Isn’t it unprecedented to do something like this?

No. There are many examples of criminal prosecutions and attempts at such against foreign officials for human rights abuses.

  • In 1998, Chilean dictator Augusto Pinochet was indicted for human rights violations, and arrested in London. Read more…
  • In 2006, torture charges were brought under Canadian law against then U.S. president George W. Bush while he was on a state visit to Canada. The charges were eventually blocked by a complicit Canadian government, under the guise of diplomatic immunity, which does not apply to international crimes against humanity, such as torture. Read more…
  • In 2007, Donald Rumsfeld was forced to flee France, after an attempt to prosecute him there for ordering and authorizing torture. Read more…
  • In February of this year, George Bush was forced to cancel a visit to Geneva, after a collective of human rights organizations and torture victims filed suit there for his arrest. Read more…

Ireland’s Obligations as regards torture

The #ArrestObama #May22 campaign has determined that Ireland is obliged to prosecute Barack Obama for the following types of offense:

  1. Treatment of alleged military whistleblower Bradley Manning constituting, if not torture, cruel, inhuman and degrading treatment prohibited under international humanitarian law. Read about it here.
  2. Failure to prosecute, and obstruction of the prosecution, of senior Bush administration officials for the crime of systematic torture. Read about it here.

Ireland is enjoined to oppose and prevent torture – and other torture related acts – by numerous international treaties to which it is a signatory, including the European Convention on Human Rights, the Charter of Fundamental Rights, and the International Covenant on Civil and Political Rights (CCPR). Ireland’s express obligations to prosecute Obama for these acts derive from international humanitarian law. Ireland has been a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) since 1992. Ireland ratified UNCAT in 2002, and the Oireachtas passed the Criminal Justice (United Nations Convention Against Torture) Act 2000, to implement the treaty in domestic law.

What constitutes torture?

The UNCAT defines torture thus:

Article 1
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The definition of torture in the Irish Act of 2000 is as follows:

1.
“torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—
(a) for such purposes as—
(i) obtaining from that person, or from another person, information or a confession,
(ii) punishing that person for an act which the person concerned or a third person has committed or is suspected of having committed, or
(iii) intimidating or coercing that person or a third person,
or
(b) for any reason that is based on any form of discrimination,
but does not include any such act that arises solely from, or is inherent in or incidental to, lawful sanctions.

The punitive pre-trial incarceration and inhuman treatment to which alleged whistleblower Bradley Manning is being subjected in Quantico, Virginia therefore arguably constitutes torture under Irish law. Please consult American constitutional lawyer Glenn Greenwald’s article on the subject for an overview of the nature of this treatment.

Ireland and the Convention Against Torture

Ireland’s obligation to indict Barack Obama derives from further provisions of the UNCAT (click to check the original text), listed here:

Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Article 5

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.

Article 6
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.

Article 7
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.

The legal obligations created by these provisions were implemented in Irish law in the Act of 2000 (click to check original) thusly:

2.—(1) A public official, whatever his or her nationality, who carries out an act of torture on a person, whether within or outside the State, shall be guilty of the offence of torture.
(2) A person, whatever his or her nationality, other than a public official, who carries out an act of torture on another person, whether within or outside the State, at the instigation of, or with the consent or acquiesence of, a public official shall be guilty of the offence of torture.
(3) A person guilty of the offence of torture shall be liable on conviction on indictment to imprisonment for life.

3.—A person, whatever his or her nationality, whether within or outside the State, who—
(a) attempts to commit or conspires to commit the offence of torture, or
(b) does an act with the intent to obstruct or impede the arrest or prosecution of another person, including a person who is a public official, in relation to the offence of torture,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.

In s.2, torture is created as a criminal offense under Irish law, whether or not the torturer is an Irish citizen, and whether or not the torture was conducted within Irish territory.

Particular attention should be paid to s.3(b), where the act of obstructing or impeding the arrest or prosecution of someone in connection with torture is made an indictable crime under Irish law. Under the Act of 2000, not only must Ireland prosecute torturers who come into Irish territory, but Ireland must also prosecute people who have tried to interfere with the arrest or prosecution of torturers.

This provision criminalizes any implementation of the the Look Forward, Not Backward policy adopted by Obama’s administration, and in particular, criminalizes the interference of the Obama administration in the judiciary and legislature of Spain to prevent the prosecution of “the Bush Six” for torture related crimes, as revealed in the Wikileaks cable, 09MADRID392.

It is clear that Ireland’s hands are actually tied with regard to its legal obligation to prosecute Barack Obama once he arrives in Ireland in May. If Irish officials fail to adequately satisfy their obligations to prosecute torturers and those who obstruct the prosecution of torturers, Irish officials arguably become liable under the same section that criminalizes Obama’s Look Forward, Not Backward policy.

Diplomatic Immunity

Diplomatic immunity is principally protected by Article 31 of the Vienna Convention on Diplomatic Relations 1961. When an attempt was made to prosecute George W. Bush in Canada in 2006. The Canadian government blocked the case, invoking a bogus claim that diplomatic immunity prevented prosecution of the president. It might consequently be argued that Obama is entitled to immunity from criminal prosecution during his stay in Ireland.

This does not reflect international judicial opinion on diplomatic immunity. Diplomatic immunity is not intended to protect international war criminals who happen to be state officials on foreign business, nor does it do so. There is a rigorous set of precedents establishing this.

An ICTY Appeals Chamber decision, in the Tihomir Blaskic case, recognized that there are exceptions to the immunity of State officials according to…

…the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity.

Furthermore, during the Augusto Pinochet case, a majority of the House of Lords, deciding on the question of whether it had jurisdiction to extradite Pinochet, agreed with the judgment of Lord Nichols, who stated:

[T]he exercise of extraterritorial jurisdiction overrides the principle that one State will not intervene in the internal affairs of another… An international crime is as offensive, if not more offensive to the international community when committed under color of office. Once extraterritorial jurisdiction is established, it makes no sense to exclude from it acts done in an official capacity.

For more on diplomatic immunity, go here.

It is clear that in no respect should the existence of a diplomatic immunity deter the Irish authorities from attempting to satisfy their stark obligations under international and domestic law in the pursuit of those within Irish territory in connection with torture related crimes. Nobody is above the law, least of all the law on torture. Not even the President of the United States of America.

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