("But if you came back without immunity, George....")
It seems that Amnesty International have sent a missive to the Canadian Government demanding that they arrest and try former US President George W. Bush for complicity in torture, (specifically the "enhanced interrogation techniques") authorised after 9/11 when Bush visits Surrey, British Columbia for an economic forum on October 20, 2011.
Predictably, there has been much bombast against Amnesty. And in their heart-of-hearts, I don't suppose that Susan Lee and her Amnesty colleagues seriously expect any Canadian Government - let alone Stephen Harper's Conservatives - to actually arrest and try Bush. Indeed, POLITICO quotes Canadian Minister of Citizenship and Immigration Jason Kenney PC MP;
(Jason Kenney PC MP)
And further, according to the Minister,
"Perhaps this helps to explain why Salman Rushie (sic) has said that ‘it looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy,’ and why Christopher Hitchens has written about the organization’s ‘degeneration and politicization."
So far, so predictable. But what is the legal position?
Both Canada and the United States are parties to the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which came into effect in 1987. CAT is very clear on two pertinent points - what constitutes Torture in Article 1(1), and the obligations of State Parties in Article 7(1).
CAT Article 1(1) defines torture as:
1(1) For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
So-called "Waterboarding" - in actuality, simulated drowning, one of the "Enhanced Interrogation Techniques" - has been described as torture by the former UN High Commissioner for Human Rights Louise Arbour, reflecting the view of the international community. Indeed, it is noteworthy that President Obama revoked authorisation of these "techniques" on the second day of his Presidency - Jan 22, 2009, in an Executive Order entitled "Ensuring Lawful Interrogations", precisely "to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions". CAT is one of these Treaty Obligations. In signing the Executive Orders allowing these techniques in general, and specifically "waterboarding", President GW Bush has a prima facie case to answer under CAT Art 1(1).
(24 Sussex Drive, Ottawa; politically, the buck stops here.)
What are Canada's obligations under CAT? Per Art 7(1) and 7(2),
7(1) The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
7(2) These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.
In other words, if the US is unwilling to try President G W Bush, then if he were to appear in the territory of another CAT State Party, then that State Party is obliged to extradite him to a State Party that will - this was the basis for the-then Senator-for-Life Augusto Pinochet to be arrested in the UK in 1998 - or to try President G W Bush under universal jurisdiction. And note the obligatory nature of the injunction in Art 7(1) - "The State Party ... shall" - not "The State Party ... may" or "The State Party ... could if it feels like it"; CAT imposes a binding obligation on the State to do so.
(Pinochet departs from RAF Waddington in 2000: truly, the craven Jack Straw's political epitaph.)
And this, combined with the strongly independent Canadian Courts, is presumably is what Amnesty are counting on; if Bush turns up in British Columbia, and the Harper Government declines to arrest him, then the Canadian Courts presumably could force the Government to fulfil its CAT obligations by arresting and trying or extraditing President G W Bush.
This is no theoretical threat; indeed, it is reported that President G W Bush cancelled a trip to Switzerland last February to avoid the threat of legal action in Swiss Courts. And for the record, I don't expect Bush to be arrested - because I don't expect him to take the risk.
So, Canada, over to you...