ON FOREIGN AFFAIRS AND
DES AFFAIRES ÉTRANGÈRES ET
DU COMMERCE INTERNATIONAL
[Recorded by Electronic Apparatus]
Tuesday, May 30, 2000
The Vice-Chair (Ms. Colleen Beaumier (Brampton West—Mississauga,
Lib.)): I'd like to call the meeting to order.
Today we're here to once again discuss Bill C-19, 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.
Our first witness today is Philippe Kirsch. He is from the
International Criminal Court Preparatory Commission and was the chair.
I believe you're now an ambassador, but this was your baby, I
Mr. Philippe Kirsch (Chairman, International Criminal Court
Preparatory Commission): Thank you very much, Madam Chair.
I'm very happy to be here before the standing committee today to
discuss the International Criminal Court and the ongoing discussions
of the ICC Preparatory Commission.
I will be making my presentation mainly in English, but I would of
course naturally be very happy to answer questions in either one of
the two official languages.
I would add that as ambassador of Canada to Sweden, I was not
involved in the preparation of Canadian legislation, and more
specifically Bill C-19, and I therefore am not in a position to
comment on the bill itself.
Furthermore, as Chair of the International Criminal Court Preparatory
Commission, I could describe the position of other countries, but I
will not make value judgments on the position of these countries.
I believe everyone here is familiar with the reasons why an
International Criminal Court has been created. The establishment of
the ICC is a culmination of a series of international efforts to
replace the current pervasive culture of impunity with a culture of
accountability. The adoption of the Rome Statute followed at least
five decades of efforts in that direction, frustrated by the Cold War.
The tribunals for Yugoslavia and Rwanda were an important step
forward, but they were neither a permanent nor a completely
satisfactory solution. These were ad hoc tribunals entailing lengthy
delays and additional costs in establishing a new institution for each
situation. In addition, those tribunals are subject to Security
Council control, which alone selects a situation within their
Finally, a permanent court is designed to serve as a more effective
I will address two issues in my presentation. One concerns certain
major features of the ICC statute and the other is the current
situation, and then the future. With respect to the first element,
the statute, given time constraints, I will focus on three of its
features: first, the crimes; second, the complementary regime; and
third, the safeguards included in the statute.
The court will deal only with the most serious crimes of concern to
the international community as a whole. It will have jurisdiction over
genocide, crimes against humanity, and war crimes.
It was agreed by all participants that the purpose of the statute was
not to create new law. The purpose was to establish an essential new
institution to help enforce existing customary law. This is an
important point. There was considerable support from certain states
and organizations to include certain provisions which would have
advanced international criminal law, but eventually there was
agreement not to do so.
Thus, the definition of genocide is based strictly on the genocide
convention. The definition of crimes against humanity is drawn from
the statutes of the Yugoslav and Rwanda tribunals, the Nuremberg
charter, and the jurisprudence of those bodies. The definition of war
crimes is drawn from the Geneva Conventions of 1949 and other sources
such as the Hague Convention of 1909 and some provisions of the
additional protocols of 1977.
Consistent with established developments in customary law, the
statute affirms that the most serious crimes, war crimes, may be
punished also when committed in internal armed conflicts. Similarly,
the definition of crimes against humanity recognizes that such crimes
may be punished whether committed in war or in peace. So the statute,
adopted as it was by so many states, is a useful codification of
existing international criminal law.
The second major feature I wanted to address is complementarity. The
ICC will complement, not replace, national courts. The ICC will
exercise jurisdiction only where national systems are unwilling or
unable to genuinely investigate or prosecute. This recognizes the
sovereign rights of states to have the first opportunity to prosecute.
It also is designed to avoid overwhelming the court with too many
cases and gives the states an incentive to prosecute offenders.
Some of the participating states at the Rome conference were
initially concerned that the ICC might lightly set aside a national
investigation in order to seize jurisdiction. To address this
concern, the statute contains a very rigorous threshold before a
national procedure can be considered not genuine, that is, the state
must be carrying out a deliberate sham to shield a perpetrator from
justice or the national judicial system must have collapsed.
In making this determination, stringent procedural requirements must
be met. Not only must the prosecutor be persuaded, but also a
pretrial chamber, and there is a further appeal to an appeals chamber.
Thus, where a national judicial system is functioning, the ICC need
not, and will not, intervene.
Finally, on the statute itself, I understand that concerns have been
raised about whether this institution will be unaccountable or
irresponsible. These types of concerns were voiced in the negotiation
of the Rome Statute. As a result, a very high number of safeguards
have been included to prevent this possibility. The provisions are
too numerous to mention, but I will give some examples.
First, there are specific qualifications and criteria for candidates
to be considered as potential judges and officials of the ICC. A
candidate must be elected by the Assembly of States Parties.
Second, there are checks and balances within the ICC to ensure
professional behaviour. For example, there is a pretrial chamber,
which oversees the work of the prosecutor to ensure that prosecutor
respects the statute, the rights of the accused, and the rights of
Third, if despite those safeguards there was somehow abuse or
misconduct by an ICC official, there are procedures for removal from
office of those individuals by the Assembly of States Parties.
Fourth, the statute upholds and affirms the internationally accepted
principles of criminal law.
Fifth, the statute contains provisions throughout that guarantee all
the internationally recognized rights of suspects or accused persons
at every stage of the proceedings.
Sixth and last, the procedures of the court are designed to provide
the highest standards of justice.
The concern to respect the sovereignty of states is woven throughout
the statute. There is the principle of complementarity, which I
mentioned, and the safeguards I also mentioned above. Wherever
sensitive issues do arise with respect to the sovereignty of states,
for example, in providing mutual assistance, or with respect to
national security information, there are procedures for sustained
consultations with states. The court is overseen by an Assembly of
States Parties, which will provide management oversight of the court
and decide its budget and so on.
These are only some of the safeguards in the statue. Many
delegations—you can appreciate the diversity of participants in the
world conference—were concerned about ensuring credible and
responsible operation of the court and included many provisions to
bring that about.
Turning to the future, the efforts of governments and of civil
society are now focused in two areas. One is the negotiation of
details of the court's operations, taking place in the preparatory
commission, and the second is the drive to sign and ratify the ICC
statute. The preparatory commission has held four sessions so far and
will meet again on June 12 for a three-week session, which has a
special significance, for reasons I will explain later.
The task of the preparatory commission is to develop necessary
instruments concerning the technical aspects of the court's operation.
Once the statute enters into force and the Assembly of States Parties
exists, then those documents will be submitted to that assembly for
consideration and adoption. The preparatory commission will then
cease to exist. The preparatory commission's work is to set the
The mandate of the preparatory commission has been defined by the
Rome conference. It includes, first, the task of preparing the draft
rules of procedure and elements of crimes; second, a relationship
agreement between the court and the United Nations; third, an
agreement on privileges and immunities of the court; fourth, basic
principles for the headquarters agreement with the host country, the
host country being the Netherlands; fifth, financial regulations and
rules; and sixth, a budget for the first financial year.
The preparatory commission will also discuss proposals for exercise
of jurisdiction of the court over the crime of aggression. Finally,
the General Assembly, independent of the conference, has asked the
preparatory commission, in connection with its mandate, to discuss
ways to enhance the effectiveness and the acceptance of the court.
The objective of the work of the preparatory commission will be a
fair and effective implementation of the Rome Statute. Its mandate is
not a revision of the statute. That could only be done by a review
conference, which is supposed to be held seven years after the entry
into force of the statute. In other words, the preparatory commission
has the obligation to respect the balance achieved at the Rome
conference, but to build on it to enhance support for the
International Criminal Court.
Two of the instruments I mentioned, the elements of crimes and the
rules of procedure, must be completed by June 30, 2000. The elements
of crimes document will elaborate the precise elements to be proved
with respect to the crimes in the statute. The rules of procedure and
evidence will of course articulate the procedures of the court with
more precision. There is a lot of work still remaining for June, but
the atmosphere in the preparatory commission has been quite positive,
and there is really every reason to anticipate a successful outcome of
its work at the end of June, at least on that part of that work.
The statute will enter into force once 60 states have ratified it.
Ratification efforts are underway in capitals around the world. The
number of signatures that has been obtained so far—now 96—I believe
reflects the genuine commitment of states to pursue this process to
completion. Many more signatures are expected to be achieved by the
time of closing, which is December 2000.
The pace of ratification is now picking up as a number of states are
in the process of completing their domestic procedures. As an
illustration of this momentum, I would note that two states have
ratified the statute since early May, when Bill C-19 was referred to
the standing committee. So ten states have now ratified, with many
more expected in the near future, including between now and the end of
I would also mention that many states that were initially hesitant
about the International Criminal Court have now joined in support of
the court. This reflects increased public and political support for
the establishment and operation of the court, and this is due to three
First, the statute and the court itself are now much better
understood than at the time of the Rome conference. I think it is
quite clear to states that the court has been designed to function as
a judicial body, not a political body.
Second, it is now clear that the court will come into existence in
the fairly near future.
Third, even though some states initially had hesitations about some
aspects of the statute, most states have concluded now that the
establishment of an international criminal court is such a tremendous
positive achievement that they have decided to build on the basis of
how the statute exists now, despite their initial reservations.
Canada has a very special role to play, that of maintaining the
momentum that led to the establishment of the International Criminal
Court. Canada was the first country to table an act, a comprehensive
act dealing both with domestic law and the ratification process. I
hope that the members of the committee will agree that the
International Criminal Court deserves the support it now receives from
the vast majority of countries and from Canada, and that Canada will
do everything in its power to maintain this impetus in favour of
better international justice.
As I stated at the beginning of my presentation, I do apologize for
having made most of my remarks in English. I am of course at your
disposal to answer any questions you may wish to ask in either of the
Thank you very much, Madam Chair.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
To begin questioning, Mr. Anders.
Mr. Rob Anders (Calgary West, Canadian Alliance): I would like to
point out that this is my first time sitting in on the committee. I'm
subbing for a colleague of mine, Gurmant Grewal, who couldn't be here
There was a constituent of mine who wrote in with regard to this
whole matter, Lorraine Adlington, and she was wondering how such an
organization or a body would be able to overcome the objections of
states that oppose your interests or your presence.
Mr. Philippe Kirsch: Could you repeat your last sentence?
Mr. Rob Anders: She wondered how this type of centre for criminal
law or an international court like this would be able to get around a
particular state that would oppose your interest or your presence in
Mr. Philippe Kirsch: The statute of the court has been a
thoroughly negotiated document in most of its parts. There were
concerns that remained at the end of the Rome conference with some
aspects, the most prevalent being the jurisdiction of the court, but
on almost everything else the statute does represent a balance between
a wide range of different interests.
I mentioned during my intervention that I know for a fact that a
number of states that abstained on the Rome Statute, or even voted
against it in Rome, now not only accept the statute but speak openly
in favour of it. That is due, as I think I also mentioned earlier, to
the fact that as states study the statute as it actually is, they
realize that many of their concerns in fact have been accommodated in
the text, including in particular the concern that a court could
infringe on the national sovereignty of states. I think it is very
clear when you read the statute that the first right of refusal in
normal circumstances belongs to states.
If crimes under the jurisdiction of the statute are committed, it is
incumbent on the states having jurisdiction to investigate and
prosecute those crimes. It is only in the most flagrant cases, where
clearly justice is not going to be served—and that means, indeed,
either that the state refuses to take jurisdiction, does not do
anything, or conducts investigations or prosecutions that, for
example, are clearly aimed at protecting the accused, not at reaching
conclusions based on law, or when the judicial processes have
collapsed—that the court will take jurisdiction.
Mr. Rob Anders: Just this morning I took in a meeting with regard
to Burma and some of the situations that have transpired there over
the last number of decades since independence in 1948. Say, for
example, that you had a government like the Burmese government, which
is complicit with various things that you would oppose. How would you
deal with a state like Burma?
You said that some states abstained or voted against the Rome
conference. What were their reasons for doing so? And how would you
deal with a state like Burma that would be complicit with some of
these things you take issue with?
Mr. Philippe Kirsch: On the question of the relationship between
states and the court generally, I should first point out that only
states that are parties to the court have obligations vis-à-vis the
court. Those that are not parties do not.
The way the court establishes jurisdiction depends on the way
jurisdiction is triggered. As I said earlier, the jurisdictional
regime of the court was intensely debated in Rome, and the conclusion
was that for the court to have jurisdiction in normal
circumstances—that is, if the prosecutor has triggered jurisdiction
of the court or if a state party has triggered jurisdiction of the
court—then you need the consent for the court to exercise
jurisdiction either of the state of the nationality of the accused or
the state of the territory where the crime has been committed.
The solution to a situation like the one you describe depends on two
factors. One is that of course we all would wish the jurisdiction of
the court to be accepted either generally or on a case-by-case basis
by as many states as possible with a view to making its jurisdiction
eventually universal. But there is another tool that is available to
trigger the jurisdiction of the court, and that is that the Security
Council can trigger that jurisdiction. In that case, of course, the
Security Council doing this has many more powers to ensure that
jurisdiction of the court is in fact implemented.
The Vice-Chair (Ms. Colleen Beaumier): Madame Lalonde.
Ms. Francine Lalonde (Mercier, BQ): This is a new institution, but
it is more than that. It is truly the establishment of an
international justice system for the most serious of crimes.
As to the effects of this, we are already seeing some: for example,
the tribunal that was established in the case of Rwanda. But we know
that there are a certain number of problems there. How would you
compare the future court and the tribunal set up for Rwanda? What will
be similar and what will be different?
Mr. Philippe Kirsch: If we are establishing this court rather than
maintaining the system of ad hoc tribunals, it is to a great extent
due to the problems that these ad hoc tribunals have encountered. They
had operational problems that we are well aware of. I believe that it
is fair to say that over time these problems will gradually disappear.
Their operation is much more flexible and much more efficient then
when they were first set up. That is what I would say about the
As to the principles, the establishment of ad hoc international
tribunals gives rise to a certain number of problems: financing
problems, because you start from scratch, problems of equipment, human
resources and procedure, because all of these must be put into place
each and every time. This therefore brings about lengthy delays and
requires a form of breaking in that is difficult to accomplish every
The advantage of the International Criminal Court, from that point of
view, is that it will be a permanent institution that, once
established, will have its own procedures. We will no longer be faced
with all of these start-up difficulties the tribunals have
encountered. There is therefore a tremendous difference between the
tribunals and the Court from this point of view.
Another difference, obviously, is that these tribunals have limited
jurisdiction, restricted to a certain period of time, to specific
events and to a precise geographic area. Therefore, their operation
mode is necessarily very limited. The International Criminal Court«s
jurisdiction will be much more general.
I would mention a third element, that I alluded to in my
introduction. These ad hoc tribunals are necessarily created by the
Security Council, which has the authority to do so but which only does
it when that is its pleasure. It is perfectly clear that in a certain
number of international situations where similar crimes had been
committed, no tribunal was ever set up. Therefore, the Criminal
Court«s aim is to establish a regime that will be free from all of
Another difference, and it is the last one that comes to mind for
now, is that these ad hoc tribunals have priority as far as
jurisdiction is concerned. In other words, if a state has jurisdiction
over specific crimes at the same time as an ad hoc tribunal, it is the
latter that takes precedence over the former. In the case of the
Criminal Court, the situation is different. In principle, it is the
State that will have priority. It is only when the legal system of the
State is not really working, either because it no longer exists or
because it is being manipulated, that the Court will have
jurisdiction. This will also have an impact on costs.
It is obvious that when a tribunal has priority jurisdiction in a
given situation, it is it that will have to take care of all of the
cases and that will therefore have to cover all of the costs. In the
case of the International Criminal Court, the number of cases
presented to it will most probably be more limited because most
States, Canada being a prime example, exercise their jurisdiction in a
way that is totally legitimate and do not require outside
The Vice-Chair (Ms. Colleen Beaumier): Mr. McWhinney.
Mr. Ted McWhinney (Vancouver Quadra, Lib.): Mr. Kirsch, welcome
back to Canada. I think we all take great pride in your performance
as chair of the committee to complete the adoption of the treaty on
the Rome tribunal. As you know, you were drafted for this, you were
plucked up by unanimous consent, I believe, in the Security Council as
the man to chair this committee. We all take great pride in this, and
having seen you in action early in your career, I think it's a
wonderful cap to your career.
This having been said, may I ask you something on the timetable for
the adoption of the treaty? As you know, with the Law of the Sea
Convention, to which Canadian jurors contributed significantly, in
fact I think the legal division of our foreign ministry and perhaps
Singapore and Venezuela provided the ginger group—the new ideas on
the law of the sea reflected in the 1982 convention. But there was a
substantial lag in the Canadian ratification of the treaty. This
meant, effectively, that when the treaty became law when the minimum
number of 60 ratifications were completed, we were not part of the
process; we didn't participate in the setting up of the tribunal or
the organization and structuring of that tribunal.
I'm wondering what you envisage as a timetable for the Rome treaty in
terms of ratification. What is the situation in terms of the numbers
of ratifications achieved to date? Secondly, what's Canada's role?
Thirdly, what would be your prediction of when it will come into
operation, and are you able to say that we will be in from the
beginning once it's ratified?
Mr. Philippe Kirsch: Thank you very much.
I think a comparison with the Law of the Sea Convention is
interesting. I think, to show my cards right away, I'm much more
optimistic on the timetable in this case than I was on the Law of the
Sea Convention, and the reason is that I think that after the adoption
of the Law of the Sea Convention it was realized that there were real
problems with the convention that had to be corrected one way or
In this case, the process is almost the opposite. The more states
look at the ICC statute, the more they are satisfied, not only that
there are no serious problems to correct, but that the statute should
remain exactly as is. So that's the framework.
With respect to your particular question, you need 60 states to
ratify the statute for it to enter into force. There are 96 states
that have signed the statute, of course not ratified but signed, and
my considered assessment of that situation is that no state would
ratify an international instrument of that kind without actually
having the intention to pursue the process to completion, up to and
including ratification. I think in large part the early signature of
states is designed to show that, yes, that state also supports the
statute and it is going to be a viable institution.
With respect to the question of ratifications, which are
accelerating, we have now ten states that have ratified the statute
out of 60, and of course the question is often asked, legitimately,
whether this is likely to be a concern that the statute may enter into
force after a number of years. My own evaluation is that it is not a
concern, because the statute, as we well know in Canada, is an
extremely complex document that requires in most states, first of all,
the adoption of an extensive body of legislation to ensure that
domestic law corresponds to international obligations being accepted
by those states. But in some cases, also, there is the appearance of
contradictions between the ICC statute and even the constitution of
some states. That requires a very thorough evaluation of the methods
that can be adopted to correct those situations.
In the case of France, for example, they have decided that, yes, an
amendment to their constitution was required, and they have proceeded
with it. In the case of Spain, I was in Madrid last week for a
regional seminar, and they have made the same analysis and concluded
that there is in fact no contradiction between the Spanish
constitution and the ICC statute. Therefore, they will ratify without
the need for any changes.
My more general point is that given the need to study domestic
legislation with the kind of care that is required to ensure that the
state complies with international obligations, it takes a lot of time.
But what happens simultaneously is that there are a high number of
states going through the same process at exactly the same time. My
conclusion is that we will see in the next couple of years a flurry of
simultaneous ratifications as all these simultaneous processes reach
their conclusions more or less at the same time.
More specifically, at the risk of being contradicted by facts, my
assessment is that the statute should enter into force in no more than
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Ted McWhinney: Is my time up?
The Vice-Chair (Ms. Colleen Beaumier): Yes, I'm sorry, it is. We
have time constraints here, because we began late.
Mr. Ted McWhinney: I understand. I respect the rules.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Anders, quickly, please.
Mr. Rob Anders: You mentioned that the court would step in where
there were cases of manipulation of the state courts, for example. I
was wondering what would be defined as manipulation. Would delays of
the state justice system qualify? What about the skew of the
interpretive document that they look to make judgment on? Would it be
possibly a litmus-tested, kind of politically stacked court system?
What would qualify as manipulation of the state court?
Mr. Philippe Kirsch: I would like to go back just for a second to
existing situations because it is easier to understand it through
Look at what happened in former Yugoslavia or in the case of Rwanda.
If you take as a premise that the regime under which certain crimes
have been committed is still in place and if you also know, which I
think is quite an established fact, that some of those crimes have
been committed or ordered or authorized by the agents of the state
itself, you will easily reach the conclusion that there is no way you
can expect a normal judicial process to take place in this kind of
situation. That is really the core, the basis, for this
complementarity principle, where it is clear in certain situations
that nothing will actually happen.
You need to establish that the decision has been taken for the
purpose of shielding the person concerned or that there has been an
unjustified delay or that the proceedings are not conducted
independently or impartially or that the proceedings are conducted in
a manner that is inconsistent with an intent to bring the person
concerned to justice. This basic provision, which is article 17 of
the statute, will be supplemented by relevant rules of procedure and
evidence. I think this should be enough to give at least a sense of
what that provision was designed to achieve.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Kirsch, I am
very pleased to see you here before the committee. I would like, as I
have done on other occasions, to congratulate you for the work you did
at the conference that brought about the Rome Statute. We all
recognize that you and your colleagues have done a remarkable job and
that you are of those who succeeded where others before you had
failed, since we began talking about the establishment of an
international criminal court. You were most probably one of the great
artisans of this success story that our international community should
be proud of and you are continuing to work to ensure the success of
I would like you to talk to us about the substantive work of the
Preparatory Commission, because it is to a great extent completing the
work of the conference as to the substance. I am thinking here more
particularly of the elements of crimes. One of the things that I have
stated here is that the Commission will most probably be adding to the
statute something that perhaps deserved to be looked at by the
committee or by the House of Commons so that we might be familiar not
only with the statute, but also with any determining element that
might be added to it. That is my first question. I would like to know
at what stage the work is at and if you believe it would be useful for
Parliament to deal with the question of the elements of crimes and to
study it once the Commission has concluded its work in this area.
My second question—and I believe that this will interest you in the
context of your present responsibilities—pertains to what Canada is
hoping for as far as participation and presence in the International
Criminal Court are concerned. Mr. McWhinney stated that the important
role that Canada played during the negotiations of the Law of the Sea
Convention did not translate into a presence for Canada nor a Canadian
sitting on the International Tribunal on the Law of the Sea. Is there
a Canadian who is a member of the Tribunal?
Mr. Ted McWhinney: No.
Mr. Daniel Turp: Do you believe it would be important that the
first International Criminal Court include a Canadian judge? Are the
work and present participation—yours and that of other
Canadians—leaning in the direction of this will to be associated with
the court as soon as it begins its work?
Mr. Philippe Kirsch: Thank you very much. First of all, I would
like to thank you for your introductory words, in the same way I would
like to thank Mr. McWhinney for the comments he made earlier.
Your first question related to the work of the Preparatory Commission
and more specifically to the elements of crimes. The elements of
crimes have a rather particular history, and I believe it is worth
looking at it again. Most of the states who participated in the
Conference of Rome did not wish to see the elements of crime
developed. They believed that the list of crimes contained in the
statute was sufficient and that it would be up to the tribunal to
develop, if need be, case law applicable to each one of the crimes in
The United States in particular, and a few other countries, wanted to
see the elements of crimes developed separately so as to tie the court
in its interpretation of crimes defined in the statute. This proposal
was not acceptable, in the form in which it was presented, to the vast
majority of states. Various reasons were given. One of them was that
most of the other states did not believe that these elements of crimes
were necessary. Another reason was the fear that the crimes defined
under the statute would be indirectly modified by these elements of
Thus, the agreement that was reached in the end, given the insistence
of the United States, and that had been the object of numerous
concessions during the negotiations, was that the Preparatory
Commission would prepare the elements of crimes for adoption by the
assembly of states, but that these elements of crimes would only be
used as guidelines for the court in its interpretation of the crimes
defined in the statute and would have no binding force.
The statute itself also provides that the elements of crimes must
never stray from the statute.
I will give you a simple example relating to the elements of crimes.
Let us suppose that there is an attack against civilians, and
therefore a war crime. The element of the crimes in this particular
case will have to show three things: first of all, that the
environment surrounding the crime exists, in other words that there is
an armed conflict going on; secondly, that the particular crime of the
attack against civilians was committed; and, thirdly, that the person
who committed this crime intended to commit it and that it was neither
a mistake nor an accident. This is very schematic, but these truly are
the three elements, to my mind, that exist in the elements of crimes.
Obviously, some crimes are much more complicated than others and there
are all sorts of subdivisions, but I believe that it is the schema of
each element of crime that is developed in the elements of crimes.
I will not hide from you the fact that when the Preparatory
Commission began its work, several participants thought that even with
these modified elements of crimes, as contained in the statute, there
was a risk that this would change the definition of crimes contained
in the statute itself. Over the course of negotiations, it never
happened that each of the elements of crimes defined in the document
in question corresponded to the satisfaction of all to the crimes as
defined in the statute.
Certain fears relating to certain crimes contained in the statute
have been calmed by the definition of elements of crimes. I believe it
might be appropriate to mention here the transfer of the peoples of
occupied territories, that was a major problem encountered by Israel
and the main reason why Israel voted in Rome against the statute, and
Over the course of the negotiations on this matter, it became clear
that Israel«s fear was that, with the formulation adopted in the
statute, which was slightly different from that that had existed
previously in the relevant instruments, they were creating new
international humanitarian law without knowing where it was going. The
position of the Arab countries was that they feared that with this
formulation we were stepping back from international humanitarian law.
The solution to this situation was the inclusion, via a footnote, of
a provision stating that these particular elements of crimes would be
interpreted in the context of international humanitarian law. This
provision brought Israel and the Arab countries to accept not only the
pertinent element of crime, but also the crime as defined in the
statute. These elements of crime bring clarification, but cannot
modify the crimes as defined in the statute.
As far as your last question is concerned, obviously, it is somewhat
difficult for me to....
The Vice-Chair (Ms. Colleen Beaumier): Excuse me, Mr. Kirsch. I'm
sorry. We have a number of other witnesses. We're way over time now.
Mr. Daniel Turp: But this is important. Could we not grant him
a few minutes to answer the question?
The Vice-Chair (Ms. Colleen Beaumier): Could he give it to you in
writing, please? We have other witnesses here who have prepared to
testify and to answer questions and we're very late.
Mr. Daniel Turp: [Editor«s note: Inaudible]... Madam Chair.
The Vice-Chair (Ms. Colleen Beaumier): Would you consider putting
that in writing, please?
Mr. Daniel Turp: No, he won't put that in writing.
Voices: Oh, oh!
A member: Not at all.
The Vice-Chair (Ms. Colleen Beaumier): Can you answer it in 45
seconds or less?
Mr. Philippe Kirsch: I will try, Madam Chair. I apologize if my
answers have been longer than the questions.
I'm not in a good position to address that question directly, for
obvious reasons. I am absolutely convinced that Canada's commitment
to the International Criminal Court is sustained and will not fade
As for the modalities that the participation could take when the
court is created, I think I should defer to higher authorities.
Thank you very much.
Ms. Francine Lalonde: Forty-five seconds will not suffice.
Mr. Daniel Turp: Madam Chair, I would like to make a comment that
will take 30 seconds at the most. Mr. Kirsch said something that is
very important. He said that we had to take the time, as other
countries have done, to craft a good implementing act.
I would like to tell my colleagues opposite that we must take the
necessary time to make of Bill C-19 the best of bills. This week«s
schedule will not necessarily allow us the time we need for this bill
to be the best of bills.
Mention has just been made of points that Mr. Narvey, who wanted to
appear before us, underscores in the written document he has
circulated and which deserve to be understood by the committee.
It is not me but Mr. Kirsch who is saying that we must take the time
to do a good job of drafting the legislation implementing this
The Vice-Chair (Ms. Colleen Beaumier): I don't disagree with you.
Perhaps that can be discussed later, but right now, this morning, we
have other witnesses we would like to hear from.
Thank you so much for appearing. As you see, we have lots more
questions for you and I would suggest that people submit them in
writing. Thank you so much.
I will suspend the meeting for a couple of minutes while we regroup.
The Vice-Chair (Ms. Colleen Beaumier): Okay, I'd like to introduce
Today we have Bruce Broomhall, from the Lawyers Committee for Human
Rights; Alex Neve, secretary general of Amnesty International Canada;
Richard Dicker, counsel for Human Rights Watch; Donald S. Baker, a
private individual; and Joanne Lee, a research associate for the
International Centre for Criminal Law Reform and Criminal Justice
I'd like to ask Mr. Broomhall to begin.
Mr. Bruce Broomhall (Lawyers Committee for Human Rights): Thank
you, Madam Chair. I'd like to thank the committee for this opportunity
to address this legislation.
I should say at the beginning that the Lawyers Committee for Human
Rights is a member of the steering committee of the NGO Coalition for
an International Criminal Court, which is a coalition that has been
working on behalf of over a thousand non-governmental organizations
around the world over the past five years to ensure the creation of an
effective international criminal court. The Lawyers Committee in
particular supports the creation of an institution that, as we've just
heard from Ambassador Kirsch, promises to do a great deal to advance
the rule of law in an area that too often in the last century was left
to diplomatic and political constraints.
Although the Lawyers Committee for Human Rights is based in New York,
as a Vancouverite, I feel it's a particular privilege to have the
opportunity to return to Canada and address you here in Parliament.
I'd like to start by underscoring what Ambassador Kirsch said about
the way in which the International Criminal Court promises to advance
important work that has been done in the area of international justice
in these last ten years.
We know that at least since the end of the Second World War, and in
some senses even before that, there has been a movement towards the
legalization of human rights and of humanitarian aspects of the
conduct of war. During the Cold War, of course, we had some clarity
about these standards and we had some movement towards clarification
of their implementation, but we did not have significant progress
until the end of the Cold War. As you know, it was the ICTY and the
ICTR, the ad hoc tribunals for the former Yugoslavia and Rwanda, that
really made clear to the international community that the enforcement
of these standards was a feasible matter. I don't think anything added
more momentum to the process to establish an international criminal
court than those examples.
We're in an historical period when we are seeking to put flesh on the
bones of the legal standards and to draft up the rules of the road as
to how this international justice system will work as a matter of
practice and not simply of norms. As Ambassador Kirsch pointed out to
us, the ICC is going to be firmly based on ideas of sovereignty, on
what we call complementarity in International Criminal Court circles,
which sees a synergy, let's say, or cooperation between the courts of
national states and of the international community.
This model, which came out of the Rome diplomatic process, from an
NGO point of view was too full of compromises in many ways, too
limited for the liking of some of us. But at the same time, we
recognized that this was probably the best balance between sovereignty
and international justice that the world community was ready for at
the time. As Ambassador Kirsch says, we have thrown our efforts into
ensuring the maximum support for this institution.
In this we're not alone. Ambassador Kirsch mentioned that the
support from governments around the world has been truly remarkable.
The ten ratifications we have now promise to be followed, even before
the end of the next two months, by ratifications from leading European
states—I believe including Germany, quite possibly France, Belgium,
Portugal, and a number of other western Europeans. I believe having
12 or 13 of the 15 members of the European Union ratify it by the end
of this calendar year is not at all unrealistic.
With those states behind the ICC, along with Canada I hope, I think
we will see an increased momentum towards the establishment of this
court, because these are the states who are in some sense providing
the first political leadership. We have 28 or 29 sub-Saharan African
states who have signed the Rome treaty, some dozen states in Eastern
Europe, a similar number in Latin America. Our belief is that once
the western European states have thrown their support behind this, we
will see quite rapid movement towards ratifications in Africa and
Latin America. I believe that over time we will also see states that
remain skeptical in this process become more and more favourable
towards it as they see the advantages it provides for them.
Having said that, even at Rome the question of legislation to
implement the Rome Statute was discussed, and it has been discussed
more and more intensively ever since.
In October 1998, the first public forum in which I discussed the
implementation of the Rome Statute was at the University of Toronto,
on a panel that included the chair of this committee, Bill Graham. At
that point we were beginning to outline the kinds of criteria that
good implementing legislation would have to discuss the issue. I
wrote a document on it in early 1999, which I shared with members of
the Canadian government, and we received their views and comments on
it. A number of NGOs in Canada have been working diligently on the
issue. Over time, our thinking of what would constitute good
implementing legislation has become fairly clear, and seeing Bill C-19
in December as the first comprehensive example of implementing
legislation was really very welcome.
Of course members of this committee are familiar with Canada's
leadership role in this whole process of establishing an international
criminal court, leading up to Rome, in the Rome conference, and during
the preparatory commission process since. But we should be clear, I
think, that this kind of legislation is also important in signalling
Canada's commitment to going forward with this process and to setting
an example to other countries who are engaged in the same debates, the
same discussions, or who will be engaged in these debates or
discussions over the coming months.
Now, having said that, I should say a few things about the
legislation very briefly.
I said it was a very welcome piece of legislation when we first saw
it, and this is precisely because it is comprehensive. The Rome
Statute imposes an obligation to cooperate effectively with the court.
As we said, the ICC is a balance between sovereignty and the needs of
effective international justice. As such, it requires intensive
cooperation from states if it is going to be effective as an
institution, and how to make that cooperation effective while
respecting national systems is something that was intensely debated
during the diplomatic process.
The conclusion was an obligation in the Rome Statute for states to
cooperate with the court in providing evidence, in protecting
witnesses, in seizing proceeds of crime, and in a range of other areas
on request of the court, and to provide national laws that would
facilitate that where necessary. Those are the hard obligations, if
you like, under the Rome Statute, and in my reading of it, they are
covered very nicely by Bill C-19 as it's now drafted.
The other side is softer. It's not an obligation under the Rome
Statute as such, but as Ambassador Kirsch said, the principle of
complementarity, the fact that the ICC will be a secondary
jurisdiction, gives states a strong incentive to do justice
themselves. Something we were looking at from the very beginning was
how we could encourage states to incorporate the Rome Statute crimes
completely into their national systems, and of course Bill C-19 does
I should say as well that in addition to meeting the two sides of
what we were looking for in legislation on the Rome Statute, the
cooperation side and the complementarity side, Bill C-19 actually goes
beyond that, as members of the committee will be aware, in addressing
some issues that have arisen through the Canadian jurisprudence, the
Finta case primarily, and through providing universal jurisdiction, as
we call it, allowing these crimes, which are a narrow set of crimes
under international law, to be prosecuted in Canadian courts
regardless of where they were committed. That's a rule of law that
has been well established since the end of the Second World War and
possibly before that, but it's one that, as I say, only in recent
years we've been seeking to really put into practice.
Now, having said all these nice things about the legislation, I want
to make a point. There are a couple of points that, if this committee
were going to recommend changes to the legislation, I think it would
be worth looking at.
First, I have a question in my mind about the use of the word “may”
instead of “shall” in clause 57 of the legislation, where the
minister may authorize the Attorney General of Canada to make
arrangements for the enforcement of an order from the ICC. I
understand that the thinking on this is that “may” is an empowering
provision, empowering the minister to take action in response to a
request from the court, and the question of whether there is an
obligation to take that action is then dependent, among other things,
on international law. In this case, the international law of course
would be the Rome Statute, which effectively requires cooperation
except in a limited set of circumstances. So the question I would have
is whether that word “may” might not be better replaced by the world
“shall”, given that the Rome Statute provides procedures in the ICC
for challenging requests for assistance and so on.
Another point I wanted to raise was about surrender or extradition.
There has been a debate about the question of whether extradition
procedures should apply in the transfer of individuals to an
international court, which I believe members of the committee are
In the Rome Statute for the International Criminal Court there is
actually a definitional section, article 102, which sets out a
distinction between the two. Extradition is between states. Surrender
is between a state and the ICC, the principled reason being that the
ICC in some sense represents the international community. It provides
extensive safeguards. As an international institution, it doesn't
present the same political questions that, say, the political offence
exemption for extradition was created to take account of.
The thinking was that a more streamlined procedure would apply under
surrender than would apply under extradition between states. I have
to say the bill is welcome in this respect, in that it provides, under
the amendments to the Extradition Act, that grounds for refusal do not
apply. So this is a very welcome streamlining of the process with
respect to the ICC.
However, I wonder if this could not be streamlined somewhat further
by addressing the provisions for judicial review and appeal in the
Extradition Act. We know through the Pinochet proceedings in the U.K.
and other proceedings that these procedures can drag out a great many
years in some instances. I understand in Canada there is one case
that might provide an example of this at the moment, the Mugesera
case. The requirements in the charter would have to be taken into
account with the right to remain in Canada and so on, but one
amendment that might be worth looking at is to provide for appeal with
leave rather than an appeal as of right. I understand the charter
jurisprudence may allow that.
In any event, moving right along, I was going to suggest we take a
look as well at merging the provisions on prosecution outside Canada
with those for inside Canada. The legislation, as I see it, could
just as easily provide for prosecutions under customary law inside
Canada as it does for outside Canada in the present draft. I see no
reason under the charter for that.
Just to conclude, I would suggest looking at the possibility, though
not for this legislation, of providing for civil remedies under
Canadian law for victims of these crimes. This has worked quite
effectively in some jurisdictions and would be a welcome addition to
Canada's measures for international justice in this country.
Finally, I want to say these suggestions for amendments are without
prejudice to my suggestion that this legislation be passed as promptly
as possible to facilitate Canada's early ratification of the statute.
I personally would very much like to see Canada in the first ranks of
those ratifying the Rome Statute, and in particular I'd like to see
this legislation go out as an example to other countries. Belgium has
legislation at the moment, but it's broken into pieces; it's not a
unified piece like this. France will be delayed for some months.
Germany will provide too detailed a piece of legislation for use
internationally. The Canadian example here is really a very useful
one and one that other countries around the world are looking to. So
the earlier this committee could conclude its work the better from
Thank you very much.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Daniel Turp: I would like to ask if Mr. Broomhall will be
giving us a brief containing his amendment proposals.
The Vice-Chair (Ms. Colleen Beaumier): It was given in English.
We don't have the French yet, but it will be provided to you.
Mr. Daniel Turp: Is there a written text of proposed amendments?
Mr. Bruce Broomhall: I will provide one.
Mr. Daniel Turp: Could you do that?
Mr. Bruce Broomhall: Yes, I will.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Alex Neve (Secretary General, Amnesty International (Canada)):
Thank you, Madame Chair and committee members. Amnesty International
welcomes the opportunity to appear before you today, and Amnesty
International also very much welcomes Bill C-19.
The Crimes Against Humanity Act and the consequent ratification by
Canada of the Rome Statute will make an important contribution to a
crucial human rights goal: that those individuals responsible for
genocide, war crimes, and crimes against humanity will not benefit
Ironically, to date it is precisely the world's most serious
criminals—those responsible not for one or two acts of violence but
for hundreds or thousands of deaths—who have been the least likely to
be punished for their crimes.
Because of this gap in the international criminal justice system,
governments, security forces, rebel groups, and their allies have
continued to torture, to use rape as a tool for torture and war, to
commit mass murder, and otherwise to violate cavalierly the basic
human rights of children, women, and men, confident that there would
be no price to pay. Instead the perpetrators have seen much to be
gained from their heinous actions, usually in the form of political
power and economic self-benefit.
A system of international justice that holds human rights criminals
accountable will go far in beginning to break through this vicious
circle of impunity.
Amnesty International commends the Government of Canada for the role
it played leading up to and in Rome in 1998, for the role it has
continued to play since that time, and now for the clear indication
that ratification of the Rome Statute should follow soon after this
legislation is enacted. Canada's leadership on this issue has been
and continues to be important. With ten ratifications to date and
fifty to go before we reach the requisite threshold of sixty state
parties, it is certainly promising that Canada is readying to take
that step and ratify.
This legislation will also be reviewed carefully by many other states
and should serve as a model to other governments as they prepare for
ratification. As such, it is of particular importance that we have
the very best bill possible and that this bill set high standards.
Essentially we do consider this bill to be very good law, and we
believe it will go far in achieving those human rights objectives. I
would like to share with you this morning briefly four recommendations
as to ways in which we believe the legislation could be improved and
one thought for the future.
Firstly, on surrender and extradition, we are pleased to see that
some of the recommendations we had made previously regarding Bill
C-40, Canada's extradition legislation, but that were not fully
adopted at that time, have been taken into account in Bill C-19. We
had raised concerns that Bill C-40 failed to make sufficient
distinction between the process of surrender to an international
tribunal and extradition to a state. We were concerned that this
weakness meant extradition principles could be raised in surrender
proceedings, thus unduly protracting the process of surrender to the
relevant international tribunal.
We welcome the fact that one of the consequential amendments
associated with Bill C-19 is to specify that sections 44, 46, and 47
of the Extradition Act, which lay out the grounds for refusal open to
the Minister of Justice in extradition proceedings, explicitly will
not be available in the case of a request for surrender by the
International Criminal Court. However, we are of the view that the
failure to distinguish more fully the surrender process from
extradition proceedings is more largely unaddressed in Bill C-19 and
may become an obstacle to the timely transfer of accused individuals
to the International Criminal Court.
Clearly extradition proceedings can become lengthy judicial affairs.
A new procedure unique to instances involving surrender to
international tribunals could further streamline and expedite matters.
While such legal reform has not been proposed here in Bill C-19,
Amnesty International at the very least urges the government to ensure
this does effectively become the practice.
Secondly, for crimes in Canada and outside Canada, we have noted that
Bill C-19 proposes different definitions of “war crimes” and
“crimes against humanity” depending upon whether the acts or
omissions take place in Canada or abroad. If in Canada, the
definition applies only to acts committed after the legislation takes
effect. If abroad, the definition applies if the acts or omissions
were criminal according to international law at the time of the acts
or omissions. We urge the committee to recommend an amendment that
would use the latter standard in both instances.
On immunity, the Rome Statute in article 27 importantly establishes
that all persons, regardless of their capacity as heads of state, are
susceptible to prosecution. Any immunities that attach to the
official capacity of a person explicitly do not bar the court from
exercising its jurisdiction. The recent experience of the Pinochet
case in the United Kingdom illustrates the degree to which the defence
of immunity may be raised by heads of state and former heads of state.
Importantly, Bill C-19 does, through a proposed addition to the
Extradition Act, make it clear that immunity cannot be claimed by
anyone whose surrender is sought by the International Criminal Court.
We recommend that the bill also make it clear that article 27 will be
consistently applied by Canadian courts dealing with prosecutions in
Canada, so as to ensure claims of immunity will in no way stand in the
way of bringing accused human rights criminals to justice, be it in
Canada or in front of the International Criminal Court.
Fourthly, concerning the mental element, prosecution of war criminals
in Canada following the Finta decision became impossible due largely
to the decision of Mr. Justice Cory of the Supreme Court of Canada
holding that the requisite mental element of a war crime or a crime
against humanity was that the accused must be aware of or wilfully
blind to the fact that he or she is inflicting untold misery on his or
This mental requirement of intending inhumanity is not part of the
Rome Statute, which addresses the issue of mental element in article
30. We're of the view that the Finta ruling as to the requisite
mental element for war crimes and crimes against humanity is not
consistent with the Rome Statute. Unfortunately Bill C-19 does not
address this issue. We recommend that a clause be added making it
clear that article 30 of the Rome Statute will in all instances be the
test for the requisite mental element.
Finally, I offer a thought for the future. Bill C-19 importantly
establishes a strong Canadian legal framework for launching criminal
prosecutions either in Canada or before the International Criminal
Court. Experience in other countries, including the United States, has
demonstrated the degree to which civil remedies are also an important
and effective tool in taking action against humanity. Canadian law
does not provide a civil remedy of this nature.
We're not recommending that Bill C-19 be amended at this time to
include civil remedies of this sort, as we believe that would be a
time-consuming process. However, we urge the committee and the
government to consider further appropriate legislation at an early
My final word is to highlight again how important it is that Canada
quickly take steps to adopt this legislation and move on to ratify.
As we talk today, concerns about impunity are, as always, mounting
worldwide in places such as Colombia, Afghanistan, the Democratic
Republic of Congo, Sudan, and Russia with respect to Chechnya, to name
only a few.
It is often dangerous to take steps to address impunity at the
national level, although many courageously do. Last week, for
example, we expressed concern about death threats that had been
received by Judge Maria Servini de Cubria and a member of her judicial
team in Argentina. Judge Servini is in charge of the investigation
into the cases of children who disappeared during the years of
military government in Argentina.
And elsewhere impunity reigns supreme. In the midst of the ongoing
current crisis in Sierra Leone, one clear rallying cry from the Sierra
Leonian people has been for the United Nations to bring human rights
violators, such as Foday Sankoh, leader of the RUF, to trial on
charges of crimes against humanity. At the present time there is no
international tribunal that has the power to deal with the atrocities
in Sierra Leone, and the world cannot afford to wait any longer.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Daniel Turp: Are you going to draft precise amendments,
Mr. Neve? Would you be able to do that for the committee?
Mr. Alex Neve: Absolutely. I can provide further details, yes.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Richard Dicker (Counsel, Human Rights Watch): I want to thank
the committee for allowing me the opportunity to speak with you today
about this critically important and most welcome legislation.
It is important to note that Canada issued Bill C-19, as far as I'm
aware, on December 10, 1999, which was the 51st anniversary of the
Universal Declaration of Human Rights. I think that is not a
coincidence. We're most grateful for the linkage the Canadian
government has made between this legislation and strengthening human
I've been following the ICC negotiations for five years. From the
perspective of Human Rights Watch, the early establishment of the ICC
is urgently needed. It bears repeating even to parliamentarians as
knowledgeable as yourselves that the early entry into force of this
treaty is a crucial step in strengthening the enforcement of
international humanitarian law. The ICC, once it is up and running,
will bring justice to victims of genocide, crimes against humanity,
and war crimes. The court will be, we believe, a deterrent to the
commission of these crimes in the 21st century.
While not perfect—no treaty negotiated by 150 governments could be
perfect—we believe the ICC treaty creates the foundation for a court
that will be able to hold the Augusto Pinochets and Foday Sankohs of
the future to account under the highest standards of international
justice. In addition, this court, we believe, will strengthen
national courts in doing the job they are best placed to do—that is,
prosecuting these cases themselves.
This treaty is closely associated with Canada and the Canadian
commitment to human rights. I've been involved in the process since
1995, and I could give you, if time permitted, a lengthy list of
Canadian lawyers who, whether they represented the Ministry of Foreign
Affairs and International Trade, the Ministry of Justice, or the
Ministry of Defence, have contributed enormously to this treaty. I
can say unequivocably that we would not be in this room today
discussing legislation for the implementation of the treaty were it
not for the extremely skilful, able leadership of Ambassador Philippe
Kirsch, who managed to bring this treaty together in Rome under a
great deal of pressure. The need for continued Canadian leadership on
behalf of this treaty is still quite real.
I would like to address one of the outstanding issues generated by
the treaty—that is, the relationship between this new international
court and national judicial authorities. The ICC, according to its
statute, is not empowered to substitute itself arbitrarily or easily
for the courts of states. In short, the ICC does not enjoy primacy
over national courts and will not be a drain to national sovereignty
in any way, shape, or form. National courts, if you will, have the
first bite at the apple, and the ICC only gets to assert its
jurisdiction when the ICC prosecutor has proven that the national
authorities are unwilling or unable to investigate and prosecute.
The definition and elaboration of a standard of “unwilling” are set
out in article 17 of the treaty. I believe the negotiators set too
high a threshold for the ICC to be able to assert its jurisdiction.
But I know the reason the threshold was set where it is in article 17,
and that was to assuage the concerns of states that the ICC would not
be a supranational court. States have many opportunities at different
stages of the proceedings to challenge the court's assertion of
jurisdiction. There are many safeguards in this treaty on the power
of the prosecutor. Time does not permit me to go into them. It must
be stressed from a human rights' perspective that the rights of the
accused before this court are fully protected according to the highest
standards of international justice.
I want to talk a little bit about Bill C-19. I do not purport to be
an expert on Canadian law. I do agree with the points and
recommendations that previous panellists have made.
I want to focus first on urging the committee to recommend an
amendment that the provisions defining the offences committed inside
Canada contained in clause 4 of Bill C-19 and the offences committed
outside of Canada contained in clause 6 of the bill are integrated.
We do not see the need for different definitions. I think my
colleague from Amnesty International put it quite well as to the
ability to use the standard in clause 6 in terms of providing a basis
for prosecution of these offences, whether they were committed in
Canada or outside of Canada. Certainly for prosecutions of crimes
within the scope of the Rome Statute, the issue of entry into force
and a prospective approach does need to be kept into account. We
believe the merger of definitions of crimes combines both the
flexibility required to encompass developments of international law
and the precision necessary to protect the rights of any accused.
I want to address my next comment to clause 8, and I offer this
suggestion in a constructive, critical fashion. I ask the committee
to consider making a recommendation to amend the provisions contained
in clause 8, those being the provisions for the exercise of
jurisdiction by Canadian courts. The provisions of clause 8 give
Canadian courts jurisdiction on the basis of an expanded active and
passive personality principle, but clause 8 falls short of giving the
courts of Canada a full-bodied, universal jurisdiction foundation on
which to prosecute these crimes.
Specifically, pursuant to clause 8, Canadian courts would be unable
to begin an investigation of the late Pol Pot, for instance, unless he
happened onto Canadian soil. We feel that this disadvantages Canada
and unnecessarily restricts international justice. While clause 8
does implement Canada's commitment to a no-safe-haven policy, it
nonetheless fails to go as far as possible and as necessary in
limiting the impunity all too often associated with these crimes.
Let me say that I recognize that there are policy concerns that might
underlie amending clause 8. I do not believe there is a legal
requirement that mandates this restrictive basis. The policy
concerns, perhaps a fear that Canada could become a magnet for all
kinds of cases with no nexus to Canada that would consume limited
judicial resources, are real issues of policy, but I do not believe
they are legal requirements. As issues of policy, there are policy
means and mechanisms to limit a flood of cases overwhelming Canadian
courts. Criteria could be identified by which on the basis of evidence
available, witnesses here in Canada, etc., Canadian courts could take
these cases. I believe it is manageable.
I cannot conclude my testimony—and I'm moving on from the content of
the bill—without commenting on a disturbing fact to many states and
certainly to the entire non-governmental community. I say this as an
American citizen representing an international human rights
organization based in the United States that is cognizant of the
special responsibility to engage the Government of the United States
on this important issue. But as many of you are doubtless aware,
unfortunately, the United States government is opposed to key
provisions of the treaty.
I would suggest that Washington has not yet grasped the developments
of international law and formulated a consistent approach, whether
it's ad hoc tribunals or a permanent ICC. Perhaps its status as the
world's sole superpower is unfortunately influencing its vision and
understanding of the principles of international law.
In any case, while we believe the ICC would be stronger with U.S.
government support and we would welcome such support, this support
cannot be obtained at the price of the court's essential credibility
and effectiveness. The United States government, I'm sad to report to
you, is attempting to use the rules of procedure and evidence in order
to obtain a 100% ironclad guarantee that no American official ever
appear before this court. It does not need to be stressed, but I will
stress, that such an exemption for the citizens of one nation or set
of nations would destroy the universality necessary for the court to
gain broad acceptance and deliver impartial justice. The U.S. efforts,
I'm sad to say, undermine the key compromises that were carefully
crafted at the Rome conference.
The human rights community looks to the Canadian government, so
closely associated and identified with this treaty, to join with the
European Union states, the states of the southern African development
community, the Caribbean group, the South Pacific forum, and the group
of states of Latin America to make clear to Washington in a firm but
friendly way that many concessions have been agreed to specifically to
address U.S. concerns and that to impose the ability of the state that
is not party to the treaty to veto prosecutions of its nationals would
cripple this court and risk it becoming a court that is not worth
Let me conclude by saying that we believe the early entry into force
is imperative. We urge the committee and the Canadian Parliament to
take quick action on this legislation and we welcome Canada's
continued leadership in this effort.
I thank you.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Ms. Joanne Lee (Research Associate, International Centre for
Criminal Law Reform and Criminal Justice Policy, University of British
Columbia): Thank you very much, Madam Chairman.
My name is Joanne Lee. I should say straight up, as you'll guess
from my accent, that I'm Australian. I am a lawyer who is currently
studying at the University of British Columbia doing a master's and a
PhD in international criminal law.
Today I'm representing the International Centre for Criminal Law
Reform and Criminal Justice Policy, which is based at the University
of British Columbia. For those of you who don't know us, we are an
independent, non-profit, international institute established in 1991.
The current executive director is Mr. Daniel Préfontaine, who is
currently in China.
I refer the committee members to the brief I've prepared. I believe
it's available in both English and French. I won't attempt to address
all of the points I make in that brief. Needless to say, there are
more details on the centre.
The international centre has been involved for some time in the
establishment of the International Criminal Court and international
criminal law regimes generally. We initially assisted the United
Nations Security Council and the United Nations Legal Affairs Office
by holding a large meeting of experts in Vancouver, which led to the
making of many recommendations that are now included in the Statute of
the International Criminal Tribunal for the Former Yugoslavia. We
have also participated in the Rome conference and sent representatives
to three of the four preparatory commission meetings, including
The latest project we've been involved in is a manual for the
ratification and implementation of the Rome Statute, which I have been
involved in preparing, along with a large number of other people. We
decided to do this manual because of the complexity of the Rome
Statute and its implementation into national jurisdictions, and also
because of the lack of examples of implementing legislation available.
We have very much appreciated the availability of Bill C-19 since
December, and we have appreciated the example it sets.
Our target audience is actually quite broad. We are targeting
legislators, parliamentarians, non-government persons, and anyone who
would be involved in the implementation process in a state. These
provisions will require considerable coordination between individuals
working in criminal justice systems and in the military, so it's going
to be a very broad, comprehensive example.
Also, in particular, we have decided to target anglophone and
francophonie states in Africa, the Caribbean, and the Pacific that may
have particular difficulties in allocating the resources needed to
undertake the task of preparing implementing legislation. I believe
that Canada has provided an enormous amount of resources to the
process of creating Bill C-19, and I'm sure that some other states may
not have that opportunity.
The second phase of our project is to actually go to meet with the
relevant people in Africa, the Caribbean, and the Pacific to discuss
the implementation issues that we outline in the manual and to address
any specific concerns they have. CIDA is currently considering a
proposal from us.
We have greatly appreciated the financial support of both the
Department of Foreign Affairs and International Trade and the
Department of Justice in completing this manual.
At present, we are just waiting for my executive director to return
from China and for the director of the other organization we've been
working with, the International Centre for Human Rights and Democratic
Development—which is now called Rights and Democracy—who also has
yet to sign off on the final draft. We are planning to have it
translated into French so that it's available both in English and in
French. We will launch it at the preparatory committee meeting in
While we have been researching this implementation manual, we have
taken note of the provisions of Bill C-19, and we believe that it
effectively addresses all of the main obligations of states parties
under the Rome Statute. These primary obligations are as follows, and
are on our page 4 for those of you who want to follow this.
First is protecting the privileges and immunities of the personnel of
the International Criminal Court, which is article 48 in the Rome
Statute. This is covered in clause 54 in Bill C-19. Second is
creating offences against the administration of justice of the
International Criminal Court, in article 70, paragraph 4 of the Rome
Statute, which is covered in clauses 16 to 26. Then there are some
additional provisions on proceeds of crime relating to offences
against the administration of justice. They are in paragraphs
27(1)(d) and (e) and 28(1)(d) and (e).
We are very happy that the Canadian government has offered to extend
the scope of the offences against the administration of justice beyond
the very minimal requirements under the statute.
I won't go into the details of all of the other ones, but next there
is executing requests for arrest and surrender, including ensuring
there are no obstacles to surrender such as immunities under national
laws. The fourth main obligation is to collect and preserve evidence
for the International Criminal Court. The fifth is to protect
victims, witnesses, and their families. The sixth is to enforce fines
and forfeiture and reparation orders, including seizing the proceeds
Bill C-19 provides an excellent example for all legislators of how to
implement these obligations. In addition, Bill C-19 proposes to go
much further than these minimum requirements, thereby ensuring that
the court will be even more effective and efficient.
For example—and this has been quite widely discussed today so I
won't go into great detail—the bill implements the principle of
complementarity by allowing for Canada to prosecute these crimes. We
believe that the provisions on prosecution of these crimes by Canada
are also an excellent example for the rest of the world to follow.
We also applaud the suggestion that a crimes against humanity fund be
created, because this provides again a wonderful example for other
jurisdictions to ensure that money that is intended to be used for the
benefit of victims is managed effectively and responsibly from a
central fund within a country and that it can be paid out to a variety
of persons, as well as to the International Criminal Court.
Bill C-19 has great significance to the rest of the international
community, particularly the Commonwealth common law jurisdictions,
because, as you probably know, most of those jurisdictions have to
create their own legislation prior to ratifying the statute, and many
of them have taken a long time to do this. This bill is the first one
to be available publicly. We believe New Zealand and the U.K. will be
producing bills sometime this summer. Australia, unfortunately, is
still considering the timing, scope, and content of their legislation.
So Canada is really blazing a trail here in terms of having put so
many resources into creating such a good bill.
The target audience for our manual is of course the common law
jurisdictions, and many of those are waiting to see what other larger
countries are doing in order to be able to use the expertise of other
countries in this.
Suggestions have been made by my colleagues here to make some
amendments. We would certainly support that sometime in the future
there be the creation of a mechanism for granting civil remedies for
victims, but we don't believe that at this stage it's important. I
think we should wait and see what the rules of procedure and evidence
require, because there are substantial rules on reparations for
We would note particularly that article 75, paragraph 6, of the Rome
Nothing in this article shall be interpreted as prejudicing the rights
of victims under national or international law.
So there is a clear suggestion that states should continue to provide
for reparations to victims over and above whatever the International
Criminal Court can manage.
The recommendations we wish to make today are very simple. We would
recommend that this committee make sure that this bill passes as soon
as possible. Because of its significance to the rest of the
international community, the sooner we can create this court, the
sooner we can start to prosecute and to deter people who are accused
of genocide, crimes against humanity, and war crimes. There could be
a little bit of fiddling with all sorts of little provisions, but
basically we think this an excellent bill and an excellent model. We
would also strongly recommend that Canada continue to support efforts
to assist other states in other practical ways, such as continuing to
support technical assistance projects being developed by the centre
and other Canadian NGOs.
Thank you very much.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Donald S. Baker (Individual Presentation): Good morning. My
name is Don Baker. I'm not representing an official group. I'm here
as an individual. My background is as a publisher, and I am the
chairman of Family Communications, which is a Canadian operation that
distributes magazines from coast to coast.
I will attempt to précis my written presentation of May 1 by focusing
on some of the major issues in layman's terms.
Do you have my presentation? It's called “Comments for Discussion
with the Parliamentary Committee”. I understood that it was
translated and delivered to you around May 1.
The Vice-Chair (Ms. Colleen Beaumier): It was distributed to our
Mr. Donald Baker: You have seen it. Excellent.
The drafted bill has the worthy stated objective, among others, to
implement the Rome Statute of the International Criminal Court. This
of course follows Canada's brilliant initiative in coordinating an
international agenda for the implementation of that same statute.
I sincerely hope, however, that this committee will not exacerbate an
unfortunate situation by passing this bill back to Parliament with its
current contradictions. The overriding problem is that the drafted
bill treats crimes against humanity that are alleged to have been
committed outside of Canada differently than it does the same acts
that are alleged to have happened within our borders. Does that make
sense to you?
Let me illustrate this briefly without getting into the details by
referring you to the clause entitled “Offences Within Canada”.
Beginning with subclause 4(1), you'll note that there are definitions
of genocide, crime against humanity, and war crime for crimes
allegedly committed inside of Canada. Then without stopping at this
juncture to study those definitions, we go on to subclause 6(1), where
again the same titular crimes are defined for those who are alleged to
have committed those same crimes outside of Canada.
The drafted Bill C-19 uses the Rome Statute to define the crimes and
defences only for those war crimes that are alleged to have been
committed in Canada. The bill does not do the same for crimes alleged
to have been committed outside the borders of Canada. Thus, the
offences and defences defined in the Rome Statute for the
International Criminal Court would be used in Canadian courts for what
I call insiders, but not for outsiders.
Wouldn't that lead to the likelihood of treating some Canadian
citizens differently? Is it our intention that those citizens who are
charged in Canada for alleged offences committed outside of Canada are
to be treated by Canadian courts as lesser citizens than those who
happen to be living in Canada when they committed such alleged acts?
If those who were outside the borders when the alleged crimes were
committed are not given prescribed definitions for such crimes as
genocide, crimes against humanity, war crimes, and command
responsibility, but those who are inside are given precise Rome
Statute definitions, then only one group has a chance to properly
defend themselves. In fact, they have a chance to measure whether
indeed they are guilty and even have a defence, while the other group
does not have such an opportunity.
Here are some examples of how the offences are defined differently
for insiders as opposed to outsiders. The Rome Statute, and thus the
drafted insider ruling, says that the crime against humanity allegedly
committed must be part of a widespread or systematic attack directed
against any civilian population with knowledge of the attack. Our
drafted Bill C-19 leaves out the requirement for outsiders and says
that the crime must have been committed against the civilian
population or any identifiable group of persons. Also, there's no
definition of the specific acts in the definition of crime against
humanity where that is the basis of an allegation of an offence
alleged to have been committed outside of Canada.
It appears that Bill C-19 is drafted in such a way as to enable
convictions to be arrived at for outsiders only, without proof that
the action taken was part of such an inhumane discriminatory attack as
is defined for insiders and those defending themselves under the rules
of the Rome Statute. Similarly, war crimes for outsiders lack a clear
definition, while war crimes are extensively and clearly defined when
the offence is alleged to have been committed inside Canada.
Perhaps the worst affront in this draft is the double-barrelled one.
Contrary to the international community's wishes in the Rome Statute,
this drafted Bill C-19 would be—and get this one—only retroactive
for those alleged to have committed the crimes outside of Canada.
How's that for supporting an international statute? As a result, this
bill would not be able to convict an insider for an alleged war crime
if such an action occurred prior to the implementation of Bill C-19.
However, if the act were committed outside of Canada prior to the
coming into force of Bill C-19, the outsider could be convicted.
Ladies and gentlemen, the Rome Statute is not retroactive. Why would
we treat outsiders differently from the way we would treat insiders or
how the ICC would treat a similar case? In my presentation of May 1 I
argue why command responsibility should not be charged retroactively.
I ask that you review that argument when you have a chance.
Just as a reminder, judges and jurors sitting today asked to
determine what a person should have known or should have done during a
war at a time none of them experienced would be severely hampered in
attempting to deal out even-handed justice retroactively.
Similarly, the defence of superior orders should not be applied
retroactively. The Rome Statute has justly decided to eliminate the
defence of acting upon superior orders—“My superior made me do it”.
But the statute has done that for the future. They have not
attempted to retroactively reverse a defence that has been universally
accepted for centuries, nor should we try to do so for outsiders
facing our Canadian court.
Certainty of the law protects individuals from unfair application of
the law. Judges as well as defendants must know what is prohibited so
that all are reading from the same rule book and so that the court can
apply the law in the same way for each accused person, whether they
are alleged to have committed the crime while inside Canada or while
Would you agree that it is a fundamental principle of criminal
justice that the legislation creating an offence clearly set out which
acts are prohibited so that all accused have the same opportunity to
measure what they are alleged to have done and for the courts to apply
the law in the same way for each accused person?
The provisions of the Rome Statute were thought to be fair and just
by the international community and by Canada for offences alleged to
have been committed within Canada. Why would we now take a position
that suggests that the provisions of the Rome Statute are too lax for
Canadian courts to utilize as a basis for trying offences committed
outside of Canada?
I wish you well with your deliberations.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Ms. Francine Lalonde: I thank each and everyone of you for your
recommendations. I would like to reiterate, Madam Chair, that we would
very much like to be given precise written recommendations for the
upcoming steps, that will be coming along very soon.
I would like to ask each group that made amendment proposals which of
its amendments it deems to be the most important and why. Furthermore,
I would also very much like to hear Ms. Lee explain why her
organization is recommending the adoption of the bill as is and what
she thinks of the various amendments that have been suggested.
Ms. Joanne Lee: Certainly. First of all, I should probably
address the issue of complementarity, which is, as we're calling it,
the inside and outside dichotomy about which crimes get prosecuted
I'm probably going to just read straight from my presentation on this
point. The Rome Statute does not suggest that all states parties are
obliged to prosecute all the crimes within the jurisdiction of the
court, but it was clearly the hope of those involved in the creation
of the Rome Statute that states would be encouraged by their
participation in the International Criminal Court regime to address
their past failure to take responsibility for prosecuting
international crimes in general.
To be fair, throughout this century there has been considerable
disagreement in the international community as to which types of
conduct are international crimes. For example, a draft code of crimes
against the peace and security of mankind was only finalized by the
International Law Commission in 1996. The international crimes that
seem to be have been the most widely accepted to date are genocide, as
defined in the genocide convention, and the grave breaches provisions
of the 1949 Geneva Conventions.
Some states, including Canada and Australia, have also had
difficulties establishing appropriate legal regimes for prosecuting
these crimes that are acceptable to national courts. I refer you to
the Finta decision in Canada, and in Australia we had a decision
called Polyukhovich, which also brought up the problems with
prosecuting crimes from the past.
Clause 4 and clause 5 adopt the definition of the crimes directly
from the Rome Statute, which represents the consensus of the 120
states that adopted the statute in Rome. That's where they're
committed within Canada. Subclause 6(4) goes further in providing
that these crimes are to be considered as representing customary
international law as from the date of the adoption of the Rome
This sends a clear signal to all states that they too should take
responsibility for prosecuting the crimes that are set out in the Rome
Statute. However—and this is the key point, I think—in order to
avoid constitutional problems with the retroactive application of
criminal laws within Canada, the Rome Statute offences in clauses 4
and 5 will only become crimes in Canada from the date that the Crimes
Against Humanity Act comes into force.
This approach recognizes that not all crimes within the Rome Statute
were necessarily accepted as crimes under customary international law
prior to the adoption of the Rome Statute, and therefore Canada may
not have had jurisdiction to try persons for some these crimes prior
to July 17, 1998. In particular, the crime of enforced pregnancy was
the one that may not have been acceptable, but obviously in light of
what happened in Yugoslavia they wanted to include that as a crime
Clauses 6 to 8 address many of the problems with existing provisions
in the Criminal Code for the prosecution of international crimes
committed outside Canada at any time in the past or future. These
have been carefully defined in terms of widely accepted principles of
international law. However, it would be completely unrealistic for
any legislator to to sit down and make a list of every single crime
and at what point it became a matter of customary international law at
any single second or minute, or day or year even.
In international law it's fairly clear that from 1945, with the
creation of the Nuremberg statute and the Nuremberg principles,
certain crimes became customary international law. But it is
impossible to strictly set out a list of all the acts that could
possibly have constituted crimes under customary international law for
the whole of this century.
We say that it solves a lot of problems in this way. I think clearly
there is an issue of the suggestion on the universal jurisdiction;
that is, where Canada could prosecute anyone who wasn't on their
territory who committed a crime that had no connection to Canada.
That is certainly a very desirable provision. However, it is the hope
of all those working on this International Criminal Court that it will
have broad support; that is, that many states will sign on this and
there will be no need for Canada to be able to prosecute anyone who
comes from anywhere. It would require making a request for
I would say it's a wait and see provision. I think if the court is
not supported widely enough, it would be very desirable in the future
for Canada to look into the possibility of being able to ask for the
extradition of persons who have committed crimes that are not
connected to Canada in any way.
I think it's so important at this stage that we say this bill in its
present form, which goes beyond the requirements of the statute and
deals with a lot of very complicated issues in a very thoughtful way,
should be passed as it is.
I think there was the clause 57 question. I wrote down some of the
points that were made here. On the question of “may” versus
“shall” in terms of the minister's discretion, I accept the
explanation from the persons who drafted this that “may” is an
empowering provision. There are several provisions in the statute
where the state is allowed to consult with the court before executing
a request. If the legislation says the minister “shall”, then this
is taking away the minister's opportunity to consult with the court on
a number of issues. There are the national security interests, where
there is a clear process of consultation.
Also, in articles 94 and 95, where execution of a request would
interfere with an ongoing investigation or prosecution, the state
would obviously need to consult with the court. Article 94 allows the
state to consult with the court. Article 95 addresses the case of a
request for assistance that's made when an admissibility ruling is
still pending. The ICC must make the ultimate decision, but the state
is allowed to consult with the court. I believe that if you put the
word “shall” in there, this would deny the state the right to
consult with the court when appropriate, particularly on matters of
The last one that I didn't address is the need for the definition of
“surrender”. I think, as it stands.... I'm not a great expert on
Canadian constitutional law, I have to say. I understand there are
charter issues involved that mean it would be very difficult for
Canada to remove some of the rights of persons who are going to be
surrendered to the International Criminal Court. I agree with Bruce
to some extent that it would be good to have some sort of a definition
in there that there will be a slightly different process for
surrending a person to the court, just in terms of the fact that there
are no grounds for refusal. But in terms of procedure, I understand
that under the charter, each person in Canada must have a right of
appeal and various other aspects. So I understand, with my limited
knowledge and my discussions with the people who have been working on
this, that there isn't much of a choice for Canada in terms of
changing that extradition process into surrender.
I hope I've answered your questions.
The Vice-Chair (Ms. Colleen Beaumier): Mr. Neve.
Mr. Alex Neve: I believe that I can speak on behalf of my
colleagues. We are certainly prepared to make very precise amendment
proposals and it is our hope that the committee would adopt these
proposals, that we consider to be important. However, we also believe
it is very important that Bill C-19 be adopted quickly. If the
committee found it impossible to adopt these recommendations without
delay, then the most important thing for us would be speedy passage of
Ms. Francine Lalonde: That is more important than any amendment.
Mr. Alex Neve: Yes.
Ms. Francine Lalonde: That is one answer.
The Vice-Chair (Ms. Colleen Beaumier): Anyone else? Mr. Baker.
Mr. Donald Baker: May I respond to that comment? Again, I guess
I'm looking at it from an administrative point of view.
I think you have a very complicated bill, a bill that affects the
rest of our generation. It's not only the international community.
If you rush into this, you're accomplishing something very important.
You're telling the world, “We're a leader in this. It's important to
us. Get on the bandwagon with us.” I can't argue that, and I don't
What I am concerned about is you have an administrative issue, to
find out what's in that bill. If you don't know what's in that bill
and if you haven't worked it through carefully, then you're not doing
justice to either the Canadian people or the international community.
The Vice-Chair (Ms. Colleen Beaumier): Mr. Cotler.
Mr. Irwin Cotler (Mount Royal, Lib.): The witnesses have offered
us a number of important recommendations this morning, specifically
the recommendation respecting and including the requisite mental
element for a crime. That's in article 30 of the ICC statute.
Regrettably, it's not in this bill. I think it would help to offset
some of the adverse fallout of the Finta decision regarding the
mischaracterization of mens rea.
The second recommendation has to do with the principle of universal
jurisdiction in clause 8 for Canadian offences. If the considerations
are of a policy character rather than a legal character, that's
something we should revisit.
The third recommendation has to do with the integration of clauses 4
and 6 of Bill C-19 to make the domestic and international approaches
to criminalization compatible in terms of standards.
The fourth recommendation had to do with article 27 regarding the
principle of non-immunity, and the fifth had to do with the refinement
I think these are an important set of recommendations for us to
consider. In that vein, I'd like to put two questions to any of the
witnesses who might wish to answer them.
The first question has to do with the superior orders defence under
clause 14. My question is whether you have any concern with that
defence, and in particular with paragraphs (a) and (b) of that defence
as being arguably overly broad. I should just mention for those who
are not Canadians that interestingly enough, this defence is excluded
in a section of the Canadian Criminal Code regarding torture,
subsection 269.1(3). So that's my first question, on the superior
The second question has to do with including something that is not in
the legislation. Interestingly enough, here there's a good provision
in the present Criminal Code, the precursor to Bill C-19, which has
not been included in Bill C-19. I'm referring to the matters.... I'll
just read out the provision; it can be found in subsection 7(3.77) of
the Criminal Code, which reads as follows, and it speaks for itself:
In the definitions “crime against humanity” and “war
crime”...“act or omission” includes, for greater certainty,
attempting or conspiring to commit, counselling any person to commit,
aiding or abetting any person in the commission of, or being an
accessory after the fact in relation to, an act or omission.
Should that type of provision be included?
So those are my two questions: one, is the superior orders defence
overly broad; two, the matter of this particular provision being
Mr. Bruce Broomhall: The two questions are whether the superior
orders language of the bill is too broad, and the section from the
former legislation about attempting and conspiring.
The superior orders provision tracks the Rome Statute and adds to it
something that was intended to be a fix, if you like, for the Finta
decision, as I understand it. I'm not sure the sense in which that
would be too broad.
I saw the Rome Statute definition as being unfortunate in some
respects, in that it allows a potential defence for superior orders
with respect to war crimes. It expressly says there's no defence of
that nature for crimes against humanity and genocide. I think the
principle underlying the particular wording in the Rome Statute was
that crimes against humanity and genocide by their very nature would
be so egregious that a person would know that these were manifestly
So the requirement set out there in clause 14, as in the Rome
Statute, the legal obligation, not knowing the order was unlawful and
the order not being manifestly unlawful, in a sense says that it's
impossible not to know that a manifestly unlawful act was unlawful.
I think in most war crimes, at least of the character that are going
to get into the ICC, there wouldn't be any question. They're going to
be systematic; they're going to be on a wide scale pursuant to a plan
or policy to commit war crimes.
So I'm personally satisfied with the Rome Statute definition. Bill
C-19 adds language that was intended as a fix of the Finta case. I've
spoken to legal experts on the Canadian delegation about this, and I'm
satisfied with their explanation that this accounts for situations in
which discriminatory beliefs are widespread or knowledge is widespread
in a community. That's welcome.
I do wonder if, as was mentioned in Amnesty International's
submission, there will be other situations in which Finta will present
problems to us. But I'm satisfied with this myself. I'm satisfied
with the scope of clause 14.
Mr. Irwin Cotler: I'm mainly concerned in clause 14 with
paragraphs (a) and (b). I don't have any problems with subclauses
(1), (2), or (3), nor paragraph (c), only paragraphs 14(1)(a) and (b),
just that particular part of clause 14.
Mr. Bruce Broomhall: That it might be too broad?
Mr. Irwin Cotler: That's right, just that particular paragraph of
clause 14. Subclause 14(3) catches the Finta problem, and subclause
14(2) catches the problem of manifestly unlawful regarding paragraph
14(1)(c), but not regarding paragraphs 14(1)(a) and (b). That's my
Mr. Richard Dicker: We took note that in the Rome Statute the
superior orders characterization was a step back from the Nuremberg
principle and also a step back from what's contained in the statute
for the two ad hoc tribunals. On that basis, it is a cause of concern
to us. We thought certainly it opened the door to superior orders as
a defence, but we did not feel that door was open so broadly that it
caused major concern for us.
I would say, without being able to comment knowledgeably in terms of
the concerns arising out of the Finta decision, these are issues of
some concern. It would take a little bit to make a specific suggestion
as to perhaps how to narrow that, so I'd like a little time to think
about that. At the end of the day I would say the concern is not so
great that in any way it should halt or delay moving forward to the
early adoption of the legislation, but I will give that some thought.
Ms. Joanne Lee: If I could just make one quick point, this
particular clause is part of the complementarity regime for the
International Criminal Court, and we have to be very careful when we
are trying to make any changes to such provisions. The language of
this clause is that reflected in the statute.
I don't want to make this sound frightening or anything, but if
Canada adopts a significantly lower standard for excusing persons who
have obeyed a superior order and thus committed a crime, the
International Criminal Court could conceivably see that as an attempt
to shield the person from criminal responsibility. The Canadian
delegation was heavily involved in negotiating the language of this
particular provision, and I think it reflects the standard that should
be adopted by Canada.
Mr. Irwin Cotler: The issue here is not only complementarity. The
issue is that this bill is intended not only for domestic
implementation of the ICC statute and complementarity in that regard,
but also to address, if not redress, some of the adverse fallout from
Canadian jurisprudence that could be problematic in terms of domestic
criminal prosecution in Canada relying on that jurisprudence.
Therefore it has to serve as a corrective, not only in terms of, as I
say, implementing the ICC statute, but in terms of the history of
Canadian jurisprudence in this regard.
Ms. Joanne Lee: Yes.
Mr. Alex Neve: I'd make one final very brief point. I don't have
it at my fingertips, but as I recall, the Criminal Code provisions
dealing with torture prosecutions deal with this in a much
wider-reaching sense. I may be going out on a limb, but I think they
absolutely deny the defence of superior orders in cases involving the
crime of torture. That's the Criminal Code as it presently stands.
Mr. Irwin Cotler: Yes, section 269.1 of the Criminal Code.
Mr. Alex Neve: So there may be some instructive wording there.
Mr. Irwin Cotler: That's right, yes.
Mr. Bruce Broomhall: If I could just back up on that, Alex, it's
difficult for me at least, in the abstract, to conceive of a situation
in which the kinds of crimes we're talking about here would not be
considered manifestly unlawful, even in a situation with superior
orders—the killing of civilians and POWs and so on. Most of the
situations are fairly cut-and-dried, I would expect. So in that
respect, there is cause for concern that these arguments can be made,
but the jurisprudence will tell us more.
On the second question about attempting and conspiring, if I could
touch on that briefly, that's a question I had in my mind when I first
saw this legislation. As you know, in part 3 of the Rome Statute,
article 25 in particular, there are extensive forms of participation
that give rise to individual responsibility for Rome Statute-ICC
purposes. These include ordering a crime, publicly inciting, aiding
and abetting, and committing it as part of a group with a criminal
Of course for complementary purposes you want to ensure your
legislation allows you to take action with respect to the whole range
of crimes under the Rome Statute. I understand the Canadian
legislation does that, because the forms of participation are brought
into this act through the Interpretation Act, as I understand. I've
been told by the experts on the Canadian delegation—and I'm not
current enough in my Canadian case law—this is okay with the Rome
Statute. But yes, that's something that needs reviewing and ensuring.
I tend to believe it's fine.
Mr. Donald Baker: Sir, you asked a question on amalgamating
outside Canada and inside Canada. I think I might be in disagreement
with the other panellists, who at least seem to agree that they should
be amalgamated in some cases. But it would seem the Rome Statute and
a lot of people have internationally attempted to find some
Our draft suggests the offences within Canada should follow the Rome
Statute. I would guess, not being a lawyer and not having studied it
from that perspective, if you're going to amalgamate it, you
amalgamate under the Rome Statute. I might not have to remind the
committee that part of the intent of this bill is that we implement
the Rome Statute. I would guess it's the Rome Statute that should be
applied if we're going to treat war criminals who commit crimes inside
Canada the same as outside Canada.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Bruce Broomhall: Is there time for one more point?
The Vice-Chair (Ms. Colleen Beaumier): Certainly.
Mr. Bruce Broomhall: I should just flag this issue again. The
question about whether to merge, like the question on all of these
potential amendments, should be always in the context of the value of
Canada's early ratification and the value of the early passage of this
legislation. But having said that, a discussion would have to occur
about how one would integrate, what principles are at stake, and so
Again, integration would be valuable. At the same time, the
legislation does a good job in subclause 6(4), I believe, of declaring
the Rome Statute crimes to be custom as of July 1998, allowing those
definitions to apply both inside Canada and outside after that time.
There are good reasons for not applying those previously. Certainly
crimes such as enforced pregnancy and so on, just to beg to differ on
that issue, were criminal under customary international law prior to
that, but they came in under inhumane treatment and other headings.
Nonetheless, for some of the crimes in internal armed conflict, if
we're looking back ten, twenty, or thirty years, when did they become
part of customary law? That's a little less clear. So you don't want
the Rome Statute to be retroactive in its entirety in that sense.
Customary law by its nature is evolutionary, and the legislation does
a good job of taking account of that.
My only wish would be that some crimes, not in the Rome Statute
definitions but as part of giving rise to individual responsibility
under customary law, be made punishable within Canada through the
integration of the provisions and the broadening of the provisions to
allow customary law prosecutions both inside and outside Canada.
The Vice-Chair (Ms. Colleen Beaumier): Thank you.
Mr. Donald Baker: Could I say something very briefly?
The Vice-Chair (Ms. Colleen Beaumier): Very, very briefly, because
we're over time again.
Mr. Donald Baker: Okay.
I think it's very clear under subclause 6(4), where it says
“Interpretation”, that the Rome Statute only applied after July
1998, and that for us to try to take it backwards is trying to take
the international court backwards.
The Vice-Chair (Ms. Colleen Beaumier): Mr. Baker, you had the last
Thank you, everyone, for your very thoughtful presentations. We
always look forward to seeing our human rights individuals here.
Thank you once again.
The meeting is adjourned.