RAPPORTEUR REPORT PANEL A-1 INTERNATIONAL CRIMINAL ACTIVITY: POLICING THE LAW BREAKERS AND HUMAN RIGHTS Panel Chair: Speakers: Glen Linder, Director, International Affairs Division, Public Safety Canada Graham Burnside, Director, RCMP Federal Enforcement Branch Matt Eisenbrandt, Legal Coordinator, Canadian Centre for International Justice Payam Akhavan, Professor, Faculty of Law, McGill University Rapporteurs: Meredith MacDonald and Debra Ramsay Graham Burnside Summary: Mr. Burnside provided a detailed overview of Canada s War Crime Program, the mandate, partners, and structure of the program. He also reviewed the process and criteria for processing complaints, the investigation strategies and challenges facing the RCMP. Perpetrators of war crimes are fugitives on the run. Canada exercises extra-territorial jurisdiction over these crimes and, as a result, the Royal Canadian Mounted Police (RCMP) investigates international crimes as if they took place in Canada.. In 1998, the Canada War Crimes Program was established in a partnership between the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), the Department of Justice (DOJ), and the RCMP in order to provide support for Canada s policy to deny a safe haven for war criminals and to contribute to the domestic and international fight against impunity. Specifically, the program aims: to identify and prevent the admission to Canada of persons involved in war crimes, crimes against humanity, or genocide to detect, at the earliest possible opportunity, war criminals that are in Canada, and to take steps to prevent them from obtaining status or citizenship. to revoke the status or citizenships of individuals who are involved in war crimes, crimes against humanity or genocide who are in Canada and to remove them from Canada; and to examine all allegations of war crime suspects in Canada and, where appropriate, investigate and prosecute them.
The program s structure includes a Steering Committee and a Program Coordination and Operations Committee. The War Crimes Steering Committee is made up of senior managers at the level of Assistant Deputy Minister or equivalent. This committee meets on an ad hoc basis in order to examine the program and to ensure that its tenets are concordant with objectives, both within each partner department and across government. The Program Coordination and Operations Committee includes senior officials from each department who regularly meet to discuss and develop operational policy, coordinate operations and assess allegations. Criminal complaints are brought to the RCMP under the Crimes Against Humanity and War Crimes Act (CAHWCA) through various sources. Sources include: public complaints, media, non-governmental organizations, referrals from international tribunals, particularly the International Criminal Tribunal for Rwanda (ICTR); the International Criminal Tribunal for the former Yugoslavia (ICTY); and the International Criminal Court (ICC). Other sources of complaints come from foreign states and other Canadian governmental agencies, particularly CBSA. Only 5-10 per cent of the cases that come forward go into the criminal stream, the rest are dealt with through administrative remedies. Mr. Burnside listed the criteria that must be met in order for a claim to be valid: first, the allegation must be corroborated in order for the investigation to move forward; second, the allegation must indicate personal involvement; and finally, the advancement of the investigation depends on the potential cooperation from the countries involved in the allegation(s). The primary offences that are investigated under the CAHWCA include those sections 6(1), 6(2), 7(1) and 7(2). These crimes include genocide, crimes against humanity and war crimes. Along with the two committees mentioned above there is also a File Review Sub-Committee, which is responsible for deciding on appropriate remedies in the cases. The remedies available to deal with alleged war criminals and persons who are suspected of involvement in crimes against humanity include: screening and denial of visas to persons outside of Canada; denial of access (ineligibility) to Canada s refugee determination system; exclusion from the protection of the 1951 United Nations convention relating to the status of refugees; prosecution in Canada under the CAHWCA; extradition to a foreign government (upon request); surrender to an International Tribunal; revocation of citizenship and deportation; inquiry and removal from Canada under the Immigration and Refugee Protection Act (IRPA); and denial of status to senior officials from designated governments considered to have engaged in gross human rights violations under section 35(1)(b) of the IRPA. The decision to use one or more of these remedies is based on: the different requirements of courts in criminal and immigration/refugee cases to substantiate and verify evidence; the resources available to conduct the proceedings; the likelihood of success of a given remedy; and Canada s obligations under international law. Currently the RCMP has approximately 75 criminal files, the majority of them from Rwanda and the former Yugoslavia. These files are the screened in highest priority files and should be investigated criminally. Mr. Burnside went on to explain that investigation are prioritized depending on the nature and seriousness of the allegations, public safety for Canadians, degree of involvement of the suspect in the crimes, the position/rank held by the suspect, the likelihood of cooperation by the source country, and the credibility and reliability of the information. The investigation approach followed includes: the initial domestic inquiries, negotiations with the Department of Justice about the case, research, the actual investigation, and finally the department provides a recommendation to the Attorney General of Canada as to whether charges should be laid or not. He emphasized that it is only the Attorney General who can actually lay the charges.
In gathering evidence related to a case, several methodologies are used. These include witness interviews, audio and video tape of interviews, forensic anthropology, use of GPS and aerial imagery. Once in the country where the allegation took place, the investigations may be carried out in hotels, government facilities, or residences. That said, often, witnesses are not comfortable with the presence of the international community in their homes as in brings them too much attention and therefore a more neutral environment tends to be more suitable. Mr. Burnside discussed the current challenges faced by the RCMP in the pursuit of investigations under the CAHWCA Act. The challenges include: source country government cooperation, judicial constraints, reliance on local authorities and other persons, witness cooperation and impartiality, the use of interpreters, local conditions such as roads, food, working and living conditions and health issues, witness safety and protection issues, and finally security and well being of the investigators. Additionally, he stated that it is often difficult to successfully conduct an investigation and/or conduct numerous investigations given the lack of human resources, as there are only twelve officers for investigations covering the entire world. He also noted that budget constraints have also been a challenge. Mr. Burnside concluded by outlining the disadvantages and advantages that the Canadian criminal model has on the War Crimes Program. The disadvantages include: increased costs due to the requirement to adhere to stringent Canadian rules of evidence, potential incompatibility of foreign evidence with the standard of evidence required for Canadian courts, and distance. Advantages include: the integrated cohesive approach, shared decision making, limited investigative capabilities are more concentrated on high priority cases, flexibility between administrative and criminal remedies, easy access to legal advice, and high standards of proof to support convictions. Short Question and Answer with Graham Burnside Q: What are some of the problems/issues with gathering evidence by foreign countries? A: The nature of the interviews has to be specific to the trial as well as meet the Canadian standards of proof. Witnesses can sometimes be tainted by NGOs or others who may have disclosed information to them regarding potential suspects. Although, we are aware of what the witness(es) has/have said in prior cases, the interview must begin at square one as if we have no knowledge of what has previously been disclosed. Evidence from foreign states can be gathered in less than ideal circumstances and therefore we need to start fresh and make sure the information is reliable. Q: What about people arriving in Canada from international flights? People can come to conferences such as this one and give talks. Do you maintain a watch list? Is it the same budget from 1998? A: Dignitaries and Heads of State can come to Canada. The Department of Justice (DOJ) and Citizenship and Immigration will deal with these issues, since we cannot just pull anyone off a plane. An arrest warrant from DOJ must be issued. Matt Eisenbrandt Summary: Mr. Eisenbrandt provided an overview of the international justice system. He also made a number of suggestions regarding changes that ought to be made to Canada s system for dealing with international criminals and crimes. Canada requires a greater focus on civil remedies for international crimes, including the exclusion of immunity, rather than the current preference for immigration remedies.
Additionally, a review of the funding regime is needed in order to appropriate greater funds to the investigation and prosecution of crimes. The Canadian Centre for International Justice (CCIJ) is a charitable organization. It works with survivors of human rights abuses to: 1) seek redress; and 2) hold abusers accountable. International Justice System The principle of Individual Accountability was first introduced during the Nuremburg Trials following World War II. It holds that Individuals are responsible for crimes such as Genocide, torture, and war crimes. Individual Accountability took these crimes outside of the realm of purely government/state responsibility. There have been a number of courts and tribunals who have and who currently deal with individual accountability for these crimes. International/Special Tribunals such as the ICTY (International Criminal Tribunal for the former Yugoslavia), ICTR (International Criminal Tribunal for Rwanda) and others such as the Special Court for Sierra Leone, the Special Tribunal for Lebanon. It has been a patchwork Approach. The International Criminal Court (ICC) has more of a global reach. It is a permanent institution that people have looked to for international justice. Universal Jurisdiction / National Courts Certain treaties, such as the Geneva Conventions and the Convention Against Torture, give authority to countries to prosecute crimes even if the country has no connection to the country where the crime was committed. The idea being that certain crimes are crimes of the world, not just the country in which they occurred. Geneva Conventions Fourth Geneva Convention, Article 146: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Convention Against Torture Article 5(2) Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 Article 6(1) any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody
Article 7(1) The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. Some countries may be unable or unwilling to prosecute. This gives rise to the need for universal jurisdiction. The ICC is built on complementarity with national courts. This creates certain limitations on the ICC: The ICC must decline jurisdiction if a relevant domestic court has jurisdiction It is set up as a limited forum. The ICC will normally only had cases involving top ranking perpetrators in certain situations. Only crimes committed after July 1, 2002 can be prosecuted Many key countries are not party to the Rome Statute of the International Criminal Court. The ICC usually does not have jurisdiction over abuses committed by nationals of a nonparty state or that happened in a non-party state (e.g. U.S., China, Russia, India and many countries in the Middle East are not part of the treaty). Therefore, national courts are crucial in the system of international justice. Canada Criminal Prosecutions Canada has the Crimes Against Humanity and War Crimes Act. This Act allows Canada to prosecute war crimes, crimes against humanity and genocide even if they did not take place within Canada and even if the victim or perpetrator is not Canadian. If the perpetrator is found in Canada, the courts have jurisdiction. There is a similar provision relating to torture in the criminal code ( 269.1). If abuses have other links to Canada, prosecution can occur. For example, the Canadian military can be prosecuted as can people who committed these crimes within Canada. The definitions for Crimes Against Humanity, Genocide and War Crimes (found in the Crimes Against Humanity and War Crimes Act) have the same definition as they do under customary international law. This enables the crimes to develop and evolve with customary international law. In relation to punishment, if crimes involve intentional killing the mandatory sentence is life imprisonment. Forms of Liability are also an issue. If someone is a Commander or Superior they are responsible for the crimes committed by individuals under their control if they fail to prevent or punish the abuses. The Supreme Court has found complicity to be a crime under the Crimes Against Humanity and War Crimes Act. See for example the Zazai case. To date, the Munyaneza case is first and the only case to be tried in Canada under the Crimes Against Humanity and War Crimes Act. Munyaneza was convicted on all 7 counts and was sentenced to mandatory life imprisonment. His parole eligibility turned on whether his actions were planned and deliberate. Because they were held to be planned and deliberate, he is not eligible for parole for 25 years. Improvements in Canada s Approach to Redress
There is room for improvement to the Canadian system. Greater funds are needed in order to focus on prosecutions. The Munyaneza case has been the only criminal case in 9 years to be tried under the Crimes Against Humanity and War Crimes Act. Currently there is a preference for immigration remedies, which tend to be easier, by denying entry or deporting the accused. The government has limited resources to investigate these crimes as there has not been an increase in funding in 11 years and the current distribution of funds favours immigration remedies. Visa denial can sometimes be an important step but there is a strong need for civil lawsuits. In civil lawsuits, the victims/survivors have greater control in the litigation. While they do not result in jail sentences, it is possible for the victims to be compensated. CCIJ is working to amend the State Immunity Act in order to allow for civil lawsuits. Short Question and Answer with Matt Eisenbrandt Q: What immunity law would you suggest? What can international law provide? A: The Committee Against Torture ruled that the Torture Convention requires parties to provide remedies for victims of torture. We see a lot of movement on the criminal side with regards to denying immunity (for example in the Pinochet case), but this happens less so on the civil side. The top court in Italy has refused to apply immunity in civil cases stemming from World War II. Q: There is a Bill that sets out compensatory scheme for victims of terrorist acts. What is the potential efficacy and perceived limitations of this Bill? A: This is my personal view and not an institutional view of CCIJ because CCIJ has not taken a position on the terrorism legislation. The downside with this bill is the limitation on which countries can be sued. The countries are determined by the Minister of Foreign Affairs. It is a similar scheme to what the United States has, in which the State Department decides what countries can be sued. The U.S. only has 4 countries on their list. It is used as a diplomatic tool by the State Department, which makes it less effective as a legal tool. The U.S. does have a civil cause of action through the Alien Tort Statute. Canada should focus on the immunity issue; the Canadian common law torts should be sufficient once immunity is removed. Payam Akhavan Summary: The international legal regime that covers international crimes is limited by the jurisdiction of national courts. National courts have the initial responsibility for prosecuting crimes; however, domestic laws do not necessarily include provisions for war crimes and the International Criminal Court (ICC) must be cautious in taking on cases through self-referral. Payam Akhavan discussed the international legal regime covering international crimes. Mr. Akhavan argued that the use of national jurisdiction has often been overlooked when discussing the prosecution of international criminals and war crimes. He notes that although the international courts appear to be more glamorous there are only a small fraction of perpetrators who are actually brought before international courts and it is at tremendous expense. Therefore, the use of national courts ought not to be undermined when it comes to prosecuting international crimes. He expressed concern that the Rome
Statute of the International Criminal Court is silent as to the role of national courts. The only mention of national courts in that statute relates to the court not exercising its jurisdiction where domestic remedies have not been pursued or where the case is already being heard by a national court. Mr. Akhavan spoke of the issue of states making self-referrals to the ICC. He referred to the Katanga case, where the ICC stated that it did not have the power to order national courts to prosecute cases. Through the use of self-referrals, the state is indicating an unwillingness to prosecute at the national level. He then outlined a number of problems related to prosecution by national courts, including: Under the Geneva Convention, if an individual commits a mass murder elsewhere in an international armed conflict and comes to Canada for vacation, Canada is required to prosecute for the crime committed; however, if the individual commits the same crime in an internal armed conflict, the State has no obligation to prosecute under international law. War crimes of universal jurisdiction only include those committed in an interstate-armed conflict, internal armed conflicts are not covered under this however. He argued that the obligation to exercise universal jurisdiction should be considered as part of customary international law. However, in the Yerodia case [Democratic Republic of the Congo v. Belgium] the court stated that there is a right for a state to exercise universal jurisdiction but there is no obligation under customary international law. The Munyaneza case has been the only case before Canadian courts under the Crimes Against Humanity and the War Crimes Act. He hopes that this case will be used as a precedent to encourage further similar prosecution, as it had a successful outcome. He expressed concern with the limitations the RCMP and the Department of Justice have in conducting investigations related to international crimes. Rather than prosecutions, money tends to go to immigration remedies. Currently, the budget is $15 million a year and only $3 million of that is going towards investigating potentially several hundred cases of suspects who are currently in Canada. This is contradicting Canada s reputation of not being a safe haven for international criminals. In order for Canada to live up to this reputation there must be a budget that can ensure that these crimes are investigated and the criminals prosecuted. He concluded his presentation by making reference to the Kazemi case. He expressed his frustration with this case by noting that the lead suspect in her murder was the Iranian representative at the 2006 United Nations Human Rights Council. What message was Iran trying to send to the Human Rights Council by sending this individual as its representative? Since 2006 the Canadian government has not brought a criminal complaint against this individual despite Canadian legislation that allows complaints to be brought when the victim is a Canadian citizen. The message this sends is cause for concern. Short Question and Answer with Payam Akhavan Q: How should Canada be involved in prosecution of cases related to the ICTY? What is the completion strategy given that the ICTY is an ad-hoc tribunal? A: There are two main accused at-large. If the tribunal is in practice shut down and the two people are captured, would ICTY judges be on standby? Who would be the prosecutors? These are complex technical questions.
Canada has placed too much emphasis on Yugoslavia and Bosnia because of political pressure to ensure people on the Genocide List do not end up free in Canada. Additionally, evidence collected related to these cases is easier to obtain. Canada should also be looking at situations occurring in other countries, perhaps ones that tend to be forgotten. Question Period (with all panel members) Graham Burnside (GB), Matt Eisenbrandt (ME) and Payam Akhavan (PA) Q1: How much do you rely on domestic law enforcement with regards to technical assistance in investigations? Additionally what happens in a case where a country does not have legislation for plea bargaining, therefore, when asking for information, you can be letting people get away with murder? GB: Reliance on foreign investigations depends on their sophistication. We need to know when witnesses have spoken with others in order to determine the accuracy of the statements provided. Technical assistance was not hugely relied on in Rwanda. After officials there became comfortable with the presence and procedures of Canadians, we were able to conduct investigations with greater ease. Q2: Do you think that there is or will be any change in the attitude of the U.S relating to it becoming a party to the Rome Statute of the International Criminal Court, with the Obama administration? PA: Collin Powell called what happened in Darfur genocide, and at the time the U.S. was the only country to do so. The Commission made a recommendation that this case be referred to the ICC. The US ended up abstaining from the vote regarding this referral because of fear that this might give legitimacy to the ICC. Ratification of the treaty is unlikely because of entrenched interests of the Pentagon. The hope is that the U.S. does not actively undermine the ICC (it is doubtful that they will) but they are unlikely to sign onto the ICC. ME: Concurs with the response of PA. Q3: By extending the right to prosecute certain crimes, to what extent is this consistent with the states right to decide? PA: There is a basic incongruity where there is an obligation to prosecute the crime of torture but there is no obligation to prosecute where the victim has been executed and not tortured. There is an artificial distinction between these lesser crimes, why does the same not apply to crimes against humanity? An optional protocol needs to be explored. Q4: As with the Katanga case, the ICC does not have to accept all cases being referred to it. The Katanga case was a small case and by accepting it the court risked that states may refer all cases to it in order to avoid diplomatic conflicts. Comments? PA: Self-referrals are a big surprise because it was thought that no state would refer itself due to their own interests. That said, a state cannot impose a case through referral, it is up to the prosecutors to accept the case. There is a difference between a state unwilling to prosecute in bad faith and a state unwilling to prosecute in good faith. A state would be said to be unwilling [to prosecute] in good faith, if the state refers a case to the ICC because, for example, if it were to prosecute there may be risk of civil war or it may create major security risks in that country. This needs to be distinguished from unwilling in bad
faith. The ICC needs to tread carefully in what cases it accepts as self-referrals and in accepting jurisdiction.