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Irish Centre for Human Rights Summer Course on the International Criminal Court 2012

Irish Centre for Human Rights Summer Course on the International Criminal Court 2012. Addressing core crimes in the Domestic Context John McManus Counsel and Team Leader War Crimes Section, DOJ jmcmanus@justice.gc.ca. Theme. What in God’s name can we do?. Theme.

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Irish Centre for Human Rights Summer Course on the International Criminal Court 2012

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  1. Irish Centre for Human RightsSummer Course on the International Criminal Court2012 Addressing core crimes in the Domestic Context John McManus Counsel and Team Leader War Crimes Section, DOJ jmcmanus@justice.gc.ca

  2. Theme What in God’s name can we do?

  3. Theme Is it reasonable to expect that States will be able to prosecute even a fraction of the perpetrators and is prosecution the only effective means to address impunity?

  4. 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

  5. Core Crimes in the Domestic Context • 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.

  6. 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

  7. Assisting the Court • Cooperate with / assist Court in its investigations • Meet 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

  8. Assisting the CourtWith Investigations 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.

  9. Assisting the Courtwith Investigations • 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)

  10. Assisting the Courtwith Investigations Where do 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

  11. Assisting the CourtWith Investigations 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 • Decides who pays

  12. Assisting the Courtwith 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

  13. Assisting the CourtWith Investigations 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

  14. Canada’s War Crimes Program

  15. Dialogue R. v. Finta, [1994] 1 S.C.R. 701 An integral part of the crime and an essential element of the offence is that it constitutes a crime against humanity.  In the mind of the public those persons indicted for having committed crimes against humanity or war crimes stand charged with committing offences so grave that they shock the conscience of all right-thinking people.  The stigma that must attach to a conviction for such a crime is overwhelming. … Thus, with respect to crimes against humanity the additional element is that the inhumane acts were based on discrimination against or the persecution of an identifiable group of people.  With respect to war crimes, the additional element is that the actions constitute a violation of the laws of armed conflict.  These elements must be established both in order for a Canadian court to have the jurisdiction to try the accused and in order to convict the accused of the offence.

  16. Between 266. … That case [Finta] is indeed authority for the proposition that the sole requirements for crimes against humanity in this regard are that: […] there must be an element of subjective knowledge on the part of the accused of the factual conditions which render the actions a crime against humanity. […] The mental element of a crime against humanity must involve an awareness of the facts or circumstances which would bring the acts within the definition of a crime against humanity. Prosecution v. Tadic IT-94-1-A, 15 July 1999

  17. Courts/Tribunals 126. Since Finta was rendered in 1994, a vast body of international jurisprudence has emerged from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the ICTR.  These tribunals have generated a unique body of authority which cogently reviews the sources, evolution and application of customary international law.  Though the decisions of the ICTY and the ICTR are not binding upon this Court, the expertise of these tribunals and the authority in respect of customary international law with which they are vested suggest that their findings should not be disregarded lightly by Canadian courts applying domestic legislative provisions, such as ss. 7(3.76) and 7(3.77) of the Criminal Code, which expressly incorporate customary international law.  Therefore, to the extent that Finta is in need of clarification and does not accord with the jurisprudence of the ICTY and the ICTR, it warrants reconsideration. Mugesera v. Canada (Minister of Citizenship and Immigration) [2005] SCC 40

  18. Processing of FilesAgencies 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”

  19. Processing of FilesSource 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.

  20. Processing of FilesTriage 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

  21. Investigations

  22. InvestigationsInitial Steps RCMP open file to commence investigation – criminal investigation in the hands of rcmp, with doj providing advice and assistance, DOJ does revocation files Interview complainant (develop witness list - ongoing) Historical and legal analysis (internet and archival work, Tribunal, ICC and Foreign 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.

  23. InvestigationsReports and Approvals • Following investigation, DOJ counsel prepare a Draft Report and Recommendation to Attorney General or CIC Minister • Report forwarded to Public Prosecution Services Canada or CIC for review • A-G Canada or Deputy A-G must agree in writing to the indictment (CAHWCA s. 9(3)) • Prosecutions in Provincial criminal courts • Minister CIC must agree to commence revocation process • Citizenship revocations in Federal Court

  24. InvestigationsAdmin 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) 24

  25. 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

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

  27. 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

  28. 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)

  29. 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

  30. 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

  31. Definition of Crimes Prosecutor v. Michel Bagaragaza, Decision on the Prosecution Motion for Referral to the Kingdom of Norway, ICTR-2005-86-R11bis, 19 May 2006 P. v. Bagaragaza, ICTR-05-86-AR11bis, 30 Aug 2006, par 17: “… In the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the “ordinary crime” of homicide.” P. v. Bagaragaza, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, ICTR-2005086-11bis 13 April 2007

  32. Definition of Crimes • 13. … The interpretation of Rule 11bis(A)(iii) should rely on that definition which requires ratione materiae, ratione personae, ratione loci, ratione temporis. … In this case, the universal jurisdiction referred to in the submissions of the Kingdom of Norway will permit the prosecution of the Accused (ratione personae) for his acts allegedly committed in Rwanda (ratione loci) in 1994 (ratione temporis). The only aspect of jurisdiction what would not be covered by Norwegian law is the ratione materiae. • 16. In this case, it is apparent that the Kingdom of Norway does not have jurisdiction (ratione materiae) over the crimes as charged in the confirmed Indictment.

  33. 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

  34. Command Responsibility in Canada • 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

  35. Command Responsibility in Canada • (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

  36. Command Responsibility in Canada • (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

  37. 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.

  38. 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

  39. 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?

  40. Canada’s Post WW IILitigation Experience The boys

  41. 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). • http://www.ccij.ca/programs/cases/index.php?DOC_INST=3

  42. 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

  43. Canada’s Record • Jacques Mungwarere is accused of having participated in the killing of Tutsi at Mugonero Hospital, Murambi Adventist Church, Gitwe Catholic Church and in Bisesero. • He was arrested by the Royal Canadian Mounted Police (RCMP) on Friday, November 6th, 2009 in Windsor. • He has been charged with 2 counts of Genocide and 2 counts of Crimes Against Humanity • Trial - taking place in Ottawa now • http://www.ccij.ca/programs/cases/index.php?DOC_INST=19

  44. Canada’s Record R. v. Ribic [2005] OJ 4261 (sentencing decision), Appeal dismissed [Nov. 24, 2008] ONCA 790 (Docket C44148) • May 26, 1995 – Nicholas Ribic, a Canadian citizen of Serb descent, assisted in the hostage taking of UN military observers CF Captain Patrick Rechner and Czech Captain Oldrich Zidlik, near Pale, Bosnia. The men were chained to a pole near Serb a munitions dump in an effort to halt UNPROFOR bombing of the area. • Charged with four counts of hostage taking contrary to section 279.1 of the Canadian Criminal Code (and 7(3.1) for jurisdiction).

  45. Canada’s Record • Found guilty of two counts of hostage taking by detaining (but not guilty of hostage taking by seizing) and sentenced to three years on each count, to be served concurrently • Appeal: “Canada’s armed forces… who participate in [UN] peace-making and peace-keeping efforts around the globe … and the armed services of all of the member states of the [UN] have a very real interest in the trial of this case.”

  46. Canada’s Record Minister of Citizenship and Immigration v. Rogan, 2011 FC 1007 Aug 18, 2011 • Citizenship Revocation Action (Federal Court of Canada) • Ethnic Serb, obtained refugee status in 1994 in Belgrade, obtained Citizenship in 1997 • Test: reasonable grounds to believe claimant was complicit in core crimes (and so excluded from refugee process under s. 19(1)(j) of the Imm Act 1984) • Test: On balance of probabilities, subject committed fraud on application

  47. Canada’s Record • Minister of Citizenship and Immigration v. Siefert (2004) FCA 343 (extradited to Italy) • Other Prosecutions under the National Defence Act and Queen’s Regs and Orders following the Somalia deployment, essentially for failure to properly exercise command and/or torture (Seward, Mathieu, Brocklebank, Boland, Sox, Brown )

  48. Bibliography • Oosterveld, Valerie, Mike Perry & John McManus, The Cooperation of States with the International Criminal Court, 25 Fordham Int’l LJ, (March 2002) 767 • Kaye, David A, Justice Beyond The Hague: Supporting the Prosecution of International Crimes in National Courts, Council of Foreign Relations Special Report No. 61 (June 2011) http://www.cfr.org/international-criminal-courts-and-tribunals/justice-beyond-hague/p25119 • Gioia, Federica; State Sovereignty, Jurisdiction and ‘Modern’ International Criminal Law: the Principle of Complemetarity in the International Criminal Court, 19 Leiden J Int’l L (2006) 1095 • Morten Bergsmo, Nobuo Hayashi and Mads Harlem (editors): Importing Core International Crimes into National Criminal Law, Torkel Opsahl Academic Epublisher, (2010) at: http://www.fichl.org/publication-series/

  49. More Bibliography • McManus, John (2004). "A New Era of Accountability through Domestic Enforcement of International Law." In La voie vers la Cour pénale internationale: tous les chemins mènent à Rome (The Highway to the International Criminal Court: All Roads Lead to Rome), ed. Hélène Dumont and Anne-Marie Boisvert. Montreal: Éditions Thémis. • McManus, John and Matthew McManus "National Prosecutions." Genocide and Crimes Against Humanity. Ed. Dinah L. Shelton. Gale Cengage, 2005. eNotes.com. 2006. <http://www.enotes.com/genocide-encyclopedia/

  50. Irish Centre for Human RightsSummer Course on the International Criminal Court2012 Addressing core crimes in the Domestic Context John McManus Counsel and Team Leader War Crimes Section, DOJ jmcmanus@justice.gc.ca

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