JURIST Guest Columnists Matt Eisenbrandt, Legal Director for the Canadian Centre for International Justice, and Katherine Gallagher, a Senior Staff Attorney at the Center for Constitutional Rights, say the Canadian government not only rejected the opportunity to prosecute George W. Bush, they improperly removed private citizens’ ability to bring criminal proceedings as allowed by Canadian law…

In his memoir and other venues, former US president George W. Bush admitted that he authorized the waterboarding of detainees in US custody. His exact words of approval were, “Damn right.” Bush ordered several other interrogation techniques that numerous experts, including the International Committee of the Red Cross and several UN rapporteurs, have found to constitute torture. Nonetheless, he has not been held accountable, in the US or elsewhere, for his oversight of a worldwide torture program that included abuses at Guantánamo, Abu Ghraib, Bagram and secret CIA “black sites.”

Recently, Canada disregarded an opportunity to shatter the global impunity Bush enjoys and in so doing violated international law. On October 20, 2011, Bush, joined by former president Bill Clinton, visited Surrey, British Columbia as a paid speaker at a regional economic summit hosted by Surrey Mayor Dianne Watts. Rather than comply with Canada’s legal obligations under the UN Convention Against Torture and submit Bush for prosecution, the Government of Canada refused to take action. Then, faced with privately initiated charges, the Attorney General of British Columbia intervened to shut down the case.

Three weeks before Bush’s widely publicized visit to Canada, we sent a letter [PDF], a 69-page draft indictment [PDF] and approximately 4,000 pages of evidence to the Attorney General of Canada on behalf of the Canadian Centre for International Justice and the Center for Constitutional Rights. We called on him to investigate and prosecute the former US president. In response, we received a terse two-sentence letter [PDF] from the manager of the Department of Justice Correspondence Unit acknowledging nothing more than that our letters had been received over two weeks after Bush had left. Several other human rights organizations, including Amnesty International and Human Rights Watch, called for Canada to arrest Bush.

Faced with the federal government’s refusal to act, we initiated a private prosecution under § 504 of the Criminal Code of Canada. On the morning of Bush’s arrival in Surrey, a Justice of the Peace in the Provincial Court of British Columbia received a criminal information file [PDF] on behalf of four individuals who allege they were tortured during Bush’s administration. The information charges Bush with four counts of violating § 269.1 of the Criminal Code, the provision that punishes torture even when committed outside Canada. The section was originally added to the Code to implement Canada’s obligations under the Convention Against Torture. Nearly 60 human rights groups and prominent individuals signed on in support [PDF] of the private prosecution.

The four men, Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz, each endured years of inhumane treatment including beatings, chaining to a cell wall, being hung from walls or ceilings while handcuffed, lack of access to toilets, sleep, food and water deprivation, exposure to extreme temperatures, sensory overload and deprivation and other horrific and illegal treatment while in US custody at military bases in Afghanistan and at the detention facility at Guantánamo. While three of the men have since been released without ever facing charges, Hassan Bin Attash remains in detention at Guantánamo, though he too has not been formally charged with any wrongdoing.

Because Bush is not a Canadian citizen, § 7(7) of the Criminal Code permitted us eight days in which to secure the required consent of the Attorney General of Canada to continue with the private prosecution. Nonetheless, the very same day, mere hours after filing, we were notified that the Attorney General of British Columbia had already intervened in the case and stayed the proceedings under § 579 of the Code. The British Columbia Attorney General preemptively made the judgment that the necessary consent would not be forthcoming and denied us the eight days we are due under the Code. Confirmed by letter [PDF] several days later, the intervention effectively shut down the private prosecution before it got going. The speed with which the stay was implemented makes it clear that government officials did not seriously examine the evidence.

The Canadian action came on the heels of attempts to have Bush prosecuted in Switzerland. In February 2011, the Center for Constitutional Rights, supported by the Canadian Centre for International Justice and other human rights organizations, attempted to initiate criminal proceedings against Bush during a scheduled speaking engagement in Geneva. Bush cancelled the trip after news of the planned prosecution came to light.

There is strong precedent in Canada for prosecuting those alleged of committing atrocities outside the country. In 2009, a Canadian court convicted Désiré Munyaneza of crimes against humanity, genocide and war crimes committed in Rwanda. He was sentenced to life imprisonment. Another Rwandan man, Jacques Mungwarere, is also in custody awaiting trial this year. Both men were charged under the Crimes Against Humanity and War Crimes Act.

One hundred and forty-seven countries, including Canada and the US, are parties to the Convention Against Torture, meaning that those countries have committed to promptly investigate, prosecute and punish torturers. All signatories are obligated to investigate and submit for prosecution, or extradite to another country for prosecution, anyone present in their territory who they reasonably believe has committed torture. In light of Canada’s violation of its duty in the case of George W. Bush, we are reviewing our options at the domestic and international levels.

Matt Eisenbrandt is the Legal Director for the Canadian Centre for International Justice, where his primary focus is casework and outreach. CCIJ is a charitable organization that works with survivors of genocide, torture and other atrocities to seek redress and bring perpetrators to justice. He previously served as the Legal Director for the Center for Justice & Accountability.

Katherine Gallagher is the Senior Staff Attorney at the Center for Constitutional Rights where she attempts to bring those responsible for human rights violations to justice. She has worked for numerous other human rights projects including the UN International Criminal Tribunal for the former Yugoslavia and the implementation of gender equality measures during the development of the International Criminal Court.

Suggested citation: Matt Eisendbrandt & Katherine Gallagher, Halting Canadian Bush Prosecution Violated International Obligations, JURIST – Hotline, Jan. 17, 2012, http://jurist.org/hotline/2012/01/matt-eisenbrandt-bush-arrest.php.