Ariel Meyerstein

Caron, David D.

Berkeley Law -University of  California

Forum [Reproduced from] SAN FRANCISCO DAILY JOURNAL ● THURSDAY, JANUARY 15, 2009 ● PAGE 6 A Pre-Emptive Pardon for Those Who Tortured Could Backfire  By David D. Caron  and Ariel Meyerstein        he Bush Administration's modus operandi in its  campaign against the      threat of global terrorism has been to pre-empt the normal flow of both domestic and international legal processes. It should come as no surprise then that one of the president's potential final official sovereign acts – a broad pardon of all the individuals involved in the capture, detention and interrogation of suspected terrorists - may come before any individual is even indicted for any wrongdoing. Though the court of public opinion has historically viewed some pardons as less legitimate than others, the president has in effect enjoyed substantial discretion to construct pardons as he sees fit. But before those disgusted by the prospect of impunity for the sins of Guantanamo and Abu Ghraib throw their hands up in despair, they should consider the international legal ramifications of a preemptive pardon: Ironically, the domestic safety from prosecution possibly gained by a Bush pardon may in fact make those it seeks to protect even more vulnerable in the international arena.      Prosecution by the International Criminal Court of the crimes allegedly committed by Bush administration officials is a virtual impossibility because the U.S. is not subject to its jurisdiction and any Security Council referral would be subject to U.S.-veto. Nevertheless, individual countries may still tale up the cause independently because war crimes, torture and forced disappearances are considered, alongside other crimes such as genocide and crimes against humanity, to be crimes committed against the entire community of nations, and international law provides universal jurisdiction for their prosecution. This means that any state may exercise criminal jurisdiction to punish offenders based solely on the egregious nature of these crimes, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. Some treaties, such as the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, also place a legally binding obligation on countries that have ratified them to exercise universal jurisdiction over the accused or to extradite them to a country that will.      Domestic implementing legislation of the principle of universal jurisdiction in several countries has created some obstacles to the actual exercise of such jurisdiction. One recurring impediment is the reliance by foreign legislatures and prosecutors on the "subsidiarity" principle, which, out of respect for the sovereignty of other countries, emphasizes that universal jurisdiction is a "reserve tool" in the fight against impunity. The principle creates a hierarchy of responsibility where the international community defers to the courts of the country or countries with the closest "nexus" to the violation (whether because the accused is a national or because it is the territory in which violations allegedly occurred) to exercise jurisdiction over international crimes, with other countries assuming jurisdiction only if the national or territorial countries are unable or unwilling to prosecute. Another obstacle to the exercise of universal jurisdiction has been countries' reluctance to exercise universal jurisdiction over individuals in absentia, making their physical presence in their territory necessary to any criminal prosecution.      The subsidiarity principle was used as justification by the German federal prosecutor last year in dismissing a complaint brought against Donald Rumsfeld, former Attorney General Alberto Gonzales and others for their alleged responsibility for torture and war crimes committed at Abu Ghraib and Guantanamo. Noting that U.S. authorities were already investigating torture allegations against low-ranking soldiers, the German prosecutor somewhat obliquely explained that Germany was obligated to allow U.S. authorities to handle the situation as they saw fit, and could only assume jurisdiction if the U.S. investigation was superficial or undertaken without a serious intent to prosecute. (The victims' lawyers assert, however, that this complaint and a previous one in Germany and another in France, actually were rejected because of political pressure from the U.S.)      he proposed pardon, however, would go a long way to neutralize any      future prosecution-dodging because it forecloses the possibility for U.S. prosecutions. Nor would the Obama administration's rumored plans to form a commission of inquiry alter the effect of the pardons. The subsidiarity principle would not longer be a bar. If it has been cited merely as a cover, then that fig leaf would no longer be available. International law does not call for mere investigation of gross violations of international             law, but prosecution and punishment.      Even with the subsidiarity principle removed as a bar to prosecutions abroad, countries may still refuse to exercise universal jurisdiction in absentia. Though this might preclude trials, there would be consequences, in some ways, poetic consequences.      If the victims' lawyers' strategy of filing dozens of cases in as many countries as possible continues, then at the very least, former Bush administration officials involved in the alleged abuses of the "war on terror" would no longer have complete freedom to travel wherever they wish for fear of being served with court papers or arrested by authorities, thus mirroring the lack of freedom placed on those caught in the Bush administration's interrogation regime.      A constant theme of the Bush administration has been its ability to stand apart from the world and from the international legal system that the United States itself built and championed. Over the last eight years, we have seen that a nation can stand apart or even in opposition to the international legal system, but that such a course of action comes with much long-term damage and costs. Ironically, a presidential pardon stands totally apart. It has no bearing on whether war crimes occurred under international law, it can only remove one bar to other nations examining that possibility.  David D. Caron is the C. William Maxeiner Distinguished Professor of Law at U.C. Berkeley School of Law and Ariel Meyerstein is a legal adviser to the Iran-United States Claims Tribunal.       T    T

A Pre-emptive Pardon for Those Who Tortured Could Backfire

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A Pre-emptive Pardon for Those Who Tortured Could Backfire

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