[English]
EVIDENCE
[Recorded by Electronic Apparatus]
Tuesday, May 30, 2000
• 0938
[English]
The Vice-Chair (Ms. Colleen Beaumier (Brampton West—Mississauga, Lib.)): I'd like to call the meeting to order.
Today we're here to once again discuss Bill C-19, an act respecting genocide, crimes against humanity, and war crimes and to implement the Rome Statute of the International Criminal Court and to make consequential amendments to other acts.
Our first witness today is Philippe Kirsch. He is from the International Criminal Court Preparatory Commission and was the chair.
I believe you're now an ambassador, but this was your baby, I understand. Welcome.
• 0940
Mr. Philippe Kirsch (Chairman, International Criminal Court Preparatory Commission): Thank you very much, Madam Chair.
I'm very happy to be here before the standing committee today to discuss the International Criminal Court and the ongoing discussions of the ICC Preparatory Commission.
[Translation]
I will be making my presentation mainly in English, but I would of course naturally be very happy to answer questions in either one of the two official languages.
I would add that as ambassador of Canada to Sweden, I was not involved in the preparation of Canadian legislation, and more specifically Bill C-19, and I therefore am not in a position to comment on the bill itself.
Furthermore, as Chair of the International Criminal Court Preparatory Commission, I could describe the position of other countries, but I will not make value judgments on the position of these countries.
[English]
I believe everyone here is familiar with the reasons why an International Criminal Court has been created. The establishment of the ICC is a culmination of a series of international efforts to replace the current pervasive culture of impunity with a culture of accountability. The adoption of the Rome Statute followed at least five decades of efforts in that direction, frustrated by the Cold War.
The tribunals for Yugoslavia and Rwanda were an important step forward, but they were neither a permanent nor a completely satisfactory solution. These were ad hoc tribunals entailing lengthy delays and additional costs in establishing a new institution for each situation. In addition, those tribunals are subject to Security Council control, which alone selects a situation within their jurisdiction.
Finally, a permanent court is designed to serve as a more effective deterrent.
I will address two issues in my presentation. One concerns certain major features of the ICC statute and the other is the current situation, and then the future. With respect to the first element, the statute, given time constraints, I will focus on three of its features: first, the crimes; second, the complementary regime; and third, the safeguards included in the statute.
The court will deal only with the most serious crimes of concern to the international community as a whole. It will have jurisdiction over genocide, crimes against humanity, and war crimes.
It was agreed by all participants that the purpose of the statute was not to create new law. The purpose was to establish an essential new institution to help enforce existing customary law. This is an important point. There was considerable support from certain states and organizations to include certain provisions which would have advanced international criminal law, but eventually there was agreement not to do so.
Thus, the definition of genocide is based strictly on the genocide convention. The definition of crimes against humanity is drawn from the statutes of the Yugoslav and Rwanda tribunals, the Nuremberg charter, and the jurisprudence of those bodies. The definition of war crimes is drawn from the Geneva Conventions of 1949 and other sources such as the Hague Convention of 1909 and some provisions of the additional protocols of 1977.
Consistent with established developments in customary law, the statute affirms that the most serious crimes, war crimes, may be punished also when committed in internal armed conflicts. Similarly, the definition of crimes against humanity recognizes that such crimes may be punished whether committed in war or in peace. So the statute, adopted as it was by so many states, is a useful codification of existing international criminal law.
• 0945
The second major feature I wanted to address is complementarity. The
ICC will complement, not replace, national courts. The ICC will
exercise jurisdiction only where national systems are unwilling or
unable to genuinely investigate or prosecute. This recognizes the
sovereign rights of states to have the first opportunity to prosecute.
It also is designed to avoid overwhelming the court with too many
cases and gives the states an incentive to prosecute offenders.
Some of the participating states at the Rome conference were initially concerned that the ICC might lightly set aside a national investigation in order to seize jurisdiction. To address this concern, the statute contains a very rigorous threshold before a national procedure can be considered not genuine, that is, the state must be carrying out a deliberate sham to shield a perpetrator from justice or the national judicial system must have collapsed.
In making this determination, stringent procedural requirements must be met. Not only must the prosecutor be persuaded, but also a pretrial chamber, and there is a further appeal to an appeals chamber. Thus, where a national judicial system is functioning, the ICC need not, and will not, intervene.
Finally, on the statute itself, I understand that concerns have been raised about whether this institution will be unaccountable or irresponsible. These types of concerns were voiced in the negotiation of the Rome Statute. As a result, a very high number of safeguards have been included to prevent this possibility. The provisions are too numerous to mention, but I will give some examples.
First, there are specific qualifications and criteria for candidates to be considered as potential judges and officials of the ICC. A candidate must be elected by the Assembly of States Parties.
Second, there are checks and balances within the ICC to ensure professional behaviour. For example, there is a pretrial chamber, which oversees the work of the prosecutor to ensure that prosecutor respects the statute, the rights of the accused, and the rights of states.
Third, if despite those safeguards there was somehow abuse or misconduct by an ICC official, there are procedures for removal from office of those individuals by the Assembly of States Parties.
Fourth, the statute upholds and affirms the internationally accepted principles of criminal law.
Fifth, the statute contains provisions throughout that guarantee all the internationally recognized rights of suspects or accused persons at every stage of the proceedings.
Sixth and last, the procedures of the court are designed to provide the highest standards of justice.
The concern to respect the sovereignty of states is woven throughout the statute. There is the principle of complementarity, which I mentioned, and the safeguards I also mentioned above. Wherever sensitive issues do arise with respect to the sovereignty of states, for example, in providing mutual assistance, or with respect to national security information, there are procedures for sustained consultations with states. The court is overseen by an Assembly of States Parties, which will provide management oversight of the court and decide its budget and so on.
• 0950
These are only some of the safeguards in the statue. Many
delegations—you can appreciate the diversity of participants in the
world conference—were concerned about ensuring credible and
responsible operation of the court and included many provisions to
bring that about.
Turning to the future, the efforts of governments and of civil society are now focused in two areas. One is the negotiation of details of the court's operations, taking place in the preparatory commission, and the second is the drive to sign and ratify the ICC statute. The preparatory commission has held four sessions so far and will meet again on June 12 for a three-week session, which has a special significance, for reasons I will explain later.
The task of the preparatory commission is to develop necessary instruments concerning the technical aspects of the court's operation. Once the statute enters into force and the Assembly of States Parties exists, then those documents will be submitted to that assembly for consideration and adoption. The preparatory commission will then cease to exist. The preparatory commission's work is to set the stage.
The mandate of the preparatory commission has been defined by the Rome conference. It includes, first, the task of preparing the draft rules of procedure and elements of crimes; second, a relationship agreement between the court and the United Nations; third, an agreement on privileges and immunities of the court; fourth, basic principles for the headquarters agreement with the host country, the host country being the Netherlands; fifth, financial regulations and rules; and sixth, a budget for the first financial year.
The preparatory commission will also discuss proposals for exercise of jurisdiction of the court over the crime of aggression. Finally, the General Assembly, independent of the conference, has asked the preparatory commission, in connection with its mandate, to discuss ways to enhance the effectiveness and the acceptance of the court.
The objective of the work of the preparatory commission will be a fair and effective implementation of the Rome Statute. Its mandate is not a revision of the statute. That could only be done by a review conference, which is supposed to be held seven years after the entry into force of the statute. In other words, the preparatory commission has the obligation to respect the balance achieved at the Rome conference, but to build on it to enhance support for the International Criminal Court.
Two of the instruments I mentioned, the elements of crimes and the rules of procedure, must be completed by June 30, 2000. The elements of crimes document will elaborate the precise elements to be proved with respect to the crimes in the statute. The rules of procedure and evidence will of course articulate the procedures of the court with more precision. There is a lot of work still remaining for June, but the atmosphere in the preparatory commission has been quite positive, and there is really every reason to anticipate a successful outcome of its work at the end of June, at least on that part of that work.
The statute will enter into force once 60 states have ratified it. Ratification efforts are underway in capitals around the world. The number of signatures that has been obtained so far—now 96—I believe reflects the genuine commitment of states to pursue this process to completion. Many more signatures are expected to be achieved by the time of closing, which is December 2000.
• 0955
The pace of ratification is now picking up as a number of states are
in the process of completing their domestic procedures. As an
illustration of this momentum, I would note that two states have
ratified the statute since early May, when Bill C-19 was referred to
the standing committee. So ten states have now ratified, with many
more expected in the near future, including between now and the end of
this year.
I would also mention that many states that were initially hesitant about the International Criminal Court have now joined in support of the court. This reflects increased public and political support for the establishment and operation of the court, and this is due to three main factors.
First, the statute and the court itself are now much better understood than at the time of the Rome conference. I think it is quite clear to states that the court has been designed to function as a judicial body, not a political body.
Second, it is now clear that the court will come into existence in the fairly near future.
Third, even though some states initially had hesitations about some aspects of the statute, most states have concluded now that the establishment of an international criminal court is such a tremendous positive achievement that they have decided to build on the basis of how the statute exists now, despite their initial reservations.
[Translation]
Canada has a very special role to play, that of maintaining the momentum that led to the establishment of the International Criminal Court. Canada was the first country to table an act, a comprehensive act dealing both with domestic law and the ratification process. I hope that the members of the committee will agree that the International Criminal Court deserves the support it now receives from the vast majority of countries and from Canada, and that Canada will do everything in its power to maintain this impetus in favour of better international justice.
As I stated at the beginning of my presentation, I do apologize for having made most of my remarks in English. I am of course at your disposal to answer any questions you may wish to ask in either of the two languages.
Thank you very much, Madam Chair.
[English]
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
To begin questioning, Mr. Anders.
Mr. Rob Anders (Calgary West, Canadian Alliance): I would like to point out that this is my first time sitting in on the committee. I'm subbing for a colleague of mine, Gurmant Grewal, who couldn't be here today.
There was a constituent of mine who wrote in with regard to this whole matter, Lorraine Adlington, and she was wondering how such an organization or a body would be able to overcome the objections of states that oppose your interests or your presence.
Mr. Philippe Kirsch: Could you repeat your last sentence?
Mr. Rob Anders: She wondered how this type of centre for criminal law or an international court like this would be able to get around a particular state that would oppose your interest or your presence in their matters.
Mr. Philippe Kirsch: The statute of the court has been a thoroughly negotiated document in most of its parts. There were concerns that remained at the end of the Rome conference with some aspects, the most prevalent being the jurisdiction of the court, but on almost everything else the statute does represent a balance between a wide range of different interests.
I mentioned during my intervention that I know for a fact that a number of states that abstained on the Rome Statute, or even voted against it in Rome, now not only accept the statute but speak openly in favour of it. That is due, as I think I also mentioned earlier, to the fact that as states study the statute as it actually is, they realize that many of their concerns in fact have been accommodated in the text, including in particular the concern that a court could infringe on the national sovereignty of states. I think it is very clear when you read the statute that the first right of refusal in normal circumstances belongs to states.
• 1000
If crimes under the jurisdiction of the statute are committed, it is
incumbent on the states having jurisdiction to investigate and
prosecute those crimes. It is only in the most flagrant cases, where
clearly justice is not going to be served—and that means, indeed,
either that the state refuses to take jurisdiction, does not do
anything, or conducts investigations or prosecutions that, for
example, are clearly aimed at protecting the accused, not at reaching
conclusions based on law, or when the judicial processes have
collapsed—that the court will take jurisdiction.
Mr. Rob Anders: Just this morning I took in a meeting with regard to Burma and some of the situations that have transpired there over the last number of decades since independence in 1948. Say, for example, that you had a government like the Burmese government, which is complicit with various things that you would oppose. How would you deal with a state like Burma?
You said that some states abstained or voted against the Rome conference. What were their reasons for doing so? And how would you deal with a state like Burma that would be complicit with some of these things you take issue with?
Mr. Philippe Kirsch: On the question of the relationship between states and the court generally, I should first point out that only states that are parties to the court have obligations vis-à-vis the court. Those that are not parties do not.
The way the court establishes jurisdiction depends on the way jurisdiction is triggered. As I said earlier, the jurisdictional regime of the court was intensely debated in Rome, and the conclusion was that for the court to have jurisdiction in normal circumstances—that is, if the prosecutor has triggered jurisdiction of the court or if a state party has triggered jurisdiction of the court—then you need the consent for the court to exercise jurisdiction either of the state of the nationality of the accused or the state of the territory where the crime has been committed.
The solution to a situation like the one you describe depends on two factors. One is that of course we all would wish the jurisdiction of the court to be accepted either generally or on a case-by-case basis by as many states as possible with a view to making its jurisdiction eventually universal. But there is another tool that is available to trigger the jurisdiction of the court, and that is that the Security Council can trigger that jurisdiction. In that case, of course, the Security Council doing this has many more powers to ensure that jurisdiction of the court is in fact implemented.
The Vice-Chair (Ms. Colleen Beaumier): Madame Lalonde.
[Translation]
Ms. Francine Lalonde (Mercier, BQ): This is a new institution, but it is more than that. It is truly the establishment of an international justice system for the most serious of crimes.
• 1005
As to the effects of this, we are already seeing some: for example,
the tribunal that was established in the case of Rwanda. But we know
that there are a certain number of problems there. How would you
compare the future court and the tribunal set up for Rwanda? What will
be similar and what will be different?
Mr. Philippe Kirsch: If we are establishing this court rather than maintaining the system of ad hoc tribunals, it is to a great extent due to the problems that these ad hoc tribunals have encountered. They had operational problems that we are well aware of. I believe that it is fair to say that over time these problems will gradually disappear. Their operation is much more flexible and much more efficient then when they were first set up. That is what I would say about the operational aspect.
As to the principles, the establishment of ad hoc international tribunals gives rise to a certain number of problems: financing problems, because you start from scratch, problems of equipment, human resources and procedure, because all of these must be put into place each and every time. This therefore brings about lengthy delays and requires a form of breaking in that is difficult to accomplish every time.
The advantage of the International Criminal Court, from that point of view, is that it will be a permanent institution that, once established, will have its own procedures. We will no longer be faced with all of these start-up difficulties the tribunals have encountered. There is therefore a tremendous difference between the tribunals and the Court from this point of view.
Another difference, obviously, is that these tribunals have limited jurisdiction, restricted to a certain period of time, to specific events and to a precise geographic area. Therefore, their operation mode is necessarily very limited. The International Criminal Court«s jurisdiction will be much more general.
I would mention a third element, that I alluded to in my introduction. These ad hoc tribunals are necessarily created by the Security Council, which has the authority to do so but which only does it when that is its pleasure. It is perfectly clear that in a certain number of international situations where similar crimes had been committed, no tribunal was ever set up. Therefore, the Criminal Court«s aim is to establish a regime that will be free from all of these problems.
Another difference, and it is the last one that comes to mind for now, is that these ad hoc tribunals have priority as far as jurisdiction is concerned. In other words, if a state has jurisdiction over specific crimes at the same time as an ad hoc tribunal, it is the latter that takes precedence over the former. In the case of the Criminal Court, the situation is different. In principle, it is the State that will have priority. It is only when the legal system of the State is not really working, either because it no longer exists or because it is being manipulated, that the Court will have jurisdiction. This will also have an impact on costs.
It is obvious that when a tribunal has priority jurisdiction in a given situation, it is it that will have to take care of all of the cases and that will therefore have to cover all of the costs. In the case of the International Criminal Court, the number of cases presented to it will most probably be more limited because most States, Canada being a prime example, exercise their jurisdiction in a way that is totally legitimate and do not require outside intervention.
Thank you.
[English]
The Vice-Chair (Ms. Colleen Beaumier): Mr. McWhinney.
Mr. Ted McWhinney (Vancouver Quadra, Lib.): Mr. Kirsch, welcome back to Canada. I think we all take great pride in your performance as chair of the committee to complete the adoption of the treaty on the Rome tribunal. As you know, you were drafted for this, you were plucked up by unanimous consent, I believe, in the Security Council as the man to chair this committee. We all take great pride in this, and having seen you in action early in your career, I think it's a wonderful cap to your career.
• 1010
This having been said, may I ask you something on the timetable for
the adoption of the treaty? As you know, with the Law of the Sea
Convention, to which Canadian jurors contributed significantly, in
fact I think the legal division of our foreign ministry and perhaps
Singapore and Venezuela provided the ginger group—the new ideas on
the law of the sea reflected in the 1982 convention. But there was a
substantial lag in the Canadian ratification of the treaty. This
meant, effectively, that when the treaty became law when the minimum
number of 60 ratifications were completed, we were not part of the
process; we didn't participate in the setting up of the tribunal or
the organization and structuring of that tribunal.
I'm wondering what you envisage as a timetable for the Rome treaty in terms of ratification. What is the situation in terms of the numbers of ratifications achieved to date? Secondly, what's Canada's role? Thirdly, what would be your prediction of when it will come into operation, and are you able to say that we will be in from the beginning once it's ratified?
Mr. Philippe Kirsch: Thank you very much.
I think a comparison with the Law of the Sea Convention is interesting. I think, to show my cards right away, I'm much more optimistic on the timetable in this case than I was on the Law of the Sea Convention, and the reason is that I think that after the adoption of the Law of the Sea Convention it was realized that there were real problems with the convention that had to be corrected one way or another.
In this case, the process is almost the opposite. The more states look at the ICC statute, the more they are satisfied, not only that there are no serious problems to correct, but that the statute should remain exactly as is. So that's the framework.
With respect to your particular question, you need 60 states to ratify the statute for it to enter into force. There are 96 states that have signed the statute, of course not ratified but signed, and my considered assessment of that situation is that no state would ratify an international instrument of that kind without actually having the intention to pursue the process to completion, up to and including ratification. I think in large part the early signature of states is designed to show that, yes, that state also supports the statute and it is going to be a viable institution.
With respect to the question of ratifications, which are accelerating, we have now ten states that have ratified the statute out of 60, and of course the question is often asked, legitimately, whether this is likely to be a concern that the statute may enter into force after a number of years. My own evaluation is that it is not a concern, because the statute, as we well know in Canada, is an extremely complex document that requires in most states, first of all, the adoption of an extensive body of legislation to ensure that domestic law corresponds to international obligations being accepted by those states. But in some cases, also, there is the appearance of contradictions between the ICC statute and even the constitution of some states. That requires a very thorough evaluation of the methods that can be adopted to correct those situations.
In the case of France, for example, they have decided that, yes, an amendment to their constitution was required, and they have proceeded with it. In the case of Spain, I was in Madrid last week for a regional seminar, and they have made the same analysis and concluded that there is in fact no contradiction between the Spanish constitution and the ICC statute. Therefore, they will ratify without the need for any changes.
• 1015
My more general point is that given the need to study domestic
legislation with the kind of care that is required to ensure that the
state complies with international obligations, it takes a lot of time.
But what happens simultaneously is that there are a high number of
states going through the same process at exactly the same time. My
conclusion is that we will see in the next couple of years a flurry of
simultaneous ratifications as all these simultaneous processes reach
their conclusions more or less at the same time.
More specifically, at the risk of being contradicted by facts, my assessment is that the statute should enter into force in no more than four years.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Ted McWhinney: Is my time up?
The Vice-Chair (Ms. Colleen Beaumier): Yes, I'm sorry, it is. We have time constraints here, because we began late.
Mr. Ted McWhinney: I understand. I respect the rules.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Anders, quickly, please.
Mr. Rob Anders: You mentioned that the court would step in where there were cases of manipulation of the state courts, for example. I was wondering what would be defined as manipulation. Would delays of the state justice system qualify? What about the skew of the interpretive document that they look to make judgment on? Would it be possibly a litmus-tested, kind of politically stacked court system? What would qualify as manipulation of the state court?
Mr. Philippe Kirsch: I would like to go back just for a second to existing situations because it is easier to understand it through actual examples.
Look at what happened in former Yugoslavia or in the case of Rwanda. If you take as a premise that the regime under which certain crimes have been committed is still in place and if you also know, which I think is quite an established fact, that some of those crimes have been committed or ordered or authorized by the agents of the state itself, you will easily reach the conclusion that there is no way you can expect a normal judicial process to take place in this kind of situation. That is really the core, the basis, for this complementarity principle, where it is clear in certain situations that nothing will actually happen.
You need to establish that the decision has been taken for the purpose of shielding the person concerned or that there has been an unjustified delay or that the proceedings are not conducted independently or impartially or that the proceedings are conducted in a manner that is inconsistent with an intent to bring the person concerned to justice. This basic provision, which is article 17 of the statute, will be supplemented by relevant rules of procedure and evidence. I think this should be enough to give at least a sense of what that provision was designed to achieve.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Turp.
[Translation]
Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Kirsch, I am very pleased to see you here before the committee. I would like, as I have done on other occasions, to congratulate you for the work you did at the conference that brought about the Rome Statute. We all recognize that you and your colleagues have done a remarkable job and that you are of those who succeeded where others before you had failed, since we began talking about the establishment of an international criminal court. You were most probably one of the great artisans of this success story that our international community should be proud of and you are continuing to work to ensure the success of this enterprise.
• 1020
I would like you to talk to us about the substantive work of the
Preparatory Commission, because it is to a great extent completing the
work of the conference as to the substance. I am thinking here more
particularly of the elements of crimes. One of the things that I have
stated here is that the Commission will most probably be adding to the
statute something that perhaps deserved to be looked at by the
committee or by the House of Commons so that we might be familiar not
only with the statute, but also with any determining element that
might be added to it. That is my first question. I would like to know
at what stage the work is at and if you believe it would be useful for
Parliament to deal with the question of the elements of crimes and to
study it once the Commission has concluded its work in this area.
My second question—and I believe that this will interest you in the context of your present responsibilities—pertains to what Canada is hoping for as far as participation and presence in the International Criminal Court are concerned. Mr. McWhinney stated that the important role that Canada played during the negotiations of the Law of the Sea Convention did not translate into a presence for Canada nor a Canadian sitting on the International Tribunal on the Law of the Sea. Is there a Canadian who is a member of the Tribunal?
Mr. Ted McWhinney: No.
Mr. Daniel Turp: Do you believe it would be important that the first International Criminal Court include a Canadian judge? Are the work and present participation—yours and that of other Canadians—leaning in the direction of this will to be associated with the court as soon as it begins its work?
Mr. Philippe Kirsch: Thank you very much. First of all, I would like to thank you for your introductory words, in the same way I would like to thank Mr. McWhinney for the comments he made earlier.
Your first question related to the work of the Preparatory Commission and more specifically to the elements of crimes. The elements of crimes have a rather particular history, and I believe it is worth looking at it again. Most of the states who participated in the Conference of Rome did not wish to see the elements of crime developed. They believed that the list of crimes contained in the statute was sufficient and that it would be up to the tribunal to develop, if need be, case law applicable to each one of the crimes in question.
The United States in particular, and a few other countries, wanted to see the elements of crimes developed separately so as to tie the court in its interpretation of crimes defined in the statute. This proposal was not acceptable, in the form in which it was presented, to the vast majority of states. Various reasons were given. One of them was that most of the other states did not believe that these elements of crimes were necessary. Another reason was the fear that the crimes defined under the statute would be indirectly modified by these elements of crimes.
Thus, the agreement that was reached in the end, given the insistence of the United States, and that had been the object of numerous concessions during the negotiations, was that the Preparatory Commission would prepare the elements of crimes for adoption by the assembly of states, but that these elements of crimes would only be used as guidelines for the court in its interpretation of the crimes defined in the statute and would have no binding force.
The statute itself also provides that the elements of crimes must never stray from the statute.
• 1025
I will give you a simple example relating to the elements of crimes.
Let us suppose that there is an attack against civilians, and
therefore a war crime. The element of the crimes in this particular
case will have to show three things: first of all, that the
environment surrounding the crime exists, in other words that there is
an armed conflict going on; secondly, that the particular crime of the
attack against civilians was committed; and, thirdly, that the person
who committed this crime intended to commit it and that it was neither
a mistake nor an accident. This is very schematic, but these truly are
the three elements, to my mind, that exist in the elements of crimes.
Obviously, some crimes are much more complicated than others and there
are all sorts of subdivisions, but I believe that it is the schema of
each element of crime that is developed in the elements of crimes.
I will not hide from you the fact that when the Preparatory Commission began its work, several participants thought that even with these modified elements of crimes, as contained in the statute, there was a risk that this would change the definition of crimes contained in the statute itself. Over the course of negotiations, it never happened that each of the elements of crimes defined in the document in question corresponded to the satisfaction of all to the crimes as defined in the statute.
Certain fears relating to certain crimes contained in the statute have been calmed by the definition of elements of crimes. I believe it might be appropriate to mention here the transfer of the peoples of occupied territories, that was a major problem encountered by Israel and the main reason why Israel voted in Rome against the statute, and said so.
Over the course of the negotiations on this matter, it became clear that Israel«s fear was that, with the formulation adopted in the statute, which was slightly different from that that had existed previously in the relevant instruments, they were creating new international humanitarian law without knowing where it was going. The position of the Arab countries was that they feared that with this formulation we were stepping back from international humanitarian law.
The solution to this situation was the inclusion, via a footnote, of a provision stating that these particular elements of crimes would be interpreted in the context of international humanitarian law. This provision brought Israel and the Arab countries to accept not only the pertinent element of crime, but also the crime as defined in the statute. These elements of crime bring clarification, but cannot modify the crimes as defined in the statute.
As far as your last question is concerned, obviously, it is somewhat difficult for me to....
[English]
The Vice-Chair (Ms. Colleen Beaumier): Excuse me, Mr. Kirsch. I'm sorry. We have a number of other witnesses. We're way over time now.
[Translation]
Mr. Daniel Turp: But this is important. Could we not grant him a few minutes to answer the question?
[English]
The Vice-Chair (Ms. Colleen Beaumier): Could he give it to you in writing, please? We have other witnesses here who have prepared to testify and to answer questions and we're very late.
[Translation]
Mr. Daniel Turp: [Editor«s note: Inaudible]... Madam Chair.
[English]
The Vice-Chair (Ms. Colleen Beaumier): Would you consider putting that in writing, please?
Mr. Daniel Turp: No, he won't put that in writing.
Voices: Oh, oh!
[Translation]
A member: Not at all.
[English]
The Vice-Chair (Ms. Colleen Beaumier): Can you answer it in 45 seconds or less?
Mr. Philippe Kirsch: I will try, Madam Chair. I apologize if my answers have been longer than the questions.
I'm not in a good position to address that question directly, for obvious reasons. I am absolutely convinced that Canada's commitment to the International Criminal Court is sustained and will not fade with time.
As for the modalities that the participation could take when the court is created, I think I should defer to higher authorities.
Thank you very much.
[Translation]
Ms. Francine Lalonde: Forty-five seconds will not suffice.
Mr. Daniel Turp: Madam Chair, I would like to make a comment that will take 30 seconds at the most. Mr. Kirsch said something that is very important. He said that we had to take the time, as other countries have done, to craft a good implementing act.
• 1030
I would like to tell my colleagues opposite that we must take the
necessary time to make of Bill C-19 the best of bills. This week«s
schedule will not necessarily allow us the time we need for this bill
to be the best of bills.
Mention has just been made of points that Mr. Narvey, who wanted to appear before us, underscores in the written document he has circulated and which deserve to be understood by the committee.
It is not me but Mr. Kirsch who is saying that we must take the time to do a good job of drafting the legislation implementing this statute.
[English]
The Vice-Chair (Ms. Colleen Beaumier): I don't disagree with you. Perhaps that can be discussed later, but right now, this morning, we have other witnesses we would like to hear from.
Thank you so much for appearing. As you see, we have lots more questions for you and I would suggest that people submit them in writing. Thank you so much.
I will suspend the meeting for a couple of minutes while we regroup.
• 1031
• 1036
The Vice-Chair (Ms. Colleen Beaumier): Okay, I'd like to introduce the witnesses.
Today we have Bruce Broomhall, from the Lawyers Committee for Human Rights; Alex Neve, secretary general of Amnesty International Canada; Richard Dicker, counsel for Human Rights Watch; Donald S. Baker, a private individual; and Joanne Lee, a research associate for the International Centre for Criminal Law Reform and Criminal Justice Policy, UBC.
I'd like to ask Mr. Broomhall to begin.
Mr. Bruce Broomhall (Lawyers Committee for Human Rights): Thank you, Madam Chair. I'd like to thank the committee for this opportunity to address this legislation.
I should say at the beginning that the Lawyers Committee for Human Rights is a member of the steering committee of the NGO Coalition for an International Criminal Court, which is a coalition that has been working on behalf of over a thousand non-governmental organizations around the world over the past five years to ensure the creation of an effective international criminal court. The Lawyers Committee in particular supports the creation of an institution that, as we've just heard from Ambassador Kirsch, promises to do a great deal to advance the rule of law in an area that too often in the last century was left to diplomatic and political constraints.
Although the Lawyers Committee for Human Rights is based in New York, as a Vancouverite, I feel it's a particular privilege to have the opportunity to return to Canada and address you here in Parliament.
I'd like to start by underscoring what Ambassador Kirsch said about the way in which the International Criminal Court promises to advance important work that has been done in the area of international justice in these last ten years.
We know that at least since the end of the Second World War, and in some senses even before that, there has been a movement towards the legalization of human rights and of humanitarian aspects of the conduct of war. During the Cold War, of course, we had some clarity about these standards and we had some movement towards clarification of their implementation, but we did not have significant progress until the end of the Cold War. As you know, it was the ICTY and the ICTR, the ad hoc tribunals for the former Yugoslavia and Rwanda, that really made clear to the international community that the enforcement of these standards was a feasible matter. I don't think anything added more momentum to the process to establish an international criminal court than those examples.
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We're in an historical period when we are seeking to put flesh on the
bones of the legal standards and to draft up the rules of the road as
to how this international justice system will work as a matter of
practice and not simply of norms. As Ambassador Kirsch pointed out to
us, the ICC is going to be firmly based on ideas of sovereignty, on
what we call complementarity in International Criminal Court circles,
which sees a synergy, let's say, or cooperation between the courts of
national states and of the international community.
This model, which came out of the Rome diplomatic process, from an NGO point of view was too full of compromises in many ways, too limited for the liking of some of us. But at the same time, we recognized that this was probably the best balance between sovereignty and international justice that the world community was ready for at the time. As Ambassador Kirsch says, we have thrown our efforts into ensuring the maximum support for this institution.
In this we're not alone. Ambassador Kirsch mentioned that the support from governments around the world has been truly remarkable. The ten ratifications we have now promise to be followed, even before the end of the next two months, by ratifications from leading European states—I believe including Germany, quite possibly France, Belgium, Portugal, and a number of other western Europeans. I believe having 12 or 13 of the 15 members of the European Union ratify it by the end of this calendar year is not at all unrealistic.
With those states behind the ICC, along with Canada I hope, I think we will see an increased momentum towards the establishment of this court, because these are the states who are in some sense providing the first political leadership. We have 28 or 29 sub-Saharan African states who have signed the Rome treaty, some dozen states in Eastern Europe, a similar number in Latin America. Our belief is that once the western European states have thrown their support behind this, we will see quite rapid movement towards ratifications in Africa and Latin America. I believe that over time we will also see states that remain skeptical in this process become more and more favourable towards it as they see the advantages it provides for them.
Having said that, even at Rome the question of legislation to implement the Rome Statute was discussed, and it has been discussed more and more intensively ever since.
In October 1998, the first public forum in which I discussed the implementation of the Rome Statute was at the University of Toronto, on a panel that included the chair of this committee, Bill Graham. At that point we were beginning to outline the kinds of criteria that good implementing legislation would have to discuss the issue. I wrote a document on it in early 1999, which I shared with members of the Canadian government, and we received their views and comments on it. A number of NGOs in Canada have been working diligently on the issue. Over time, our thinking of what would constitute good implementing legislation has become fairly clear, and seeing Bill C-19 in December as the first comprehensive example of implementing legislation was really very welcome.
Of course members of this committee are familiar with Canada's leadership role in this whole process of establishing an international criminal court, leading up to Rome, in the Rome conference, and during the preparatory commission process since. But we should be clear, I think, that this kind of legislation is also important in signalling Canada's commitment to going forward with this process and to setting an example to other countries who are engaged in the same debates, the same discussions, or who will be engaged in these debates or discussions over the coming months.
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Now, having said that, I should say a few things about the
legislation very briefly.
I said it was a very welcome piece of legislation when we first saw it, and this is precisely because it is comprehensive. The Rome Statute imposes an obligation to cooperate effectively with the court. As we said, the ICC is a balance between sovereignty and the needs of effective international justice. As such, it requires intensive cooperation from states if it is going to be effective as an institution, and how to make that cooperation effective while respecting national systems is something that was intensely debated during the diplomatic process.
The conclusion was an obligation in the Rome Statute for states to cooperate with the court in providing evidence, in protecting witnesses, in seizing proceeds of crime, and in a range of other areas on request of the court, and to provide national laws that would facilitate that where necessary. Those are the hard obligations, if you like, under the Rome Statute, and in my reading of it, they are covered very nicely by Bill C-19 as it's now drafted.
The other side is softer. It's not an obligation under the Rome Statute as such, but as Ambassador Kirsch said, the principle of complementarity, the fact that the ICC will be a secondary jurisdiction, gives states a strong incentive to do justice themselves. Something we were looking at from the very beginning was how we could encourage states to incorporate the Rome Statute crimes completely into their national systems, and of course Bill C-19 does that admirably.
I should say as well that in addition to meeting the two sides of what we were looking for in legislation on the Rome Statute, the cooperation side and the complementarity side, Bill C-19 actually goes beyond that, as members of the committee will be aware, in addressing some issues that have arisen through the Canadian jurisprudence, the Finta case primarily, and through providing universal jurisdiction, as we call it, allowing these crimes, which are a narrow set of crimes under international law, to be prosecuted in Canadian courts regardless of where they were committed. That's a rule of law that has been well established since the end of the Second World War and possibly before that, but it's one that, as I say, only in recent years we've been seeking to really put into practice.
Now, having said all these nice things about the legislation, I want to make a point. There are a couple of points that, if this committee were going to recommend changes to the legislation, I think it would be worth looking at.
First, I have a question in my mind about the use of the word “may” instead of “shall” in clause 57 of the legislation, where the minister may authorize the Attorney General of Canada to make arrangements for the enforcement of an order from the ICC. I understand that the thinking on this is that “may” is an empowering provision, empowering the minister to take action in response to a request from the court, and the question of whether there is an obligation to take that action is then dependent, among other things, on international law. In this case, the international law of course would be the Rome Statute, which effectively requires cooperation except in a limited set of circumstances. So the question I would have is whether that word “may” might not be better replaced by the world “shall”, given that the Rome Statute provides procedures in the ICC for challenging requests for assistance and so on.
Another point I wanted to raise was about surrender or extradition. There has been a debate about the question of whether extradition procedures should apply in the transfer of individuals to an international court, which I believe members of the committee are familiar with.
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In the Rome Statute for the International Criminal Court there is
actually a definitional section, article 102, which sets out a
distinction between the two. Extradition is between states. Surrender
is between a state and the ICC, the principled reason being that the
ICC in some sense represents the international community. It provides
extensive safeguards. As an international institution, it doesn't
present the same political questions that, say, the political offence
exemption for extradition was created to take account of.
The thinking was that a more streamlined procedure would apply under surrender than would apply under extradition between states. I have to say the bill is welcome in this respect, in that it provides, under the amendments to the Extradition Act, that grounds for refusal do not apply. So this is a very welcome streamlining of the process with respect to the ICC.
However, I wonder if this could not be streamlined somewhat further by addressing the provisions for judicial review and appeal in the Extradition Act. We know through the Pinochet proceedings in the U.K. and other proceedings that these procedures can drag out a great many years in some instances. I understand in Canada there is one case that might provide an example of this at the moment, the Mugesera case. The requirements in the charter would have to be taken into account with the right to remain in Canada and so on, but one amendment that might be worth looking at is to provide for appeal with leave rather than an appeal as of right. I understand the charter jurisprudence may allow that.
In any event, moving right along, I was going to suggest we take a look as well at merging the provisions on prosecution outside Canada with those for inside Canada. The legislation, as I see it, could just as easily provide for prosecutions under customary law inside Canada as it does for outside Canada in the present draft. I see no reason under the charter for that.
Just to conclude, I would suggest looking at the possibility, though not for this legislation, of providing for civil remedies under Canadian law for victims of these crimes. This has worked quite effectively in some jurisdictions and would be a welcome addition to Canada's measures for international justice in this country.
Finally, I want to say these suggestions for amendments are without prejudice to my suggestion that this legislation be passed as promptly as possible to facilitate Canada's early ratification of the statute. I personally would very much like to see Canada in the first ranks of those ratifying the Rome Statute, and in particular I'd like to see this legislation go out as an example to other countries. Belgium has legislation at the moment, but it's broken into pieces; it's not a unified piece like this. France will be delayed for some months. Germany will provide too detailed a piece of legislation for use internationally. The Canadian example here is really a very useful one and one that other countries around the world are looking to. So the earlier this committee could conclude its work the better from that perspective.
Thank you very much.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
[Translation]
Mr. Daniel Turp: I would like to ask if Mr. Broomhall will be giving us a brief containing his amendment proposals.
[English]
The Vice-Chair (Ms. Colleen Beaumier): It was given in English. We don't have the French yet, but it will be provided to you.
[Translation]
Mr. Daniel Turp: Is there a written text of proposed amendments?
[English]
Mr. Bruce Broomhall: I will provide one.
Mr. Daniel Turp: Could you do that?
Mr. Bruce Broomhall: Yes, I will.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Neve.
Mr. Alex Neve (Secretary General, Amnesty International (Canada)): Thank you, Madame Chair and committee members. Amnesty International welcomes the opportunity to appear before you today, and Amnesty International also very much welcomes Bill C-19.
The Crimes Against Humanity Act and the consequent ratification by Canada of the Rome Statute will make an important contribution to a crucial human rights goal: that those individuals responsible for genocide, war crimes, and crimes against humanity will not benefit from impunity.
Ironically, to date it is precisely the world's most serious criminals—those responsible not for one or two acts of violence but for hundreds or thousands of deaths—who have been the least likely to be punished for their crimes.
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Because of this gap in the international criminal justice system,
governments, security forces, rebel groups, and their allies have
continued to torture, to use rape as a tool for torture and war, to
commit mass murder, and otherwise to violate cavalierly the basic
human rights of children, women, and men, confident that there would
be no price to pay. Instead the perpetrators have seen much to be
gained from their heinous actions, usually in the form of political
power and economic self-benefit.
A system of international justice that holds human rights criminals accountable will go far in beginning to break through this vicious circle of impunity.
Amnesty International commends the Government of Canada for the role it played leading up to and in Rome in 1998, for the role it has continued to play since that time, and now for the clear indication that ratification of the Rome Statute should follow soon after this legislation is enacted. Canada's leadership on this issue has been and continues to be important. With ten ratifications to date and fifty to go before we reach the requisite threshold of sixty state parties, it is certainly promising that Canada is readying to take that step and ratify.
This legislation will also be reviewed carefully by many other states and should serve as a model to other governments as they prepare for ratification. As such, it is of particular importance that we have the very best bill possible and that this bill set high standards.
Essentially we do consider this bill to be very good law, and we believe it will go far in achieving those human rights objectives. I would like to share with you this morning briefly four recommendations as to ways in which we believe the legislation could be improved and one thought for the future.
Firstly, on surrender and extradition, we are pleased to see that some of the recommendations we had made previously regarding Bill C-40, Canada's extradition legislation, but that were not fully adopted at that time, have been taken into account in Bill C-19. We had raised concerns that Bill C-40 failed to make sufficient distinction between the process of surrender to an international tribunal and extradition to a state. We were concerned that this weakness meant extradition principles could be raised in surrender proceedings, thus unduly protracting the process of surrender to the relevant international tribunal.
We welcome the fact that one of the consequential amendments associated with Bill C-19 is to specify that sections 44, 46, and 47 of the Extradition Act, which lay out the grounds for refusal open to the Minister of Justice in extradition proceedings, explicitly will not be available in the case of a request for surrender by the International Criminal Court. However, we are of the view that the failure to distinguish more fully the surrender process from extradition proceedings is more largely unaddressed in Bill C-19 and may become an obstacle to the timely transfer of accused individuals to the International Criminal Court.
Clearly extradition proceedings can become lengthy judicial affairs. A new procedure unique to instances involving surrender to international tribunals could further streamline and expedite matters. While such legal reform has not been proposed here in Bill C-19, Amnesty International at the very least urges the government to ensure this does effectively become the practice.
Secondly, for crimes in Canada and outside Canada, we have noted that Bill C-19 proposes different definitions of “war crimes” and “crimes against humanity” depending upon whether the acts or omissions take place in Canada or abroad. If in Canada, the definition applies only to acts committed after the legislation takes effect. If abroad, the definition applies if the acts or omissions were criminal according to international law at the time of the acts or omissions. We urge the committee to recommend an amendment that would use the latter standard in both instances.
On immunity, the Rome Statute in article 27 importantly establishes that all persons, regardless of their capacity as heads of state, are susceptible to prosecution. Any immunities that attach to the official capacity of a person explicitly do not bar the court from exercising its jurisdiction. The recent experience of the Pinochet case in the United Kingdom illustrates the degree to which the defence of immunity may be raised by heads of state and former heads of state.
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Importantly, Bill C-19 does, through a proposed addition to the
Extradition Act, make it clear that immunity cannot be claimed by
anyone whose surrender is sought by the International Criminal Court.
We recommend that the bill also make it clear that article 27 will be
consistently applied by Canadian courts dealing with prosecutions in
Canada, so as to ensure claims of immunity will in no way stand in the
way of bringing accused human rights criminals to justice, be it in
Canada or in front of the International Criminal Court.
Fourthly, concerning the mental element, prosecution of war criminals in Canada following the Finta decision became impossible due largely to the decision of Mr. Justice Cory of the Supreme Court of Canada holding that the requisite mental element of a war crime or a crime against humanity was that the accused must be aware of or wilfully blind to the fact that he or she is inflicting untold misery on his or her victims.
This mental requirement of intending inhumanity is not part of the Rome Statute, which addresses the issue of mental element in article 30. We're of the view that the Finta ruling as to the requisite mental element for war crimes and crimes against humanity is not consistent with the Rome Statute. Unfortunately Bill C-19 does not address this issue. We recommend that a clause be added making it clear that article 30 of the Rome Statute will in all instances be the test for the requisite mental element.
Finally, I offer a thought for the future. Bill C-19 importantly establishes a strong Canadian legal framework for launching criminal prosecutions either in Canada or before the International Criminal Court. Experience in other countries, including the United States, has demonstrated the degree to which civil remedies are also an important and effective tool in taking action against humanity. Canadian law does not provide a civil remedy of this nature.
We're not recommending that Bill C-19 be amended at this time to include civil remedies of this sort, as we believe that would be a time-consuming process. However, we urge the committee and the government to consider further appropriate legislation at an early point.
My final word is to highlight again how important it is that Canada quickly take steps to adopt this legislation and move on to ratify. As we talk today, concerns about impunity are, as always, mounting worldwide in places such as Colombia, Afghanistan, the Democratic Republic of Congo, Sudan, and Russia with respect to Chechnya, to name only a few.
It is often dangerous to take steps to address impunity at the national level, although many courageously do. Last week, for example, we expressed concern about death threats that had been received by Judge Maria Servini de Cubria and a member of her judicial team in Argentina. Judge Servini is in charge of the investigation into the cases of children who disappeared during the years of military government in Argentina.
And elsewhere impunity reigns supreme. In the midst of the ongoing current crisis in Sierra Leone, one clear rallying cry from the Sierra Leonian people has been for the United Nations to bring human rights violators, such as Foday Sankoh, leader of the RUF, to trial on charges of crimes against humanity. At the present time there is no international tribunal that has the power to deal with the atrocities in Sierra Leone, and the world cannot afford to wait any longer.
Thank you.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
[Translation]
Mr. Daniel Turp: Are you going to draft precise amendments, Mr. Neve? Would you be able to do that for the committee?
[English]
Mr. Alex Neve: Absolutely. I can provide further details, yes.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Dicker.
Mr. Richard Dicker (Counsel, Human Rights Watch): I want to thank the committee for allowing me the opportunity to speak with you today about this critically important and most welcome legislation.
It is important to note that Canada issued Bill C-19, as far as I'm aware, on December 10, 1999, which was the 51st anniversary of the Universal Declaration of Human Rights. I think that is not a coincidence. We're most grateful for the linkage the Canadian government has made between this legislation and strengthening human rights.
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I've been following the ICC negotiations for five years. From the
perspective of Human Rights Watch, the early establishment of the ICC
is urgently needed. It bears repeating even to parliamentarians as
knowledgeable as yourselves that the early entry into force of this
treaty is a crucial step in strengthening the enforcement of
international humanitarian law. The ICC, once it is up and running,
will bring justice to victims of genocide, crimes against humanity,
and war crimes. The court will be, we believe, a deterrent to the
commission of these crimes in the 21st century.
While not perfect—no treaty negotiated by 150 governments could be perfect—we believe the ICC treaty creates the foundation for a court that will be able to hold the Augusto Pinochets and Foday Sankohs of the future to account under the highest standards of international justice. In addition, this court, we believe, will strengthen national courts in doing the job they are best placed to do—that is, prosecuting these cases themselves.
This treaty is closely associated with Canada and the Canadian commitment to human rights. I've been involved in the process since 1995, and I could give you, if time permitted, a lengthy list of Canadian lawyers who, whether they represented the Ministry of Foreign Affairs and International Trade, the Ministry of Justice, or the Ministry of Defence, have contributed enormously to this treaty. I can say unequivocably that we would not be in this room today discussing legislation for the implementation of the treaty were it not for the extremely skilful, able leadership of Ambassador Philippe Kirsch, who managed to bring this treaty together in Rome under a great deal of pressure. The need for continued Canadian leadership on behalf of this treaty is still quite real.
I would like to address one of the outstanding issues generated by the treaty—that is, the relationship between this new international court and national judicial authorities. The ICC, according to its statute, is not empowered to substitute itself arbitrarily or easily for the courts of states. In short, the ICC does not enjoy primacy over national courts and will not be a drain to national sovereignty in any way, shape, or form. National courts, if you will, have the first bite at the apple, and the ICC only gets to assert its jurisdiction when the ICC prosecutor has proven that the national authorities are unwilling or unable to investigate and prosecute.
The definition and elaboration of a standard of “unwilling” are set out in article 17 of the treaty. I believe the negotiators set too high a threshold for the ICC to be able to assert its jurisdiction. But I know the reason the threshold was set where it is in article 17, and that was to assuage the concerns of states that the ICC would not be a supranational court. States have many opportunities at different stages of the proceedings to challenge the court's assertion of jurisdiction. There are many safeguards in this treaty on the power of the prosecutor. Time does not permit me to go into them. It must be stressed from a human rights' perspective that the rights of the accused before this court are fully protected according to the highest standards of international justice.
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I want to talk a little bit about Bill C-19. I do not purport to be
an expert on Canadian law. I do agree with the points and
recommendations that previous panellists have made.
I want to focus first on urging the committee to recommend an amendment that the provisions defining the offences committed inside Canada contained in clause 4 of Bill C-19 and the offences committed outside of Canada contained in clause 6 of the bill are integrated. We do not see the need for different definitions. I think my colleague from Amnesty International put it quite well as to the ability to use the standard in clause 6 in terms of providing a basis for prosecution of these offences, whether they were committed in Canada or outside of Canada. Certainly for prosecutions of crimes within the scope of the Rome Statute, the issue of entry into force and a prospective approach does need to be kept into account. We believe the merger of definitions of crimes combines both the flexibility required to encompass developments of international law and the precision necessary to protect the rights of any accused.
I want to address my next comment to clause 8, and I offer this suggestion in a constructive, critical fashion. I ask the committee to consider making a recommendation to amend the provisions contained in clause 8, those being the provisions for the exercise of jurisdiction by Canadian courts. The provisions of clause 8 give Canadian courts jurisdiction on the basis of an expanded active and passive personality principle, but clause 8 falls short of giving the courts of Canada a full-bodied, universal jurisdiction foundation on which to prosecute these crimes.
Specifically, pursuant to clause 8, Canadian courts would be unable to begin an investigation of the late Pol Pot, for instance, unless he happened onto Canadian soil. We feel that this disadvantages Canada and unnecessarily restricts international justice. While clause 8 does implement Canada's commitment to a no-safe-haven policy, it nonetheless fails to go as far as possible and as necessary in limiting the impunity all too often associated with these crimes.
Let me say that I recognize that there are policy concerns that might underlie amending clause 8. I do not believe there is a legal requirement that mandates this restrictive basis. The policy concerns, perhaps a fear that Canada could become a magnet for all kinds of cases with no nexus to Canada that would consume limited judicial resources, are real issues of policy, but I do not believe they are legal requirements. As issues of policy, there are policy means and mechanisms to limit a flood of cases overwhelming Canadian courts. Criteria could be identified by which on the basis of evidence available, witnesses here in Canada, etc., Canadian courts could take these cases. I believe it is manageable.
I cannot conclude my testimony—and I'm moving on from the content of the bill—without commenting on a disturbing fact to many states and certainly to the entire non-governmental community. I say this as an American citizen representing an international human rights organization based in the United States that is cognizant of the special responsibility to engage the Government of the United States on this important issue. But as many of you are doubtless aware, unfortunately, the United States government is opposed to key provisions of the treaty.
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I would suggest that Washington has not yet grasped the developments
of international law and formulated a consistent approach, whether
it's ad hoc tribunals or a permanent ICC. Perhaps its status as the
world's sole superpower is unfortunately influencing its vision and
understanding of the principles of international law.
In any case, while we believe the ICC would be stronger with U.S. government support and we would welcome such support, this support cannot be obtained at the price of the court's essential credibility and effectiveness. The United States government, I'm sad to report to you, is attempting to use the rules of procedure and evidence in order to obtain a 100% ironclad guarantee that no American official ever appear before this court. It does not need to be stressed, but I will stress, that such an exemption for the citizens of one nation or set of nations would destroy the universality necessary for the court to gain broad acceptance and deliver impartial justice. The U.S. efforts, I'm sad to say, undermine the key compromises that were carefully crafted at the Rome conference.
The human rights community looks to the Canadian government, so closely associated and identified with this treaty, to join with the European Union states, the states of the southern African development community, the Caribbean group, the South Pacific forum, and the group of states of Latin America to make clear to Washington in a firm but friendly way that many concessions have been agreed to specifically to address U.S. concerns and that to impose the ability of the state that is not party to the treaty to veto prosecutions of its nationals would cripple this court and risk it becoming a court that is not worth having.
Let me conclude by saying that we believe the early entry into force is imperative. We urge the committee and the Canadian Parliament to take quick action on this legislation and we welcome Canada's continued leadership in this effort.
I thank you.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Ms. Lee.
Ms. Joanne Lee (Research Associate, International Centre for Criminal Law Reform and Criminal Justice Policy, University of British Columbia): Thank you very much, Madam Chairman.
My name is Joanne Lee. I should say straight up, as you'll guess from my accent, that I'm Australian. I am a lawyer who is currently studying at the University of British Columbia doing a master's and a PhD in international criminal law.
Today I'm representing the International Centre for Criminal Law Reform and Criminal Justice Policy, which is based at the University of British Columbia. For those of you who don't know us, we are an independent, non-profit, international institute established in 1991. The current executive director is Mr. Daniel Préfontaine, who is currently in China.
I refer the committee members to the brief I've prepared. I believe it's available in both English and French. I won't attempt to address all of the points I make in that brief. Needless to say, there are more details on the centre.
The international centre has been involved for some time in the establishment of the International Criminal Court and international criminal law regimes generally. We initially assisted the United Nations Security Council and the United Nations Legal Affairs Office by holding a large meeting of experts in Vancouver, which led to the making of many recommendations that are now included in the Statute of the International Criminal Tribunal for the Former Yugoslavia. We have also participated in the Rome conference and sent representatives to three of the four preparatory commission meetings, including myself.
The latest project we've been involved in is a manual for the ratification and implementation of the Rome Statute, which I have been involved in preparing, along with a large number of other people. We decided to do this manual because of the complexity of the Rome Statute and its implementation into national jurisdictions, and also because of the lack of examples of implementing legislation available. We have very much appreciated the availability of Bill C-19 since December, and we have appreciated the example it sets.
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Our target audience is actually quite broad. We are targeting
legislators, parliamentarians, non-government persons, and anyone who
would be involved in the implementation process in a state. These
provisions will require considerable coordination between individuals
working in criminal justice systems and in the military, so it's going
to be a very broad, comprehensive example.
Also, in particular, we have decided to target anglophone and francophonie states in Africa, the Caribbean, and the Pacific that may have particular difficulties in allocating the resources needed to undertake the task of preparing implementing legislation. I believe that Canada has provided an enormous amount of resources to the process of creating Bill C-19, and I'm sure that some other states may not have that opportunity.
The second phase of our project is to actually go to meet with the relevant people in Africa, the Caribbean, and the Pacific to discuss the implementation issues that we outline in the manual and to address any specific concerns they have. CIDA is currently considering a proposal from us.
We have greatly appreciated the financial support of both the Department of Foreign Affairs and International Trade and the Department of Justice in completing this manual.
At present, we are just waiting for my executive director to return from China and for the director of the other organization we've been working with, the International Centre for Human Rights and Democratic Development—which is now called Rights and Democracy—who also has yet to sign off on the final draft. We are planning to have it translated into French so that it's available both in English and in French. We will launch it at the preparatory committee meeting in June.
While we have been researching this implementation manual, we have taken note of the provisions of Bill C-19, and we believe that it effectively addresses all of the main obligations of states parties under the Rome Statute. These primary obligations are as follows, and are on our page 4 for those of you who want to follow this.
First is protecting the privileges and immunities of the personnel of the International Criminal Court, which is article 48 in the Rome Statute. This is covered in clause 54 in Bill C-19. Second is creating offences against the administration of justice of the International Criminal Court, in article 70, paragraph 4 of the Rome Statute, which is covered in clauses 16 to 26. Then there are some additional provisions on proceeds of crime relating to offences against the administration of justice. They are in paragraphs 27(1)(d) and (e) and 28(1)(d) and (e).
We are very happy that the Canadian government has offered to extend the scope of the offences against the administration of justice beyond the very minimal requirements under the statute.
I won't go into the details of all of the other ones, but next there is executing requests for arrest and surrender, including ensuring there are no obstacles to surrender such as immunities under national laws. The fourth main obligation is to collect and preserve evidence for the International Criminal Court. The fifth is to protect victims, witnesses, and their families. The sixth is to enforce fines and forfeiture and reparation orders, including seizing the proceeds of crime.
Bill C-19 provides an excellent example for all legislators of how to implement these obligations. In addition, Bill C-19 proposes to go much further than these minimum requirements, thereby ensuring that the court will be even more effective and efficient.
For example—and this has been quite widely discussed today so I won't go into great detail—the bill implements the principle of complementarity by allowing for Canada to prosecute these crimes. We believe that the provisions on prosecution of these crimes by Canada are also an excellent example for the rest of the world to follow.
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We also applaud the suggestion that a crimes against humanity fund be
created, because this provides again a wonderful example for other
jurisdictions to ensure that money that is intended to be used for the
benefit of victims is managed effectively and responsibly from a
central fund within a country and that it can be paid out to a variety
of persons, as well as to the International Criminal Court.
Bill C-19 has great significance to the rest of the international community, particularly the Commonwealth common law jurisdictions, because, as you probably know, most of those jurisdictions have to create their own legislation prior to ratifying the statute, and many of them have taken a long time to do this. This bill is the first one to be available publicly. We believe New Zealand and the U.K. will be producing bills sometime this summer. Australia, unfortunately, is still considering the timing, scope, and content of their legislation. So Canada is really blazing a trail here in terms of having put so many resources into creating such a good bill.
The target audience for our manual is of course the common law jurisdictions, and many of those are waiting to see what other larger countries are doing in order to be able to use the expertise of other countries in this.
Suggestions have been made by my colleagues here to make some amendments. We would certainly support that sometime in the future there be the creation of a mechanism for granting civil remedies for victims, but we don't believe that at this stage it's important. I think we should wait and see what the rules of procedure and evidence require, because there are substantial rules on reparations for victims.
We would note particularly that article 75, paragraph 6, of the Rome Statute states:
So there is a clear suggestion that states should continue to provide for reparations to victims over and above whatever the International Criminal Court can manage.
The recommendations we wish to make today are very simple. We would recommend that this committee make sure that this bill passes as soon as possible. Because of its significance to the rest of the international community, the sooner we can create this court, the sooner we can start to prosecute and to deter people who are accused of genocide, crimes against humanity, and war crimes. There could be a little bit of fiddling with all sorts of little provisions, but basically we think this an excellent bill and an excellent model. We would also strongly recommend that Canada continue to support efforts to assist other states in other practical ways, such as continuing to support technical assistance projects being developed by the centre and other Canadian NGOs.
Thank you very much.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Baker.
Mr. Donald S. Baker (Individual Presentation): Good morning. My name is Don Baker. I'm not representing an official group. I'm here as an individual. My background is as a publisher, and I am the chairman of Family Communications, which is a Canadian operation that distributes magazines from coast to coast.
I will attempt to précis my written presentation of May 1 by focusing on some of the major issues in layman's terms.
Do you have my presentation? It's called “Comments for Discussion with the Parliamentary Committee”. I understood that it was translated and delivered to you around May 1.
The Vice-Chair (Ms. Colleen Beaumier): It was distributed to our offices.
Mr. Donald Baker: You have seen it. Excellent.
The drafted bill has the worthy stated objective, among others, to implement the Rome Statute of the International Criminal Court. This of course follows Canada's brilliant initiative in coordinating an international agenda for the implementation of that same statute.
I sincerely hope, however, that this committee will not exacerbate an unfortunate situation by passing this bill back to Parliament with its current contradictions. The overriding problem is that the drafted bill treats crimes against humanity that are alleged to have been committed outside of Canada differently than it does the same acts that are alleged to have happened within our borders. Does that make sense to you?
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Let me illustrate this briefly without getting into the details by
referring you to the clause entitled “Offences Within Canada”.
Beginning with subclause 4(1), you'll note that there are definitions
of genocide, crime against humanity, and war crime for crimes
allegedly committed inside of Canada. Then without stopping at this
juncture to study those definitions, we go on to subclause 6(1), where
again the same titular crimes are defined for those who are alleged to
have committed those same crimes outside of Canada.
The drafted Bill C-19 uses the Rome Statute to define the crimes and defences only for those war crimes that are alleged to have been committed in Canada. The bill does not do the same for crimes alleged to have been committed outside the borders of Canada. Thus, the offences and defences defined in the Rome Statute for the International Criminal Court would be used in Canadian courts for what I call insiders, but not for outsiders.
Wouldn't that lead to the likelihood of treating some Canadian citizens differently? Is it our intention that those citizens who are charged in Canada for alleged offences committed outside of Canada are to be treated by Canadian courts as lesser citizens than those who happen to be living in Canada when they committed such alleged acts? If those who were outside the borders when the alleged crimes were committed are not given prescribed definitions for such crimes as genocide, crimes against humanity, war crimes, and command responsibility, but those who are inside are given precise Rome Statute definitions, then only one group has a chance to properly defend themselves. In fact, they have a chance to measure whether indeed they are guilty and even have a defence, while the other group does not have such an opportunity.
Here are some examples of how the offences are defined differently for insiders as opposed to outsiders. The Rome Statute, and thus the drafted insider ruling, says that the crime against humanity allegedly committed must be part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. Our drafted Bill C-19 leaves out the requirement for outsiders and says that the crime must have been committed against the civilian population or any identifiable group of persons. Also, there's no definition of the specific acts in the definition of crime against humanity where that is the basis of an allegation of an offence alleged to have been committed outside of Canada.
It appears that Bill C-19 is drafted in such a way as to enable convictions to be arrived at for outsiders only, without proof that the action taken was part of such an inhumane discriminatory attack as is defined for insiders and those defending themselves under the rules of the Rome Statute. Similarly, war crimes for outsiders lack a clear definition, while war crimes are extensively and clearly defined when the offence is alleged to have been committed inside Canada.
Perhaps the worst affront in this draft is the double-barrelled one. Contrary to the international community's wishes in the Rome Statute, this drafted Bill C-19 would be—and get this one—only retroactive for those alleged to have committed the crimes outside of Canada. How's that for supporting an international statute? As a result, this bill would not be able to convict an insider for an alleged war crime if such an action occurred prior to the implementation of Bill C-19. However, if the act were committed outside of Canada prior to the coming into force of Bill C-19, the outsider could be convicted.
Ladies and gentlemen, the Rome Statute is not retroactive. Why would we treat outsiders differently from the way we would treat insiders or how the ICC would treat a similar case? In my presentation of May 1 I argue why command responsibility should not be charged retroactively. I ask that you review that argument when you have a chance.
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Just as a reminder, judges and jurors sitting today asked to
determine what a person should have known or should have done during a
war at a time none of them experienced would be severely hampered in
attempting to deal out even-handed justice retroactively.
Similarly, the defence of superior orders should not be applied retroactively. The Rome Statute has justly decided to eliminate the defence of acting upon superior orders—“My superior made me do it”. But the statute has done that for the future. They have not attempted to retroactively reverse a defence that has been universally accepted for centuries, nor should we try to do so for outsiders facing our Canadian court.
Certainty of the law protects individuals from unfair application of the law. Judges as well as defendants must know what is prohibited so that all are reading from the same rule book and so that the court can apply the law in the same way for each accused person, whether they are alleged to have committed the crime while inside Canada or while outside Canada.
Would you agree that it is a fundamental principle of criminal justice that the legislation creating an offence clearly set out which acts are prohibited so that all accused have the same opportunity to measure what they are alleged to have done and for the courts to apply the law in the same way for each accused person?
The provisions of the Rome Statute were thought to be fair and just by the international community and by Canada for offences alleged to have been committed within Canada. Why would we now take a position that suggests that the provisions of the Rome Statute are too lax for Canadian courts to utilize as a basis for trying offences committed outside of Canada?
I wish you well with your deliberations.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Madam Lalonde.
[Translation]
Ms. Francine Lalonde: I thank each and everyone of you for your recommendations. I would like to reiterate, Madam Chair, that we would very much like to be given precise written recommendations for the upcoming steps, that will be coming along very soon.
I would like to ask each group that made amendment proposals which of its amendments it deems to be the most important and why. Furthermore, I would also very much like to hear Ms. Lee explain why her organization is recommending the adoption of the bill as is and what she thinks of the various amendments that have been suggested.
[English]
Ms. Joanne Lee: Certainly. First of all, I should probably address the issue of complementarity, which is, as we're calling it, the inside and outside dichotomy about which crimes get prosecuted where.
I'm probably going to just read straight from my presentation on this point. The Rome Statute does not suggest that all states parties are obliged to prosecute all the crimes within the jurisdiction of the court, but it was clearly the hope of those involved in the creation of the Rome Statute that states would be encouraged by their participation in the International Criminal Court regime to address their past failure to take responsibility for prosecuting international crimes in general.
To be fair, throughout this century there has been considerable disagreement in the international community as to which types of conduct are international crimes. For example, a draft code of crimes against the peace and security of mankind was only finalized by the International Law Commission in 1996. The international crimes that seem to be have been the most widely accepted to date are genocide, as defined in the genocide convention, and the grave breaches provisions of the 1949 Geneva Conventions.
Some states, including Canada and Australia, have also had difficulties establishing appropriate legal regimes for prosecuting these crimes that are acceptable to national courts. I refer you to the Finta decision in Canada, and in Australia we had a decision called Polyukhovich, which also brought up the problems with prosecuting crimes from the past.
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Clause 4 and clause 5 adopt the definition of the crimes directly
from the Rome Statute, which represents the consensus of the 120
states that adopted the statute in Rome. That's where they're
committed within Canada. Subclause 6(4) goes further in providing
that these crimes are to be considered as representing customary
international law as from the date of the adoption of the Rome
Statute.
This sends a clear signal to all states that they too should take responsibility for prosecuting the crimes that are set out in the Rome Statute. However—and this is the key point, I think—in order to avoid constitutional problems with the retroactive application of criminal laws within Canada, the Rome Statute offences in clauses 4 and 5 will only become crimes in Canada from the date that the Crimes Against Humanity Act comes into force.
This approach recognizes that not all crimes within the Rome Statute were necessarily accepted as crimes under customary international law prior to the adoption of the Rome Statute, and therefore Canada may not have had jurisdiction to try persons for some these crimes prior to July 17, 1998. In particular, the crime of enforced pregnancy was the one that may not have been acceptable, but obviously in light of what happened in Yugoslavia they wanted to include that as a crime against humanity.
Clauses 6 to 8 address many of the problems with existing provisions in the Criminal Code for the prosecution of international crimes committed outside Canada at any time in the past or future. These have been carefully defined in terms of widely accepted principles of international law. However, it would be completely unrealistic for any legislator to to sit down and make a list of every single crime and at what point it became a matter of customary international law at any single second or minute, or day or year even.
In international law it's fairly clear that from 1945, with the creation of the Nuremberg statute and the Nuremberg principles, certain crimes became customary international law. But it is impossible to strictly set out a list of all the acts that could possibly have constituted crimes under customary international law for the whole of this century.
We say that it solves a lot of problems in this way. I think clearly there is an issue of the suggestion on the universal jurisdiction; that is, where Canada could prosecute anyone who wasn't on their territory who committed a crime that had no connection to Canada. That is certainly a very desirable provision. However, it is the hope of all those working on this International Criminal Court that it will have broad support; that is, that many states will sign on this and there will be no need for Canada to be able to prosecute anyone who comes from anywhere. It would require making a request for extradition.
I would say it's a wait and see provision. I think if the court is not supported widely enough, it would be very desirable in the future for Canada to look into the possibility of being able to ask for the extradition of persons who have committed crimes that are not connected to Canada in any way.
I think it's so important at this stage that we say this bill in its present form, which goes beyond the requirements of the statute and deals with a lot of very complicated issues in a very thoughtful way, should be passed as it is.
I think there was the clause 57 question. I wrote down some of the points that were made here. On the question of “may” versus “shall” in terms of the minister's discretion, I accept the explanation from the persons who drafted this that “may” is an empowering provision. There are several provisions in the statute where the state is allowed to consult with the court before executing a request. If the legislation says the minister “shall”, then this is taking away the minister's opportunity to consult with the court on a number of issues. There are the national security interests, where there is a clear process of consultation.
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Also, in articles 94 and 95, where execution of a request would
interfere with an ongoing investigation or prosecution, the state
would obviously need to consult with the court. Article 94 allows the
state to consult with the court. Article 95 addresses the case of a
request for assistance that's made when an admissibility ruling is
still pending. The ICC must make the ultimate decision, but the state
is allowed to consult with the court. I believe that if you put the
word “shall” in there, this would deny the state the right to
consult with the court when appropriate, particularly on matters of
national security.
The last one that I didn't address is the need for the definition of “surrender”. I think, as it stands.... I'm not a great expert on Canadian constitutional law, I have to say. I understand there are charter issues involved that mean it would be very difficult for Canada to remove some of the rights of persons who are going to be surrendered to the International Criminal Court. I agree with Bruce to some extent that it would be good to have some sort of a definition in there that there will be a slightly different process for surrending a person to the court, just in terms of the fact that there are no grounds for refusal. But in terms of procedure, I understand that under the charter, each person in Canada must have a right of appeal and various other aspects. So I understand, with my limited knowledge and my discussions with the people who have been working on this, that there isn't much of a choice for Canada in terms of changing that extradition process into surrender.
I hope I've answered your questions.
The Vice-Chair (Ms. Colleen Beaumier): Mr. Neve.
[Translation]
Mr. Alex Neve: I believe that I can speak on behalf of my colleagues. We are certainly prepared to make very precise amendment proposals and it is our hope that the committee would adopt these proposals, that we consider to be important. However, we also believe it is very important that Bill C-19 be adopted quickly. If the committee found it impossible to adopt these recommendations without delay, then the most important thing for us would be speedy passage of the bill.
Ms. Francine Lalonde: That is more important than any amendment.
Mr. Alex Neve: Yes.
Ms. Francine Lalonde: That is one answer.
[English]
The Vice-Chair (Ms. Colleen Beaumier): Anyone else? Mr. Baker.
Mr. Donald Baker: May I respond to that comment? Again, I guess I'm looking at it from an administrative point of view.
I think you have a very complicated bill, a bill that affects the rest of our generation. It's not only the international community. If you rush into this, you're accomplishing something very important. You're telling the world, “We're a leader in this. It's important to us. Get on the bandwagon with us.” I can't argue that, and I don't argue that.
What I am concerned about is you have an administrative issue, to find out what's in that bill. If you don't know what's in that bill and if you haven't worked it through carefully, then you're not doing justice to either the Canadian people or the international community.
The Vice-Chair (Ms. Colleen Beaumier): Mr. Cotler.
Mr. Irwin Cotler (Mount Royal, Lib.): The witnesses have offered us a number of important recommendations this morning, specifically the recommendation respecting and including the requisite mental element for a crime. That's in article 30 of the ICC statute. Regrettably, it's not in this bill. I think it would help to offset some of the adverse fallout of the Finta decision regarding the mischaracterization of mens rea.
The second recommendation has to do with the principle of universal jurisdiction in clause 8 for Canadian offences. If the considerations are of a policy character rather than a legal character, that's something we should revisit.
The third recommendation has to do with the integration of clauses 4 and 6 of Bill C-19 to make the domestic and international approaches to criminalization compatible in terms of standards.
The fourth recommendation had to do with article 27 regarding the principle of non-immunity, and the fifth had to do with the refinement of extradition.
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I think these are an important set of recommendations for us to
consider. In that vein, I'd like to put two questions to any of the
witnesses who might wish to answer them.
The first question has to do with the superior orders defence under clause 14. My question is whether you have any concern with that defence, and in particular with paragraphs (a) and (b) of that defence as being arguably overly broad. I should just mention for those who are not Canadians that interestingly enough, this defence is excluded in a section of the Canadian Criminal Code regarding torture, subsection 269.1(3). So that's my first question, on the superior orders defence.
The second question has to do with including something that is not in the legislation. Interestingly enough, here there's a good provision in the present Criminal Code, the precursor to Bill C-19, which has not been included in Bill C-19. I'm referring to the matters.... I'll just read out the provision; it can be found in subsection 7(3.77) of the Criminal Code, which reads as follows, and it speaks for itself:
Should that type of provision be included?
So those are my two questions: one, is the superior orders defence overly broad; two, the matter of this particular provision being included.
Mr. Bruce Broomhall: The two questions are whether the superior orders language of the bill is too broad, and the section from the former legislation about attempting and conspiring.
The superior orders provision tracks the Rome Statute and adds to it something that was intended to be a fix, if you like, for the Finta decision, as I understand it. I'm not sure the sense in which that would be too broad.
I saw the Rome Statute definition as being unfortunate in some respects, in that it allows a potential defence for superior orders with respect to war crimes. It expressly says there's no defence of that nature for crimes against humanity and genocide. I think the principle underlying the particular wording in the Rome Statute was that crimes against humanity and genocide by their very nature would be so egregious that a person would know that these were manifestly unlawful.
So the requirement set out there in clause 14, as in the Rome Statute, the legal obligation, not knowing the order was unlawful and the order not being manifestly unlawful, in a sense says that it's impossible not to know that a manifestly unlawful act was unlawful.
I think in most war crimes, at least of the character that are going to get into the ICC, there wouldn't be any question. They're going to be systematic; they're going to be on a wide scale pursuant to a plan or policy to commit war crimes.
So I'm personally satisfied with the Rome Statute definition. Bill C-19 adds language that was intended as a fix of the Finta case. I've spoken to legal experts on the Canadian delegation about this, and I'm satisfied with their explanation that this accounts for situations in which discriminatory beliefs are widespread or knowledge is widespread in a community. That's welcome.
I do wonder if, as was mentioned in Amnesty International's submission, there will be other situations in which Finta will present problems to us. But I'm satisfied with this myself. I'm satisfied with the scope of clause 14.
Mr. Irwin Cotler: I'm mainly concerned in clause 14 with paragraphs (a) and (b). I don't have any problems with subclauses (1), (2), or (3), nor paragraph (c), only paragraphs 14(1)(a) and (b), just that particular part of clause 14.
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Mr. Bruce Broomhall: That it might be too broad?
Mr. Irwin Cotler: That's right, just that particular paragraph of clause 14. Subclause 14(3) catches the Finta problem, and subclause 14(2) catches the problem of manifestly unlawful regarding paragraph 14(1)(c), but not regarding paragraphs 14(1)(a) and (b). That's my concern.
Mr. Richard Dicker: We took note that in the Rome Statute the superior orders characterization was a step back from the Nuremberg principle and also a step back from what's contained in the statute for the two ad hoc tribunals. On that basis, it is a cause of concern to us. We thought certainly it opened the door to superior orders as a defence, but we did not feel that door was open so broadly that it caused major concern for us.
I would say, without being able to comment knowledgeably in terms of the concerns arising out of the Finta decision, these are issues of some concern. It would take a little bit to make a specific suggestion as to perhaps how to narrow that, so I'd like a little time to think about that. At the end of the day I would say the concern is not so great that in any way it should halt or delay moving forward to the early adoption of the legislation, but I will give that some thought.
Ms. Joanne Lee: If I could just make one quick point, this particular clause is part of the complementarity regime for the International Criminal Court, and we have to be very careful when we are trying to make any changes to such provisions. The language of this clause is that reflected in the statute.
I don't want to make this sound frightening or anything, but if Canada adopts a significantly lower standard for excusing persons who have obeyed a superior order and thus committed a crime, the International Criminal Court could conceivably see that as an attempt to shield the person from criminal responsibility. The Canadian delegation was heavily involved in negotiating the language of this particular provision, and I think it reflects the standard that should be adopted by Canada.
Mr. Irwin Cotler: The issue here is not only complementarity. The issue is that this bill is intended not only for domestic implementation of the ICC statute and complementarity in that regard, but also to address, if not redress, some of the adverse fallout from Canadian jurisprudence that could be problematic in terms of domestic criminal prosecution in Canada relying on that jurisprudence. Therefore it has to serve as a corrective, not only in terms of, as I say, implementing the ICC statute, but in terms of the history of Canadian jurisprudence in this regard.
Ms. Joanne Lee: Yes.
Mr. Alex Neve: I'd make one final very brief point. I don't have it at my fingertips, but as I recall, the Criminal Code provisions dealing with torture prosecutions deal with this in a much wider-reaching sense. I may be going out on a limb, but I think they absolutely deny the defence of superior orders in cases involving the crime of torture. That's the Criminal Code as it presently stands.
Mr. Irwin Cotler: Yes, section 269.1 of the Criminal Code.
Mr. Alex Neve: So there may be some instructive wording there.
Mr. Irwin Cotler: That's right, yes.
Mr. Bruce Broomhall: If I could just back up on that, Alex, it's difficult for me at least, in the abstract, to conceive of a situation in which the kinds of crimes we're talking about here would not be considered manifestly unlawful, even in a situation with superior orders—the killing of civilians and POWs and so on. Most of the situations are fairly cut-and-dried, I would expect. So in that respect, there is cause for concern that these arguments can be made, but the jurisprudence will tell us more.
On the second question about attempting and conspiring, if I could touch on that briefly, that's a question I had in my mind when I first saw this legislation. As you know, in part 3 of the Rome Statute, article 25 in particular, there are extensive forms of participation that give rise to individual responsibility for Rome Statute-ICC purposes. These include ordering a crime, publicly inciting, aiding and abetting, and committing it as part of a group with a criminal purpose.
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Of course for complementary purposes you want to ensure your
legislation allows you to take action with respect to the whole range
of crimes under the Rome Statute. I understand the Canadian
legislation does that, because the forms of participation are brought
into this act through the Interpretation Act, as I understand. I've
been told by the experts on the Canadian delegation—and I'm not
current enough in my Canadian case law—this is okay with the Rome
Statute. But yes, that's something that needs reviewing and ensuring.
I tend to believe it's fine.
Mr. Donald Baker: Sir, you asked a question on amalgamating outside Canada and inside Canada. I think I might be in disagreement with the other panellists, who at least seem to agree that they should be amalgamated in some cases. But it would seem the Rome Statute and a lot of people have internationally attempted to find some definitions.
Our draft suggests the offences within Canada should follow the Rome Statute. I would guess, not being a lawyer and not having studied it from that perspective, if you're going to amalgamate it, you amalgamate under the Rome Statute. I might not have to remind the committee that part of the intent of this bill is that we implement the Rome Statute. I would guess it's the Rome Statute that should be applied if we're going to treat war criminals who commit crimes inside Canada the same as outside Canada.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Bruce Broomhall: Is there time for one more point?
The Vice-Chair (Ms. Colleen Beaumier): Certainly.
Mr. Bruce Broomhall: I should just flag this issue again. The question about whether to merge, like the question on all of these potential amendments, should be always in the context of the value of Canada's early ratification and the value of the early passage of this legislation. But having said that, a discussion would have to occur about how one would integrate, what principles are at stake, and so forth.
Again, integration would be valuable. At the same time, the legislation does a good job in subclause 6(4), I believe, of declaring the Rome Statute crimes to be custom as of July 1998, allowing those definitions to apply both inside Canada and outside after that time. There are good reasons for not applying those previously. Certainly crimes such as enforced pregnancy and so on, just to beg to differ on that issue, were criminal under customary international law prior to that, but they came in under inhumane treatment and other headings.
Nonetheless, for some of the crimes in internal armed conflict, if we're looking back ten, twenty, or thirty years, when did they become part of customary law? That's a little less clear. So you don't want the Rome Statute to be retroactive in its entirety in that sense. Customary law by its nature is evolutionary, and the legislation does a good job of taking account of that.
My only wish would be that some crimes, not in the Rome Statute definitions but as part of giving rise to individual responsibility under customary law, be made punishable within Canada through the integration of the provisions and the broadening of the provisions to allow customary law prosecutions both inside and outside Canada.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Donald Baker: Could I say something very briefly?
The Vice-Chair (Ms. Colleen Beaumier): Very, very briefly, because we're over time again.
Mr. Donald Baker: Okay.
I think it's very clear under subclause 6(4), where it says “Interpretation”, that the Rome Statute only applied after July 1998, and that for us to try to take it backwards is trying to take the international court backwards.
The Vice-Chair (Ms. Colleen Beaumier): Mr. Baker, you had the last word.
Thank you, everyone, for your very thoughtful presentations. We always look forward to seeing our human rights individuals here. Thank you once again.
The meeting is adjourned.