Should Canada indict Bush?

[Spazito]

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.

more

http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1100517502971&call_pageid=970599109774&col=Columnist969907626796&DPL=IvsNDS/7ChAX&tacodalogin=yes%20%20http://www.rabble.ca

(originally posted in GD by a poster named Wonk)

[Wcross]

1. Remember that South Park Movie? n/t

[iverglas]

2. good article

and for info, I posted the legislation in another thread here:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=190&topic_id=1981&mesg_id=2192&page=

From the Star article:

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.

I don't actually know where that immunity comes from; presumably some international convention to which Canada is a party, which doesn't seem to have been expressly given effect in Canadian law.

Aha: from a Globe and Mail article reproduced on a Zimbabwean site ;) --

http://www.zwnews.com/print.cfm?ArticleID=10544

Last year, the Accountability Commission asked a British court to indict Mr. Mugabe as directly responsible for crimes against humanity, but that court refused to hear the case because the President is a sitting head of state. Mr. Mugabe may also be guaranteed immunity by a 2002 International Court of Justice ruling that such leaders cannot be prosecuted in national courts without the permission of the state in question. However, Canada's war-crimes act itself offers no such protection.

Of course, Mugabe was never in Canada.

"We can't become a criminal court for the whole world; there have to be some ties to Canada before we have jurisdictional right to take over a case," Mr. Matas said. Mr. Attaran and his team are hunting for a Zimbabwean victim who will provide that "nexus" with Canada, but he contends that the law does not require it. Some experts agree, such as William Schabas, a Canadian who is the director of the Irish Centre of Human Rights and who served on the Truth and Reconciliation Commission in Sierra Leone. "The Justice Department is wrong if they say that the intention of the act is that there be a nexus with Canada. The whole point of the Crimes Against Humanity and War Crimes Act is to give Canada universal jurisdiction, which means you can prosecute people when there is no nexus," he said.

But Prof. Schabas said there is no getting around the head-of-state problem. "If we indict Mugabe in a court in Canada, guess who is going to be indicted in a court of Zimbabwe?" he said. "I don't think Paul Martin or the Queen would like it, and that's why you do it; it's out of respect for national sovereignty and you have to give some room to that even when you're trying to hold people accountable."

Lloyd Axworthy mentions an interesting fact:

http://webapps.dfait-maeci.gc.ca/minpub/Publication.asp?publication_id=377607&Language=E

The ICC has already played a valuable role by changing international thinking about impunity. Since the adoption of the ICC Statute, we have witnessed the indictment of Pinochet and the affirmation that former heads of state do not enjoy immunity for international crimes; and the indictment of Milosevic, a sitting head of state.

Hmm.