Why was George Bush arrested
Bush in handcuffs: should the former US president have been arrested in Geneva?
Amnesty International and other human rights organizations are calling for an investigation into possible crimes committed during US military activities in the war on terror. In particular, the allegations that George W. Bush personally ordered torture will be investigated. In the event that the former president had come to Geneva on Saturday, the specific question would have arisen whether there would have been an opportunity or even an international obligation for Switzerland to initiate an investigation against him or to refer him to the International Criminal Court (ICC ) in The Hague.
The demand of civil society for an investigation has been somewhat ridiculed in the media, but the demand has been rightly made. For example, on January 25, ICC chief prosecutor Luis Moreno-Ocampo announced a possible investigation into the conflict on the Korean Peninsula. South Korean students initiated the investigation. This shows how important the role of civil society has become in dealing with serious international crimes.
No international arrest warrant
But the International Criminal Court is ruled out as the competent authority in the present case, because it has not issued an arrest warrant against George W. Bush. There was also no justification for this, as the jurisdiction of the ICC according to Articles 12 and 13 of the Roman Status - the founding document of the ICC - is only given if the persecuted person has the nationality of a contracting state of the Roman Statute, if the offense investigated is on the territory of a State Party or if the Security Council of the United Nations orders such an investigation (which it did in the case of the Sudanese President Omar Al-Bashir; see Security Council resolution 1593).
Switzerland has adapted its laws
But in addition to an extradition, a conviction here in Switzerland would also have come into question. Exactly for the present case, that a person comes to Switzerland who is suspected of serious human rights violations and cannot be extradited to another country or to an international court, Switzerland amended its penal code on January 1 of this year. The change in the law (which serves to implement the Roman Statute on a national level) prescribes the initiation of criminal prosecution in Switzerland in cases such as the canceled Bush visit. Since the change in the law does not affect the time when George W. Bush ordered torture, he could not have been imposed on the basis of the criminal code.
As a last resort for Switzerland to take action against George W. Bush, the question arose whether the UN Convention against Torture could justify direct criminal liability for George W. Bush (the convention is also used by the ICC according to Art. 21 of the Rome Statute as a source of international criminal law).
Everyone must enforce the ban on torture
The prohibition of torture is part of mandatory international law. In addition to the Convention against Torture, it is also included in other international conventions (for example in the Geneva Conventions or the European Convention on Human Rights). However, the Convention against Torture goes one step further than these conventions. In Art. 7 she writes the so-called „aut dedere aut judicare " Principle. This means that the contracting parties must extradite suspects to a prosecuting authority or - if this is not possible - must initiate an investigation into the suspect. This principle is recognized under customary international law and its disregard can also be viewed as a violation of the Anti-Torture Convention. George W. Bush cannot be extradited to the ICC. Thus, the Swiss authorities would not only have had the opportunity to initiate a criminal investigation, but also the mandatory.
Since George W. Bush is a former head of state, the question arises whether he has immunity from prosecution for crimes related to his office (so-called functional immunity). In an initial reaction, the FDJP gave the impression that there was no doubt that this immunity still existed. The FDJP is making things a little easy for itself. The situation is not that clear.
The concept of functional immunity is highly controversial in relation to international crimes. To a certain extent, international law is contradicting itself here. On the one hand, the UN Convention against Torture makes it compulsory to prosecute a crime. On the other hand, this persecution is thwarted by immunity. The solution lies in a modern concept of immunity that takes account of the need to punish serious international crimes and therefore only protects public officials from persecution for as long as they are actually in office. At least since the Pinochet decision before the British House of Lords (until 2009 the highest British court) it has been clear that torture is such a serious crime that functional immunity cannot prevent prosecution.
If, on the other hand, the traditional, rigid understanding of immunity is simply maintained, this jeopardizes the progress made in international criminal law over the past 10 years, which is aimed at consistently punishing the most serious crimes against the international community of values.
Switzerland has to show its colors
As one of the first to sign the Rome Statute and as a country with a long humanitarian tradition, Switzerland should have set an example against an orthodox understanding of immunity.
Finally, Switzerland has also contributed to overcoming the dark chapter in US foreign policy on another level and has taken in inmates from Guantanamo. Switzerland should also have reminded Barack Obama that he had announced an investigation into his predecessor. Furthermore, Switzerland must work for a stronger ICC, one of which the USA will one day be a partner.
It is regrettable that George W. Bush did not come to the Hotel Wilson in Geneva (ironically named after one of his predecessors, who went down in history as the father of the League of Nations and a promoter of peaceful diplomacy). It could have been an opportunity for civil society to show that torturers are no longer safe from persecution after their term in office. And official Switzerland should have shown their colors.
Antoine Schnegg lives in the Netherlands. He is a lawyer and currently specializes in international law with a particular focus on international criminal law. Antoine Schnegg is a founding member of foraus and headed the International Organizations working group until he left Switzerland.
The foraus blog is a forum that is made available to both foraus members and guest authors. The articles published here are personal statements of the authors. They do not necessarily correspond to the opinion of the editors or the association foraus.
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