The Toronto Star: Should Canada indict Bush?

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The Toronto Star

 

Nov. 16, 2004. 01:00 AM

Should Canada indict Bush?

 

THOMAS WALKOM

 

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

crimes?

 

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 Crimes Act.

 

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 occupation.

 

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 of torture.

 

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.

General Assembly.

 

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. "

 

Thomas Walkom writes every Tuesday. twalkom.

 

Additional articles by Thomas Walkom