Trials for ‘Enemies of All Mankind’? Count the U.S. Out

The extradition of the notorious Ricardo Miguel Cavallo from Mexico to Spain last week has given comfort to victims of Argentina’s “dirty war.” It’s a comfort the United States would deny.

Cavallo, a former navy lieutenant, is accused of torturing and murdering hundreds of people at a clandestine detention center used by Argentina’s military dictatorship from 1976 to 1983. Cavallo’s transfer to Spain from his hiding place in Mexico -- where he lived for nearly a decade under an assumed name -- marks the first time that one country has extradited a person to another country to stand trial for human rights abuses that happened in a third. The fact that Mexico’s government and courts recognized Spain’s jurisdiction to prosecute atrocities committed in Argentina makes the world a much smaller place for people like Cavallo.

Cavallo’s Argentine accusers sought justice in Spain only after the courthouse doors at home were shut by amnesty laws. Spanish judge Baltasar Garzon indicted Cavallo under a Spanish law incorporating the principle of “universal jurisdiction”: the rule that every state has an interest in bringing to justice the perpetrators of the worst human rights crimes, no matter where the crime was committed. Using the same law, in 1998 Garzon tried to prosecute Augusto Pinochet, then in Britain, for atrocities committed during his 17 years as president of Chile. (Although he wasn’t extradited to Spain, the British sent him back to Chile, where he was stripped of his immunity and indicted. Ultimately he was declared unfit to stand trial.)

Universal jurisdiction is international law’s answer to the impunity that torturers and tyrants often enjoy at home, and it has been written into a number of treaties seeking to deny safe havens for those responsible for serious crimes. As a U.S. court said in the landmark 1980 Filartiga case, which allowed a U.S. civil law to be used to prosecute a Paraguayan torturer living in Brooklyn, “the torturer has become like the pirate and slave trader before him, hostis humanis generis, an enemy of all mankind.”

National courts can complement the role of the International Criminal Court, established in The Hague in 2002. The ICC’s jurisdiction is not retroactive and, in the absence of a referral by the United Nations Security Council, covers only crimes committed in the 90 countries that have ratified the ICC treaty or those committed by their nationals. National courts using universal jurisdiction are not bound by these restrictions.

The Cavallo extradition comes as the Bush administration is engaged in a worldwide crusade against the ICC and universal jurisdiction, which it sees as incompatible with its vision of U.S. global supremacy. The United States apparently wants to immunize itself from any international legal restraint on its conduct by barring even the theoretical possibility that the actions of top U.S. officials could be questioned by the ICC or the courts of another state, even if it means blocking cases like the ones against Cavallo or Pinochet.

Under U.S. pressure, Belgium amended its landmark universal jurisdiction law in April, permitting its executive to step in and dismiss cases against U.S. officials. That did not satisfy the United States, however, and after U.S. Defense Secretary Donald H. Rumsfeld threatened to push for the transfer of NATO headquarters from Brussels, the Belgian government last month said it would rewrite the law to prohibit cases that don’t involve Belgians.

In addition, the United States has bullied at least 48 nations into signing agreements saying they will not send U.S. citizens to the ICC. According to diplomatic sources, Caribbean states, for instance, were told by U.S. Assistant Secretary of State Stephen Rademaker that they would lose benefits for hurricane relief if they did not fall into line. The Bahamas were publicly warned by U.S. Ambassador Richard Blankenship that aid for an airport would be cut. On Tuesday, the United States implied it would cut off military aid to 35 countries that had not yet signed such agreements, and presidential spokesman Ari Fleischer reiterated that “protecting U.S. persons from the ICC will be a significant and pressing matter in our relations with every state.”

The U.S. campaign has not succeeded in undermining global support for the ICC and universal jurisdiction. But it has succeeded in making the U.S. government look foolish and mean-spirited.

Many countries continue to ratify the ICC treaty, and the court last month swore in its first prosecutor, a distinguished Argentine jurist teaching at Harvard Law School. Many other countries are adding universal-jurisdiction laws to their own statute books. More Cavallo-style cases may be on the horizon.

It used to be said: “Kill one person and go to jail, kill 20 and go to an insane asylum, kill 20,000 and grant yourself amnesty.”

The United States stands increasingly alone in accepting this adage.

The principle of universal jurisdiction means that “your amnesty” may not be valid in other countries. The Cavallo extradition means that you can run but you can’t hide.