Foreign analysis: Where Pinochet went, Bush may fear to tread

THE SCENARIO that saw George W Bush cancel his planned visit to make a speech in Switzerland this weekend goes something like this: Controversial former president flies across the Atlantic to meet friends in Europe, only to find a war crimes arrest warrant waiting for him.

If this sounds far-fetched, remember it has already happened. The scenario in question took place in London 12 years ago, the victim being former Chilean president Augusto Pinochet.

In what became a landmark ruling, Britain's law lords ruled that a former president enjoys no immunity from war crimes charges. They would have honoured a Spanish extradition request, except that the Labour government allowed Mr Pinochet to fly home on health grounds.

A similar indictment is rumoured to be winging its way around Europe concerning Mr Bush, issued by Spain or one of half a dozen European states who operate war crimes processes. Certainly, an ambitious prosecutor hoping to make his name would appear to have a strong case.

As with Mr Pinochet in 1998, prosecutors would be likely to concentrate on indicting Mr Bush under the provisions of the international torture convention, in this case for offences at Guantanamo Bay. Evidence of torture at Guantanamo Bay is widespread, not least that gathered by inquiries held by the US Congress.

Water-boarding, the process of simulating drowning in order to obtain confessions, would appear to be a violation of torture, defined by the convention as inflicting "severe pain or suffering". And Mr Bush may have put a noose around his own neck by declaring, in his autobiography published in November, that he personally ordered this water-boarding.

For those seeking his indictment, this is stronger evidence than the Spanish presented to London for Pinochet: Crime committed, responsibility for that crime admitted.

Switzerland was among three nations who joined Spain in trying to extradite Mr Pinochet. Even if no Swiss prosecutor has issued a secret indictment for Mr Bush, Switzerland operates extradition agreements with other European states, any one of which may have issued such a charge.

Whether such an indictment could be made to stick is a bigger question, with Mr Bush likely to assert that as a former president he should enjoy immunity.

Britain's law lords ruled with Pinochet that torture is such a serious crime that normal immunity rules do not apply.

But later judgments have clouded the picture. The UN's International Court of Justice ruled in 2002 that a serving senior official is immune from arrest - at least while he is in office. The UN judges left open the tantalising question of whether he can be arrested after he quits his job.

Then four years ago France ruled former US defence secretary Donald Rumsfeld could not be arrested for torture when he visited French soil because he enjoyed lifetime immunity. This appears to contradict the British ruling, and also those of the UN, which was happy to hold war crimes trials for Serbian strongman Slobodan Milosevic and former Liberian president Charles Taylor. What all this means is that any arrest decision against Mr Bush is likely to come down to politics.

Mr Bush is not the only international figure in the war-crimes crosshairs. Pro-Palestinian groups have three times sought arrest warrants against Israeli dignitaries visiting the UK, causing Israel to operate an unofficial ban on visits to British shores. Tamil groups are hoping to use the same powers to indict any Sri Lankan leaders making trips to London.

Across Europe, prosecutors in Belgium, Holland, France, Germany, Spain and Switzerland have become ever bolder in issuing war crimes indictments, focusing mostly on Bosnians, Rwandans, and a handful of former Nazis, with the International Criminal Court recognising no immunity of any kind. Unfortunately for human rights groups, America is not a member of the ICC.

Yet the reality is that the reach of international war crimes law is steadily increasing. How much of a risk Mr Bush faces he will only know for sure if he makes the journey to Europe - one reason why many think this continent is no longer in his travel plans.