FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 16, 2000

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[English]

The Vice-Chair (Ms. Colleen Beaumier (Brampton West—Mississauga, Lib.): I call to order this meeting of the Standing Committee on Foreign Affairs and International Trade.

We're here for some more study of Bill C-19. Today our witnesses include the Honourable Richard Krieger, president of the International Education Missions' Commission on War Criminals in the United States; David Matas, lead counsel of B'nai Brith Canada; and last but certainly not least—or maybe we've saved the best for last—Warren Allmand, president of the International Centre for Human Rights and Democratic Development.

I think the other two witnesses will understand that Mr. Allmand came from amongst our ranks, so we are quite fond of him and maybe a little partial.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): He broke ranks once in a while, though.

The Vice-Chair (Ms. Colleen Beaumier): Not true, not true. Yes, he is blushing, however.

Mr. Krieger, could you begin with your presentation.

Hon. Richard Krieger (President, International Education Missions Inc.): Thank you very much, Madam Chairman, members of the committee, ladies and gentlemen. It is a privilege to appear before you today to speak in support of the intention of the Crimes Against Humanity Act.

I am Richard Krieger, president of International Education Missions, a U.S. non-profit, bipartisan, non-governmental organization. Our purposes and distinguished board are listed at the end of this testimony. As you will note, our board includes two of the three former directors of the Department of Justice Office of Special Investigations, which deals with Nazi war criminals in the United States, as well as prominent members of the U.S. Congress, former ambassadors, and eminent individuals from other countries.

As a point of information, I have altered the original testimony that the clerk's office was kind enough to reproduce and have ready for you today in English. They did not have enough time to have it put into French as yet, but they've assured me that they will.

The Vice-Chair (Ms. Colleen Beaumier): That's only the changes; the original text came through.

Mr. Richard Krieger: I have been an appointee of two U.S. Presidents, Jimmy Carter and Ronald Reagan, serving under President Carter as an adviser to the U.S. Holocaust Memorial Council, and under President Reagan as the associate U.S. coordinator for refugee affairs and as the executive director of the U.S. Holocaust Memorial Council. I also served President Bush as a consultant to the office of international operations of the INS, the Immigration and Naturalization Service.

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While IEM is a fairly new organization, having been in existence only since 1987, individually many of our members have been involved in the issues concerned here today for decades. I have personally been involved with the issue of bringing Nazi war criminals and other human rights violators to justice since early 1970, and was proud to be part of the process that gave birth to the OSI in 1979.

Along with Elie Weisel, the Nobel laureate, we helped demonstrate to the American people that the Sandinista regime of Nicaragua was deliberately attempting to destroy the Mesquito Indians of that country in a calculated genocide. I was also involved in bringing refugees out of the tyranny and human rights abuse that existed in Ethiopia, Cambodia, Honduras, El Salvador, Vietnam, Nicaragua, Romania, Russia, and Rwanda, and that still exists in Sudan and Iran. Yet to the utter dismay of IEM, our associates, and cooperating agencies, indeed to the revulsion of most Americans, many of the individuals who perpetrated these and other atrocities are availing themselves of freedoms and liberties in both the United States and Canada.

It is for this reason that we at IEM are deeply grateful to the foreign minister and the chairwoman for bringing this matter to the attention of Parliament with the pending legislation, Bill C-19, the Crimes Against Humanity Act. Indeed, we and the international community recognize with some satisfaction the prior attempts of the Canadian government to deal with this issue, and their forthright attitude in acknowledging that more must be done, with the introduction of this bill.

We're also grateful to the Senate of the United States, Senators Leahy and Hatch in particular, for taking such swift action in passing S. 1754 Title III, the Anti-Atrocity Alien Deportation Act, with unanimous consent. We look forward to the U.S. House of Representatives also passing the companion bill, H.R. 3058, which was introduced by Congressmen Foley, Ackerman and Franks, in an expeditious manner.

The U.S. bill, without changes or amendments, would make all perpetrators of torture excludable from the United States. It would make all perpetrators of torture who have entered the United States deportable. If they had become citizens, they would be denaturalized before they were deported. It would make OSI the administrator of the program for dealing with all cases relating to foreign perpetrators of genocide and torture. While not mentioning specific amounts of appropriation, it would provide appropriation authorization for the OSI to accomplish these tasks.

However, IEM and other NGOs have suggested the following amendments. First is to expand the area of foreign perpetrators covered by the act to include war crimes and violators of human rights as well as torturers. Second, in keeping with the International Convention against Torture, is to prosecute all of the above-named perpetrators in the United States where no international or foreign-state mechanism is available for proper impartial and internationally accepted due process. Third is to statutorily establish an inter-agency working group on human rights abusers, torturers, and war criminals in the United States.

I speak of this issue now, as I did when I testified at the hearing of the House of Representatives in Washington, because the United States bill provides great concern for Canada. With the United States bill on the verge of passing and subsequent enactment, these heinous individuals will be seeking some other point of refuge, and what country could better fit their needs than Canada? Like the United States, it provides great freedoms and opportunities for all its citizens and residents. Therefore, ladies and gentlemen, I wholeheartedly call upon you to enact a version of Bill C-19.

However, while actions against crimes against humanity are gaining worldwide support, there is some controversy involving the International Criminal Court, and I would suggest that you consider reviewing the placing of both issues in the same bill. Though no formal extradition treaty exists between the ad hoc international criminal tribunals on war criminals dealing with the former Yugoslavia and Rwanda and the United States, recently the U.S. Supreme Court upheld an appeals court determination that the ratification of the ad hoc international war criminal tribunals was sufficient to provide extradition authority for any war criminal called by either tribunal. Therefore, the U.S. extradited a Rwandan war criminal to the tribunal for trial.

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Further, it is my understanding that the U.S. Department of Justice is investigating cases of torturers already in the U.S. for the prospect of prosecution under the Torture Convention. I would think that Canada would be in a similar situation concerning this convention.

Canada and the United States are working on a program to keep terrorists from crossing their border into the other country. Canada and the U.S. Department of Justice have signed an MOU, a memorandum of understanding, providing for the sharing of information on human rights abusers, war criminals, and torturers. However, I would hope that the process would be expanded to prevent foreign war criminals, torturers, and abusers of human rights from crossing our border in either direction.

IEM holds the position that an inter-agency working group should be statutorily created in the United States to deal with the issue of crimes against humanity as it relates to perpetrators, as opposed to a general inter-agency working group on crimes against humanity. Madam Chairwoman, I recommend that this committee seek the establishment of such a working group as well. This country's actions and potential activities against these perpetrators of malevolence cannot be successfully handled by only one branch of the government. It calls for interaction and coordination on the part of Foreign Affairs, Justice, Immigration, intelligence and national security, as well as the cooperation of the NGOs working on these issues. At the conclusion of my testimony, I have attached IEM's recommendation for such a working group in the United States, and I would request that the chairwoman accept that for review and discussion.

In reviewing Bill C-19 we noticed that the victims themselves were spoken of with regard to receiving some funds from the perpetrator if they had lost property and if a fine had been imposed by the ICC.

We would suggest that the committee might be interested in reviewing United States PL 102-256, the Torture Victims Protection Act, which permits victims or their agents to sue the perpetrators for their acts of torture and killing against them or family members in civil court in the United States. While no amount of money can make up for the bestiality suffered by the victims, having a court rule against the perpetrator and provide some punishment in the manner of a judgment is some satisfaction, though it will never erase the post-traumatic haunting they shall endure the rest of their lives. There are NGOs in the United States that have worked with attorneys to assist the victims after the perpetrators have been found.

Madam Chairwoman, I would request that the committee accept a copy of United States PL 102-256 for review and discussion. It is attached to the testimony.

In addition, while we recognize that a civil court action does not hold the significance of a criminal court finding, we would recommend that if a victim is in civil litigation against an alleged perpetrator, the immigration service or the citizenship unit be enjoined from issuing citizenship status to the perpetrator until the case and its appeals are concluded, and that if the appeals court finds against the perpetrator, he be refused citizenship.

With regard to some of the content of the bill, under the offences outside Canada portion on page 5, in subclause 6(3), “crimes against humanity”, the term “torture” is used. However, there is no footnote to indicate what definition of torture is being referred to, i.e., the one found in the Criminal Code or in the Rome treaty or a different one altogether.

On page 27, in proposed paragraph 76(b), concerning a person being extradited from one state to another who arrives in Canada without prior consent, it states:

(b) in any other case,

—not the ICC—

hold the person in custody for a maximum period of 24 hours pending receipt by the Minister of a request for consent to transit

While the requesting state or entity should not have acted without prior consent, this item does not provide for exigencies or clerical mishaps, nor does it provide the minister's office with any flexibility. I would suggest that you consider revising the terminology to provide a general time period after the minister notifies the state sending the individual through Canada. It would be unthinkable to release an alleged perpetrator because of a bureaucratic mishap.

While expansion of the authority of the ad hoc war crimes tribunal would be a very positive step—indeed, one that we encourage in the list of our purposes—we are concerned about possible politization of an ICC. We call your attention to the recent occurrences when the Hague tribunal received complaints of war crimes by the U.S. accidental bombing of the Chinese embassy and the accidental killing of refugees by NATO warplanes. The prosecutor at the Hague, after investigation, said that these incidents were not war crimes.

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However, as great countries such as yours and mine fulfil their moral obligation to peacekeeping throughout the world, we become open to politized charges against our actions by the very governments and insurrectionists we are seeking to work with. Countries such as ours, France, England, and Germany will have to re-evaluate our international commitments with the enactment of the ICC as it is currently planned by the Rome treaty.

While I do not speak for the United States, I will take the liberty of quoting a May 9, 2000, statement made by U.S. Secretary of State Madeleine Albright:

Our proposal, which we are actively discussing with other governments, does not seek to amend or otherwise modify the 1998 Rome Treaty on the International criminal court. Rather, we are seeking a procedural fix that is consistent with the Rome Treaty and will enable the United States at a minimum to be a “good neighbour” to the Court. The benefits for the Court of this shift in our policy would be significant... the United States would be able to assist the Court in ways similar to our support for the Yugoslav and Rwanda Tribunals.

In addition, the Rome treaty relates only to violations that occur after the implementation of the ICC. What then happens to the perpetrators of the killing fields of Cambodia, the brutality of Uganda, Somalia, Haiti, Iran, and Sudan? We would be forced to seek expansion of the ad hoc tribunals. But then the rub: how far back do we go? The forced movement of a people from an occupied territory is a war crime. Both the United States and Canada might have concern with this issue if the statute goes back to the era of the founding of our nations.

Therefore, I ask that you separate the two main purposes of Bill C-19 into two distinct acts: (a) Canada's enhanced ability to act against perpetrators of torture, war crimes, and crimes against humanity, as well as to exclude them from your shores; and (b) Canada's relationship to the ICC as currently defined by the Rome treaty.

IEM would like to extend our appreciation for your actions in seeking to strengthen Canada's ability to act against some of the most notorious criminals this world has ever known.

I'd like to thank you for the opportunity of addressing this committee, and if you have any questions, I will be pleased to try to respond to them.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

Mr. Matas.

Mr. David Matas (Lead Counsel, B'nai Brith Canada): Thank you for this opportunity to appear before you.

I have a number of very specific points I have to make on the legislation. First of all, we're glad to see the legislation, and we like a number of provisions in it. We like the expansion of the definition of crime against humanity to include torture and sexual violence.

We're pleased to see that double criminality, the need to prove both a Canadian crime and an international law crime, is gone. The case of Finta in the Supreme Court of Canada presented a number of different obstacles to the prosecution of war criminals, and this was one of them, the double criminalities in the code. But what the Finta case said is that it was up to the jury to decide on both crimes, the international law crime and the Canadian crime. Juries are ill-placed to decide on international law, so this bill neatly solves that problem.

It also solves a problem that was a grievous concern of ours in the Finta case, that in effect anti-Semitism itself became a defence of the holocaust, and there's a specific provision in the bill that addresses that.

However, there are a number of suggestions we would like to make about changes in the bill. One is an integration of the two definitions of the crimes. We have different definitions of war crimes and crimes against humanity, depending on whether the crimes are committed in Canada or outside of Canada. It's our view that the definitions should be amalgamated and should be the same whether the crimes are committed in Canada or abroad.

If they're not amalgamated, they should at least have a common temporality. Right now out-of-Canada acts are punishable if they were criminal according to international law at the time of the act or omission. In other words, out-of-Canada acts are punishable retrospectively earlier than the time in this bill. In-Canada acts are punishable only if the acts are committed after the bill becomes law. It's our view that the out-of-Canada provision is the better one and that both in-Canada and out-of-Canada acts should be punishable if they were criminal according to international law at the time of the act.

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I should say with both these points, the trouble with the division that is created now is it leaves room for a legal challenge because of the theoretical inequities that might result, depending on which side of the line you fall, and creates a vulnerability in prosecution.

We suggest there be something like what is in subsection 7(3.77) of the Criminal Code now. It's a provision that deals with aiding and abetting of a crime. We suggest it should be included in the bill. It's in the international law components of the Criminal Code right now.

Five, we'd like to see something like subsection 21(2) of the Criminal Code in this bill for international law offences. Subsection 21(2) deals with common purposes for offences.

Six, there's a problem with the way genocide is legislated, because it's already in the code, and this bill doesn't deal with what's in the code. There's a definition of genocide in the code, which is different from genocide in the bill, and there's “incitement to genocide” in the code, which is also an offence within the Rome treaty and therefore within genocide in the bill. The sentences are different—five years in the code; life in the bill—and it's not clear which sentence will prevail if this bill becomes law. It's our view that the bill sentence of life is more appropriate and should supersede the Criminal Code provision.

Seven, the bill says crimes in the Rome Statute are crimes according to customary international law. Well, of course they're not. Canada cannot legislate international law. International law has a life of its own, independent from what Parliament says, and what customary international law is may or may not be the same as what's in the Rome Statute. Our view is that the Rome Statute was an advance, not a restatement, and that customary international law is not the same as the bill.

But aside from the fact that Parliament is trying to do something it legally cannot do, which is say what international law is, it will create a problem if we're right that the Rome Statute was an advance. It will mean people could be prosecuted in Canada who committed an act that was not an offence where it was committed and at the time it was committed, at international law or at local law. The only way they could be prosecuted is if they arrived in Canada and became subject to Canada's exaggerated reach, because of its assertion of universal jurisdiction in the bill.

This particular provision in the bill should be dropped, or at least it should be stated that the Rome Statute articulates conventional international law, which obviously it does, and not customary international law.

Eight, the bill needs to state what are the mental elements for the crime. It doesn't right now. There is a provision in the Rome Statute, and that deserves consideration. What we have here is yet another obstacle thrown up by the Finta case that's not properly addressed, or not addressed at all. In the Finta case, the majority and Mr. Justice Cory said that basically to commit a crime against humanity, you have to do more than have a normal criminal intent; you have to intend to inflict cruel suffering or death in a knowing, premeditated, calculated way. You have to be, in effect, inhumane in your intent. That's going too far and needs to be corrected.

Nine, we need a provision that says non-state actors and heads of state can be prosecuted for the crimes in the bill. There is something like that in the Rome Statute, but it's not in the bill. I remind you the Pinochet case had to go to the House of Lords a couple of times to resolve this issue. I'd hate to see this issue still left hanging when we have a bill before us that could resolve it.

Ten, the bill has a contorted jurisdictional provision, which is in the Criminal Code now, and we believe it was wrong in the code and it's wrong in the bill. It asks the court to go back in time to find out whose jurisdiction it was at the time. Legally all that's really necessary in international law is to find out what was the offence at the time. It doesn't offend the principle against retroactivity to prosecute someone for an act that was wrong at the time it was committed but from which the person could at the time have found a haven in Canada.

Eleven, even separate from that, the jurisdictional provision is problematic in terms of international law because it's stated in terms of a positive instead of a negative. International law allows for the assertion of jurisdiction except in those cases where it's expressly forbidden. The bill does not take that position.

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Twelve, rather than leave it to a court to decide whether there's jurisdiction at international law, Parliament has the power to assert jurisdiction. The simplest way to do it is just to say there is jurisdiction once the accused is found in Canada and leave it at that.

Thirteen, the bill does re-legislate subsection 607(6) of the Criminal Code, but it creates a problem through that re-legislation for the defence of autrefois acquit, or having been already acquitted. In our view, a person who is represented by counsel only, without being present or punished, should not be allowed to plead autrefois acquit, that he was already acquitted, but this bill does allow that. Secondly, a person who was present and escaped before serving his or her full sentence should also not be allowed to plead autrefois acquit, but this bill does allow that.

Fourteen, the bill allows the accused to rely on Canadian law defences, justifications, and excuses but should not. In our view, this is an unnecessary carryover from the present law, which requires proof of a Canadian offence. The provision could potentially create problems because of, for instance, the Canadian peace officer defence in the Criminal Code, which should not be available but is available because of the carryover of Canadian defences. And this again is another problem thrown up by the Finta case that is not adequately resolved, because the Finta case did allow for the peace officer defence.

Fifteen, the bill contemplates the possibility of the defence of pardon without trial but should not. An example of a pardon without trial from our neighbour to the south is the pardon of U.S. President Richard Nixon by successor Gerald Ford—not for a war crime, I should add, but all the same, it's an example of what could happen. The omission is admittedly in the Rome Statute, but that's no reason to replicate the omission here.

Sixteen, the bill allows for a defence of superior orders but should not. It's not in the Criminal Code for the crime of torture, and it should also be excluded here. Again we have a problem of integration, as with genocide. It just sits there in the Criminal Code without reference to the bill, and the same with torture; it sits there in the Criminal Code without reference to the bill. So if somebody is prosecuted in the torture provision, which is a universal jurisdiction provision, they cannot plead superior orders, but if they're prosecuted for the crime against humanity of torture, they can plead superior orders. So the two provisions haven't been properly integrated. In our view, the proper integration is simply not to allow the defence of superior orders at all.

But if the defence of superior orders is to remain—and now I get to the seventeenth point—it should be put in for the peace officer defence. We've already said the peace officer defence should not be allowed to remain, but if it does remain, it should have a defence of manifestly unlawful, the same as is there for the superior orders defence.

Eighteen, the bill does not say which law is relevant for the manifestly unlawful component of the superior orders defence. The manifestly unlawful provision has three different subcomponents to it, and they refer to different laws in each component. Paragraph 14(1)(a) refers presumably to the local law, (b) and (c) to international law, but the distinction isn't made in the bill, and it's a recipe for confusion. Indeed the Finta case again succumbed to the confusion. The crown tried to prove in that case that the Baky order, which Imre Finta pleaded in defence, was manifestly unlawful according to local law. So this confusion should just be dispelled.

Nineteen, the bill does not say who decides whether an order was manifestly unlawful, the judge or the jury. In our view, it should be the judge. We're dealing with international law, and we shouldn't get back into the problem the Finta case posed of having the jury decide on international law. Again, that's the case with the suppression of riot in the Criminal Code; it specifically says the judge decides on the defence of manifest unlawfulness.

Twenty, the bill adopts parts of the Rome Statute and not others, and in our view the whole bill should be adopted. That's the practice with other legislation Parliament has passed, such as the Geneva Conventions Act and the act implementing the North American Free Trade Agreement. It should just be part of the bill.

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I couldn't help listening to my colleague as he spoke, and I couldn't help but notice we weren't saying exactly the same thing. So I wonder if I might just anticipate a question of yours and comment on his suggestion that we split the bill and have two bills instead. It's our view that the bill should not be split; it should remain as it is.

I do feel he has some legitimate concerns about the way the bill is drafted now, because it does create some problems. Particularly points six and twenty that I already mentioned are legitimate problems that arise from the fact that we have a joint bill and the integration hasn't been properly thought through. So it's a real problem, but it can be addressed without splitting the bill.

One of the concerns I'd have about splitting the bill is it might well delay the Canadian component and leave us with just the Rome Statute component. The Canadian component is an attempt to correct the Finta decision. The Finta decision was in 1994. We're six years away from it now. Six years is long enough to have this problem corrected. Through B'nai Brith, we've already put in a petition against Canada to the Inter-American Commission on Human Rights in Washington, D.C., on the failure to correct the problems posed by the Finta case. So we certainly would not like to see the correction of this problem delayed by one day.

Also, the distrust of the International Criminal Court that my friend articulated is certainly not at the same level in Canada as it is in the United States. It may not even exist at all in Canada, although I recognize it exists in the United States.

Finally, of course, the Rome Statute has as part of its provisions complementarity. In my view, what that means is basically what this bill does: legislating criminalization of the offences in the country. Going along with the Rome Statute doesn't mean just sending criminals to the tribunal established under the Rome Statute. It means prosecuting people in the country of the ratifying state, which is what this bill hopefully sets up Canada to do. If we are having legislation doing that, it makes sense to integrate the provisions about complementarity with the other prosecution provisions in Canada and do them at the same time.

Thank you very much.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

Mr. Allmand.

Mr. Warren Allmand (President, International Centre for Human Rights and Democratic Development): Thank you, Madam Chair.

I want to start by apologizing for not having a written brief. I was only advised on Friday to appear this morning, and yesterday I had a full-day conference on the upcoming elections in Mexico. So I only have handwritten notes, and I'll deal only with the general principles of the bill, not the details, as my friend David Matas has done; he went into great detail on the sections.

Madam Chair, on behalf of Rights and Democracy—and that's our new short name, Droits et Démocratie, Rights and Democracy, since April 1—I'm pleased to support Bill C-19, which would implement the Rome Statute on the International Criminal Court and allow Canada to ratify this important treaty.

On June 9, 1998, just prior to the Rome conference, I appeared before this committee urging Canada to support the creation of a strong, effective, and independent criminal court to prosecute those who commit war crimes, crimes against humanity, and genocide. I argued that the creation of such a court would be a major breakthrough in the protection of human rights and in combating the culture of impunity still existing in many countries.

For too long, despots have murdered, maimed, and raped their own citizens and those of other countries without any accountability, sanction, or penalty. The message was that this was all right if you were a president, a general, or a high official.

On July 17, 1998, after six weeks of negotiation, the countries of the world took the first step in bringing this situation to an end. By a vote of 120 in favour and 7 against, with 22 abstentions, they adopted the Rome Statute on the International Criminal Court. Canada played an outstanding leadership role, first in chairing the like-minded group supporting the court, and then in chairing the committee of the whole, which guided the difficult negotiations to a successful conclusion.

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However, that was only the first step. For the court to become a working reality, it is necessary for 60 states to ratify the statute treaty. As a result, since that time, our organization, along with several hundred other NGOs, has been campaigning for the 60 ratifications and for the required implementing legislation. For this reason, we are extremely pleased with Bill C-19.

Once again, Canada is showing the way by being the first signatory country to table detailed implementing legislation. As of May 9, a few weeks ago, 96 nations have signed the statute and eight have ratified, but none have yet passed the implementing legislation such as you have before you in Bill C-19. It is our expectation that considerable progress will be made this year with both ratification and implementation. We hope to reach the required 60 ratifications in 2001.

I should point out that with the adoption of the Rome Statute, a preparatory commission was established to draft the elements of crime, which is a detailed definition of the crimes in the statute, the rules of procedure and evidence, and the necessary financial arrangements. The preparatory commission met three times in 1999 and once in March 2000, and it will meet again this year in June and November. The completion of these rules and elements of crime we believe will encourage still further ratification.

The Coalition for an International Criminal Court, in which Rights and Democracy is a member of the steering committee, has been active at all these preparatory commissions to ensure that the rules of procedure and the elements of crime are consistent with the statute and not a means of weakening its provisions.

Let me mention once again why such a court is so essential. The idea was first put forward with the creation of the Nuremberg and Tokyo tribunals following the horrible atrocities of World War II. While many felt such tribunals were necessary, which they were, they were also considered tainted in that they were set up by the winners to judge the losers and they were ad hoc. There was a strong feeling that there should be a permanent international criminal tribunal to deal with all war crimes and crimes against humanity, no matter what the country or who the individuals. Unfortunately, this idea was put on the back burner throughout the entire Cold War and only came alive again approximately 10 years ago with the dissolution of the Soviet empire.

The justification for such a court remains stronger than ever, with bloody massacres and massive human rights violations taking place in Vietnam, Cambodia, China, Rwanda, Somalia, Uganda, Chile, Latin America, South Africa, and the Philippines. Recently we have witnessed the armless victims in Sierra Leone, the forced displacement of peoples in the Sudan, and the eviction and killing of farmers in Zimbabwe. The establishment of the special tribunals for Rwanda and Yugoslavia, while necessary, were ad hoc, resulting in uneven justice when you consider that the war criminals of certain other countries are not punished at all.

The accountability for such crimes should not be left to the political sentiments and veto of the Security Council. Consequently, there is a need for a permanent International Criminal Court. While the Rome Statute of the International Criminal Court is not perfect and did not give us all we asked for at the time of the negotiations, the vote on June 17 gave us more than we expected three or four years ago.

First, the jurisdiction of the court will apply to war crimes, crimes against humanity, and genocide. The statute also lists aggression as a crime, but this offence will only apply once a definition is agreed to later by the states parties.

Second, investigations and prosecutions can be initiated by a referral from the Security Council, from a state party, or, by the independent prosecutor acting upon his or her own initiative, from any source, but the prosecutor must go to a pre-trial chamber to proceed further.

Third, when the investigation is initiated by a state party or the prosecutor, one of the states to the action must be a state party—or give its consent. The state party must either be the state where the crime took place, meaning the territorial state, or the state of the nationality of the accused, the nationality state. This does not cover states that have custody of the accused—the custodial state—and states of the nationality of the victim. These preconditions are a step back from the principle of universal jurisdiction that was recommended by the coalition of NGOs.

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On the other hand, the Rome Statute provides for the principle of complementarity, by which states are urged to legislate that these same crimes under their domestic law and to prosecute such accused individuals in their domestic courts. The International Criminal Court will then only take jurisdiction if the state in question is genuinely unable or unwilling to proceed with the prosecution. This is what Canada is providing for in Bill C-19.

The court will have jurisdiction over war crimes and crimes against humanity for internal as well as international conflicts.

An investigation can be delayed by the Security Council, but does not require its prior authorization, which, by the way, was a proposal put forward by some states but turned down at the Rome conference.

Finally, states parties are obliged to cooperate with the International Criminal Court in carrying out its functions and in enforcing its orders. Once again, Canada is providing for such cooperation in Bill C-19.

Bill C-19, as you know, is the principal legislation for implementing the Rome Statute in Canada, but some of the statute's obligations were implemented by the amendments to the Extradition Act in 1999.

Generally speaking, we are pleased with the provisions of Bill C-19. Not only does it enact in Canada the crimes set out in the Rome Statute—David says not all, but it's a good deal of them as far as I can see—but it also provides, in clause 8, for universal jurisdiction over those who commit those crimes outside of Canada. Furthermore, under clause 48, no person can claim immunity when there is a request for his or her surrender to the International Criminal Court, and the bill provides for Canada's full cooperation with the court.

My only reservations with respect to the bill are the following, and I would urge the committee to check into these matters with the officials of the two departments before they vote clause by clause.

The first reservation is this: are non-state actors such as corporations covered by the bill? David referred to this as well. In other words, if a Talisman cooperates with a state in committing war crimes or crimes against humanity, would that corporation be covered? There is some doubt, although some experts say it is covered. I would like you to check that out, because I'm not certain.

Secondly, does the bill fully apply to those who aid and abet, who are accessories to the fact or accomplices, to the same extent as the provisions of article 25 of the Rome Statute? I think it's extremely important that our aiding and abetting accomplice provisions for this bill be consistent with article 25 of the Rome Statute.

Third, I ask you if it's not preferable with respect to the International Criminal Court to always use the term “surrender” rather than the term “extradition”, since several countries of the world have constitutional restrictions against the extradition of their nationals.

I would say to you that if any of these matters are not properly covered by the bill, I would suggest amendments during the clause-by-clause. I'm sure the government, which wanted to have the best possible bill, would not want any gaps that would leave open some of these matters I've referred to.

In conclusion, Madam Chair and members of the committee, I urge you to pass the bill but to check on the points I mentioned. Once again, I regret that I didn't have the time to prepare a proper written brief for you today, but I'll be pleased to answer questions on the bill.

I might say that our centre, along with another in Vancouver, is preparing a manual for smaller francophone and anglophone countries in Africa and the Caribbean to help them with the implementation and the ratification. That manual should be ready soon. Thank you.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

Mr. Obhrai.

Mr. Deepak Obhrai (Calgary East, Canadian Alliance): Thank you, madam.

Thank you very much for your brief. Mr. Matas very quickly picked up the point of disagreement between Mr. Krieger and you on a different view on your own statute, what you are recommending. Of course you did answer some questions, but I would like Mr. Krieger to respond to that specific issue.

After I've done that, I want to go... This is to all three of you. I think one of the major concerns that come around here is Canadian sovereignty and the laws of Canada and the ability of Canada itself and the Parliament of Canada to maintain the democratic voice of the Canadian people. How much infringement is there on that? Obviously if you look at the one example you give about this case in Hungary—

• 1025

A voice: The Finta case.

Mr. Deepak Obhrai: The Finta case. I'm sorry, that was in Mr. Matas' brief. I think that illustrates the point that's of concern to Canadians and many of us, including my own party. Of course that goes to what Mr. Allmand said in his statement about Zimbabwe and the killings of the white farmers in Zimbabwe. Many would argue that is breaking the laws of the country, and those who committed those crimes should be under local law. I think that's one of the major concerns that are flowing in. Perhaps you'll want to comment on that.

Mr. David Matas: In terms of the issue of sovereignty, we've signed the treaty. I suppose any time we sign a treaty, we agree to do something, and by signing a treaty we tie our hands, because we can't break the treaty any more. Every time we sign a treaty, it's a limitation on our sovereignty in that respect. But I don't think you could say Canada should never sign any treaties. I don't think you would take that position.

Mr. Deepak Obhrai: I'm not saying that. The glaring example of the Rome Statute, which you are trying to amend... in this quote here. Both of you have a different opinion, one, because of the time constraints. How far back do we go, as was indicated?

Mr. David Matas: I think we have a common concern, which you've articulated in different ways. But that concern, as I see it, is not as a result of the Rome treaty; it's a result of our going beyond the Rome treaty and doing something we're not obligated to do. That's the problem.

As my colleague points out, the Rome treaty obligates us to prosecute the offences in the treaty in the future, from the time the statute comes into force. But what we've done by this bill is provide for the prosecution of those offences, as of July 1998, first of all, and secondly, provide for the prosecution of those offences even for people who have committed acts in territories of states that have not signed the treaty and who are nationals of states that have not signed the treaty. In other words, we are criminalizing behaviour in Canada, or for people who arrive in Canada, that is not criminalized by their own statute.

That's wrong. It's not wrong because it's an abdication of sovereignty, because it's not something we promised to do in the Rome Statute. It's wrong precisely because we haven't promised to do it in the Rome Statute. So we've created the problem of generating a crime in this bill that was not wrong at the time and place it was committed. It only becomes wrong because somebody shows up in Canada and we can get them. That's the problem.

Mr. Deepak Obhrai: Perhaps Richard would like to comment on that issue you have pointed out.

Mr. Richard Krieger: I apologize. I didn't hear you too well. I have a problem with hearing.

One of the things we specifically are doing in the United States is not establishing a date going back on the incident, because we feel there were so many events that occurred in the past that have to be dealt with, and individuals who we know are in the United States now who have perpetrated some of these acts. We are establishing this legislation, not saying that the act has to be at the time of the implementation of the legislation, but just indicating that any of the perpetrators who participated in these acts are covered by the bill.

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Mr. Warren Allmand: Madam Chair.

Mr. Deepak Obhrai: Yes, go ahead.

Mr. Warren Allmand: I wanted to comment on the question with respect to sovereignty. State boundaries should never protect people who commit genocide, crimes against humanity, and war crimes. The very idea that you can hide behind state boundaries or use state sovereignty to permit you to commit these crimes is an outdated notion. Sovereignty is not an unlimited concept. We limit it when we join the United Nations, when we agree to the Charter of the United Nations, and when we agree to many other international conventions.

The crimes and the rights that are in the Universal Declaration of Human Rights are universal rights, and those who attack those rights, whether through genocide, crimes against humanity, or war crimes, should never be protected by state sovereignty. As a matter of fact, the new policy on human security that's being promoted by Canada and other countries of the world recognizes that the international community has a right to intervene when the security of individuals is being attacked.

Mr. Deepak Obhrai: Mr. Allmand, nobody's talking about protecting—

Mr. Warren Allmand: I misunderstood your question, then.

Mr. Deepak Obhrai: I think you are going in the wrong direction.

What we are trying to say is that there are laws in this country made by parliamentarians who are held accountable, and if they try to protect those who are committing crimes, they will be held accountable. I think you are going off on the wrong track when you say... What I am trying to say is that we have parliamentarians here, elected representatives here, who should be held accountable to the same goal—the goal of bringing those who commit crimes out here to justice. Nobody's denying that fact or saying they should escape justice. The question here is the implementation, the way to achieve that goal of bringing them to justice.

Mr. Warren Allmand: I don't understand. Are you against some part of the statute or some part of Bill C-19?

Mr. Deepak Obhrai: No, we are trying to balance this thing as to how much of our... somebody from outside is going to take over. That's what many of the questions that have been raised are about. As a matter of fact, even the Ukrainian Congress has—

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

Mr. Deepak Obhrai: Let me finish.

The Vice-Chair (Ms. Colleen Beaumier): We're going to have to deal with this in the next round, because the time is up.

Mr. Turp.

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): First of all, I would like to thank the three witnesses appearing this morning to help us understand this bill and also, maybe, find ways to improve it.

Mr. Krieger, I have only one comment. I think that it's understood here that the International Criminal Court is a good thing for the international community and that we must absolutely implement these provisions by enacting a statute. You are giving us a little bit of advice that we might take, but since you do exert some influence in U.S. circles, I would appreciate it if you would invite your government to accede to the Rome Statute because this treaty is extremely important for the future of this community. If the U.S. do not accede to this treaty, it will diminish the significance of the Court which is such an important institution being created by the international community. That was my first comment. You may want to respond to it later.

Mr. Matas, while you have made several points that we will be considering very seriously, as your recommendations and those of B'nai Brith are quite worthwhile, I do have some questions about your suggestions.

The first one deals with the structure of the bill. Mr. Krieger briefly touched on this issue, but could we consider structuring the legislation slightly differently? Could we have one part to implement the Rome Statute that would contain provisions specifically implementing the treaty clauses, and another part to amend the Criminal Code in order to bring the existing provisions in line with the new ones that have to be enacted for the sake of complementarity, as you have mentioned?

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You say that the present structure is fine, but that we might envision a better way to implement both types of responsibilities, that is the requirement to cooperate with the court and punish all crimes against humanity that will have been committed after implementation of the convention, and to punish these crimes against humanity regardless of when they were committed and of whether or not the convention has been implemented? This is my first question and it came to me because you suggested in your presentation that the whole text of the convention should be incorporated into the bill and not just some specific provisions, as the bill presently does in its schedule.

My second question concerns non-state actors and heads of state. You have made a very specific suggestion on this issue. I would like you to elaborate on what we should be doing. In fact, I would like to know what you are expecting us to do about the immunity of heads of state. Last week, I asked officials from Foreign Affairs and Justice how immunity was going to apply to heads of state while they are on Canadian territory. In your opinion, should we have the right to arrest and prosecute a serving head of state while he is on our territory, for example to attend a Francophonie or Commonwealth conference? This is my second question.

My third question is more technical. I'm talking to the lawyer now. Personally, I believe that the treaty is codifying customary international law. You're suggesting that it goes even further, that it is an advance. I want to know why you claim that it is not incorporating customary law, but rather progressively codifying international law. I still have many other questions but I'll keep them for later.

[English]

Mr. Richard Krieger: Let me respond first to your statement.

I think what is necessary is conversation between like bodies to discuss this issue, and since you are very concerned with the implementation of the ICC, and the United States, both the administration and Congress, has some difficulty with it, I would think you might want to enter into discussion with them at your levels, both with the international committees of Congress and the foreign affairs office with the Department of State, to find out how an agreement can be reached.

I think, in essence, everyone feels the ICC is a necessary establishment. I think the concerns of politicization, as well as some other concerns held by the U.S. government, should be addressed and discussed. And the only way you can best understand how the United States feels, and they can understand how you feel, and some amelioration be perhaps worked on, is to sit down and discuss it. Before going further, where sides really are drawn and are getting deeper and deeper, I would think that would want to occur as soon possible, sir.

David.

Mr. David Matas: I realize you may have more questions than the three you posed to me, but the three you did pose are more than enough for me to try to answer right now.

First of all, in terms of the structure, yes, I think it can be different, and indeed I suggest it would be different. But I wouldn't suggest another division, which I understood your question to be—just divide it in a different way, perhaps temporally as opposed to geographically.

• 1040

In my own view, everything should be integrated. After all, because of complementarity we are going to be prosecuting in Canada for the Rome Statute crimes as well as for the crimes that we theoretically have the power to prosecute even now under the Criminal Code. It would be needlessly complex and confusing to divide up crimes against humanity and war crimes so we have two different definitions perhaps divided in a different way from what we do now.

The big problem with the bill now is that first of all, as I mentioned, it doesn't have the whole statute. It only has part of it. Secondly, it says that their own treaty is customary international law instead of conventional international law, which I'll get to in a moment because you asked me about that as your third question. I think that's a big problem. If those two problems are resolved, you could integrate the whole system quite nicely. It wouldn't be complex.

In terms of non-state actors and heads of state, what precisely do I have in mind? That's actually fairly simple. What I have in mind is article 27 of the Rome Statute, which I've reproduced in my brief and I shall read to you. It says:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

So in answer to your specific question about a visiting head of state, the answer is yes, not only can we prosecute by this Rome treaty, but we've also obligated ourselves to prosecute or at least hand over to the court, and with complementarity that means prosecute here as well. The problem this bill poses is that it doesn't deal with the issue. What we're going to be left with, as has happened in Britain—admittedly, a past head of state as opposed to a present head of state—is a potential prosecution with an unresolved legal issue. This is your chance to address it, and I invite you to do so.

In terms of the last issue of customary versus conventional, what was the point of all these negotiations of Rome if it was already customary international law? What's the point of trying to get people to sign the treaty if it's already customary international law? The whole point of the Rome negotiations and the whole point of trying to get people to sign the treaty is to advance the law to get something more than we have now.

Take something I don't particularly like, the three-year opt-out for war crimes if you sign the treaty. I don't think anybody should opt out. But suppose somebody does. Do we say it doesn't matter, it's customary international law? You're caught anyway.

Can we today prosecute under our current Criminal Code a visiting American head of state because even though they haven't signed the treaty and they have no intention to do so, we say it's customary international law? I would think not. It's an over-reaching to suggest that what we've spent so much time and effort to negotiate and to try to get states to adhere to is already the law anyway.

Those are my answers.

The Vice-Chair (Ms. Colleen Beaumier): I'll tell you what the situation is. The bells are going to ring in about five minutes. It's a half-hour bell. However, if there's a quorum, they can call the vote at any time. So when the bells go I have to adjourn the meeting.

Mr. Warren Allmand: I see. I wanted to respond to Mr. Turp's question.

The Vice-Chair (Ms. Colleen Beaumier): Unless Mr. McWhinney would like to continue on this...

Mr. Ted McWhinney (Vancouver Quadra, Lib.): I'd like to get some things on the record very quickly if I can.

The Vice-Chair (Ms. Colleen Beaumier): Mr. McWhinney.

Mr. Ted McWhinney: I wonder if I could get on the record very clearly on this. We signed the Rome treaty and there's no issue on that: Canada's policy, signature, ratification, implementation. I don't know whether I understood him correctly, but Mr. Krieger has raised issues suggesting we should consult about difficulties. We have no difficulties. We have made the political decision to sign and ratify. That's our policy. It's a leading part of it and we will implement fully...

I would say we recognize political difficulties in the United States, and that's a matter of American judgment, but there is no need for us to be in lockstep with the United States on this. Our policy is clear and unequivocal.

• 1045

In fact, on one specific point I raised with the legal adviser in the early hearings of this committee, I asked him to follow up his answer with a written response, which, by the way, we haven't had, but I assume we'll get that soon: if it was an instruction to Canadian military authority during the Balkan operations that they were subject to national law on the jurisdiction of the ad hoc tribunals. I think that's a very basic issue of policy. Whether of course a substantive case could be made up that a breach of international law occurred is another matter, but subject to the jurisdiction... For example, if the Geneva protocols on aerial bombardment create jus cogens, then of course what is referred to as accidental would clearly come within the substantive application of the protocols.

The prosecutors ruled, as I see, on the substantive grounds that the issue isn't met, but as far as Canadian policy is concerned, signing ratification, full implementation, is our policy and there's no going back on it. We don't have the problem of the labour conventions case with the Rome treaty because of course the legislative power to implement a treaty is fully within federal power. We don't get the labour conventions problem of the division of implementation power between the provinces and the federal government.

Am I'm correct, Mr. Allmand and Mr. Matas, that this would be your position?

Mr. David Matas: That's my position. But your mention of the labour conventions case reminded me of another problem this bill presents. The torture provisions of the Criminal Code are international law offences, but they're prosecutable by provincial Attorney General, not by the federal Attorney General, whereas the torture or the crimes against humanity part is prosecutable by the federal Attorney General, not the provincial Attorney General. So not only do you have two offences that are basically the same with two different defences, but you also have two different prosecutors. That really hasn't been integrated either.

Mr. Richard Krieger: It was not my intention to indicate or to state that Canada and the United States had to be in lockstep with each other. I was trying to answer the gentlemen on how best they might be able to work out any differences if there was such an inclination.

Mr. Ted McWhinney: I'm not being critical of the United States. One recognizes the problems and the charms, of course, of the separation of powers American-style. We certainly don't want to intrude into U.S. domestic policy.

Mr. Matas, would your particular point suggest that perhaps it would be appropriate to consider, then, as a remedy, the creation of some sort of special prosecution under the role of the federal law in the implementation of international obligations? I think it would be worth an assertion, a testing of federal legislative power here in Canada. That issue was not addressed by the Privy Council, obviously, in labour conventions in 1937, but I see no reason we shouldn't re-examine that in the year 2000. Do you have that sort of thing in mind?

Mr. David Matas: I wouldn't go as far as that, because that potentially allows for prosecution for, let's say, environmental offences that are signed by treaty.

Mr. Ted McWhinney: The Rome convention substantive offences?

Mr. David Matas: The Rome convention, I would agree... The reason the province gets involved with torture is simply because of its responsibility for the administration of justice, and for no other reason. These are very technical, specialized areas. In the past we have suffered from a lack of specialization both among the prosecutors and, regrettably, on the bench as well. We need to build up a specialist core in this area. As long as we disperse the prosecutorial power among the provinces, we're not going to do that.

• 1050

The reality is, we've never had any torture prosecutions, and it's not because of the Finta problems. The Finta problems aren't there for the torture crime, because the defence of superior orders is not there, and the Finta case tacked onto that. It appears that the lack of prosecution for torture is simply the result of the lack of specialization, so if we want to make that torture provision effective, it should be part of the federal jurisdiction to prosecute.

Mr. Ted McWhinney: Does Mr. Allmand agree with you? And secondly, with your answer on the General Pinochet case, from a question of Mr. Turp's, which was that you saw no problem in full subjection of the accidental tourist—or accidental medical patient—who happened to be a head of state... You saw no difficulty in subjection to Canadian law in respect to the substantive aspects of the Rome convention.

Mr. Warren Allmand: In my view, that's covered by clause 8 in paragraph (b).

Mr. Ted McWhinney: Yes.

Mr. Warren Allmand: I just want to say on some of the points you raised that I would be totally opposed to dividing this bill in two or to putting forward a new structure for the bill. It's always possible to have a better bill in any area of the law. I've never seen a perfect bill in all my years in Parliament.

I would not amend this bill unless you see a real flaw in the bill. I've mentioned two or three areas, but as for simply tinkering with it at this particular time to make it a little bit better here or there or more beautiful in one way or another, I would be opposed to doing it, because we're trying to show leadership on ratification internationally, and on the whole, the bill is a good bill. To divide it or to put into force a new structure that might make it a little more perfect is not, I think, called for at this time.

There may be areas where amendments are necessary: make those. But simply to make amendments to keep on making it a little better and maybe to deal with something that might happen is, I think, a tricky business at this stage of trying to get this bill through. And I would like to see it through soon.

Mr. Ted McWhinney: And on the general—

Mr. Warren Allmand: I think it is covered by the bill under paragraph 8(b).

By the way, as for the point on the distinction between customary and conventional international law, customary international law applies to all states whether they're states parties or not. That's my understanding of customary international—

Mr. Ted McWhinney: Unless and until it's changed by convention.

Mr. Warren Allmand: That's right, but the convention, the Rome Statute, would only apply to those who are states parties or signatories to the extent of what's written in the law. The customary international law would apply to them all and could be brought into universal jurisdiction by provisions of this bill.

Mr. Ted McWhinney: And customary international law insofar as it is continually evolving would apply in its continually evolving state.

Mr. Warren Allmand: Exactly.

Mr. Ted McWhinney: You would agree, Mr. Matas?

Mr. David Matas: Well, the problem the bill poses is that it states specifically as an express provision that the Rome Statute is customary international law, which it isn't. That's the problem—

[Translation]

Mr. Daniel Turp: There is no consensus on that.

[English]

Mr. Ted McWhinney: Does it matter? If customary law becomes treaty law, what's the problem?

Mr. David Matas: The problem is for the non-signatories.

[Translation]

Mr. Daniel Turp: Indeed,

[English]

for that retroactivity.

Mr. Ted McWhinney: Well, it's also argued, though, that a convention with a sufficiency of ratifications... This was the argument on the 1977 additional Geneva protocols. A convention with sufficient ratifications may become—and this, I think, was originally Judge Lach's dissenting opinion in North Sea Continental Shelf, but is fairly generally accepted now—binding by the sufficiency of state ratifications on non-signatories.

Mr. David Matas: I think that's right. But what the bill does is say that it's customary from July 1998 when there are no signatories. If there are 160 or 180 signatories, then we could say it's customary, but not when there are no signatories.

[Translation]

Mr. Daniel Turp: I don't agree with you. A treaty can codify international law. That's the North Sea Continental Shelf decision. Many scholars claim that the Rome Statute is codifying customary international law and I believe that you differ on that issue. You submit that it is progressively codifying international law, but I think that a majority of authors are of the opinion that a good number of the substantive provisions of the Rome Statute codify customary international law as it now stands.

[English]

Mr. David Matas: But it's not for Parliament to decide that. That's a matter of international law.

[Translation]

Mr. Daniel Turp: No, but as a parliament, we can take note of this.

[English]

Mr. David Matas: But if we're the only ones that do it, then we're out of step.

Mr. Ted McWhinney: If we are to legislate and implement a treaty and it incorporates customary law, it's for us to decide the extent of the cooperation of customary law.

• 1055

Mr. David Matas: Yes, we can decide what we want to legislate, but we can't decide what customary international law is.

Mr. Ted McWhinney: Oh yes, we can. Our judges may be having to make that decision every day. In a certain sense, in the General Pinochet case, the very conservative House of Lords went into that domain.

The Vice-Chair (Ms. Colleen Beaumier): As interesting as this is, and it really is interesting, and I would love to let you go on... However—

Mr. Ted McWhinney: We've made enormous progress, Madam Chair—

Voices: Oh, oh!

The Vice-Chair (Ms. Colleen Beaumier): It's a wonderful debate. However, it is Mr. Obhrai's turn.

Mr. Deepak Obhrai: This is the whole essence of the debate that is going on, the whole essence of this bill, the concern of this bill, which is customary law coming in and how much sovereignty we are going to give it, so I want to carry on with this debate.

Mr. McWhinney and Mr. Turp, you can interrupt or you can ask any questions at any time. Let's keep this open. This is what we are aiming to see here: at the end of the day, what are we signing on to here?

You are giving your point of view, which is fine. We as parliamentarians have to also look at the fact, being elected officials, of what direction we are going in.

Go ahead with this debate. I am interested in going back to the same question, because when Mr. Allmand brought the issue of Zimbabwe into this thing, it then raises a question for me, you know, in your presentation here.

Now I'm not going to say there is nothing wrong in Zimbabwe. There are people who died in Zimbabwe. But the local laws of that country should be prevailing to do that... It creates a question when you raise issues like that. There are other issues, important issues like Pinochet and this type of thing, but when you touch on those things, it raises question marks in the eyes of parliamentarians.

Mr. Warren Allmand: Well, I would argue that when heads of state or governments encourage massacres within their boundaries, this could constitute a crime against humanity, as it did in Rwanda. There, the authorities allowed the public broadcasting to run amok, encouraging the massacre of a minority race.

I'm not saying that it went that far in Zimbabwe, but for the president of the country or of any country to encourage violence against a minority is of the nature of a crime against humanity, and once it's adjudged to be a crime... I mean, it's a matter of proof in a court, but I don't think that state sovereignty should protect... There shouldn't be laws that allow presidents and governments to encourage violent attacks on minorities and then be granted impunity; I think they should be answerable for those kinds of crimes.

Mr. Deepak Obhrai: But the question would be, for argument's sake, that a dictatorship or a military rule does not have the law behind it legitimizing it as the wish of the people. They have usurped the constitution. I may find similar ground with you in saying that the state may be protecting that, but where there is legitimacy for the government, for the elected government chosen by the people, by the majority, holding their own constitution, I think that's where the area comes into play.

Mr. Warren Allmand: Even there, sir, you can have elected in a country a majority that rides roughshod over a minority. In this country, in Canada, the aboriginal people would never achieve a majority anywhere, in any province or in the country, yet I think it would be wrong—and I'm not suggesting it would ever be done, but... If the majority in any country, even if they do it through their constitution, takes measures to provoke hatred and violence against their minority, it's a crime, in my view, against humanity.

Mr. Deepak Obhrai: Are you suggesting, to some degree, that the previous leaders of Canada can be put in front of this court?

Mr. Warren Allmand: No, I'm not suggesting that. But I'm suggesting that simply—

Mr. Deepak Obhrai: Part of the government are saying that, but it's part of the debate—

Mr. Warren Allmand: Countries that are fairly elected according to their constitutions... That does not exempt them from crimes against humanity.

Mr. David Matas: If I may just follow up on that, you invited us to continue the previous debate—

Mr. Deepak Obhrai: Yes, please do.

Mr. David Matas: —and allow me to do so.

I can see a debate between us about what is customary international law. Mr. McWhinney rightly pointed out that judges can decide what customary international law is, and he asks, if judges can do so, why not Parliament?

• 1100

I would answer, first of all, that judges on international law are not bound by precedent, because there is no precedent in international law. Secondly, judges hear legal argument, hear both sides and then decide, but Parliament is not doing that. This is not a court.

I would be happy to go to a court with Mr. Turp. We could argue. I could take one side, and he could argue the other. There would be a judgment by a judge, and that would be binding. But that's not what's happening here. You're making a political decision, not a legal decision based on legal argument, and it would be our position that it's inappropriate for you to do so.

If you really think this is customary international law, I invite you to ask the government to make a reference to the court about what's customary international law at the time, and the matter could be decided, and then that could be incorporated in the legislation.

[Editor's Note: Inaudible]

Mr. Ted McWhinney: ...too, in their historical origins, so it is within their competence, just as they decide on the common law, what is customary international law, which is of course, by rule of the common law, part of the common law of Canada.

Mr. David Matas: I realize that.

Mr. Warren Allmand: We're not going to decide this today.

The Vice-Chair (Ms. Colleen Beaumier): If we pass this law and we ratify, does this mean that someone who comes, say, to visit Canada—and I can name a couple of countries, maybe China and India—and there has been evidence brought forward to show that these individuals were part of a regime or personally responsible for extrajudicial executions, for one thing, or torture, does that mean they can be held in Canada and tried?

Mr. Warren Allmand: Yes, they could, if they committed, under clause 6, the offences outside Canada portion, genocide, a crime against humanity, or a war crime. Then you look at clause 8, and of course, paragraph 8(a) has a lot of qualification and refers to the person being a Canadian citizen, but paragraph 8(b) says of that person that:

8.(b) at the time the offence is alleged to have been committed, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the offence on the basis of the person's presence in Canada and, after that time, the person is present in Canada.

I believe if it's a clear-cut case where the person, a Pol Pot, was visiting Canada, with this provision they could arrest him.

I think they could arrest Pinochet too. They'd be open to some interpretation, but it's my view that they could.

Mr. Deepak Obhrai: But you've made a good point, and I'll carry on with your question, which is from these democracies that come in... So who goes and accuses them and says, “You may represent and got a majority out of this...”? Somebody goes to the international court and accuses them. And we have a lot of people doing that.

Let's make a nice clear dividing line here. You're not going off to where there's solid evidence of people like this; we're talking about what madame just indicated here. So that is a concern on this issue.

Mr. David Matas: There's no private prosecution in the International Criminal Court, or according to the Rome treaty, and according to this Criminal Code provision. Anybody can go to a prosecutor and say, no matter what... but that doesn't initiate a prosecution.

Mr. Ted McWhinney: You mean, national court. The international court would not apply. Your question is relevant in relation to national courts, but not to international.

[Translation]

Mr. Daniel Turp: In the same vein, Mr. Matas—

[English]

Mr. Matas: Sorry, he was talking to me.

[Translation]

Mr. Daniel Turp: This issue is important, Madam Chair. I raised it last week and Mr. Robinson's answer gave away the manner in which the government intends to administer this legislation. This official from Foreign Affairs told me that in order for our heads of state and government, our diplomats and ourselves not to be subject to unreasonable proceedings based on a universal jurisdiction when we go abroad, we do not want to take into custody and prosecute heads of state or heads of government while they are on a visit to Canada. For example, we did not apprehend the President of Burundi who was here not long ago to attend a Francophone Summit.

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I would like to know whether in your opinion, Mr. Matas and Mr. Allmand, we should have a clear policy authorizing the arrest of heads of state and heads of government—not those who are out of office like Mr. Pinochet and others—and depriving them of the immunity that prevents their prosecution for the crimes against humanity they have committed against their people.

Should there be a clear policy to that effect and should there be provisions in the bill to facilitate the arrest of the people in office who have committed crimes against humanity?

[English]

Mr. David Matas: I'm afraid we can't get away from our disagreement about customary versus conventional. I have no problem with that if we're prosecuting somebody from Burundi, if Burundi has signed and ratified the treaty and the crime is committed after ratification, because it's a violation of the treaty. They signed on to it; we signed on to it.

But is it customary international law? You seem convinced that it is, but I'm not so sure, and I'd be hesitant to just legislate that it's customary international law. I wouldn't mind letting the courts decide it, but I wouldn't just say we've decided it's customary international law.

[Translation]

Mr. Daniel Turp: I can't understand your reservations, Mr. Matas, because parliaments as well as judges, government officials and state bodies have the authority to take note of the existence of customary law and, by so doing, they help reinforce that existence and enable international tribunals, for example, take into account statutes and judicial decisions as elements of the practice.

In that sense, even the Canadian Constitution, with which you are very familiar, recognizes at section 11(g) that there are principles which permit the retroactive prosecution of people who have committed crimes against humanity. If the constituent can do it, why couldn't parliament do it?

[English]

Mr. David Matas: There's a difference. You use the word constater, which I suppose you could translate as to take notice, or to observe that it's the case that this is so. I think that's fine. I think the government can do that.

But it's different. Parliament constitutes; it does not declare. A parliament creates something when it legislates. It is not just making observations about the world around it.

Whether it's customary international law or not, if Parliament says it's customary international law, then it has the effect of creating an offence even if it isn't customary international law. That's the problem.

When the government says it's customary international law, what they're doing is just saying, well, we're bound by it; we accept the custom. But they're not obligating other people in other countries, which is what Parliament is doing. They are obligating other people in other countries who do not have the same view of customary international law. That's the difference.

Mr. Ted McWhinney: There's a different—

[Translation]

Mr. Daniel Turp: Your theory is interesting, but...

[English]

Mr. Warren Allmand: In answer to your question, if I may, there are other conventions that deal with these crimes as well. For example, on genocide, many countries of the world have ratified the Genocide Convention well before they've dealt with this, and there are obligations under the Genocide Convention and also the Geneva Conventions on war crimes.

So where it says under portion on offences outside Canada, if a person

after the coming into force of this section, commits outside of Canada

(a) genocide,

—and then we have in paragraph 8(b)—

at the time the offence is alleged

I think it is possible that you could arrest a head of state. It would depend on the amount of evidence you have. With any crime, whether it's in Canada or outside of Canada, if you have enough evidence that deals with one of these three crimes, I think you possibly could arrest and prosecute.

[Translation]

Mr. Daniel Turp: I have another question for Mr. Allmand. Clause 8(b), that you have mentioned, often requires that the person be present in Canada in order to be prosecuted. That person has to be under custodial jurisdiction, as we were told last week. Do you think—and I'd welcome an answer from Mr. Matas as well—that we should delete the presence in Canada requirement in favour of the universal jurisdiction, which is much broader, to prosecute people who have committed crimes against humanity, even though they are not on Canadian territory?

• 1110

[English]

Mr. Warren Allmand: It says in clause 9 that:

(1) Proceedings for an offence under this Act alleged to have been committed outside of Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced...

I know this might be open to interpretation, but my feeling is that you could, and you should be able to under the theory of universal jurisdiction.

Mr. David Matas: No. I would say if the victim is a Canadian... What you're saying is if somebody's out there, with no ties to Canada—the perpetrator's not Canadian, the victim's not Canadian, the crime's not on Canadian territory, and the person's not in Canada—can we, let's say, extradite them to come to Canada for trial? Is that your question?

Mr. Daniel Turp: No.

Mr. David Matas: Oh, okay.

Mr. Daniel Turp: It's more than that. Can we prosecute someone here even though he's not here? Can we prosecute the leader of Sierra Leone, or others—

Mr. David Matas: In absentia?

Mr. Daniel Turp: Yes. That's right,

[Translation]

in absentia. Can we prosecute in absentia someone who has committed crimes against humanity? Should we give ourselves the authority to do so?

[English]

Mr. Warren Allmand: You're questioning clause 9.

The Vice-Chair (Ms. Colleen Beaumier): Mr. Krieger.

Mr. Daniel Turp: No.

[Translation]

Clause 9 has more to do with procedural aspects. This thing here deals with jurisdiction.

[English]

Mr. David Matas: I don't recall it being required by the Rome treaty. I don't know that it's necessary for the better development of international justice. I'm not quite sure what it would accomplish. The person wouldn't be here, and the person could potentially have no ties to Canada at all.

What I suggest we could do, which is what the Americans do—and we do it to a certain extent—is say that the person is not admissible because there are reasonable grounds to believe the person has committed a war crime or a crime against humanity. We put them on our watch list. But that's, I think, as far as we should go.

The Vice-Chair (Ms. Colleen Beaumier): Mr. Krieger, did you want to add to this? You have that look.

Mr. Richard Krieger: Well, no. There were a couple of questions I had with concern to some of these charges.

One of them is the validity of the charge and who brings the charge. There are human rights groups now that are saying Australia has been committing genocide against the Aborigines. How do you treat that? How do you treat the Australians when it comes to this? How do you treat the issue?

The other question that comes to my mind is our discussion here of the value of trials that provide acquittals for people with charges in other countries. How valid are these trials? Who makes the judgments on them? How do we look at them?

I'll give you an example of a situation.

In 1997 three members of the Peruvian intelligence operation committed atrocities and were found guilty. In 1998 they were brought to trial again, and in 1999 the current sitting government found it advisable to acquit them. As a result, one of them was given a visa to come to the United States to attend an OAS meeting. We could do nothing about them because of the fact that they were acquitted.

I think there are two questions I'd pose. One is, how do you define evidence and how do you define charges that you look into vis-à-vis the Australians; and secondly, who is to sit in judgment of what happens in a court in a “friendly” nation?

The second issue is brought up in the bill, which speaks about a court relating to international accords, values, and concepts, and I think that becomes a very difficult issue to supervise and to examine.

• 1115

The Vice-Chair (Ms. Colleen Beaumier): You know, that's another aspect of this. I think when you said, who decides and who's going to judge amongst friendly nations, somehow this all seems to further our ability to continue on in a very hypocritical manner. If you're our friend, then we're not going to go after you. However, we're going to pick on others. How do you address those inequities? Who does decide to lay the charge?

Mr. Warren Allmand: That's why you have an independent prosecutor, as was pointed out. The prosecutions can be triggered in three ways. Either they come from the Security Council, a state party, or the independent prosecutor. And the independent prosecutor must go to a pre-trial tribunal to have the evidence. So in regard to this possibility of wild and irresponsible charges against people, I don't think they'd ever get through to the prosecution stage.

With respect to the genuineness, the statute gives authority to the International Criminal Court to examine the genuineness of a trial in another country. If it's obviously a phony trial, they still would claim jurisdiction, but that's a matter of evidence. If it's questionable, I think they'd have to accept an acquittal. If it's really clearly not a genuine... it talks about the genuineness of—

Mr. Deepak Obhrai: So in the meantime, if that visiting head of state is in this country, is he going to be held? If you send him back, he's not going to come. Right?

Mr. Warren Allmand: That would depend on the amount of evidence that the Canadian prosecution... If it was so well known... and I gave a clear example. Let's say it's a Pol Pot, a type like that, who happened to come into Canada, and there's overwhelming evidence that the individual has committed serious crimes against humanity, over and over, lots of evidence. I think the Canadian authorities would be on safe ground in laying a prosecution. If it's questionable, then they have to make a decision. They do that now in our own provinces. I mean, crown prosecutors sometimes are torn between whether they have enough evidence to lay charges or not lay charges. You'd be faced with the same thing.

But it's possible, in my view. It's not only possible, but it should be done. The more these characters are forced to stay in some safe country because they're not allowed to travel around the world, the better it is. I think a clear message was sent to the Pinochets of the world, if you're going to commit crimes like you've committed, you'd better stay at home.

The Vice-Chair (Ms. Colleen Beaumier.): Okay.

Mr. Daniel Turp: You could go back home with a big smile.

The Vice-Chair (Ms. Colleen Beaumier): I think you're fairly safe in saying Pol Pot, because he's dead. But what about Pinochet, if he comes to Canada?

Mr. Warren Allmand: Actually, our centre recommended... There was a Canadian nun who was tortured in Chile. The RCMP investigated and found there was sufficient evidence. We wrote a letter to the Minister of Justice and to Foreign Affairs recommending that we put forward an extradition claim similar to the one that Spain did on the basis that one of our citizens was tortured under the Pinochet regime, and that we should lay charges against Pinochet—as was done, I think, by Swiss authorities, and in France, Belgium, and several countries whose citizens were tortured.

[Translation]

Mr. Daniel Turp: Madam Chair, the Bloc Québécois has asked for the same thing many times in the House, but the government doesn't have the courage to do it.

[English]

Mr. Ted McWhinney: If you agree in principle that even friendly countries and their leaders would be subject to jurisdiction the same way as unfriendly ones were, the burden of proof might be much greater. But reciprocally, or for any other country ratifying the convention, our officials would in principle be subject to the same rules.

Mr. Warren Allmand: Yes, exactly.

Mr. Ted McWhinney: That's the equality principle.

The Vice-Chair (Ms. Colleen Beaumier): Mr. Matas.

Mr. David Matas: I have a couple of points. I couldn't, when hearing Daniel Turp, help but decide I had to rise to the defence of the government, although that's not necessarily what I always do.

The problem with requesting extradition of Pinochet is that we have, once he's here, a non-functioning criminal law because of the Finta decision. There's not much point in extraditing him if he's going to get acquitted because we've got a non-functioning law. Bill C-19 is an attempt to address that problem.

Mr. Deepak Obhrai: What about the international customary role?

Mr. David Matas: Well, it overshoots the mark, I would say. It goes too far.

The other thing is that the fear of a prosecutor gone wild is something we've already shown to be a misplaced fear, because we do have already two international ad hoc tribunals—for Rwanda and the former Yugoslavia—that have received a whole raft of wild and crazy allegations presented to the prosecutor, who has obviously not gone with them. The prosecution unit for those two tribunals has behaved responsibly and professionally, and we would expect the same for the International Criminal Court.

• 1120

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): I have a number of questions, and some relate to the testimony. I'd like a comment by one of the witnesses on the testimony of another.

I would put a question to Mr. Matas regarding the civil remedy approach that was proposed by Mr. Krieger, which appears on page 4 of his testimony. This approach is taken from the United States Torture Victims Protection Act, and it is namely that there be a civil remedy for the victims or their agents to sue the perpetrators for war crimes, crimes against humanity. Do you think that should be included in this legislation?

Mr. David Matas: Again, we have a constitutional problem here, which I'm sure you'll appreciate. We're dealing with tort law here, and that's typically considered to be within the jurisdiction of the province. I anticipate that we would face a constitutional problem if we were to put it in this legislation. I think it would be constitutionally simpler and raise fewer problems of legal challenge if each of the provinces did something like that rather than the federal Parliament doing it.

I'm not so sure the current tort law doesn't allow for the type of remedy that's already provided for in the statute. Current tort law, under the rule in Phillips v. Eyre, if I remember it correctly, is that a tort committed abroad is actionable. It's actionable in Canada and a wrong abroad, and all of these acts are wrongs abroad.

In my own view, we wouldn't even need to legislate a new tort provision provincially in order to deal with the problem, although I certainly think it would be helpful to do so because I think it would remove any doubt. It would clarify the issue. It would provide some publicity and notice to people. It would provide a remedy that, frankly, until now people in Canada have not invoked at all.

An hon. member: They may not be aware that they have the remedy.

Mr. David Matas: Well, it's partly that they're not aware that they have the remedy, but it's also that there's a reluctance of individuals to take the initiative to go after the perpetrators. That's a common problem, which Americans have been able to circumvent through a lot of initiatives on behalf of the non-governmental community. We need something like that here.

If reparations are tacked on as part of a criminal conviction so that they're not separated but they are just in effect part of the penalty, I expect we could do that, because then it would become part of the criminal law rather than a separate tort law. I certainly would have no objection to that. Indeed, the Rome Statute contemplates that and it's something that Parliament might well contemplate.

Here I start to share Warren Allmand's view. This isn't already in the bill and it's not a problem with the bill. It's just something else that could be done. I wonder if it might delay the passage of the bill if we start adding on a reparations provision.

Mr. Warren Allmand: But there is a provision in the bill.

Mr. Irwin Cotler: That's the forfeiture of assets provision.

Mr. Warren Allmand: Yes.

Mr. Irwin Cotler: That's a different thing.

Mr. Warren Allmand: It is a different thing.

[Translation]

Mr. Daniel Turp: But there's a fund.

[English]

Mr. Warren Allmand: Yes, there's a fund.

Mr. Irwin Cotler: There's a fund, but that's a different thing from a remedy.

Mr. Warren Allmand: Right.

Mr. Irwin Cotler: Let me just take up your last point, which was not to bring a newcomer in but to deal with matters within the bill itself. You mentioned that the bill does correct some of the problems brought about by the Finta judgment, but in looking over your testimony, I've been able to identify some five different concerns arising from the Finta judgement that in your view do not appear to be addressed or redressed in this legislation. Are you thereby suggesting that this bill still go forward without those amendments? In other words, is it better to have this bill as it is, even without redressing the problems out of Finta, than no bill at all?

Mr. David Matas: I didn't come here to make that choice.

Mr. Irwin Cotler: I'm putting the question to you.

Mr. David Matas: I came here to suggest changes in the bill. I hope that's not a choice I would have to make before this group. This group has the power to change the bill and I would hope I would persuade you to do so.

• 1125

Your observation is correct; this bill addresses some of the Finta problems but not all of them. If we pass the bill as is, we have a problematic law where the accused will be able to raise defences that are articulated in Finta. That would mean they might be acquitted even though they were in violation of international law, which would put us in violation of our obligations in international law. In my view, we really need some amendments to this bill.

Mr. Warren Allmand: I think the committee, at the very least, has an obligation to check out the points David has raised. Some of them are new to me today; I didn't know of them before I heard his excellent testimony. If they are really essential, then you should amend, but if they simply make the bill a little bit better or make it more consistent, then maybe they can wait. The question is whether you are going to delay the bill for matters that aren't really essential. If it's essential, change it.

Mr. David Matas: One has to keep in mind, of course, that what's going to happen if this bill is functional is that there are going to be prosecutions and there are going to be defences. The defendants are going to raise every imaginable defence under the sun. Some of them will be good and some of them will not be good. One has to anticipate what those defences will be and whether it's appropriate to allow these people to invoke those defences.

If they're really improper defences, such as “I didn't intend to be inhumane. Even though I killed all these people, I had some other motive in mind besides inhumanity. I was protecting my people because I thought they were all our enemies,” even though they weren't, then you have to take that defence away now. You shouldn't leave it to a defendant to plead.

[Translation]

Mr. Daniel Turp: I can relate to this sense of urgency you are feeling, probably mostly as a result of the Finta case, because since then, there has not been a great number of trials and we have had to resort to other remedies.

Nevertheless, it is interesting to see that one part of this bill, after enactment, will take effect only once the treaty is implemented. Isn't it so? In this case, it is not as urgent because the treaty could be implemented only five or ten years from now, after all 60 ratifications have been finalized.

I understand that we should not add things that would slow down the enactment and coming into force of this bill, because we will be able to start proceedings on the basis of some of the legislative provisions, whatever happens to the provisions implementing the convention.

I too wish that the bill will be amended, provided that the amendments are useful, and I think that this feeling of urgency should not prevent us from passing all necessary amendments. Mr. Robinson and Mr. Piragoff are over there, at the back, listening to us. I hope that the members on the other side will think it necessary and important to have the best legislation possible so that we do not have to face the same problems we had before and after the Finta case, problems that now prevent us from prosecuting those who are already present on our territory and who came here after committing crimes against humanity or who could be accused of committing such crimes.

You know as much as I do that there are hundreds of these people. Mr. Matas could tell you. I would like you to tell us how many there are. You know the figures as well as Mr. Allmand. There are others on this planet who are often seeking refuge in Canada to avoid being prosecuted.

I want to address a brief question to Mr. Matas but first, Mr. Allmand, maybe you should have a study done by your counsels at the Centre. Maybe it is not too late to have one done. Maybe you could give us the memos written by some of your counsels at the International Centre for Human Rights and Democratic Development. Does the bill as presently worded contain provisions that could be invalid because they are inconsistent with the Canadian Charter of Rights and Freedoms?

Mr. Warren Allmand: Have you asked this question to the officials?

Mr. Daniel Turp: I did ask the same question to the senior officials regarding one of these clauses.

[English]

Mr. David Matas: That's an interesting question.

Mr. Irwin Cotler: I asked the same question.

Mr. David Matas: I think it's paragraph 11(f) or 11(g) that says you cannot punish a crime retroactively unless it was criminal at the time according to customary international law or the general principles of law recognized by the community of nations. As far as I'm concerned, customary international law in the charter is what the courts say it is, not what Parliament says it is, because the charter rules Parliament. Parliament doesn't decide what the charter means. So I don't see how we can get away from our—

• 1130

Mr. Daniel Turp: Who adopted the charter?

Mr. David Matas: Parliament adopted the charter, but Parliament and the legislatures—

Mr. Daniel Turp: Parliaments.

Mr. David Matas: Parliaments, yes, not just the Canadian Parliament.

Mr. Irwin Cotler: That's the problem, because paragraph 11(g) refers to a specific defence, that is to say, retroactivity shall not avail as a defence in cases of... etc. The other thing is whether, let's say, certain limitations on defence... Let's take the superior orders. You may feel that the superior orders defence here does not redress the problem of Finta entirely, but there are others who may say that the limitations on the superior orders defence remove defences that should be available to the accused under the Canadian Charter of Rights and Freedoms. And they could go to subclause 14(3) of this legislation and say, “You've taken away a defence for me that Finta made available and that is consistent with the Canadian charter.” I'm just turning it around. It's a way of playing maybe a bit of a—

Mr. Daniel Turp: They need a notwithstanding clause.

Mr. Irwin Cotler: Yes.

Mr. David Matas: No, I would not agree with that, because Finta didn't say that its interpretation was an interpretation of the charter. There was a separate charter challenge in the Finta case, which was rejected. The Finta court says that the Criminal Code was consistent with the charter, but what was wrong, from my point of view, with their judgment was their articulation of international law, not their articulation of what the charter meant.

But the reason this retroactivity provision is important is that it gets back to this divide between customary and conventional international law. Even if Parliament does what I'm suggesting it should not do, I'm not so sure the courts would allow it because of paragraph 11(g). And that's a potential problem, which I invite your research staff to consider.

[Translation]

Mr. Daniel Turp: There are new invalidity problems with some defences or rather with the unavailability of some defences, since the Charter applies. Could the notwithstanding clause be used?

[English]

Mr. David Matas: No, because first of all the only problem I see is in a provision I don't like, so why would I recommend a notwithstanding clause for that? On the contrary, I think the provision should just disappear, and if it remains, I certainly think it should be subject to charter challenge.

And I would say, as a general rule, never use notwithstanding. I don't think it should ever be used.

Mr. Ted McWhinney: Aren't these matters that would better be left to be decided in the interstices of concrete cases when they arise? They don't go to the overall validity of the act implementing the Rome Statute. Aren't they better left to take particular cases as they arise?

I'd be interested in Mr. Cotler's view on that. They are valid points, and without interrupting the rhythm of our proceeding to fairly rapid implementation of our obligation to implement the treaty, are they not matters that, having been raised, are better served perhaps by particular cases from the charter, as in Finta, when cases were disposed of?

Mr. David Matas: First of all, I think it would be a lot easier for the courts to resolve issues if the whole Rome Statute was there rather than part of it. And a second answer is that if there are obvious problems, as I mentioned—contradictions in the law between the torture provision in the code and the torture provision in the bill, the genocide provision in the code and the genocide provision in the bill—I guess if the courts are faced with legislative mistakes or confusions they'll sort them out as best they can. But I'm not so sure this is proper parliamentary drafting, to just throw a mess at the courts and let them sort it out. And thirdly, there are some provisions that are direct problems. It's not just a matter of confusion or gaffes. There are direct problems, and there are provisions that have to be there to address these problems.

Mr. Ted McWhinney: Could we ask the parliamentary secretary perhaps to get a quick response from the justice ministry in writing on these points? But I would stress again that the evolution of the charter is essentially a case-by-case testing through the courts. It's very different from what it was in 1982 when it was adopted. The judicial legislation has made it that way, and properly so.

• 1135

Mr. Irwin Cotler: Somewhat in answer to your question, one of the problems we have is that this legislation seeks, among other things, to address problems that arose out of the Finta judgment. Some of the problems of the Finta judgment are still there, and if this legislation does not address them, then I think we need to find a way in either the clause-by-clause or otherwise to address those issues. If we want to pass what we've said is “model legislation”, we shouldn't be left with the residue of the Finta case still in this legislation.

[Translation]

Mr. Daniel Turp: May I add something, Mr. Matas, before you answer. We had a difficult time after the Finta case. Proceedings were halted and we stopped prosecuting. We cannot make the same mistake with this bill. We must authorize the Department of Justice, the attorney general and the NGOs that have been promoting prosecution and telling us, rightly so, that we shouldn't let impunity prevail in this country... We must have a legislation that is or appears to be perfectly valid.

For that reason, we must take our time in considering the proposals of Mr. Matas and maybe even seek a legal opinion. This committee is a parliamentary committee. Maybe we should ask for a legal opinion on whether Bill C-19, in its present form, is consistent with the Canadian Charter of Rights and Freedoms. The Department of Justice often has research done on the validity of bills to determine whether they are consistent with the Charter. Maybe we should have one such review done. It could prove very useful.

[English]

Mr. David Matas: Yes.

As I mentioned before, B'nai Brith has made a petition to the Inter-American Commission on Human Rights about Canada because of the Finta case. They've opened a file, and we've already had a hearing. They've offered to see if we could get some conciliated settlement, and to a certain extent this parliamentary effort is an attempt to see whether it's necessary for us to pursue this complaint.

If Parliament passes legislation that leaves the Finta problem standing, we would pursue the complaint with the Inter-American Commission on Human Rights, which could potentially lead to a judgment that Canada is violating the American Declaration on the Rights and Duties of Man and the treaty of the Organization of American States through this legislation. And we could get that judgment or opinion in fairly short order.

Obviously I can't tell you that it will happen, but it might happen. It would obviously be an embarrassment for Canada if that were to happen, and I suggest it would be something you would want to avoid.

[Translation]

Mr. Daniel Turp: One last question. The draftsmen are right there, at the back. You do know that, for the first time, we will be enacting a specific legislation to implement an international convention. When we implemented the convention against torture and the one against the taking of hostages, we simply amended the Criminal Code. We did not enact a specific legislation. Wouldn't it be far simpler to amend a number of provisions of the Criminal Code? I imagine that this is a policy decision made jointly by the responsible departments. Or do we have to enact a separate legislation on crimes against humanity because it is such a significant symbol and because we must implement this very important convention of the International Criminal Court as created by the Rome Statute?

[English]

Mr. David Matas: I think we have done that with the Geneva Conventions Act. We have a separate statute. So I have no problem with a separate statute. I have some problem with the way it's integrated into the Criminal Code, because, as I mentioned, with genocide and torture it's not properly integrated. But I have no problem with a separate statute.

The Vice-Chair (Ms. Colleen Beaumier): Do you have a question, Mr. McWhinney?

Mr. Ted McWhinney: I want to suggest simply that we—certainly on the government side—have taken note of the valuable points raised and the opportunities for clarification. We understand the desire to have this bill through before Parliament adjourns, but it would be helpful to have an opinion from the justice ministry on the constitutional issues raised and perhaps have a fairly quick response, in effect within a week.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): With that in mind, Madam Chair, I'll inquire to see whether we could get this legal advice when we come back from recess. The House will not be sitting during that week. I will make inquiries today.

[English]

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

• 1140

[Translation]

[Editor's Note: Inaudible]

Mr. Daniel Turp: —

[English]

The Vice-Chair (Ms. Colleen Beaumier): Mr. Krieger, did you have something to add?

Mr. Richard Krieger: I just wanted to ask a question. I don't know if Mr. Allmand's group represents them, but as of 1998 you have seven rehabilitation centres in Canada for victims of torture and war crimes. I don't know if they have been heard from or if the committee intends to have them here.

The Vice-Chair (Ms. Colleen Beaumier): I wasn't even aware of the fact that we had seven centres in Canada.

Mr. Richard Krieger: I would be very happy to send David a list of them.

The Vice-Chair (Ms. Colleen Beaumier): Thank you.

Mr. Cotler.

Mr. Irwin Cotler: I have a question for both Mr. Krieger and Mr. Matas, Mr. Krieger because he mentioned it in his testimony and Mr. Matas because he has written about it elsewhere. It has to do with the war crimes provisions in the International Criminal Code, incorporated by reference here, that refer to the transfer of civilians to occupied territory directly or indirectly as constituting a war crime. You mentioned this in your testimony, but only in a passing reference. Mr. Matas has written about this elsewhere. This issue came up in our debates in Parliament. So I was just wondering if you could comment further on it.

Mr. Richard Krieger: Not too much, except that is a concern of a number of countries. That has been voiced. I know that Mr. Matas has written on it, and perhaps he could share that with the committee. I really can't comment more on that, except for how it would be implemented and what it would mean.

Mr. David Matas: The problem here is whether the transportation of civilians to occupied territories has to be forced or it could just be an incentive. If you, for instance, provide them with a cash grant, offer them garbage collection, pave their streets, or whatever, are you committing a war crime or a crime against humanity? There are a variety of opinions about that. My own view is that it has to be forced.

It's not resolved in the statute, and it's not resolved in the discussion of elements of crime. I was hoping that one of these preparatory commissions that were looking at elements of crime would resolve it. The definition of elements of crime for that crime was agreed by consensus without resolving that issue. This is a prime example of the problem you get with just saying that it's customary international law. Who knows what the courts will decide about the meaning of that offence when there's a debate in the international community about it?

It's one thing to say, whatever they decide, that's the obligation of the treaty that people have signed. It's another thing to say that's the law for everybody around the world whether or not they sign the treaty and as of 1998. That would really be wild. I think that's a prime example of why we would not want something like subclause 6(4) in this bill.

[Translation]

Mr. Daniel Turp: Courts do it, Mr. Matas. Would you like us to do as the courts do and ask an expert to come and tell us what the current state of customary law is so that we may take note that at this time such is customary law? That's what U.S. courts do. There are even experts who give evidence by affidavit, who review the practice and note that a customary rule does exist. Maybe we should do this before legislating. We could invite an expert or a leading scholar—for example Alain Pellet or professors from Oxford or another institution—to advise us on the current state of customary law and after that we can legislate taking into account their evidence.

[English]

Mr. David Matas: First of all, I would say that if this matter were to go to court, I couldn't find a more distinguished bench than I find in front of me today.

All the same, if you want to know what the law is, you don't decide it. You ask a court. You don't ask an expert witness. If you want to find out what the law is, refer the issue to a court. That's what you should do.

Mr. Daniel Turp: That's a philosophical problem. We're the legislators here—

Mr. David Matas: You decide what the law will be.

Mr. Daniel Turp: —and we decide what the law is. The courts interpret the law.

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Mr. David Matas: You decide what the law will be, but you don't decide what customary international law is. There's a debate about that, and it's not a policy debate. It's not about what we want. It's about an external reality.

Mr. Ted McWhinney: No, it's not. It's a reality in constant change and evolution, and the international courts, much more than common law courts today, do remake it in the process of interpretation.

Mr. Daniel Turp: If international law is part of the law of the land, why cannot Parliament

[Translation]

take note

[English]

of that in the legislation?

Mr. David Matas: As Professor McWhinney just said, if I may call you that, international customary law is constantly changing. But Parliament acts from time to time. We are not constantly changing this law, and we don't change it with every change in customary international law.

Mr. Daniel Turp: So your concern, then, is that

[Translation]

we freeze customary law in time. Is that it? If we enact this bill, we will freeze customary law and prevent it from changing. Is that what you fear?

[English]

Mr. David Matas: That's one problem. But the second problem is that I don't think you even have it right.

[Translation]

Mr. Daniel Turp: It is debatable.

[English]

Mr. Warren Allmand: In my view, in many cases when we pass laws in Parliament, we're passing laws as an interpretation of what we believe to be custom, this coming together. I agree with Professor McWhinney and Mr. Turp, if we're having a debate here. Sure it's changing all the time, but at any moment in history statutes represent what has become customary law in the country.

[Translation]

Mr. Daniel Turp: Mr. Matas, it does give some certainty to customary law. This is what parliament's action is doing—giving some certainty. It is true that the law changes over time, but it could be precisely the contribution of one parliament: to give customary law some measure of certainty that it doesn't have per se.

Could this legislation prevent the courts from making customary law change? Do you think that by passing such a bill, where we take note of customary law, we will be stripping the courts of the authority to apply the law as it changes?

[English]

Mr. David Matas: If we were talking about a law that affected just Canadians in Canada, you're free to say whatever you want. It doesn't matter whether you have it right or wrong. It's your power as Parliament to say whatever you want. But with this law, you're affecting people outside of Canada who do not have laws the same as those in Canada, and the only way they become bound by Canadian law is if they show up here.

In international law, we should impinge upon people who are not our nationals and who have done nothing wrong according to their own law only if they've done something wrong according to international law—and real international law, not whatever we say international law is. It's just an usurpation to say, well, we can do it, and therefore we're going to do it.

Mr. Ted McWhinney: Before the final judgment, this is basically what the British House of Lords did in the Pinochet case. The early judgment certainly did just what you're describing shouldn't be done. But I see no great problem in that. You have the interplay, then, with the executive arm, and the court took two steps forward and the executive took one step back.

All the legislature can do is say, this is our view of international customary law at this particular moment in history. It can't do any more. It cannot impede the further development of a customary law.

[Translation]

Mr. Daniel Turp: This is a truly fascinating debate, because if it is true that

[English]

international law is part of the law of the land—

Mr. Ted McWhinney: According to the rules of the customary law, yes.

Mr. Daniel Turp: —but yields to statute.

[Translation]

Right now, we are in the process of enacting a statute. If the state of customary law changes and the courts decide to apply customary law, they will be prevented from applying a different customary law than the one recognized in a specific given statute,

[English]

because it yields to statute.

[Translation]

You are making a truly fascinating point that deserves to be pursued, because it should not come within the jurisdiction of Parliament to hold up the development of customary law and to prevent the courts from enforcing customary law as it changes.

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[English]

Mr. David Matas: Parliament should not break international law, and it shouldn't accelerate international law. It should allow it to proceed at its own speed.

[Translation]

Mr. Daniel Turp: That was an excellent point, Mr. Matas. We should think it over, don't you think so, honourable friends?

Some members: Ha, ha!

[English]

The Vice-Chair (Ms. Colleen Beaumier): It's beyond me now, so...

Mr. Ted McWhinney: The parliamentary secretary has the solutions, and I'll—

The Vice-Chair (Ms. Colleen Beaumier): Since you've gone beyond me, I think I'm going to take this opportunity to adjourn the meeting.

But first I'd like to thank all of you. Speaking for myself, this has certainly been one of the more exciting and interesting committee meetings I've attended. As I say, you've left me far behind, and perhaps you could carry on this debate afterwards.

Mr. Daniel Turp: During clause-by-clause consideration.

Some hon. members: Oh, oh!

The Vice-Chair (Ms. Colleen Beaumier): Yes.

Thank you so much for coming.

The meeting is adjourned.