July 12, 2011

Appendix: Foreign State Proceedings Regarding US Detainee Mistreatment

The US failure to conduct criminal investigations into the role and responsibility of high-ranking civilian and military officials for alleged crimes against detainees has opened the door for national judicial systems in foreign states to pursue investigations and, if warranted, prosecutions under the doctrines of “universal jurisdiction” and “passive personality” jurisdiction.

Normally, jurisdiction over a crime depends on a link between the prosecuting state and the crime itself. This link is most often territorial but is sometimes based on the nationality of the victim or perpetrator or on harm to a state interest. Universal jurisdiction reflects the principle of international law that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern, no matter where the crime was committed, and regardless of nationalities.[353] In some cases, by treaty or customary international law, states in whose territory alleged perpetrators are found have an obligation to prosecute the offender if they do not extradite him. This obligation is known as aut dedere aut judicare—“extradite or prosecute.”[354]

War crimes and torture are among the crimes subject by treaty to the “extradite or prosecute” requirement. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—ratified by the United States and 146 other countries[355]—provides that “[t]he State Party in the territory under whose jurisdiction a person alleged to have committed [torture] is found shall, ... if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”[356]

Each of the four Geneva Conventions of 1949, which the United States and virtually every country have ratified, prescribe that “[e]ach High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” “Grave breaches” of the Geneva Conventions and its first Additional Protocol include willful killing; torture or inhuman treatment; willfully causing great suffering, or serious injury to body or health; and willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial.[357]

Universal jurisdiction is a crucial tool by which victims of grave international crimes can obtain redress. It acts as a “safety net” when the state with the most direct jurisdiction over the crimes is unable or unwilling to conduct an effective investigation and trial, and when international courts, including the International Criminal Court, either do not have jurisdiction or would not take up a specific case.

The most well-known case of universal jurisdiction was perhaps that of former Chilean dictator Augusto Pinochet who was arrested in London in October 1998 on a warrant from a Spanish judge charging him with torture and other human rights crimes committed in Chile during his seventeen-year rule.[358] Pinochet challenged his arrest on the ground that he was entitled to immunity as a former head of state, but the Appellate Committee of the House of Lords rejected the challenge.[359]

In the past two decades, more and more states, especially in Western Europe,[360] have been willing to use their universal jurisdiction laws in practice. Cases successfully brought to trial have principally involved low and mid-level perpetrators with regards to crimes committed during the genocide in Rwanda, the wars in the Balkans, crimes committed during the dictatorships in Argentina and Chile, wars in Afghanistan and West Africa, and systematic torture in Mauritania, DR Congo, and Tunisia, among others. The United States national judicial system used the principle of universal jurisdiction to prosecute “Chuckie” Taylor (the son of the former Liberian dictator Charles Taylor) for torture committed in Liberia.[361]

In addition to universal jurisdiction, many countries give their courts competence to punish a crime committed abroad against one of their nationals (the “passive nationality” or “passive personality” basis of jurisdiction). Individuals of dozens of nationalities have been detained by the United States since September 11, 2011, thus possibly investing the national courts of these individuals with passive personality jurisdiction over torture and war crimes committed by US nationals.

Most countries, though not all, condition the opening of an investigation for crimes committed abroad, when there is no other link to the forum, on the presence of the accused in their territory. In cases of jurisdiction based on the victim’s nationality (the “passive nationality” basis of jurisdiction), however, many states, such as France and Italy, allow the opening of investigation even if the accused is absent.[362]

As it became clear that the US was not pursuing investigations into the role and responsibility of senior government officials linked to torture and the secret detention and rendition programs, several cases were filed abroad, one of which is ongoing.

Germany: Complaints against Rumsfeld and others

Two criminal complaints have been filed in Germany to date against Rumsfeld and others.

Complaint while Rumsfeld was in office

Four Iraqis allegedly tortured at Abu Ghraib filed a criminal complaint in November 2004 with the German Federal Prosecutor’s Office in Karlsruhe, Germany, under the universal jurisdiction doctrine as incorporated in the German Code of Crimes against International Law.[363] Officials named in the complaint included Rumsfeld, Alberto Gonzales, George Tenet, Undersecretary of Defense Stephen Cambone, and several senior US military officers.[364]

The plaintiffs were represented by the Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR), which argued that Germany was “a court of last resort,” as it was “clear that the US government is not willing to open an investigation into these allegations against these officials.”[365]

Germany is one of the few states which do not require the presence of the accused on its territory to begin an investigation for war crimes, crimes against humanity, and genocide under the universal jurisdiction principle (i.e. when there is no other link with Germany). In the absence of the alleged perpetrator, however, article 153 of the German criminal procedure code gives broad discretion to the federal prosecutor as to whether to open an investigation.

Following the complaint, it was reported that Rumsfeld would skip the annual Munich Conference on Security Policy, at which he was traditionally a key speaker. The US embassy in Berlin said it was in “discussions with the Germans about the case and have expressed concern because it would set a precedent for those who want to pursue politicized prosecutions.”[366] When questioned about the case at a Pentagon press conference on February 3, 2005, Rumsfeld hinted that he might not attend the Munich conference, stating “[w]hether I end up there, we’ll soon know. It will be a week, and we’ll find out.”[367]

On February 10, a few days before the Munich conference, German Prosecutor General Kay Nehm dismissed the complaint on the ground the US would investigate the matter in its own country. Nehm stated:

[T]here are no indications that the authorities and courts of the United States of America are refraining, or would refrain, from penal measures as regards the violations described in the complaint. Thus several proceedings have already been conducted against participants, even against members of the 800th Military Police Brigade [the unit implicated in abuse at Abu Ghraib].[368]

The decision did not discuss whether Rumsfeld, then secretary of defense, enjoyed immunity. The next day, Rumsfeld announced that he would attend the Munich conference.[369]

The plaintiffs filed a request to review the decision with the prosecutor as well as with the court. The Higher Regional Court (Oberlandesgericht) in Stuttgart declared the application for review inadmissible on September 13, 2005.[370]

Complaint following Rumsfeld’s resignation

In November 2006, several days after Rumsfeld resigned as defense secretary, CCR and ECCHR filed another criminal complaint with the German federal prosecutor on behalf of Guantanamo detainee Mohammed al-Qahtani, whose treatment is described in this report, and11 Iraqis who alleged they had been tortured.[371] The complaint alleged that Rumsfeld and several government attorneys[372] committed war crimes by justifying, ordering, and implementing abusive interrogation techniques in Iraq, Afghanistan, and Guantanamo.[373]

On April 5, 2007, the prosecutor general at the Federal Court of Justice announced she would not proceed with an investigation.[374] She found there were insufficient links with Germany and that any investigation would likely result in a “purely symbolic prosecution” that would not justify the resources that would go into “complicated but ultimately unsuccessful investigations.”[375]

A petition seeking review of the prosecutor's decision was dismissed by the appeals court, which stated that “the question can remain open whether the acts charged were sufficiently prosecuted by other states.”[376]

France: Complaint against Rumsfeld

On October 25, 2007, when Rumsfeld was on a visit to France after his retirement, the International Federation for Human Rights (FIDH), ECCHR, CCR, and the French League for Human Rights filed a criminal complaint against Rumsfeld with the Paris district prosecutor.The complaint alleged that Rumsfeld had direct and command responsibility for torture in US-run detention facilities in Iraq, Afghanistan, and Guantanamo.[377]

The Paris district prosecutor, Jean-Claude Marin, dismissed the complaint on November 16, 2007, without addressing the torture allegations.[378] The prosecutor found that Rumsfeld was not amenable to prosecution, based on the immunity conferred by his former function as defense secretary.[379]

The Paris prosecutor dismissed a subsequent request for consideration.[380] The prosecutor decided that the acts of torture alleged could not “be dissociated” from Rumsfeld’s official functions and therefore attracted state immunity.[381] This decision ignored contrary international precedents, including the Nuremberg judgment and the Pinochet cases, by suggesting that torture and war crimes can be part of the legitimate functions of a government official.[382]

Spain: Investigations of US officials

Two complaints implicating US officials have been filed in Spain. One has been temporarily suspended while the other remains in progress.

The “Bush Six”

In March 2009, a complaint against six former Bush administration lawyers referred to as the “Bush Six”—Alberto Gonzales, David Addington, William Haynes, John Yoo, Jay Bybee, and Douglas Feith—was filed by the Association for the Dignity of Spanish Prisoners.[383] The complaint alleges that as a result of the legal advice these men provided, the US government committed torture and violations of the Geneva Conventions.[384]

The case was admitted on March 28, 2009, by Spanish Investigative Magistrate Baltasar Garzón, who had issued the 1998 warrant in the Pinochet case, but was then reassigned to Judge Eloy Velasco on April 28, 2009.[385] In accordance with Spanish law, which provides that Spanish courts have “subsidiary jurisdiction,” Judge Velasco on May 4, 2009, requested confirmation from the US of whether an investigation into the allegations was being conducted and, according to the US embassy in Madrid, offered to transfer the investigation to the US under a Mutual Legal Assistance Treaty.[386] After Judge Velasco set a deadline for the US to respond,[387]the US finally answered on March 1, 2011, saying that it had completed several prosecutions (of lower-ranking officials), that “there exists no basis for the criminal prosecution of Yoo or Bybee,” and that Assistant US Attorney Durham was continuing his investigation.[388] Judge Velasco then ordered the case to be "temporarily stayed," and transferred it to the US Department of Justice "for it to be continued, urging it [the DOJ] to indicate at the appropriate time the measures finally taken by virtue of this transfer of procedure."[389] The complainants have appealed that decision.[390]

Investigation into Torture by US officials

In April 2009, Judge Garzón accepted another complaint filed by civil parties and initiated a criminal investigation into the alleged abuse of four Guantanamo detainees with ties to Spain, citing possible violations of the Spanish Penal Code and other Spanish legislation, the Third and Fourth Geneva Conventions, the Convention against Torture, and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.[391]

In May 2009, Judge Garzón issued requests to the US and the UK for confirmation as to whether any investigations were currently pending into the individual cases of the four plaintiffs.[392] Neither country has responded.[393]

On January 27, 2010, Garzón decided that jurisdiction over the complaints existed, and that the complaints could proceed.[394] This was, in part, because one alleged victim was a Spanish citizen, another a Spanish resident, and because Spain had previously issued extradition requests for the other two. However, Judge Garzón also found that jurisdiction existed even in the absence of these links, because the alleged crimes were violations of the Geneva Conventions, the Convention against Torture, the ICCPR, and were crimes against humanity.[395] Garzón has since been suspended from office in relation to his investigation of crimes committed during the Franco era[396] and Judge Pablo Ruz is now handling the case.

On January 7, 2011, the CCR and ECCHR requested that Maj. Gen. Miller be subpoenaed to explain his role in the alleged torture of four of these detainees.[397]

The investigation is ongoing at the time of this writing.

Diplomatic Intervention by the United States

In 2009, Spain weakened its universal jurisdiction laws after several countries whose leaders were subject to complaints, including the US, expressed diplomatic concerns.[398] The amendments generally require some connection with Spain for jurisdiction to arise.[399] Since the cases described above affect four Spanish citizens and residents who had been detained at Guantanamo, the amendments did not halt the cases.

Recently released diplomatic cables reveal that US officials privately and repeatedly attempted to influence Spanish prosecutors and government officials to curtail the investigations and to have them taken away from Judge Garzón,[400] considered by the US to have an “anti‑American streak.”[401]

This pressure continues under the Obama administration. In March 2009, the US Embassy told the Spanish Foreign Ministry and Justice Ministry it considered the case “a very serious matter” and asked to be kept informed of developments.[402] In April, the US chargé d’affaires accompanied US Senator Judd Gregg to the Foreign Ministry to express concern.[403] The next day, the Spanish prosecutor told the embassy that he would seek a review of whether Spain had jurisdiction. The following day, the chargé went with Senator Mel Martinez to see the acting foreign minister, where the chargé “underscored that the prosecutions … would have an enormous impact on the bilateral relationship.”[404]

In a May 2009 meeting between two State Department lawyers and Spanish prosecutor Javier Zaragoza, Zaragoza reportedly shared with the US lawyers plans to embarrass Garzón into dropping the case. He confirmed that Spain would suspend its proceedings if the US investigated the matters.[405]

In contrast, in a contemporaneous briefing a US State Department spokesperson stated that “I'm not aware of any contact with the Spanish Foreign Ministry on this. It's a matter in the Spanish courts, as I'm given to understand. I don't have a comment for you on it at this time. The Obama administration's position on the matters that are under discussion, I think are quite clear.”[406]

The cables also reveal US concern in relation to a separate investigation by Spanish judges into the use of a Spanish airport for secret CIA flights reportedly carrying detainees.[407] US officials were worried, following revelations of coordination between German and Spanish prosecutors, that this would “complicate our efforts to manage this case at a discreet government‑to‑government level.”[408]

[353] See, for example, Human Rights Watch, The Pinochet Precedent: How Victims Can Pursue Human Rights Criminals Abroad, November 1, 1998, http://www.hrw.org/en/reports/1998/11/01/pinochet-precedent. Also see: Human Rights Watch, Universal Jurisdiction in Europe: The State of the Art, June 27, 2006, http://www.hrw.org/en/reports/2006/06/27/universal-jurisdiction-europe. The general discussion of universal jurisdiction is largely drawn from these two reports.

[354] See for example, International Law Commission, “Survey of multilateral conventions which may be of relevance for the work of the International Law Commission on the topic, ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, Study by the Secretariat,” UN Doc. A/CN.4/630, June 18, 2010, http://untreaty.un.org/ilc/guide/7_6.htm (accessed June 27, 2011). According to Amnesty International, all UN member states have ratified treaties with aut dedere aut judicaire obligations to exercise jurisdiction over foreigners suspected of committing certain crimes abroad against other foreigners. Amnesty International, International Law Commission: The obligation to extradite or prosecute (aut dedere aut judicare), AI Index: IOR 40/001/2009, February 2009, http://www.amnesty.org/en/library/info/IOR40/001/2009/en (accessed June 15, 2011), pp. 74-98.

[355] United Nations Treaty Collection, Status of Treaty, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (accessed June 15, 2011).

[356] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res.39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, art. VII.

[357] During situations of armed conflict, the US is also bound by customary laws of war—state practices that are broadly accepted as binding law. Thus even if the 1949 Geneva Conventions were not applicable, the US would still be required to adhere to customary law, which includes clear prohibitions on torture and inhuman treatment, secret detention, and other practices US personnel engaged in post September 11, 2001.

[358] See Human Rights Watch, The Pinochet Precedent, http://www.hrw.org/en/reports/1998/11/01/pinochet-precedent.

[359] The House of Lords, then the UK’s highest court, twice rejected Pinochet's claim of immunity. In its first judgment, later annulled, the Lords ruled that although a former head of state enjoys immunity for acts committed in his functions as head of state, international crimes such as torture and crimes against humanity were not "functions" of a head of state. In the second, more limited, judgment, the Lords held that once Britain and Chile had ratified the United Nations Convention against Torture, Pinochet could not claim immunity for torture. A British magistrate then determined that Pinochet could be extradited to Spain on charges of torture and conspiracy to commit torture. In March 2000, however, after medical tests were said to reveal that Pinochet no longer had the mental capacity to stand trial, he was released and he returned home to Chile. See Reed Brody and Michael Ratner, The Pinochet Papers (The Hague: Kluwer Law International, 2000).

[360] Over the past two decades, universal jurisdiction cases have been brought before the courts of Argentina, Austria, Belgium, Canada, Denmark, France, Germany, The Netherlands, Norway, Senegal, Sweden, Spain, Switzerland, the United Kingdom, and the United States.

[361] See Human Rights Watch, “Q&A: Charles “Chuckie” Taylor, Jr.’s Trial in the United States for Torture Committed in Liberia,” September 23, 2008, http://www.hrw.org/en/news/2008/09/23/q-charles-chuckie-taylor-jr-s-trial-united-states-torture-committed-liberia.

[362] These countries often also allow trials in absentia in passive personality cases. Human Rights Watch believes fairness requires that the accused be present in court during a trial to put forward a defense. If an accused is apprehended following a trial in which he was convicted in absentia, the verdict rendered should be quashed and a completely new trial held. This is indeed the practice in many countries.

[363] “Rumsfeld Sued for Alleged War Crimes,” November 20, 2004, Deutsche Welle & AFP, http://www.dw-world.de/dw/article/0,,1413907,00.html (accessed June 15, 2011). The German Code of Crimes against International Law in article 1, part 1, section 1 states: "This Act shall apply to all criminal offenses against international law designated under this Act, to serious criminal offenses designated therein even when the offense was committed abroad and bears no relation to Germany.”

[364] See relevant documents at “German War Crimes Complaint against Donald Rumsfeld, et al.,” Center for Constitutional Rights, http://ccrjustice.org/ourcases/current-cases/german-war-crimes-complaint-against-donald-rumsfeld-et-al (accessed June 15, 2011). The military officers named are Gen. Geoffrey Miller, Gen. Ricardo Sanchez, Gen. Walter Wojdakowski, Gen. Barbara Fast, Col. Thomas Pappas, Col. Marc Warren, and Lt. Col. Three of those named in the complaint were present in Germany: Sanchez and Wojdakowski were stationed in Heidelberg; Pappas was in Wiesbaden.

[365] Human Rights Watch, Getting Away with Torture? Command Responsibility for the US Abuse of Detainees, April 23, 2005, http://www.hrw.org/en/reports/2005/04/23/getting-away-torture-0.

[366] Bradley Graham, “Rumsfeld's Attendance at Security Conference Uncertain,” Washington Post, January 28, 2005, http://www.washingtonpost.com/wp-dyn/articles/A42850-2005Jan27.html (accessed June 15, 2011).See also “Rumsfeld to Bypass Munich Conference,” Deutsche Welle, January 21, 2005, http://www.dw-world.de/dw/article/0,,1465263,00.html (accessed June 15, 2011).

[367]Transcript of news conference, Department of Defense, February 3, 2005, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=1691 (accessed June 15, 2011). The exchange continued as follows: “Reporter: Are you concerned at all about the universal jurisdiction that Germany has, and the fact that … Rumsfeld: It's certainly an issue, as it was in Belgium [where suits against US officials led Secretary Rumsfeld to threaten to move NATO headquarters]. It's something that we have to take into consideration.”

[368] General Kay Nehm, “Decision to Dismiss Complaint against Donald Rumsfeld, et al.,” February 10, 2005, English translation, http://www.brussellstribunal.org/pdf/RumsfeldGermany.pdf (accessed June 17, 2011).

[369] “Rumsfeld to Attend Munich Security Conference in Germany,” Xinhua News Agency,” February 11, 2005.

[370] Katherine Gallagher, “Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture,” Journal of International Criminal Justice, November 2009, 1087 at 1105.

[371] Center for Constitutional Rights (CCR), “German War Crimes Complaint Against Donald Rumsfeld, et al.,” undated, http://ccrjustice.org/ourcases/current-cases/german-war-crimes-complaint-against-donald-rumsfeld-et-al (accessed June 15, 2011).

[372] They included Alberto Gonzales, Jay Bybee, John Yoo, William J. Haynes, II, and David Addington.

[373] CCR, “German War Crimes Complaint Against Donald Rumsfeld,” http://ccrjustice.org/ourcases/current-cases/german-war-crimes-complaint-against-donald-rumsfeld-et-al.

[374] Prosecutor General, Re: Criminal Complaint against Donald Rumsfeld et al., April 5, 2007, http://ccrjustice.org/files/ProsecutorsDecision.pdf (accessed June 15, 2011).

[375] Ibid., pp. 6-7.

[376] Stuttgart Higher Regional Court Decision, Criminal Panel5, April 21 2009, English translation, http://www.ccrjustice.org/files/Stuttgart%20Appeals%20Court%20Decision%20Rumsfeld%20Case%20-%20EN.pdf (accessed June 15, 2011), p. 10.

[377] Katherine Gallagher, “Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture,” Journal of International Criminal Justice, vol. 7 (November 2009), http://jicj.oxfordjournals.org/content/7/5/1087.full.pdf+html?maxtoshow=&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT (accessed June 27, 2011), p. 1109.

[378] “France in Violation of Law Grants Donald Rumsfeld Immunity, Dismisses Torture Complaint,” International Federation for Human Rights (FIDH) news release, November 27, 2007, http://www.fidh.org/FRANCE-IN-VIOLATION-OF-LAW-GRANTS-DONALD-RUMSFELD (accessed June 15, 2011).

[379] The prosecutor relied on the ICJ decision of Arrest Warrant of 11 April 2000—Democratic Republic of the Congo v. Belgium)— stating that “law established by the International Court of Justice, immunity from criminal jurisdiction for Heads of State and Government and Ministers… continues to apply after termination of their functions, for acts carried out during their time of office and hence, as former Secretary of Defense, Mr. Rumsfeld, by extension should benefit from this same immunity for acts carried out in the exercise of his functions.” See Gallagher, “Universal Jurisdiction in Practice,” http://jicj.oxfordjournals.org/content/7/5/1087.full.pdf+html?maxtoshow=&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT, p. 1110.

[380] Letter from Public Prosecutor (Procureur général) to the Paris Court of Appeal to Mr. Patrick Baudouin, regarding “Case of Donald Rumsfeld - triggering contesting the decision of the Paris District Prosecutor (Procureur de la République) to dismiss the case,” February 27, 2008. For translation see http://ccrjustice.org/files/Rumsfeld_FrenchCase_%20Prosecutors%20Decision_02_08.pdf (accessed June 15, 2011).

[381] Ibid.

[382] See Nuremberg Charter, art.7 (“[t]he official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment”); Statute of the ICTY, art. 7(2) (same); Decision on Preliminary Matters, Milosevic (IT-02-54-PT), November 8, 2001, §32 (quoting Nuremberg Judgment, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10: “He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.”); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), Opinion of Lord Browne-Wilkinson (“Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state? I believe there to be strong grounds for saying that the implementation of torture . . . cannot be a state function.”); Issue of subpoena duces tecum, Blaskic (IT-95-14-AR), Appeals Chamber, October 29, 1997, para. 41 (“those responsible for [war crimes, crimes against humanity and genocide] cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity”).

[383] Julian Borger and Dale Fuchs, “Spanish judge to hear torture case against six Bush officials,” Guardian, March 29, 2009, http://www.guardian.co.uk/world/2009/mar/29/guantanamo-bay-torture-inquiry (accessed June 15, 2011). See also Scott Horton, “The Bush Six to Be Indicted,” Daily Beast, April 13, 2009, http://www.thedailybeast.com/blogs-and-stories/2009-04-13/the-bush-six-to-be-indicted/ (accessed June 15, 2011).The complaint is available at http://imagenes.publico.es/resources/archivos/2009/3/27/1238184153397QUERELLA_VERSION_FINAL.pdf (accessed June 15, 2011).

[384] Ibid.

[385] This occurred following objections by the Spanish attorney-general over a potential conflict of interest of Garzón’s with another pending investigation for which he has responsibility, and a report filed by the Public Office Prosecutor requesting discontinuance. See CCR, “The Spanish Investigation into US Torture,” undated, http://www.ccrjustice.org/spain-us-torture-case (accessed June 15, 2011). In May 2010, the Spanish General Council of the Judiciary suspended Judge Garzón, pending trial, over his decision to open investigations into war crimes allegedly committed by General Franco during and after the Spanish Civil War. Garzón faces up to 20 years in prison if the suspension is confirmed. See Reed Brody, “The dismal assault on Baltasar Garzón,” Guardian , April 13, 2010, http://www.guardian.co.uk/commentisfree/2010/apr/13/baltasar-garzon-spanish-judge-prosecution ( accessed June 15, 2011); Denholm Barnetson, “Embattled Spanish judge suspended ahead of trial,” Agence France Presse, May 14, 2010, http://www.google.com/hostednews/afp/article/ALeqM5ikra4-NwT53TijA7gDtFEbmXL3HQ (accessed June 15, 2011). Judge Garzón was subsequently retained as a consultant with the International Criminal Court. Raphael Minder, “Spanish Judge Says His Fight for Human Rights Will Endure,” New York Times, June 8, 2010, http://www.nytimes.com/2010/06/09/world/europe/09iht-garzon.html (accessed June 15, 2011).

[386] US State Department Memorandum, “Garzon opens second investigation into alleged US Torture of Terrorism Detainees,” May 5, 2009, http://ccrjustice.org/files/wikileaks/WikiLeaks_Cable_09MADRID440_GARZON_OPENS_SECOND_INVESTIGATION.pdf (accessed June 15, 2011).

[387] John Paul Putney, “Spain judge seeks US government response to Guantanamo abuse allegations,” post to “Paper Chase” (blog), jurist.com, January 28, 2008, http://jurist.org/paperchase/2011/01/spain-judge-seeks-us-government-response-to-guantanamo-abuse-allegations.php (accessed June 15, 2011).

[388] Letter from Criminal Division, US Department of Justice, to Paula Mongé Royo, Subdirectora General de Cooperación Jurídica Internacional, March 1, 2011, http://ccrjustice.org/files/US%20Letters%20Rogatory%20Response%20March%201,%202011%20-%20ENG.pdf (accessed June 15, 2011)..

[389] Judge Velasco's decision is available at http://ccrjustice.org/files/13%20April%202011%20Order%20SPAN.pdf (accessedJune 15, 2011). An unofficial English translation is available at http://ccrjustice.org/files/13%20April%202011%20Order%20ENG.pdf (accessed June 15, 2011)

[390] CCR, “The Spanish Investigation into U.S. Torture,” http://ccrjustice.org/ourcases/current-cases/spanish-investigation-us-torture.

[391] The complainants were Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna, and Omar Deghayes. Ahmed was a Spanish citizen and Ikassrien a long‑term Spanish resident, and extradition requests had previously been issued for Al Banna and Deghayes. The requests were also issued by Garzón. See Gallagher,  “Universal Jurisdiction in Practice, http://jicj.oxfordjournals.org/content/7/5/1087.full.pdf+html?maxtoshow=&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT, p. 1113; Juzgado Central de Instruccion N8 5, Audiencia Nacional, Madrid (Spanish High Court), decision (auto) of 27 April 2009, Preliminary Investigations (diligencias previas) 150/09çN, unofficial English translation available from CCR, http://www.ccrjustice.org/files/Unofficial%20Translation%20of%20the%20Spanish%20Decision%2004-27-2009.pdf (accessed June 15, 2011) ) (“Garzón Decision”).

[392] Putney, “Spain judge seeks US government response,” http://jurist.org/paperchase/2011/01/spain-judge-seeks-us-government-response-to-guantanamo-abuse-allegations.php (accessed June 15, 2011). For an English copy of the letter, see http://www.ccrjustice.org/files/Letter%20Rogatory%2005.26.09_English.pdf (accessed June 15, 2011).

[393] Ibid.

[394] Judge Garzón’s decision is available at http://ccrjustice.org/files/09.04.27_Spanish%20Preliminary%20Decision.pdf (accessed June 23, 2011). An unofficial English translation is available at http://ccrjustice.org/files/Unofficial%20Translation%20of%20the%20Spanish%20Decision%2004-27-2009_0.pdf (accessed June 23, 2011).

[395] Ibid.

[396]See Brody, “The dismal assault on Baltasar Garzón,”http://www.guardian.co.uk/commentisfree/2010/apr/13/baltasar-garzon-spanish-judge-prosecution.

[397] “Rights Groups Urge Spanish Judge to Subpoena Former Guantanamo Commander for Role in Detainee Torture,” CCR news release, January 7, 2011, http://ccrjustice.org/newsroom/press-releases/rights-groups-urge-spanish-judge-subpoena-former-guant%C3%A1namo-commander-role-0 (accessed June 15, 2011).

[398] Gallagher, “Universal Jurisdiction in Practice,” http://jicj.oxfordjournals.org/content/7/5/1087.full.pdf+html?maxtoshow=&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT, p.1114.See also Reed Brody, “Spain must resist diplomatic pressure to limit application of universal jurisdiction,” Jurist, May 22, 2009, http://jurist.law.pitt.edu/hotline/2009/05/spain-must-resist-diplomatic-pressure.php (accessed June 15, 2011).

[399] Articles 23 (4)-(5), Spanish Organic Law of the Judicial Power­; See CCR, “The Spanish Investigation into US Torture,” http://www.ccrjustice.org/spain-us-torture-case.

[400] Giles Tremlett, “Wikileaks: US pressured Spain over CIA rendition and Guantanamo torture,” Guardian, December 1, 2010, http://www.guardian.co.uk/world/2010/nov/30/wikileaks-us-spain-guantanamo-rendition?INTCMP=SRCH (accessed June 15, 2011). Scott Horton, “The Madrid Cables,” Harpers, http://www.harpers.org/archive/2010/12/hbc-90007836 (accessed June 23, 2011)

[401] “US Embassy cables: Ambassador warns of ‘anti-American Spanish judge Baltasar Garzón,” December 21, 2007, http://www.guardian.co.uk/world/us-embassy-cables-documents/135369 (accessed June 15, 2011).

[402] “US embassy cables: Don’t pursue Guantanamo criminal case, says Spanish attorney general,” April 17, 2009, http://www.guardian.co.uk/world/us-embassy-cables-documents/202776 (accessed June 15, 2011)


[404] Ibid. See also “US embassy cables: Ambassador warns of ‘anti-American’ Spanish judge,” http://www.guardian.co.uk/world/us-embassy-cables-documents/135369.

[405] US State Department cable, “Garzon Opens Second Investigation into Alleged US Torture of Terrorism Detainees,” May 5, 2009, http://ccrjustice.org/files/wikileaks/WikiLeaks_Cable_09MADRID440_GARZON_OPENS_SECOND_INVESTIGATION.pdf (accessed June 15, 2011 ).  See alsoHorton, “The Bush Six to Be Indicted,” Daily Beast, April 13, 2009, in which a person in attendance described the meeting as “correct and formal,” and that US officials “were basically there just to collect information.”

[406] “The World According to Garzón: The State Department doesn't get it,” Wall Street Journal, April 8, 2009, http://online.wsj.com/article/SB123914679286098931.html (accessed June 15, 2011).

[407] Tremlett, “Wikileaks,” http://www.guardian.co.uk/world/2010/nov/30/wikileaks-us-spain-guantanamo-rendition?INTCMP=SRCH. US embassy cables: Spanish prosecutor weighs Guantanamo criminal case against US officials,” April 1, 2009, http://www.guardian.co.uk/world/us-embassy-cables-documents/200177 (accessed June 15, 2011).

[408] Tremlett, “Wikileaks,” http://www.guardian.co.uk/world/2010/nov/30/wikileaks-us-spain-guantanamo-rendition?INTCMP=SRCH.