Canadian Court Allows Bush Torture Prosecution
A Canadian court has allowed a prosecution of President George Bush under the Criminal Code for violations of the 1987 Convention Against Torture.
Bush publication ban lifted (Straight.com)
A Vancouver lawyer has won a procedural victory in her attempt to prosecute U.S. President George W. Bush under the Criminal Code. Gail Davidson, cofounder of an international group of jurists called Lawyers Against the War, expressed her delight on October 18 following the lifting of a publication ban on court proceedings against the U.S. president. Ã¢€œItÃ¢€™s great news, but really they had no choice,Ã¢€ Davidson told the Georgia Straight.
The Kitsilano lawyer got the ball rolling against Bush as soon as he set foot on Canadian soil for his November 30, 2004, visit. As a private citizen, she charged him with seven counts of counselling, aiding, and abetting torture at Abu Ghraib prison in Iraq and at CubaÃ¢€™s Guantanamo Bay naval base. She had her charges accepted by a justice of the peace in Vancouver Provincial Court.
Bush faces prison time if the case goes to trial and he is found guilty.
On December 6, 2004, Davidson was at Provincial Court to fix a date for the process hearing. However, Provincial Court Judge William Kitchen promptly ordered a Straight reporter and other observers from the courtroom and cancelled the charges, declaring them a Ã¢€œnullityÃ¢€. The meeting was deemed to be Ã¢€œin-cameraÃ¢€ and Kitchen concluded immediately that Bush had diplomatic immunity during his two-day visit to Canada because he was a head of state.
Davidson subsequently appealed KitchenÃ¢€™s decision and B.C. Supreme Court Justice Deborah Satanove directed the Crown to produce submissions on the publication bans by October 14. The Crown consented to the termination of Judge KitchenÃ¢€™s Provincial Court ban and an interim ban made by B.C. Supreme Court Justice Patrick Dohm.
Ã¢€œWe are next in [B.C. Supreme] court at 10 a.m. on November 25 for the Crown to argue that the case is moot and that the court not hear any argument on the substantive issue as to whether George Bush is protected from prosecution under the laws of Canada by what Judge Kitchen called a Ã¢€˜concept of diplomatic immunity,Ã¢€™?Ã¢€ Davidson wrote in an October 18 e-mail to the Straight.
In an earlier interview with the Straight, Davidson said Ã¢€œnullityÃ¢€ means the charges never legally existed, even though they were approved by a justice of the peace on November 30, 2004. Crown counsel spokesperson Stan Lowe told the Straight that the upcoming November 25 court proceedingsÃ¢€”he erroneously referred to the case as Ã¢€œRegina versus BushÃ¢€Ã¢€”will focus on two issues. Ã¢€œFirst of all, the court has to determine whether it has jurisdiction in the Supreme Court to hear the matter,Ã¢€ Lowe said. Ã¢€œItÃ¢€™s a review, an application by Gail Davidson arising out of a Provincial Court decision. Secondly, part of the issue is whether they [LAW] can proceed in their application without the permission of the Attorney General of Canada.Ã¢€
Canadian Attorney General Irwin Cotler must give his consent within eight days of laying charges for the case to continue. The Crown is now raising a preliminary objection that B.C. Supreme Court does not have jurisdiction to adjudicate on DavidsonÃ¢€™s appeal because the issues raised are no longer moot. Ã¢€œItÃ¢€™s great,Ã¢€ Davidson said. Ã¢€œNow the CrownÃ¢€™s argument is moving from mute to moot.Ã¢€
As a result of the lifting of the publication ban, the Straight has obtained a copy of the Provincial Court transcript from December 6, 2004. It sheds new light on some of the finer details of why Davidson and LAW laid the charges. Ã¢€œItÃ¢€™s not a frivolously filed application,Ã¢€ Davidson said last year in court. Ã¢€œThe application was filed on the 30th [of November] because Mr. Bush was in Canada, thereby giving Canada the jurisdiction to prosecute under 269(1) [of the Criminal Code of Canada], the torture section.Ã¢€
Davidson pointed out that Canada signed the 1987 Convention Against Torture. As a result, she said, Ã¢€œamendments to the Criminal Code were made to allow Canada to expand its jurisdiction to prosecute crimes of torture.Ã¢€ Addressing directly the CrownÃ¢€™s question of immunity, Davidson referred to the Rome Statute, defining torture as a war crime and barring immunity for torture and other war crimes.
[…] What is happening is that Ms. Davidson and Lawyers Against the War have laid charges against George Bush Jr; accusing him of aiding, abetting, and counseling the commission of torture. This charge is based on the abuses of the prisoners held at the U.S. prisons in GuantÃƒ¡namo Bay, Cuba and Abu-Ghraib, Iraq including Canadian minor Omar Khadr, who has been held in Cuba since 2001.
“Many Canadians donÃ¢€™t realize that we have not only the right but the responsibility to pursue these charges, it is a responsibility that the Canadian government owes not only to the people of Canada, but to the people of the world. The 1987 Convention Against Torture [And Other Cruel, Inhuman Or Degrading Treatment Or Punishment] binds us to this action.” Canada ratified the UN Convention on Torture along with 139 other nations; promising to protect the inalienable right of all the worldÃ¢€™s citizens to live a life free of torture.
Quite bizarre and obviously rather frivilous. Indeed, the two stories above are pretty much the entirety of the press coverage of this so far.
These kinds of actions, unfortunately, demonstrate the absurdity of actually trying to enforce “international law.” Davidson actually has a case here, in that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does indeed demand such action:
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
The United States signed the treaty in 1988 and Canada did so in 1985. The United States did so, however, with the stipulation that “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” Subjecting our head of state to trial in Canada would seem to violate the Constitution and, indeed, the very concept of state sovereignty. Specifically,
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. […]
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, […]
Rather clearly, the United States is not in the business of ceding judicial authority over its officials to foreign courts. Indeed, in its longer list of Reservations made when signing the treaty, the United States noted,
(5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfilment of the Convention.
Ultimately, I expect higher Canadian courts to toss out this preliminary ruling and have little fear that the President of the United States will be arrested and prosecuted by the Canadian Government. Still, the case illustrates the sticky nature of international agreements. They are intended mostly to impose international (i.e., Western) norms of behavior on the vast majority of the world that does not play by that set of rules, having a civilizing effect. Occasionally, they work in that regard when brutal despots are ousted, giving a quasi-legal basis for bringing a case. Unfortunately, as demonstrated here, they can also be used for mischief and making political points.
via e-mail tip from OTB roving correspondent Richard Gardner