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 . This type of immunity (immunity ratione materiae) is available to all those who act for the State and a former head of State’s position is no different from the position of a lower level official. The key question here is whether or not the act in question is an official act. Some have argued that committing international crimes can never amount to an official act so that State officials are never immune (ratione materiae) from prosecution for international crimes. Alternatively, that because international crimes are prohibited by peremptory or overring norms of international law (jus cogens norms) there can be no immunity from prosecution for such acts.
In a recent paper published in the European Journal of International Law, Sangeeta Shah and I argue that these arguments are erroneous: that the commission of an international crime can still be an official act and there is no jus cogens exception to international law immunities. However, we agree with the conclusion that there is no immunity ratione materiae from foreign prosecution for the core international crimes. There are extensive precedents to this effect and our article seeks to construct a better rationale for these precedents. In our view, there is no immunity ratione materiae for the core international crimes because the two reasons for which international law accords official act immunity do not exist in the case of prosecutions for international crimes. Those two reasons for official act immunity are (i) a substative reason – the individual is not to be held responsible for acts which are really the acts of the State and (ii) a procedural reason – failure to grant immunity to the individual would allow the circumvention of the immunity of the State since States always act through officials and agents. In the case of international crimes, international law does provide for individual criminal responsibility thus departing from that first reason. Also the development of principles permitting the exercise by states of extra-territorial jurisdiction in relation to international crimes suggests that international law now contemplates that states may exercise jurisdiction over some official acts of foreign states in the context of considering individual criminal responsibility for such acts. In our view the conferral of extra-territorial jurisdiction over these crimes means a removal of immunity because these are crimes which are either restricted to state officials or agents (torture, grave breaches of the Geneva Conventions, enforced disappearance) or which were developed in the first place to cover State acts though now extended to non-State actors. Conferral of extra-territorial jurisdiction in this context means a departure from that second reason for immunity.
Since the allegation is that George Bush ordered/condoned the commission of torture and war crimes and since international law allows for extraterritorial jurisdiction for these crimes there is no immunity from prosecution in foreign courts. Indeed in the case of torture and of grave breaches of the Geneva Convention, there is a treaty based obligation to prosecute. Those obligations would be meaningless were there to be an immunity from prosecution for official acts since those crimes are essentially restricted to those who act on behalf of the State.