Is President Bush vulnerable to prosecution abroad?

The Centre for Constitutional Rights believes President George Bush approved torture when he approved enhanced interrogation techniques  and the organization said all signatories to the convention on torture “are obligated to prosecute or extradite for prosecution anyone present in their territory they have a reasonable basis for believing has committed torture”.

Questions:

1. Do you think there is a legal basis for his prosecution, and why?

2.  Would you say there is a real chance Bush could be prosecuted abroad and he should be afraid to travel?

Answers:

Geoffrey Corn, Associate Professor of Law, South Texas College of Law

1. The key question is whether a prosecutor will consider water boarding to fall within the definition of torture pursuant to the Torture Convention.  Most experts believe it does, and I suspect most prosecutors  would reach the same conclusion.  If so, then the question becomes whether their national laws include jurisdiction that “implements” the treaty.  In other words, do they have a law that makes it illegal for an alien to violate the Convention outside their territory with an alien victim?  This is a concept known as universal jurisdiction.  The idea is that there are some violations of international law that offend all nations equally, allowing all nations to prosecute those violations.  But the nation still needs law on the books to exercise that power.  Not all nations have such laws.  If the nation where Bush travels does, then yes, there would be a legal basis to charge.

2. Prosecution is, in my opinion, always an act of discretionary authority.  The Torture Convention attempts to deprive states of that discretion by imposing a treaty based obligation to prosecute or extradite.  Nonetheless, I believe most states would consider the foreign relations consequences of doing so.  I may be wrong – I am no expert on the criminal process of every nation in the world.  But I think that it would be a huge potential conflict between the ministry of justice and the ministry of foreign affairs in a nation that sought to prosecute him.  How that would be resolved in anyones guess.  But in theory, the Guardian is correct – once a prosecutor concluded water boarding was torture, then there is clear evidence Bush ordered it (his admission), which triggers the prosecution obligation.

Paul Arnell, Department of Law, Robert Gordon University

In my view yes, there could be a basis for the arrest and prosecution of Mr Bush. The 1984 Torture Convention obligates state parties to consider to prosecute or extradite those suspected of having committed or been responsible for acts of torture. The point of law established in the Pinochet cases is that a former head of state loses his immunity once he has left office.

That is the legal position, the position in fact would well be different. The maintenance of good relations with the US is very important for every country. Risking that through the arrest and possible prosecution of a former president is most likely something that would not be thought appropriate to do.

Hurst Hannum, Professor of International Law, The Fletcher School, Tufts University

1. I agree with the thrust of the Guardian article that a country that is a party to the Torture Convention has an obligation to investigate, arrest, and prosecute any alleged torturer whom it finds within its jurisdiction, unless the country extradites the suspect . More specifically, the country must take such a suspect into custody “upon being satisfied, after an examination of information available to it, that the circumstances so warrant” (art. 6 of the convention).  While President Bush and other heads of state enjoy immunity from such prosecution while they are in office, the immunity ceases once they have left office.

2. In brief, human rights groups are correct when they say that Bush should be careful where he travels.  At the same time, of course, politics do not disappear, and it is difficult to imagine a close US ally taking the steps outlined above.  In countries in which it is possible for a private person to initiate a prosecutions, however, such an outcome is a real possibility.  Of course, Bush’s ultimate “guilt” will turn on whether water-boarding and other ill-treatment do constitute “torture”, which many people think is the case.

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