Transcript Criminal Liability

Irish Centre for Human Rights
Summer Course on the International Criminal
Court
2012
Addressing core crimes in the
Domestic Context
John McManus
Counsel and Team Leader
War Crimes Section, DOJ
[email protected]
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 - Essentially
Territorial principle of jurisdiction
 Jurisdiction determined by reference to site of
the crime
 State determines whether a particular act is a
crime
 State has greatest interest in seeing perpetrator
is tried as State is victim
 State as best access to evidence (scene of the
crime, witnesses, victims)
 State usually has custody
4
Core Crimes in the Domestic
Context
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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 Together
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http://www.legaltools.org/fileadmin/user_upload/Legal_Tools_Brochure_E
NG_FRA_V.2010.pdf
National Jurisdiction
National Implementing Legislation
National Cases involving core international crimes
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Assisting the Court
1.
2.
3.
4.
Cooperate with / assist Court in its
investigations
Meet requirements flowing from concept of
complementarity, and a State’s need to address
the existence of core crime perpetrators living
within its territory
Direct support to the Court
Ensure that your own leaders and troops know,
understand, believe in and protect human
rights
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Assisting the Court
With Investigations
Art 86. States Parties shall, in accordance with the
provisions of this Statute, cooperate fully with the
Court in its investigation and prosecution of crimes
within the jurisdiction of the Court
Art 87. General provisions governing requests for
cooperation
Art. 88. States parties shall ensure that there are
procedures available under their national law for
all of the forms of cooperation which are specified
under this Part.
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Assisting the Court
with Investigations
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Art 87 (5) The Court may invite any State not a
party to this Statute to provide assistance under
this Part on the basis of an ad hoc arrangement,
an agreement with such State or any other
appropriate basis.
Art 87 (6) The Court may ask any
intergovernmental organization to provide
information or documents (or any other sort of
cooperation in accordance with its competence
or mandate)
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Assisting the Court
with Investigations
Where do investigations take place?
1.Referral State
2.Territorial State / state of nationality of alleged
perpetrator
3.Any State which had peacekeepers or
peacemakers in place
4.States where alleged perpetrators and/or victims
may have fled
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Assisting the Court
With Investigations
Art 54(3)(d) Mutual Legal Assistance in Criminal
Matters Treaties and MOU’s, (MLAT) to:
Establish relationship between Prosecutor’s office
and State
Identify contact points within State
Facilitate efficient and timely cooperation;
Ensures legality of cooperative activities and
evidence gathered
Decides who pays
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Assisting the Court
with Investigations
The Court requires State assistance to:
 Find and interview potential witnesses (accused, victims and other
eye-witnesses) (Art 54(3)(b); 93(a) – (c));
 Protect those witnesses (Art 54(3)(f);
 Collect evidence (documentary) (Art 54(3)(a), (h));
 Protect that evidence (physical protection, confidentiality of the
evidence and the request itself, witnesses and victims) (Art 54(3)(f);
72 – National Security & 73 (3rd party stuff) 87 (3), (4); 93(j));
 Serve legal documents (Art 93(d);
 Ensure respect for privileges and immunities of Court officials; and
 Arrest suspects and surrender them to the Court (Art 89 - 92)
 Enforce sentences, including imprisonment, order of forfeiture and
collection of fines (Part 10)
 Art 56 re Unique Investigative Opportunity
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Assisting the Court
With Investigations
Art 99: Execution of requests
 Simple: viewing sites, interviewing
voluntary witnesses (informal)
 Mid-level: search and seizure, subpoena
(usually ex-parte procedures)
 Top level: arrests and surrender
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Canada’s War Crimes
Program
Dialogue
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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
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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/Tribunals
126. 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 Files
Agencies
The Canada Border Services Agency
(CBSA)
 Citizenship and Immigration Canada (CIC)
 Royal Canadian Mounted Police (RCMP)
 Department of Justice (DOJ)
“Canada shall not become a safe haven for
those who participate in the commission
of international crimes”
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Processing of Files
Source
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Canadian officials who screen documents and
applicants throughout the immigration and
refugee processes uncover evidence of potential
links between applicant and international crimes
(e.g. from a PIF)
Individuals and/or NGOs in Canada contact
Canadian officials (usually RCMP) with
complaints about people in Canada
Other States or international organizations (ICTY
/ ICTR) inform Canadian officials (IAG, RCMP,
DOJ) of presence of suspects in Canada.
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Processing of Files
Triage
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Program Coordination and Operations Committee
(PCOC)
File Review Sub-Committee
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Ability to return subject to country of origin for prosecution
Ability to return subject to country of origin
Presence of victims in Canada aware of alleged perpetrator’s
presence
Strength of allegation
Ability to obtain evidence
Alleged crime
Status of individual in Canada
Human, financial and material resources
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Investigations
21
Investigations
Initial Steps
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RCMP open file to commence investigation – criminal
investigation in the hands of rcmp, with doj providing
advice and assistance, DOJ does revocation files
Interview complainant (develop witness list - ongoing)
Historical and legal analysis (internet and archival work,
Tribunal, ICC and Foreign State cooperation, NGO
contacts, Expert’s Report)
Interview witnesses (continue developing witness list,
attempt to narrow focus of investigation)
Interview of subject (criminal warning)
Ongoing analysis and evaluation by police, analyst and
counsel team.
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Investigations
Reports and Approvals
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Following investigation, DOJ counsel prepare a
Draft Report and Recommendation to Attorney
General or CIC Minister
Report forwarded to Public Prosecution Services
Canada or CIC for review
A-G Canada or Deputy A-G must agree in
writing to the indictment (CAHWCA s. 9(3))
Prosecutions in Provincial criminal courts
Minister CIC must agree to commence
revocation process
Citizenship revocations in Federal Court
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Investigations
Admin investigation
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Not proving that subject was a criminal, but
rather that he was not truthful on or during his
application process to enter Canada, concerning
activities which he should have revealed to the
Canadian official during process (officials are
witnesses in these trials)
The activities, at least for our files, concern the
subject’s links to war crimes, crimes against
humanity or genocide (materiality of fraud)
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Prosecution / Revocation/ Vacation
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Prosecution (beyond a reasonable doubt):
On consent of the Attorney-General or Deputy Attorney-General (WC
Act s.9(3))
 Trial conducted in provincial criminal courts by Federal prosecutors
Citizenship revocation (balance of probabilities):
 Minister of Citizenship and Immigration (Cit Act S. 10 & 18)
 Issue of fraud on application
 In Federal Court, litigated by federal civil litigators
Revocation of Landed Status (balance of probabilities, easier rules of
evidence)
 Before the Immigration and Refugee Board by immigration officials
(IRPA) with assistance from DoJ War Crimes Section
 Issue of fraud on application (IRPA s. 35(1) inadmissibility)
Vacation of Refugee Status (reasonable grounds to believe subject
participated in core crimes) (IRPA S, 109 & 98)
 Immigration and Refugee Board, Refugee Protection Division
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25
The Crimes Against Humanity
and War Crimes Act
http://laws.justice.gc.ca/PDF/Statute/C/C45.9.pdf
Canada
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Canada signed the Rome Statute of the
ICC on December 18, 1998
Crimes Against Humanity and War Crimes
Act, 2000
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first country in the world to adopt
comprehensive legislation implementing the
ICC
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Crimes Against Humanity and
War Crimes Act
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Criminalizes Genocide, crimes against humanity
and war crimes (Art 4(1) & 6(1)
Breach of Responsibility of Military Commander
& Superior (Art 5 & 7)
Includes conspiracy, attempts, accessory after
the fact and counselling (Art 4(1.1) & 6(1.1)
Punishment: mandatory life imprisonment if an
intentional killing forms basis of offence, or liable
to life in any other case (Art 4(2) & 6(2)
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Personal Jurisdiction
Section 8 establishes jurisdiction over a person if:
 The person was a Canadian citizen or employed
by Canada in a civilian or military capacity;
 The person was a citizen of, or employed in a
civilian or military capacity by a state engaged in
an armed conflict with Canada;
 The victim was a citizen of Canada or a state
allied with Canada in an armed conflict; or
 After the time of the alleged offence, the person
is present in Canada
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Definition 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-200508611bis 13 April 2007
Definition of Crimes
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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
Canada
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It is thus clear that there must be some special mental
element with respect to the death before a culpable
homicide can be treated as a murder. That special
mental element gives rise to the moral blameworthiness
which justifies the stigma and sentence attached to a
murder conviction. I am presently of the view that it is a
principle of fundamental justice that a conviction for
murder cannot rest on anything less than proof beyond a
reasonable doubt of subjective foresight. … [However],
for the sole purpose of this appeal, [I will] go no further
than say that it is a principle of fundamental justice that,
absent proof beyond a reasonable doubt of at least
objective foreseeability, there surely cannot be a murder
conviction. R. v. Vaillancourt [1987] 2 S.C.R. 636 par. 28
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Command Responsibility in
Canada
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5(1) & 7(1) A military commander
commits an indictable offence if
(a) the military commander
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(ii) fails, before or after the coming into force
of this section, to exercise control properly
over a person under their effective command
and control or effective authority and control,
and as a result the person commits an
offence under S. 6
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Command Responsibility in
Canada
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(b) the military commander knows, or is
criminally negligent in failing to know,
that the person is about to commit or is
committing such an offence, and
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Command Responsibility in
Canada
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(c) the military commander subsequently
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(i) fails to take, as soon as practicable, all necessary
and reasonable measures within their power to
prevent or repress the commission of the offence, or
the further commission of offences… or
(ii) fails to take, as soon as practicable, all necessary
and reasonable measures within their power to
submit the matter to the competent authorities for
investigation and prosecution
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Canada’s Record
Somalia-related Prosecutions
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To go further into the factors which constitute
negligence I tell you that as a matter of law the alleged
negligence must go beyond mere error in judgement.
Mere error in judgement does not constitute negligence.
The alleged negligence must be either accompanied by a
lack of zeal in the performance of the military duty
imposed or it must amount to a measure of
indifference or a want of care by Major Seward in the
matter at hand or to an intentional failure on his
part to take appropriate precautionary measures.
Instructions of the Judge Advocate to the Trial Panel, as quoted in R. v.
Seward CMAC-376 (May 27, 1996) at page 14.
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Canada’s Record
Somalia-related Prosecutions
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The count addressed a failure in command. The
evidence when interpreted reasonably and in a way most
favourable to the respondent amply demonstrates that
this failure resulted in, at best, confusion in 2 commando
and must be taken to have led ultimately to excesses by
some of the respondent’s subordinates. This not only
contributed to the death, … but also contributed
to several members of the Canadian Armed Forces
committing serious lapses of discipline and
ultimately finding themselves facing serious
charges. … These matters all properly related to the
charge, as particularized, that the respondent “failed to
properly exercise command over his subordinates.
Seward at pg 16
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Canada’s Record
Somalia Inquiry
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From the Somalia Inquiry Report: “LCol Mathieu noted that 2
Commando in particular was being overly aggressive, and on
January 16, 1993 a record of reproof was issued to Maj Seward, its
officer Commanding. This formal disciplinary measure was used
rarely, and procedure required that it be filed immediately with
NDHQ.
LCol Mathieu explained the action in the following manner: "Despite
repeated direction by the Commanding Officer to reduce the level of
aggressiveness exhibited by his command, while conducting patrols
in Belet Huen, Major Seward continued to permit his commando to
act aggressively toward the population. This was in complete
contradiction to the policy being implemented by the unit.“
Maj Seward recorded his reaction to the reproof in his diary, writing
"If I hear any more [of Mathieu's] hearts and minds bullshit, I'm
going to fucking barf." Command problem?
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Canada’s Post WW II
Litigation Experience
The boys
40
Canada’s Record
Mugesera v. Canada (Minister of Citizenship and
Immigration) [2005] SCC 40
 established the essential elements of the crimes of
incitement to genocide (par. 82 - 89) and
counselling murder (the Court found that a murder
must result before the domestic crime of
incitement to murder is raised to the level of an
international crime at par. 136);
 determined whether inciting hatred could amount
to persecution (it can, par. 150); and
 established the constitutive elements of a crime
against humanity (pars. 152 – 175).
 http://www.ccij.ca/programs/cases/index.php?DOC_INS
T=3
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Canada’s Record
R. v. Munyaneza 2009 QCCS 2201 (2009
QCCS 4865)
 2 counts of Genocide (murder and causing
serious bodily or mental harm to members
of the Tutsi group, with the intention of
destroying in whole or in part…);
 2 counts of crimes against humanity
(murder and sexual violence); and
 3 counts of war crimes (murder, sexual
violence and pillaging).

See Canadian Centre for International Justice site at:
http://www.ccij.ca/programs/cases/index.php?DOC_INST=12
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Canada’s Record
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Jacques Mungwarere is accused of having
participated in the killing of Tutsi at Mugonero
Hospital, Murambi Adventist Church, Gitwe
Catholic Church and in Bisesero.
He was arrested by the Royal Canadian Mounted
Police (RCMP) on Friday, November 6th, 2009 in
Windsor.
He has been charged with 2 counts of Genocide
and 2 counts of Crimes Against Humanity
Trial - taking place in Ottawa now
http://www.ccij.ca/programs/cases/index.php?DOC_INS
T=19
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Canada’s Record
R. v. Ribic [2005] OJ 4261 (sentencing decision), Appeal
dismissed [Nov. 24, 2008] ONCA 790 (Docket C44148)
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May 26, 1995 – Nicholas Ribic, a Canadian citizen of
Serb descent, assisted in the hostage taking of UN
military observers CF Captain Patrick Rechner and Czech
Captain Oldrich Zidlik, near Pale, Bosnia. The men were
chained to a pole near Serb a munitions dump in an
effort to halt UNPROFOR bombing of the area.
Charged with four counts of hostage taking contrary to
section 279.1 of the Canadian Criminal Code (and 7(3.1)
for jurisdiction).
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Canada’s Record
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Found guilty of two counts of hostage taking by
detaining (but not guilty of hostage taking by seizing)
and sentenced to three years on each count, to be
served concurrently
Appeal: “Canada’s armed forces… who participate in
[UN] peace-making and peace-keeping efforts around
the globe … and the armed services of all of the member
states of the [UN] have a very real interest in the trial of
this case.”
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Canada’s Record
Minister of Citizenship and Immigration v. Rogan,
2011 FC 1007 Aug 18, 2011
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Citizenship Revocation Action (Federal Court of
Canada)
Ethnic Serb, obtained refugee status in 1994 in
Belgrade, obtained Citizenship in 1997
Test: reasonable grounds to believe claimant
was complicit in core crimes (and so excluded
from refugee process under s. 19(1)(j) of the
Imm Act 1984)
Test: On balance of probabilities, subject
committed fraud on application
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Canada’s Record
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Minister of Citizenship and Immigration v. Siefert
(2004) FCA 343 (extradited to Italy)
Other Prosecutions under the National Defence
Act and Queen’s Regs and Orders following the
Somalia deployment, essentially for failure to
properly exercise command and/or torture
(Seward, Mathieu, Brocklebank, Boland, Sox,
Brown )
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Bibliography

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Oosterveld, Valerie, Mike Perry & John McManus, The Cooperation
of States with the International Criminal Court, 25 Fordham Int’l LJ,
(March 2002) 767
Kaye, David A, Justice Beyond The Hague: Supporting the
Prosecution of International Crimes in National Courts, Council of
Foreign Relations Special Report No. 61 (June 2011)
http://www.cfr.org/international-criminal-courts-andtribunals/justice-beyond-hague/p25119
Gioia, Federica; State Sovereignty, Jurisdiction and ‘Modern’
International Criminal Law: the Principle of Complemetarity in the
International Criminal Court, 19 Leiden J Int’l L (2006) 1095

Morten Bergsmo, Nobuo Hayashi and Mads Harlem (editors):
Importing Core International Crimes into National Criminal Law,
Torkel Opsahl Academic Epublisher, (2010) at:
http://www.fichl.org/publication-series/
48
More Bibliography

McManus, John (2004). "A New Era of Accountability
through Domestic Enforcement of International Law." In
La voie vers la Cour pénale internationale: tous les
chemins mènent à Rome (The Highway to the
International Criminal Court: All Roads Lead to Rome),

ed. Hélène Dumont and Anne-Marie Boisvert. Montreal:
Éditions Thémis.
McManus, John and Matthew McManus "National
Prosecutions." Genocide and Crimes Against Humanity.
Ed. Dinah L. Shelton. Gale Cengage, 2005. eNotes.com.
2006. <http://www.enotes.com/genocide-encyclopedia/
49
Irish Centre for Human Rights
Summer Course on the International Criminal
Court
2012
Addressing core crimes in the
Domestic Context
John McManus
Counsel and Team Leader
War Crimes Section, DOJ
[email protected]