The media are reporting that former US President George W Bush has cancelled a planned visit to Geneva (see also comments by Jonas to previous post). There is some dispute about the reasons for the cancellation and the organizers of the event Bush was due to speak at have claimed that the cancellation was due to security concerns arising from planned protests. However AP reports that:
Several human rights groups, including Amnesty International and the New York-based Center for Constitutional Rights, had planned to ask Swiss prosecutors to open a criminal investigation against Bush over the admission that he personally authorized the waterboarding of terrorism suspects.
“Whatever Bush or his hosts say, we have no doubt he canceled his trip to avoid our case,” the Center for Constitutional Rights and others said in a statement.
Legal experts say it is unlikely Swiss prosecutors would have had the time to examine any criminal complaint against Bush and take action, such as requesting him to respond to the allegations, before he left Switzerland again.
Furthermore, an initial assessment by the Swiss Justice Ministry concluded that Bush would have enjoyed immunity from prosecution for any actions taken while in office, ministry spokesman Folco Galli told the AP.
Widney Brown, Amnesty’s senior director of international law and policy, said the group would continue to press for Bush’s prosecution the next time the former president travels to a country that has committed to prosecuting war crimes and where he could expect a fair trial.
The claim by the Swiss Justice Ministry that, under international law, Bush would enjoy immunity from prosecution is a curious one and, of course, contrary to the decision of the English House of Lords in the Pinochet case the former Heads of State are not immune from prosecution for torture. Since Bush is no longer in office he is not entitled to the immunity ratione personae which international law grants to serving heads of State from arrest and prosecution by foreign States. That type of immunity (which was discussed by the ICJ in the Arrest Warrant case) attaches to the status of the head of State and comes to an end when he or she leaves office.
So the question that remains is whether Bush is entitled to the immunity which, under international law, attaches to official acts of those who act on behalf of a State and prevents foreign prosecutions for those acts . Read the rest of this entry…