Published on Monday, November 14, 2005 by the San Francisco Chronicle
Policymakers on Torture Take Note -- Remember Pinochet
by Philippe Sands
Before embarking on international travels, David Addington and others who are said to be closely associated with the crafting of the Bush administration's policy on the interrogation of detainees would do well to reflect on the fate of Augusto Pinochet.
The Chilean senator and former head of state was unexpectedly arrested during a visit to London on Oct. 16, 1998, at the request of a Spanish judge who sought his extradition on various charges of international criminality, including torture.
The House of Lords -- Britain's upper house -- ruled that the 1984 convention prohibiting torture removed any right he might have to claim immunity from the English courts and gave a green light to the continuation of extradition proceedings.
As counsel for Human Rights Watch, I participated in that case. This allowed me to witness the case firsthand. It also gave me the opportunity to chat with Pinochet's advisers, and one conversation in particular has remained vividly at the forefront of my mind.
"It never occurred to us that the torture convention would be used to detain the senator," remarked the human rights adviser who had been involved in the decision by Pinochet and Chile to ratify the Convention Against Torture in 1988.
Pinochet spent more than a year in custody before being returned to Chile on medical grounds.
The adviser's words came back to me recently, during a debate with Professor John Yoo at the World Affairs Council of San Francisco.
Yoo, a UC Berkeley law professor, is the author of legal advice that rode roughshod over the torture convention, and contributed to at least one opinion that ignored the well-established international definition of torture.
These opinions are plainly inconsistent with the requirements of international law. They may have opened a door into the forbidden world of torture, and were perhaps offered as part of a policy on the part of the U.S. administration to allow more aggressive interrogation techniques in the "war on terror."
Yoo was well aware of the torture convention. However, when I raised the Pinochet precedent in our debate, he seemed slightly taken aback.
It seems he may not have turned his mind to the possibility that a legal adviser associated with a policy that permits torture contrary to international legal obligations could be subject to international investigation.
How might this happen?
The United States has led the world in promoting international human rights laws. It played a leading role in negotiating a global convention that would outlaw the use of torture in any circumstances.
The convention sets up an elaborate enforcement mechanism. The United States and the 140- plus other countries that have joined the convention agree to take certain actions if any person who has committed torture is found on their territory.
Such a person is to be investigated, and if the facts warrant, must either be prosecuted for the crime of torture or extradited to another country that will prosecute.
The convention intends to avoid impunity for this most serious of international crimes by removing the possibility that the torturer will be able to find any safe haven. This was the basis for Pinochet's arrest in Britain.
The potential problem for Yoo, vice presidential chief of staff David Addington and others who may have been associated with torture, is to be found in Article 4 of the convention. This section criminalizes not only the act of torture itself but also other acts, including "an act by any person which constitutes complicity or participation in torture."
Can the mere drafting of legal advice that authorizes a policy of torture amount to complicity in torture?
Any case will turn on its particular facts. A prosecutor would have to establish that there was a direct causal connection between the legal advice and the carrying out of particular acts of torture, or perhaps a clear relationship between the legal advice and a governmental policy that permitted torture (or turned a blind eye to it).
That evidence is not yet established, and it would be inappropriate to prejudge the outcome of any investigations that may be carried out in the future.
Nevertheless, those associated with the legal opinions and their surrounding policies should be aware that there is case law from Nuremberg that suggests that lawyers and policymakers can be criminally liable for the advice they have given and the decisions they have taken.
In the case of United States vs. Josef Altstotter, some of the accused were lawyers who had been involved in enacting and enforcing Nazi laws and Hitler decrees that permitted crimes against humanity. None of the defendants was charged with murder or the abuse of a particular person. They were charged with participating in a governmentally organized system of cruelty. As the tribunal put it: "The dagger of the assassin was concealed beneath the robe of the jurist." Eight of the 14 were convicted in December 1947 for "complicity in international crime."
It is not just lawyers who should beware. Some media reports have suggested that a chief architect of the policy that gave rise to the legal advice was Addington, who has recently been appointed as the vice president's chief of staff, after Lewis Libby's indictment and resignation.
If Addington did play such a role, and if further evidence emerges that acts of torture resulted from the existence of any such policy, then he too may wish to reflect carefully before embarking on foreign travels.
Responsibility may go even higher in the administration's hierarchy.
These are early days in understanding the precise relationship between the administration's policy on detainee interrogations, the legal advice and the allegations of abuse at Guantanamo, Abu Ghraib and elsewhere.
There is a need for a full and independent investigation. There is an urgent need to bring into law Sen. John McCain's sensible and welcome proposal to explicitly ban abusive treatment and give effect to the United States' obligations under the torture convention.
In the meantime, the Pinochet and Altstotter cases and the torture convention should serve as a salutary reminder of the growing reach of international criminal law.
The possibility cannot be excluded that the Pinochet precedent will come back to haunt Addington, Yoo and others in the Bush administration. International law is not just for other people in other countries. Ignoring it will not be cost-free, including worries about foreign travel, as former Peruvian president Alberto Fujimori learned last week when he was taken into custody in Chile.
Philippe Sands is professor of law at University College London and a practicing barrister. He is the author of "Lawless World: America and the Making and Breaking Global Rules," published by Viking. Contact us at insight@sfchronicle.com.
Category: torture