Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture

Abstract

This article examines the efforts to hold high-level US officials accountable for their alleged role in the torture and other serious abuse of detainees under US control through the principle of universal jurisdiction. First, it sets out what is known about United States detention and interrogation practices during the so-called ‘war on terror’, and what efforts, if any, have been undertaken in the United States to hold individuals accountable for their role in the torture and serious abuse of detainees. After a preliminary comment on the definition of torture, it examines the factual and legal underpinnings, and adjudicative results of the cases filed in this regard in Germany and France, and the recent efforts undertaken in Spain. It concludes by enquiring about the role and future of universal jurisdiction, particularly in cases of powerful defendants, in closing the impunity gap for serious violations of international law. After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question is whether those who ordered the use of torture will be held to account. — Maj. General Antonio M. Taguba (US-Ret.), led the US Army’s official investigation into the Abu Ghraib prisoner abuse scandal.1 In releasing these [torture] memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution . … This is a time for reflection, not retribution. — President Barack Obama, on release of legal memos that govern interrogations using ‘enhanced interrogation techniques’, including acts recognized to be torture.2