News that four former Guantanamo detainees have filed a complaint against Canada with the UN Committee Against Torture for the Canadian government's failure to arrest George W. Bush has caused quite a tempest in our teapot. The complaint comes months after the Committee published its Concluding Observations on Canada as part of its regular periodic review process.
George W. Bush is a controversial figure, and not surprisingly discussions about the merits of the Iraq War and the possible implications of his arrest have obscured the real issue: What does Canadian law require of our authorities, and have they breached that duty?
Torture and War Crimes are Canadian Crimes
It is important to be clear from the outset that the crimes in question -- torture and war crimes -- are crimes under Canadian law. Canada's Criminal Code makes torture a crime at s. 269.1, and under s. 7(3.7) it is a crime of "universal jurisdiction": Torture committed anywhere by anyone is deemed to have been committed in Canada as a crime under Canadian law whenever the perpetrator is in Canada, or whenever either the perpetrator or the victim is a Canadian.
Similarly, the Crimes Against Humanity and War Crimes Act makes genocide, crimes against humanity, and war crimes indictable offences under Canadian law subject to life imprisonment; s.6 provides for universal jurisdiction. The Geneva Conventions Act makes grave breaches of the Geneva Conventions crimes of universal jurisdiction in Canada subject to a penalty of life imprisonment if the breach causes loss of life.
Accordingly, the Canadian authorities have a duty to arrest, investigate, and, where evidence warrants, charge and imprison anyone who is reasonably suspected of committing, conspiring to commit, or ordering war crimes or torture of anyone anywhere as soon as the suspect enters Canada. Claims by law enforcement officials that suspects must be resident in Canada are legally false.
Reasonable Grounds to suspect George W. Bush
Evidence of Bush's involvement in authorizing war crimes and torture goes far beyond the reasonable grounds necessary for law enforcement. Starting a war of aggression is the most fundamental war crime, and it is indisputable that the Iraq war was an invasion of a sovereign nation by the US without lawful justification. Combatants are known to have been subject to illegal international rendition and have been deprived of Geneva Convention rights.
Sleep deprivation, prolonged solitary confinement, stress positions, and waterboarding are all considered torture under Canadian, U.S., and international law, and are widely accepted to have been used on detainees at Guantanamo.
Importantly, these reasonable grounds have not been denied by the administration; on the contrary its efforts to retroactively make waterboarding and other forms of torture legal under US military law are notorious and well documented.
In fact, the Supreme Court of the United States has found that the Guantanamo system was a violation of US and international law. The Supreme Court of Canada affirmed that judgment in Canadian law and also found that Omar Khadr, a Canadian citizen, was subject to cruel and unusual punishment in which at least four Canadian officials were directly complicit.
Prominent world leaders such as Bishop Desmond Tutu are calling for Bush's arrest (along with Tony Blair), and Bush is now not just a suspect but a convicted war criminal, having been convicted in absentia by a Malaysian Court.
The Political Problem
It escapes no one that the arrest of a former US President would be problematic. However, in a country supposedly under the rule of law it is not acceptable that police would allow torturers and war criminals to walk among us freely, picking up hefty speaking fees besides, just because arresting and investigating them would be difficult. No country should get away with torture, and Canadian officials who committed crimes or failed in their duties to hold criminals responsible should be called to account.
Prosecutions under the War Crimes and Geneva Conventions Acts, however, require the consent of the Attorney-General for Canada. Accordingly, while the failure to prosecute for torture falls squarely on law enforcement, as both a practical and legal matter the responsibility for failure to arrest and prosecute lies with the Attorney-General (more realistically, the Prime Minister and cabinet).
It is also clear that the political discretion is being wielded in a capricious manner. British MP George Galloway was refused entry in 2009 for alleged ties to Palestinian terrorists, but the Federal Court found the decision was based on a "a flawed and overreaching interpretation" of the law and that the real reason was "they disagreed with his political views."
It is frankly bizarre that discretion should be exercised actively on such flimsy grounds in one case but used to prevent action on undisputed evidence in another, and the Court came to the only possible conclusion: that discretion is being used to prevent political speech the government does not like and protect the political speech of criminals who should be arrested if the political speech is more favourable.
An ounce of Prevention, a Pound of Cure
As is often the case, a clear identification of the problem -political discretion - leads us to the solution. While the barring of Galloway turned out to be baseless, it is well within the Minister of Immigration's discretionary authority under the Immigration and Refugee Protection Act to bar suspected war criminals from Canada. It is not necessary that we get trapped in the false dichotomy of either sitting idly by while criminals pick up speaking fees or causing an international incident by arresting them.
The Minister of Immigration can spare the Attorney-General and the people of Canada this embarrassment by barring entry to war crimes suspects like George W Bush. Denying him safe haven is both the right, the legal, and the sensible thing to do. He can spend most of his retirement, like most of his Presidency, at his ranch in Crawford, TX.
I would like to thank my fellow volunteers at Lawyer's Rights Watch Canada (LRWC) and our friends at Lawyers Against the War for their determined advocacy on behalf of the rule of law in the cases of Omar Khadr and George Bush.
Photo of George W. Bush from Wikimedia Commons
Follow Gavin Magrath on Twitter: www.twitter.com/lawtalkinggavin