Make presidents accountable

getimage (9)Former US president George W Bush was billed to give the keynote address at the Keren Hayesod annual dinner in Geneva in February 2011.

There was a groundswell of civil society agitation calling for his arrest as soon as he set foot in Switzerland on charges of torture in terms of the International Convention on Torture of 1987.

Switzerland and, ironically, the US, are signatories to the convention. He was reported to have cancelled the engagement.

Reed Brody, a lawyer for Human Rights Watch, commented at the time: “He’s avoiding the handcuffs.” Organisers of the gala said they cancelled his participation for security reasons.

I don’t believe that Bush would have been arrested if he had gone to Geneva. The US does not recognise any forum exercising international criminal jurisdiction.

The American Service-Members’ Protection Act, enacted on August 2 2002, states that it is aimed at protecting “United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party”. The act allows the US to “use all necessary means” to free Americans held by such a forum.

The Swiss government is well aware of this and I doubt it would have wanted to risk the wrath of the beast.

But there are some interesting considerations the saga throws up. Bush admitted in his memoirs and in television interviews that he authorised the use of the interrogation methods giving rise to him being accused of complicity in torture.

The waterboarding method involves simulation of drowning and was used on suspected militants at Guantanamo Bay. When he made the admission, Bush was fully aware of the International Convention on Torture, of the view held by human rights advocates throughout the world that waterboarding is a form of torture, and of the emotions his admission and his defence of the interrogation technique would evoke.

But he cared little or nothing about any of that. He is an American and no one can touch him!

The effect of the campaigns by organs of civil society suggests that while American politicians might act with impunity in their relations with other nations, they remain vulnerable in their personal capacities.

They might do as they please anywhere in the world, but that limits the friendly spaces they might be able to visit after they have stepped out of formal politics.

Assuming that he is wired like the rest of us, it must have been personally humiliating for Bush to be forced to withdraw the way he did.

The other interesting consideration flowing out of this relates to comments made by Swiss judicial officers that Bush, as a former president, “would still enjoy a certain diplomatic immunity”. First, this confirms the point I made earlier that, realistically, Bush was never going to get arrested in Switzerland.

The reason I advanced is markedly different from what Swiss judicial officers are saying.

Their reasoning is interesting, not because it throws jurisprudential light on an interesting legal question.

There is in my view no interesting legal question to start with.

The fact of the matter is simply that no government is going to expose itself to the US war machine in the interests merely of serving a jurisprudential principle. The reasoning of Swiss judicial officers is interesting, rather, for the duplicity it betrays.

Augustino Pinochet, of Chile, was also a head of state. So was Sadam Hussein (Iraq), Hissene Habre (Chad), Slobodan Milosevic (Serbia) and Uhuru Kenyatta (Kenya).

Did the fact confer on them any diplomatic immunity that might shield them from prosecution for human rights violations they were accused of? Not by a long shot!

Interestingly, the issue raised by the Swiss judicial officers received full consideration in the case of Pinochet. In 1998 a British court ruled against his extradition on the basis that whatever crimes he was accused of would have been committed while he was head of state and were therefore shielded by diplomatic immunity.

The ruling was subsequently overturned, interestingly enough on the basis, inter alia, that its effect would be to shield people like Hussein and Slobodan from prosecution. The House of Lords eventually ruled that Pinochet’s crimes were not covered by diplomatic immunity and in 1999 his extradition to Spain was authorised.

Kenyatta’s case is even more interesting because his indictment occurred while he was a serving president. In October 2013 the Kenyan government approached the United Nations Security Council and pleaded that his prosecution be delayed so that he could finish his term as president and be charged thereafter. It was all to no avail.

I do not raise these to suggest that Slobodan, Hussein, Habre and Kenyatta should not have been arraigned. I think, on the contrary, that casting a veil of diplomatic immunity on human rights violations committed by heads of state makes nonsense of any protection of those rights.

I raise these issues, rather, because I do not think judicial officers anywhere in the world should make light of the efforts of civil society to cultivate a uniform standard for judging human rights violations.

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