LAWYERS AGAINST THE WA R

LAWY E R S AGA IN S T THE WA R

Canada 1 604 738 0338

law@portal .ca www. l awy e r sa g a ins t thewa r .o rg



Monday, February 23, 2009



The Right Honourable Stephen Harper

Office of the Prime Minister

80 Wellington Street

Ottawa ON K1A 0A2



The Honourable Rob Nicholson

Minister of Justice, House of Commons



The Honourable Peter Van Loan

Minister of Public Safety,

House of Commons



The Honourable Jason Kenney

Minister of Immigration, House of Commons



The Honourable Lawrence Cannon

Minister of Foreign Affairs, House of Commons



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



Legal duties triggered by news of visit:

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 Calgary Alberta on March 17, 2009.1



George W. Bush is a person credibly accused of torture and other gross human rights violations, crimes against humanity and war crimes. This fact triggers two branches of Canadian law: first, the Minister of Immigration is legally bound to prevent Bush’s entry into Canada at any time and for any reason; second, if Bush enters Canada, the Attorney General of Canada must prosecute him for torture or provide consent to private prosecution.



With this document, LAW formally requests that the government of Canada immediately take all necessary steps, as required by law, to:

1. ensure that G.W. Bush is denied entry to Canada, in accordance with the

Immigration and Refugee Protection Act (IRPA); and,



1 Department of Justice, Canada War Crimes Program website, http://www.justice.gc.ca/eng/newsnouv/

nr-cp/2007/doc_32020.html, accessed on February 20, 2009.



LAWY E R S AGA IN S T THE WA R

Canada 1 604 738 0338

law@portal .ca www. l awy e r sa g a ins t thewa r .o rg

2

2. designate the George W. Bush administration, between October 2001 and

November 2008 as a “government that…has engaged in systematic or gross

human rights violations, or a war crime or a crime against humanity within the

meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War

Crimes Act, pursuant to s. 35(1)(b) of the IRPA.



Alternately, LAW hereby formally requests that the Attorney General of Canada give written consent to LAW to commence a prosecution of George W. Bush for torture.

We remind you of your government’s oft repeated statement, “The most effective

measure to ensure that Canada is not a safe haven for suspected perpetrators of war crimes, crimes against humanity and genocide is their early detection and subsequent prevention of entry into Canada.”2



Inadmissibility to Canada: Immigration and Refugee Protection Act (IRPA)

The IRPA, section 35(1) (a) & (b), creates two categories of foreign nationals

inadmissible to Canada because of human rights violations: individuals and senior members of a government who have engaged, anywhere, in Crimes against Humanity and War Crimes Act (CAHWCA) offences.



While CAHWCA includes all international crimes against humanity and war crimes, the accusations of torture against Bush and the Bush administration are alone sufficient, to absolutely bar his entry both as an individual and as the (former) U.S. President and Commander in Chief of the Armed Forces. It

should be noted that the CAHWCA, (s. 7), places special responsibility on ‘military commanders’ and other ‘superiors’ for crimes committed by their subordinates that they knew of, or were criminally negligent in failing to know of, and with respect to which they did not take necessary and reasonable steps to prevent. (CAHWCA list of crimes below)



Inadmissibility to Canada is established when there are “reasonable grounds to believe” the foreign national has engaged in torture or other international crimes. There is no requirement for personal involvement. Neither is there any requirement for proof of the accusations. Evidence of Bush’s involvement in authorizing a systemic regime of torture far exceeds the ‘reasonable grounds’ test and triggers a legal duty to bar his entry to Canada.



















Experts’ Opinion: Torture by Bush and the Bush Administration

In June 2008, Maj. General Antonio M. Taguba (USA-Ret.), author of the U.S. Army’s 2004 internal report on Abu Ghraib,3 stated, “… the Commander-in-Chief [Bush] and those under him authorized a systematic regime of torture…. After years of disclosures by government investigations, media

2

Canada's Program on Crimes Against Humanity and War Crimes: Tenth Annual Report, 2006-2007

http://www.cbsa-asfc.gc.ca/security-securite/wc-cg/wc-cg2007-eng.html

3 Investigation of the 800th Military Police Brigade, February 2004.



accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current [Bush] administration has committed war crimes. "4 In December 2008 the bipartisan U.S. Senate Armed Services Committee5 published a report, based on an 18-month investigation, 38,000 pages of documents and the testimony of 70 people, that concluded,

“senior officials [Bush and others] in the United States government solicited

information on how to use aggressive techniques, redefined the law to create the

appearance of their legality, and authorized their use against detainees.”



In February 2009, United Nations Special Rapporteur on Torture, Manfred Nowak concluded there is now proof of torture authorized by Bush and others.

"We possess all the evidence which proves that the torture methods used in

interrogation by the U.S. government were explicitly ordered by former U.S.

defence minister Donald Rumsfeld…Obviously, these orders were given with the

highest U.S. authorities' knowledge."6

Professor Nowak further stated that evidence of torture has triggered the legal duty of the U.S. government “to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court.” Once Bush crosses the border, Canada will have the legal duty to prosecute G.W. Bush for torture.

In these circumstances, Canada must bar George W. Bush from entering Canada.



Duty to Prosecute

The necessity 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 Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). The Rome Statute, obliges Canada generally to, “…exercise its criminal jurisdiction over those responsible for international crimes.” CAT, specifically requires Canada to either prosecute or extradite for prosecution any person within Canadian territory, alleged to have committed torture. (Art. 7)

4 Maj. General Antonio M. Taguba (USA-Ret.), Preface to Broken Laws, Broken Lives: Medical Evidence of Torture by U.S. Personnel and its Impacts, A Report by Physicians for Human Rights, June 2008.



http://brokenlives.info/?page_id=69

5 Senate Armed Services Committee Inquiry Into The Treatment Of Detainees In U.S. Custody, Dec. 11,

2008. http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf

6 RIGHTS: Call to Try Bush, By Julio Godoy, IPS/Berlin, February 2. 2009.

http://ipsnews.net/news.asp?idnews=45636



No Immunity for Prosecution for Torture

In November 2004 when Bush entered Canada, LAW filed a 7-count information

alleging that, as President of the U.S. and Commander in Chief of the Armed Forces, Bush had aided, abetted and counseled torture at Abu Ghraib and Guantánamo Bay. A judge of the Provincial (Criminal Division) Court of BC dismissed the proceedings on the basis that as a head of state, Bush had, “immunity from prosecution under the criminal laws of Canada.”



The Attorney General of Canada then blocked appeals and an adjudication on the merits, by refusing to consent to the proceedings, presumably on the same basis. No such immunity from prosecution for torture applies to Bush any longer.

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.



Sincerely,

Gail Davidson, Lawyers against the War

N.B. Hard copy to follow by mail



Encl.

Relevant Provisions Of The Crimes Against Humanity And War Crimes Act.

Information filed Nov. 30/04 against George W. Bush in the Provincial Court of BC

This letter has been copied to:

Leader Jack Layton-NDP

634-C Centre Block, House of Commons

Ottawa, ON K1A 0A6



Joe Comartin, Justice Critic

House of Commons

Ottawa, ON, K1A 0A6



Paul Dewar

Foreign Affairs Critic

House of Commons

Ottawa, ON K1A 0A6



Don Davies

Opposition Critic on Immigration

And Public Safety

House of Commons

Ottawa, ON K1A 0A6



Liberal Leader Michael Ignatieff

House of Commons

Ottawa, ON K1A OA6



Bob Rae

Foreign Affairs Critic

House of Commons

Ottawa, ON K1A OA6



Dominic Leblanc

Justic Critic



Maurizio Bevilacqua

Immigration Critic



Leader of the Bloc Quebecois

Gilles Duceppe

Bureau 533-S, édifice du Centre

Ottawa, ON K1A 0A6



Real Menard

Justice Et Procureur Général

Responsable Région De Montréal

Bureau 218, édifice de la Justice

Ottawa, ON K1A 0A6



Serge Menard

Sécurité Publique

Bureau 286, Édifice de la Confédération

Chambre des communes

Ottawa, ON K1A 0A6



Thierry St-Cyr

Citoyenneté Et Immigration

Bureau 09, Édifice de la Justice

Chambre des communes

Ottawa, ON K1A 0A6



Lawyers Against the War (LAW) is a Canada-based committee that opposes war and advocates for adherence to international humanitarian law and against impunity for violators.



Contacts:

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







LAWY E R S AGA IN S T THE WA R

Canada 1 604 738 0338

law@portal .ca www. l awy e r sa g a ins t thewa r .o rg



RELEVANT SECTIONS OF THE IMMIGRATION AND REFUGEE PROTECTION ACT

Inadmissibility

Rules of interpretation

33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions

and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they

have occurred, are occurring or may occur.

Security

34. (1) A permanent resident or a foreign national is inadmissible on security grounds for

(a) engaging in an act of espionage or an act of subversion against a democratic government, institution

or process as they are understood in Canada;

(b) engaging in or instigating the subversion by force of any government;

(c) engaging in terrorism;

(d) being a danger to the security of Canada;

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada;

or

(f) being a member of an organization that there are reasonable grounds to believe engages, has

engaged or will engage in acts referred to in paragraph (a), (b) or (c).

Exception

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a

foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national

interest.

Human or international rights violations

35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or

international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the

Crimes Against Humanity and War Crimes Act;

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister,

engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war

crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against

Humanity and War Crimes Act; or



RELEVANT SECTIONS 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.

...