Prosecuting War Crimes Crimes Against Humanity Genocide

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ProsecutingWar CrimesCrimes Against
HumanityGenocide

• Canadian Responsibilities

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Canadas Duty to Prevent and PunishWar Crimes,
Crimes against Humanity and Genocide

• Canada has legal obligations to enact legislation
  and to exercise powers to prevent and punish war
  crimes, crimes against humanity and genocide.
  Torture is a war crime and a crime against
  humanity.

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Canadas Duty to Prevent and PunishWar Crimes,
Crimes against Humanity and Genocide

• Canadas legal duties to prevent and punish
  torture arise from
• international instruments to which Canada is a
  signatory including the Rome Statute of the
  International Criminal Court, Convention Against
  Torture And Other Cruel, Inhuman Or Degrading
  Treatment Or Punishment, The Geneva Conventions,
  The Protocols Additional to the Geneva
  Conventions of 12 August 1949 Relating to the
  Protection of Victims of International and
  Non-International Armed Conflicts ( Protocols I
  II) and,
• Charter of the United Nations and,
• laws passed by Parliament including the Crimes
  against Humanity and War Crimes Act, The Criminal
  Code of Canada, The Canadian Charter of Rights
  and Freedoms, and The Geneva Conventions Act.

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I. The Geneva Conventions

• Canada has ratified all four of the 1949 Geneva
  Conventions
• and the two Optional Protocols of 1977. The four
  Geneva
• Conventions came into force in Canada 14 November
  1965
• and the two Optional Protocols on 20 May 1991.
• The Geneva Convention for the Amelioration of the
  Condition of the Wounded and Sick in Armed Forces
  in the Field, of August 12, 1949
• Geneva Convention for the Amelioration of the
  Condition of the Wounded, Sick and Shipwrecked
  Members of Armed Forces at Sea, of August 12,
  1949
• Geneva Convention relative to the Treatment of
  Prisoners of War, of August 12, 1949
• Geneva Convention relative to the Protection of
  Civilian Persons in Time of War, of August 12,
  1949

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I. The Geneva Conventions

• The Geneva Convention Relative to the
  Treatment of Prisoners of War (GC III)
  specifically prohibits not only torture but also
  all forms of coercion of prisoners of war
• Article 17
• No physical or mental torture, nor any other
  form of coercion, may be inflicted on prisoners
  of war to secure from them information of any
  kind whatever. Prisoners of war who refuse to
  answer may not be threatened, insulted, or
  exposed to any unpleasant or disadvantageous
  treatment of any kind.

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I. The Geneva Conventions
Article 12 of GC IV prohibits transfers of
prisoners likely to result in a loss of rights.
Prisoners of war may only be transferred
after the Detaining Power has satisfied itself of
the willingness and ability of such transferee
Power to apply the Convention.
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II Geneva Conventions Act R.S. 1985, c. G-3
Offences Some grave breaches of the Geneva
Conventions that are offences under Canadas
Geneva Conventions Act wilful murder, torture
or inhuman treatment, wilfully causing great
suffering or serious injury to body or health,
wilfully depriving a prisoner of war of the
right of fair and regular trial prescribed in
this Convention. extensive destruction and
appropriation of property , not justified by
military necessity and carried out unlawfully and
wantonly. unlawful confinement (of civilians)
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II Geneva Conventions Act R.S. 1985, c. G-3
Jurisdiction to Prosecute Article 3 of the
Geneva Conventions Act gives Canada the
jurisdiction to prosecute grave breaches
including offences committed outside Canada by a
person or persons not in Canada. Proceedings can
be commenced in any territorial jurisdiction
within Canada. The written consent of the
Attorney General of Canada is required to
commence proceedings.
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II Geneva Conventions Act R.S. 1985, c. G-3
Duty to Prosecute Geneva Convention relative to
the Treatment of Prisoners of War (GC III),
Article 130 III and Geneva Convention relative
to the Protection of Civilian Persons in Time of
War (GC IV), Article 146 impose a duty on Canada
to enact any legislation necessary to
provide effective penal sanctions for persons
committing, or ordering to be committed, any of
the grave breaches of the present Convention
defined in the following Article. search for
persons alleged to have committed, or to have
ordered to be committed, such grave breaches, and
shall bring such persons, regardless of their
nationality, before its own courts. Or hand
such persons over for trial to another High
Contracting Party concerned, provided that such
High Contracting Party has made out a prima facie
case. take measures necessary for the
suppression of all other acts contrary to the
provisions of the present Geneva Convention
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III The Rome Statute of the International
Criminal Court(created the International
Criminal Court on 1 July 2002)
The Rome Statute of the International Criminal
Court defines torture as a war crime (Article 8
(2) (a) (ii)) and bars all immunity for torture
and other war crimes, crimes against humanity and
genocide (Article 27.1). Canada is bound by
and ratified the Statute of the International
Criminal Court. (Signed 18 December 1998 and
ratified 7 July 2000) No Immunity from
Prosecution Rome Statute of the International
Criminal Court Art. 27.1 This Statute shall
apply equally to all persons without any
distinction based on official capacity. In
particular, official capacity as 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.
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III The Rome Statute of the International
Criminal Court
Duty to Prosecute The purpose of the Rome
Statute of the International Criminal Court is to
put an end to impunity for the perpetrators of
these crimes and thus to contribute to the
prevention of such crimes. Ratifying states such
as Canada have a duty to vigorously pursue
investigation of allegations of Rome Statute
violations and prosecutions of alleged
perpetrators. Canada has implemented all its
obligations to cooperate arising from
ratification of the Rome Statute by passing the
Crimes against Humanity and War Crimes Act and by
amending the Extradition Act, the Mutual Legal
Assistance in Criminal Matters Act and the
Criminal Code.
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IV Crimes against Humanity and War Crimes Act
Canada was the first country to introduce
comprehensive legislation incorporating the
provisions of the International Criminal Court
statute into domestic law with the proclamation
of the Crimes Against Humanity and War Crimes
Act. Seventh Annual Report Canadas Program on
Crimes Against Humanity and War Crimes, 2003
2004, p.4.
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IV Crimes against Humanity and War Crimes Act
Jurisdiction to Prosecute This Act gives
Canada jurisdiction to prosecute anyone present
in Canada suspected of committing, conspiring or
attempting to commit genocide, crimes against
humanity and war crimes including torture
wherever and by whomever such crime is committed.
(Sections 6 and 8)
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IV Crimes against Humanity and War Crimes Act
Authority to Commence Prosecution No
prosecution can be commenced without the written
consent of the Attorney General of Canada and the
Attorney General of Canada must conduct
prosecutions. (Section 9)
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IV Crimes against Humanity and War Crimes Act
Liability of Commanders and Superiors Military
commanders and superiors commit the offences if
such person fails to exercise control or to
take necessary and reasonable preventative
measures and offences are committed as a result.
(Sections 5 8)
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IV Crimes against Humanity and War Crimes Act
Program on Crimes Against Humanity and War
Crimes Canada has a War Crimes Program which is
a joint initiative of the Department of Justice
Canada, the Canada Border Services Agency, and
the Royal Canadian Mounted Police mandated to
either keep war criminals and those responsible
for crimes against humanity out of Canada or to
take appropriate actions against suspected
perpetrators including investigation, prosecution
or extradition. The policy of the Government
of Canada is unequivocal. Canada will not be a
safe haven for persons involved in war crimes,
crimes against humanity or other reprehensible
acts. Seventh Annual Report Canadas Program
on Crimes Against Humanity and War Crimes, 2003
2004, p.3.
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V Convention Against Torture And Other Cruel,
Inhuman Or Degrading Treatment Or Punishment
As a signatory to The Convention against Torture
And Other Cruel, Inhuman Or Degrading Treatment
Or Punishment 24 July 1987 Canada is required
to arrest persons alleged to have committed, or
to have been complicit in torture, and to detain
such persons until criminal or extradition
proceedings are implemented. Article 6.1
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V Convention Against Torture And Other Cruel,
Inhuman Or Degrading Treatment Or Punishment
Duty to Prosecute or Extradite Article 6.1.
Upon being satisfied, after an examination of
information available to it, that the
circumstances so warrant, any State Party in
whose territory a person alleged to have
committed any offence referred to in article 4
torture is present shall take him into custody
or take other legal measures to ensure his
presence. The custody and other legal measures
shall be as provided in the law of that State but
may be continued only for such time as is
necessary to enable any criminal or extradition
proceedings to be instituted.
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V Convention Against Torture And Other Cruel,
Inhuman Or Degrading Treatment Or Punishment
Jurisdiction to Prosecute Canada was obliged by
Article 5 to create an expanded jurisdiction to
prosecute torture. Article 5.2 compels Canada
and other State Parties to take such measures as
may be necessary to establish its jurisdiction
over torture in all cases where the torture is
either committed in the states territory, the
alleged offender is a national, the victim is a
national or where the alleged offender is present
in the state.
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V Convention Against Torture
No Justification Articles 2.1 and 2.2
prohibits the use of torture in the name of
military necessity. 2.1. No exceptional
circumstances whatsoever, whether a state of war
or a threat or war, internal political
instability or any other public emergency, may be
invoked as a justification of torture. 2.2.
An order from a superior officer or a public
authority may not be invoked as a justification
of torture.
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VI Criminal Code Of Canada

• Section 269.1 of the Criminal Code mirrors the
  definition of torture in Article 1 of the
  Convention against Torture and defines torture as
  an act or omission
• by which severe physical or mental pain or
  suffering is intentionally inflicted on a person
• carried out for the purpose obtaining
  information, punishing, intimidating or coercing.
  
• at the instigation of or with the consent or
  acquiescence of an official.

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VI Criminal Code Of Canada
TORTURE Section 269.1 (1) Every official, or
every person acting at the instigation of or with
the consent of or acquiescence of an official,
who inflicts torture on any other person is
guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen
years. (2) For the purposes of this section,
official means (a) a peace officer, (b) a
public officer, (c) a member of the Canadian
Forces, or (d) any person who may exercise
powers, pursuant to a law in force in a foreign
state, that would, in Canada be exercised
by a person referred to in Paragraph (a), (b), or
(c), (e) whether the person exercises powers in
Canada or outside Canada torture means any act
or omission by which severe pain or suffering,
whether physical or mental, in intentionally
inflicted on a person (a) for a purpose
including (i) obtaining from the person or from a
third person information or a statement, (ii)
punishing the person for an act that the person
or a third person has committed or is suspected
of having committed, and (iii) intimidating or
coercing the person or a third person, or (b) for
any reason based on discrimination of any kind,
but does not include any act or omission arising
only from k inherent in or incidental to lawful
sanctions. (3) It is no defence to a charge under
this section that the accused was ordered by a
superior or a public authority to perform the act
or omission that forms the subject-matter of the
charge or that the act or omission is alleged to
have been justified by exceptional circumstances,
including a state of war, a threat of war,
internal political instability or any other
public emergency.
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VI Criminal Code Of Canada
Jurisdiction To Prosecute The Criminal Code
allows for prosecutions of torture wherever the
torture occurred and whatever the residence of
the alleged perpetrator provided that the person
who commits the act or omission is, after the
commission, present in Canada. (Section 7(3.7))
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VI Criminal Code Of Canada
Who can lay an Information Any one who, on
reasonable grounds, believes that a person has
committed an indictable offence torture may lay
an information in writing and under oath before a
justice, and the justice shall receive the
information (Section 504)
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VI Criminal Code Of Canada
Charges against George Walker Bush On 30
November 2004, Lawyers Against the War laid a
criminal information against George W. Bush in
the Provincial Court of British Columbia at
Vancouver BC alleging 7 counts of aiding,
abetting and counselling the commission of
torture at Abu Ghraib and Guantánamo Bay.
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(No Transcript)
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(No Transcript)
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VI Criminal Code Of Canada
Prosecution of George Walker Bush His Honour
Judge William Kitchen held there was no
jurisdiction to prosecute the President of the
United States under the Criminal Code and
dismissed the 7-count information as a nullity.
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VII The Canadian Charter of Rights and Freedoms
The rule of law, supreme in Canada, requires that
the law apply equally to all. Whereas Canada
is founded upon principles that recognize the
supremacy ofthe rule of law.
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VII The Canadian Charter of Rights
The Supreme Court of Canada The rule of law
provides that the law is supreme over the acts
of both government and private persons. There is,
in short, one law for all. (Reference re
Secession of Quebec, 1998 2SCR 217 at para.
7071)
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VII The Canadian Charter of Rights
Canadas constitutional framers codified the
constitutional supremacy over statutory law by
stating The Constitution of Canada is the
supreme law of Canada, and any law that is
inconsistent with the provisions of the
Constitution is, to the extent of the
inconsistency, of no force or effect. 52(1)
1982 Constitution.
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VII The Canadian Charter of Rights
Authority to Grant Immunity Neither Parliament
nor the Attorney General of Canada possess the
authority to grant any person immunity from
prosecution for war crimes, crimes against
humanity or genocide or to suppress
investigations and prosecutions by virtue of
being the head of a foreign state or otherwise.