George W. Bush and Bill Clinton are coming to Canada on March 29 to speak to an estimated crowd of up to 5,000 people.

David Knowles of the Politics Daily describes the showdown,

The event will consist of the two men seated in chairs between a moderator who has not yet been chosen.

No matter how civil the discourse, the thought of Mr. Bush and Mr. Clinton on stage is bemusing, given the animosity of the past 16 years, and the efforts under way to overcome it…

One thing to keep an eye on is whether the two men will allow questions on torture. Given the legal consequences for former Bush administration figures, this could be one potato too hot for handling. Otherwise, I suspect we’ll hear a cordial conversation with plenty of respectful disagreement..

Former Vice-President Dick Cheney has continued to defend controversial interrogation techniques that many concede as torture.

But the issue of torture is not just theoretical posturing.  Canada is a signatory to the International Criminal Court, which is charged with convicting three crimes: genocide, crimes against humanity, and war crimes.

When the release of further photos of Abu Ghraib abuses, including torture and rape, were reported blocked yesterday, Iraqis did call for investigations and charges of crimes against humanity.

Crimes against humanity require widespread or systematic abuses.

The ICC Prosecutor determined there was a reasonable basis that grave breaches had been committed by British troops during the 2003 Iraq invasion for willful killing (8 (2)(a)(i)), and torture or inhumane treatment (8)(2)(a)(ii).  But he did not proceed with it because at that time there evidence only demonstrated only 4-12 individuals were subjected to willful killing, and,

[only a] limited number of victims of inhuman treatment totalling in all less than twenty persons.

War crimes, on the other hand, can be covered by even an isolated act by an individual soldier, even without direction or guidance from superiors, which is why Article 8 of the Rome Statute begins with what Hermann von Hebel and Daryl Robinson call a non-threshold threshold in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, and Results,

1.         The Court shall have jurisdiction in respect of war crimes in particular [but not limited to] when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

The United States is not a signatory, and it was Bush himself who instead of ratifying the ICC actually had America’s signature removed.  His rationale was “politicized prosecutions and investigations” could result in Americans being brought before the ICC.

Bush’s fears may not have been completely vain, because the ICC does define war crimes to include acts such as torture and inhumane treatment. Other Geneva Conventions that could allegedly be breached include deprivation of a fair trial, willful killing, and wanton destruction of property.

As a signatory to the ICC, Canada could theoretically be asked to bring Bush before it.  But that would never happen, given a 2002 Act passed under Bush that allowed the U.S. military to storm the Hague by force and recover any Americans being tried there.

Robert Marquand of the CSM describes the implications of the Act,

Formally titled the American Service Members Protection Act, the measure is widely and derisively known here as the Invasion of The Hague Act.

Odd as it may seem, the law allows the US to constitutionally send jack-booted commandos to fly over fields of innocent tulips, swoop into the land of wooden shoes, tread past threatening windmills and sleepy milk cows into the Dutch capital – into a city synonymous with international law – and pry loose any US troops.

Today, the Dutch mostly treat the issue as a joke, a cowboy American moment. But it is widely felt that if President Barack Obama’s foreign policy team wants to achieve a symbolic break with the previous White House, it could rescind the invasion law.

As a Dutch Ministry of Justice official put it, “I wouldn’t overstate how seriously we take this any more, but it does seem a bizarre symbol.”

The implications for Canada are a little more vague,

One controversial offshoot of the invasion law is called “bilateral immunity” – a policy requiring all states except Israel, Egypt, Taiwan, and those in NATO to sign a waiver stating that they will contravene the ICC if any Americans are arrested. Countries that don’t sign the waiver forfeit US military assistance. The policy pressured small states to comply – whether or not they felt it proper.

Indira A.R. Lakshmanan explains the reason behind this move,

There is a tension in U.S. foreign policy that’s pretty longstanding: The U.S. is far more comfortable as the maker of international rules than as subject to them.

That didn’t stop the Toronto Coalition Against the War from investigating whether Bush could be charged by the ICC.  In addition to a planned protest outside the event, the group held an info session last week with Prof. Michael Mandel of Osgoode Hall.  Mandel described some of the other challenges of accomplishing such a conviction and the low likelihood of how something like this could happen.

Prof. Mandel mentions the “Crime Against Peace,” or a war of aggression, one which is not fully included under the ICC yet due to lack of consensus by the signatories, but called the “supreme international crime” according to the Nuremberg Tribunal.

However, Attorney General Goldsmith warned Prime Minister Blair in 2003 that the invasion of Iraq could lead to possible prosecution for the crime of aggression because it was recognized by customary international law and therefore imported into the domestic law, a notion later affirmed by the House of Lords in R v. Jones [2006] UKHL 16.

There is another significant barrier to the prosecution of Americans or other allies in Iraq for crimes of aggression that Mandel did not cover.  Article 5 of the Rome Statute lists the ratione materiae, or subject matter jurisdiction of the court,

2.        The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
[emphasis added]

Article 39 of the Charter of the United Nations states,

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

If acts of aggression can only be defined by the Security Council, then Lionel Yee points out that no permanent member of the Security Council could ever be prosecuted for the crime of aggression.

However, the International Court of Justice may have indicated otherwise.  In Nicaragua v. United States (1986), the dissenting opinion of Judge Schwebel stated that a Security Council determination of aggression is based on political considerations, and not a legal judgment,

60. Moreover, while the Security Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression – or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons.
However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.
[emphasis added]

The Separate Opinion of Judge Simma in Democratic Republic of the Congo v. Uganda (2005) went further, indicating that Security Council approval was not even necessary for the determination of aggression,

3. It is true that the United Nations Security Council… has never gone as far as expressly qualifying the Ugandan invasion as an act of aggression…
The Council will have had its own ⎯ political ⎯ reasons for refraining from such a determination.
But the Court, as the principal judicial organ of the United Nations, does not have to follow that course. Its very raison d’être is to arrive at decisions based on law and nothing but the law, keeping the political context of the cases before it in mind, of course, but not desisting from stating what is manifest out of regard for such non-legal considerations. This is the division of labour between the Court and the political organs of the United Nations envisaged by the Charter!
[emphasis added]

The ICC is not a body of the UN, but theoretically may work with the ICJ to determine a case of aggression independently  of the Security Council.  Article 39 determinations may also theoretically be challenged as ultra vires.

The Yugoslav Tribunal Appeals Chamber stated in the Tadic case,

It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited. The Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the Organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).

In particular, Article 24, after declaring, in paragraph 1, that the Members of the United Nations “confer on the Security Council primary responsibility for the maintenance of international peace and security“, imposes on it, in paragraph 3, the obligation to report annually (or more frequently) to the General Assembly, and provides, more importantly, in paragraph 2, that:

“In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.” (Id., Art. 24(2).)

The Charter thus speaks the language of specific powers, not of absolute fiat.
[emphasis added]

Despite the willingness of many people around the world to have some strong international statement made that these types of military acts in Iraq are inappropriate, these political organs will prevent any determination of war crimes or crimes of aggression.

It’s unlikely that the ICC or other international mechanism will be used in this manner any time in the near future – a conclusion Mandel would likely agree with.

Videos of Prof. Mandel’s talk included below for interest sake below: