On Friday I got an e-mail from the Center for Constitutional Rights explaining that their plan to provide the legal justification for a preliminary criminal investigation of George W. Bush to the General Prosecutor of the Canton of Geneva with regards to his actions in the torture of so-called “enemy combatants”. The plan had to be canceled because the former President had canceled his trip to Geneva. It lead to this post .
By Swiss law a person accused of torture under the International Conventions Against Torture (ICAT) has to be present in Swiss territory for the government to act. With the cancellation of the trip, the CCR and the International Federation for Human Rights (FIHR) could not file this criminal complaint, but that is not stopping them from working to make it impossible for President Bush to travel to Europe in the future.
One of the incredible frustrations for those of us who have been pushing for torture investigations and prosecutions in this country is that there is so much prima fascia evidence of criminal wrong doing. The CRR and FIHR have done yeoman’s work in putting together all the supporting legal details that are publicly known about the criminal President Bush’s role in approving the use of torture. You can read the complaint here, but let me give you a summary.
There are a lot of moving pieces the overall narrative of torture and there are things that we do not actually know which can provide confusion. In the complaint the CCR shows first that it was under President Bush’s and no others authorization that detainees from Afghanistan and else where were not to fall under the Geneva Conventions, that it was he who approved the use of so called “enhanced interrogation” and that he had been advised that some of his actions were illegal under the Geneva Convention rules.
They then rely on the investigations of the International Committee of the Red Cross for accounts from the so-called “High Value Detainees” on what happened to them under U.S. custody. Particularly horrifying is the account by Abu Zubaydah on how on his second time being waterboarded he lost control of his bladder from fear. Now when he is stressed he still loses control of his bladder.
The ICRC is crystal clear that the treatment of detainees at Guantanamo Bay is unacceptable. From ICRC report on Guantanamo:
The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.
The complaint goes on to also cite the report from the Parliamentary Assembly of the Council of Europe’s investigation to further bolster the case that the treatment of detainees was indeed torture. The resolution adapted at the end of the investigation reads in part:
The detainees were subjected to inhuman and degrading treatment, which was sometimes protracted. Certain ?enhanced? interrogation methods used fulfill the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights (ETS No. 5) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Since this is a legal document the complaint then goes on to establish how it is that the Swiss authorities have jurisdiction to begin an investigation of the former U.S. President. It is based on the a couple key factors. First and foremost the fact that Switzerland is a signatory to the ICAT. It states:
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
One of the key defenses of torture apologists is that we were “at war” with terrorism (even though you can’t be at war with an act, only the people who commit the act) and that this excused the behavior of the President. Call it the “Jack Bauer” or “Ticking Time Bomb” defense. It even makes some mild sense if you ignore the fact that torture does not produce reliable intelligence and the ICAT says:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
The ICAT is clear; if you are a signatory you have agreed that there are no excuses, ever, for torture. The criminal Bush administration has tried to get around this by getting redefinitions of torture from their tame DOJ. The problem for them, at least internationally is that there is a specific definition of torture and under that waterboarding and other “enhanced techniques” are clearly in violation of it.
The complaint then goes on to establish that Switzerland is indeed obligated to investigate any credible allegations of torture (as the U.S. is but is ignoring) under the ICAT. Then comes the fun part, where the CCR makes the case that Switzerland should take President Bush into custody based on this part of the ICAT:
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.?
The key here is that if the Swiss State starts an investigation, which is it required to do when there is credible evidence, then they are also obligated to detain the subject of that investigation until they can complete the investigation.
When this story first broke an attorney I know was quite adamant that it did not matter what the law was, a former head of state had immunity from international prosecution. Thus this whole thing was nothing more than a stunt. Well the folks at the CCR address in this in detail.
The basic idea is that you can’t prosecute a former head of state for acts that they committed at part of their job, you can only hold the State as a whole responsible. This falls apart in the case of torture since torture is considered illegal in all cases by international law. There can be no immunity from a universally illegal since the ICAT is the law of the land in those states. By committing torture the violator has committed an illegal act in their own country. This invalidates their immunity internationally as well, it does not matter if their own country is willing to look the other way on this, the obligations of ICAT still bind other nations.
The best example of his is the prosecution of General Augusto Pinochet. As the International Court of Justice has noted:
the immunity from jurisdiction enjoyed by incumbent Ministers of Foreign Affairs does not mean that they enjoy impunity in respect to any crimes he might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal liability are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offenses; it cannot exonerate the person to whom it applies from all criminal responsibility
All this amounts to going to show that while the concepts of immunity both functional and customary are known, they can not be reasonably applied to any head of state from a country that ratified the ICAT and ordered torture, nor can another State signatory hide behind the customary deference that is shown to former leaders, no matter what country they come from.
Laying it all out like that could have put the Swiss government in a real trick bag. They would have either had to act on the complaint and detain a former President of the United States or join us in our flouting of international and domestic law.
The plan for this action leaked somehow, I suspect that some Swiss official called the Bush people and gave them a heads up, it is the only way for them to avoid the trick bag. And so the 43rd president canceled his trip and avoid this problem, for now.
The thing is while this particular complaint was designed for Swiss law the FIHR and CCR have been preparing generalized ones for every nation in Europe. They are ready to go at the drop of a hat. This means that Europe is effectively closed to President Bush. If he goes anywhere there he will, at the very least, be the center of a political and legal crisis for the nation he visits. No country is going to willingly host the former president given these facts.
Now, is this all a stunt? You might be able and willing to see it that way. It would be a real headache for any nation to try to prosecute a former U.S. president. The Right in this nation would lose their minds, in cases like Glenn Beck and Rush Limbaugh perhaps literally, and there would be an enormous outcry that we “go get our president back” even if that meant invading Switzerland or Norway. It would cause a giant rift in NATO which would have the leaders of North Korea and Iran wetting themselves with laughter.
Still it is more than just a stunt. By making it clear that torturers might be able to get away with it, for now, in their own country but can’t travel we start to cut off their options. Being able to go to Europe is a nice thing for a former president. Being able to travel the world is part of how they burnish their legacy and this is slowly being denied to President Bush. As the pressure increases it might also be broadened to others in his administrations that were part of the torture conspiracy.
In the end getting justice for torture takes time. It is very rare indeed that a nation can prosecute State Sponsored Torture in the same generation that it occurred. It is part of my own view of American exceptionalism that I expected us to beat this time line. I still hold out hope, though not under this president, that we will see the heinousness of an act that can rob an adult of the ability to control his bladder, an act that produces no accurate actionable intelligence but instead scars the victim for life and degrades the values that this nation was founded on.
It is in this hope that I support the actions of the CCR and FIHR and continue to call attention to the legal maneuverings of trying to achieve accountability under the law for those who flouted it by redefining torture into something no one who has experienced it would recognize and then using that definition to shield themselves from their cowardly acts.
The floor is yours.