On February 13, 1978, Edgegayehu Taye, a twenty-one-year-old employee of Ethiopia’s Ministry of Agriculture, was taken into custody by the military government. Her father had been a prominent official in the previous regime of Haile Selassie, and this may have been the cause of her arrest. Transported to a detention center, Taye was ordered to remove her clothes. With her arms and legs bound, she was suspended from a pole and threatened with death if she refused to admit that she was a member of a political opposition group. For several hours guards beat her and poured water on her wounds to increase the pain. Finally she was cut down from the pole and taken to a prison cell but received no medical care for her injuries. For the next three years Edgegayehu Taye languished in various prisons in Addis Ababa until, with no explanation, she was released. During her years in custody she was never charged with a crime.
Not surprisingly, Taye took the first opportunity she had to flee Ethiopia; she escaped to Canada and eventually moved to Atlanta, Georgia, where she found work in a hotel. By a remarkable coincidence, an Ethiopian named Kelbessa Negewo had also sought refuge in the United States in the 1980s and had also found a job in the very same hotel; and he was, Taye believed, the Ethiopian official in charge of the detention center to which she had been sent in February 1978. He had not only overseen her torture but participated in it. Taye and two other Ethiopian women filed suit against him in September 1990 under the Alien Tort Claims Act, legislation that provides that federal courts have jurisdiction over tort actions filed by aliens alleging violations of international law. The Federal District Court in Atlanta found that Negewo had indeed tortured Taye and the other two women and awarded them $1.5 million in compensatory and punitive damages.
But the story was not to end with the court’s decision. For while the Atlanta lawsuit was pending against him, Kelbessa Negewo had been applying for naturalization and, although the Immigration and Naturalization Service had apparently been informed of the court’s judgment, it granted his application. Despite the finding that he was a torturer, Kelbessa Negewo is today a US citizen residing in this country.1
Since the attacks of September 11, the US government has been assiduous in rounding up people it suspects of some connection with terrorism. At least 1,200 immigrants living in the United States were taken into custody in the days and weeks following the attack. Many of them have been held for months without knowing the reasons why they have been detained and in some cases they have not had access to an attorney. None of them has been charged with any terrorism-related crimes.2 And yet hundreds, if not thousands, of foreign nationals who have been plausibly accused of the most heinous human rights crimes, including torture and assassination, either have lived or still live freely in the US. The government has never criminally prosecuted a single one of them.
By some estimates, more than 400,000 survivors of torture live in the United States.3 The exact number of people now in the US who have abused human rights in other countries is of course much harder to pin down; they have very good reasons not to identify themselves. But those who investigate such cases point to some clues. Since it was founded in 1998, the Center for Justice and Accountability, for example, which files civil lawsuits on behalf of torture survivors, has reviewed cases involving more than one hundred alleged human rights violators living in the United States. The International Educational Missions has identified more than 150 such cases, principally in southern Florida, and estimates that there are approximately 1,100 nationwide. The National Security Division of the INS, which has coordinated government investigations into suspected abusers of human rights since 1998, says it has considered about four hundred cases. The division’s director, Walter D. Cadman, acknowledges that the number of torturers and other human rights violators at large in the US may be as high as a thousand.4 Whatever the exact figure, the problem is not trivial, particularly since persons charged with torture or massacre may have committed crimes against many victims.5
Some of those who have allegedly committed human rights crimes and now benefit from being residents have received sporadic attention in the press over the years. Emmanuel Constant, for example, the head of the Revolutionary Armed Front for the Progress of Haiti (FRAPH), the most feared paramilitary group in Haiti following the 1991 coup which removed President Jean-Bertrand Aristide from power, has lived openly in New York City since 1994, although he was convicted in absentia in his home country of serious human rights violations.6When the INS detained him in 1995, Constant claimed to have been on the payroll of the CIA, a claim that was widely reported in the press. He was released shortly thereafter and the Justice Department has indicated as recently as November 2000 that it has no plans to deport him.7
Similarly, the national press reported the civil suit filed against two Salvadoran generals living in Florida on behalf of the four American nuns murdered in 1980 by the Salvadoran National Guard. The United Nations– sponsored Truth Commission in El Salvador concluded that the officer who had headed the National Guard at the time of the murders concealed the fact that they had been carried out by the guardsmen on orders from their superiors; the other general, then minister of defense, had failed to investigate the crime. Nonetheless, a jury found the two not liable for the crimes—a verdict that is currently under appeal—and the generals both remain legal residents of the US.8
Most of the US residents who are strongly suspected of human rights crimes have managed to avoid publicity. In 1988 the Federal District Court for the Southern District of Florida, for example, found probable cause to believe that former Salvadoran army captain Alvaro Rafael Saravia Marino was a “knowing, active participant” in the plot to assassinate Monsignor Oscar Romero, archbishop of El Salvador, in 1980. But El Salvador has not tried to extradite him and Saravia has reportedly been living comfortably in the United States since 1985. He may even have applied for political asylum.9 Am-nesty International is aware of at least 150 other suspected human rights violators who are living in the US and have largely avoided attention or punitive action. In most cases their names cannot be revealed because this would alert them to the fact that they may be the targets of lawsuits or investigations.10
Thanks to the courage and determination of victims of torture and their families, civil lawsuits against human rights violators are becoming more and more common. In a 1980 decision in a suit brought by two Paraguayan plaintiffs against a former official involved in the torture of one of their relatives in Paraguay, the Court of Appeals for the Second Circuit upheld both the constitutionality of the Alien Tort Claims Act and the jurisdiction of federal courts to hear suits brought against abusers by aliens living in the US.11 Since then, the number of such cases has grown significantly.
The complaint filed in 1998 by Kemal Mehinovic, a Bosnian Muslim, against Nikola Vukovic, a former Bosnian Serb soldier, is typical. For many years Mehinovic lived with his wife and two children in Bosanski Samac, a town of some 30,000 people, including 17,000 Muslims and Croats, in northeastern Bosnia-Herzegovina. With the breakup of the former Yugoslavia, the Bosnian Serb army gained control of the community and, through intimidation, forced displacement, torture, and summary execution, managed to reduce the population of Muslims and Croats to three hundred by 1995.
Mehinovic was among those terrorized by Bosnian Serb forces. Taken into custody in May 1992, he was beaten repeatedly with metal pipes and wooden batons. During the next two and a half years he was subjected to relentless torture, both physical and psychological; he was forced to lick his own blood off a police station wall and was fired at with bullets that barely missed his head. According to Mehinovic, Nikola Vukovic was one of his most persistent torturers.
When Mehinovic, who was finally released in a prisoner exchange in 1994 and came to the United States the next year, learned in 1998 that Vukovic, too, had settled in the US with his family, he and three other Bosnians filed a civil complaint against him. A trial was held in October 2001 but neither Vukovic nor his counsel appeared and a final ruling is now pending.
In other cases the INS has moved to deport people accused of human rights crimes, such as former Haitian army colonel Carl Dorelian, who emigrated to the US in 1994. Dorelian, who won $3.2 million in the Florida lottery during his years here, was convicted in absentia in Haiti of helping to mastermind the April 1994 massacre at Raboteau in which approximately fifty civilians were killed. He was arrested by the INS in June 2001 and faces deportation. But such action has been relatively rare.12
In 1994 the United States ratified the Convention Against Torture, which requires that the states that are party to it take into custody anyone in their territories alleged to have committed acts of torture or take other legal measures to ensure the presence and availability of such persons. Upon being notified of such allegations, states are to make a preliminary inquiry into the facts and, if the inquiry shows that prosecution is warranted, they must decide whether to extradite the alleged offender for trial elsewhere or to prosecute the person themselves.13 The same year that the US ratified the convention, Congress adopted legislation to make torture a crime, no matter where it occurs.14 In the case of torturers, the United States has therefore recognized the concept of “universal jurisdiction,” the notion that such offenders are hostis humani generis, or enemies of humanity, and that all states have the authority to prosecute them.15 Nonetheless, the US has never prosecuted a suspected torturer; nor has it ever extradited one under the Convention Against Torture, although it has surrendered one person to the International Criminal Tribunal for Rwanda. The US government prefers to rely, when it acts at all, on immigration law and procedures to deal with such alleged criminals.16
This reluctance derives in part from the Justice Department’s interpretation of the 1994 legislation that made torture anywhere in the world a criminal offense in the US. In the department’s view, prosecution of acts committed before that legislation was passed (as many of those in question were) would be ex post facto prosecutions and would therefore be unconstitutional. But the 1994 legislation does not make criminal what had once been legal conduct. Torture has long been recognized as a crime under both national and international law and those who committed acts of torture in any country could not plausibly claim they weren’t aware of its illegality.17
US reluctance to extradite or prosecute torturers may not, however, be solely a matter of legal scruples. The Constant case, to cite only one, raised much speculation that US intelligence agencies had intervened to protect someone who had been helpful to them. The case of Tomás Ricardo Anderson Kohatsu, an officer in Peru’s Army Intelligence Services, prompts further suspicion that politics may often take precedence over the pursuit of justice.
Anderson Kohatsu was convicted in 1997 by a Peruvian military court for misusing his authority in connection with the torture of two Peruvian army intelligence officers who were accused of leaking government information to political opposition groups. One of the officers died as a result of the brutality and her body was dismembered; the other was left a paraplegic. Peru’s Supreme Council of Military Justice subsequently overturned Anderson Kohatsu’s conviction.
Freed from any restrictions on his travel, Anderson Kohatsu arrived in Washington, D.C., in March 2000, to testify, ironically enough, before the Inter-American Commission on Human Rights. On his way back to Peru, he stopped in Houston to change planes; federal agents, alerted by several human rights groups of his presence in the country, took him off his plane for questioning. After several hours, thanks to the intervention of the State Department, Anderson Kohatsu was released and allowed to depart. Undersecretary of State Thomas Pickering claimed that he was entitled to diplomatic immunity and hence could not be arrested, though human rights groups and apparently the Justice Department disagreed. It seemed that the State Department was more concerned about US relations with the Fujimori government and its intelligence services than with the merits of the case against Anderson Kohatsu. Commenting on whether he had immunity, a Justice Department official said: “Our position was he did not. [The State Department] position was he did. We lost.”18
Other countries have been far less hesitant to invoke universal jurisdiction than the United States. Between 1998 and 2000 the Spanish magistrate Baltasar Garzón made intensive and widely publicized efforts to extradite General Augusto Pinochet from the United Kingdom to stand trial for terrorism, torture, murder, genocide, and crimes against humanity. Belgium has successfully prosecuted four Rwandan nationals, convicting them of war crimes in connection with the 1994 genocide.19 Less widely publicized but just as important was the 1999 verdict of a Swiss military tribunal that the former mayor of Mushubati, Rwanda, had committed war crimes. In August 2000, Mexico, responding to proceedings initiated by magistrate Garzon, this time against a former Argentine military officer accused of the torture and murder of Spanish citizens during Argentina’s “Dirty War,” arrested the suspect and subsequently announced that he would be extradited to Spain. And in Germany in February 2001, a court upheld a finding of guilt against a Bosnian Serb named Maxim Sokolovic for complicity in genocide in Bosnia. Sokolovic is currently serving a nine-year sentence.
If the United States is to meet its obligations under the Convention Against Torture and to avoid looking like a weak link in the growing worldwide net that is gradually denying human rights criminals a place to hide, it will have to move beyond its current use of immigration violations to deal with suspected human rights violators. Because the US does not fully comply with international standards for the treatment of refugees, people charged with violating immigration regulations often have less access to counsel or judicial appeal than those facing criminal charges do. Moreover, refusing to seek criminal charges can imply that the US is equivocal about the importance of the crimes that suspects are thought to have committed. Eriberto Mederos, a former hospital orderly in Havana’s National Psychiatric Hospital, for instance, became a US citizen in 1993 and reportedly received two state nursing licenses. But Mederos is alleged to have tortured Cuban political prisoners in the 1970s by applying electroshock to patients lying on a bare floor covered in their urine and feces. The INS arrested Mederos in September 2001, almost ten years after allegations against him had first been made public. A federal grand jury then indicted him not for torture but on charges of having fraudulently obtained US citizenship by denying that he had ever persecuted anyone—a far less serious charge.20
In order to prosecute those whom it believes guilty of human rights crimes, the US should empower the Justice Department, not the State Department, to decide whether to investigate and bring charges against suspected violators. It should also establish an office in the Justice Department similar to the one that has tracked Nazi war criminals, with an exclusive mandate to carry out the task of investigation. But first the government must recognize the costs of providing torturers a safe haven in this country.
Those costs are enormous. By harboring people guilty of horrendous crimes, the US finds itself in the company of countries whose disdain for human rights is well known—countries like Saudi Arabia, which has allowed Idi Amin, the notorious former president of Uganda, to live undisturbed in Riyadh for more than two decades. What kind of message does the US send if it will go to any corner of the globe to fight terrorism but will not turn the full power of its judicial system against those who now live in the US and who are suspected of having terrorized people in their own countries? According to testimony heard by the United Nations Historical Clarification Commission in Guatemala in 1999, for example, Donaldo Alvarez Ruiz, former minister of the interior in that country, was alleged to have personally supervised the work of death squads responsible for the disappearances and executions of thousands. Alvarez is said to have lived in the US until very recently and to continue to make frequent visits to this country. The US has been fervent in its opposition to the International Criminal Court before which people can be charged with genocide, war crimes, and crimes against humanity. The US’s own flawed record in confronting people who are alleged to have committed terrible human rights crimes makes its resistance to the court appear even more indefensible.
For many survivors of torture, the experience drains the world of its color. “I cannot read poetry anymore,” Jacobo Timerman said after months of mistreatment in Argentinian prisons during the “Dirty War,” “because reading poetry is an experience full of feelings.” Bringing those responsible for such suffering to justice may help to deter torturers who believe they can find a haven in the US; and prosecution can bring to public attention the many victims for whom justice will never be done. After he had filed his charges against Nikola Vukovic, Kemal Mehinovic observed, “I survived those years in the camps. This is for those who didn’t.” Through civil suits and public witness, many survivors are taking what steps they can to see that acts of torture be recognized and punished. Is it too much to ask that the American government lend them a hand?
April 25, 2002
The story of Edgegayehu Taye and Kelbessa Negewo, as well as much of the material in this article, is drawn from a new report by Amnesty International entitled United States of America: A Safe Haven for Torturers (April 2002). The report’s primary author is Professor William J. Aceves of California Western School of Law in San Diego. ↩
In fact, between eight hundred and nine hundred of those initially detained have apparently been released. Some one hundred were charged with criminal offenses not related to the events of September 11 and others were charged with minor visa violations. Of the latter, Cheikh Melainine ould Belal, a Mauritanian diplomat’s twenty-year-old son, who had overstayed his tourist visa by six weeks, was typical. Released after forty days in custody, Belal was quoted as saying, “I used to like the United States, but now I don’t understand it. I was going to learn English, but now I don’t want to ever speak it again” (“Wide-Ranging Federal Sweep Changes Attitudes of Immigrants About US,” The New York Times, December 5, 2001). Approximately three hundred people, mostly accused of visa violations, are still in detention. (See Amnesty International, Amnesty International’s Concerns Regarding Post September 11 Detentions in the USA, March 2002.) ↩
See Discretionary Funds for Assistance for Treatment of Torture Survivors, 66 Fed. Reg. 13771 (2001). ↩
Amnesty International, United States of America: A Safe Haven for Torturers, pp. 17–18. ↩
For comparison’s sake, consider that the Office of Special Investigations that was established by the Justice Department in 1978 to track Nazi war criminals in the US had, as of 1999, stripped sixty-one of them of their US citizenship and deported forty-nine. (See “New Leahy Bill Enhances Federal Efforts to Track Down and Deport War Criminals,” press release from the office of Senator Patrick Leahy, July 16, 1999.) ↩
Amnesty International believes that trials in absentia are inconsistent with the right to be tried in person and would support a new trial before different judges if Constant were to be returned to Haiti. Haitian law also entitles Constant to a new trial upon his return. ↩
“Convicted in Haiti, ‘Toto’ Constant Fears Extradition,” Newsday, November 18, 2000. The government’s unwillingness to extradite Constant to stand trial in Haiti seems all the more curious in light of the recent announcement by Otto J. Reich, the acting assistant secretary of state for the Western Hemisphere, that the US will deny visas to foreign officials who it believes are guilty of corruption (“US Official Aims to Bar Corrupt Latin Officials,” The New York Times, March 13, 2002). ↩
Still another civil suit has been filed against the two generals by three Salvadorans: a doctor who was abducted and tortured by the National Guard in 1980, a church layworker who was abducted and raped by guardsmen in 1979, and a professor at the University of El Salvador who was dragged from his classroom and tortured by the National Police in 1983. A trial date is pending. ↩
“Scores Accused of Atrocities Committed in Other Countries Are Quietly Living in US,” Miami Herald, July 22, 2001. ↩
Amnesty International, United States of America: A Safe Haven for Torturers, p. 18. ↩
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). ↩
Sometimes, when deportation has occurred, suspicions have been raised regarding the government’s motives. The best example may be that of two former Honduran military officers linked by the National Commissioner for the Protection of Human Rights in Honduras to the notorious Battalion 3-16, a covert military intelligence unit responsible for widespread abduction, torture, and murder of political figures in Honduras in the 1980s. The two were deported from the US in early 2001, a short time before John Negroponte, a former US ambassador to Honduras, who was accused of failing to report human rights abuses during his tenure in that post, was nominated to be US ambassador to the United Nations; see Stephen Kinzer, “Our Man in Honduras,” The New York Review, September 20, 2001. ↩
Taking care to respect the principle of non-refoulement, that is, the principle that no one should be returned to a country where there is reason to believe they will be subjected to torture. ↩
18 U.S.C. 2340 et seq. While Amnesty International applauds this legislation in general, it firmly opposes its imposition of the death penalty against those responsible for the death of torture victims. ↩
Torture is not the only crime subject to universal jurisdiction. The Geneva Conventions provide, for example, that all state parties have an obligation to search for those alleged to have committed grave breaches, such as murder, during international conflict, and to bring such individuals before their courts. And US courts have recognized that universal jurisdiction applies in the case of airplane hijacking and hostage taking (United States v. Yunis, 681 F. Supp. 896, 901 (D.D.C. 1988). ↩
In 2001, for example, the INS detained seven aliens in Florida who were alleged to have committed human rights abuses in foreign countries. (See “INS Arrests 7 Suspected Rights Violators,” Sun-Sentinel, May 9, 2001.) ↩
The International Covenant on Civil and Political Rights, which the US has ratified, qualifies the ex post facto defense regarding acts that constituted a criminal offense “according to the general principles of law recognized by the community of nations” at the time they were committed (Article 15(2)), a condition that is certainly met by acts of torture. ↩
“US Frees Accused Torturer; Human Rights Groups Decry Ruling on Peruvian,” The Washington Post, March 11, 2000. ↩
The Democratic Republic of the Congo (DRC) recently was successful in its challenge before the International Court of Justice at The Hague of an arrest warrant issued by a Belgian judge against the DRC’s minister of foreign affairs for alleged violations of international humanitarian law. The court ruled that states may not prosecute officials of other states while they are in office; but this ruling will not preclude prosecution of former officials or other defendants. ↩
See “A Tale of Torture and Intrigue,” US News & World Report, September 10, 2001. ↩