Prospects for Criminal Prosecution of George W. Bush

Abstract

The author explores legal prospects for criminal prosecution of George W. Bush in foreign courts for sanctioning the use of “enhanced interrogation techniques” to extract information from detainees in U.S. special prisons. She analyses whether decision by former U.S. president to authorize torture against suspected terrorists can be qualified as his “official acts” covered by functional immunity. The purpose of the article is to establish the potential existence of a rule of customary international law providing for an exception from immunity of ex-heads of state who have committed international crimes, in particular, torture. In order to do that, the author analyses national jurisprudence (criminal cases against A.Pinochet, H.Habré and D.Bauterse), decisions by international courts, non-official codifications of international law of immunities, and legal writings. She also studies the question of whether commission of international crimes entails the exception from state immunity and immunity of state officials ratione materiae from foreign civil jurisdiction.