Prosecuting Guantanamo in Europe: can and shall the masterminds of the 'torture memos' be held criminally responsible on the basis of universal jurisdiction?

Author:Ambos, Kai

Investigating the secrets surrounding Guantanamo Bay and other U.S. prisons overseas and prosecuting those responsible for serious human rights violations--especially the so-called "harsh interrogation techniques" alluded to in the "torture memos" of the former George W. Bush administration--is currently en vogue in Europe. This paper will show, however, that the chances that such prosecutions will formally commence are rather low. The paper analyzes the jurisdictional and related procedural requirements of such prosecutions in three representative European countries (Belgium, Germany, and Spain). These countries have been selected because they possess different legal regimes for prosecuting extraterritorial offences, which in turn present different legal issues. While Germany has perhaps the broadest universal jurisdiction regime in Europe on paper, Belgium and Spain have been particularly proactive in prosecuting international crimes, despite a recent legislative and policy rollback de facto derogating universal jurisdiction. Taken together, the law and practice in these countries stand for the general trend of a more cautious and restrictive approach with regard to the extraterritorial prosecution of international crimes, replacing universal jurisdiction proper with a subsidiary or cooperative surrogate. This gives reason, in the conclusion of this paper, to reassess the strategy for dealing with international core crimes, turning from a less criminal law or prosecution based to a more comprehensive approach.


    In the infamous "torture memos," i.e., the memoranda concerning the treatment of the so-called "enemy combatants" held at Guantanamo Bay and other U.S. prisons overseas, senior officials of the former Bush Administration argued that "harsh interrogation techniques" were consistent with international law, in particular international humanitarian law. These interrogation techniques included waterboarding, pushing detainees against a wall, facial slaps, cramped confinement, stress positions, and sleep and food deprivation. (1) It was further argued that if an act was committed outside the territory of a State, the human rights law treaties and conventions to which that State was a party would not be binding extraterritorially, and therefore would not be applicable. (2) As to the torture prohibition under international law, it was argued that Article 1 of the Convention Against Torture defines torture as "severe pain" and thus shows that any lesser pain could not be considered torture. Treatment amounting to torture must induce excruciating, agonizing pain equaling serious injuries; (3) the infliction of non-lethal pain is excluded. (4) The treatment of detainees at Guantanamo Bay, which consisted of up to twenty hours of intense interrogations on most days over a period of nearly two months, would thus not amount to inhuman treatment. (5)

    The memos were drafted by senior officials of the Bush Administration. The so-called "Bush Six" were Alberto Gonzales, former Attorney General; Professor John Yoo and Jay Bybee, both from the Office of Legal Counsel of the Justice Department (OLC); Douglas Feith, former Undersecretary of Defense for Policy; William Haynes II, former general counsel for the Department of Defense; and David Addington, former Vice President Richard "Dick" Cheney's Chief of Staff. (6) But the memos were also backed by the White House. As soon as February 7, 2002, President Bush signed an order stating, "I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world...." (7) This presidential order further declared that none of the captured Taliban or al-Qaeda detainees qualified for P.O.W. status according to the Geneva Conventions. (8) Thus, not surprisingly, it has been argued that the U.S. administration entered legal no man's land and set up its own rules. (9) On April 16, 2009, the Obama Administration released four secret memos, produced by the OLC, which authorized interrogators to use the interrogation methods mentioned above. (10) The release of these further memoranda once again led to a call for an independent investigation of the Bush Administration's conduct. (11) On August 24, 2009, Attorney General Eric Holder appointed federal prosecutor John Durham to look into abuse allegations revealed by an internal CIA inspector general's report (12) according to which, inter alia, interrogators once threatened to kill a 9/11 suspect's children and forced another suspect to watch his mother be sexually assaulted. (13) This appointment led to further discussions about the pros and cons of investigating the alleged abuses. (14)

    This paper examines if criminal prosecutions of the masterminds of the torture memos in Europe are legally and politically possible, focusing on the jurisdictional and related procedural requirements in three representative countries (Belgium, Germany, and Spain). Clearly, this is a limited approach in terms of the legal regimes and the countries analyzed. It is however justified for the following reasons. The countries selected constitute a representative sample among the European jurisdictions in that they possess different legal regimes and practices with regard to the prosecution of extraterritorial offences. These differences present, in turn, different legal and practical issues which make their comparison interesting and rewarding with a view to the future of universal jurisdiction in Europe. While Germany currently has perhaps the broadest universal jurisdiction regime in Europe (at least on paper), Belgium and Spain have recently suffered a legislative rollback de facto derogating universal jurisdiction but still are considered as the most active jurisdictions. (15) As to the focus on the jurisdictional and related issues, it should be noted that this does not mean that the relevant substantive law, in particular the form or mode of liability of the (intellectual) authors of the torture memos, does not present tricky problems. The opposite is the case, but at this stage of the proceedings these problems are of no practical relevance and, indeed, they will never become relevant if the result of this investigation--that no prosecutions or even trials will ever take place--proves to be correct.


    1. Belgium

      While torture is a criminal offence under Belgian law as an individual act (16) and a crime against humanity (see infra), Belgium lacks jurisdiction to prosecute the masterminds of the torture memos. The 1993 Belgian law to prosecute international crimes has been amended three times, ultimately preventing victims from directly triggering proceedings and abolishing universal jurisdiction. Thus, it is not surprising that, to the knowledge of this author, so far no complaint with regard to Guantamamo or the torture memos has been filed in Belgium.

      1. The law

        1. The original version of 1993

          In 1993, the Belgian Parliament adopted the "Act Concerning the Punishment of Grave Breaches of the Geneva Conventions and Their Additional Protocols" (Act) (17) in order to incorporate the grave breaches of international humanitarian law as criminal offences in the domestic law. The Act provided for unlimited universal jurisdiction of the Belgian courts, i.e., jurisdiction irrespective of the place of commission and the nationality of the perpetrator or the victim. The relevant provision reads:

          The Belgian Courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed. (18) Thus, a genuine link to Belgium was not required. (19) In addition, the Act applied to any conflict notwithstanding its character as international or non-international; otherwise, crimes committed during the Rwandan genocide, having taken place within the framework of a non-international

          conflict, could not have been prosecuted. (20)

          As to the victim's right to initiate criminal proceedings, it is important to note, first of all, the strong position of victims under Belgian procedural law. (21) Each person allegedly injured by an offence may file a complaint and, in case of the prosecutor's decision not to open an investigation, turn to an examining magistrate (judge d'instruction) as a civil party (partie civile). (22) This procedural situation enables victims to initiate proceedings even if there is no realistic expectation that the suspect will ever enter Belgium territory and can thus be detained by the Belgium authorities. Thus, the absolute jurisdiction rule, combined with the procedural standing of victims, leads to what some call--mixing the jurisdictional with the procedural regime--universal jurisdiction in absentia. (23) I will come back to this conceptual error at the end of this paper. (24)

        2. Amendments

          In 1999 the Act was extended to crimes against humanity and genocide by the Act Concerning the Punishment of Grave Breaches of International Humanitarian Law (25) (the second Act). It adopted, inter alia, the offence definitions as contained in the ICC Statute. (26) Further, Article 9(3) of the second Act extended the victim's right to initiate proceedings for offences that fall under the competence of a military court. (27) Also, Article 5(3) of the second Act explicitly excluded any immunity attached to the official capacity of a person, (28) and on this basis complaints against sitting Heads of State (e.g., Ariel Sharon, Fidel Castro, Jiang Zemin, George H. W. Bush) have been filed. (29)

          More important jurisdictional changes took place in April 2003.30 Belgium came under increasing diplomatic pressure because of the high number of complaints against foreign Heads of State and Ministers such as Donald Rumsfeld. In addition, the International Court of Justice (ICJ) decided in its Arrest Warrant case that a Belgium arrest warrant against...

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