Irish Centre for Human Rights

1. Irish Centre for Human Rights Summer Course on the International Criminal Court 2011 Addressing core crimes in the Domestic Context: A Canadian Perspective

2. Domestic Implementation • Ending impunity by perpetrators of crimes of concern to the international community is a necessary part of preventing the recurrence of atrocities. • First Chautauqua Declaration, signed by the prosecutors of the Nuremberg International Military Tribunal, the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Sierra Leone Special Court and the Extraordinary Chambers of the Courts of Cambodia, August 29, 2007; see http://www.asil.org/chaudec/index_files/frame.htm.

3. The World Working Together • http://www.legal-tools.org/fileadmin/user_upload/Legal_Tools_Brochure_ENG_FRA_V.2010.pdf • National Jurisdiction • National Implementing Legislation • National Cases involving core international crimes

4. Implementation • Cooperate with / assist Court in its investigations • Requirements flowing from concept of complementarity, and a State’s need to address the existence of core crime perpetrators living within its territory • Direct support to the Court • Ensure that your own leaders and troops know, understand, believe in and protect human rights

5. Cooperation in Investigations The Court requires State assistance to: • Find and interview potential witnesses (accused, victims and other eye-witnesses) (Art 54(3)(b); 93(a) – (c)); • Protect those witnesses (Art 54(3)(f); • Collect evidence (documentary) (Art 54(3)(a), (h)); • Protect that evidence (physical protection, confidentiality of the evidence and the request itself, witnesses and victims) (Art 54(3)(f); 72 – National Security & 73 (3rd party stuff) 87 (3), (4); 93(j)); • Serve legal documents (Art 93(d); • Ensure respect for privileges and immunities of Court officials; and • Arrest suspects and surrender them to the Court (Art 89 - 92) • Enforce sentences, including imprisonment, order of forfeiture and collection of fines (Part 10) • Art 56 re Unique Investigative Opportunity

6. Cooperation Art 86. States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court Art 87. General provisions governing requests for cooperation Art. 88. States parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.

7. Cooperation • Art 87 (5) The Court may invite any State not a party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. • Art 87 (6) The Court may ask any intergovernmental organization to provide information or documents (or any other sort of cooperation in accordance with its competence or mandate)

8. Cooperation Where investigations take place • Referral State • Territorial State / state of nationality of alleged perpetrator • Any State which had peacekeepers or peacemakers in place • States where alleged perpetrators and/or victims may have fled

9. Levels of Cooperation Art 99: Execution of requests • Simple: viewing sites, interviewing voluntary witnesses (informal) • Mid-level: search and seizure, subpoena (usually ex-parte procedures) • Top level: arrests and surrender

10. Cooperation Art 54(3)(d) Mutual Legal Assistance in Criminal Matters Treaties and MOU’s, (MLAT) to: • Establish relationship between Prosecutor’s office and State • Identify contact points within State • Facilitate efficient and timely cooperation; • Ensures legality of cooperative activities and evidence gathered

11. Canada’s War Crimes Program

12. Processing of Files The Canada Border Services Agency (CBSA) Citizenship and Immigration Canada (CIC) Royal Canadian Mounted Police (RCMP) Department of Justice (DOJ) “Canada shall not become a safe haven for those who participate in the commission of international crimes”

13. Source of Files Canadian officials who screen documents and applicants throughout the immigration and refugee processes uncover evidence of potential links between applicant and international crimes (e.g. from a PIF) Individuals and/or NGOs in Canada contact Canadian officials (usually RCMP) with complaints about people in Canada Other States or international organizations (ICTY / ICTR) inform Canadian officials (IAG, RCMP, DOJ) of presence of suspects in Canada.

14. Processing of Files Program Coordination and Operations Committee (PCOC) File Review Sub-Committee Ability to return subject to country of origin for prosecution Ability to return subject to country of origin Presence of victims in Canada aware of alleged perpetrator’s presence Strength of allegation Ability to obtain evidence Alleged crime Status of individual in Canada Human, financial and material resources

15. Criminal Process • PCOC determines that file should be entered into the rcmp criminal investigation inventory

16. Initial StepsCriminal Investigation RCMP open file to commence investigation – criminal investigation in the hands of rcmp, with doj providing advice and assistance Interview complainant (develop witness list - ongoing) DOJ file - Historical and legal analysis (internet and archival work, Tribunal and State cooperation, NGO contacts, Expert’s Report) Interview witnesses (continue developing witness list, attempt to narrow focus of investigation) Interview of subject (criminal warning) Ongoing analysis and evaluation by police, analyst and counsel team.

17. Recommendation to Attorney General • Following investigation, DOJ counsel prepare a Draft Report and Recommendation to Attorney General • Report forwarded to Public Prosecution Services Canada for review • A-G Canada or Deputy A-G must agree in writing to the indictment (CAHWCA s. 9(3)) • Go by way of Direct Indictment • Federal Prosecutors (with DOJ assistance)

18. Administrative Process • PCOC determines that DoJ should conduct a revocation investigation

19. Initial StepsRevocation Investigation DOJ opens file to commence investigation Interview complainant with assistance of specially assigned rcmp officer (develop witness list - ongoing) DOJ file - Historical and legal analysis (internet and archival work, Tribunal and State cooperation, NGO contacts, Expert’s Report) Interview witnesses (continue developing witness list, focus on obtaining evidence which demonstrates fraud during immigration process) Interview of subject (criminal warning) Ongoing analysis and evaluation by analyst, counsel and police team.

20. Key Traits of admin investigation Not proving that subject was a criminal, but rather that he was not truthful on or during his application process to enter Canada, concerning activities which he should have revealed to the Canadian official during process (officials are witnesses in these trials) The activities, at least for our files, concern the subject’s links to war crimes, crimes against humanity or genocide (materiality of fraud) 20

21. Immigration and Refugee Protection Act(S.C. 2001, c. 27) S. 35(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for Committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; Being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations or genocide, a war crime or a crime against humanity… (designated regime) 21

22. Citizenship Act 10 (1) Subject to S. 18 … where the GiC, on a report from the Minister, is satisfied that any person has obtained … citizenship under this Act by false representation or fraud or knowingly concealing material circumstances (a) the person ceases to be a citizen… as of such date as may be fixed by order of the GiC with respect thereto. 22

23. Citizenship Act 10 (2) A person shall be deemed to have obtained citizenship by false representation … if the person was lawfully admitted to Canada for permanent residence by false representation … and, because of that admission, the person subsequently obtained citizenship. 23

24. IRPA • S. 109 The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. • S. 98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection

25. UN Convention Related to the Status of Refugees (1951) • Art 1 F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: • ( a ) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; • ( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; • ( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations. • http://www.unhcr.org/pages/49da0e466.html

26. Prosecution / Revocation/ Vacation • Prosecution (beyond a reasonable doubt): • On consent of the Attorney-General or Deputy Attorney-General (WC Act s.9(3)) • Trial conducted in provincial criminal courts by Federal prosecutors • Citizenship revocation (balance of probabilities): • Minister of Citizenship and Immigration (Cit Act S. 10 & 18) • Issue of fraud on application • In Federal Court, litigated by federal civil litigators • Revocation of Landed Status (balance of probabilities, easier rules of evidence) • Before the Immigration and Refugee Board by immigration officials (IRPA) with assistance from DoJ War Crimes Section • Issue of fraud on application (IRPA s. 35(1) inadmissibility) • Vacation of Refugee Status (reasonable grounds to believe subject participated in core crimes) (IRPA S, 109 & 98) • Immigration and Refugee Board, Refugee Protection Division

27. The Crimes Against Humanity and War Crimes Acthttp://laws.justice.gc.ca/PDF/Statute/C/C-45.9.pdf

28. Canada • Canada signed the Rome Statute of the ICC on December 18, 1998 • Crimes Against Humanity and War Crimes Act, 2000 • first country in the world to adopt comprehensive legislation implementing the ICC

29. Criminal Law - Essentially Territorial principle of jurisdiction • Jurisdiction determined by reference to site of the crime • State determines whether a particular act is a crime • State has greatest interest in seeing perpetrator is tried as State is victim • State as best access to evidence (scene of the crime, witnesses, victims) • State usually has custody

30. Crimes Against Humanity andWar Crimes Act • Criminalizes Genocide, crimes against humanity and war crimes (Art 4(1) & 6(1) • Breach of Responsibility of Military Commander & Superior (Art 5 & 7) • Includes conspiracy, attempts, accessory after the fact and counselling (Art 4(1.1) & 6(1.1) • Punishment: mandatory life imprisonment if an intentional killing forms basis of offence, or liable to life in any other case (Art 4(2) & 6(2)

31. Personal Jurisdiction Section 8 establishes jurisdiction over a person if: • The person was a Canadian citizen or employed by Canada in a civilian or military capacity; • The person was a citizen of, or employed in a civilian or military capacity by a state engaged in an armed conflict with Canada; • The victim was a citizen of Canada or a state allied with Canada in an armed conflict; or • After the time of the alleged offence, the person is present in Canada

32. Place of Trial • 9. (1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

33. Procedure S. 10 – rules of procedure and evidence as at the time of the proceedings (as opposed to at the time of the offence) s. 11 – Accused entitled to any “justification, excuse or defence available under laws of Canada or under international law” at time of offence or at time of proceedings

34. Procedure • s. 12autrefois acquit, autrefois convict or pardon, unless previous procedure was a sham • S. 13 reiteration of rule that defence based on legality of activity under local law is void

35. Procedure s. 14 (1) recognizes the defence of superior orders (superior / subordinate relationship, legal obligation to obey; accused did not know order was illegal; order not manifestly illegal) (2) Orders to commit genocide or CAH are manifestly unlawful; (3) Belief that order was lawful cannot be based on hate propaganda

36. Definition of Crimes 6(3) The definitions in this subsection apply in this section. • “crime against humanity” means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission

37. Definition of Crimes s. 4(4) and 6(4) For greater certainty, crimes described in Articles 6 and 7 and paragraph 2 of Article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law. This does not limit or prejudice in any way the application of existing or developing rules of international law.

38. Definition of Crimes • 6(5) For greater certainty, the offence of crime against humanity was part of customary international law or was criminal according to the general principles of law recognized by the community of nations before the coming into force of either of the following: • (a) the Agreement for the prosecution and punishment of the major war criminals of the European Axis, signed at London on August 8, 1945; and • (b) the Proclamation by the Supreme Commander for the Allied Powers, dated January 19, 1946.

39. Command Responsibility in Canada • It is thus clear that there must be some special mental element with respect to the death before a culpable homicide can be treated as a murder. That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction. I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. … [However], for the sole purpose of this appeal, [I will] go no further than say that it is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there surely cannot be a murder conviction. • R. v. Vaillancourt [1987] 2 S.C.R. 636 par. 28

40. Command Responsibility • 5(1) & 7(1) A military commander commits an indictable offence if • (a) the military commander • (ii) fails, before or after the coming into force of this section, to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence under S. 6

41. Command Responsibility (con’t) • (b) the military commander knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence, and

42. Command Responsibility (con’t) • (c) the military commander subsequently • (i) fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences… or • (ii) fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution

43. Command Responsibility (Cont’d) • S. 7(5) Where an act or omission constituting an offence under this section occurred before the coming into force of this section, subparagraphs (1)(a)(ii) and (2)(a)(ii) apply to the extent that, at the time and in the place of the act or omission, the act or omission constituted a contravention of customary international law or conventional international law or was criminal according to the general principles of law recognized by the community of nations, whether or not it constituted a contravention of the law in force at the time and in the place of its commission.

44. Modes of LiabilityCommand Responsibility Things to prove: 1 That there was a superior / subordinate relationship. (doesn’t have to be direct or immediate in nature) • De facto vs. de jure (prove de facto, but prove de jure and force other side to prove otherwise) • Effective command and control (the issue in Halilovic) (test: who stands up and salutes when the guy comes into the room) • Authority to give an order, and the power to punish those who disobey (or at least instigate a proper investigation) (“material ability to prevent or punish criminal conduct” Celebici Appeal (Feb. 2001) par 256)

45. Canada’s RecordSomalia-related Prosecutions • To go further into the factors which constitute negligence I tell you that as a matter of law the alleged negligence must go beyond mere error in judgement. Mere error in judgement does not constitute negligence. The alleged negligence must be either accompanied by a lack of zeal in the performance of the military duty imposed or it must amount to a measure of indifference or a want of care by Major Seward in the matter at hand or to an intentional failure on his part to take appropriate precautionary measures. • Instructions of the Judge Advocate to the Trial Panel, as quoted in R. v. Seward CMAC-376 (May 27, 1996) at page 14.

46. Canada’s Record Somalia-related Prosecutions • The count addressed a failure in command. The evidence when interpreted reasonably and in a way most favourable to the respondent amply demonstrates that this failure resulted in, at best, confusion in 2 commando and must be taken to have led ultimately to excesses by some of the respondent’s subordinates. This not only contributed to the death, … but also contributed to several members of the Canadian Armed Forces committing serious lapses of discipline and ultimately finding themselves facing serious charges. … These matters all properly related to the charge, as particularized, that the respondent “failed to properly exercise command over his subordinates. • Seward at pg 16

47. Canada’s Record Somalia Inquiry • From the Somalia Inquiry Report: “LCol Mathieu noted that 2 Commando in particular was being overly aggressive, and on January 16, 1993 a record of reproof was issued to Maj Seward, its officer Commanding. This formal disciplinary measure was used rarely, and procedure required that it be filed immediately with NDHQ. • LCol Mathieu explained the action in the following manner: "Despite repeated direction by the Commanding Officer to reduce the level of aggressiveness exhibited by his command, while conducting patrols in Belet Huen, Major Seward continued to permit his commando to act aggressively toward the population. This was in complete contradiction to the policy being implemented by the unit.“ • Maj Seward recorded his reaction to the reproof in his diary, writing "If I hear any more [of Mathieu's] hearts and minds bullshit, I'm going to fucking barf." Command problem?

48. Canada’s Post WW IILitigation Experience The boys

49. Canada’s Record Mugesera v. Canada (Minister of Citizenship and Immigration) [2005] SCC 40 • established the essential elements of the crimes of incitement to genocide (par. 82 - 89) and counselling murder (the Court found that a murder must result before the domestic crime of incitement to murder is raised to the level of an international crime at par. 136); • determined whether inciting hatred could amount to persecution (it can, par. 150); and • established the constitutive elements of a crime against humanity (pars. 152 – 175).

50. Canada’s Record R. v. Munyaneza 2009 QCCS 2201 (2009 QCCS 4865) • 2 counts of Genocide (murder and causing serious bodily or mental harm to members of the Tutsi group, with the intention of destroying in whole or in part…); • 2 counts of crimes against humanity (murder and sexual violence); and • 3 counts of war crimes (murder, sexual violence and pillaging). • See Canadian Centre for International Justice site at: http://www.ccij.ca/programs/cases/index.php?DOC_INST=12