Affairs of how “an unprecedented movement has emerged to submit international politics to judicial procedures [and] has spread with extraordinary speed.” Now, pace the politicians, it appears to have arrived in the U.S. too.
