UPDATE, DEC. 1:
Lawyers against the War went to court yesterday to lay an information against George W. Bush. An information is a sworn document which alleges that someone has committed an offence; it is one way to initiate a criminal proceeding. But there is little likelihood that Bush will face his accusers in Canada, as charges must first be approved by the Attorney-General, a remote possibility in this case.
Across the Atlantic, however, it’s a different matter. There, German lawyers for the New York based Center for Constitutional Rights, have laid a criminal complaint on behalf of four Iraqis who say they were tortured in Abu Ghraib prison. Germany’s war crimes laws, like Canada’s, embrace the universal jurisdiction principle. This means that war crimes charges may be laid against a citizen of any country for crimes committed anywhere in the world. -- Judith Ince
When George W. Bush visits Canada this week, he's sure to get an earful from demonstrators who see him more as a "war crimes president" than a "war president."
While activists prepare to put down their unwelcome mats, lawyers have been sharpening arguments to hold the president accountable for his actions in Iraq and Afghanistan. But amid the flurry of legal briefs flying across the country, the police, the immigration authorities, and the Minister of Justice seem to be unprepared for a brewing collision between Canadian law and political expediency.
Gail Davidson, a Vancouver lawyer and co-chair of Lawyers Against the War, says the prime minister should rescind his invitation to Bush, because the president is a "major war criminal." Her arguments are familiar. The extent of civilian deaths during the American conquest of Iraq—currently estimated at 100,000 —are chief among them.
Prominent jurists have echoed Davidson's claims. Most recently, Louise Arbour, the former war crimes prosecutor and current United Nations' High Commissioner for Human Rights, has called for an investigation into crimes against the Geneva Conventions during the recent American assault on Fallujah.
Tying Bush to torture violations
But Davidson says Bush should be brought to justice for "one of the crimes that's been very well-substantiated, and that's the crime of torture." In May the American government released its investigation of Abu Ghraib prison, concluding that it was the scene of "sadistic, blatant, and wanton criminal abuses."
The author of the report, Major General Antonio Taguba catalogued twenty different types of "systematic and illegal abuse of detainees." Guards broke chemical lights and poured liquid phosphorous on prisoners, threatened them with loaded guns, doused them in frigid water, sodomized them with broom handles, forced them to masturbate while being photographed and videotaped, terrified them with dogs, and slapped, hit, and jumped on them.
International human rights conventions—most famously, the Geneva and United Nations Conventions--forbid this type of maltreatment of prisoners. Some of the individual perpetrators of these acts have been tried and are being punished for their crimes at Abu Ghraib. Others, like Lynndie England, are awaiting court martial.
Davidson says that it's not just the soldiers who are to blame for what happened at Abu Ghraib, but the president as well. As Commander in Chief of the U.S. forces, the Bush approved the interrogation 'techniques' devised by his Defense Secretary Donald Rumsfeld. First practiced on detainees at Guantanamo, and later at Abu Ghraib, Davidson says the techniques "legally and morally constitute torture."
Bush has immunity here
As the sitting head of state, Bush enjoys diplomatic and state immunity in Canada. But the Immigration and Refugee Protection Act contains a number of sections that could be used to turn him back at the border. A person can be inadmissible "if they're alleged to have committed "war crimes, crimes against humanity, gross violations of human rights, aggression against another state. It reads like his resumé," Davidson laughs.
The Minister of Citizenship and Immigrations did not get back to The Tyee by press time to comment on Davidson's suggestion.
Vancouver lawyer Michael Byers has researched and written extensively about the prosecution of alleged war criminals who are also heads of state. Currently holding the Canada Research Chair at UBC, Byers has a cross appointment at the Liu Institute for Global Affairs and the political science department. This fall, he and a group of UBC graduate students investigated the legal implications for Canadian authorities if Rumsfeld came to Canada after he leaves office—and loses the immunity from prosecution that goes with it.
Their conclusions suggest Rumsfeld might want to reconsider any retirement travel north of the 49th parallel.
The exercise was grounded in known facts as well as Canadian and international law, even though the exercise was a hypothetical one, aimed at provoking "the Vancouver city police into thinking about what they would do," should Rumsfeld travel here in the future.
Students indict Rumsfeld
Byers had students assume they could call as witnesses the sources used in Chain of Command by Seymour Hersh, the Pulitzer prize winning journalist who brought the My Lai massacre to light thirty years ago. They were then to consider whether the existing evidence is sufficiently strong to indict Rumsfeld under Canada's Crimes Against Humanity and War Crimes Act (CAHWCA).
The students concluded—and Byers agrees with them—that there are reasonable grounds to indict Rumsfeld. The CAHWCA "asserts universal jurisdiction, a principle which allows Canada to prosecute anyone—regardless of nationality," who steps foot on Canadian soil and has been alleged to have committed crimes itemized in the Act. This list of crimes reads like a paragraph out of Taguba's report on Abu Ghraib: imprisonment, torture, sexual violence, or any other inhumane act against a civilian population.
Rumsfeld was the architect of the policies that led to the mistreatment of prisoners, but he also ignored the vigorous objections of the International Committee of the Red Cross to them. The memo concludes, "In failing to stop the crimes of Abu Ghraib, Rumsfeld either chose not to exercise this authority, or was so willfully blind to their occurrence and warning signs as to suggest a dereliction of his responsibility as the authoritative superior." Such a breach is indictable under section 7 of the CAHWCA.
Martin's 'agenda for justice'
Paul Martin and his Minister of Justice, Irwin Cotler, have reconfirmed Canada's commitment to the prosecution of those who break international law. In his inaugural address to the United Nations on September 22, Martin said, "It is not enough simply to possess various legal instruments—they must be put into practice. Institutions responsible for human rights must reveal to the entire world those guilty of abuse, be they armed groups, communities or governments, and take the necessary measures to bring a halt to this abuse."
Late this summer, Cotler delivered a speech called "Law beyond borders: agenda for justice," to the Canadian Bar Association. In it, he was unequivocal about war crimes. "It is now incumbent upon Canada," he said, "to make the bringing of war criminals to justice, both domestically and internationally, the linchpin of building an international criminal justice system in the 21st century."
Cotler, the nation's Attorney General, is the man who would have to approve any prosecution of war criminals in Canada. In his speech, he pledged his commitment "break down the walls of indifference, to shatter the conspiracies of silence wherever they may be. As Nobel Peace laureate Elie Wiesel put it, 'neutrality always means coming down on the side of the victimizer—never on the side of the victim.'"
Cotler's words, like Martin's, come down forcefully on the full application of the law, but Byers points out that there's always a dynamic tension between the law and politics. "Here we have some of the strongest rules, some of the absolute prohibitions—war crimes' rules—up against a very close relationship between a relatively weak country and the world's most powerful state. And it just doesn't get any better in terms of illuminating that tension," he said.
A spokesperson for the Department of Justice, Patrick Charette, said "with reference to breaches of international law, we're not a safe haven," for war criminals. However, referring to Arbour's allegations that war crimes may have been committed by the Americans in Fallujah, Charette said he would be "unable to confirm or deny ongoing investigations" on such a "sensitive file." Moreover, he said, "Canada and the U.S. have different views, but the U.S. remains our closest ally and partner."
Vancouver police chief on notice
Byers notes that "it would certainly have major political implications if a former secretary of defense were arrested in Canada for crimes committed by the U.S. armed forces."
The United States has flexed its muscle when other countries have been inclined to prosecute its president and senior staff. Following the Rwanda genocide, Belgium changed its laws so that its courts could hear war crimes complaints no matter where the events occurred or the nationality of those involved. Charges were subsequently laid against George W. Bush, Dick Cheney, Colin Powell and other senior members of the American government.
But in June 2003, Rumsfeld had had enough of Belgian justice. He gave the Belgians six months to change their laws, or else. He threatened to pull American funding for a new $352-million US new NATO headquarters in Brussells, and to boycott NATO meetings. The Belgians changed the law.
If Rumsfeld or Bush come to Canada once they're out of office—say to catch a hockey game at the 2010 Olympics—the pressure between law and politics will escalate: will police arrest these men who have had such serious and credible allegations of war crimes made against them?
At a legal conference in September, Byers raised this very practical issue with the city's police chief, Jamie Graham, and promised him a copy of his students' report. If Rumsfeld or Bush or any other target of substantiated war crimes allegations were to visit Vancouver, it would be the responsibility of the Vancouver Police Department to decide what to do next, because Criminal Code offences, including war crimes, fall under their jurisdiction. However, Byers said, "I haven't heard back from him surprisingly enough."
Graham's office confirmed he had received and read the memo, but was not available for comment by press time.
Judith Ince is a staff writer for The Tyee.