Bringing Kazemi's killers to justice - National Post - Thursday April 28 2005

by: David Matas

What remedies can Canada seek for the torture and murder of Zahra Kazemi? There are at least three.

One is to have the matter brought before the International Criminal Court. Iran has not signed on to the statute of the Court and the jurisdiction of the Court is limited to nationals of states parties or crimes committed on the territory of states parties. But there is an exception for situations referred to Court by the Security Council as a threat to the peace.

The situation in Evian prison where Zahra Kazemi was tortured and killed is a threat to the peace both within Iran and between Iran and those states whose nationals it tortures and kills at this prison. That situation could be referred by the Security Council to the Court. Canada should be asking the Security Council to do just that.

There is a precedent. The Security Council, on March 31, 2005, referred the situation in Darfur to the Court, even though Sudan is not a party to the statute of the Court.

The requirement that the Court prosecute only those crimes which were committed after the Court came into existence is not an obstacle. The statute of the Court came into force on July 1, 2002. Zahra Kazemi was killed July 10, 2003.

Second, the Government of Canada should launch a prosecution itself or consent to a private prosecution in Canadian courts against the murderers of Zahra Kazemi. Torture is an exception to the general rule that Canadian courts can prosecute crimes committed only in Canada. Torture can be prosecuted in Canada, even if the crime was not committed here, even if the perpetrator is not found here, provided only the victim was a Canadian national at the time the crime was committed. Zahra Kazemi was a Canadian national at the time she was tortured and killed.

As long as the culprits remain in Iran, only the first steps of prosecution can be taken. An indictment can be presented to a Canadian court. Arrest warrants can be issued and presented to Iran, to Interpol and to all states with which Canada has extradition treaties.

Kunlun Zhang, a Canadian citizen tortured in China in 2000 because of his adherence to the Falun Gong, requested in March 2004 that Canada allow him to prosecute his torturers in Canadian courts. Minister Anne McLellan refused this request in March 2005 because there was not a reasonable prospect of being able to bring the case to trial in Canada.

The fact that a suspect is a fugitive from justice is not normally considered a good reason for refusing to commence a prosecution. Iran may well not cooperate with Canadian attempts to prosecute the torturers and murderers of Zahra Kazemi. But once the arrest warrants are issued and sent abroad, all states which cooperate with Interpol, all states which have an extradition treaty would send the accused to Canada to trial. The accused would be bottled up in Iran to avoid arrest.

The third step the Government of Canada can take is to present legislation to Parliament which would allow the family of Zahra Kazemi to sue the Government of Iran in Canadian courts for her torture and death. Right now, the State Immunity Act provides a blanket immunity for such law suits. Houshang Bouzari, another Iranian torture victim, tried to argue in the Canadian courts that the Canadian Charter of Rights and Freedoms carved out an exception to the State Immunity Act for torture. But he did not succeed.

The United States has such an exception in its legislation. The US exception allows victims of torture and other international crimes to sue foreign states provided the states are designated by the US government as sponsors of terrorism. Iran is one of the designated states.

Conservative Party Foreign Affairs critic Stockwell Day has introduced into the House of Commons a private member's bill allowing for an exception to the State Immunity Act for lawsuits against foreign states which sponsor any of the terrorist groups listed by the Government of Canada under the Criminal Code anti-terrorism provisions. The bill would give a cause of action to anyone who has suffered damage as a result of a terrorist act.

There is an overlap between torture and terrorism, since both may target innocents for the purpose of intimidation. But they are not identical. Torture is prohibited against anyone. Terrorism is prohibited only against civilians or those not taking part in armed conflict. Torture can have other purposes besides intimidation - for example to elicit a confession. Terrorism too can have other purposes besides intimidation - for example to compel a government to do something.

The private member's bill proposed by Stockwell Day is a good start. But it is not enough. The State Immunity Act needs a specific exemption for torture.

Simply making protests to the Government of Iran about what happened to Zahra Kazemi does not provide an effective remedy. Justice can be realized only if it is sought. Canada must take concrete steps to seek justice.

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David Matas is a Winnipeg lawyer. He was co-counsel with Mark Arnold of Toronto for Houshang Bouzari in his lawsuit against Iran. He is counsel with Lawrence Greenspon of Ottawa for the prosecution of the torturers of Kunlun Zhang.