20 Although eventually ruled inadmissible, the discretion of a State party regarding its obligations under Article 6(1) was at the core of the allegations raised in the case HBA et al v Canada before the Committee against Torture in 2013.15 In 2011, the counsel of the four complainants sought to initiate the prosecution of former US President George W. Bush under universal jurisdiction at the occasion of his upcoming trip to Canada. The four men alleged to have been tortured in secret places of detention by or at the acquiescence (p. 255) of US officials in the context of the so-called ‘war on terror’. In anticipation of Mr. Bush’s visit, the men’s counsel submitted a comprehensive dossier to the Attorney General of Canada and called upon him to launch a criminal investigation into the role of the former President in authorizing and overseeing the US administration’s torture programme. In the absence of any reply from the Attorney General,16 the counsel attempted to initiate a private prosecution as provided under Canadian law. The responsible Justice of Peace, however, refused to receive the pertaining complaint on the grounds that Mr. Bush was at that point not yet present on Canadian territory. Eventually, two days later on 20 October 2011 and with Mr. Bush present in Canada, the counsel was able to submit the complaint seeking private prosecution. The Justice of Peace scheduled a hearing for January 2012 in order to verify the allegations, by which point Bush would already have left Canada. However, still on 20 October, the Attorney General of British Columbia used his authority to intervene in private prosecutions and directed a stay of the proceedings against Mr. Bush. The stay of the private prosecution was argued to be warranted since the required consent from the Attorney General of Canada was expected not to be granted. Consequently, Mr. Bush was able to visit Canada without ever being approached by the Canadian authorities in relation to the torture allegations.
21 Against this background, the complainants argued before the Committee that Canada had breached its obligations under Article 6(1) as well as Articles 5(2) and 7(1). Regarding Article 6(1), the complainants argued that Canada would have been required, following an examination of the information dossier provided to the authorities, to ensure the continuing presence of Mr. Bush and to initiate an investigation.17 In response, Canada argued that the obligation under Article 6(1) to take measures to ensure the continuing presence of the alleged perpetrator is not absolute, and that there may be occasions when the circumstances do not warrant ensuring the presence for the purpose of criminal proceedings.18 The decision not to arrest or to ensure the presence of Mr. Bush by non-custodial means was, according to the State party, within its investigative and prosecutorial discretion, which allows to not follow up on a complaint.19
(p. 256) 22 Since the Committee against Torture ruled the case inadmissible as it would not fall within the scope of Article 22,20 no authoritative decision on the merits of the case is available. Notwithstanding this caveat, the substantive arguments put forward by the State party warrant some critical remarks.21 As correctly raised by Canada, Article 6(1) grants the State party some discretion when it comes to deciding whether to ensure the continuing presence of the alleged perpetrator on its territory. Obviously, this discretion has however its limits.
23 Article 6(1) states that a State party’s decision whether to ensure the continuing presence of an alleged perpetrator must be preceded by an examination of the ‘information available’. In relation to the information submitted by the complainants’ counsel to the Attorney General about a month prior to the visit of Mr. Bush, the State party stated that the timing and volume of the submission would not have permitted a ‘thorough investigation’.22 Furthermore, the State party argued that
[w]here an alleged perpetrator is in transit through a State or a temporary visitor rather than someone resident in the State, it is unlikely that the forum State will have undertaken an investigation in advance, proprio motu, in the hope or expectation that the alleged perpetrator might transit through or make a short visit.23
Consequently, the case HBA et al v Canada would be different than the Habré case in which the Committee found Senegal to have violated its obligation under Article 6(1).
24 Canada is correct when it refers to Nowak and McArthur (2008) who state that the decision not to initiate a prosecution does not amount to a violation of Article 7(1), if the competent authorities are of the view that there is insufficient evidence to obtain a conviction.24 The State party, however, ignores that this discretion is premised on the competent authorities having already conducted an investigation which was implemented in such a way that it had indeed the potential to produce such evidence, if it exists. For an investigation to be possible, however, Canada would have been required under Article 6(1) to arrest or take other measures to ensure the presence of Mr. Bush. By the State party’s own admission, however, such investigation has never taken place since it was considered that ‘there was no realistic prospect [ … ] that sufficient evidence to support a charge against Mr. Bush could have been assembled so as to justify detention’.25
25 By taking the lack of a ‘realistic prospect’ as a foregone conclusion the State implicitly argues to have no further obligations under the Convention and hence does not violate it. Whether there was indeed no ‘realistic prospect’ to prosecute is questionable, since an investigation was never started, cooperation of the US authorities was never sought, and potential avenues which would not have required cooperation of the US were never (p. 257) pursued. Furthermore, and somewhat circularly, the State party argues that it would require the results of an investigation in order to decide whether to ensure the presence of Bush, but at the same time acknowledges that no investigation was initiated since it was unlikely to obtain the cooperation of the US authorities.
26 The State party’s claims suggest that it considered it as necessary to conduct a full and in-depth review of the dossier submitted by the counsel, before being in the position to decide whether to ensure the continuing presence of the former US President. This reading is misguided. While the State party obviously has to disregard unsubstantiated allegations, the information available at this stage does not have to conclusively prove the raised allegations, let alone live up to evidentiary standards as required in a criminal trial. The purpose of the examination required under Article 6(1) is to establish whether the raised allegations are credibly substantiated to such a level that the initiation of a formal criminal investigation is warranted.
27 The interpretation of Article 6(1) put forward by Canada in the HBA et al v Canada case would result in a considerable weakening of the Convention regarding its intent to close safe havens. This would be particularly the case when the suspected torturer is present only for a brief period on the territory under the jurisdiction of the State party. Put together, the limitation to initiate an investigation only from the moment when the alleged perpetrator is present, on the one hand, and the requirement of the availability of results of a thorough criminal investigation before being able to ensure the alleged perpetrator’s presence, on the other hand, would de facto result in a ‘blind spot’ in the obligation to prosecute torturers. Cases, in which the alleged perpetrator is only briefly on the territory under the jurisdiction of the State party would become unlikely to be ever prosecuted.