Dear Prime Minister Harper: Bar Bush or prosecute him for torture

| May 26, 2009
Dear Prime Minister Harper: Bar Bush or prosecute him for torture

Dear Prime Minister and Ministers Nicholson, Van Loan, Kenney and Cannon;

Bar George W. Bush from entering Canada or prosecute him for torture.

George W. Bush, former President of the United States of America (U.S.) and Commander in Chief of the Armed Force, is reported to be coming to Toronto Ontario on May 29, 2009. 

We write to advise you of your duty to immediately take all necessary steps to prevent George W. Bush from entering Canada, in accordance with the Immigration and Refugee Protection Act (IRPA), s. 35 (1) (a). 

If George W. Bush enters Canada we demand that he be arrested, as being inadmissible under the IRPA and as a person suspected of torture, and then either prosecuted in Canada for torture or extradited to another country that is willing and able to prosecute as required by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Article 7 (CAT).

We remind you that the failure to take one of these actions violates Canada’s international law obligations. In addition such inaction denies remedies to victims, ensures impunity for perpetrators and encourages other instances of torture.  For example, reports released this month conclude that torture and abuse of prisoners in Iraq remains “routine and commonplace.” (Iraq Ministry of Human Rights and Human Rights Watch)

George W. Bush stands accused of authoring, supervising and directing the most egregious war crimes and crimes against humanity, including torture, during his eight year term as President and Commander in Chief of the U.S. Armed Forces.  As such he is inadmissible to Canada under the ‘Human Rights and International Law Violations’ sections of the ‘Inadmissibility Division’ of the IRPA.

Inadmissibility under the IRPA, s. 35(1)(a) is established when there are “reasonable grounds to believe” that the person seeking to enter Canada has been involved directly or indirectly in one or more of the impugned acts, namely gross human rights violations, war crimes or crimes against humanity. Torture is a war crime, a crime against humanity and a gross violation of non-derogable rights.  The Supreme Court of Canada has interpreted reasonable grounds as ‘something more than a suspicion and less that proof to the balance of probabilities.’  Evidence of Bush’s involvement in authorizing widespread, long term and brutal torture far exceeds the ‘reasonable grounds’ test.

Evidence that U.S. officials tortured -- sometimes to death -- prisoners in Guantánamo Bay, Abu Ghraib and Bagram prison, already overwhelming, continues to mount.  Human rights and legal advocates around the world are unanimous in citing the legal duty under CAT to prosecute Bush and other senior members of the Bush administration. An Appendix to this letter lists some of the evidence of Bush involvement in torture. 

As of the date of this letter, over 200 U.S. human rights groups have signed a petition calling for the appointment of a special prosecutor to prosecute members of the Bush administration for torture and other war crimes.  U.S. groups representing over 1,000,000 people have filed complaints calling for the disbarment of the Bush administration lawyers who participated in planning the widespread gruesome torture used by the Bush administration. (John Yoo, Jay Bybee, Stephen Bradbury, Alberto Gonzales, John Ashcroft, Michael Chertoff, Alice Fisher, William Haynes II, Douglas Feith, Michael Mukasey, Timothy Flanigan, and David Addington).  All available evidence, including the public statements of former vice-president Dick Cheney, indicates that G.W. Bush authorized torture, sometimes on a case by case basis.

By ratifying CAT in 1987, Canada took on a global duty to prevent and punish torture–a duty owed not just to Canadians but to all humankind.  To fulfill this duty, Canada created the jurisdiction to prosecute torture wherever it occurs, when the alleged victim is a Canadian citizens or when the alleged perpetrators enters Canada.

The Criminal Code of Canada and the Crimes against Humanity and War Crimes Act make torture anywhere, by anyone, an indictable criminal offence in Canada. The jurisdiction and the duty to prosecute have, in the case of G.W. Bush, already been triggered. The duty and jurisdiction were triggered when it was learned that U.S. officials tortured Canadian citizen Omar Khadr and when G.W. Bush previously entered Canada. We note that Mr. Justice O’Reilly of the Federal Court in the April 23, 2009 judgment in Khadr v. The Prime Minister et al, confirmed Canada’s obligation to prevent torture within Canada and to prosecute offenders. 

As part of the duty to prevent torture, Canada also has an urgent duty to investigate allegations of torture and of other cruel, inhuman or degrading treatment or punishment. Rulings of the CAT Committee establish that delay by a state to investigate allegations of torture or inhumane or degrading treatment is itself a violation of CAT.  Canada’s duty to investigate G.W. Bush for torture became imperative once it was known that the U.S. torture Omar Khadr -- i.e. by March 2004.  The duty to prosecute becomes imperative when G.W. Bush crosses the border.

The duty to prosecute Bush for torture (and other war crimes and crimes against humanity) once he is in Canada, arises from many sources including: Crimes against Humanity and War Crimes Act (CAHWCA), Criminal Code of Canada, Rome Statute of the International Criminal Court (Rome Statute) and CAT.  The Rome Statute, obliges Canada generally to, “…exercise its criminal jurisdiction over those responsible for international crimes.”  Canada’s duty is heightened by refusal of the current U.S. administration to mount investigations and prosecutions of members of the Bush administration. 

In the face of overwhelming evidence that Bush and other members of the Bush administration conspired to ensure the widespread use of torture on non-U.S. captives held in Guantánamo Bay and other prisons around the world and in the face of enormous pressure from the legal and human rights advocates around the world, the U.S. is opting not to prosecute G.W. Bush and other senior members of the Bush administration. 

The government of Canada has no legal options except to either:
1. Bar George W. Bush’s entry to Canada under IRPA s. 35; or,
2. Arrest George W. Bush and either prosecute him for torture or extradite him to a state that is willing and able to do so.

We look forward to receiving a timely response to our formal requests for action by the Prime Minister, Minister of Immigration, Attorney General of Canada, Minister of Public Safety and by the Canadian Border Services Agency: actions required by Canadian and by international law. 


Gail Davidson, Lawyers Against the War



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