Lawyers Against the War
 
Canada       1 877 662 7344
law@portal.ca        www.lawyersagainstthewar.org

Sunday, November 28, 2004

 

The Honourable Irwin Cotler
Minister of Justice and Attorney General of Canada
312 West  Block
House of Commons
Ottawa Ontario K1A 0A6
Tel: 613 992 4621
Fax: 613 990 7255
Email: Cotler.I@parl.gc.ca
 

Dear Mr. Cotler, 

We wrote to you on November 19, 2004 protesting the invitation of President Bush to Canada given his administration’s egregious record of crimes against Canadian and international law. We wrote to your colleague, the Minister of Citizenship and Immigration on November 25, 2004 reminding her of the American President’s inadmissibility for these reasons under section 35 of the Immigration and Refugee Protection Act, 2001. 

Neither you nor your government has seen fit to respond to our letters in any way, except to acknowledge receipt of them. 

As you know, your personal consent is writing is necessary to commence proceedings against President Bush under the Crimes Against Humanity and War Crimes Act (s. 9(3)). As you know, international law forbids issuing process against a head of state, active minister or diplomat in post. However, as you also know, there is nothing in the decided cases, treaties or authorities on immunity from local process that prevents the opening of an investigation into international crimes committed by foreign heads of state or any other foreign government official.  

We are formally asking that you undertake such an investigation into the crimes of the Bush administration on the basis of evidence referred to in our letter of November 19th  as well in the many careful reports prepared by respected human rights organizations, journalists and scholars and also to recent decisions by US Courts, some of which we have listed below. These clearly provide far more than ‘reasonable grounds’ to believe in President Bush’s legal and moral responsibility for the gravest crimes under numerous provisions also listed below, of the Crimes Against Humanity and War Crimes Act.  

Such an investigation into the grave crimes for which the Bush administration stands accused would avoid a repeat of this shameful episode, which has compromised Canada’s standing in the world and compromised our principles and our laws. Furthermore, it would serve as a warning to former officials of the Bush administration, for example Secretary of State Colin Powell who has already resigned, or even President Bush himself when he leaves office in 2009, that they would enter Canada at their own risk. 

Please advise us at your earliest convenience of the action you intend to take on this matter.

 

Sincerely,

 

 Michael Mandel and Gail Davidson on behalf of Lawyers against the War.

 

SELECTED LIST OF REPORTS DOCUMENTING CRIMES AGAINST HUMANITY AND WAR CRIMES FOR WHICH PRESIDENT BUSH IS CRIMINALLY RESPONSIBLE

 

HUMAN RIGHTS WATCH, Report Off Target: The Conduct of the War and Civilian Casualties in Iraq http://hrw.org/reports/2003/usa1203/usa1203.pdf  

AMNESTY INTERNATIONAL

Report, UNITED STATES OF AMERICA Human dignity denied Torture and accountability in the ‘war on terror’ http://hrw.org/reports/2003/usa1203/usa1203.pdf

MDE 16/11/2004 Iraq: Urgent action needed to prevent war crimes  
MDE 14/057/2004 12/11/2004 Iraq: Fears of serious violations of the rules of war in Falluja
 MDE 14/055/2004 04/11/2004 Iraq - Falluja: assurances needed for the protection of civilians 
 MDE 14/049/2004 17/09/2004 Iraq: Urgent inquiry needed into civilian killings by US troops 
MDE 14/043/2004 30/07/2004 Iraq: Violence must stop - rule of law must prevail

AMR 51/102/2004 18/06/2004 Iraq: Clarification needed on status of prisoners after 30 June Open letter to the Permanent Representative of the United States of America to the United Nations 

NWS 21/005/2004 28/05/2004 Iraq: Incommunicado detention/Fear of torture, Mohammad Jassem 'Abd al-'Issawi  
MDE 14/027/2004 28/05/2004 Open letter to state members of the Coalition in Iraq 
 MDE 14/021/2004 11/05/2004 Iraq: Killings of civilians in Basra and al-'Amara
MDE 14/007/2004 11/05/2004 Iraq: Civilians killed by UK Armed Forces and armed groups
MDE 14/019/2004 07/05/2004 An open letter to President George W. Bush on the question of torture and cruel, inhuman or degrading treatment
AMR 51/078/2004 07/05/2004 USA: Pattern of brutality and cruelty -- war crimes at Abu Ghraib  
 ORG 10/004/2004 30/04/2004 Iraq: Torture not isolated -- independent investigations vital 
 MDE 14/001/2004 04/03/2004 Iraq: Incommunicado detention/Fear of torture  
MDE 14/179/2003 20/11/2003 Iraq: Amnesty International seeks clarification on house demolitions by US troops in Iraq  
MDE 14/177/2003

MDE 14/101/2003 25/04/2003 Iraq: Stripped naked and humiliated by US soldiers
 MDE 14/078/2003 08/04/2003 Iraq: Civilians under fire.  

MDE 14/071/2003 08/04/2003 Iraq: Civilians under fire  
MDE 14/072/2003 03/04/2003 Iraq: Condemnation of British use of cluster bombs
IOR 41/011/2003 02/04/2003 Iraq: Use of cluster bombs -- Civilians pay the price  

IOR 41/010/2003 01/04/2003 Iraq: US must investigate civilian deaths  
 MDE 14/058/2003 30/03/2003 Iraq: In the shadow of war: backlash against human rights  
 MDE 14/056/2003 27/03/2003 Iraq: Risk to civilians if landmines and cluster bombs used  
 MDE 14/045/2003 26/03/2003 Iraq: Fear of war crimes by both sides 
MDE 14/044/2003 26/03/2003 Iraq: Bombing of Iraqi state television  

 

 

RELEVANT PROVISIONS OF THE CRIMES AGAINST HUMANITY AND WAR CRIMES ACT.

 

 

OFFENCES OUTSIDE CANADA

 

6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada

(b) a crime against humanity, or

(c) a war crime,

is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

 

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.

 

Punishment

(2) Every person who commits an offence under subsection (1) or (1.1)

(a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) is liable to imprisonment for life, in any other case.

 

Definitions

(3) The definitions in this subsection apply in this section.

"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

 

(4) For greater certainty, crimes described in articles 6 and 7 and paragraph 2 of article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law, and may be crimes according to customary international law before that date. This does not limit or prejudice in any way the application of existing or developing rules of international law.

 

ARTICLE 7

 

Crimes against humanity

1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) murder;

(e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) torture;

(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(i) enforced disappearance of persons;

(k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

 

2. For the purpose of paragraph 1:

(a) "attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(e) "torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

 

(i) "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of  freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

 

PARAGRAPH 2 OF ARTICLE 8

 

War crimes

2. For the purpose of this Statute, "war crimes" means:

(a) grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) wilful killing;

(ii) torture or inhuman treatment, including biological experiments;

(iii) wilfully causing great suffering, or serious injury to body or health;

(iv) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(vi) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) unlawful deportation or transfer or unlawful confinement;

 

 

(b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i) intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iv) intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(vi) killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(ix) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(xi) killing or wounding treacherously individuals belonging to the hostile nation or army;

(xiv) declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xxi) committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxv) intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

[As a result of Security Council Resolution 1546 of 8 June 2004, it is arguable that the conflict ceased as of that day to be 'of an international character'. In that case, crimes committed from that day forward would fall under the following provisions:]

 

(c) in the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii) committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(e) other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i) intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iv) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(vi) committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

(ix) killing or wounding treacherously a combatant adversary;

(f) paragraph 2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

 

[President Bush’s ‘command responsibility’ derives from the following provisions of Section 7 of the Crimes Against Humanity and War Crimes Act:] 

 

Breach of responsibility by military commander

7. (1) A military commander commits an indictable offence if

(a) the military commander, outside Canada,

(i) fails to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence under section 4, or

(ii) fails, before or after the coming into force of this section, to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence under section 6;

(b) the military commander knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence; and

(c) the military commander subsequently

(i) fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences under section 4 or 6, or

(ii) fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution.

 

Breach of responsibility by a superior

(2) A superior commits an indictable offence if

(a) the superior, outside Canada,

(i) fails to exercise control properly over a person under their effective authority and control, and as a result the person commits an offence under section 4, or

(ii) fails, before or after the coming into force of this section, to exercise control properly over a person under their effective authority and control, and as a result the person commits an offence under section 6;

(b) the superior knows that the person is about to commit or is committing such an offence, or consciously disregards information that clearly indicates that such an offence is about to be committed or is being committed by the person;

(c) the offence relates to activities for which the superior has effective authority and control; and

(d) the superior subsequently

(i) fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences under section 4 or 6, or

(ii) fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution.

 

Conspiracy, attempt, etc.

(2.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) or (2) is guilty of an indictable offence.

Jurisdiction

Punishment

(4) Every person who commits an offence under subsection (1), (2) or (2.1) is liable to imprisonment for life.

 

Definitions

(6) The definitions in this subsection apply in this section.

"military commander" includes a person effectively acting as a military commander and a person who commands police with a degree of authority and control comparable to a military commander.

 

"superior" means a person in authority, other than a military commander. 

 

Contacts:

Michael Mandel, Professor, Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, Ontario, M3J 1P3. Tel: 416 736-5039, Fax: 416-736-5736,

Email: MMandel@osgoode.yorku.ca

Gail Davidson, Tel: 604 738 0338;  Fax: 604 736 1175, Email: law@portal.ca