(New York) - The US government should take the lead to investigate former US President George W. Bush and other senior officials for authorizing torture of terrorism suspects rather than leaving prosecutions to other countries, Human Rights Watch said today.
The failure of the US to investigate and prosecute Bush administration officials for torture was recently highlighted by criminal complaints that were to be filed with a prosecutor in Switzerland prior to a planned visit by President Bush to the country, Human Rights Watch said.
Ahead of a trip to Geneva where Bush was scheduled to address a charity gala on February 12, 2011, two individuals planned to file complaints with the Geneva Canton prosecutor against President Bush for authorizing torture and other ill-treatment. However, on February 5 the trip was cancelled amid reports there would be protests and criminal complaints filed against him.
"The threatened prosecution of President Bush in Switzerland shows that other countries will act against torture even if the US doesn't," said Kenneth Roth, executive director of Human Rights Watch. "The US government needs to demonstrate that no official, including an ex-president, is above the law by authorizing prosecutors to investigate and prosecute this serious crime. President Bush's bold and blatant admission that he ordered waterboarding is an obvious place to begin a criminal investigation."
The complaints to be filed in Geneva alleged that one current Guantanamo detainee, previously detained incommunicado for years at a US Central Intelligence Agency "black site," and another former Guantanamo detainee, endured beatings, shackling in stress positions, prolonged food and sleep deprivation, and extremes of heat and cold while in US custody.
The prosecution of Bush would have been authorized under Swiss law where courts may exercise jurisdiction over a person found in Switzerland suspected of criminal acts abroad when permitted by an international treaty. This globally accepted basis of authority to prosecute is termed "universal jurisdiction," and it has been applied, for instance, by the US government when it successfully prosecuted the son of former Liberian President Charles Taylor for torture in 2009 in US federal court.
Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Switzerland and the US are parties, countries are obligated to bring cases of alleged torture before their courts for prosecution whenever a suspected offender is in their territory, or extradite the accused to another jurisdiction where he will be prosecuted.
The complaints that were going to be filed in Geneva alleged that the interrogation techniques used amounted to torture and that they were approved by President Bush and implemented by officials acting on his behalf. The Center for Constitutional Rights and the European Center for Constitutional and Human Rights, human rights groups that prepared the complaints, said although they did not file them because Bush cancelled his trip, they would do so at the next opportunity.
"By failing to criminally investigate torture by Bush and other senior administration officials, the Obama administration is showing disdain for the rule of law," Roth said. "This undermines respect for human rights at home and the credibility of the US voice in advancing human rights abroad."
Bush has himself admitted that he authorized "waterboarding" and other so-called "enhanced interrogation techniques" against alleged al Qaeda operatives, methods that amount to torture under international law. On several occasions, beginning in April 2008 as well as in his 2010 memoir Decision Points, Bush said that he authorized use of waterboarding on the alleged mastermind of the September 11, 2001 attacks, Khalid Sheihk Mohammad, and suspected al Qaeda operative Abu Zubaydah. The US government has prosecuted waterboarding, a form of mock execution simulating drowning, as a war crime for more than 100 years.
In interviews Bush has sought to justify the interrogation methods used on the grounds that Justice Department lawyers said that they were legal. However, there is substantial evidence that senior Administration officials sought to influence the lawyers' judgment. In any event, the methods that Bush approved were so extreme that he should have known they constituted torture regardless of the legal advice he solicited from his Justice Department, Human Rights Watch said.
Although the US is also a party to Convention Against Torture and federal and state law impose criminal penalties for torture, the Obama administration has made no effort to date to hold senior Bush administration officials accountable for detainee abuse. President Barack Obama has repeatedly expressed a reluctance to "look backwards" at alleged crimes committed during the previous administration and has specifically ruled out prosecuting CIA agents alleged to have committed abuses that the Justice Department deemed lawful.
"The US record on accountability for detainee abuse has been abysmal," Roth said. "The official authorization of torture by a head of state should never go unpunished."