Argument

The War Criminal Next Door

Why are there 1,000 suspected torturers and génocidaires in America right now?

The film Marathon Man is one of the great paranoid thrillers of the 1970s, infamous for the scene in which the Nazi dentist played by Lawrence Olivier drills through Dustin Hoffman's teeth into his live nerve below, repeatedly asking "Is it safe?" This is the stuff of Hollywood horror films, but another scene is more plausible: Olivier -- whose character is loosely based on S.S. doctor Josef Mengele -- ventures into New York's diamond district, where he is recognized by Holocaust survivors. One elderly woman, slowly at first and then with increasing hysteria, begins shouting at passers-by to stop him before he escapes. 

Like the woman in the film, many victims of modern-day atrocities have sought asylum in North America or Europe -- and so have their persecutors. More than once, the Marathon Man scene has played out in reality. Ethiopian refugee Edgegayehu Taye was working as a waitress at the Colony Hotel in Atlanta, Georgia, when she saw her former torturer, a man who had supervised while she was whipped with a plastic cable, standing by the elevator in a gray bellhop's uniform. Eugenio de Sosa Chabau was tortured 14 times by a man named El Enfermero, "The Nurse," for his opposition to Castro's rule in Cuba. After 21 years of imprisonment, de Sosa finally managed to flee to Florida. Visiting his elderly aunt at a nursing home in Miami, he was startled to see El Enfermero there -- now wearing the white uniform of a real nurse.

Today, authorities estimate that there are at least 1,000 war crimes suspects in the United States, and the real number is probably much higher. British immigration officials have taken action against 513 suspects in the last four years. Just like refugees, oppressors often flee at the end of conflict. Disguised, flying under the immigration radar, they enter North America and Europe.

In Britain, Italy, and France, alleged Rwandan génocidaires have been found working as doctors, priests, and even once as a member of a government task force. After being convicted in absentia for his role in a massacre in 1994, Haitian Maj. Gen. Jean-Claude Duperval was eventually found operating tourist boats in Disney World. Another suspected perpetrator in the same massacre won $3.2 million in the Florida State Lottery in 1997 before being deported a few years later. Three years ago, the alleged chief interrogator at a torture center in Argentina was found running a genteel antiques shop in The Plains, Virginia.

Some of this may be inevitable: There are a lot of war criminals out there -- and, because the technology of mass murder has become less sophisticated in recent years, the number is growing. In the Nazi extermination camp at Belzec, it took 150 S.S. guards nine months to gas up to half a million Jews. Modern-day, low-tech mass atrocities, by contrast, involve hundreds of thousands of killers. In Rwanda, it is estimated that there were perhaps 200,000 génocidaires in the 1994 slaughter, while 20,000 Sudanese are thought to have taken part in atrocities in Darfur, Sudan.

Very few of these people have ever been brought to trial, especially when you look beyond the high-profile examples. Academics estimate that between 92 and 101 million people died in 313 conflicts since 1948. While the perpetrators of these deaths number in the hundreds of thousands, only 823 suspects have been indicted by internationalized tribunals and courts. Some of the rest have been brought to trial in their own countries, but many of them are still at large.

Responses to this problem have varied. Saudi Arabia has actively harbored mass murderers such as Idi Amin. Other states, like Kenya, are accused of turning a blind eye to the presence of men such as Félicien Kabuga, the alleged financier of the Rwandan genocide. Even for those states ostensibly committed to punishing atrocity crimes, the response has often been anemic. The first line of defense is meant to be extradition, sending alleged perpetrators back home to face trial in their own countries. But often, this isn't possible. When a janjaweed militiaman from Darfur turned up in Britain in 2006, he couldn't be sent home to be tried, as the Sudanese government had sponsored the very same attacks he carried out.  While many suspected Rwandan génocidaires have been found in Europe, courts haven't returned them for fear they would not receive a fair trial.  Neither can suspects be sent to The Hague. The International Criminal Court only deals with a handful of high-level defendants and the tribunals for Rwanda and Yugoslavia are closing their doors.

If extradition or deportation is not possible, trials on the spot are the only alternative to impunity. However, while many states are able to prosecute, they are often unwilling to do so, as the trials can be complex and costly. Britain has comprehensive laws that it fails to enforce. Four alleged Rwandan génocidaires continue to live freely there 18 months after a failed extradition attempt.

Conversely the United States has gaping holes in its legal framework but is much more vigorous in its pursuit of perpetrators. U.S. prosecutors rely on an "Al Capone" approach, for example prosecuting human rights violators for lying on their visa applications. This approach has worked for around 100 suspects. For instance Marko Boskic, one of the shooters in a firing squad alleged to have executed over 1,000 Muslim men and boys from Srebrenica, was arrested in Massachusetts, jailed for immigration offences, and then deported to face prosecution for crimes against humanity in Bosnia. However, this approach could lead to ridiculously lenient sentencing for suspects who can't be deported.  For example, former Somali officials such as Prime Minister Mohamed Ali Samantar, now living in Virginia, can't be sent home to face justice because there is no functioning court system in that failed state.  There is a strong case for filling in the gaps in U.S. law by passing a Crimes Against Humanity Act and updating war crimes legislation.

The 1998 arrest of former Chilean dictator Augusto Pinochet excited great hope that the age of impunity for former leaders was at an end. Henry Kissinger feared diplomatic chaos. But the reality was more prosaic. The years following Pinochet's arrest have seen neither chaos nor utopia, but rather a slow and steady increase in the number of laws passed and prosecutions attempted. Driven largely by the discovery of old Nazis, Rwandan génocidaires, and Balkan war criminals, extra-territorial prosecutions have been carried out in Canada, Finland, Belgium, France, Switzerland, the Netherlands, Denmark, Norway, Austria, and Spain. Meanwhile countries as diverse as Senegal, the Philippines, and South Africa have passed laws which allow for the prosecution of foreign war criminals. This process should be accelerated by the proposed specialist Convention on the Prevention and Punishment of Crimes Against Humanity.  The convention would require states to pass legislation which allows for the prosecution or extradition of those suspected of crimes against humanity.

Currently, there are génocidaires, war criminals and torturers living among us.  Let us hope they are found and tried before their victims bump into them.

JOHNNY EGGITT/AFP/Getty Images

Argument

How Different Is Obama from Bush on Terrorism?

The U.S. president has found himself caught in some old legal traps -- while creating new ones of his own.

After five years of waiting, Omar Khadr was finally slated to go on trial in Guantánamo Bay this summer -- and then suddenly, the gears ground to a halt. The problem was not that Khadr was just 15 years old when, according to the charges, he threw a grenade in a 2002 firefight in Afghanistan and killed a U.S. soldier. Nor was Barack Obama's administration having second thoughts about restarting the military tribunals that had been stopped when he took office. Instead, the problem lay in the criminal charge against Khadr: fighting without a uniform. According to news reports, Harold Koh, the legal advisor to the State Department, pointed out that CIA agents and private contractors who fire missiles from U.S. drones are civilians too. By charging Khadr with a war crime, the United States might be opening its own operators to the same charge.

This week, a judge set a new and theoretically final date for Khadr's trial, Oct. 18. But the defendant's long journey to the courtroom perfectly encapsulates the difficulties facing the Obama administration when it comes to the legal war on terror. First there are holdover problems from the previous administration: Guantánamo itself, the detainees held there, and some aggressive but not always well-thought-out legal theories. These are troubling to advocates of international law -- some of whom, like Koh, a longtime human rights champion, now work for the government and cannot possibly be happy about, for example, life imprisonment for a crime committed by a 15-year-old child soldier. Then there are new legal challenges associated with the administration's own national defense strategies -- especially the use of drones, which has increased substantially in recent years.

Between the invasion of Iraq, Guantánamo, and the horrors of Abu Ghraib, the United States during the Bush years found itself repeatedly accused of acting unlawfully. The cost of the criticism came in two forms: First, the United States had a harder time finding desperately needed allies in two wars and a worldwide struggle against al Qaeda. Second, being perceived as a lawbreaker hurt America at a time when winning hearts and minds was a security issue, not just a project of soft power.

Obama ran in part on the promise to restore American credibility by complying with domestic and international law -- a highly unusual campaign tactic that captured how serious the problems caused by Bush's policies seemed to be. In the last two years, his administration has tried to change both the reality and the perception of how the U.S. government complies with the law when acting in the interests of national security. Closing Guantánamo, as Obama promised, would have been the best symbol of change. But Congress has made it impossible to transfer the Guantánamo detainees to facilities stateside, so Obama has not been able to fulfill this pledge.

It's not that the former law professor hasn't made any progress at all. The first and most successful step in the legal strategy adopted by the Obama team was to back away from its predecessor's aggressive reliance on the theory of executive power: the idea that the president, as commander in chief, possesses the inherent authority to do anything he deems necessary to protect the country. Instead, in legal memoranda and court filings, Obama has relied primarily on congressional authorization for all national security actions and programs. U.S. courts have for the most part accepted these rationales, and the Obama administration has rarely been held to have violated the Constitution. Today, the question of executive power, so central to the national security law battles of the Bush years, is mostly off the agenda.

Although at first it might appear that this shift is of purely domestic significance -- after all, whether the president has complied with the U.S. Constitution is not a question of international law -- the impact actually extends much further. By overreaching in its claims of executive power, the Bush administration found itself repeatedly rebuffed by the Supreme Court. Each of these reversals had foreign-policy consequences because each made the Bush administration look like a habitual rule-breaker in both the domestic and foreign spheres. Ending the confrontation between the executive branch and the Supreme Court over executive power at least removed a recurring, public set of embarrassments, even if it had little other purpose internationally.

At the same time, however, Obama's team has preserved, whether by necessity or choice, many of the controversial programs that brought criticism to Bush. Obama ordered so-called "black sites" closed, but it is difficult for anyone without access to highly classified information to know how much has actually changed about how the intelligence services capture and detain suspected terrorists. The Guantánamo military commissions are beginning again. Some large number of the nearly 200 remaining detainees will not be tried. They will continue to be held as, essentially, prisoners of war, until hostilities between the United States and al Qaeda end -- an uncertain, open-ended time frame that many critics consider inadequate. Secret surveillance has not ended, though it is now expressly authorized by Congress.

In each case, the legal basis is substantially firmer than it was under the previous administration. But because the programs are the same, global perceptions of U.S. national security probably have not changed in any significant way, even if what the president is doing is now technically more legal.

Then there is the growing international criticism of unmanned drone strikes, especially those in Pakistan, Yemen, and potentially other locations in sovereign states that are not at war with the United States. The use of drones to target individual figures associated with the Taliban, al Qaeda, or related groups comes out of U.S. counterinsurgency doctrine as it has developed over the last several years. In Iraq after the surge, many close observers, especially those in the military, attributed the relative success of U.S. forces as much to the covert targeting, tagging, and killing of insurgent leaders as to the "clear and hold" operations aimed at making the civilian population feel safer. In Afghanistan, clear and hold has not proved especially successful. In Pakistan, of course, the United States has no clear-and-hold option at all. That leaves targeted strikes as the remaining component of counterinsurgency, and drones offer a highly attractive option.

In March, Koh gave a speech for the American Society of International Law in which he responded to the critique that drone strikes amount to assassination. The choice of Koh to give the speech was significant. Koh (who is a mentor of mine) has a major interest in defending his distinguished record by showing that his employer complies with international law. In his speech, he explained that members of armed groups are belligerents and therefore lawful targets for a country acting in the course of war or in self-defense.

But Koh avoided some of the hardest questions. He did not address the issue of exactly how drone strikes could be justified in places where the United States is not at war -- not surprising, as the government has not acknowledged its attacks in Pakistan and Yemen. Traditionally, such attacks could be justified either by the consent of the country attacked or by its unwillingness or inability to pursue the belligerent targets on its own. But the governments involved aren't likely to want to acknowledge any of these possibilities.

Beyond the difficulty of where the attacks occur are the questions of who is targeted -- and by whom. Obama's lawyers have stated publicly that, unlike their predecessors, they consider the United States to be at war only with those who "materially support" the Taliban or al Qaeda and its associates, not those who offer indirect support. But the U.S. definition of material support is broader than what many international lawyers would consider to be the accepted norm -- including such figures as the U.S. citizen and al Qaeda advocate Anwar al-Awlaki, who is reportedly on the American "shoot to kill" list of drone targets. Other reports suggest that drug lords who give money to the Taliban have been considered legitimate targets, again a remarkably aggressive definition of "support." By spreading the net widely, the United States runs the risk of seeming to slight international law.

What's more, the fact that drone strikes are carried out by CIA civilians raises the possibility that they could be war crimes (if the original theory of the charge against Khadr were right). At the very least, civilian operators are not subject to immunity from prosecution for their battlefield conduct and could in theory be charged with domestic crimes of murder in the country where the attacks occurred or in Virginia. Finally, as special rapporteur Philip Alston pointed out in his May report to the U.N. Human Rights Council on targeted killings, the CIA does not subject itself to any sort of public review or accountability when things go awry, a practice now fairly common for the regular military. According to Alston, the CIA's unwillingness even to acknowledge its drone strikes render the targeting doubtful as a matter of international law.

On Aug. 10, Omar Khadr's trial got under way without the war crime charge, on the theory that he killed a U.S. serviceman in violation of a federal statute. Almost immediately his lawyer fell ill, causing further delay. Khadr must be used to it -- and his tribunal will not end matters, in any case: The statute under which he was charged was passed after the 2002 firefight, and the courts have yet to review the question of whether the military commission has legitimate jurisdiction to try such a crime. The road to the Supreme Court will be long -- but Khadr's case is headed there, as is the Obama administration itself.

MICHELLE SHEPHARD/AFP/Getty Images