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

Irish Centre for Human RightsIrish Centre for Human RightsSummer Course on the International Criminal Summer Course on the International Criminal

CourtCourt20122012

Addressing core crimes in Addressing core crimes in the Domestic Contextthe Domestic Context

John McManusJohn McManusCounsel and Team LeaderCounsel and Team LeaderWar Crimes Section, DOJWar Crimes Section, [email protected]@justice.gc.ca

Theme

What in God’s name can we do?

Theme

Is it reasonable to expect that States will be able to prosecute even a

fraction of the perpetrators and is prosecution the only effective means

to address impunity?

Criminal Law - EssentiallyCriminal Law - Essentially

Territorial principle of jurisdictionTerritorial principle of jurisdiction Jurisdiction determined by reference to Jurisdiction determined by reference to

site of the crimesite of the crime State determines whether a particular act State determines whether a particular act

is a crimeis a crime State has greatest interest in seeing State has greatest interest in seeing

perpetrator is tried as State is victimperpetrator is tried as State is victim State as best access to evidence (scene of State as best access to evidence (scene of

the crime, witnesses, victims)the crime, witnesses, victims) State usually has custodyState usually has custody

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Core Crimes in the Domestic Core Crimes in the Domestic ContextContext

Ending impunity by perpetrators of crimes of concern to the international community is a necessary part of preventing the recurrence of atrocities.

First Chautauqua Declaration, signed by the prosecutors of the Nuremberg International Military Tribunal, the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Sierra Leone Special Court and the Extraordinary Chambers of the Courts of Cambodia, August 29, 2007; see http://www.asil.org/chaudec/index_files/frame.htm.

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The World Working TogetherThe World Working Together

http://www.legal-tools.org/fileadmin/http://www.legal-tools.org/fileadmin/user_upload/user_upload/Legal_Tools_Brochure_ENG_FRA_V.2010.pdfLegal_Tools_Brochure_ENG_FRA_V.2010.pdf

National JurisdictionNational Jurisdiction National Implementing LegislationNational Implementing Legislation National Cases involving core international crimesNational Cases involving core international crimes

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Assisting the CourtAssisting the Court

1.1. Cooperate with / assist Court in its Cooperate with / assist Court in its investigationsinvestigations

2.2. Meet requirements flowing from concept Meet requirements flowing from concept of complementarity, and a State’s need of complementarity, and a State’s need to address the existence of core crime to address the existence of core crime perpetrators living within its territoryperpetrators living within its territory

3.3. Direct support to the CourtDirect support to the Court

4.4. Ensure that your own leaders and troops Ensure that your own leaders and troops know, understand, believe in and protect know, understand, believe in and protect human rightshuman rights

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Assisting the CourtAssisting the CourtWith InvestigationsWith Investigations

Art 86. States Parties shall, in accordance with Art 86. States Parties shall, in accordance with the provisions of this Statute, cooperate fully the provisions of this Statute, cooperate fully with the Court in its investigation and with the Court in its investigation and prosecution of crimes within the jurisdiction of prosecution of crimes within the jurisdiction of the Courtthe Court

Art 87. General provisions governing requests Art 87. General provisions governing requests for cooperationfor cooperation

Art. 88. States parties shall ensure that there Art. 88. States parties shall ensure that there are procedures available under their national are procedures available under their national law for all of the forms of cooperation which law for all of the forms of cooperation which are specified under this Part.are specified under this Part.

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Assisting the CourtAssisting the Courtwith Investigationswith Investigations

Art 87 (5) The Court may invite any State Art 87 (5) The Court may invite any State not a party to this Statute to provide not a party to this Statute to provide assistance under this Part on the basis of an assistance under this Part on the basis of an ad hoc arrangement, an agreement with ad hoc arrangement, an agreement with such State or any other appropriate basis.such State or any other appropriate basis.

Art 87 (6) The Court may ask any Art 87 (6) The Court may ask any intergovernmental organization to provide intergovernmental organization to provide information or documents (or any other sort information or documents (or any other sort of cooperation in accordance with its of cooperation in accordance with its competence or mandate)competence or mandate)

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Where do investigations take place?Where do investigations take place?

1.1.Referral State Referral State

2.2.Territorial State / state of nationality of Territorial State / state of nationality of alleged perpetratoralleged perpetrator

3.3.Any State which had peacekeepers or Any State which had peacekeepers or peacemakers in placepeacemakers in place

4.4.States where alleged perpetrators and/or States where alleged perpetrators and/or victims may have fledvictims may have fled

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Art 54(3)(d) Mutual Legal Assistance in Art 54(3)(d) Mutual Legal Assistance in Criminal Matters Treaties and MOU’s, (MLAT) Criminal Matters Treaties and MOU’s, (MLAT) to:to:Establish relationship between Prosecutor’s Establish relationship between Prosecutor’s office and Stateoffice and StateIdentify contact points within StateIdentify contact points within StateFacilitate efficient and timely cooperation;Facilitate efficient and timely cooperation;Ensures legality of cooperative activities and Ensures legality of cooperative activities and evidence gatheredevidence gatheredDecides who paysDecides who pays

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

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Art 99: Execution of requestsArt 99: Execution of requests Simple: viewing sites, interviewing Simple: viewing sites, interviewing

voluntary witnesses (informal)voluntary witnesses (informal) Mid-level: search and seizure, Mid-level: search and seizure,

subpoena (usually ex-parte subpoena (usually ex-parte procedures)procedures)

Top level: arrests and surrenderTop level: arrests and surrender

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Canada’s War Crimes Canada’s War Crimes ProgramProgram

Dialogue R. v. Finta, [1994] 1 S.C.R. 701 An integral part of the crime and an essential element of

the offence is that it constitutes a crime against humanity. In the mind of the public those persons indicted for having committed crimes against humanity or war crimes stand charged with committing offences so grave that they shock the conscience of all right-thinking people. The stigma that must attach to a conviction for such a crime is overwhelming. …

Thus, with respect to crimes against humanity the additional element is that the inhumane acts were based on discrimination against or the persecution of an identifiable group of people. With respect to war crimes, the additional element is that the actions constitute a violation of the laws of armed conflict. These elements must be established both in order for a Canadian court to have the jurisdiction to try the accused and in order to convict the accused of the offence.

Between 266. … That case [Finta] is indeed authority

for the proposition that the sole requirements for crimes against humanity in this regard are that:

[…] there must be an element of subjective knowledge on the part of the accused of the factual conditions which render the actions a crime against humanity. […] The mental element of a crime against humanity must involve an awareness of the facts or circumstances which would bring the acts within the definition of a crime against humanity. Prosecution v. Tadic IT-94-1-A, 15 July 1999

Courts/Tribunals126. Since Finta was rendered in 1994, a vast body of

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

Processing of FilesProcessing of FilesAgenciesAgencies

The The Canada Border Services Agency Canada Border Services Agency (CBSA)(CBSA)

Citizenship and Immigration Canada Citizenship and Immigration Canada (CIC)(CIC)

Royal Canadian Mounted Police (RCMP)Royal Canadian Mounted Police (RCMP) Department of Justice (DOJ)Department of Justice (DOJ)

““Canada shall not become a safe haven Canada shall not become a safe haven for those who participate in the for those who participate in the

commission of international crimes”commission of international crimes”18

Processing of FilesProcessing of FilesSourceSource

Canadian officials who screen documents Canadian officials who screen documents and applicants throughout the immigration and applicants throughout the immigration and refugee processes uncover evidence of and refugee processes uncover evidence of potential links between applicant and potential links between applicant and international crimes (e.g. from a PIF)international crimes (e.g. from a PIF)

Individuals and/or NGOs in Canada contact Individuals and/or NGOs in Canada contact Canadian officials (usually RCMP) with Canadian officials (usually RCMP) with complaints about people in Canadacomplaints about people in Canada

Other States or international organizations Other States or international organizations (ICTY / ICTR) inform Canadian officials (IAG, (ICTY / ICTR) inform Canadian officials (IAG, RCMP, DOJ) of presence of suspects in RCMP, DOJ) of presence of suspects in Canada.Canada.

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Processing of FilesProcessing of FilesTriageTriage

Program Coordination and Operations Committee Program Coordination and Operations Committee (PCOC)(PCOC)

File Review Sub-CommitteeFile Review Sub-Committee Ability to return subject to country of origin Ability to return subject to country of origin for for

prosecutionprosecution Ability to return subject to country of originAbility to return subject to country of origin Presence of victims in Canada aware of alleged Presence of victims in Canada aware of alleged

perpetrator’s presenceperpetrator’s presence Strength of allegationStrength of allegation Ability to obtain evidenceAbility to obtain evidence Alleged crimeAlleged crime Status of individual in CanadaStatus of individual in Canada Human, financial and material resourcesHuman, financial and material resources

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InvestigationsInvestigations

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InvestigationsInvestigationsInitial StepsInitial Steps

RCMP open file to commence investigation – criminal RCMP open file to commence investigation – criminal investigation in the hands of rcmp, with doj providing investigation in the hands of rcmp, with doj providing advice and assistance, DOJ does revocation filesadvice and assistance, DOJ does revocation files

Interview complainant (develop witness list - Interview complainant (develop witness list - ongoing)ongoing)

Historical and legal analysis (internet and archival Historical and legal analysis (internet and archival work, work, Tribunal, ICC and Foreign State Tribunal, ICC and Foreign State cooperationcooperation, NGO contacts, Expert’s Report), NGO contacts, Expert’s Report)

Interview witnesses (continue developing witness list, Interview witnesses (continue developing witness list, attempt to narrow focus of investigation)attempt to narrow focus of investigation)

Interview of subject (criminal warning)Interview of subject (criminal warning) Ongoing analysis and evaluation by police, analyst Ongoing analysis and evaluation by police, analyst

and counsel team.and counsel team.

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InvestigationsInvestigationsReports and ApprovalsReports and Approvals

Following investigation, DOJ counsel prepare Following investigation, DOJ counsel prepare a Draft Report and Recommendation to a Draft Report and Recommendation to Attorney General or CIC MinisterAttorney General or CIC Minister

Report forwarded to Public Prosecution Report forwarded to Public Prosecution Services Canada or CIC for reviewServices Canada or CIC for review

A-G Canada or Deputy A-G must agreeA-G Canada or Deputy A-G must agree in writing to the indictment (CAHWCA s. in writing to the indictment (CAHWCA s. 9(3))9(3))

Prosecutions in Provincial criminal courtsProsecutions in Provincial criminal courts Minister CIC must agreeMinister CIC must agree to commence to commence

revocation processrevocation process Citizenship revocations in Federal Court Citizenship revocations in Federal Court

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InvestigationsInvestigationsAdmin investigationAdmin investigation

Not proving that subject was a criminal, but Not proving that subject was a criminal, but rather that he was not truthful on or during rather that he was not truthful on or during his application process to enter Canada, his application process to enter Canada, concerning activities which he should have concerning activities which he should have revealed to the Canadian official during revealed to the Canadian official during process (officials are witnesses in these process (officials are witnesses in these trials)trials)

The activities, at least for our files, concern The activities, at least for our files, concern the subject’s links to war crimes, crimes the subject’s links to war crimes, crimes against humanity or genocide (materiality of against humanity or genocide (materiality of fraud)fraud)

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Prosecution / Revocation/ VacationProsecution / Revocation/ Vacation

Prosecution Prosecution (beyond a reasonable doubt):(beyond a reasonable doubt): On consent of the Attorney-General or Deputy Attorney-On consent of the Attorney-General or Deputy Attorney-

General (WC Act s.9(3))General (WC Act s.9(3)) Trial conducted in provincial criminal courts by Federal Trial conducted in provincial criminal courts by Federal

prosecutorsprosecutors Citizenship revocation Citizenship revocation (balance of probabilities):(balance of probabilities):

Minister of Citizenship and Immigration (Cit Act S. 10 & 18)Minister of Citizenship and Immigration (Cit Act S. 10 & 18) Issue of fraud on applicationIssue of fraud on application In Federal Court, litigated by federal civil litigatorsIn Federal Court, litigated by federal civil litigators

Revocation of Landed Status Revocation of Landed Status (balance of probabilities, easier (balance of probabilities, easier rules of evidence)rules of evidence) Before the Immigration and Refugee Board by immigration Before the Immigration and Refugee Board by immigration

officials (IRPA) with assistance from DoJ War Crimes Sectionofficials (IRPA) with assistance from DoJ War Crimes Section Issue of fraud on application (IRPA s. 35(1) inadmissibility)Issue of fraud on application (IRPA s. 35(1) inadmissibility)

Vacation of Refugee Status Vacation of Refugee Status (reasonable grounds to believe (reasonable grounds to believe subject participated in core crimes) (IRPA S, 109 & 98)subject participated in core crimes) (IRPA S, 109 & 98) Immigration and Refugee Board, Refugee Protection DivisionImmigration and Refugee Board, Refugee Protection Division

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The Crimes Against Humanity The Crimes Against Humanity and War Crimes Actand War Crimes Act

http://laws.justice.gc.ca/PDF/Statute/C/C-45.9.pdfhttp://laws.justice.gc.ca/PDF/Statute/C/C-45.9.pdf

CanadaCanada

Canada signed the Rome Statute of Canada signed the Rome Statute of the ICC on December 18, 1998the ICC on December 18, 1998

Crimes Against Humanity and War Crimes Against Humanity and War Crimes Act, 2000Crimes Act, 2000 first country in the world to adopt first country in the world to adopt

comprehensive legislation implementing comprehensive legislation implementing the ICCthe ICC

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Crimes Against Humanity andCrimes Against Humanity andWar Crimes ActWar Crimes Act

Criminalizes Genocide, crimes against Criminalizes Genocide, crimes against humanity and war crimes (Art 4(1) & 6(1)humanity and war crimes (Art 4(1) & 6(1)

Breach of Responsibility of Military Breach of Responsibility of Military Commander & Superior (Art 5 & 7)Commander & Superior (Art 5 & 7)

Includes conspiracy, attempts, accessory after Includes conspiracy, attempts, accessory after the fact and counselling (Art 4(1.1) & 6(1.1)the fact and counselling (Art 4(1.1) & 6(1.1)

Punishment: mandatory life imprisonment if Punishment: mandatory life imprisonment if an intentional killing forms basis of offence, or an intentional killing forms basis of offence, or liable to life in any other case (Art 4(2) & 6(2)liable to life in any other case (Art 4(2) & 6(2)

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Personal JurisdictionPersonal Jurisdiction

Section 8 establishes jurisdiction over a person Section 8 establishes jurisdiction over a person if:if:

The person was a Canadian citizen or The person was a Canadian citizen or employed by Canada in a civilian or employed by Canada in a civilian or military military capacity;capacity;

The person was a citizen of, or employed in a The person was a citizen of, or employed in a civilian or military capacity by a state engaged civilian or military capacity by a state engaged in an armed conflict with Canada;in an armed conflict with Canada;

The victim was a citizen of Canada or a state The victim was a citizen of Canada or a state allied with Canada in an armed conflict; orallied with Canada in an armed conflict; or

After the time of the alleged offence, the After the time of the alleged offence, the person is present in Canada person is present in Canada

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Definition of CrimesDefinition of Crimes

6(3) The definitions in this subsection apply in this section.“crime against humanity” means murder, extermination,

enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission

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Definition of Crimes

Prosecutor v. Michel Bagaragaza, Decision on the Prosecution Motion for Referral to the Kingdom of Norway, ICTR-2005-86-R11bis, 19 May 2006

P. v. Bagaragaza, ICTR-05-86-AR11bis, 30 Aug 2006, par 17: “… In the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the “ordinary crime” of homicide.”

P. v. Bagaragaza, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, ICTR-2005086-11bis 13 April 2007

Definition of Crimes 13. … The interpretation of Rule 11bis(A)(iii) should

rely on that definition which requires ratione materiae, ratione personae, ratione loci, ratione temporis. … In this case, the universal jurisdiction referred to in the submissions of the Kingdom of Norway will permit the prosecution of the Accused (ratione personae) for his acts allegedly committed in Rwanda (ratione loci) in 1994 (ratione temporis). The only aspect of jurisdiction what would not be covered by Norwegian law is the ratione materiae.

16. In this case, it is apparent that the Kingdom of Norway does not have jurisdiction (ratione materiae) over the crimes as charged in the confirmed Indictment.

Command Responsibility in Command Responsibility in CanadaCanada

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

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5(1) & 7(1) 5(1) & 7(1) A military commander A military commander commits an indictable offence ifcommits an indictable offence if

(a)(a) the military commander the military commander (ii) fails, before or after the coming into (ii) fails, before or after the coming into

force of this section, to exercise control force of this section, to exercise control properly over a person under their properly over a person under their effective command and control or effective command and control or effective authority and control, and effective authority and control, and as a as a resultresult the person commits an offence the person commits an offence under S. 6under S. 6

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(b)(b) the military commander knows, the military commander knows, or is or is criminally negligentcriminally negligent in failing in failing to know, that the person is about to to know, that the person is about to commit or is committing such an commit or is committing such an offence, andoffence, and

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(c)(c) the military commander subsequently the military commander subsequently (i) fails to take, as soon as practicable, all (i) fails to take, as soon as practicable, all

necessary and reasonable measures within necessary and reasonable measures within their power to prevent or repress the their power to prevent or repress the commission of the offence, or the further commission of the offence, or the further commission of offences… orcommission of offences… or

(ii) fails to take, as soon as practicable, all (ii) fails to take, as soon as practicable, all necessary and reasonable measures within necessary and reasonable measures within their power to submit the matter to the their power to submit the matter to the competent authorities for investigation and competent authorities for investigation and prosecutionprosecution

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Canada’s RecordCanada’s RecordSomalia-related ProsecutionsSomalia-related Prosecutions

To go further into the factors which constitute To go further into the factors which constitute negligencenegligence I tell you that as a matter of law the I tell you that as a matter of law the alleged negligence must go beyond mere error in alleged negligence must go beyond mere error in judgement. Mere error in judgement does not judgement. Mere error in judgement does not constitute negligence. The alleged negligence constitute negligence. The alleged negligence must be either accompanied by a lack of zeal in must be either accompanied by a lack of zeal in the performance of the military duty imposed or it the performance of the military duty imposed or it must amount to a measure of indifferencemust amount to a measure of indifference or or a want of care by Major Seward in the matter at a want of care by Major Seward in the matter at hand or hand or to an intentional failure on his partto an intentional failure on his part to take appropriate to take appropriate precautionaryprecautionary measures. measures.

Instructions of the Judge Advocate to the Trial Panel, as quoted in Instructions of the Judge Advocate to the Trial Panel, as quoted in R. v. SewardR. v. Seward CMAC-376 (May 27, 1996) at page 14. CMAC-376 (May 27, 1996) at page 14.

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Canada’s Record Canada’s Record Somalia-related ProsecutionsSomalia-related Prosecutions

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

Seward at pg 16Seward at pg 16

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Canada’s Record Canada’s Record Somalia InquirySomalia Inquiry

From the Somalia Inquiry Report: “LCol Mathieu noted that 2 From the Somalia Inquiry Report: “LCol Mathieu noted that 2 Commando in particular was being overly aggressive, and on Commando in particular was being overly aggressive, and on January 16, 1993 a record of reproof was issued to Maj January 16, 1993 a record of reproof was issued to Maj Seward, its officer Commanding. This formal disciplinary Seward, its officer Commanding. This formal disciplinary measure was used rarely, and procedure required that it be measure was used rarely, and procedure required that it be filed immediately with NDHQ.filed immediately with NDHQ.

LCol Mathieu explained the action in the following manner: LCol Mathieu explained the action in the following manner: "Despite repeated direction by the Commanding Officer to "Despite repeated direction by the Commanding Officer to reduce the level of aggressiveness exhibited by his reduce the level of aggressiveness exhibited by his command, while conducting patrols in Belet Huen, Major command, while conducting patrols in Belet Huen, Major Seward continued to permit his commando to act Seward continued to permit his commando to act aggressively toward the population. This was in complete aggressively toward the population. This was in complete contradiction to the policy being implemented by the unit.“contradiction to the policy being implemented by the unit.“

Maj Seward recorded his reaction to the reproof in his diary, Maj Seward recorded his reaction to the reproof in his diary, writing "If I hear any more [of Mathieu's] hearts and minds writing "If I hear any more [of Mathieu's] hearts and minds bullshit, I'm going to fucking barf." Command problem?bullshit, I'm going to fucking barf." Command problem?

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Canada’s Post WW IICanada’s Post WW IILitigation ExperienceLitigation Experience

The boysThe boys

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Canada’s RecordCanada’s Record

Mugesera v. Canada (Minister of Citizenship and Mugesera v. Canada (Minister of Citizenship and Immigration)Immigration) [2005] SCC 40 [2005] SCC 40

established the essential elements of the crimes established the essential elements of the crimes of incitement to genocide (par. 82 - 89) and of incitement to genocide (par. 82 - 89) and counselling murder (the Court found that a counselling murder (the Court found that a murder must result before the domestic crime of murder must result before the domestic crime of incitement to murder is raised to the level of an incitement to murder is raised to the level of an international crime at par. 136);international crime at par. 136);

determined whether inciting hatred could amount determined whether inciting hatred could amount to persecution (it can, par. 150); andto persecution (it can, par. 150); and

established the constitutive elements of a crime established the constitutive elements of a crime against humanity (pars. 152 – 175).against humanity (pars. 152 – 175).

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

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R. v. Munyaneza 2009 QCCS 2201 (2009 R. v. Munyaneza 2009 QCCS 2201 (2009 QCCS 4865)QCCS 4865)

2 counts of Genocide (murder and causing 2 counts of Genocide (murder and causing serious bodily or mental harm to members serious bodily or mental harm to members of the Tutsi group, with the intention of of the Tutsi group, with the intention of destroying in whole or in part…); destroying in whole or in part…);

2 counts of crimes against humanity 2 counts of crimes against humanity (murder and sexual violence); and(murder and sexual violence); and

3 counts of war crimes (murder, sexual 3 counts of war crimes (murder, sexual violence and pillaging).violence and pillaging).

See Canadian Centre for International Justice site at: See Canadian Centre for International Justice site at: http://www.ccij.ca/programs/cases/index.php?DOC_INST=12http://www.ccij.ca/programs/cases/index.php?DOC_INST=12

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Jacques Mungwarere is accused of having Jacques Mungwarere is accused of having participated in the killing of Tutsi at Mugonero participated in the killing of Tutsi at Mugonero Hospital, Murambi Adventist Church, Gitwe Hospital, Murambi Adventist Church, Gitwe Catholic Church and in Bisesero.Catholic Church and in Bisesero.

He was arrested by the Royal Canadian He was arrested by the Royal Canadian Mounted Police (RCMP) on Friday, November Mounted Police (RCMP) on Friday, November 6th, 2009 in Windsor.6th, 2009 in Windsor.

He has been charged with 2 counts of He has been charged with 2 counts of Genocide and 2 counts of Crimes Against Genocide and 2 counts of Crimes Against HumanityHumanity

Trial - taking place in Ottawa nowTrial - taking place in Ottawa now http://www.ccij.ca/programs/cases/index.php?http://www.ccij.ca/programs/cases/index.php?

DOC_INST=19DOC_INST=19

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R. v. Ribic R. v. Ribic [2005] OJ 4261 (sentencing decision), [2005] OJ 4261 (sentencing decision), Appeal dismissed [Nov. 24, 2008] ONCA 790 (Docket Appeal dismissed [Nov. 24, 2008] ONCA 790 (Docket C44148)C44148)

May 26, 1995 – Nicholas Ribic, a Canadian citizen of May 26, 1995 – Nicholas Ribic, a Canadian citizen of Serb descent, assisted in the hostage taking of UN Serb descent, assisted in the hostage taking of UN military observers CF Captain Patrick Rechner and military observers CF Captain Patrick Rechner and Czech Captain Oldrich Zidlik, near Pale, Bosnia. The Czech Captain Oldrich Zidlik, near Pale, Bosnia. The men were chained to a pole near Serb a munitions men were chained to a pole near Serb a munitions dump in an effort to halt UNPROFOR bombing of the dump in an effort to halt UNPROFOR bombing of the area.area.

Charged with four counts of hostage taking contrary Charged with four counts of hostage taking contrary to section 279.1 of the Canadian Criminal Code (and to section 279.1 of the Canadian Criminal Code (and 7(3.1) for jurisdiction). 7(3.1) for jurisdiction).

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Found guilty of two counts of hostage taking by Found guilty of two counts of hostage taking by detaining (but not guilty of hostage taking by detaining (but not guilty of hostage taking by seizing) and sentenced to three years on each seizing) and sentenced to three years on each count, to be served concurrentlycount, to be served concurrently

Appeal: “Canada’s armed forces… who Appeal: “Canada’s armed forces… who participate in [UN] peace-making and peace-participate in [UN] peace-making and peace-keeping efforts around the globe … and the keeping efforts around the globe … and the armed services of all of the member states of the armed services of all of the member states of the [UN] have a very real interest in the trial of this [UN] have a very real interest in the trial of this case.”case.”

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Minister of Citizenship and Immigration v. Minister of Citizenship and Immigration v. Rogan, Rogan, 2011 FC 1007 Aug 18, 20112011 FC 1007 Aug 18, 2011

Citizenship Revocation Action (Federal Court Citizenship Revocation Action (Federal Court of Canada)of Canada)

Ethnic Serb, obtained refugee status in 1994 Ethnic Serb, obtained refugee status in 1994 in Belgrade, obtained Citizenship in 1997in Belgrade, obtained Citizenship in 1997

Test: reasonable grounds to believe Test: reasonable grounds to believe claimant was complicit in core crimes (and claimant was complicit in core crimes (and so excluded from refugee process under s. so excluded from refugee process under s. 19(1)(j) of the Imm Act 1984)19(1)(j) of the Imm Act 1984)

Test: On balance of probabilities, subject Test: On balance of probabilities, subject committed fraud on applicationcommitted fraud on application

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Minister of Citizenship and Immigration v. Minister of Citizenship and Immigration v. SiefertSiefert (2004) FCA 343 (extradited to Italy) (2004) FCA 343 (extradited to Italy)

Other Prosecutions under the National Other Prosecutions under the National Defence Act and Queen’s Regs and Orders Defence Act and Queen’s Regs and Orders following the Somalia deployment, following the Somalia deployment, essentially for failure to properly exercise essentially for failure to properly exercise command and/or torture (Seward, command and/or torture (Seward, Mathieu, Brocklebank, Boland, Sox, Mathieu, Brocklebank, Boland, Sox, Brown )Brown )

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BibliographyBibliography Oosterveld, Valerie, Mike Perry & John McManus, Oosterveld, Valerie, Mike Perry & John McManus, The The

Cooperation of States with the International Criminal CourtCooperation of States with the International Criminal Court, 25 , 25 Fordham Int’l LJ, (March 2002) 767Fordham Int’l LJ, (March 2002) 767

Kaye, David A, Kaye, David A, Justice Beyond The Hague: Supporting the Justice Beyond The Hague: Supporting the Prosecution of International Crimes in National CourtsProsecution of International Crimes in National Courts, Council , Council of Foreign Relations Special Report No. 61 (June 2011) of Foreign Relations Special Report No. 61 (June 2011) http://www.cfr.org/international-criminal-courts-and-tribunals/jushttp://www.cfr.org/international-criminal-courts-and-tribunals/justice-beyond-hague/p25119tice-beyond-hague/p25119

Gioia, Federica; Gioia, Federica; State Sovereignty, Jurisdiction and ‘Modern’ State Sovereignty, Jurisdiction and ‘Modern’ International Criminal Law: the Principle of Complemetarity in International Criminal Law: the Principle of Complemetarity in the International Criminal Courtthe International Criminal Court, 19 Leiden J Int’l L (2006) 1095, 19 Leiden J Int’l L (2006) 1095

Morten Bergsmo, Nobuo Hayashi and Mads Harlem (editors): Morten Bergsmo, Nobuo Hayashi and Mads Harlem (editors): Importing Core International Crimes into National Criminal Law, Importing Core International Crimes into National Criminal Law, Torkel Opsahl Academic Epublisher, (2010) at: Torkel Opsahl Academic Epublisher, (2010) at: http://www.fichl.org/publication-series/http://www.fichl.org/publication-series/

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More BibliographyMore Bibliography

McManus, John (2004). "A New Era of Accountability McManus, John (2004). "A New Era of Accountability through Domestic Enforcement of International Law." through Domestic Enforcement of International Law." In In La voie vers la Cour pénale internationale: tous les La voie vers la Cour pénale internationale: tous les chemins mènent à Rome (The Highway to the chemins mènent à Rome (The Highway to the International Criminal Court: All Roads Lead to International Criminal Court: All Roads Lead to Rome),Rome), ed. Hélène Dumont and Anne-Marie Boisvert. ed. Hélène Dumont and Anne-Marie Boisvert. Montreal: Éditions Thémis.Montreal: Éditions Thémis.

McManus, John and Matthew McManus "National McManus, John and Matthew McManus "National Prosecutions." Prosecutions." Genocide and Crimes Against Genocide and Crimes Against HumanityHumanity. Ed. Dinah L. Shelton. Gale Cengage, 2005. . Ed. Dinah L. Shelton. Gale Cengage, 2005. eNotes.comeNotes.com. 2006. . 2006. <http://www.enotes.com/genocide-encyclopedia/<http://www.enotes.com/genocide-encyclopedia/

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Irish Centre for Human RightsIrish Centre for Human RightsSummer Course on the International Criminal Summer Course on the International Criminal

CourtCourt20122012

Addressing core crimes in Addressing core crimes in the Domestic Contextthe Domestic Context

John McManusJohn McManus

Counsel and Team LeaderCounsel and Team Leader

War Crimes Section, DOJWar Crimes Section, DOJ

[email protected]@justice.gc.ca

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

Documents

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