Sunday, September 07, 2008

Elaine Scarry explains in devastating detail why not holding accountable the Bush Adminstration for sanctioning torture is not allowed

The question remaining is, are we a country of law, or not? If so, there is no alternative. If not, what have we become?

from the (this is the end of a very long article)

...Finally—and for us, most important—the international rules against war crimes and torture do not allow prosecution to be thought of as discretionary; they do not allow an escape provision based on electoral euphoria or on one’s doubts about one’s own stamina in fighting injustice. Very distant from a mere disinclination to prosecute is a country’s act of granting an amnesty. The international laws about some criminal acts do, in fact, allow for amnesty if required to establish peace. But torture is not one of those crimes. As Michael Scharf writes, the Commentary to the Geneva Conventions (the “official history” of their adoption) “confirms that the obligation to prosecute is ‘absolute,’ meaning . . . that states parties can under no circumstances grant perpetrators immunity or amnesty from prosecution for grave breaches.”63 So, too, the Convention against Torture requires that states “submit” cases to the “competent authorities for the purpose of prosecution.”64 This means, writes Scharf, that “where persons under color of law commit acts of torture in a country that is a party to the Torture Convention, the Convention requires Prosecution.”65

The United States is a party to these agreements. The duty to prosecute means that the failure of a government to do so violates international law and that the country reneges on its treaty obligations.66 It also increases the pressure of other countries to bring cases against President Bush, Vice President Cheney, and former Secretary of State Rumsfeld based on the principle of “universal jurisdiction” that permits all parties to a treaty to prosecute grave war crimes that originated in another country.

It is odd that the designers of the Brattleboro resolution used “universal jurisdiction” as one of its legal bases, since that doctrine exists to enable countries distinct from the wrongdoer’s home ground to indict and arrest them. It is also odd that New York City’s Center for Constitutional Rights ,which in 2004 successfully argued for Guantánamo detainees to be heard in federal court, a year later chose to file a torture case by Iraqi prisoners against Donald Rumsfeld in Germany rather than in the United States. Their choice of venue was based on the fact that Germany has an explicit statute permitting them to try war crimes carried out anywhere in the world if the home country neglects to do so. The logic both in Vermont and New York seems to be: if the doctrine of universal jurisdiction allows citizens of a different country to try a case, surely it authorizes citizens of the home country to do so. Perhaps the valiant Brattleboro citizens and the stern fighters at the Center for Constitutional Rights doubt whether the ground they stand on is still in the United States. Can the ground be put back under their feet? How long?

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