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3. Universal Jurisdiction as Praxis
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| 87 3 Universal Jurisdiction as Praxis An Option to Pursue Legal Accountability for Superpower Torturers Lisa Hajjar After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account. —Maj. Gen. (Ret.) Antonio Taguba1 In June 2009, Wolfgang Kaleck, a German lawyer and one of the world’s leading proponents of universal jurisdiction (UJ), published an article titled “From Pinochet to Rumsfeld.”2 The focus is on Europe between 1998 (the year former Chilean dictator Augusto Pinochet was arrested in London on a Spanish warrant) and 2008. During this decade, significant strides in the development and use—the praxis—of UJ have made it possible to indict former U.S. Defense Secretary Donald Rumsfeld in a European court for authorizing and abetting the crime of torture in the context of the post–9/11 “war on terror.” If UJ were merely a fanciful debating point for cocktail party conversations about impunity for gross crimes, the U.S. State Department (and ministries of other countries) would not be devoting resources and political capital to counter efforts to bring officials to justice abroad. Likewise, Rumsfeld would not have beaten a hasty retreat from France in October 2007 (on a personal visit after he was out of office) when a criminal complaint was filed against him in Paris.3 And John Yoo, a Berkeley law professor who served as deputy attorney general in the Justice Department’s Office of Legal Counsel from 2001 to 2003 and authored some of the most notorious “torture memos”4 88 | Lisa Hajjar and participated in the so-called “war council”5 where U.S. interrogation and detention policy was devised, would not have foregone a planned semester in Italy had he not perceived that this might put his freedom at risk. In this chapter, I put these events and prospects in context, beginning with the nineteenth-century origins of the doctrine of UJ and its relationship to emergent norms of universal humanity and humane treatment. Those innovationsforeshadowedandinformedtwentieth -centurytransformationsininternational law, including the prohibition and criminalization of a growing array of violent and harmful practices. The prosecution of German and Japanese officialsinpost–WorldWarIItribunalswasagroundbreakingeventintermsof accountabilityforcrimesofstate,albeitaseeminglysingularonebecauseimpunityforviolationsofinternationallawwasthedefactoruleduringtheColdWar decades. Since the late 1980s, however, new opportunities for accountability have burgeoned, including national prosecutions of perpetrators of previous regimes,6 andtheestablishmentofinternationaltribunalsandcourts. Universal jurisdiction is a distinct method and model of accountability: it permits individuals accused of gross human rights violations and grave breaches of the Geneva Conventions to be prosecuted in foreign national legal systems with no connection to the crime. The “Pinochet precedent” was a landmark in the contemporary praxis of UJ, inspiring governments (mostly in Europe) to incorporate the doctrine into their national systems. However, quests to indict foreign officials, especially from powerful, allied, or important trading-partner states (i.e., the United States, Israel, and China) resulted in political backlash and diplomatic pressure to amend (i.e., narrow) or discard those national UJ laws in some countries. But recent de-universalizing law reforms are rife with logical contradictions and jurisdictional ambiguities , and to the extent that they contravene states’ treaty obligations, they will be challenged in the coming months and years by lawyers committed to the enforcement of international law.7 Consequently, UJ is an evolving legal paradigm and its prospects are a work-in-progress.8 As a point of clarification, my interest in UJ is sociolegal rather than (restrictively ) doctrinal; I emphasize the concept’s analytic and political utility, which derives from its combination of individual criminal accountability, the prosecutability of practices that have come to be defined as core crimes under international law, and the role of national legal systems in international law enforcement .ForreasonsthatIexplain,andasdemonstratedbytheempiricalrecord,of all the crimes subject to UJ, torture stands out for its prosecutability. In this vein, I conclude with an argument about why UJ might be the best option among all the alternatives for holding “superpower torturers” legally accountable. [3.236.55.137] Project MUSE (2024-03-28 23:14 GMT) Universal Jurisdiction as Praxis | 89 Origins and Foundations The nineteenth-century “universe” was a racially and politically hierarchical maritime world dominated by European imperial states, and modern international law and order was a nascent project. The origins of the doctrine of universal jurisdiction (UJ) trace back to efforts to...