Universal jurisdiction and the Bush administration.

DONALD RUMSFELD may no longer be the secretary of defense, but is he a war criminal? If so, can he be prosecuted and put behind bars? These are crucial and intriguing questions to anyone who feels that Rumsfeld not only bore major responsibility for the secret torturing of Middle Eastern detainees, but was also guilty of war crimes for his part in implementing an illegal and unjust attack on the sovereign nation of Iraq (along with President George W. Bush and Vice President Dick Cheney).

These considerations invite some reflections on the legal concept of universal jurisdiction which, in principal, gives a state criminal jurisdiction to prosecute crimes committed by a person or persons outside that country and regardless of the accused party's nationality. Such action is justified for crimes considered against all humanity, such as genocide and torture.

More than a few unconstitutional laws and covert practices hammered or sneaked through by the Bush administration possibly make universal jurisdiction an increasingly relevant and dramatic juridical protection against the enlarging authoritarian proclivities in White-House governance. These pernicious developments have included, among others, the Patriot Act, warrantless surveillance of U.S. citizens, the scandalous events at Abu Ghraib and Guantanamo Bay, the practice of extraordinary rendition, and, more recently, the terrifying Military Commissions Act of 2006 and the barely noticed John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364). This last act, undercutting Posse Comitatus, enables the president to introduce martial law. Possibly the most sinister of all these proto-totalitarian measures, this act would impose military domination over civil institutions and civilian life, and could ultimately target anyone as an "illegal enemy combatant" to be dealt with accordingly.

Though all the above could embody grave illegal conduct by the state, the Military Commissions Act exonerates war crimes already committed. This in effect provides legal protection for, among other transgressions, the White House's violation of habeas corpus, denial of access by detainees to evidence acquired from them coercively, and the imposition of torture and indefinite confinement.

It is worthwhile then to consider both the potential and the actual power of universal jurisdiction in relation to war crimes committed by government officials. Also called the "universality principle," universal jurisdiction fits neatly into such U.S.-backed global ideals and institutions as the United Nations Charter and the post-World War II Universal Declaration of Human Rights, both of which were signed by the United States. Initially designed to end the "scourge of war" the declaration is expansive enough to stigmatize high-placed political leaders who commit war crimes, crimes against humanity, torture, and genocide. Such a U.S.-supported international ideal could reinforce universal jurisdiction in condemning specific acts and individuals (American or otherwise) who violate these formalized ideals.

Still, these are only ideals and moral sanctions. They seem to lack force against powerful government officials whose unrelenting obstinacy and arrogance are based on their tunnel-vision sense of being right through the privilege of power and immunity. Top-level U.S. officials like Bush, Cheney, Rumsfeld, and Secretary of State Condoleeza Rice would not likely be arrested and detained anywhere through universal jurisdiction. If Germany, for example, arrested any one of the above while in that country, Washington might well threaten Germany formidably. Could it, however, threaten a Germany, Belgium, or Spain serving as the vehicle of international, even global, authority?

The possible confrontation of a super state and an international institution leads to the thorny problem and concept of state sovereignty. According to the United Nations Charter, all states, no matter how tiny, are entitled to have not only their borders but also their leaders safeguarded. What, then, gives one state the right--let alone the power--to try a key state official of another nation?

That right could be based on a sufficient number of significant states responsibly accepting the concept of universal jurisdiction either as a UN resolution or through some other influential international institution or procedure such as the World Social Forum, with its powerful drive for global social-economic egalitarianism and its potential for worldwide, grass-roots organization promoting peace, justice, and environmental sustainability. If universal jurisdiction is truly universal, then it's not only a matter of Germany indicting an American statesperson (or vice-versa) but of the international community through Germany (or any other country) indicting a Rumsfeld, a Pinochet, or a Putin for crimes against humanity or a Bush or a Cheney for initiating war crimes. The amassed weight of the international community would be put upon a transgressor state--again, a primary design of the Universal Declaration of Human Rights.

Washington, granted, has often shown scant respect for international institutions and directives. When, for example, the Reagan administration mined Managua's harbors and financed and trained the Contras, it was condemned almost unanimously by the UN and penalized by the International Criminal Court. Washington totally ignored these two expressions of virtually universal censure.

A contemporary UN, however, that included not only a united Europe but powerful states like China, Japan and Russia, not to mention rising economic powers like India and South Korea, could provide sizable influence against absolutist state sovereignty, especially if these nations were to recognize that their own best interests resided in a flexible balance between sovereignty and just international allegiance and world harmony. Acting on this awareness could lead to some diminution of states committing war crimes.

Christopher Hitchens, in The Trial of Henry Kissinger, argues that "the defense of 'sovereign immunity' for state crimes has been held to be void." Mentioning the landmark case of the Pinochet verdict in England (let alone subsequent developments in Spain and Chile), Hitchens continues, "There is now no reason why a warrant for the trial of Kissinger may not be issued, in any one of a dozen of jurisdictions, and why he may not be compelled to answer it."

Amnesty International claims that the United States is one of a dozen nations undertaking investigations, prosecutions, and trials employing universal jurisdiction to extradite individuals for crimes, including torture. They also insist that "genocide, crimes against humanity, war crimes, and torture fall under international jurisdiction" Washington shouldn't have it all its own way; if it utilizes universal jurisdiction to charge foreigners for war crimes abroad, it should accept extradition or detention of Americans indicted by other nations for war crimes as well.

Hitchens' and Amnesty International's position, along with the current action by a team of lawyers from the Center for Constitutional Rights, formally serving notice in Ger many that Rumsfeld committed crimes relevant to international jurisdiction, suggest that universal jurisdiction could indeed harbor some potency. Realistically, its value boils down to might versus right. Though Washington may not tolerate any nation arresting or international court indicting Kissinger, Rumsfeld, or Cheney for violations of international law while such individuals are in office, their vulnerability out of office could be another matter.

Furthermore, labeling leaders as war criminals could have significant force as a symbolic, psychological deterrent. Both Rumsfeld and Kissinger have been known to contact foreign states to make sure they wouldn't be detained during a visit; detainment, and what it stands for, could prey on their minds. More significantly, other powerful leaders could feel more restrained if their foreign policy might acquire criminal status or liability internationally. If such inhibiting action reduced torture internationally, this would be an enormous advancement toward extending human decency universally. Deterring the war crimes of statespeople would require concerted international condemnation and that might take time and persistence, especially in view of the nationalistic arrogance and unilateralism of the current Bush administration.

However, the more nations that support international condemnation of war crimes and crimes against humanity, the more impact such censure will likely have. And there is always the possibility that someone acquiring central political authority in the United States will realize that the most desirable foreign policy for creating global comity and thus security for the nation is through a policy promoting international humaneness and generosity rather than ruthless domineering. The consequences of strong states going their own way is so dangerous to the world that the instinct of survival, if nothing else, should make such nations come to terms with the crucial value of their international interdependence through such institutions as universal jurisdiction.

Donald Gutierrez is professor emeritus of English at Western New Mexico University. He has published six books of literacy criticism and scholarship and approximately 125 essays, papers, and reviews, most recently focusing on issues concerning human-rights abuses and social justice. He has also been a member of Amnesty International Urgent Action for over twenty years.