On Universal Jurisdiction, Those Pesky Spanish Judges and Canada's War Crimes Legislation

The Washington Post looks at Spain's National Court justices, who seek to hold the United States and other nations accountable for alleged war crimes and crimes against humanity, wherever they have occured, based on the legal principle of universal jurisdiction:

Judges at Spain's National Court, acting on complaints filed by human rights groups, are pursuing 16 international investigations into suspected cases of torture, genocide and crimes against humanity, according to prosecutors. Among them are two probes of Bush administration officials for allegedly approving the use of torture on terrorism suspects, including prisoners at Guantanamo Bay, Cuba.

The judges have opened the cases by invoking a legal principle known as universal jurisdiction, which under Spanish law gives them the right to investigate serious human rights crimes anywhere in the world, even if there is no Spanish connection.

... Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue Scilingo, said the universal-jurisdiction cases have valuable secondary effects. Officials targeted by Spanish judges need to be careful about where they travel; Spanish arrest warrants are generally enforced throughout Europe but also sometimes in Mexico and other countries.

...Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.

In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.

More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.

See: Spain's Judges Cross Borders In Rights Cases - High-Ranking U.S. Officials Among Targets of Inquiries.

Also see Wikipedia's article on universal jurisdiction, for a good backgrounder.

.....

Canada Convicts Rwandan War Criminal

Earlier this week, on May 22, 2009, a 42 year-old Rwandan man was convicted in the Quebec Superior Court on seven counts of genocide, war crimes, and crimes against humanity in Canada's first prosecution under the 2000 Crimes Against Humanity and War Crimes Act.  

Canadian Press  reported on the conviction:

MONTREAL — A Rwandan man accused of murdering and raping Tutsis during that country's bloody genocide some 15 years ago has become the first person ever to be convicted under Canada's war crimes legislation.

Lawyers for Desire Munyaneza immediately said they would appeal a Quebec Superior Court ruling that found their client guilty of seven charges stemming from war crimes committed during the 1994 Rwandan genocide.

Quebec Superior Court Justice Andre Denis said he was convinced that Munyaneza was guilty of all the charges against him, making Munyaneza the first person to be convicted under Canada's Crimes Against Humanity and War Crimes Act.

Munyaneza, a 42-year-old father of two, faced seven charges related to genocide, war crimes and crimes against humanity for his role in massacres and rapes near Butare, Rwanda, between April and July of 1994.

Sections 6 and 9 of the federal Crimes Against Humanity and War Crimes Act  (excerpted below) grant jurisdiction to Canadian courts over war crimes and related offences committed outside Canada including crimes involving torture and conspiracy to commit to torture: 

OFFENCES OUTSIDE CANADA

Genocide, etc., committed outside Canada

6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada

(a) genocide,

(b) a crime against humanity, or

(c) a war crime,

is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

Conspiracy, attempt, etc.

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.

Punishment

(2) Every person who commits an offence under subsection (1) or (1.1)

(a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) is liable to imprisonment for life, in any other case.

Definitions

(3) The definitions in this subsection apply in this section.

"crime against humanity" 
«crime contre l’humanité »

"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"genocide" 
«génocide »

"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"war crime" 
«crime de guerre »

"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission...

PROCEDURE AND DEFENCES

Place of trial

9. (1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

- Garry J. Wise, Toronto

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Judge Bybee Defends His Torture Memo

The New York Times reports that Judge Jay S. Bybee has issued a statement, defending his August 1, 2002  legal memorandum that purported to provide legal cover to the Bush administration for the use of specified torture techniques, including waterboarding:  

Judge Bybee... said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said.

“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

Andrew Sullivan has responded with a veritable knockout punch:

Let me give a simple small example, helpfully laid out here. Bybee was able to defend waterboarding as non-torture in a legal memo ostensibly providing objective analysis of the case history of the torture technique in the US. Among the obvious precedents for such a decision was the most recent case - when the Reagan administration Justice Department prosecuted a Texas sheriff and his deputies for waterboarding a suspect to get a confession in 1983:

At the trial of the Texas sheriff, Assistant US Attorney Scott Woodward said the prisoners who were subjected to waterboarding were not "model citizens," but they were still "victims" of torture. "We make no bones about it. The victims of these crimes are criminals," Woodward said, according to a copy of the trial transcript. One of the "victims" was Vernell Harkless, who was convicted of burglary in 1977. Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting "the water treatment."

"A towel was draped over his head," Magee said, according to court documents. "He was pulled back in the chair and water was poured over the towel." Harkless said he thought he was "going to be strangled to death," adding: "I couldn't breathe." One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act, but he was unaware that it was illegal. His attorneys cited the "Nuremberg defense," that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.

The Reagan Justice Department - back when Republicans opposed torture - did not buy this defense and neither did a jury. They convicted the the deputy on three counts of civil rights and constitutional violations. Now: this case occurred before the UN Convention on Torture went into effect, but any good faith legal memo explaining the history of this particular torture technique would surely have cited it. It's easily findable with Google, let alone with the research resources available to the Office Of Legal Counsel.

I honestly cannot imagine how a serious legal memo with respect to a very rare torture technique would not cite the most recent domestic precedent, finding that it violated the constitution. Can you?

Think Progress reports that Judge Bybee has been asked to testify before the Senate Judiciary Committee:

Today, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) sent a letter to Judge Jay Bybee inviting him to testify about his “views” about torture and his “role” in drafting the torture memos. “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House,” Leahy wrote. “I look forward to your cooperation and your testimony.” Read Leahy’s letter (pdf) here.

Meanwhile in Spain, investigations have begun into the torture practices at Guantanamo, according to Associated Press.  Specific focus appears to directed on the Bybee legal memorandum and other "torture memos" prepared for the Bush administration by the Office of Legal Counsel.

MADRID – A Spanish judge opened a probe into the Bush administration over alleged torture of terror suspects at Guantanamo Bay, pressing ahead Wednesday with a drive that Spain's own attorney general has said should be waged in the United States, if at all.

Judge Baltasar Garzon, Spain's most prominent investigative magistrate, said he is acting under this country's observance of the principle of universal justice, which allows crimes allegedly committed in other countries to be prosecuted in Spain.

He said documents declassified by the new U.S. government suggest the practice was systematic and ordered at high levels of the US government.

...Now, Garzon is opening a separate, broader probe that does not name any specific suspects but targets "possible material authors" of torture, accomplices and those who gave torture orders.

In a 10-page writ, Garzon said documents on Bush-era treatment of prisoners, recently declassified by the Obama administration, "reveal what had been just an intuition: an authorized and systematic plan of torture and mistreatment of persons denied freedom without any charge whatsoever and without the rights enjoyed by any detainee."

Garzon cited media accounts of the documents and said he would ask the U.S. to send the documents to him.

The judge wrote that abuses at Guantanamo and other U.S. prisons for terror suspects, such as the American air base at Bagram, Afghanistan, suggest "the existence of a concerted plan to carry out a multiplicity of crimes of torture."

- Garry J. Wise, Toronto

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Spanish Judge Overrides His A.G. - Will Pursue Torture Investigations

From the Center for Constututional Rights:

April 17, 2009, New York –The Center for Constitutional Rights (CCR), which represents many of the men detained by the U.S. government at Guantánamo, praised Spanish judge Baltazar Garzon’s decision to pursue a criminal investigation into the actions of six Bush administration lawyers for providing legal cover for torture at the base. His move comes the day after the Spanish attorney General overrode his prosecutors to recommend that the case not go forward. CCR attorneys hailed the decision as an important step in holding these officials and others accountable for their crimes. The case may well lead to investigations of top officials, including Donald Rumsfeld and Dick Cheney. 

...CCR Executive Director Vincent Warren said, “It is gravely disappointing that we must rely on European countries like Spain to hold U.S. officials accountable for war crimes.  This is a golden moment for the current administration to appoint a special U.S. prosecutor and break with the illegalities of the past.” 

CCR Vice President Peter Weiss, an expert in international human rights law, said, “It was the lawyers who flashed the green light for torture with their mendacious made-to-order opinions. They therefore bear the primal guilt for the torture which occurred.”

- Garry J. Wise, Toronto

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"Bush Six" Likely to Face Torture Charges in Spain

Lawyer and Harpers columnist Scott Horton provides an update:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast.

According to Mr. Horton, in addition to charges against Mr. Gonzales, indictments will be also be sought against John Yoo, David Addington, Jay Bybee, William J. Haynes II and Douglas J. Feith on "charges that they conspired to introduce a regime of torture that resulted in the torture of five Spaniards held at Gitmo."

The six defendants—in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington, and former Undersecretary of Defense Douglas J. Feith—are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.” 

CNN also addresses these developments in the video below:

- Garry J. Wise, Toronto

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