Last week, Amnesty International called on Ethiopia, Tanzania and Zambia to arrest former President George W. Bush in anticipation of his visit to these nations in the coming days. Amnesty International accuses G.W. Bush of authorizing the unlawful use of torture, including the practice of waterboarding, as an interrogation technique at detention facilities after 9/11 in connection to the U.S. War against Terrorism.

"Amnesty has neither the jurisdiction nor the mandate to issue arrest warrants," said one Ethiopian official, dismissing Amnesty’s request as Bush arrived in Addis Ababa to attend the 16th International Conference on AIDS and Sexually Transmitted Infections in Africa (ICASA 2011) on Sunday, December 4.

To date, there have been no successful prosecutions against the US for its alleged use of torture under the Bush administration. Moreover, the doctrine of complimentarity dictates that an international tribunal, or any state claiming universal jurisdiction, must first defer to local proceedings. Only when local proceedings are deemed inadequate can a foreign court assert universal jurisdiction.

Given there is ongoing litigation regarding varying alleged torture allegations arising from US military decisions post 9/11, Amnesty International’s call is terribly premature and seems to be politically motivated. Two cases, as examples, include Vance v. Rumsfeld, 653 F.3d 591 (7th Cir. 2011) and Doe v. Rumsfeld, 2011 WL 3319439 (D.C. Dist. Ct. 2011).

While universal jurisdiction may mean well—i.e., provide a global avenue to protect as many men and women against human rights abuses—it can also, alternatively, be used as a political tool to fuel ideological battles in foreign courts with no connection to the purported human rights violation. As a result, many critics of universal jurisdiction see it as an attack on a nation's sovereignty. Some critics would also consider universal jurisdiction ripe for abuse by lawfare proponents. 

The legality of waterboarding during a time of war continues to be debated in the United States and abroad. It appears to have been legal domestically in the years directly after 9/11. The CIA did not ban waterboarding until 2007 after the U.S. Supreme Court ruled that detainees at detention centers like Guantanamo Bay were protected under the Geneva Conventions (yet did not rule on the issue of whether the technique was in fact legal). The Senate passed a ban on water-boarding in 2008. While Amnesty International finds G.W. Bush guilty of torture (sans trial), a fundamental principle of liberal democracy is due process; an element of which dictates that one cannot be found guilty of a crime if the underlying action was not itself illegal at the time it was carried out. 

Considering the continued political dissent today in the United States over the matter, it is not likely that we will be coming to any definitive legal conclusions in the near future about this practice. The current Republican candidates are split over whether water-boarding is torture, indicating that some would attempt to reinstitute it if elected president.

For any international organization like Amnesty International to dictate the direction of any nation’s domestic policies, especially as they relate to its national security and foreign policy needs, overreaches its mission significantly. 

As a human rights organization, it is well within Amnesty International's mandate to investigate and expose human rights abuses, but it is not within their mandate to be judge and jury as well on those same matters.