Prosecuting Guantánamo in Europe: Can and Shall the Masterminds of the 'Torture Memos' Be Held Criminally Responsible on the Basis of Universal Jurisdiction?
44 Pages Posted: 23 Jan 2010
Date Written: January, 22 2010
Investigating the secrets surrounding Guantánamo Bay and other U.S. prisons overseas and prosecuting those responsible for serious human rights violations - especially the so-called “harsh interrogation techniques” alluded to in the “torture memos” of the former George W. Bush administration - is currently en vogue in Europe. This paper will show, however, that the chances that such prosecutions will formally commence are rather low. The paper analyzes the jurisdictional and related procedural requirements of such prosecutions in three representative European countries (Belgium, Germany, and Spain). These countries have been selected because they possess different legal regimes for prosecuting extraterritorial offences, which in turn present different legal issues. While Germany has perhaps the broadest universal jurisdiction regime in Europe on paper, Belgium and Spain have been particularly proactive in prosecuting international crimes, despite a recent legislative and policy rollback de facto derogating universal jurisdiction. Taken together, the law and practice in these countries stand for the general trend of a more cautious and restrictive approach with regard to the extraterritorial prosecution of international crimes, replacing universal jurisdiction proper with a subsidiary or cooperative surrogate. This gives reason, in the conclusion of this paper, to reassess the strategy for dealing with international core crimes, turning from a less criminal law or prosecution based to a more comprehensive approach.
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