A
new wind behind
human rights law
By
Jonathan
Power
TFF Associate
since 1991
July 21, 2004
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.
Copyright © 2004 By
JONATHAN POWER
I can be reached by
phone +44 7785 351172 and e-mail: JonatPower@aol.com
Follow this
link to read about - and order - Jonathan Power's book
written for the
40th Anniversary of
Amnesty International
"Like
Water on Stone - The Story of Amnesty
International"
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