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Issue 9 - Fall 2004 / Winter 2005Final Word |
President Bush, Persona Non GrataLawyers Against the War (LAW), have written to the Prime Minister of Canada seeking to declare President Bush 'persona non grata' in Canada |
November 19, 2004
The Right Honorable Paul Martin, Prime Minister of Canada Dear Prime Minister Martin:It was with absolute dismay that we learned of the planned visit of President Bush to Canada on November 30, 2004.
Surely you are aware of the many grave crimes against humanity and war crimes for which President Bush stands properly accused by the world, starting with the Nuremberg Tribunal’s ‘supreme international crime’ of waging an aggressive war against Iraq in defiance of international law and the Charter of the United Nations, and including systematic and massive violations of the Geneva Conventions Relative to the Treatment of Prisoners of War and Relative to the Protection of Civilian Persons in Time of War, as well as the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
On November 16, Louise Arbour, U.N. High Commissioner for Human Rights and former war crimes prosecutor, called for an investigation into crimes against the Geneva Conventions in the assault by US forces on the densely populated city of Fallujah.
The terrible toll in life and limb of these crimes was documented in the October 29, 2004 issue of The Lancet which conservatively estimated the war had taken 100,000 Iraqi lives, mostly women and children. Many more deaths are anticipated in the post-war period. The President’s responsibility for these offences derives both from his ‘command responsibility’ as US Commander-in-Chief, and from his involvement in the formulation of policy. This includes his personal involvement not only in the devising and waging of an aggressive, illegal war; but also of the unlawful refusal to grant prisoner-of-war status to prisoners-of-war, contrary to specific provisions of the Geneva Conventions, an act repudiated in the US Courts. It also includes the approval of techniques of interrogation by his direct subordinate, Secretary of Defense Rumsfeld, that legally and morally constitute torture and that led directly to the disgraceful violence against Iraqi prisoners at, for example, the prison at Abu Ghraib.
As you know, not only are these acts criminal under international law, but many of them are also criminal under Canadian law, under laws enacted in pursuance of our international obligations, most importantly the Crimes Against Humanity and War Crimes Act, put in place just four years ago under a Liberal government. They also violate the provisions on torture in the Canadian Criminal Code.
By these laws, Canadians and non-Canadians alike are liable to prosecution in Canada, no matter where in the world they have committed their crimes. Furthermore, the fact that these crimes have been committed by Mr. Bush while President of the United States is absolutely irrelevant to his personal liability to prosecution in Canada, according to principles established at Nuremberg and universally recognized since then, including by the British House of Lords in the Pinochet case in 1999. And if President Bush were to visit Canada after leaving office, we would be seeking the Attorney General’s permission under section 9 of the Crimes Against Humanity and War Crimes Act and section 7 of the Criminal Code to commence proceedings against him.
However, should President Bush come to Canada while still President, he would be clothed with both diplomatic and head-of-state immunity from our laws and we would be powerless to bring him to justice.
Your invitation to President Bush may thus constitute an abetting of the crimes he and his administration and military continue to commit. As such, you and your colleagues could be personally liable to prosecution under the Crimes against Humanity and War Crimes Act, by virtue of Section 21 of the Canadian Criminal Code, for crimes so serious that they are punishable in Canada by up to life imprisonment. Nor would President Bush’s immunity be capable of shielding you and your colleagues from prosecution because the immunity applies only to foreign officials visiting Canada and not to members of the Canadian government itself.
It is for all these reasons we urgently request a meeting with you, the Foreign Minister, the Attorney General or your representatives in Ottawa, to elaborate on these matters and to persuade you to declare President Bush persona non grata in Canada, and thus avoid implicating yourselves and Canada in the most serious of international crimes.
Sincerely, Michael Mandel and Gail Davidson On behalf of Lawyers Against the War (LAW)Michael Mandel is professor of law at Osgoode Hall Law School at York University where he has taught since 1974. He is the author of the newly released, "How America Gets Away With Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity." Pluto Press, 2004. Gail Davidson is the executive director of Lawyers Rights Watch Canada, a committee of Canadian lawyers advocating human rights internationally. Both are members of Lawyers Against the War, a Canada-based committee of jurists and others with members in 14 countries: Canada, US, UK, Germany, Sweden, Denmark, Kenya, France, New Zealand, Australia, India, Syria, Poland and the Netherlands . (This letter has been edited for brevity. To see the entire letter, visit: www.lawyersagainstthewar.org) All rights reserved. Copyright belongs to the authors.
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