Erga Omnes

Until this past week, the United States was the only country where universal jurisdiction has been used in civil human rights cases.  This week, a Dutch court joined it, awarding one million euros to Ashraf al-Hazouz, an Egyptian-born Palestinian doctor who was raised and tortured in Libya, accused with five Bulgarian nurses of deliberately infecting 426 children with HIV/AIDS in a Benghazi hospital in 1999.

The medical workers were jailed for eight years, sentenced to death, tortured and beaten, until they issued false confessions.  In a diplomatic deal, brokered by France and the EU, the prisoners were extradited to Bulgaria, where they were pardoned and released in 2007.  The doctor moved to the Netherlands and filed suit against twelve Libyan civil servants who had overseen his torture.  He expects the new Libyan regime to pay compensation and, most importantly, admit wrongdoing.

In all, it’s a staggering account, marked by a series of transnational convergences:

Health care professionals who left their national homes seeking work abroad.  Poor hygienic conditions and mismanagement leading, tragically, to hundreds of children being infected with HIV/AIDS.  Unprecedented social protest, as the children’s families demanded answers and compensation from a repressive state.  A government that responded by accusing foreign medical workers, arresting and torturing them, then using their confessions to sentence them to death by firing squad.  A national leader who tit-for-tat defended holding foreigners in Libya, just as Libyans were in Scotland for the Lockerbie case.

With over 60 of the children now dead, the survivors and their families continue meeting as a group.  The recent violence in the country has meant that some of them have not had adequate access to medications.  Compensation given to the families as part of the deal to extradite the six foreigners wasn’t enough to appease them.  Let’s hope their claims aren’t forgotten.

Universal jurisdiction was applied in the Netherlands because al-Hazouz resides there, and torture was at stake.  But what of the structural forms of violence that permeate the case (linked to migration and global labor, access to healthcare and international diplomacy)?  State torture is considered so hideous partly because it entails an intimate betrayal, the intentional use of pain by state agents for political ends.  And as this case reminds us in full detail, the quest for information is a false rationale in the exercise of torture.  Elaine Scarry attests in The Body in Pain:

The idea that the need for information is the motive for the physical cruelty arises from the tone and the form of the questioning rather than from its content: the questions, no matter how contemptuously irrelevant their content, are announced, delivered as though they motivated the cruelty, as if the answers to them were crucial.

Pain and truth-seeking runs through this fascinating case, connecting the medical workers and patients, the torturers and the tortured, survivors and the state.  In the end, the case is about far more than the torture of foreigners, suggesting interconnections that fall short of erga omnes obligations and never make it to forums of universal jurisdiction–but are no less worth probing.