Should Canada Indict Bush?
November 16, 2004
(link no longer works)
When U.S. President George W. Bush arrives in Ottawa - probably later
this year - should he be welcomed? Or should he be charged with war
It's an interesting question. On the face of it, Bush seems a perfect
candidate for prosecution under Canada's Crimes against Humanity and War
This act was passed in 2000 to bring Canada's ineffectual laws in line
with the rules of the new International Criminal Court. While never
tested, it lays out sweeping categories under which a foreign leader
like Bush could face arrest.
In particular, it holds that anyone who commits a war crime, even
outside Canada, may be prosecuted by our courts. What is a war crime?
According to the statute, it is any conduct defined as such by
"customary international law" or by conventions that Canada has adopted.
War crimes also specifically include any breach of the 1949 Geneva
Conventions, such as torture, degradation, wilfully depriving prisoners
of war of their rights "to a fair and regular trial," launching attacks
"in the knowledge that such attacks will cause incidental loss of life
or injury to civilians" and deportation of persons from an area under
Outside of one well-publicized (and quickly squelched) attempt in
Belgium, no one has tried to formally indict Bush. But both Oxfam
International and the U.S. group Human Rights Watch have warned that
some of the actions undertaken by the U.S. and its allies, particularly
in Iraq, may fall under the war crime rubric.
The case for the prosecution looks quite promising. First, there is the
fact of the Iraq war itself. After 1945, Allied tribunals in Nuremberg
and Tokyo - in an astonishing precedent - ruled that states no longer
had the unfettered right to invade other countries and that leaders who
started such conflicts could be tried for waging illegal war.
Concurrently, the new United Nations outlawed all aggressive wars except
those authorized by its Security Council.
Today, a strong case could be made that Bush violated the Nuremberg
principles by invading Iraq. Indeed, U.N. Secretary-General Kofi Annan
has already labelled that war illegal in terms of the U.N. Charter.
Second, there is the manner in which the U.S. conducted this war.
The mistreatment of prisoners at Iraq's Abu Ghraib prison is a clear
contravention of the Geneva Accord. The U.S. is also deporting selected
prisoners to camps outside of Iraq (another contravention). U.S. press
reports also talk of shadowy prisons in Jordan run by the CIA, where
suspects are routinely tortured. And the estimated civilian death toll
of 100,000 may well contravene the Geneva Accords prohibition against
the use of excessive force.
Canada's war crimes law specifically permits prosecution not only of
those who carry out such crimes but of the military and political
superiors who allow them to happen.
What has emerged since Abu Ghraib shows that officials at the highest
levels of the Bush administration permitted and even encouraged the use
Given that Bush, as he likes to remind everyone, is the U.S. military's
commander-in-chief, it is hard to argue he bears no responsibility.
Then there is Guantanamo Bay. The U.S. says detainees there do not fall
under the Geneva accords. That's an old argument.
In 1946, Japanese defendants explained their mistreatment of prisoners
of war by noting that their country had never signed any of the Geneva
Conventions. The Japanese were convicted anyway.
Oddly enough, Canada may be one of the few places where someone like
Bush could be brought to justice. Impeachment in the U.S. is most
unlikely. And, at Bush's insistence, the new international criminal
court has no jurisdiction over any American.
But a Canadian war crimes charge, too, would face many hurdles. Bush was
furious last year when Belgians launched a war crimes suit in their
country against him - so furious that Belgium not only backed down under
U.S. threats but changed its law to prevent further recurrences.
As well, according to a foreign affairs spokesperson, visiting heads of
state are immune from prosecution when in Canada on official business.
If Ottawa wanted to act, it would have to wait until Bush was out of
office - or hope to catch him when he comes up here to fish.
And, of course, Canada's government would have to want to act. War
crimes prosecutions are political decisions that must be authorized by
the federal attorney-general.
Still, Prime Minister Paul Martin has staked out his strong opposition
to war crimes. This was his focus in a September address to the U.N.
There, Martin was talking specifically about war crimes committed by
militiamen in far-off Sudan. But as my friends on the Star's editorial
board noted in one of their strong defences of concerted international
action against war crimes, the rule must be, "One law for all."
Ms. Jean Isachenko, email@example.com