Boris Johnson, the conservative Mayor of London, has declared George Bush a persona non grata — asking him to stay out of London with his new torture-touting memoir. The question is whether such international shunning will become actual effort to prosecute Bush, who just confessed to war crimes. I discussed the controversy on Countdown.

Johnson begins his column without mincing words:

It is not yet clear whether George W Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker. It is not just that every European capital would be brought to a standstill, as book-signings turned into anti-war riots. The real trouble — from the Bush point of view — is that he might never see Texas again.

It seems that, while our own Democratic and Republican leaders do not want to discuss torture (let alone investigate it), the Mayor of London is not keen on a former leader flogging his memoir and proudly proclaiming how he ordered the torture of suspects.

The controversy may only be the first international reaction to the book. While our media has discussed the book rather matter-of-factly as acknowledging his order to waterboard suspects, other nations take international treaties seriously and view this as an admission of a war crime.
Previously, Cheney and others were the subject of international calls for arrest after they admitted to roles in the torture program. The United States has a clear obligation to prosecute those responsible for our torture program. However, President Obama has promised to block any investigation of torturers and has stopped any investigation of those who ordered the war crime. In the absence of nations enforcing their international obligations, other nations will often set forward to enforce the rule of law.

Such claims are sometimes based on universal jurisdiction (or the universality principle) which asserts the right under public international law for any state to enforce laws against crimes outside its boundaries, regardless of nationality or country of residence of the accused. This enforcement is generally limited to such things as war crimes — viewed as a crime against all under such agreements as the Geneva Conventions and the Convention Against Torture. Obviously, such moves are controversial and subject to intense challenge. For example, one question is whether Protocol II Additional to the Geneva Conventions restricts universal prosecution of crimes to “international conflicts” to the exclusion of torture at CIA facilities or Gitmo. Ironically, Bush always emphasizes the “war on terror” as an international effort.

In addition, since we tortured foreign citizens, those countries would have grounds to issue a warrant as was the case in the arrest of former dictator of Chile Augusto Pinochet. Pinochet was arrested in London in 1998 on an order from Spanish Judge Baltazar Garzon who cited Spanish victims in Chile. Regardless of the grounds, any warrant for Bush would put Obama in an even more ignoble position on torture (if that is possible). He would have to fight an effort to enforce human rights law while blocking such enforcement at home.  We would be in the same position as Serbia in both protecting accused war criminals and resisting efforts of other countries in seeking to prosecute them.

In the meantime, Bush’s book tour schedulers may want to avoid those countries which care about human rights and focus on such natural allies as China, Iran, Syria, and Saudi Arabia.  He might want to avoid Italy, Spain, and much of Western Europe.

Cheney and Bush have now virtually dared anyone to come after them. They know that Obama has chosen politics over principle. The question is whether the shunning in London will become an actual effort in another country to issue an arrest warrant.

Currently, the debate over torture in the United States is focusing not on the use of torture but whether actual evidence derived from torture should be admissible in federal court. That was the position of Gov. Pataki in our recent debate on Hardball:

Debates of that kind send a message to other countries that we are well past any debate over the use of torture and are now arguing over the use of the fruits of torture. When combined with the Bush book and Cheney interviews, some leaders may view any enforcement of international law as up to other countries. In the absence of such enforcement, they could feel that their countries will be compromised like the United States in turning a blind eye to a war crime or a war criminal.

This brings us back to Boris Johnson. It is rather difficult to say that your country rejects torture when it is feting a former leader who has publicly admitted to ordering torture (and remains proud of it).

Jonathan Turley