FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 9, 1998

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[English]

The Chairman (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): I call this meeting of the foreign affairs committee to order.

We have this morning a round table on the issue of an international criminal court. Members will remember that some of us, when we were in New York recently, had an opportunity to be briefed by our departmental officials, who will be representing Canada at the upcoming meetings in Rome. Some of you were not able to be at those briefings, however.

So we're very pleased to have with us this morning a rather large group, actually, of witnesses. We have, from the International Centre, Mr. Allmand, the president; from the World Federalists of Canada, Fergus Watt; from the International Centre for Criminal Law Reform and Criminal Justice Policy, Daniel Préfontaine; from the Women's Caucus on Gender Justice in the ICC, Valerie Oosterveld; from the Université du Québec à Montréal, Professor Schabas; from Amnesty International, Mr. Matas; from the Department of Foreign Affairs and International Trade, Messrs. Alan Kessel and Darryl Robinson, the ones who spoke to us in Washington, so our friends are back with us to keep us straight; from the Department of Justice, Mr. Piragoff; and from the Unitarian Universalist Association, Ms. Harvey.

Welcome, everybody.

Normally we ask everyone if they would speak for 10 to 15 minutes and then leave time for questions, but you can appreciate that with eight of you on the panel this morning, I'm going to ask if you could keep your remarks to eight minutes each. That will give enough time for us to ask questions, because there are quite a few questions on this issue. So I'll try to hold you to eight minutes. I know most of you are lawyers and, like professors, have problems speaking in times shorter than half an hour, but we'll try to hold you all to eight minutes, if we could.

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However, Mr. Mills had asked me before we started if we could deal with Mr. Grewal's motion. You'll recall that before we left last time, Mr. Grewal introduced a motion that the committee should consider and report to the House the expenditure plans and priorities in future fiscal years of the Department of Foreign Affairs with regard to the Canadian International Development Agency and its assistance programs to India and Pakistan, in light of the recent nuclear testing performed by both countries.

This follows on our hearings, and you will recall also that we are having members of Parliament from Pakistan with us this afternoon. Is that correct? Yes.

We'll have to hold this until we get our— Well, does Mr. Speller constitute a quorum? In and of himself, no, but okay. We'll hold this, then, members, but I'm taking it that this is probably not a motion that will have anybody's objection, just looking around the room, so I'm assuming we'll deal with it quickly. I don't see any objection to it. I think it's a good idea.

I'm sorry to interrupt. Mr. Allmand, I wonder if you'd be good enough to lead off as our first witness, sir.

Mr. Warren Allmand (President, International Centre for Human Rights and Democratic Development): Thank you very much.

First of all I want to thank the committee for arranging for this meeting on this very important subject. I'm pleased to see many of you again.

Since we only have eight minutes and there's a lot of expertise around the table, I'll try to concentrate on just a few issues.

First of all, why an international criminal court? Because for too long people have been, with impunity, able to get away with gross crimes against justice—genocide, murder, rape, killing—simply because it was part of a process within a state that sanctioned this kind of behaviour.

This is all at the same time as the countries of the world have international conventions against genocide. We have the International Covenant on Civil and Political Rights, which sets out the right to life, the right to not be imprisoned arbitrarily, the right to not be killed arbitrarily, and the right to not be tortured arbitrarily. So we've approved all those rights in these various conventions, which have been ratified by many countries, including Canada, and yet the states that have ratified these at the same time are carrying out such killings, genocides, and so on, whether it's in Yugoslavia, Nigeria, Afghanistan, or Bosnia. Of course there are many, many examples around the world.

At Nuremberg, after the Second World War, that tribunal had been set up by the winners in the war and consequently lacked a certain credibility. From that time on, there was a movement to establish a permanent international criminal court that would deal with war crimes, crimes against humanity, and genocide, but the movement was interrupted by the Cold War.

Once the Cold War was over, this whole issue resurrected and gained momentum, and now there have been, in the last few years, six prep coms preparing the convention, which will go to Rome in a few weeks, from June 15 to July 17.

We congratulate the Government of Canada for the leadership role they have played in this, but we're still very concerned, because the statute is going to Rome with 1,300 clauses in brackets. In other words, after six prep com meetings, while so many things were decided, a lot of other things were decided in options. So for certain clauses you have two or three options, and they're in brackets, and it will be up to the governments of the world to decide which of the brackets they will pick. This is where we have very serious concern, because some of the proposals would lead to a very weak, almost worthless international criminal court.

When I talk to certain people, including some members of Parliament—not those with this committee—they say there's a lot of support for the court; the court is almost a sure thing. Well, yes, it might be a sure thing—in such a weakened form that it would be almost useless.

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I want to highlight here a few of the areas that we're asking the Parliament of Canada and the Government of Canada not to weaken on, because if they did we would have a cosmetic court, one that wasn't really worth the time.

The statute provides that the court will have jurisdiction on three core crimes: genocide, crimes against humanity, and war crimes. All of these require some definition, and it's in the defining of what constitutes a war crime, what constitutes a crime against humanity, where a lot of the debate is to be found and where the bracketed clauses are present.

To deal with some of those—for example, with respect to war crimes—right now there's a lot of definition with respect to war crimes. But some of the states have proposed that the threshold for what would be considered a war crime before the international criminal court would be less than we have now with respect to the Rwanda tribunal or with respect to the Yugoslavia tribunal and much less than we had with respect to Nuremberg.

We're asking the Canadian government and the Canadian Parliament, this committee, to recommend strongly against any weakening of what is presently the definition of war crimes and not to accept some of the proposals that would have war crimes reduced to make it almost impossible to prosecute and convict on certain things that would be now prosecutable and convictable.

The next thing is with respect to crimes against humanity. We get into the issue as to whether there are some states who want crimes against humanity to apply only in a situation of war. If you did that, you would again provide impunity for those people who in civil conflicts or in oppression or in repressive regimes use paramilitary forces in their military to effect disappearances, to put people in prison without trial, carry on torture, carry on arbitrary killings. All that sort of thing would not be caught by the court because they wouldn't be in a state of war.

We're saying that crimes against humanity should apply whether there's a war on or not, because, as you know, there have been over 200 wars since the end of the Second World War. Most of those wars have been within nations. Most of the wars that are going on now are within nations. Sometimes, they're not even at the stage of a war but it's just an ongoing situation of oppression.

These are two areas, and I'm sure my colleagues will have more to say about those as we go on. I want to say—because I guess my time is coming to an end—that it's extremely important that in the bargaining, especially with the United States and with France, both of whom— but we get into another issue here, which I'll only touch on briefly. I'm talking of the independence of the court and the independence of the prosecutor. Certain countries, including the United States and France, want the jurisdiction of the court to be subject to the veto of the Security Council.

I mean, you get into a situation— Can you imagine if, within a state, certain citizens had the right to say “The court will apply to all of you, but when it comes to me, I have the right to veto it applying to me”? We have said in response to that argument, by the Americans and by the French and by some others, that you really do have a veto. You don't need to have it in the Security Council, because the statute provides that the court will only take jurisdiction if the state is unable or unwilling to act with respect to the suspects themselves.

For example, if they have a general or a politician who has been responsible for genocide or for crimes against humanity and they try the individual themselves within their own courts, the international criminal court doesn't take jurisdiction. It's only if the state does not have laws that provide for that, or if they do have laws and don't apply them, if they try to protect somebody who is obviously responsible for crimes against humanity, war crimes or genocide, that the international criminal court is used. .

As I say, there are some leading states— By the way, France is the only country in the European Union that's taken that position. All other countries in the union are favourable to a strong court, including the United Kingdom, which changed its position following the last election in the United Kingdom. So here we have France, isolated in western Europe, in the European Union, and we have some leading countries throughout the world.

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We're saying that it would be better to have no court at all than a Mickey Mouse, phoney court. Just forget about it if we're going to give in during the negotiations in Rome just to get the Americans to sign on to a court that's meaningless.

By the way, Jesse Helms, when we were in New York at the last preparatory committee, sent a message to the American negotiators saying whatever you send us down in Washington, it's dead on arrival, so don't even bother. He's not even interested. He wouldn't ratify, no matter how weak it was. So what's the use of watering down the court simply to get Americans to sign on when they're not going to sign on at all?

Mr. Chairman, I see my time is up. I simply want to say to the committee that we have a one-page, both sides, summary of our position that summarizes the arguments for the court, and we have an eight-page document that sets out in a little more detail the arguments for the court. I'll be pleased to answer questions at the end.

I might say that the International Centre has been on the issue of impunity for many, many years. We look at the establishment of this court as a principal means of dealing with impunity and it could be an historic occasion. Canada has been leading the way and we hope they continue to lead the way going through the Rome convention.

Thank you very much.

The Chairman: Thank you, Mr. Allmand.

As usual, the stories about Jesse Helms always strike up an interest in this committee. Certainly it's rather unfortunate to be reminded that he has the power he does. We may not have as much power, but we act much more responsibly, if I could put it that way.

We're going to ask our officials from the Department of Foreign Affairs, Mr. Kessel and Mr. Robinson, if they will go second.

Mr. Kessel, you might want to keep an ear open to everybody, and if there is something in the Canadian negotiating position you feel should be clarified, if you just hold up your hand at the end of the other presentations I could give you a minute or two to make some observations, if you think that's appropriate.

We'll ask Mr. Kessel to go second, please.

Mr. Alan Kessel (Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade): Thank you, Mr. Chairman.

It's indeed a pleasure to be here and again to see many of you whom we met in New York during the frenzied days of the last preparatory committee meeting. I'm also very pleased to have with me this morning Don Piragoff, general counsel, criminal policy at the Department of Justice, and Darryl Robinson from the United Nations, criminal and treaty law division of the Department of Foreign Affairs.

All of us have been on the Canadian delegation fighting the good fight on this particular issue, and I'm very pleased to be able to speak to you as we come down to the very last moments before Rome. Next week, in fact, Rome begins the final step in a long road leading to the establishment of an international criminal court. The diplomatic conference, as you will know, runs from June 15 to July 17 and will finalize the statute of the court.

We're very optimistic going into this process. We've worked long and hard, and yes, the text is 172 pages long and 1,300 brackets, but at the end of this process we expect to have an independent and effective court based upon a workable statute.

I have said before, and certainly many of my colleagues and friends in the NGO community and academic community and in government have heard us, why we are optimistic about this. If we had stood in this room five years ago and you were running this meeting and asked whether it was possible that five years from now we would have a court, most people would have said no. But next week we're going to be in Rome working on the statute. So we are optimistic—we've come a long way—and deservedly so.

Mr. Allmand has given you a bit of the background and I won't bore you with that. Let's look at some of the things that are before us now.

The problem now is not in the principle but in the modalities of establishing the court. It's all too easy in circumstances like this to get bogged down in detail or to try to get an agreement at any cost. You can narrow down the definition of crimes or the scope of application of the statute of the court to such a degree that it would have jurisdiction over particular situations only rarely. Or you can build so many stumbling blocks before the court can actually be seized of a case that the court may be prevented from exercising its jurisdiction in practice most of the time or after such delays as to render its role meaningless. This cannot be allowed to happen.

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Realistically, there's only one chance to build a court that is universal, independent and truly effective, and that time is now.

There are a number of important outstanding issues, for example, the enormous practical importance of adequate procedures that reconcile civil and common law systems, but today I'll concentrate on four major issues.

The first is the definition of crimes. There is an emerging consensus, which Canada supports, that the ICC should have jurisdiction over genocide, war crimes and crimes against humanity. Delegations have agreed that the definitions of these crimes must be rooted in established international law, but there is still ample room for disagreement as to how broad or restrictive an interpretation of that law to adopt.

In this area I would highlight two elements, which come from simple observation. One is that most wars now are fought within, not between, states. The other is that in these conflicts civilians generally suffer the most. Women and children are often deliberately targeted.

For the purpose of the establishment of an ICC, the lessons are clear. First, the mandate of the court to deal with war crimes must extend to conflicts within states. Not to do so is to turn a blind eye to precisely the very situations that prompted renewed efforts to create international criminal tribunals.

Second, the court must be sensitive to gender issues and the situation of children. Rape, sexual slavery and other forms of sexual violence must be recognized in the statute as war crimes and crimes against humanity. Children are often doubly victimized, particularly in armed conflicts, as civilian victims and as child soldiers. The court should have a mandate to try those who recruit children into armies or armed groups and who use them in hostilities in any way.

The other three points I will raise relate to the need for the court to be genuinely independent and able to exercise its jurisdiction without running into unnecessary obstacles.

In the first place, Canada firmly believes that the ICC should have inherent jurisdiction over the core crimes of genocide, war crimes and crimes against humanity. That means jurisdiction that does not require the consent of a variety of states on a case-by-case basis, as some states have argued. In our view, a consent regime would undermine the effectiveness of the court and permit states to gain the prestige of ratifying the ICC statute without ever accepting the court's jurisdiction over a concrete case—a photo op, in effect.

Remember that, to begin with, the court would only have jurisdiction when the state in a position to prosecute alleged offenders is unable or unwilling to do so in a genuine manner. In such a situation, if you add, for example, the need for the court before assuming jurisdiction to obtain the consent of the state on the territory of which the crime has been committed—often the very same state that can prosecute—the result is clear: a prosecution becomes impossible.

A second issue is the role of the Security Council. Yes, there is a role for the Security Council in referring cases to the ICC, as this will increase the effectiveness of the court. However, the court must not be allowed to be paralysed simply because the matter is on the Security Council agenda. Some situations have been on it for 30 years, without any action being taken.

It may be that a temporary suspension of court activities will be necessary in some tightly defined situations, such as action taken by the council under chapter VII of the UN charter. But such suspension should be decided by a positive decision of the Security Council, should not be automatic, and should be limited in time.

The last issue is the independence of the prosecutor. Under the current draft statute, the ICC may take jurisdiction only where it is triggered by a state complaint or by a Security Council referral. Canada and many other states support a proposal that the prosecutor should also be able to initiate proceedings ex officio.

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We do not believe that a prosecutor should depend entirely on the initiative of states or organizations if indeed the kinds of crimes that we have been discussing have been committed. And frankly, considering the high calibre of any prosecutor in such a position, we remain wholly unpersuaded by concerns that the prosecutor might somehow not behave responsibly. The independence of the prosecutor is, for us, essential.

Canada played a pivotal role in the resolution of one of the most difficult stumbling blocks on the way to Rome, the concept of complementarity, which defines the relationship between the ICC and national courts and determines who should have a jurisdiction in a particular case.

The basic principle is that the ICC will complement, not replace, national courts. This creates the presumption that the prosecutor will be precluded from taking any action when a state has a functioning judicial system, unless the state is “unwilling or unable genuinely” to carry out the investigation or prosecution. Fundamentally, Canada's goal is to create a court with a maximum capacity to bring real transgressors to justice. We must have a court that is worth having.

The issues I've mentioned are basic issues of principle on which agreement should be built. It is dangerous in a case like this to negotiate down to the lowest common denominator.

No one ignores the difficulties before us, and states were well aware of this reality when they agreed that a court should be established. But it is perfectly possible to build a strong and effective court.

This will require a tremendous effort on the part of governments. Some have been strong supporters of an effective ICC from the start, notably a group of like-minded states that originally banded together because of the common commitment to the prompt creation of a strong ICC and that now jointly develop strategy on substantive issues. And it was indeed Canada's privilege to be able to chair that group of like-minded states to the state where it is today—a real force for positive good in Rome. Other states continue to hesitate to give the court the powers and independence it needs.

This will also require effort from parliamentarians, academics, private practitioners and non-governmental organizations, including, I know, many in this room who have played and continue to play an important role in moving the international agenda forward. And I have personally seen throughout my work in the prep com the helpful and influential role of all these actors.

I thank you for your attention. We have our experts here, who will be able to answer all the questions you may have.

Thank you very much.

The Chairman: Thank you very much, sir.

[Translation]

Professor Schabas.

Mr. William A. Schabas (Département des sciences juridiques, Université du Québec à Montréal): Thank you, Mr. Chairman.

Many States do not need a permanent criminal court, and that is the case for Canada, I believe. If someone commits a crime of genocide on Canadian soil, that person will be punished by domestic courts. Fortunately, that is the case for the vast majority of States in the world.

An international criminal court is important mainly for those cases, which are quite rare, where domestic courts fail to punish people responsible for the most serious crimes, or for those cases where the courts, due to a lack of resources—and I am thinking of the case of Rwanda among others—are unable to control the serious problems with respect to repressing this type of crime.

As regards to the Canadian position, Alan Kessel clearly outlined the main elements of our approach. I would like to point out to the members of your committee that his position enjoys the full support of the academic community and the non-governmental organizations. We only hope that Canadian parliamentarians will also support his position, namely the importance of an independent prosecutor, the classification of certain crimes as crimes over which the court has inherent jurisdiction and the need to limit the role of the Security Council in the court's operations.

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Mr. Chairman, during my short presentation, I would like to focus on another aspect of this matter. I think it is important that we not have unreal expectations as to the role of this permanent criminal court. We must bear in mind that this court will exist solely for the purpose of trying a few individuals. This court will be in a position to deal with three or four cases per year and perhaps even fewer than that. The purpose of this court will not be to replace domestic courts.

If I can give you an example, in the debate on the creation of this court, a lot of time was wasted, in my opinion, on debating the responsibility of minors or young people. The age of criminal responsibility was debated, to determine whether it would be 12 or 14 years of age, as were the terms and conditions for criminal sanctions. Mr. Chairman, should an international court with a budget of $50 million be set up to try young people? It seems to me that we can easily answer no.

This international court will be used for people like Pol Pot, Eichman, Gering and Karadzic. We will not waste our energy on cases that would be better dealt with by domestic courts.

In his presentation, Alan Kessel mentioned the issue referred to as "complementarity." There are two approaches to international justice: we can create a court that takes precedence over domestic courts or one that plays a complementary or secondary role to domestic courts. The two international courts that already exist for the former Yugoslavia and Rwanda have precedence, in that if the court in the Hague or Arusha decides to take a position on a matter, even if the courts in a given State intend to act, the international court is the one that will take precedence over the other. Moreover, I would add, as an aside, that the international courts have exercised this power with great care. The other possibility is a secondary or complementary role. It seems that this is the approach that will be adopted for the permanent criminal court. So the primary role of domestic courts is being emphasized.

I raise this point, Mr. Chairman, because in some ways this is passing the buck to the domestic courts. As far as you are concerned, it is being passed on to the Parliament of Canada. Obviously, you are not participating as parliamentarians in the treaty negotiations, but your main role is in terms of setting up the court and it is on that level that your responsibilities must be assumed. Your main responsibility with respect to setting up the permanent criminal court will involve ensuring that people responsible for crimes against humanity, crimes of genocide and war crimes, who are in Canada, are brought before the Canadian courts.

As you know, a piece of legislation does exist, but it was shelved by the government of Canada. The Minister of Justice decided to no longer undertake proceedings in Canada for crimes of genocide, crimes against humanity and war crimes when these crimes were committed outside the country. So in reality, the work of the Deschênes Commission was set aside in favour of a deportation approach under the Immigration Act.

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That is why last year, when it was suggested that Pol Pot be tried in a Canadian court, we had to refuse to do so. For legal as well as legislative reasons, we are unable to respond to that type of request. That is also why Léon Mugesera, who was tried by an immigration tribunal set up under Canadian legislation and who is responsible for the crime of genocide, is currently free in Quebec and there has been no attempt to get him into a Canadian court to be tried.

Mr. Chairman, Parliament is currently considering amendments to the Extradition Act. This is an important step towards fuller co-operation with international justice. I must point out that these amendments are long overdue. But additional legislative measures must be taken. Namely, legislation must be enacted and amendments must be brought to the Criminal Code in response to the negative effects of the Supreme Court of Canada ruling in the Finta case, so that we can try war criminals in Canada.

Mr. Chairman, we want the court to be created. I am also very optimistic with respect to the creation of the court, but the court must not become a pretext for a lack of responsibility. I am referring to our domestic courts, our international responsibilities flowing from international law and our moral responsibility to ensure that war criminals who are on Canadian soil are tried in our own courts.

Thank you.

The Chairman: Thank you very much, professor Schabas.

Mr. Préfontaine.

[English]

Mr. Daniel C. Préfontaine (Director, International Centre for Criminal Law Reform and Criminal Justice Policy, University of British Columbia): Thank you very much, Mr. Chairman.

The International Centre for Criminal Law Reform and Criminal Justice Policy, as you may know, is an independent and not-for-profit international institute based in Vancouver. It's formally affiliated with the United Nations as part of the network of institutes that work together on implementing the criminal justice program of the United Nations.

Since 1971 the centre has been very active in promoting the international prosecution of war crimes, crimes against humanity, and genocide. In fact, in 1993, on the eve of the establishment of the international tribunal for the former Yugoslavia—that is the ad hoc tribunal—it held a meeting of experts to develop a conception of that tribunal. Since that time we have been very active in monitoring the progress of the two tribunals that have been mentioned and in promoting the creation of a permanent international criminal court.

In that light, we have hosted such speakers as Mr. Justice Richard Goldstone, the former prosecutor of the international tribunal. Mr. Justice Goldstone is from South Africa.

The centre has been accredited as well to participate in the conference, and we're very pleased with the possibility of being there to assist the Canadian delegation.

Let me say that the centre generally supports the positions taken by the like-minded group and by leading non-governmental organizations on the important issues of scope of jurisdiction, state consent, complementarity, and the independence of the prosecutor.

What I want to do for this committee this morning is draw your attention to four or five aspects of the proposed court that will have to be carefully considered; namely, fairness and due process, victim and witness protection, sentencing, reparations, and state cooperation.

The first one, fairness and due process, is basic to all of our democratic systems, that justice is both done and seen to be done, and the ICC has to meet the highest international standards for fair trial and due process. Therefore, the preamble should include, as a fundamental principle of the statute, a general declaration that all stages of the proceedings must be conducted in accordance with the highest international standards of fairness and due process, whether the accused or suspect is in custody of national authorities or of the court. No matter how heinous the crime, this has to be basic.

Such a declaration would provide a benchmark to which judges and counsel could refer where the statute failed to mention the defendant's rights in a particular situation or where international standards have evolved since the time of drafting of the statute, which is likely going to be the case.

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Any list of applicable international standards included in this statute is not likely to be exhaustive. Therefore, we suggest that there be a preambular fairness principle, much like our own laws in Canada, including the charter.

With regard to rights before trial and during pre-trial detention, whether of accused persons or of suspects provisionally arrested, they should be articulated not simply in relation to national standards but pursuant to the higher, or minimal, depending on how you look at the world, bottom-line standards set out in article 9 of the International Covenant on Civil and Political Rights, and in other relevant international instruments. They are lengthy, so I will not go through them this morning.

Therefore, express provision should be made for the rights of access to counsel, to prompt medical attention, to timely court action for determining the lawfulness of the detention, and the right to release, among others. Supervision of these rights must be in the hands of the court and not of national authorities. Detained suspects should not, prior to indictment, be held indefinitely. Their detention should be subject to a set time limit, possibly 60 or 90 days, but at least a set time limit, and provision should perhaps be allowed where it is necessary and is required in order to bring an indictment before the court.

With respect to rights at trials, specific procedures on a disclosure of evidence can be placed in the rules, but the basic principles must be contained in the statute. For example, the present rules of the ad hoc tribunals require the prosecution to disclose all evidence that tends to suggest innocence or to mitigate the guilt of the accused, or that may affect the admissibility of prosecution evidence. So it would be appropriate to require the prosecution to release all evidence on which it intends to rely, or that could affect the credibility of the evidence, or that is material to the defence.

Conversely, we have to be careful about the disclosure requirements on the part of the defence, and it has to be narrower, in keeping with the basic principles of the right to silence and presumption of innocence. It must be remembered that disclosure should be subject to any orders made by the court consistent with the rights of the accused but regarding protection of victims and witnesses.

The right to a public trial is a basic principle of justice and is essential. Closure should only be allowed in the narrowest of circumstances after all other measures have been exhausted. Closure of an entire trial, we say, should never be allowed.

On appeal rights, of course they have to have appeal rights, but they should be limited. No appeal should be allowed on an acquittal because of an alleged error of fact. However, all of us are familiar with these basic ideas of when an appeal should be allowed: procedural error, error of fact, or error of law. The articles are in the draft statute. Look at article 80. There are different examples of how it could be done.

Trials in absentia, if allowed at all—I don't recommend it and our centre does not recommend it—should be permitted only in the narrowest of circumstances: where the defendant has escaped, or has violated the conditions of bail after trial has begun, or has continued to disrupt the trial. Needless to say, these are going to be hot issues.

Victims: We strongly support the development of programs compatible with the rights of suspects and the accused aimed at protecting victims and witnesses from intimidation and reprisals, including special measures to protect women and children victims and their families from reprisals and unnecessary anguish. The balance must be struck, if anywhere, at the international level, given the plight of the victims and the witnesses who come to testify before this court. We've seen that in the ad hoc tribunals.

So protection measures must be taken into account and also must be extended to family or close associates of the individuals that have been victims of these atrocities.

Because there are many questions that need to be answered, we say we should have a witness support and protection unit established. It will probably be sufficient for the statute to require that such a unit be established, leaving to the rules the specifics of its organization procedure.

Let me move quickly to sentencing and say to you that there should be no death penalty, period. Article 75(e), option 2, provides for that.

To meet the requirements of the principle of legality, expressly codified penalties are essential. We should be looking at purpose and principles of sentencing, including factors to be considered in aggravation and mitigation of the severity of the sentence. Canada's Bill C-41 gives an excellent example of how we could influence the process and influence the development of the statute. If you look at the Criminal Code, you'll see that we've done a very good job of providing for that after maybe 15 or 20 years of debate in Parliament. Now we have it and the courts are trying to interpret it.

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A victim impact statement, for example, is the kind of thing we should have. Section 722 of our code provides a model. If we're going to proceed to confiscation of proceeds and instrumentalities of crime, of the defendant's property, or an equivalent value, we have a good model in part XII.2 of Canada's Criminal Code. There is a reflection of that in article 75, but a lot of work will have to be done on the detail procedure.

On detention and treatment of prisoners, the standards are there. They have to be respected and we can look to our own Canadian model to influence the process, as well.

On reparations, the right of victims to have representation at the sentencing phase of the proceedings, we should move in that direction and influence that process as we have in Canada.

I will not speak about state cooperation because I've run out of time. I will conclude with a very simple statement, that in order for this court to be credible, as my colleagues have already said and others I'm sure will say, you have to have a balanced approach, an effective regime of state cooperation, credible protection of victims and witnesses, proper representation and protection of accuseds' rights. Above all, you have to figure out how you're going to finance this court, and I'm sure somebody else will talk about that.

We support Canada as it continues to provide the leadership. We hope we'll see this in reality and not have to wait another 50 years, because that's how long we've been working to bring about the present draft statute. Thank you.

The Chairman: Thank you, Mr. Préfontaine.

Mr. Matas.

Mr. David Matas (Spokesperson, Amnesty International): I'm here for Amnesty International and I want to apologize because I won't be able to stay to the end. I'm speaking in Toronto this afternoon, so I'll have to leave before the conclusion.

I also want to draw your attention to the fact the Canadian government has kindly asked me to be a member of their delegation at the conference in Rome. I will be there as an NGO adviser. I've been given very strict instructions not to make any public statement, except with the approval of the head of the delegation. I assume that does not apply to today, so I'm making my statement without the approval of the head of the delegation.

The Chairman: You will find out when you get to Rome, I guess. No pasta for you.

Mr. David Matas: Fifty years after the premature termination of the Nuremberg trials, we now return to the establishment of a Nuremberg tribunal. The Nuremberg trials were terminated for political reasons, with a whole line-up of accused waiting to be tried. Many of those accused who escaped Nuremberg ended up being tried, convicted and punished by national courts. However, the absence of an international tribunal meant that many more got away with their crimes.

Looking back, we can see what a great mistake it was not to fashion the Nuremberg and Tokyo tribunals then into an international criminal court. In the intervening decades, millions have died from war crimes, crimes against humanity, and genocide. For the most serious crimes, the international community has lived in a state of lawlessness since the end of the Nuremberg and Tokyo tribunals. That lawlessness has had its predictable effect: no deterrents for the worst crimes, and immunity for the most serious criminals. After 50 years of havoc and mayhem, mass murder and extermination, the international community is finally coming to its senses and establishing again an international criminal court that 50 years ago it never should have ended.

Canada has attempted on its own to bring criminals against humanity to justice. Our Criminal Code was amended to allow for prosecutions, provided only that the accused were found in Canada. We have found this law difficult to operate. Our courts have imposed technical restrictions on the interpretation of the law that have made it unworkable. As a result of these technical interpretations, we have had to abandon the prosecution efforts we began with the new law, and instead switch to revocation of citizenship and deportation of criminals against humanity who sought immunity in Canada.

We look to the development of the international criminal court to give a push to the global duty to prosecute war criminals and criminals against humanity, no matter where they may be found. The statute must not only allow for prosecution by the court the statute establishes; it must also inspire and promote the state prosecution of war criminals, criminals against humanity, no matter where the fugitives may be found.

States do not just have a power to prosecute criminals against humanity found on their soil; all states have a duty to prevent their territory being used as a haven for criminals against humanity. All states must either prosecute criminals against humanity found on their soil, or extradite the fugitives for trial elsewhere.

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The new court must be ready and available, where national criminal systems are either unable or unwilling to fulfil their obligations, to bring to trial persons responsible for the most serious crimes of concern to the international community. But we must not forget the primary duty, on all states themselves, to bring to justice persons found on their territories who are responsible for the most serious crimes of concern to the international community.

The new court that is to be established must be free from political interference in pursuit of its work. No political body, neither the Security Council nor the state, should have the power to stop or delay investigations or prosecutions under any circumstances whatsoever. Any politically motivated delays in investigation or prosecutions would let memories of witnesses fade and facilitate the destruction of evidence and intimidation of witnesses.

The conference in Rome should not get bogged down in overly elaborate attention to detail about what the procedures of the court should be. Rules, practice and procedure should not be in the statute of the court, and should not be the subject of discussion at the diplomatic conference in Rome. Rules of procedure, including rules of evidence, need to be flexible and capable of amendment to reflect experience.

The statute of the court should attempt to include the fundamental principles of the court and not the day-to-day matters, which should be set up elsewhere. Rules of procedure and evidence should come from a standing committee of states parties. Rules of practice should come from the judges of the court, aided by a rules advisory committee.

While a consensus is a desirable goal, Canada should be prepared and should be urging the diplomatic conference to be prepared to take decisions by vote if need be.

There are, regrettably, some states that are not all that enthusiastic about the creation of an international criminal court. These states would prefer no court at all to a strong court. For states opposed to the creation of a strong court, there is no bottom line. Their demands for weakening the court are endless. No amount of concessions, short of a toothless court, would ever satisfy them. At the end of the day, the objections of these states simply have to be registered, but otherwise ignored, if we are ever to have an international criminal court worthy of the name.

The Government of Canada should have its own bottom line. There should be a number of requirements an international criminal court must satisfy before Canada would support it. If opposition elsewhere in the world to these positions cannot be altered by negotiations, Canada should be asking for a vote at the diplomatic conference on these positions.

The treaty establishing an international criminal court, once approved by the Rome conference, will bind only those states that sign and ratify the treaty. The treaty establishing the court will not bind those states that don't sign and ratify the treaty merely because they've taken part in the Rome conference, or they're part of the community of nations. Consequently, seeking consensus now with states that will sign and ratify the treaty establishing the court only if the court is a toothless court is a futile effort. It is an effort that can only damage the court.

Amnesty International wants a court that wins the adherence of as many states as possible. In order for that to happen, civil society must be convinced that this court is an instrument of justice, not an instrument of politics of the superpowers; that this court will prosecute the worst crimes and the worst criminals, no matter what their nationality, and not give immunity to some criminals because of their nationality. Only a principled and strong court will win the adherence of civil society in the global community.

Although it is the states of the world that negotiate and then ratify the statute of the court, it is the people of the world who will determine its value and acceptance. In pursuit of state consent, we must not forget the necessity for public approval. Because this court will be an instrument for respect for human rights, our ultimate goal should be the approval of humanity.

Thank you.

The Chairman: Thank you very much, Mr. Matas.

Ms. Oosterveld.

Ms. Valerie Oosterveld (Spokesperson, Women's Caucus on Gender Justice in the International Criminal Court): The United Nations held preparatory committee meetings, called prep com meetings, to negotiate a draft international criminal court statute, beginning in March 1996. By February 1997, it became very clear to various human rights advocates that the draft statute was evolving into a document that ignored gender issues and was a step backward from the statutes and practice of the international criminal tribunals for the former Yugoslavia and Rwanda.

Several NGOs came together at that time to form the Women's Caucus for Gender Justice in an ICC, which has since expanded to include over 300 member non-governmental organizations.

The Women's Caucus has participated in every prep com since its formation, and will also be present at the Rome treaty conference. The goal of the caucus is to promote a gender-sensitive ICC that will effectively prosecute all war crimes. This is what I am here to talk to you about today.

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Why is a gender-sensitive ICC necessary? Well, in my mind, there are three main reasons. First, gender-related crimes have historically been overlooked or ignored. Second, armed conflict and crimes of sexual violence are unfortunately inextricably linked. Third, a gender-insensitive court is an unjust and ineffective court.

Turning to my first reason, which is that gender-related crimes committed during armed conflict have historically been overlooked or ignored, throughout the history of war, while male civilians are killed, female civilians are typically raped and then killed. In torturous interrogations, males are savagely beaten, and females are savagely beaten and raped.

Even so, the law that applies to all civilians has tended not to recognize abuses that are gender-specific. Even when the laws of war have recognized and forbidden sexual assault, there has been little inclination to prosecute the violations. This inaction effectively renders any laws prohibiting sexual violence useless and perpetuates the attitude that the sexual assaults are less significant crimes not worthy of prosecution. A gender-sensitive ICC would serve to reverse this trend, which would benefit both female and male victims of sexual violence in war.

Second, armed conflict and crimes of sexual violence are inextricably linked. Sexual violence in war is nothing new. As long as there have been conflicts, there have been reports of soldiers raping and sexually mutilating women and girls and, less often, men and boys. It doesn't matter what kind of war is being fought. There have been reports from the religious wars of the Crusades, revolutionary wars, civil wars, and the world wars.

Recently, the conflict in the former Yugoslavia spawned new visibility for crimes of sexual violence. In late 1992, shocking reports were published around the world about how rape and forced pregnancy were being widely used in that conflict as tools of ethnic cleansing. In 1994 and 1995, stories of sexual violence again emerged, but this time from Rwanda, describing the use of mass rape to torture Tutsi women and some Hutu women.

Today, reminders that armed conflict and sexual violence go hand in hand are found in newspaper reports from Algeria, where entire villages of women are raped and killed while young girls are kidnapped to become sexual slaves.

It's very clear that the nature of war is changing, and with it, the uses of sexual violence are evolving. A gender-sensitive ICC would recognize that the kind of war being fought today is one in which rape and sexual violence are considered tools alongside strategic weapons such a rocket launchers and machine guns. This requires new tools to fight impunity.

My third reason why the ICC must be gender-sensitive is that if it isn't, it will then be an unjust and ineffective court. Gender sensitivity comes not only from having a statute that recognizes rape and other sexual violence crimes as core crimes, as you've already heard today, but also from a statute that puts into place a structure that's adept at recognizing, investigating, prosecuting, and judging these crimes.

In the beginning, the Rwandan tribunal was not proficient at recognizing, investigating, and prosecuting sexual violence crimes. Despite the widespread notoriety that crimes of sexual violence had occurred in his commune, the first defendant, Jean-Paul Akayesu, was not investigated for or charged with these crimes. During his trial, evidence was elicited first by one judge and then by another that these crimes had occurred.

This surprised the prosecution. This led a group of NGOs to submit an amicus curiae brief to the court requesting the amendment of the indictment to include sexual violence crimes.

Finally, the prosecution did amend the indictment. But this same group of NGOs has been warned by a court insider that it might have to continue to file amicus curiae briefs in almost every case due to the poor structuring in place that inhibits the prosecution of gender crimes at the Rwanda tribunal.

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I'd just like to point out that this is an inefficient and unjust way of trying to achieve justice. We can avoid these problems by fashioning a gender-sensitive international court structure.

What does the Women's Caucus want and how does the Canadian government fit into this? The Women's Caucus has five basic concerns, of which I will only outline three at this moment.

First, the core crimes within the jurisdiction of the court must reflect the experiences of all victims, including victims of rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization.

Second, the court's composition and structure must be gender-balanced and provided with key personnel with gender expertise to be hired in the various organs of the court.

Third, an effective victims and witnesses unit must be established within the registry. This witness protection must be gender-sensitive and protect the privacy, integrity, security, and health of witnesses before, during, and after—I must stress “after” because this is a very big problem at the two tribunals—testimony.

Canada has played a leading role in ensuring that the ICC statute is gender-sensitive. Specifically, among other things, it has introduced and supported a definition of war crimes that includes the range of sexual violence I have outlined, an independent prosecutor who's able to receive information from various sources including NGOs and individuals, gender balance and gender expertise within the structure of the court, a prohibition on gender and other discrimination in the interpretation and application of the statute, and the rights and protection of victims and witnesses within the whole of the ICC process.

The Women's Caucus urges Canada to continue its leading role by supporting these advances that have already been made in creating a gender-sensitive statute. As well, we ask that Canada ensure that the issues still in contention, such as the definition of crimes against humanity, be discussed and adopted in a manner that respects and reflects the experiences of all victims of crimes within the jurisdiction of the court.

The negotiations are going to be tough. No doubt there will be some countries that will attempt to trade off gender sensitivity in order to gain other things. Canada and the like-minded nations must resist this pressure and hold fast to its goal of a statute that benefits humanity.

Thank you.

The Chairman: Thank you very much.

Mr. Watt.

Mr. Fergus Watt (Executive Director, World Federalists of Canada): Thank you, Mr. Chairman.

I'm here before you this morning wearing a few hats. Most of the time I'm executive director of the World Federalists of Canada. That organization has played a role as the administering agency of a network of Canadian non-governmental organizations and individuals, which is the Canadian Network for an ICC.

The Canadian Network has been in existence for two and a half years. It's primarily a forum for dialogue among Canadians, parliamentarians, individuals, and academia for a range of issues around the formation of an international criminal court. We're part of a broad-based group of over 900 organizations in the international coalition for an ICC.

While most of my remarks reflect the views of the World Federalists of Canada, I'll just summarize briefly half a dozen activities undertaken by the Canadian Network.

We've organized five briefings with people like Alan and Darryl and Don at Foreign Affairs to enable NGOs and Canadian officials to exchange views. We've supported the leadership of the centre at UBC in the tour that was mentioned by chief prosecutor Richard Goldstone. We've facilitated frequent action alert campaigns sponsored by members of the network, such as one by Amnesty International on Canada's Extradition Act. We've sent representatives to the prep coms at the UN.

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We've encouraged the Canadian government to lobby at recent meetings this past fall of the Commonwealth and Francophonie for language supportive of the UN negotiations. We were grateful that Canadian officials undertook those lobbying initiatives at the Commonwealth and Francophonie; the resulting resolutions did contribute to greater participation by some of the smaller third world states at subsequent prep coms.

Finally, we've distributed widely in Canada press kits, including not just the views of NGOs but also those of Canada's foreign minister, on the ICC. This is a recent activity. We've distributed about 100 of these to media outlets in Canada. The network staff have also penned a few op eds and helped some of Canada's leading newspapers to right their own editorials. So we've tried to contribute to the formation of Canadian public opinion on this issue and I think it's been somewhat successful.

I think there's a built-in affinity for this kind of institution amongst Canadians. Canadians are generally law-abiding and like the UN, and they just like the feel of an international criminal court, even if they don't understand all the details.

In my presentation, I've highlighted at the outset some recent remarks from Foreign Minister Axworthy. On April 25, at Harvard University, he said:

The International Criminal Court must be a court worth having—one that is effective and independent. As with the landmines convention, a lowest common denominator agreement on a court is likely to be worse than no agreement at all.

If I leave no other message with you this morning, it's that we just hope Canadians will keep that in mind in Rome, because there will be tremendous pressure to accept a lowest common denominator agreement.

I highlight Mr. Axworthy's remarks for two reasons. First of all, there is a strong likelihood that Canada's role will be changing quite dramatically in the coming weeks. I expect this was not reflected in Mr. Kessel's remarks because it's not official yet, but you can take it as strong rumour, verging on near certainty amongst NGOs at the UN, that Canada will be named chair of the committee at the Rome conference. This means that Canada will play less of an advocacy role, probably no longer be chair of the like-minded, and will of course, as chair of the committee of the whole, be engaged in consensus-building and finding of a middle ground. The question is what kind of a middle ground.

If it's the case, and we expect that the like-minded group does not have the votes to carry the day on critical questions at Rome— and we've heard and seen the work of meetings within the non-aligned movement. We've heard the views of permanent members of the Security Council. We've seen what France and others are doing in the Francophonie, notwithstanding some excellent efforts by Canadian diplomats to counter those efforts. Then we are looking at a consensus decision, and I'm very apprehensive about what could come of that.

It's better, I feel, that Canada be prepared to walk away. It would be a disaster in this leading edge area of international law if we created a court that did not function. Better that we go back to the drawing board, start again in a new forum, in a new way, some variation on the landmines process or something like that, than agree to something at the last minute, at the eleventh hour, that ultimately does not work and loses the confidence of the international community and world public opinion.

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I will skip over some of the more particular aspects of my presentation. I talk about the need for an independent ex officio prosecutor, an independent court that's not under the control of the Security Council, inherent jurisdiction, complementarity. We more or less support the views that have been advocated by Canada and the like-minded.

I have to repeat that in general, although I'm going to raise a few problems later, 98% of what Canada has done on this issue has been tremendous and I have a great deal of appreciation and admiration for what's gone on.

On the third page we get into a definition of war crimes, where we say that the court statute should not treat crimes committed in internal conflicts and those committed in international conflicts unequally in the definition of war crimes. The statute should reflect the reality that contemporary armed conflicts are predominantly non-international.

Furthermore, the ICC treaty should not adopt language regarding the definition of prohibited weapons systems that weakens existing prohibitions on the use of nuclear weapons.

Here I draw attention to what is actually an appendix. It's a letter to the foreign minister endorsed by some mainly disarmament and peace and security organizations. We feel that there is a problem with what Canada is saying in the definition of war crimes section. I know it's adding a lot of extra paper, but I've photocopied the sections of the draft statute in order to walk the committee through where we think the problem arises.

Our bottom line is that we support—it's in my first appendix on what is numbered page 22 of this version of the draft statute—option 3, in other words, a general prohibition on weapons under the war crimes sections: “employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering—”

Canada, on the other hand, is supporting the previous option, option 2; and I've pointed out here that Canada has actually led in adding point (vi) of that option, which is some language that it may include weapons that would be proscribed by future treaties.

The issue of whether landmines, nuclear weapons or other weapons should be included in the definition of war crimes is an unresolved issue. International law—

The Chairman: I don't like to interrupt, Mr. Watt, but I take it what you're saying is option 3 includes pretty well everything listed in option 2. Is that your position?

Mr. Fergus Watt: Our view is that we don't need to specify weapons.

The Chairman: Thank you.

Mr. Fergus Watt: Maybe I'll leave this issue for now. I don't think it needs further elaboration. We're not trying to insert a disarmament agenda here. This is a moderate position. Other NGOs are seeking language that does include weapons such as nuclear weapons and landmines, whose prohibition is not yet part of customary law.

Secondly, I'd like to draw to the attention of the committee a recent resolution that's been passed by the Canadian Bar Association. It was passed only last week. We've been working on this for a while, and I should give credit where it's due, mainly to a woman named Élise Groulx, who heads a small group, an association of criminal defence attorneys, that seeks some sort of designation of a body of defence attorneys in the statute for a criminal court.

The Canadian Bar Association, while a bit slow off the mark, has passed a resolution that is better than the American Bar Association's. I think this is additionally indicative of growing public support for the idea of a criminal court.

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Finally, there's an appended letter outlining the disappointment the members of the Canadian Network for an International Criminal Court have in the decision of the Canadian government not to fund Canadian NGOs who are participating at the Rome conference.

Canada has on three occasions contributed to a United Nations fund to enable government representatives from LDCs, or less developed countries, participating in the prep coms and at Rome. In addition to our contributions to the UN fund, through CIDA, Canada is funding the participation of six third world NGOs. What we're doing, then, is funding third world NGOs and LDC delegates and not funding Canadian NGOs.

There are people going to Rome, including some here in this room, who are having to bear their expenses through personal finances. That's not right, and it is not really consistent with past practice in terms of other UN conferences. It doesn't really reflect well on what the minister says about government-NGO partnerships. It's a regrettable situation.

Frankly, as someone who is attempting to coordinate NGO efforts, I'll take my share of what responsibility is necessary for this situation, but Canadian NGO participation in Rome is not going to be as strong as it should be.

Finally, I would like to conclude by really coming back to where I started—that is, Canadian leadership on the need for an independent and effective court. I hope members of this committee will be engaged in and following the Rome process. There is an NGO-sponsored daily digest and update on the process.

I hope also that Canadian political leadership in particular will be engaged not just at the outset, when the minister's speech is given, because we need to have a continuing hand on the steering wheel on this one. It's going to be difficult. There will be disappointment, but understanding, if Canada has to walk away at the end of the day, but there will be greater disappointment and a real setback for the progress of international law if we do get a bad court.

Thank you, sir.

The Chairman: Thank you, Mr. Watt.

Ms. Harvey.

Ms. Elaine Harvey (Representative, Unitarian Universalist Association and Canadian Unitarian Council): Thank you.

I appreciate the opportunity to speak at this meeting. I represent the Unitarian Universalist Association, an NGO with accreditation with the UN Economic and Social Council. I also represent the Canadian Unitarian Council, which is a group of 5,000 Canadians.

I'd like you to consider the power of the preamble to the charter of the United Nations—indeed, the strength and inclusiveness of the opening words, “We, the people”. Consider how frequently they are quoted and what inspiration they have given to countless millions of people. Look at the preamble to the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the Convention on the Law of the Sea, and indeed any number of charters, conventions and declarations that have arisen out of the United Nations.

Realize that now, at the end of the bloodiest century humankind has ever experienced, and at the dawn of a new millennium of hope for the peoples of the world, the creation of an international criminal court is a momentous event in the history of the world. It carries within its creation the deep pains and sorrows of the peoples of the world who have been capable of perpetrating the most heinous and massive of crimes against humanity—against other human beings—but it also carries with it the recognition that these heinous crimes will no longer be tolerated, that they will no longer be committed with impunity. And it carries with it the hope that the next millennium, with this court in place, will be a better world in which to live.

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With these thoughts as inspiration, the Faith-Based Caucus of the International Criminal Court, of which I am a member, has drawn up a proposed preamble for this statute, which carries within it not only the deep sorrows of the errors of the past but the lessons we have learned from our violent past and the hope and vision of a better future.

Being mindful that this preamble is written for all of the peoples of the world, no matter what their personal beliefs and faiths—for those who believe in one god, for those who believe in the Trinity, for those who believe in many gods, for those who believe in no god—we have written this to carry within it the deepest commonly held beliefs of the peoples of the world, the basis that is common to all. We feel there is a spiritual quality to this preamble.

The Canadian delegation has provided a leadership, incorporating both insight and mediation, that far surpasses its place as a middle power in the nations of the world—a leadership that has given me, as an observer of the work of the Canadian delegation, such incredible pride in being a Canadian, to think that we, on the world stage, through mediation, through finding solutions that bring together opposing forces, in our role as chair of the like-minded nations, have brought together a group of nations that will see that this international criminal court does in fact come into existence, a gestation period of only five years.

Because of this impressive role Canada has played, it is fitting that the Canadian delegation should make the proposal in Rome of a preamble that far surpasses the legalistic preamble in the draft document. Using ours as a base and perhaps incorporating the comments Mr. Préfontaine made earlier, this preamble will emphasize the vision inherent in each and every article in the statute.

I have a few copies of the preamble. Would there be time to read it, or have they been distributed?

The Chairman: They were distributed.

Ms. Elaine Harvey: May I read it?

The Chairman: It's been distributed, so you might not want to read it, because we're anxious to get on to questions.

Ms. Elaine Harvey: All right, thank you.

It states:

The State Parties to the Statute of the International Criminal Court:

Recognizing the commitment of the community of nations to end the scourges of war and genocide, to reaffirm faith in the fundamental human rights of men, women and children, and the equal rights of nations large and small, to establish conditions for the maintenance of justice and respect for international law, and thereby to insure conditions for global peace and security;

Recognizing that the protection of the dignity and integrity of the human person explicit in the International Bill of Human Rights requires not only moral, ethical and political commitment, but the institutional framework which can assure that those protections will be honored;

Recalling the historic record of human atrocities;

Recognizing that crimes against humanity, crimes of aggression and of genocide and war crimes continue to scar our world, not only having widespread and systematic effect on multitudes of individuals but also having destructive impact on the psyche and very ethos of communities;

Recognizing that while justice requires that individuals must be held accountable for their actions, it also requires recognition of systematic and corporate abuse of power;

Desirous that the quest for justice includes retributive justice whose purpose is the prosecution and punishment of offenders while insuring the rights of the accused to fair trials, restorative justice whose purpose is that of reparation, restitution and rehabilitation for the victims, and redemptive justice which must be seen as the enablement of communities and peoples to deal with the truths of the past in ways which will allow and enable social reconstruction and reconciliation, and the ending of cycles of violence;

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Recognizing that adjudication of crimes of international concerns that have transcended national boundaries are often beyond the scope of national criminal justice systems, and that crimes whose immediate victims have occurred within national contexts are often beyond the competence or ability of national judicial systems;

Noting the basic principles of justice for victims of crime and the abuse of power approved by the United Nations General Assembly;

Therefore establish the International Criminal Court in order to

1. provide an international judicial instrument capable of fulfilling the relevant concerns of the United Nations Charter, the International Bill of Human Rights, the Genocide Convention and all relevant United Nations conventions for justice, peace, and compassionate order;

2. provide support for the juridical procedures of member states;

3. provide jurisdiction over criminal proceedings beyond the scope of national judicial processes, or where such systems are unable or unwilling to fulfill the obligations of assuring justice.

The Faith-Based Caucus is quite aware that some changes and editing may be needed, and that when this is brought to the floor, the state doing so would want to perhaps put their own mark on it. It's the vision and the thought behind this that we're anxious to see incorporated into the statute.

Thank you very much.

The Chairman: Thank you very much, Ms. Harvey.

Before we move to questions, I'm wondering whether we could put Mr. Grewal's motion to a vote. Everybody has had that motion for a couple of days. I suggested earlier this morning that there was no trouble with it, or at least I hadn't heard of any trouble, in which case we can adopt it quickly. Notice was given two days ago. We're just trying to deal with it now.

Mr. Mills, I don't know if you wanted to quickly speak to it.

Mr. Bob Mills (Red Deer, Ref.): Well, if there are any questions, certainly I know the intent of Mr. Grewal in putting this. Basically he wants to know dollar figures for India and Pakistan aid prior to it being approved in the budget. That's the main purpose behind it. I think it fits with our concerns there.

The Chairman: Ms. Beaumier.

Ms. Colleen Beaumier (Brampton West—Mississauga, Lib.): I'm really wondering, for the purpose of what? To what avail? Are we talking about bilateral aid or NGO aid?

Mr. Bob Mills: I think we're talking about CIDA programs for those two countries.

Ms. Colleen Beaumier: But CIDA programs are often directed to— It is not assistance to the government. I'm just wondering if perhaps we're not premature. And why focus on this area, to what avail?

Mr. Bob Mills: Well, I believe it is government to government. Generally speaking, NGO assistance is something quite different and goes directly to the people. I believe this is government to government. And this would be for future budgets—not present, but future—as part of considering the whole financing of other things by those two governments.

Ms. Colleen Beaumier: The thing is, from my understanding— And I'm not trying to avoid the issue or avoid looking at aid anywhere. I have the same concerns as everyone else does. I'm just wondering. CIDA has just done its own internal audit and will be making many changes and adjustments, and I'm not sure they are even in a position to give us a projected—

Mr. Bob Mills: Next year, though—for next year's budget?

Ms. Colleen Beaumier: Well, not necessarily specific. They may have area-specific money set aside, but I think the bilateral aid to India and Pakistan right now is probably on hold depending on what comes out of these talks.

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We have so many meetings and we deal with so many issues, I'm wondering if we really want to have another meeting dealing with something that's really up in the air right now.

Mr. Bob Mills: Obviously it's not happening now. This would happen prior to it becoming a budget item, which obviously means next fall.

Ms. Colleen Beaumier: But don't you think that—

The Chairman: Let's all remember that the government has already announced its formal position on this. We are no longer giving any aid except humanitarian aid to either India or Pakistan.

I suppose the whole problem we might get into here is what the definition of “humanitarian” will be and what is not and what has been cut out. I suppose that's really the purpose of the motion: to find out what is going to be left in the aid package and what is being cut out.

I think the parliamentary secretary here wants to say something. We might hear that. But if we're going to have a long controversy about it, I think I'll put this matter over until afterwards. I thought this had general acceptance and we could deal with it quickly. If it's going to take us some time I think we had better put it over until after we've finished with the witnesses on this other issue.

An hon. member: It's premature.

Mr. Ted McWhinney (Vancouver Quadra, Lib.): Mr. Chairman, I had a conversation with Bob yesterday about this. I've already passed it on to the minister. We made our position very clear to the Prime Minister and then to the foreign minister after these tests were made, and we're into a second stage. I met with a delegation from Pakistan for an hour yesterday, and they are testifying to this committee this afternoon. It is a very interesting group.

I would just worry about the message now being sent in the last phrase there. We have made our opposition very clear, but we may be into the stage that you suggested yesterday: quiet diplomacy with some possibilities of movement. I wonder if in that last phrase you might say that minatory aspect could be deleted at this stage or that the thing could be held over.

I'm in general sympathy with what you want to do, but I think we are trying to get some movement into this file with some very concrete and specific measures, which I think you may hear from the Pakistan people this afternoon.

Mr. Bob Mills: And you know my feeling on that. As we discussed—

Mr. Ted McWhinney: Yes.

Mr. Bob Mills: —it is certainly one of promoting diplomacy and solution. I think Mr. Grewal's point—and it's too bad he is not here to speak to this—is that basically he would like to see those dollar figures looked at prior to their entering into the budget, simply for our information, and obviously for our input.

Mr. Ted McWhinney: Yes, I understand and respect his motives. Compatibly with that, though, I think it would be helpful if this were not debated and adopted before we at least hear the Pakistan delegation this afternoon. They are very interesting people.

Mr. Bob Mills: But that has nothing to do with next year.

The Chairman: I'm sorry I introduced this when I did. I thought we had consensus. It's clear that we don't have consensus at this point. We'll have to put this over until we've dealt with this issue of the international criminal court. I thought we could deal with it when we had our quorum here, but that's fine. We'll put it over. I'm sorry to interrupt the proceedings for that.

Mr. Mills.

Mr. Bob Mills: I'd certainly like to welcome all of our guests. We've had a diverse group of presentations.

The first point I'll put forward is something that always bothers me when I hear presentations like this, and that is, we are saying we're representing Canadians and putting forward the thoughts and wishes of Canadians, yet this has never been debated in the House of Commons, where accountable people, elected people, can in fact say what Canadians think about whatever the issue is.

I just think you would feel a lot better putting together something on our behalf had it been debated in the House of Commons and had members of Parliament actually had input. I know this committee is for that purpose, but it's a little late, and it certainly doesn't represent all Canadians. So I have a little problem: we sell democracy abroad and yet we sometimes seem to have little democracy in Canada.

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Secondly, having a permanent court like this in terms of the potential of all of this international involvement, the potential bureaucracy, inefficiency and ineffectiveness, much as we see plaguing the United Nations— I wonder how you're going to keep this from happening and at what cost. Again, I'm not quite sure why you don't take the Rwandas and the Bosnias and deal with them on a one-off basis, and then you could really emphasize what's happening there.

Thirdly, I had a most interesting—the committee have heard this many times—visit to Bosnia for the elections, where I actually was on the ground and went all over the place talking to average people in Bosnia. I recognized the huge emotion involved there. Courts and so on are deterrents, and with the level of emotion that these people expressed—and I guess I found the same thing in Rwanda—I'm not sure this court is going to serve that purpose.

As well, I wonder, are these kinds of crimes against humanity greater in 1998 than they ever have been or do we just hear about them more?

Finally, I wonder how we will enforce these things when the sovereignty of countries, the rise of nationalism, is present. I just wonder about the enforcement and how we're going to do that. We don't seem to be doing a very good a job right now with Bosnia. How are we going to do this on a much larger scale?

I'm sorry, Mr. Chairman. I've asked a lot of questions, but I think there are a lot of things we need to know.

The Chairman: There are three distinct questions.

Mr. Allmand, followed by Mr. Matas.

Mr. Warren Allmand: With respect to the first question, I should say that I've been encouraging a debate in Parliament—or our centre has—for some time. As a matter of fact, we think there's still time. I can recall the ones on peacekeeping and foreign affairs issues that started at 5 p.m., the end of the day, when it was necessary to do so. I personally believe that a debate in Parliament is essential and I have been encouraging it. I wrote to the minister and to others asking that you have such a debate.

In this way, I think you can rally and not only inform other members of Parliament who aren't on the committee about the key issues in this matter, but also inform Canadian public opinion.

With respect to our organizations, I don't think we pretend to represent the Canadian people. Some of us are representative and others are centres, academics and a wide group of people— But we've been trying to promote the policies and to have parliamentarians take up the issues.

All I can say is that if the parties agree, it's not too late for you to schedule a debate in Parliament on a given day—or in the evening, as you've done in the past, which I recall very well.

With respect to whether the issues are greater in 1998 than they've been, we don't think so. As a matter of fact, several of us here this morning have said that Nuremberg was terminated too soon. People have been working on this for years, but it was put on the back burner by politicians and diplomats because of the Cold War. There were too many other things happening. With the end of the Cold War the issues have come back again, and that's making considerable progress.

But perhaps others would answer your other questions.

I hope you do have a debate in Parliament.

Mr. David Matas: In answer to your question about just having one-off tribunals, this is obviously pretty basic to the whole creation of the court, and there are a lot of different answers.

One is that you don't want political prosecutions, and a one-off means that there'll be a consensus around prosecuting some crimes and not others. But perhaps even more basic is that the point of the court is not just punishment. It's also deterrence. And a court that is created after the crimes are committed cannot have a deterrent effect. That's part of the problem with Rwanda and Bosnia: those courts were there only afterwards. They were not there before, and if they had been there before, we might not have seen those crimes.

You ask about whether the problem is greater or we hear more now. The problem is different. Before, during the Cold War, we had a different type of violence in the violations of human rights. Now we see a lot more internal wars, fragmentation of states and collapsing states, but what is different now is a difference in opportunity. The Cold War prevented the development of the court and shut down Nuremberg for political reasons I disagree with, but they were there. But we now have a political space we didn't have before that we should take advantage of. Certainly, the need was always there.

• 1045

You ask how to enforce it. Obviously with any court, even our own courts, there are some problems of enforcement. I mean, some people in Canada, regrettably, get away with crimes. But that's no reason to dismantle our court system or not to have one. We set up a court system, we set up the laws, we try to enforce them and do the best we can. Certainly we should not give up simply because some fugitives escape justice.

The Chairman: Madam Oosterveld.

Ms. Valerie Oosterveld: I just have one comment with respect to the deterrent issue. We've recently seen how effective these courts can be once they actually get some power and integrity. When Jean Kambanda pleaded guilty at the Rwanda tribunal, this led to, I think it was reported recently, over 2,000 Rwandans who were being held in prison in Rwanda to also plead guilty. Before, they thought no one would plead guilty so why should they plead guilty.

Secondly, in the Bosnia tribunal, people are now turning themselves in because they see that the court is actually effective.

The Chairman: Mr. Kessel.

Mr. Alan Kessel: Thank you, Mr. Chairman.

A number of really important questions have been raised. But one of the interesting ones that Mr. Mills has alluded to is the question of cost.

In fact, the ad hoc approach of creating tribunals is a very costly process for the UN system and for us who pay our bills on time. A permanent structure that has funding from the regular budget of the UN system, that doesn't have to be created by the Security Council with all its political connotations, is something that should be much more effective and much more cost-effective in the future.

I think the key issue as well is that, as previous answers have indicated, this is the moment, this is the window of opportunity. This is when there is a confluence of agreement to create this type of structure.

We don't want to only create justice for the Rwandas and the Yugoslavias of the world. That's why Canada is very strongly in support of an independent prosecutor. If it were only states pushing for prosecutions, then we would not have everything we needed. An independent prosecutor would allow for— just as Louise Arbour is capable of doing in some respects within her latitude, she even mentioned bringing in Kosovo recently in her tribunal, to move forward on issues that states may not want to do for embarrassing diplomatic reasons.

So the time is right for an international criminal court. The 180 states of the UN have agreed to move in that direction. Canada has the fortune to be in a position where we can strongly influence this. We would be denying history and denying the cause of those victims if we weren't to do it now. Thank you.

The Chairman: Thank you. Mr. Turp.

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Chairman, I too would like to welcome the members of this excellent delegation and thank you for your clarifications and for presenting each of your group's positions. I would particularly like to underscore the presence of Mr. Kessel and Mr. Robinson, whom the committee members had the opportunity to meet in New York and who, at that time, made some presentations that shed some light for some of us on the position taken by Canada in these negotiations.

Like Mr. Watt, I think that in many respects, we can compliment you and tell you how much your contribution to the preparatory work for these conferences is appreciated. It will undoubtedly prove to be a very important contribution to the success of this project.

• 1050

It seems to me that the most difficult issue is the one that has not yet been resolved. You lent me your draft treaty. Clause 10 deals with the Security Council and its role. I would like to know what stand Canada or Canadian negotiators have taken on this matter and what the bottom line is with respect to the role of the Security Council in its relationship with the tribunal, the prosecutor or the independence of the tribunal. This question seems even more important since William Schabas highlighted the fact that giving the Security Council jurisdiction in this area could result in work for the court, because if it does not have some jurisdiction, it could take quite some time before this court has any cases to deal with. We are just a few days from the start of the conference, so I would like to know what position you plan to defend and what you are not in a position to discuss.

My second question is for Mr. Schabas. I have the same concern as my colleague from the Reform Party, that this issue deserved to be fully debated beforehand, in a parliamentary environment, whether it be here, in committee, or in the House of Commons, at the risk of disappointing Mr. Allmand since the work of the House will most likely draw to a close on Friday of this week. It is highly unlikely that our whips will accept to fully debate this matter in the House. We have noted again this year that the government has continued to use its prerogative to avoid debating foreign policy matters in the House, or even here, as much as possible, or to debate them at the last minute. We are a few days away from the conference, and this has only now been brought to the attention of Parliament.

I have a very precise question for William Schabas. What legislative amendments will have to be made in light of the draft text that we have and the text of the treaty that may well flow from this diplomatic conference?

Those are my two questions, Mr. Chairman.

The Chairman: Thank you. Mr. Kessel.

[English]

A voice: Any time you want to know what's happening here—

The Chairman: I'm sorry. Members of the panel are not aware that the members of the committee are now sharing information about when the House may potentially recess.

[Translation]

Mr. Daniel Turp: Don't you talk to your whips?

[English]

The Chairman: Our whips are less communicative than yours.

Mr. Kessel.

Mr. Alan Kessel: Thank you, Mr. Chairman. I can't really comment on your agenda for the House rising.

Certainly, on the issue of the Security Council, this is a particularly interesting question and we were very grateful that we were able to meet with your committee in New York when one of the issues was the Security Council's role.

I'm going to ask my colleague Darryl Robinson to bring us through a bit of the history of this issue, where it came from, some of the acrimonious debates and just what the lay of the land is as we go into Rome.

Mr. Darryl Robinson (United Nations, Human Rights and Humanitarian Law Section, Department of Foreign Affairs and International Trade): Our view is that the court should have a constructive relationship with the Security Council that doesn't limit the independence or impartiality of the Security Council.

As you mentioned, like-minded states do support a role for the Security Council in referring cases to the court. As you indicated, it gives more business to the court and, more importantly, it accesses the enforcement powers of the Security Council and would make the court a lot more effective in those cases. In terms of the Security Council, then, the like-minded group almost all support that.

The harder issue is the ability of the Security Council to interfere with prosecutions. In the draft text created by the International Law Commission, it provided that the court wouldn't deal with any matter “being dealt with”—that was the phrase—by the Security Council, and we're very much opposed to that. The problem is, the way we read it is that anything on the Security Council agenda would be off limits to the international criminal court and the matters the international criminal court would be dealing with are the very matters that one might expect on the agenda. Moreover, it would let a member of the Security Council thwart the court's activities quite easily just by putting it on the agenda and then vetoing efforts to get rid of it.

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So the like-minded group has been looking to find some solution to that problem. You have on one side the P-5, although now the United Kingdom has joined our like-minded group. So you have four permanent members of the Security Council—the U.S., France, Russia, and China—who still insist on this strong role for the Security Council in the matter.

On the other side of the room you have lots of developing countries who oppose any role at all for the Security Council. Then you have the like-minded trying to find a fix that will get us agreement but also ensure that you still have a court that can do its job.

Singapore put forward a proposal that was very interesting. The way the Singapore proposal works is the ICC can continue, it can do whatever it wants, unless the Security Council makes a formal direction to the court advising that it's already taking action under chapter 7, that the Security Council is actively dealing with the matter and it wants it to stop.

What is significant about that is it would mean you'd need a majority of the Security Council— to give the formal direction, you need a majority decision with no vetoes. So now the veto concern you had before, where any member of the P-5 could prevent prosecutions against itself or its friends, no longer exists. Now you need a majority of the Security Council with no vetoes. If one of the members exercises a veto, the result is they veto the Security Council's attempt to stop it; ergo, the court continues on its way.

Canada put a little nuance on that to shift it to an even more like-minded position, which would give the court even more strength. Under the Canadian modification, one, the Security Council has to give this formal direction, which we think it's rather unlikely to do. Second, the Security Council can only do so where it's taking action under chapter 7. So it can't just be sitting idly by; it has to be involved in the area, perhaps in a peace negotiation or something. Third, the Canadian spin on this is it would have a time limit. The direction of the Security Council would expire after one year. If the Security Council wanted to do it, it would have to then again go through this public and difficult decision to thwart it.

So we think the provision as it stands is quite unlikely to be used. It looks like it could be a fix. There's a lot of support for it, but you still have people on either extreme in the P-4, in the developing countries, who haven't supported it, but the like-minded are generally merging around this as a solution to the problem of the Security Council.

It's a dangerous one. The Security Council issue is one of the issues that could be a stumbling block for the negotiations and could bring this project down. We're very much optimistic that this Singapore compromise with the Canadian modification could be the solution that solves that.

The Chairman: I have a question about that specific issue before we go to Mr. Schabas. Does the Singapore solution deal with the problem of— We've spoken of deterrence here, but we've also heard about the problem that the existence of the court may make it difficult to resolve a dispute because the people who look like they're going to lose are going to say, “We're all going to end up being hanged by those guys over there, so why would we ever give up and put down arms?” We definitely heard that in Bosnia.

Several British authorities came before the committee and said, look, this idea of pushing people for a criminal court before you've solved the dispute is very dangerous. What incentive is there for me to surrender if I know the Nuremburg trial is waiting there to hang me? This is a question I'm just asking you.

A voice: No hanging.

The Chairman: Okay, no hanging. A future in jail doesn't make it any more attractive.

My question is this. Does the Singapore solution to some extent address that because it allows the Security Council to say, wait a minute, this thing has to hold in abeyance any prosecutions until such time as we've got a resolution of the dispute under article 7? Is that one of the motivations behind the Singapore solution?

Mr. Alan Kessel: Yes, you're quite right. Peace versus justice is a difficult issue, and there are many, many articles on that subject. But this does leave it open for the Security Council. If a majority of them were all to agree that this is such a situation where it would be wise to set things aside for a year, then yes, the Singapore solution provides for that.

• 1100

The Chairman: Thanks. I wondered about that.

Mr. Schabas.

Mr. William Schabas: Thank you. On that point as well, this issue of trading peace for justice is a very difficult one and a lot of people take very absolute positions on it. Probably the reality is that we have to be more nuanced in how we approach the issue.

We have examples—Haiti is a good one; South Africa is another—where in order to bring about peace there had to be some sort of compromise on the justice front. People had to accept that maybe pure justice had to be in some way tempered in order to reach a peaceful solution. I think that's part of the idea behind the Security Council.

[Translation]

The other aspect of the Security Council's role is that you have five permanent members of the Security Council who do not want to give up powers or jurisdiction. They value their role and their importance in the operation of the United Nations. I think that there are a number of participants from the debate at the preparatory commission who will also be present at the diplomatic conference and who want to correct the flaws in the United Nations structure when adopting the statute for the permanent criminal court. No one likes the way the Security Council is currently structured, except the five permanent members. They want to do indirectly what they cannot do directly, i.e. reform to some extent the role and the importance of the Security Council in the structure of contemporary international policy.

To my mind, the role of the Security Council is unavoidable. I cannot see how the court would function without there being a role for the Security Council. I agree entirely with Darryl Robinson's approach that the Security Council must not be allowed to impose a veto for a non-specified period of time, especially not a veto that can be exercised by only one of the permanent members. The beauty of the Singapore project is that in reality, the veto is the other way around, which prevents a State from blocking the court's operations. A majority vote by the Security Council is required to stop the operations of the court, which is much more advantageous and much more acceptable with respect to the role of the Security Council.

Having said that—that is more or less the point that I wanted to make in my presentation, and I also point that out for Mr. Mills who asked us some questions on the effectiveness of international justice—we currently have two excellent examples of how international justice works. The court for the former Yugoslavia and the court for Rwanda work quite well. They have now remanded the main accused offenders, with some exceptions. More and more of the major accused offenders are being brought before the court for the former Yugoslavia and Rwanda. These courts are making an extremely important contribution to international justice.

Bear in mind—and this is perhaps the bottom line that Daniel Turp referred to—that in the short term and even in the medium term, these courts may not be able to do much more than the ad hoc courts. What is good about the ad hoc courts is that they do not require the consent of the state before punishing or assuming responsibility for criminal justice in a given case, which is extremely advantageous because in the short term, countries like Canada, Iceland and the Netherlands will accept their jurisdiction.

Mr. Turp asked me another question.

The Chairman: I apologize for interrupting you, but according to our rules, we try to keep our comments to 10 minutes, and that last comment lasted for 15 minutes. I have three other speakers on my list and I would like to give them the floor. We can perhaps come back to Mr. Turp's last question later.

[English]

Mr. Assadourian—or I think I should call you “Mr. Augustine” today to make up for my Freudian slip of the other day.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): You'll have to do more penance than that, Mr. Chairman.

The Chairman: I'm working on it. This is my first step.

Mr. Assadourian.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): Thank you very much.

Mr. Allmand, you mentioned earlier that this court will act in situations only when declared war takes place.

Mr. Warren Allmand: No, the opposite. I said there are some who would like to restrict the definition of crimes to only war situations.

• 1105

We're opposed to that, especially crimes against humanity, because as you well know, many of those crimes are committed within states in situations of repression, military dictatorships and so on. Therefore, if you only permitted the application of these crimes in a war situation, even civil war, a lot of horrible crimes would not be prosecutable.

Mr. Sarkis Assadourian: Thank you for the clarification.

Who can bring charges to this court? Is it the victim, the countries, or international organizations such as the UN?

The other day we had testimony from some witnesses about the situation in Sudan. I think Winston Churchill said history is written by the winners. If the Sudan dictator survives, who will bring this person to court?

Yesterday there was S.O. 31 in the House of Commons about massacres or genocide that took place against Ukrainians in the U.S.S.R. during the communist era. When we were at Nuremberg, there was only a trial for the Nazis, there was no trial for the communists who committed just as bad crimes, as far as I'm concerned, against the Ukrainians.

Mr. Ted McWhinney: Or even the western allies.

Mr. Sarkis Assadourian: But Nuremberg was only for the Nazis, not for the communists. Will this court, which will hopefully take place soon, deal with the statement made, as I said, by Churchill? Will history be written not by the winners but by the people or the victims?

Mr. Warren Allmand: Absolutely. That's the purpose of the court. I think Mr. Schabas gave an answer when we were answering Mr. Mills. It's essential if you're not going to have ad hoc justice here and there, or politically motivated justice. In other words, we will have such a court with Rwanda and Yugoslavia, but we maybe won't have it with Algeria, Nigeria or Afghanistan.

Mr. Sarkis Assadourian: What's the guarantee?

Mr. Warren Allmand: The court would apply universally to all states that ratify it. Unfortunately, if you don't ratify it, it doesn't apply. Hopefully, as with most treaties, as you ratify—

I want to get to your first question. Mr. Kessel mentioned in his opening remarks that right now those who can be prosecuted would have to be prosecuted, the way the statute stands, on a reference from either the Security Council or other states. But we're pushing very hard for an amendment on the table that is bracketed, whereby the prosecutor would also have the right to take up any situation they feel falls within the jurisdiction of the court—either genocide, crimes against humanity or a war crime.

It's obvious that victims groups, human rights organizations or parliamentarians could make submissions to the prosecutor saying “Look, here's a horrible situation in Armenia,” or wherever it may be, “You should look at that and take it up”. If that change is accepted, the prosecutor would have the independence to do that.

The other alternatives are that only states—it could be states that are sympathetic—or the Security Council could refer it. We don't think that's enough. We think prosecution should come from those three sources: the independence of the prosecutor, the states, and the Security Council.

Mr. Sarkis Assadourian: Coming to a point you made earlier, it has to be ratified in order to be effective. But take the UN charter on genocide or any charter of rights. Every country in the world ratifies it, but most countries violate it too. What do we do about those?

Mr. Warren Allmand: As with all treaties, we hope within time they become more and more isolated. Let's take the landmines treaty. We hope countries that did not sign on or aren't signing on will feel more and more isolated politically and look out of touch with the way things are moving in the world. We just have to continue the political pressure to have countries ratify the treaties they haven't ratified, and show them to be hypocrites when they don't honour the treaties they've ratified.

The Chairman: Mr. Piragoff, I think you had a technical answer to the prosecution issue that was raised by Mr. Assadourian.

• 1110

Mr. Don Piragoff (General Counsel, Department of Justice): Thank you.

I'd like to follow up on what Mr. Allmand said. This is a contentious issue before the diplomatic conference, the question of the right to initiate a prosecution, the right to initiate a complaint. There are basically four options before the diplomatic conference right now, three that have been on the table for some time and one that has just come on the table as a compromise.

Some of the options have already been alluded to. One is that matters can be referred to the court by the Security Council. That, of course, interjects, as Mr. Robinson said, some element of politics into the process.

I think that was the concern raised by Mr. Assadourian, Mr. Chair.

The second option—and these are not mutually exclusive, by the way—is that any state party to the statute can complain. It does not have to be a victim state. As long as it is a state party, it can make a complaint to the court. So a third-party state that does not like what is happening in another state can make a complaint.

The third option—and this is what Mr. Allmand has alluded to and has stressed strongly, and many NGOs have stressed strongly—is that the prosecutor himself or herself should have the power to ex officio initiate a complaint and an investigation. That third option is quite contentious amongst a number of countries, particularly members of the P-5, as well as other countries who are afraid of the prosecutor initiating his or her own complaint based on information received possibly from NGOs, possibly from the newspaper, possibly from whatever source.

A fourth option, put on the table only in the last few months, an attempted compromise position, is to permit the prosecutor to initiate an investigation ex officio, but the prosecutor would take that case before a chamber of the court first and have the court determine that in fact there is a legitimate basis behind the complaint. That would give some assurance to states concerned about a too-independent prosecutor that the prosecutor would at least be judged or controlled or supervised to some extent by a chamber of the court.

There is no consensus on the compromise position, even amongst the like-minded states. There are those who are willing to move to the compromise. There are other members of the like-minded states who are very concerned about ensuring that there is an effective and independent prosecutor.

Canada's position historically has been that the court must be effective, that the prosecutor must be effective.

Mr. Ted McWhinney: Has nobody raised the General Assembly as a fifth alternative? The General Assembly has no veto and it's used for avis consultatif, equally with the Security Council, for other areas.

Mr. Don Piragoff: The issue of permitting the General Assembly to make a complaint has also been raised, but if a state party can do it on its own, then it's a lot quicker process than trying to get a resolution through the General Assembly.

The Chairman: Thank you.

Ms. Augustine.

Ms. Jean Augustine: Thank you, Mr. Chairman.

When I initially signalled, I wanted to ask about the UN Security Council and the permanent five siding with Canada, but I think we answered that in some way.

When I read the documentation sent out to us, I was looking for the countries that Canada is looking to for the ratification, and I saw no listing of countries. I'd like to ask, then, what are the countries, and how many will determine the numbers we are looking at for ratification? How do we arrive at the decision? Is there a general rule for the kind of decision around ratification, the numbers required? How is this process going to work?

Mr. Alan Kessel: I think you've put your finger on a very contentious issue. If you think there are good guys and bad guys in this discussion, or the nasties and the good guys, clearly those who are nasty or who don't want to see a court would want to have the highest number of ratifications before this process was concluded or ratified. Others would want to have the lowest possible effective number of ratifications. That is an issue that's not been resolved yet. Clearly it's going to be part of the debate on the final clauses of this treaty.

• 1115

The practice in international treaties is mixed and varied. It depends on what the parties to that negotiation want to put in. Clearly Canada would prefer to have the lowest effective number of ratifications—somewhere in the neighbourhood of 25—to get this thing off the ground. Others have mentioned numbers going as high as 90. Clearly that isn't something we would be supportive of. We will argue for the lowest effective number of ratifications to bring this thing into force.

Thank you.

[Translation]

The Chairman: Ms. Debien.

Ms. Maud Debien (Laval-East, BQ): Good morning, gentlemen. Welcome to our committee.

We know that most of the large industrialized countries have taken a stand on the Rome text and that France and the United States have major reservations. However, few countries in Latin America, Asia and Africa have spoken out. At any rate, in reading all of the documents and information that I could find, it seems that those countries have not been very involved in the debate. In your opinion, why have these countries not taken a stand?

My second question deals more specifically with Latin America. We know that in Latin America, the Inter-American Convention on Human Rights makes it possible for states to be summoned before the courts. In that context, we are aware that it is very difficult to reconcile the Amnesty legislation for facilitating the re- establishment of social peace in those countries and criminal proceedings. I wonder how the international criminal court will reconcile that domestic amnesty legislation and its own jurisdiction as an international criminal court.

[English]

Mr. David Matas: Perhaps I can take a stab at that.

First of all, the way the statute works now, the court only deals with future issues. It doesn't deal with past issues, so we don't get into those.

Secondly, what we're talking about are core crimes—crimes against humanity, war crimes, or violations of the Geneva conventions—and a lot of these amnesties don't deal with those particularly, or they exclude those particular offences.

The amnesties cover a wide range of things. Not even murder, necessarily, which is obviously a very serious crime, is covered within these core crimes. So it is possible to have these hypothetical amnesties work in the future and the jurisdiction of the court preserved all the same; the amnesties would just exclude the core crimes that are covered.

[Translation]

Ms. Maud Debien: —

[Editor's Note: Inaudible]—

[English]

Mr. David Matas: Yes.

[Translation]

Ms. Maud Debien: Did I understand correctly that there are laws of amnesty for a criminal court like that?

[English]

Mr. David Matas: No, there's no law of amnesty in a criminal court. All I'm saying is the court itself has a very limited jurisdiction. It only deals with very few crimes, whereas these amnesties cover many things. They include much more serious crimes.

Haiti and South Africa were mentioned earlier. The South Africans do not take the position that in their amnesties they are forgiving crimes against humanity, war crimes, violations of the laws of war, the Geneva conventions on genocide, and so on.

The reality is that at international law, some offences are so basic that they violate universal standards, and they cannot be amnestied and should not be amnestied. Any amnesty that is granted to these basic crimes has no validity at international law. So they should simply not be factored into the jurisdiction of the court.

• 1120

The Vice-Chair (Ms. Colleen Beaumier): Mr. Kessel.

[Translation]

Mr. Alan Kessel: I will simply respond to the first question on the contribution of groups from the third world. Several third world groups have in fact been involved, for example as part of the group of Like-Minded States, over which Canada presided. There is a series of United Nations member groups that adopted a position, including South Africa, Senegal, Singapore and some Latin American countries like Argentina, which was a major player in this debate. As a member of the Francophonie, Canada exercises considerable influence. The group of Like-Minded States includes all European countries, with the exception of France which is still trying to determine its position. It is isolated and is seeking to align itself with the Francophonie. We are part of the Francophonie, but our interest is finding a position common to all groups, and not simply with the Francophonie. The Francophonie has already discussed the big battle between the civil and common law legal systems.

Our position as well as that of our ally Cameroon, is that here, in Canada, we live in a country with a hybrid system where both systems are present. Like the other countries, we want to develop a hybrid international system, by incorporating the best aspects from each system. Several francophone countries agree with Canada. We plan to continue defending this position at the Rome conference and to align ourselves with other countries, particularly with members of the Francophonie, countries in Africa, Asia and Latin American, so that we can convince the other groups that the group of Like-Minded States has the best approach for succeeding. Thank you.

[English]

The Chairman: I'm sure, Mr. Kessel, you are well aware that UNCITRAL has had considerable success in bridging the gap between civil law and common law systems. I was once a representative at the discussion for the model law on international commercial arbitration, which is not unlike the issues we're discussing here, except in a commercial field. There were many discussions there. We were often fighting with the French and the Russians, and the common law and the civil law were a constant subject of debate, but we managed to come up with a model law that is acceptable and that Mr. Turp and I taught in our courses quite happily, without sacrificing our integrity as either civil law or common law lawyers. I think we managed.

Mr. Alan Kessel: If I may simply add two cents' worth, Mr. Chairman, you've hit the nail on the head. This is not a real argument; this is a bogus argument. There should be no argument between civil law and common law. We are looking for the most effective instrument that provides the protections we're looking for. Might I say that those countries that are hiding behind this argument have run out of other arguments as to why the court shouldn't function, and it is our job to basically pull those rocks away and allow the sun to shine in.

Thank you.

The Chairman: Mr. Allmand and then Ms. Oosterveld.

Mr. Warren Allmand: When we were at the prep com in New York, we found that other civil law countries, such as Belgium, Switzerland, Italy, and so on, took the position that there was no threat to their civil law systems and that the court was really developing a hybrid between civil law and common law systems and other systems. As Mr. Kessel just said, this argument was being used by Security Council members really to protect other interests.

The Chairman: Ms. Oosterveld.

Ms. Valerie Oosterveld: I'd just add to the question about regional representation and to what Mr. Kessel already said.

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There have been regional meetings and regional declarations, specifically in Latin America and in Africa. In fact, it was pretty much Asia that was the quietest before the last prep com, and we've seen a significant improvement in the number of countries that are involved. There's also a UN fund, to which Canada contributes, to bring countries who couldn't otherwise afford it. That was the problem before in getting involved in the negotiations, to bring countries to the table.

The Chairman: Mr. Préfontaine, and then we'll move—

[Translation]

Mr. Dan Préfontaine: I would like to respond to your question on amnesty and first of all go back to the issue of sentencing. When a court finds a person guilty and sentences him, it must also designate a State that will take responsibility for imposing and administering the punishment or sentence. When it comes time to determine if there is amnesty, it will not necessarily be called amnesty, but perhaps conditional discharge. Section 100 of the Act recommends that if the legislation in the State that is being asked to administer the sentence allows for a conditional discharge or a pardon, that legislation should be applied. But there are also options related to that. So perhaps there will not be amnesty as such, but if, as we know, the Queen's counsel grants a pardon, it will be a type of amnesty.

The Chairman: Thank you.

[English]

I don't have any other questioners on my list. I'd like us to—

[Translation]

Mr. Daniel Turp: Could I get an answer to my question on Canadian legislation? What pieces of legislation need to amended? Mr. Schabas is very critical of the fact that Parliament has been so slow to amend legislation recently. What should be done and in what time frame?

Mr. William Schabas: The Extradition Act is currently being amended and that will solve a lot of problems. That act, which was introduced at a very late stage in comparison to legislation in many other states, will facilitate co-operation with international justice in terms of extradition and investigations.

Dan Préfontaine referred to sanctions or detention. These responsibilities will be delegated to the states that accept this delegation. Canada could, of course, offer to share its services with other states. That will obviously require specific legislation.

The point that I wanted to highlight is in my presentation: for the court to work, states must also take action against their war criminals domestically. It is in that respect that we have the most serious problem at present. Because of the existing Criminal Code and since the Supreme Court decision in the Finta case, we are unable to take legal action against war criminals who are in Canada. That has nothing to do with the operation of the permanent criminal court, except that if we fail to act and if other countries fail to act, there will be too many cases before the permanent criminal court. For this permanent criminal court to work, states must take on their own responsibilities. That is where the real problem lies.

Mr. Daniel Turp: Are the current amendments to the Extradition Act enough to eventually take into account the new obligations that Canada will have once the treaty is ratified? Will we have to consider other legislative amendments?

Mr. William Schabas: I am under the impression, Mr. Chairman, that these amendments were drafted taking into account the potential existence of this court. They focus particularly on the two ad hoc tribunals, but it is clear that they also foresee co- operating with a permanent criminal court. If I remember well, there are perhaps some amendments, but they are not problems in principle. There are perhaps some details, but the principle will be in place, I believe, if the amendments are adopted.

Mr. Daniel Turp: Is that accurate, Mr. Kessel and Mr. Piragoff?

Mr. Alan Kessel: My colleague from the Department of Justice will answer your question because his department is responsible for that side of things.

Mr. Don Piragoff: Thank you.

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Bill C-40

[English]

was introduced early in May and it proposes a complete revamping of Canada's extradition law. That bill would provide a new extradition scheme for Canada that would apply not only to the existing ad hoc tribunals but also to a future ICC when it is established.

As Mr. Schabas said, that bill is important not only for the purposes of the court but also for the purposes of ensuring our better extradition relations with many other countries. We are having troubles between common law and civil law countries right now because of our antiquated legislation.

There are also other pieces of legislation that would be required in order to give effect to the ICC. Mr. Schabas and Mr. Préfontaine mentioned the question of sentencing. If Canada were to be requested to incarcerate prisoners of the ICC, we would have to amend our legislation. The government has not introduced legislation with respect to that issue because at this point in time it would be premature until we know exactly what the statute says and exactly what would be the obligations upon Canada coming from the convention. Once we know what those obligations are, then the government can move ahead with legislation to implement those obligations.

The third issue Mr. Schabas raised was the question of the Supreme Court case in the Finta decision that made it very difficult for us to prosecute under the existing Criminal Code regime. The government has been examining proposals to amend the Criminal Code to address the Finta problem.

The government is awaiting the conclusion of the ICC negotiations, because the Criminal Code amendments also contain definitions of war crimes and crimes against humanity and it might be prudent to see what the international community states with respect to any changes to those definitions before Canada makes new amendments. It might have to also change its own definitions of war crime or crime against humanity.

[Translation]

Mr. Daniel Turp: Mr. Chairman, allow me to make a suggestion to members of the committee. Since the committee has been aware of this matter and is interested in it, we could perhaps consider Bill C-40 in co-operation with the Standing Committee on Justice. In the past, Ms. Shaughnessy Cohen has demonstrated an interest in our studying this matter together. Among other things, we would also be responding to Mr. Allmand's request, who wants Parliament to be more involved in these matters than it has been in the past.

The Chairman: The Justice Committee is currently considering Bill C-40. It is already that committee's responsibility, but we are also interested in this issue and especially in the issue of complementarity between this notion of extradition and a potential implementation of our obligations to any permanent court set up as a result of the diplomatic conference in Rome.

Mr. Daniel Turp: Will you talk to Ms. Shaughnessy Cohen?

The Chairman: Yes, I invited Shaughnessy Cohen to attend this morning. Members of the committee have expressed some interest in continuing our debate in closer co-operation because members of the other committee are interested in the same issues. I think that when the time comes, if we decide to examine this notion of possible legislation, it would perhaps be appropriate to strike a joint committee including the Justice Committee and our committee to examine that. I fully agree.

Ms. Raymond Folco (Laval West, Lib.): Mr. Chairman, I would like to comment on this topic, if I may, and add that the immigration committee has also taken a very quick look, I must admit, at excluding war criminals. That is closely linked to the issue of exclusion with respect to people applying for refugee status from the Canadian government. If such a discussion were to take place with the members of this committee and other committees, I would recommend, Mr. Chairman, raising this with the chairman of the Immigration Committee, because that committee is very interested in this matter.

The Chairman: Mr. Préfontaine.

[English]

Mr. Dan Préfontaine: I just want to add that there is another area that is very important in terms of traditional assistance, or what we call mutual assistance, in criminal matters. Article 90 of the draft statute asks countries, states— I was going to speak to that, to states and cooperation, but I didn't have enough time.

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It's going to be very important that we take a look at all the areas that Canada— For example, once Canada ratifies, will it be able to respond to all the requests that will come from the court for taking of evidence, for identifying the whereabouts of people, for the protection of witnesses, for the conduct of proceedings and for facilitating the appearance of persons before the court?

There's a long list of things. I think our statute, the Mutual Legal Assistance in Criminal Matters Act, should probably cover it. There's another statute called the Proceeds of Crime Act, which I mention in my comments, that we have to look at as well—part XII.2—to see if the international criminal court goes that route and allows forfeiture of assets from the proceeds of crime. We have to look at it to see whether we will be able to respond, because we now have to make agreements with other countries in order to share in the assets and distribute assets and so on.

The Chairman: Mr. McWhinney.

Mr. Ted McWhinney: I have a question. I think probably it should be directed to the government people, by reason of their responsibilities. I might ask Warren to take it on.

In the landmines treaty, we recognized that we wouldn't have the enthusiastic support of the five permanent members of the Security Council, so the strategy was oriented to getting the treaty adopted by a large number of countries quickly and then perhaps encouraging the permanent members of the Security Council afterwards to adopt parts of the treaty as unilateral acts or otherwise.

In this particular situation, you face much the same dilemma, and it focuses on the prosecutorial role, which is admittedly rather strange to the American experience and to the British experience, less so to the French and perhaps other civil or interim systems.

In terms of facing the realities, you want a treaty adopted and you want one signed by as many countries as possible, ideally by the permanent members of the Security Council, and you also want a low number of ratifications as the ceiling for coming into legal effect, but you recognize it may end up like the Law of the Sea—60—which is quite a hurdle.

What would you think, Mr. Allmand, in terms of the flexibility of negotiations at the Rome talks? Are there areas where we can give without compromising the basic design and intent? You've been one of the foremost advocates of a general international criminal court. You obviously want the court of general jurisdiction, and you've made, I think very compellingly, the argument that it should apply not merely to war crimes in the stricter sense but to civilian crimes in civilian conditions.

Are there areas on this issue of the right to initiate a prosecution where there could be some give without compromising the basic integrity of the treaty?

Mr. Warren Allmand: I think they should go ahead without the unanimity of the permanent five. Let's look at Europe. In Europe, in the European Union, all countries appear to be onside, and I think Mr. Kessel will confirm this: you have Germany, Italy, Spain, the Nordic countries and the Benelux countries. In Latin America you have Argentina, and you have some major leaders in Africa, like Senegal and South Africa.

So in my view, and in the view of the NGOs—I think we're pretty strong on that—we should go ahead. On all continents you have leadership supporting the court, and what this will do is isolate what appears to be obvious: Security Council countries using all sorts of arguments when it comes down to the fact that it's really to protect their privileged position on the Security Council and to be able to veto things.

I fully support the position of Mr. Robinson, who I think answered with respect to ratification. I think if it's too high, you can't start this thing going. Getting it off the ground and running will soon lead to— As somebody mentioned in regard to what's going on now with respect to Rwanda and Yugoslavia, the experience has shown that with time the courts are becoming more effective.

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I think that if this can get going and if it's an effective court, it'll be shown to be fair, credible and deserving of support. But if we don't get it going, we may not have that opportunity.

I would like to hear, though, what my colleagues—

Mr. Ted McWhinney: You know that this is a top priority. It's a shortlist project for the present Minister of Foreign Affairs. It's among the half-dozen issues we're really pressing.

So you would be comfortable with something that ended up like the landmines scenario, 120—

Mr. Warren Allmand: —

[Editor's Note: Inaudible]—that position. Our position is “Go ahead!”

And then we're afraid of the consensus rule, and Fergus Watt mentioned that, that through consensus it may be watered down to the lowest common denominator. We think that would be a serious mistake. Just to get people to sign on— We would like to see an effective court and we don't think we should compromise to the lowest common denominator. And if it means that the United States and France don't sign on, they will be isolated in due course. The other major countries in the world will show the U.S. and France that the right way has been taken by those who have signed on.

The Chairman: I think I'd like to get the government position—or the negotiator's position, if there is one.

Mr. Ted McWhinney: Maybe since it's a delicate issue—

The Chairman: You don't have to answer if you feel it's not appropriate at this time.

Mr. Kessel.

Mr. Alan Kessel: Thank you, Mr. Chairman. I can determine the delicacy of the issue.

Some hon. members: Oh, oh!

[Translation]

Mr. Daniel Turp: It is not the government without a representative—

Mr. Ted McWhinney: Mr. Allmand is wearing two hats.

Mr. Allan Kessel: It is a very political issue and—

[Editor's Note: Inaudible]— The Canadian government

[English]

has a very strong position. Clearly you've heard our position today. I don't think we're backing away from any positions. Clearly, when going into a diplomatic conference, we're in the business of building bridges, not burning them, but we do want an effective and independent court.

And we are very optimistic that the elements we find in the current text can provide the basis of an independent and effective court. Clearly we're optimistic. And I hope we're not the only people in this room who are optimistic. I would hope that the NGOs who have worked so hard and long on this process are as optimistic as we are that we can put this together.

No one's kidding themselves here: this is going to take a lot of hard work and a lot of knocking of heads together.

Here's one example. An objective of ours was to break the solidarity of the P-5. We did that at the last prep com. We now have the U.K. inside the tent, not outside. This puts in question the capacity of the other P-4 to really function solidly.

Also, with the U.K. as the head of the European Union this time around, we have the presidency of the European Union, plus one of the P-5, inside our tent looking at the French outside the tent. It's not an enviable position for the French. Clearly they're looking for their position.

So we don't have the same kind of difficulty that I think you might have found in other situations. We're optimistic that we can continue to erode the solidarity of those who don't like this particular issue, and we're very convinced that at the end of the day if there's even a third of those who don't care for this court, they will be quiet in the face of the two-thirds who do.

That's our position. Thank you.

Mr. Daniel Turp: Was that the bottom line of the Security Council—

The Chairman: Wait a minute. Let's get some order here.

Mr. Daniel Turp: Sorry, Mr. Chairman.

The Chairman: Mr. Watt.

Mr. Fergus Watt: How do we get out of Rome?

The first question that has to be answered is this one: what are the rules? The fact of the matter is that we don't know what the rules are for decision-making in Rome. They haven't been set. They should have been set at the last prep com, but they weren't. There's still debate as to whether decisions on substantive questions will be made by a two-thirds majority of states registered for the Rome conference or by a two-thirds majority of states present and voting. There's an enormous difference there.

Secondly, if you did a rough headcount of who are the like-minded and how many states are they, sort of formally at meetings there are 40 to 50 and maybe there are a couple of dozen other fellow travellers. There aren't the votes there to get agreement through a vote on some significant questions. Furthermore, many of the powerful states are aligned in opposition, as we of course know. So there's a great danger that there will not be a consensus emerging in Rome.

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Why are we involved in this process where you have 180 states in a UN negotiation on a treaty when so many of the states clearly don't want this treaty and others only want it if it's something that suits their national interests or it's something they can control by virtue of their position on the Security Council.

When my three-year-old son wants to play games with his friends, he invites his friends, not the bully down the street.

So we're in a process where this thing suffers potentially the death of a thousand cuts through some consensus process and you're left with something that's watered down and not worth having. The landmines scenario was an agreement by those who were willing to go outside of that, and that option should be revisited and should be kept in mind in this process.

The Chairman: Thank you.

I have a couple of questions. Then I will draw this to a close.

On the issue of complementarity, which Mr. Schabas and various others addressed—and actually, curiously enough, my problem came up in connection with the Finta case, which you mentioned—there's an assumption, as I understand from what you've told us, that this will be a complementary system and that therefore it'll be like some of the terrorism conventions where prosecute or extradite will be the basic rule. If that's true, my first question is what's the mechanism to deal with states that have the power to prosecute but don't do it very well? Will the prosecutor—and I believe this was addressed by Mr. Allmand—have enough jurisdiction that the obligation to prosecute or extradite will at least be a true prosecution? And on that level, will Canada find itself in trouble as to whether or not it has a credible legal system to prosecute if in fact Mr. Schabas' point about the Finta case is true? It makes me worry about our own system.

So that would be the first question. The second question would be directly to Mr. Watt. I think Mr. Watt mentioned Canadian public opinion.

What can Canadian parliamentarians do on this issue? You seem to suggest that public opinion is strongly in favour of this measure. I suspect if we ever did a poll on it we'd find that nobody even knows about it, but I might be a little cynical about it. But my experience around here is that what we get deeply interested in and believe is a matter of high public interest because we're interested in it doesn't necessarily fit the public perception. I'm interested in where you think we're going.

I'm glad to see you've got something from the Canadian Bar Association, by the way. At least you'll get the bar moving, the professionals are on side.

And then the third question would be of Madam Harvey. I think your idea of general principles of justice drawn from principal religious systems within the world is a very interesting one, and I'd be interested to know if you see some movement in getting that direction?

So maybe I could just take those three questions in that order.

On the complementarity issue, Mr. Robinson.

Mr. Darryl Robinson: Sure. With the complementarity—

The Chairman: Excuse me. Another example came up. Madame Folco, or somebody else, mentioned Algeria. There's a good example of internal conflict. Algeria, whenever they've come before this committee, have always made it very clear they're not going to brook any external interference in what they do. Is the assumption just Algeria won't sign this treaty so we're not going to deal with it?

Mr. Darryl Robinson: I can answer that too.

The Chairman: How would you deal with the Algerian situation with the complementarity issue?

Mr. Darryl Robinson: Complementarity, I think, is the linchpin of this statute. It was Canada, actually, that coordinated negotiations on this in August 1997, and we put together almost consensus on a draft article, which I think addresses all the concerns you raised.

First, the important things to us were that it must be the court that would make this decision on whether the state was doing a genuine job of doing the prosecutions—and we have that in the text—and furthermore, that even where there is a prosecution or investigation under way, it is possible for the court to intervene, despite the fact that there's an investigation or prosecution under way, if the court concludes that those proceedings aren't genuine, that the state is either unwilling or unable to genuinely able to carry out those proceedings.

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In the Canadian context, then, the question wouldn't be whether Canadian legislation or whether Canadian ethics are perfect, it's whether they're genuine. The Department of Justice is putting together work responding to the Finta decision so that Canada would be in a position to carry out prosecutions here. That legislation will take into account developments at the international criminal court so that it's complementary to that.

With respect to your question about Algeria, the answer is any state can ratify the ICC statute even if they don't like external interference. The reason is they can be free of ICC interference as long as they do a diligent job at home of prosecuting their war criminals and criminals against humanity. In fact, that might be the greatest benefit of all in having this international criminal court; it will inspire states to clean up their own house, so to speak.

The Chairman: But there will be some sort of residual jurisdiction in the prosecutor to determine whether states are complying. You said as long as they have a serious—

Mr. Darryl Robinson: That's right. If you have a case where, say, state authorities were implicated in it and they're dragging their feet deliberately, then the court can say they're not genuinely willing to carry out this prosecution, and step in.

The Chairman: That would be quite contentious as well, then, because that goes to the core of state sovereignty, as to whether or not they're going to be judged. I can see where Senator Helms would immediately say nobody is going to tell us whether our system is adequate or not under somebody else's rules.

But I can see where you're going with it. I understand that it will be discussed and wrestled with at the conference. Thank you very much, that's helpful.

What can parliamentarians do? Should we be working with like-minded parliamentarians in other jurisdictions and things like that? Can we play a role?

Mr. Fergus Watt: Your question prompted me to recall a memo I sent to a member of this committee last February about an excellent resolution that was passed by European parliamentarians.

The Chairman: Yes, we have that in our briefing materials.

Mr. Fergus Watt: Good. I think that's the kind of thing we would hope you would undertake.

It's understandable that this isn't a household issue in Canada, but it is a critical issue to those who follow world affairs closely. Notwithstanding that we're potentially at a climax negotiation now, I think there will be a continuing role for parliamentarians.

For example, if in the short five weeks ahead of us there's only an agreement on some sort of framework convention, they may leave a lot of legal scrubbing or other matters to follow-up conferences, and that's when some of these issues such as Canadian legislation would be more germane. I would encourage you and your colleagues to maintain a continuing interest in this. I think that the foreign minister has done an excellent job in recent months of highlighting the issue in some of his public speeches. I hope parliamentarians will do the same.

The Chairman: I think it's fair to say all of us have a likelihood of having constituents who are either refugees or immigrants from areas that have been subjected to this type of activity. In that sense, we're sensitized to the need for addressing the issue. I quite agree with you, it has a domestic resonance to it that is important.

Sorry, I have the last question and then we'll go to Mr. Mills.

Ms. Elaine Harvey: Thank you very much, Mr. Graham.

I've been attending NGO functions at the United Nations for quite a few years now. In doing so, I've met with UN officials as well as people involved in non-governmental organizations at the United Nations. What has struck me very forcibly is that there people are very open about discussing their deepest beliefs. When I attended a DPI NGO conference, the chair of the General Assembly, who at that time was a Jain, opened the conference with some statements from his beliefs. I thought to myself, these are mine as well. It seems that the motivation of many of the people connected with the United Nations work stems from their very deepest religious beliefs. We feel—the faith caucus feels—that they have incorporated the general principles of justice that are drawn from a variety of religions of the world.

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In distributing the preamble we prepared, during the sixth preparatory conference session in New York, we found a great deal of interest and support among the delegates and among the various officials in connection with the proceedings for establishing the international criminal court. We're very hopeful that this will be put forward in Rome, or some version of it. We feel it's absolutely essential that we have a basis of fundamental beliefs incorporated in the preamble.

Thank you.

The Chairman: I think you're to be congratulated for your work in that respect. Thank you.

Mr. Mills.

Mr. Bob Mills: Mr. Chairman, I just make the point that we made earlier. I think it's obvious, from what our last two speakers have said, and your question about what parliamentarians can do. Well, obviously, if we'd had a chance to put this before Parliament and talk about it, that would have got it out into the media and into the mainstream, and that would then have had a lot more meaning. To simply send a piece of paper around and have a bunch of parliamentarians sign it, not really knowing the issues or what they're getting into, I think is pretty meaningless.

Again, I guess I chastise the government. If this is on the shortlist of the Minister of Foreign Affairs, as the parliamentary secretary says, then obviously he should have made sure that it got debated and discussed by parliamentarians, put out in the public view, and had comments. If it is that big a priority, obviously treating it on June 9 when the sessions start on June 15 is hardly showing that level of priority.

I think that's a huge problem in this place, which should be addressed, certainly, and taken back to the minister by the parliamentary secretary.

The Chairman: I regret very much that it wasn't the subject matter of an opposition day debate chosen by the Reform Party. It would have been a wonderful— It would have been much more sensible than the one we debated yesterday! But anyway—

Mr. Bob Mills: When we're doing the agenda—

Mr. Ted McWhinney: Might I— The minister respects the role of Parliament, and he had no legislation to bring before Parliament. The moment this treaty is signed by Canada, we bring it back, and Parliament can debate. It is the proper function of this parliamentary committee— or, as you rightly said, the opposition perhaps using its discretion with opposition day to debate hypothetical questions. The minister's responsibility is bringing legislation before the House. Then we will have a debate until 4 a.m., five days in a row, if you're prepared to last it out. I am.

The Chairman: Okay.

Go ahead, Mr. Mills.

Mr. Bob Mills: But the very point is, you give information first to Canadians through parliamentarians, through Parliament, and then you sign something.

An hon. member: You should have learned that from the MAI.

Mr. Bob Mills: You don't go off and negotiate it, sign it, and then bring it back and shove it down people's throats. That's not the way you do this sort of thing.

Mr. Ted McWhinney: Look, this is the great confusion of our treaties, reservation to treaties and the whole process of law-making. The minister's role is correct, but it seemed to me the committee—and you're part of the steering subcommittee of the committee—is perfectly open to decide to debate this. Rather than saying we spent so much time on nuclear disarmament, you may well say, well, this is more of a priority than nuclear disarmament, or that you want half and half, equal time. But it's the committee. You have plenary powers.

The Chairman: Mr. Penson, you wanted to say something.

Mr. Charlie Penson (Peace River, Ref.): It just seems to me, Mr. Chairman, the statement of the parliamentary secretary— This government should have learned something from the MAI process, where there was a loud cry for a good parliamentary debate. There were only three weeks of parliamentary committee hearings, and there was no general discussion across the country. It seems to me we're entering a new phase of the—

Mr. Ted McWhinney: —

[Editor's Note: Inaudible]—

Mr. Charlie Penson: Just a minute, I'm talking. You're going to have an opportunity to—

Mr. Ted McWhinney: No, you're misstating facts.

Mr. Charlie Penson: You're going to have an opportunity.

Mr. Ted McWhinney: No, no, no. Misstatement of facts—

The Chairman: Let him finish, and then you can speak.

Go ahead.

Mr. Charlie Penson: In fact, Mr. Chairman, it seems to me that Canadians want more of a say in how these discussions take place, and want input, rather than having government bring it back, saying, “We signed it. Now you can have a vote on it in the House of Commons.”

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I think we have probably learned something from the MAI that should be used in other processes as well.

The Chairman: Mr. McWhinney.

Mr. Ted McWhinney: I think the opposition have learned something from the MAI. There were, what, 152 depositions to this committee, and 52 witnesses. You were not present, I think, at those meetings.

Mr. Charlie Penson: That's an error.

Mr. Ted McWhinney: Frankly, there has been a large informational exercise. There is still nothing to present to Parliament. As a result of reservations expressed in this committee, the government has made clear to the OECD its concerns in this area, so I think the parliamentary process is fully respected. But the committee has the right to establish its priorities, and you tell us what's less important.

Mr. Charlie Penson: It's a government-dominated committee, so do it.

Mr. Ted McWhinney: It doesn't— Look, I've listened to these. We follow Bob's advice very much. We defer to him.

Mr. Bob Mills: Wow—the power!

Some hon. members: Oh, oh!

Mr. Ted McWhinney: He's very influential. You have to speak up about it, though.

The Chairman: No, no, to be fair— This is now a discussion we're having in the open here, which we could have in the procedures committee, but we have a minute.

Clearly what is developing on the one side— I mean, Mr. Turp moved it earlier, saying we should take a more congressional view of Parliament's role in terms of foreign affairs, and we're sort of in a hybrid position at the moment, where Parliament is being consulted more than it used to be.

It's clear under the Constitution that it's the crown, as represented by the cabinet, that has exclusive control over these matters. They only have to bring things to Parliament, but then there's a practical issue of how we ventilate them and have discussions. I like to feel that the committee is one of the better places to do it.

I have always argued that with you members. When we did the debate on troops in Bosnia, I always felt that we were better informed in having it with our committee and the defence committee than to do it in Parliament, because we had a better debate. I think maybe on a legal issue of this nature, if we'd been able to be joined by our colleagues from Justice, we might have had— For that reason, I'd argue strongly for the committee role in this type of procedure.

We're all struggling, I think on both sides of the House, to get an honest way to deal with these issues, which are becoming, I agree with you, more and more of direct relevance to Canadians.

It's one of the reasons I like being chairman, if I may say, of the foreign affairs committee. People use to say, “What's the relevance of that to anybody?” I'm finding it has a hell of a lot of relevance to everybody, and everybody realizes it. And in the world we live in today it's going to have more and more relevance, so let's work on it together.

Mr. Mills.

Mr. Bob Mills: Well, Mr. Chairman, this leads right into the motion that we're going to be considering, because obviously that says we're going to look at, in the next fiscal years, the spending on CIDA in Pakistan and in India.

There is a problem here, however, in that some members have chosen to depart prior to this vote. We were to be here until noon and they left some time ago. I think it's incumbent on the government, if you believe in this process, to get your members here and to vote on the openness of this area. Notice of motion was given properly, legally, and now we're going to have to defer it till fall.

An hon. member: That shows how much you consider committee.

The Chairman: That's not my understanding. I'll have to consult on it with the clerk.

We have a meeting on Thursday at 9 a.m. We can't deal with it when we have the two delegations here, but I don't see why we couldn't on Thursday at 9 a.m. I will put it as number one on the list. I think by then the parliamentary secretary will have a response from the government as to whether they can accept the terms of the resolution or not.

Would that be fair, Mr. Mills?

Mr. Ted McWhinney: We'll have heard the Pakistani delegation again, and I think the frivolous aspect of it will be properly removed.

The Chairman: Would that be satisfactory to you?

Mr. Bob Mills: I guess it has to be.

The Chairman: We'll put it number one on the list for Thursday. I'm sorry we lost quorum.

An hon. member: I have a point of order.

The Chairman: May I also, while we're on resolutions, ask if it would be generally acceptable to members that we prepare a draft resolution on the issue of the criminal court and put it to the members as well? I think we should.

An hon. member: Excellent.

The Chairman: I'll have Mr. Lee draft a resolution that we can have a look at, and hopefully we can adopt that—approving the government's actively pursuing an international criminal court with jurisdiction over crimes committed internally, in internal conflicts and international conflicts.

Sorry, but I think Madame Debien—

[Translation]

Ms. Maud Debien: I was under the impression at the start of the meeting, when we talked about Mr. Grewal's recommendation, that there was agreement in principle to accept that resolution.

The Chairman: I guess it is my fault if there is confusion.

Ms. Maud Debien: We can adopt it formally on Thursday, but I was under the impression that we had agreement in principle from all colleagues.

The Chairman: I too thought that we had agreement in principle, but perhaps I misinterpreted the situation. I am the one who said that, but it seems that Mr. McWhinney did not have an opportunity to examine the proposal. Let's give him an opportunity to examine it and he will share his decision with us Thursday morning.

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Mr. Ted McWhinney: Mr. Turp, did you examine it?

The Chairman: We're talking about Mr. Grewal's motion. Ms. Debien is right. I am the one who said I thought that there was consensus to adopt the motion. It seems that, as they say in the United States,

[English]

I misspoke myself.

Mr. Penson.

Mr. Charlie Penson: On a point of order, Mr. Chairman, while we are asking the parliamentary secretary to check the facts, I'll ask him to also apologize for his comment a moment ago that I was not at the subcommittee hearings on the MAI. In fact, I took in those committee hearings. We had three weeks to consider it. I'd like him to check his facts before he makes those kind of statements.

Mr. Ted McWhinney: The facts are quite clear. I've cited them often in terms of the number of witnesses heard and the depositions. This is one of the most exhaustive inquiries—

Mr. Charlie Penson: I'm dealing with my attendance at those hearings.

Mr. Ted McWhinney: —ever conducted by a parliamentary committee, period. There's nothing to deny in that.

Mr. Charlie Penson: I'm asking you to withdraw your comments about my attendance at those hearings.

The Chairman: Let's not wrangle. I will state for the record that Mr. Penson is a member of the Subcommittee on International Trade, Trade Disputes and Investment, and that he was present at the hearings that considered this issue. But it's very clear that we did have hearings to consider the issue. There's no question—

Mr. Ted McWhinney: I will accept that. My complaint is that he did not take notice of the exhaustive, revolutionary nature of the inquiry the subcommittee conducted.

The Chairman: Oh, I agree that it was revolutionary. I totally agree.

Mr. Ted McWhinney: It was revolutionary in constitutional and parliamentary terms.

Mr. Bob Mills: While we're talking about that issue, as you recall, Mr. Turp brought forward a comment that was also made by the parliamentary secretary in the House of Commons in answer to my question in which I opposed the nuclear studies, etc. Of course, that's totally wrong as well, and I have yet to receive an apology for that same item. That was wrong; I was here.

Mr. Ted McWhinney: I was puzzled by Mr. Mills' using a member of the Bloc as his porte-parole, which is interesting in the light of subsequent developments. But on the basic point, I would say that those who come with faint praise really reveal where their feelings were.

We put forward a very serious proposition, a revolutionary proposition for study by the minister.

Mr. Bob Mills: Another revolutionary proposition? You really captured the market on that.

Mr. Ted McWhinney: It was rejected by one opposition party and dismissed with faint praise. You suggested that we study a single company instead. Where are the facts?

Frankly, let's stand up and be counted. If you're for it, say you're for it. You don't like calling a spade a spade. This is the problem with Reform.

The Chairman: Members, we're straying into past business of the House.

Mr. Mills, I want to draw your attention to something that I think is quite important. I want to draw this to the attention of all members.

Your resolution, which will be discussed Thursday morning, says that it is pertinent to Standing Orders 81(7) and 81(8), which would require us to report to the House prior to the last sitting day in June, which may or may not hamper any negotiations that are going on in terms of the present sitting of the House.

I suggest you give some thought as to whether or not that's the appropriate introductory language you want to use. If the members are going to be asked to vote on something, they're going to have to— I would recommend that all the members should vote against it just because it's going to tie our hands. I would seriously suggest that this is not a practical or feasible suggestion, in my view, so I think that in reference to Standing Orders 81(7) and 81(8) you should probably have a look at that.

Mr. Bob Mills: In discussing it with Mr. Grewal, I know he meant September, obviously.

The Chairman: The rule provides for the end of June, so that would give us all some problems.

Okay, as long as we're aware of that.

We will meet again this afternoon at 3.15 to receive the Pakistani delegation. Thank you very much.

The meeting is adjourned.