Kazemi's killers to justice - National Post - Thursday April 28
by: David Matas
remedies can Canada seek for the torture and murder of Zahra Kazemi?
There are at least three.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.