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International Criminal Court
Ratification and Implementation
Implementation of the obligations set out in the
Statute of the International Criminal Court: Canada's
experience
Pierre-Gilles Bélanger
Counsel, Criminal Law Policy Section
Department of Justice of Canada
It took a hundred years[1] of dodging the issue in
international criminal law, and unfortunately of terrible crimes
against humanity, for a genuine international criminal law to
emerge that goes beyond the sovereignty of individual states. For
example, Nuremberg made it possible for important principles of
international criminal law to be laid down, but Nuremberg itself
was too closely associated with the unique atrocity of Nazi crimes,
and so it was only very recently that the theory of international
crimes was grafted onto the practice of a true international court
capable of trying the people responsible for serious violations of
international humanitarian law.[2]
On June 10, 1998, more than 140 government delegations, hundreds
of non-governmental organizations and representatives of
inter-governmental organizations met in Rome to address the
creation of an international criminal court. On July 17, 1998, 120
countries, represented by their experts and senior officials,
adopted the Statute of the International Criminal Court (ICC) in
the form of a treaty[3].
That Statute will enter into force on the first day of the month
after the 60th day following the date of the deposit of
the sixtieth ratification (see the list of signatory countries and
countries which have ratified, in the appendix).
Canada signed the Statute of the ICC on December 18, 1998, and
ratified it on July 7, 2000, thereby become one of the many
countries that have taken measures to implement the Statute in
their national legal systems.
After participating actively in the negotiations that led to the
establishment of the Rome Statute of the International Criminal
Court, Canada was one of the first countries in the world to have
in place such comprehensive legislation. The Crimes Against
Humanity and War Crimes Act was enacted on June 29, 2000 and
came into force on October 23, 2000. This new Act was created and
other legislation, such as the Criminal Code and legislation
respecting extradition, mutual legal assistance and witness
protection, was amended.
We shall now examine how the Crimes Against Humanity and War
Crimes Act meets the obligations set out in the Statute
of the ICC.
Unlike many other countries, Canada already had legislation
respecting crimes against humanity and war crimes, which was part
of the Criminal Code of Canada, even before it was necessary
to consider how it would implement the Rome Statute of the
International Criminal Court. Those provisions, as well as other
Canadian statutes and legal rules in general, were examined having
regard to the Rome Statute.
The Crimes Against Humanity and War Crimes Act was
enacted to respond to two needs. The first was the need to
implement the Statute of the ICC in order to be able to assist and
cooperate with the Court and secure the advantages of the
complementarity scheme; the second was to strengthen Canada's
legislative foundation for the prosecution of genocide, war crimes
and crimes against humanity, to ensure that Canada would not become
a refuge for perpetrators of those crimes.
First, in conformity with the definitions and provisions of the
Rome Statute, the Canadian Act creates new crimes comprising
genocide, crimes against humanity and war crimes. Those provisions
apply to acts committed in Canada. The crimes in question
may be prosecuted in Canada, or the alleged offender may be
surrendered to the International Criminal Court to be tried.
Second, the Act provides that acts of genocide, crimes against
humanity and war crimes committed outside Canada are defined
by reference to conventional and customary international law, as it
was in force at the time and in the place of their commission,
whether in the past or the future. Accordingly, persons who commit
genocide, crimes against humanity or war crimes could be brought to
justice regardless of when or where the acts were committed.
The new Act also creates offences relating to breach of
responsibility by military commanders and civilian superiors,
whether in Canada or outside Canada. Failure by a military
commander or civilian superior to exercise proper control over
persons under their command or authority which results in their
subordinates committing genocide, crimes against humanity or war
crimes may result in the military commander or civilian superior
being criminally responsible, if the commander or superior failed
to take all necessary and reasonable measures to prevent or repress
the commission of the offence or to submit the matter to the
competent authorities for investigation and prosecution.
Given the Canadian Charter of Rights and Freedoms and the
jurisprudence of the Supreme Court of Canada, and bearing in mind
the stigma and punishment attached to a conviction for genocide,
crimes against humanity and war crimes, it was deemed advisable to
create a specific offence of breach of responsibility and to
replace the "should have known" standard, applicable to military
commanders, with a criminal negligence standard.
A person may be charged in Canada with genocide, a crime against
humanity or a war crime committed outside Canada (s. 6), or with a
breach of responsibility committed outside Canada (s. 7) if one of
the following requirements is met:
- at the time the offence is alleged to
have been committed:
(1) the person was a Canadian citizen
or employed by Canada in a civilian or military capacity,
(2) the person was a citizen of a state
that was engaged in an armed conflict against Canada, or was
employed in a civilian or military capacity by such a state;
(3) the victim was a Canadian citizen,
or
(4) the victim of the alleged offence
was a citizen of a state that was allied with Canada in an armed
conflict; or
- after the time the offence is alleged
to have been committed, the person is present in Canada.
The Crimes Against Humanity and War Crimes Act
represents, for Canadians, a balance between the values of justice,
fairness and the rule of law and the need to prosecute people who
commit genocide, crimes against humanity and war crimes.
The Act contains specific provisions to protect the rights of
accused persons, while at the same time adapting to the reality of
modern international crime.
As a general rule, justifications, excuses or defences available
under the laws of Canada or under international law, at the time of
the commission of the offence or at the time of the proceedings,
may be relied upon by persons accused of genocide, crimes against
humanity, war crimes or breach of responsibility by military
commanders or civilian superiors. There are, however, certain
exceptions.
It would not be a defence that an offence was committed in
obedience to the law in force at the time and in the place of its
commission.
The defence of superior orders is consistent with that provided
in Article 33 of the Rome Statute. As a further restriction, the
defence, which would only apply as a defence to war crimes, cannot
be based on a belief that the order was lawful where the accused's
belief was based on information about an identifiable group of
persons that encouraged the commission of inhumane acts or
omissions against the group.
Special pleas of autrefois acquit, autrefois convict or
pardon in respect of the offence of genocide, crimes against
humanity, war crimes and breach of responsibility of military
commanders and civilian superiors may not be pleaded in certain
situations. They may not be pleaded if the person was tried in a
court of a foreign state or territory and the proceedings in that
court were for the purpose of shielding the person from criminal
responsibility or were not otherwise conducted independently or
impartially in accordance with the norms of due process recognized
by international law, and were conducted in a manner that, in the
circumstances, was inconsistent with an intent to bring the person
to justice[4].
This test in subsection 12(2) of the Crimes Against Humanity
and War Crimes Act is similar to the test set out in Article 20
of the Rome Statute.
The sentences and rules of parole eligibility that apply to a
person convicted of genocide, crimes against humanity or war crimes
where there was intentional killing are the similar to those that
apply to murder under the Criminal Code.
For example, this means that a person who is convicted of a
crime of this nature would be sentenced to imprisonment for life
(if the offence has as its basis an intentional killing) or liable
to imprisonment for life (in the other cases, including breach of
responsibility).
Article 70 of the Rome Statute contains offences against the
administration of justice by the ICC over which it has
jurisdiction. They include perjury, corruptly influencing a witness
or bribing an official of the Court, retaliating against a witness,
and tampering with the collection of evidence. Article 70 also
requires that states extend their criminal laws penalizing offences
against the integrity of their own investigative or judicial
process so that they apply to offences against the administration
of justice by the ICC, where such offences are committed on their
territory or by one of their nationals.
Consequently, in addition to the new offences relating to
genocide, crimes against humanity and war crimes, the Crimes
Against Humanity and War Crimes Act includes offences to
protect the administration of justice of the ICC. These new
offences were based generally on Criminal Code offences,
which address the sort of conduct specified in the Rome Statute. We
wanted to be certain that all offences against the administration
of justice - the list of which is longer than what is found in the
Statute of the ICC - became offences against the administration of
justice by the ICC. We also decided not to restrict ourselves to
the list of crimes that appears in the Criminal Code of
Canada. The list now includes obstruction of officials of the ICC,
bribery of judges or officials of the ICC, perjury, fabricating
evidence and giving contradictory evidence, offences relating to
affidavits, and intimidation[5].
Individuals who have testified before the ICC are now protected
under the Criminal Code[6]from reprisals against
them or members of their family. Other offences in the Criminal
Code now apply to protect judges and officials of the ICC from
harm that might be done to them.
Of course, these offences apply if they are committed in Canada
or by Canadian citizens outside Canada.
The ICC will only be effective if it receives cooperation from
states. One of the most important forms of cooperation on the part
of a state is to comply with a request for a person to be arrested
and surrendered to the Court.
In the final negotiations held in Rome, the states could not
agree on the process that should be used to bring persons before
the Court. Some countries favoured a simple transfer mechanism, by
which a state would send someone before the ICC with few or no
further internal formalities. Other countries could not agree to
this approach, particularly for the transfer of nationals, and
sought to have extradition used. The solution was therefore to
require that states surrender a person to the Court, leaving it up
to the state to select the procedure to be followed. However, the
Statute of the ICC provides that the procedure for surrendering a
person to the Court need not be more complex than the provisions
made for extradition.
There are therefore two options available to states to fulfil
the obligation to surrender a person to the Court: they may create
a mechanism for surrender to the ICC or they may amend the existing
statutory provisions relating to extradition so that they apply to
the Court.
In its Act, Canada has opted for a simplified form of the usual
extradition process, for surrendering persons to the Court. We
chose to use a modified version of the extradition process, because
that process has been submitted to our highest judicial authorities
and has been held to be constitutional.
In order to amend the extradition process to make it applicable
to the ICC, we incorporated the word surrender into the
Extradition Act[7], because that is the
word used in the Rome Statute and it allows for a distinction to be
made between surrender of a person by a state to the ICC and
extradition between states. As well, we have provided that
the grounds for refusal now listed in the Extradition Act do
not apply to a request for surrender made by the ICC.[8] In addition, we have provided that
evidence may be presented in the form of a summary.
The Extradition Act has also been amended so that a
person who is the subject of a request for surrender by the ICC may
not claim immunity from arrest or surrender to the ICC.[9]
- Immunity
In addition, article 48 of the Statute of the ICC provides that
the judges, the Prosecutor, the Deputy Prosecutors and the
Registrar enjoy the same privileges and immunities as are accorded
to heads of diplomatic missions. That was made possible by amending
the existing laws that relate to heads of diplomatic missions[10] so that they apply those privileges
and immunities to officials of the ICC, which is what Canada has
done.
Other members of the staff of the ICC (Deputy Registrar, the
staff of the Office of the Prosecutor) must also enjoy privileges
and immunities, but the nature of those privileges and immunities
must still be defined, in negotiations on that point. Consequently,
countries such as the United Kingdom, New Zealand and Canada have
decided to implement that agreement, once it has been concluded, by
regulation or order-in-council.
(b)
Arrest
Some changes have been made to enable the ICC to participate in
the surrender process. For example, the Extradition Act has
been amended to permit the ICC to submit its recommendations where
a person has been arrested at the request of the ICC and Canada is
considering interim release.[11] If the ICC submits
recommendations, a Canadian judge must consider them before
rendering a decision.
Of course, the ICC also relies on the cooperation of states in
cases other than arrest and surrender - for example, in collecting
evidence or finding potential witnesses.
Amendments have been made to our Mutual Legal Assistance in
Criminal Matters Act to enable Canada to provide a number of
forms of assistance, such as collecting evidence, identifying
persons, freezing or seizing proceeds of crime, and reparations to
victims. Our intention was to ensure that Canada would be able to
assist the ICC in more or less the same manner as we currently
assist other states in the conduct of the usual type of
investigations and prosecutions in criminal cases.
(a)
Search
For example, the Mutual Legal Assistance Matters Act[12]has been amended to allow for a search
warrant to be issued for a place or site in Canada, including by
means of the exhumation and examination of a grave, instead of
simply applying the general provisions of the law relating to
searches.[13]
(b)
Preservation of evidence
Article 19(8) of the Rome Statute would permit the Prosecutor of
the ICC to seek authorization to take investigative steps,
including seeking the co-operation of states to preserve certain
evidence, pending a ruling by the ICC on a jurisdictional
challenge. Under our former Act, before a preservation order could
be obtained, a Canadian court had to determine that the foreign
state or entity had jurisdiction over the alleged offence.
Of course, it would be difficult to demonstrate to a Canadian judge
that the crime in question was within the jurisdiction of the ICC
when that question was being argued before the ICC itself.
We therefore amended the Mutual Legal Assistance in
Criminal Matters Act to overcome this potential difficulty.
The judge will no longer have to consider the jurisdiction of the
requesting state or entity over the offence before granting an
order. A Canadian court will simply have to be satisfied that there
are grounds to believe that an offence has been committed.[14]
(c) Other changes
Other aspects of the Mutual Legal Assistance Matters Act
have been amended, to allow for:
· questioning of suspects;
· service of documents;
· protection of victims;
· the temporary transit of an
accused to the ICC via another country.
To enforce the obligations in respect of cooperation with the
ICC, Canada has also adopted investigative methods that will
facilitate prosecutions based on charges of genocide, crimes
against humanity and war crimes - as well as offences against the
administration of justice by the ICC - in Canada. For example,
wiretapping and other forms of electronic surveillance may now be
used to assist police forces to collect evidence that will be used
in investigations and prosecutions in Canada.
(d) Restraint and Forfeiture
Under the Statute of the ICC, states must:
· restrain, seize or freeze
proceeds of crime;
· give effect to fines and
forfeitures ordered;
· enforce orders of
reparation.
States may therefore institute a new system, amend the existing
legislation or adopt a combination of the two in order to enforce
these obligations. New Zealand is a good example of a country that
has chosen to institute a new system, while the United Kingdom and
Canada both decided to create a new system and amend the
legislation.
We amended our Mutual Legal Assistance Matters Act to
allow for an order of the ICC to be filed in Canada in order to
restrain or seize proceeds of crime, or for the filing of an order
of reparation or forfeiture or the enforcement of fines.[15] The Canadian court will then be able
to enforce those orders directly.
We also decided to go farther than the requirements[16]of the Statute of the ICC and create a
Crimes Against Humanity Fund.
The money obtained through enforcement in Canada of orders of
the ICC for reparation or forfeiture or orders of the ICC imposing
a fine will be paid into the Fund. Money may also be donated to the
Fund, and the net proceeds from the disposition of seized property
will be paid into the Fund.
The Attorney General of Canada may make payments out of the
Crimes Against Humanity Fund to the ICC, the ICC's Trust Fund,
victims of offences within the jurisdiction of the ICC or under the
Canadian Act, and families of victims, or otherwise as the Attorney
General of Canada sees fit.
The adoption of the Rome Statute is a major event on the legal
scene, in that it strikes at the clearly defined concept we had
developed of the state, and of our classical concept of state
sovereignty as the foundation of international law. With the Rome
Statute in place, we must now realize that there are limits to
"reasons of state" and on anyone who violates certain values. This
does not mean extending one state's law into another state; rather,
we are together, internationally, giving ourselves the tools to put
a halt to acts that are contrary to internationally recognized
values that peoples hold dear and to which they are deeply
attached.
It must be recalled that punishment is not the sole purpose of
the international criminal justice system. It also aims to prevent
and deter, and even has a pedagogical" goal. When war crimes and
crimes against humanity occur, reparation is most often impossible,
and any sanction imposed cannot help but be disproportionate to the
horror; all we have is the search for truth, the determination of
the facts, in the face of all the revisionism, the duty of justice
to the victims and the rejection of excuses. To do this will take
time and ongoing effort.
The Rome Statute marks the crystallization of a new "spirit of
the law", one that departs from codes and judgments and takes us
into the realm of morality. To do this, we must have a settled and
coherent body of rules, and that is why we encourage all countries
to adhere to it in and with their own legal structures, as the
Statute suggests. Drawing as it does on both international law and
criminal law, international criminal law is indeed an edifice still
under construction, but it now has a solid foundation.
International Criminal Court: Manual for the Ratification and
Implementation of the Rome Statute, May 2000, Vancouver, Rights
& Democracy - International Centre for Human Rights and
Democratic Development and the International Centre for Criminal
Law Reform and Criminal Justice Policy
Rome Statute of the International Criminal Court [as
corrected by the procès-verbaux of 10 November 1998 and 12
July 1999], A/CONF.183/9, 17 July 1998
An Act respecting genocide, crimes against humanity and war
crimes and to implement the Rome Statute of the International
Criminal Court, and to make consequential amendments to other
Acts, 2000, c. 24
Criminal Code, R.S.C. 1985, c. C-46
Extradition Act, S.C. 1999, c.18
Mutual Legal Assistance in Criminal Matters Act, R.S.C.
1985, c. 30 (4th Supp.)
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