Letter to the Swiss Confederation regarding the visit of Mr Bush

President of the Swiss Confederation

Head of the Federal Department of Foreign Affairs of the SwissConfederation

Geneva, February 1, 2011

Re: Switzerland’s obligations under the United Nations ConventionAgainst Torture (UNCAT) in the event of an upcoming visit of Mr George W Bushor other US officials against whom there is credible information about theirresponsibility for acts of torture

Your Excellency,

We are writing to youregarding the visit of former US President George W Bushon February 12, 2011, to Geneva which was widely reportedin the media in Switzerland. The World OrganisationAgainst Torture (OMCT) - comprised of the largest network of anti-tortureorganizations - would like to share with you its pre-occupation about upholdingSwitzerland’s obligations under international law, notably the UN Conventionagainst Torture (UNCAT), in this regard. We would like to draw your particularattention at Switzerland’s obligation under bothinternational and domestic law to initiate criminal investigations against anyperson present in its jurisdiction where there is reason to believe that he/shecommitted, authorized, participated in or was otherwise complicit in acts oftorture.

Torture and other forms ofcruel, inhuman or degrading treatment or punishment are prohibited under allcircumstances and can never be justified whether in times of peace or war. As astate party to various human rights treaties, such as the UN Covenant on Civiland Political Rights (ICCPR) and the UN Convention Against Torture (UNCAT),Switzerland has a positive legal obligation to investigate any allegation oftorture with the aim of bringing those responsible to justice. Article 5paragraph 2 UNCAT requires it to establish jurisdiction over the crime oftorture also when committed outside of its jurisdiction when the offender ispresent in its jurisdiction. Where there is reliable information available thatthe person present on its jurisdiction may be responsible for an act of tortureArticle 7 UNCAT obliges the state party to submit the case to its competentauthorities for prosecution’ unless it decides to extradite the allegedoffender. These obligations apply to acts of torture wherever they have beencommitted and irrespective of whether they were committed in times of peace orin the context of an armed conflict.

Acts of torture, cruel andinhuman or degrading treatment, however, may in addition incur criminalresponsibility under the Geneva Conventions as grave breaches when committed inthe context of an international armed conflict, or as serious breaches ofcommon article 3 in the case of non-international armed conflict. If tortureand ill-treatment are part of a planned policy and widespread or systematicthey may also trigger criminal responsibility as a crime against humanity asreflected in the Rome Statute for an International Criminal Court. Thejurisdiction over acts torture and cruel, inhuman or degrading treatment shouldan offender find himself under Swiss jurisdiction may thus derive frominternational human rights, international criminal and internationalhumanitarian law.

While we note that thespecific crime of torture as defined in the UN Convention Against Torture hasnot been as such incorporated into the domestic law of Switzerland itsconstituent conduct is criminalized also under the Swiss criminal code whichalso provides the necessary jurisdictional basis for investigations andprosecutions should the offender be present on its soil even if for atransitory period of time.[1]

With this in mind we wouldlike to draw your attention to two areas of particular concern:

It is well documented that the United States engaged in interrogationpolicies and practices euphemistically described as ‘enhanced interrogations’.These were further regularized in a number of so-called legal memos that soughtto redefine the scope of the absolute prohibition of torture.[2]President Obama had to issue executive orders on his first day in office to endthese authorizations and to ensure compliance with the full scope of legalobligations not to engage in acts of torture as well as equally prohibited actsof cruel, inhuman or degrading treatment or punishment.[3] Thescope of authorized abusive interrogation techniques included a wide array ofphysical and psychological abuse against persons deprived of liberty thatamount to torture and other forms of prohibited cruel, inhuman or degradingtreatment. The existence of this policy has been publicly acknowledged anddefended by former senior government officials and has been approved at thehighest level of government.[4] Indeed,in September 2006, then-President Bush acknowledged the existence of a secretdetention program run by the Central Intelligence Agency, in which detaineeswere held in complete isolation in various locations outside the United States and subjected to“enhanced interrogation techniques,” including water-boarding. These detaineeswere also withheld from the International Committee of the Red Cross whichfinally had an opportunity to interview the men after years in detention, andconcluded that they had been tortured.[5] In thisregard, the OMCT notes also the recent admissions by former President Bushcontained in his own biography released in November 2009.[6] Invarious parts of the book reference is made to the enhanced interrogationtechniques including specific accounts of having authorized such interrogationtechniques in relation to so-called high-value detainees. This includesexplicit references on at least two occasions on the authorization of practicesof ‘water-boarding’ in which the prisoner is bound to an inclined board, feetraised and head slightly below the feet, material wrapped over the prisoner’sface and water poured over them creating a terrifying fear of drowning. TheOMCT has been confronted with water-boarding as an obvious form of torture inmany parts of the world. It is important, however, to underline that many ofthe other techniques employed do equally qualify as torture as defined underinternational law, especially as they were used in combination and againstpersons held outside the protection of the law. Moreover, it is important tobear in mind that other forms of cruel, inhuman or degrading treatment areequally prohibited and can engage criminal responsibility under internationallaw. The OMCT would be willing to provide further information on any of thesepoints should it be required.

Second, the OMCT remainspre-occupied about the impunity in relation to the practice of secret detentionand extraordinary renditions. Extra-ordinary renditions and secret detentionsresulted in multiple human rights violations, including torture, cruel andinhuman or degrading treatment, prolonged arbitrary detention and enforceddisappearances and also constitute crimes under international law. Theseviolations have been documented by the Council of Europe Inquiry led by SwissSenator Dick Marty into Alleged Secret Detentions and Unlawful inter-stateTransfers[7], theEuropean Parliament Temporary Committee[8] and thejoint global study of four independent mandate holders of the UN Human RightsCouncil on secret detention.[9] Thesereports provide compelling information on the practice of extra-ordinaryrenditions, secret detention and torture. A number of court cases and investigationsdo provide further evidence of these violations. The policy of secret detentionitself was acknowledged by President Bush when fourteen so-called ‘high-valuedetainees’ from unacknowledged CIA detention sites outside the United States were transferred to the US.

A significant amount ofevidence is located within other jurisdictions, including in Europe, which can be accessedthrough mutual legal assistance schemes or is contained in official reports inthe United States itself. The OMCT draws attentionto criminal convictions of CIA officials in the courts of Milan for theextra-ordinary rendition of Mr HassanMustafa Osama Nasr, alias Abu Omar, toEgypt, investigations that resulted in demands for arrest warrants of CIAofficials by the prosecuting authorities in Germany concerning the abduction,torture and arbitrary detention of German citizen Khaled Al Masri, a case thatis also now pending against the Former Yugoslav Republic of Macedonia at theEuropean Court of Human Rights for an alleged failure to conduct independentinvestigations into these crimes[10].Preliminary investigations are conducted in Spain against officials of theadministration of President Bush and the lawyers who authored legal memos onenhanced interrogations, an investigation started in Poland regarding the detention,torture and ill-treatment and enforced disappearances of a victim by members ofthe CIA.[11] Decisions of the UN Committee AgainstTorture, the UN Human Rights Committee on cases of extraordinary rendition oftwo individuals from Sweden to Egypt provide further accountof these practices.[12] In Canada, too, judicial inquiriessuch as the Maher Arar Inquiry have revealed a body of credible informationabout extra-ordinary renditions and torture.[13]

Until today the United States have failed to take anycredible steps to assume its responsibility under international law, includingthe UN Convention Against Torture, to investigate those responsible forcommitting, authorizing, participating or otherwise being complicit in suchviolations. To the contrary it has been stated that an investigation launchedin the US will only look intointerrogations in which individual interrogators exceeded the ill-treatmentauthorized in the various legal memos government lawyers had crafted.[14]Moreover, where civil proceedings have been initiated by those subjected totorture and enforced disappearances and other serious human rights violationsthey have been frustrated and undermined through the invocation of notions ofstate secrecy, special circumstances related to national security or foreignpolicy considerations.[15] Asleaked cables now appear to confirm, pressure has also been exercised toprevent investigations and legal cases in other European jurisdictions.[16] Wewould like to recall in this regard that state authorities, including theexecutive branch of government, would have an obligation to support and not toimpede criminal investigations into acts of torture, cruel and inhuman ordegrading treatment or enforced disappearances should they be initiated in Switzerland or elsewhere.

In light of theoverwhelming body of available information there can hardly be doubt that thereare grounds that were to trigger Switzerland’s obligation to submit cases forinvestigations into the crime of torture against anybody present on its soilwho has authorized, participated or was complicit in the above practices. Thiswould have to include also former President G Bush who had the overall controlas commander in chief and as all information suggests authorized, knew andacquiesced into the practices that constitute the crime of torture. Switzerland would also have to takemeasures against any offender present on its territory to secure his presencefor such criminal investigations and proceedings. In this regard, the OMCTconsiders that neither officials nor former Heads of States can enjoy immunityfor the crime of torture under the UN Convention Against Torture, nor cansuperior orders or the memos drafted by government lawyers and that sought toimmunize officials from prospective prosecution under US domestic law, shield themfrom responsibility under international law.

Your Excellency,

Switzerland has played a vital rolein building up a framework of international human rights, internationalhumanitarian and international criminal law over the last sixty years. The OMCTwith its network of anti-torture organizations around the world has seen firsthand the dramatic effect of torture in context of counter-terrorism over thelast years and their knock-on effect on human rights protection around theworld. It is now the impunity in the face of well documented violations ofinternational human rights law and crimes under international law thatthreatens the rule of law.

We therefore respectfullyask your government to uphold the rule of law and its obligations underinternational law in ensuring effective investigations into torture wheneverthere is reliable information that a person present on its jurisdiction hascommitted the crime of torture. It is indeed a fundamental tenet of the rule oflaw and also of criminal law that it applies to all equally irrespective oforigin or status. The prohibition of torture is a higher norm of internationallaw (ius cogens) owed to all states (erga omnes) who should takeactions bringing them to an end. We therefore kindly ask you to address thecontinuous impunity for acts of torture and enforced disappearances and absenceof any remedies and reparations.

We remain at your disposalshould you require further information on any of the issues addressed.

We thank you in advance for your attention andconsideration.

Yours sincerely,

Yves Berthelot EricSottas

President Secretary-General

Cc

MadameSimonetta Sommaruga , Federal Department of Justice and Police

MonsieurDaniel Zappelli, General Prosecutor of the Canton and Republic of Geneva

MonsieurBeyeler Erwin, General Prosecutor of the Swiss Confederation

[1]Article 6 of the Swiss Criminal Code. Also written response of the governmentof Switzerlandto the list of issues on the occasion of the examination of its sixth report,CAT/C/CHE/Q/6/Add.1, 3 March 2010.

[2]See http://www.aclu.org/human-rights_national-security/documents-delivered-responsive-torture-foia;See also Karen Greenberg (ed.), The Torture Papers, Cambridge 2005.

[3]The White House, Executive Order: Ensuring Lawful Interrogations, 22 January 2009,http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/

[4]See amongst others the report of the Inspector General of the CentralIntelligence Services in 2004 released on August 24, 2009 which provides adetailed account of the CIA’s detention, interrogations, and renditionsprogrammes and describe abusive techniques, including water-boarding, mockexecutions, and threats to kill and rape detainees family members and a rangeof other abuses, CIA Inspector General, Special Review, Counter-TerrorismDetention and Interrogation Activities, (September 2001-October 2003) (2003 –7123-IG), 7 May 2008, available athttp://media.washingtonpost.com/wp-srv/nation/documents/cia_oig_report.pdf?hpid=topnews

[5] ICRC report available at http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf; Statement of George WBush, September 6, 2006. http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=all

[6]See George W. Bush, Decision Points, November 2009. Admissions of havingauthorized water-boarding were affirmed in subsequent interviews, see as http://today.msnbc.msn.com/id/39976132/ns/40085897.

[7]Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights,Alleged Secret Detentions and Unlawful Inter-state Transfers, Council of EuropeDoc 10957, 12 June 2006 and Doc 11302 rev, 11 June 2007.

[8] Report of the TemporaryCommittee on the alleged use of European countries by the CIA for thetransportation and illegal detention of prisoners (2006/2200 (INI)).

[9]Joint study on global practices in relation to secret detention in the contextof countering terrorism of the Special Rapporteur on the promotion andprotection of human rights and fundamental freedoms while countering terrorism,the Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment, the Working Group on Arbitrary Detention and theWorking Group on Enforced or Involuntary Disappearances, UN Doc A/HRC/13/42, 26January 2010.

[10]Seehttp://www.soros.org/initiatives/justice/focus/national-security/news/el-masri-european-court-20101014

[11]The Polish Prosecution Services recognized victim status to a person subjectedto ‘enhanced interrogations’ within the investigation to one of the ‘high-value’detainees allegedly held in Poland, see www.interights.org/documentbank/index.htm?id=609.

[12]UN Committee Against Torture, Views of 20 May 2005, Agiza versus SwedenCommunication No.233/2003, UN Doc CAT/C/34/D/223/2003 (2005) and UN HumanRights Committee, View of 10 November 2006, Alzery v Sweden, UN Doc.CCPR/V/88/D/1416/2005.

[13]Reports of the Canadian Commission of Inquiry into actions of Canadianofficials relating to Maher Arar, 12 December 2006, www.ararcommission.ca

[14]Statement of the Attorney General regarding a Preliminary Review into theInterrogation of Certain Detainees, 24 August 2009, http://www.justice.gov/ag

[15]See, e.g. Arar v. Ashcroft, 585 F 3d 559, 574-82 (2nd Cir. 2009);Rasul v Myers, 563 F 3d 527, 532 n5 (DC Cir.2009); Mohammed v Jeppesen, Inc.,614 F 3d 1070 (9th Circ 2010).

[16]Seehttp://ccrjustice.org/wikileaks-us-government-interference-justice-and-accountability-spain-0