FAIT Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Foreign Affairs and International Trade

EVIDENCE

CONTENTS

Tuesday, April 27, 2004

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1535

The Chair (Mr. Bernard Patry (Pierrefonds—Dollard, Lib.))

Hon. Art Eggleton (York Centre, Lib.)

The Chair

Hon. Art Eggleton

The Chair

Mr. Alex Neve (Secretary General, English Speaking Branch, Amnesty International (Canada))

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1540

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1545

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1550

The Chair

Mr. Pacifique Manirakiza (Professor of Law, University of Ottawa)

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1600

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1605

The Chair

Mr. Stockwell Day (Okanagan—Coquihalla, CPC)

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1610

Mr. Alex Neve

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The Chair

Ms. Francine Lalonde (Mercier, BQ)

The Chair

Mr. Pacifique Manirakiza

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The Chair

Mr. Alex Neve

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

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The Chair

Mr. Alex Neve

Mr. Paul Harold Macklin

Mr. Alex Neve

Mr. Paul Harold Macklin

Mr. Pacifique Manirakiza

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The Chair

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ)

The Chair

Mr. Alex Neve

The Chair

Mr. Pacifique Manirakiza

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The Chair

Hon. Art Eggleton

Mr. Alex Neve

Hon. Art Eggleton

Mr. Alex Neve

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The Chair

Mr. Stockwell Day

Mr. Alex Neve

Mr. Stockwell Day

Mr. Alex Neve

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Mr. Stockwell Day

The Chair

Mr. Bryon Wilfert (Oak Ridges, Lib.)

Mr. Alex Neve

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The Chair

Mr. Pacifique Manirakiza

The Chair

Ms. Francine Lalonde

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Mr. Alex Neve

The Chair

Mr. Pacifique Manirakiza

The Chair

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CANADA

Standing Committee on Foreign Affairs and International Trade

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NUMBER 012

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, April 27, 2004

[Recorded by Electronic Apparatus]

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[English]

    The Chair (Mr. Bernard Patry (Pierrefonds—Dollard, Lib.)): We have a quorum and we're going to start the meeting.

    Pursuant to Standing Order 36(8)(b),the failure of the ministry to respond tothe following petitions was deemedreferred to the Standing Committee onForeign Affairs and InternationalTrade.

    The first motion, 373-0348, on the United States policy towards Cuba, needs no further action because there was a response on April 21 from the department.

    There are three other petitions. Pursuant to Standing Order 32(2), Mr.Gallaway, the Parliamentary Secretary to theLeader of the Government in the House ofCommons, laid upon the table government responses for Ms. Catterall, Ms. McDonough, and Mr. Rajotte concerning AIDS.

    I just want to tell you that the clerk has been informed by the Privy Council Office that the response has been delayed because the Department of Industry has not provided its input. I would suggest to the members that we take note of this and have the clerk monitor the journals. If there are no responses tabled by the end of next week, the committee could reconsider the matter.

    Are we are all agreed on this?

    Some hon. members: Agreed.

    The Chair: Good.

    Now, I want to put a notice to the members that there is a visit of foreign policy experts from the Ukraine, and there is a request that the committee meet with them over lunch on Wednesday, May 12, or May 13. Are you agreed that we...?

    Some hon. members: Agreed.

    Hon. Art Eggleton (York Centre, Lib.): Who would we be meeting with?

    The Chair: We would meet with the Ukrainian experts on the foreign policy of the Ukraine.

    Hon. Art Eggleton: Sure.

    The Chair: Then it's agreed.

    Now we'll go to our witnesses. We have two witnesses today. From Amnesty International Canada we have Mr. Alex Neve, secretary generalof the English-speaking branch.

[Translation]

    From the University of Ottawa, we also welcome Mr. Pacifique Manirakiza, who is a law professor.

    Welcome to our two distinguished guests here today.

[English]

    We'll start with Mr. Neve, please. You know how to proceed.

    Mr. Alex Neve (Secretary General, English Speaking Branch, Amnesty International (Canada)): Thank you very much, Mr. Chair, and good afternoon, committee members.

    Thank you for the invitation to be here with you this afternoon. It is my understanding that I have been asked to be here as part of your deliberations as to whether this committee will pass a resolution urging the Parliament of Canada to declare that it considers suicide bombing directed at civilians to constitute a crime against humanity.

    I appreciate the opportunity to be here to assist you in your discussion and deliberations. This afternoon I would like to share thoughts with respect to three points: first, an overview as to the essential elements of a crime against humanity; second, some thoughts as to the degree to which suicide bombings are already considered to be crimes against humanity under international law; and third, some recommendations for Canadian action in the area of enforcing those international legal standards. Let me begin with the first: crimes against humanity.

    As all members of this committee will certainly be aware, crimes against humanity are among the most serious crimes of concern to the international community. They are designated as such because by their scale or their nature they outrage the very conscience of humankind. Various international documents highlight this gravity and seriousness, referring to crimes against humanity as crimes that “threaten the peace, security and well-being of the world” in one treaty, and “an affront to the conscience and a grave and abominable offence against the inherent dignity of the human being” in another.

    They are crimes under both treaty law and customary international law and are completely prohibited regardless of the jurisdiction in which they are committed or the nationality of the perpetrator or the victim. This is commonly referred to as universal jurisdiction, the notion and the important legal principle that all states have a duty to suppress such crimes through investigations and prosecution.

    The concept of crimes against humanity goes back to the middle of the nineteenth century, but the first international treaty--as opposed to a number of other international documents--the first treaty to set out a comprehensive definition of crimes against humanity is the Rome Statute of the International Criminal Court, adopted in 1998 and ratified by Canada in 2000. The Rome Statute forms the basis for Canada's national law, through the Crimes Against Humanity and War Crimes Act, enacted by Parliament that same year.

    Crimes against humanity are a concept in evolution, and will continue to be so. The international community is now only starting to develop a significant body of jurisprudence, both from national courts and international tribunals, interpreting some of the key elements of the definition.

    The Rome Statute lists 11 different types of inhumane acts that are capable, in the right circumstances, of amounting to crimes against humanity. Those are murder, extermination, enslavement, deportation or forceable transfer of a population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape and other crimes of sexual violence, persecution, enforced disappearances, apartheid, and other inhumane acts causing great suffering or serious injury.

    The treaty specifies that in order for any of those inhumane acts to constitute a crime against humanity, it must satisfy the following three criteria: first, it must be part of a widespread or systematic attack; second, that widespread or systematic attack has to have been directed against a civilian population; and third, the particular act in question has to have been committed with knowledge of the widespread or systematic attack.

    Let me elaborate on some of those points.

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First, the act in issue must be part of a widespread or systematic attack. Amnesty International's interpretation of international law regarding those words “part of” is such that the acts in question need not all be of the same type. In other words, all of the acts need not be torture, or all of the acts need not be rape. It may certainly be a combination of any number of those eleven inhumane acts I described earlier that together constitute a widespread or systematic attack. There is also no requirement that all of the acts be committed by the same individual, or even by members of the same group, as long as they are part of the same attack.

    Second, it must be part of either a widespread or systematic attack. Let me deal first with widespread. Our reading of international law is that widespread can mean one of two things. It can mean that the attack took place over a geographic area, or it may refer to the magnitude of the crime. In a geographic sense, it does not mean that the attack has to have been literally carried out throughout an entire country, province, or district, but it must have been in various parts of a particular geographic region. Widespread, in a geographic sense, does not necessarily require that the attack was massive and directed against a large number of individuals. If there is that sense of geographic dispersion, even if the numbers are relatively small, it may still constitute widespread.

    Widespread can also refer to the magnitude of the attack. One single egregious act of sufficient scale or magnitude may suffice. In this sense, it is not possible to specifically quantify the number of victims that would meet this threshold, and international law has not done so. It would likely be seen relative to the context in which the attack took place. For instance, if an attack targeted only 50 people, but those 50 people were the entire population of a small village, that would obviously have a different magnitude from 50 people being killed in a place that had a population of 15 million.

    If not widespread, an act that is part of a systematic attack also constitutes a crime against humanity. International law considers an attack to be systematic if committed as part of a regular or methodical practice or plan, or a regular pattern on the basis of common policy.

    Finally, the target must be a civilian population. That does not mean that the mere presence of military targets within the civilian population somehow makes the attack legitimate. If the attacker makes insufficient effort to distinguish the military targets from the civilian population, international law considers that the attack has been against a civilian population.

    Now let me address the question of crimes against humanity, and suicide bombing in particular. Amnesty International, other human rights groups, UN bodies, legal scholars, many governments, and many others have repeatedly condemned particular instances of suicide bombing as constituting crimes against humanity. Examples include the September 11 attacks in the United States, the ongoing campaign of suicide bombings in Israel, and the recent train station bombings in Madrid.

    The framework for reaching that conclusion is the one I have just described. Clearly, suicide bombings involve any number of the eleven named inhumane acts I described earlier, most obviously murder, and other inhumane acts causing serious injury. The principal question that has arisen is whether the bombings are part of an attack that is either widespread or systematic. In the three examples I have highlighted, the attacks were in our view both widespread and systematic, due to either the magnitude of an individual attack or the clear evidence that the act was part of a wider plan of attacks. That is likely to be the case in the vast majority of suicide bombings.

    The exception would perhaps be a bomber acting alone and not targeting a large number of individuals. That might include, for example, someone who targets the premises of a former employer for reasons of revenge. I'd highlight that this distinction applies equally to all other human rights abuses as well. For instance, one renegade police officer who tortures one detainee for personal reasons has certainly committed the criminal offence of torture, but it is unlikely that it constitutes a crime against humanity. However, if that act is part of a systematic pattern of torture of detainees in that country or if the number of individuals being detained by that police force runs into the hundreds or thousands even in just one detention centre, then almost certainly it has become a crime against humanity.

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    Lastly, let me just give a brief overview of some recommendations for Canadian policy. I'll begin by stating that Amnesty International neither opposes nor promotes any move to specifically identify suicide bombing as a crime against humanity, including by means of elaborating an international convention on this topic. We would highlight, however, that the clear majority of such acts already do constitute crimes against humanity.

    Strategically, therefore, it may be preferable to focus on measures that strengthen the enforcement of existing legal provisions rather than opening up a debate that would by its very nature be polarized and divisive. An approach that seeks to develop and enumerate a list of the specific contexts and circumstances in which crimes against humanity occur risks raising questions as to the legal status of those contexts and circumstances that are not enumerated.

    As well, the risk of launching a debate that, due to the sensitivities and political controversy involved, might not be resolved or might even be unsuccessful cannot be discounted. This could potentially weaken the current strong legal argument, which I have already made here, that the vast majority of suicide bombings do in fact constitute crimes against humanity.

    Notably, Amnesty International has longstanding concerns that the Canadian government has failed to live up to its obligations to assert universal jurisdiction in Canadian courts and ensure that alleged perpetrators of crimes against humanity face justice. Canada's preferred approach continues to be the use of immigration remedies such as deportation rather than criminal prosecution, and this includes instances when individuals stand accused of torture or inciting genocide but also cases in which individuals have been accused of being involved in terrorist activities.

    Amnesty International has urged and continues to urge Canada to prioritize prosecutions over deportation. We are concerned that deportation means the alleged perpetrator will likely escape justice or will experience serious human rights abuses him- or herself. We have pressed the government, for example, on the issue that the use of the security certificate process under Canada's immigration legislation contravenes Canada's obligation to ensure that individuals who are alleged to have committed serious human rights abuses, including terrorism, do in fact face justice and are themselves protected from grave human rights violations such as torture.

    Canada could make a tremendous contribution to ensuring that there is justice and accountability for suicide bombings and other inhumane acts that constitute crimes against humanity by devoting the political will and resources necessary to mount prosecutions in Canadian courts and by pressing and assisting governments around the world to act similarly.

    International law and Canadian law contain strong and clear provisions establishing that suicide bombings that target civilians and are part of an attack that is either widespread or systematic do constitute crimes against humanity. A priority for Canadian action should now be to ensure that individuals who stand accused of committing such crimes against humanity do not escape justice. Only then will we begin to break the endless cycle of impunity that fuels human rights abuses, including suicide bombings, around the world.

    Thank you.

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[Translation]

    The Chair: Thank you very much, Mr. Neve.

    We will now go to Mr. Manirakiza.

    Mr. Pacifique Manirakiza (Professor of Law, University of Ottawa): Thank you, Mr. Chairman, for giving me this opportunity to speak.

    I would also like to thank all the committee members for inviting me to address this prestigious institution. The issue that we are dealing with is very important and, in fact, concerns the security of humanity as a whole.

    The question that I and my colleague, Alex Neve, were asked to address is whether suicide bombings constitute a crime against humanity.

    To begin, from a preliminary analysis of the issue, my conclusion is that these attacks are in fact a crime against humanity for the reasons that I will outline. They are practically the same reasons as given by Mr. Neve. We did not consult each other, but we have come to practically the same conclusion.

    My presentation will focus on three main questions. The first is whether suicide attacks constitute a crime against humanity under current international law. The second, which depends on the answer that I give to the first question, is to try to identify the legal consequences of characterizing suicide attacks in this way. Third, I will look at whether it would be appropriate to launch a campaign to develop an international convention on suicide attacks.

    Let us start with the first question, which is the legal characterization of suicide attacks. In order to define this type of attack as a crime against humanity, it is important to discuss—very briefly, since Mr. Neve covered this adequately—the concept of a crime against humanity.

    A crime against humanity is a serious international offence, in the sense that it includes acts that undermine values that are considered essential by all of humanity. In fact, this crime goes back to the Nuremberg Tribunal, which was created to judge Nazi war criminals who committed atrocities during the Second World War.

    As Alex said, this type of offence was included in the statute adopted by the International Criminal Court in Rome in 1998. In other words, the notion of crimes against humanity covers what could be called crimes of lese-humanity.

    What legal criteria are required to conclude that something is a crime against humanity? Once again, I will not go into the details. However, I have identified four criteria. In Mombasa, I learned about the definition in the Rome Statute of the International Criminal Court and in the relevant case law coming out of the ad hoc international tribunals.

    The four criteria are as follows. First of all, it has to be a widespread or systematic attack; the attack must be directed against the civilian population; third, a crime against humanity has a political dimension, in that the attack must further or implement a plan or policy of a State or organization aimed at attacking civilian populations.

    Finally, from a purely legal point of view, the psychological element is very important. It is connected with a crime against humanity in that the author of such a crime must be aware of a plan or a policy that a State or organization has developed to attack civilian populations.

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    So on the basis of these criteria that I have briefly outlined, can suicide attacks be considered crimes against humanity? It should be said at the outset that the very concept of suicide attacks is not one that is recognized as such in international law. But that does not mean that it is not fully covered legally by international law.

    As I will demonstrate, suicide attacks are serious enough in nature to be considered crimes against humanity. If we look at the first criterion that I listed, indicating that the attack must be widespread or systematic, I would say that a suicide attack is always a systematic attack, in that there is some organization or planning or a policy to attack civilian populations.

    In the situations that we are familiar with today, it can be said that there is always institutional involvement or oversight by organizations or certain States of those who carry out suicide attacks. I give a few examples in my text.

    With respect to the second criterion, which stipulates that the attack must be directed against a civilian population, I believe that, even here, given the information available on suicide attacks, this crime targets civilian populations and property. Among the victims of suicide attacks, there are many elderly people and children which means that people with civilian status are being targeted. It is very rare to find a situation where a suicide attack is aimed at military targets. Those are basically exceptions, such as the kamikaze pilots during the Second World War. But besides, there have been few other exceptions.

    The third criterion that I mentioned was that there had to be evidence of a political crime or an explicit or implicit plan on the part of a State or an organization, and we can essentially conclude that suicide attacks always stem from a clear political motivation, in other words, they are carried out in execution of a policy of a State or organization or under the cover of the State or organization.

    For example, certain Hamas people say that this is their only means of dealing with the Israeli occupation, since they have no tanks or helicopter gunships. Going by the appeals made by certain organizations for the attacks and the explanations given to justify them, we can basically conclude that the political element is omnipresent.

    On the basis of these criteria, I believe that suicide attacks do constitute a crime against humanity. My conclusion is based on international humanitarian standards that are considered to come from international and common law. These include the general prohibition on attacks against civilians that is recognized by the Geneva Convention.

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    There is also the principle that holds that the means and methods of combat not be unlimited, or the principle whereby attacks that cause unnecessary, superfluous suffering on the civilian population be prohibited.

    In reaching certain conclusions, I also took into account reports presented by various human rights organizations such as Amnesty International, Human Rights Watch and Médecins du Monde. I also based my findings on the work of certain professors, such as Prof. Cassese, who was the President of the International Criminal Court for the former Yugoslavia. He considers any crime committed on a large scale with similarities to an attack such as that of September 11, could be described as a crime against humanity, provided the previously mentioned criteria are met.

    I would now like to talk about the legal consequences of this. In my view, the first legal consequence is that the International Criminal Court could be given the power to judge individuals involved in organizing suicide bombings. I think these attacks could be described as murder, extermination, torture or other inhumane acts, which were some of the components of crimes against humanity set out in article 7 of the Statute of the International Criminal Court.

    In my opinion, the fact that an individual blows himself or herself up at the same time has no relevance legally, from the point of view of international criminal law, nor is the fact that a tank, a gun or machetes were used. As far as I'm concerned, this fact is not relevant at all.

    Moreover, the principle of universal competency can virtually be used to enable States with a legal text implementing the Statute of the International Criminal Court to lay charges against individuals involved in organizing suicide bombings. As Mr. Neve said, I think that Canada, using its Crimes Against Humanity and War Crimes Act, could ultimately make use of this principle of universal competency.

    Finally, I think the impunity we have seen today with respect to suicide bombings has in no way been caused by a legal problem of any sort. Rather, it has been caused by a practical problem. It is virtually impossible to capture individuals responsible for organizing terrorist attacks.

    I would like to spend two minutes talking about whether it is really the right time to campaign for the adoption of an international convention on suicide bombings. Adopting a convention could have some political use, but I do not think there is any legal necessity to do this. And I have three main reasons for saying that. Two are legal in nature, and the other is practical.

    The first legal reason is that at the moment, as I said, and as Mr. Neve said as well, there is no legal basis in international law on this phenomenon.

    The other reason is that it would not really be appropriate to legislate on a case-by-case basis, that is, to adopt a convention every time there is a new phenomenon, unless components of the latter are completely different from incriminations recognized in international law.

    I will conclude with one last argument. Even if there were a legal vacuum, I'm not convinced that an international convention on suicide bombings would result in a significant reduction in the number of such incidents.

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    I would refer you to what has happened with respect to conventions drawn up to repress terrorism. Many conventions have been drafted, and many resolutions passed by the United Nations, but if we look at the practical impact of these conventions, we find that it has been limited.

    I think I will stop here. Perhaps I could comment on another matter. Thank you.

    The Chair: Thank you very much.

    We will now go to the question and answer period.

    First, I would like to thank Mr. Lee, from the Political and Social Affairs Division, and Mr. Dolin, from the Government Law Division, for the research work they did for us today.

    Mr. Day.

[English]

    Mr. Stockwell Day (Okanagan—Coquihalla, CPC): I appreciate the overview, especially of the Rome Statute and other judicial reflections in terms of crimes against humanity and the qualifiers for that. I agree with those qualifiers as already articulated.

    Mr. Neve, I appreciate your reflections. You talked about the eleven types of extreme acts, which are listed. The fact still remains that suicide bombing itself is not mentioned among those eleven extreme acts that could cause the triggering of the term “crime against humanity”.

    Of course, what is unique about a suicide bombing is that if the bombing is successful--we say somewhat ruefully--the perpetrator is not available to be charged. However, the planners, the supporters, the encouragers, and the financiers of the activity should be available to be charged, not only under existing legislation on murder and encouraging murder but also under this area of suicide bombing.

    There was the reflection that an act's being committed without knowledge could be used as a partial excuse unless there's a separate designation for suicide bombing. We had two cases recently. One was an 11-year old boy--this was in the news about two weeks ago--who didn't even know he had the bomb belt attached. There was also an incident three weeks ago of a 14-year old boy who knew, but his own parents suggested he was not fully mentally capable. So his ability to have knowledge was limited, though again, the encouragers, financiers, and planners fully knew what they were doing.

    I appreciate all these judicial reflections, but why would we not want to layer on the added, most odious terminology, that being “suicide bombing”? Why would we not want to give either national or international jurists extra clout and extra ability along with what is there?

    It's the exact same rationale as having a so-called hate crime. If you murder someone, that's a crime; if you murder them and it can be proven there was hatred, especially ethnically or religiously related hatred, you can add on another layer of indictment.

    So I still come to the question--not to you, sir, but you can reflect on it--to my colleagues: why would we not want to layer on that added indictment and added capability?

    I've read through the Rome Statute and other legal reflections, and I fail to see how they weaken the case. If somebody wants to apprehend suicide bombers or encouragers thereof, it's still the wrong message for this committee to send out, that there's a lack of willingness to add that indictment. It's the wrong message to be sending to perpetrators and planners, who actually watch these types of deliberations.

    Those are my reflections. It's not so much a question, but if you could, deal with the question: why not add on that extra layer of indictment and odious...apparition?

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    Mr. Alex Neve: Yes, thank you. Maybe I can go first, and my colleague can add a few things. I have a number of reflections in response to that.

    I guess I would begin by saying I'm reluctant to agree with your premise, which is that suicide bombings aren't already a crime against humanity. I actually think it's vitally important that we in all ways possible reinforce the argument that they are, that international law as it exists now already is such that the vast majority, certainly all of the ones that I think are most top-of-mind for all of us, do constitute crimes against humanity. As I said, there would be limited exceptions, such as the lone bomber who's angry that Wal-Mart dismissed him and comes in and does a suicide bombing in a warehouse and kills three former co-workers or something like that.

    I guess I'm a little nervous that if we start advancing arguments that suggest that they aren't, it's going to weaken the important and already fledgling but successful efforts in a number of courts around the world to actually approach and prosecute suicide bombings as crimes against humanity.

    With respect to a couple of the specific points you raised, while suicide bombing is not specifically listed among the eleven triggering inhumane acts that are included in the Rome Statute, it seems hard for me to imagine a suicide bombing that wouldn't involve one of those triggers. Number one, murder is listed as one of the triggers. I suppose there are unsuccessful suicide bombings where only the bomber himself or herself dies, but certainly in the vast majority there is another victim.

    Beyond that, one of the other triggering events is a bit of a catch-all, which is: “other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health”.It seems to me that catch-all phrase, which is the eleventh of the eleven acts enumerated in the Rome Statute, would almost certainly include any suicide bombings. So I think we're in the door.

    The only question, then, becomes whether the particular suicide bombing we're concerned about was directed against a civilian population, as opposed to being a military attack of some kind--as I understand it, civilian attacks are specifically what you're considering in your own debate here--and whether it is either systematic or widespread. I've tried to share with you that my reading, Amnesty International's reading of international law, and the interpretations we're seeing now of what “widespread” and “systematic” mean are, again, such that the vast majority of suicide bombings are going to come within the definition.

    So I think we're there, and I think what we should be doing is very much reinforcing that.

    Crimes against humanity do also speak to those who aid and abet and are complicit in crimes against humanity. I think that's an important point, which gets to your very important and valid observation that we want to make sure there's legal action being taken against the planners, the financiers, those who facilitate the suicide bombings. Crimes against humanity, as defined in the Rome Statute and in Canadian law, already make that very clear.

    Then the last point is with respect to those two very harrowing and disturbing examples of the children that came to light a few weeks ago in Israel, which I think we all found very wrenching. Perhaps those two individual children were not guilty of crimes against humanity because of the lack of knowledge, which you pointed to, and also because of their age. Of course, within legal systems around the world there's a whole different approach taken to criminal responsibility for minors.

    Again, though, when you turn to the aiding and abetting and complicity provisions, those who set that child up to be a suicide bomber, those who took the steps of strapping on a bomb, knowing what was afoot, and who I think we would all agree are the true criminals in a case like that, would absolutely fall within the legal provisions as drafted.

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    The Chair: Thank you.

    We'll go to Madame Lalonde, s'il vous plaît.

[Translation]

    Ms. Francine Lalonde (Mercier, BQ): I would like to thank both of you for your very enlightening presentations. In this debate we're having, I was particularly concerned about the political connotations of passing the motion we have before us, particularly after President Bush supported the new plan by the Prime Minister of Israel, Mr. Sharon, which disturbs everyone seeking peace in the Middle East. Passing the motion at this time would seem even more dramatic to me. That's why I thought of moving a motion that denounced both war crimes and crimes against humanity, namely the suicide bombings.

    I understand when you say that you have no proposal of this type, but that you have concrete proposals to try to prevent or reduce the number of suicide bombings.

    I would like to hear your comments on my first point, but I would particularly like to know what recommendations you would make to the Standing Committee on Foreign Affairs and International Trade.

    The Chair: You have the floor, Mr. Manirakiza.

    Mr. Pacifique Manirakiza: Thank you for your question.

    In my concluding remarks, even though I did not get that far, I say that even though I deal with this issue from a repressive point of view, I do remain convinced that in order to solve world conflicts we must deal with their causes. This would enable us to avoid acting after the fact, after there has been victims as a result of suicide bombings.

    That said, the current situation is disturbing and suicide bombings happen almost everyday.

    What should be done, in strictly legal terms—because politically, the answer might be different—to contain the situation? One of the strategies would be to determine how to implement proactive policies, with charges being laid against all individuals involved in the criminal organizations behind the suicide bombings.

    As Mr. Day said, the perpetrator generally dies in the bombing, but we know that there is a whole criminal organization. What we want to do ultimately is to get at the entire organization in order to do that, I think we can be much more creative and consider introducing charges based on points of law we've already developed here, such as universal competency or existing international common law.

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    The Chair: Would you like to add something?

[English]

    Mr. Alex Neve: I very much agree with my colleague's views. I think there's probably a short-term and a long-term view that governments should take in attacking--that's not the right word to use--in approaching a concern such as suicide bombings.

    In the short term, there's no question that more needs to be done with respect to some of the things I highlighted. We need a more consistent international approach to prosecutions, including by the Canadian government. The washing-the-hands approach of just deporting people or, as in some countries, targeted extrajudicial assassinations and those sorts of measures get us nowhere. It either gets us injustice, in that the accused individuals themselves become subjects of human rights violations, or no justice, in that the people concerned are deported and perhaps they get a hero's welcome at the other end of the airplane ride. Neither of those measures will take us anywhere toward eradicating any kind of human rights abuse, including suicide bombing.

    Coupled with that, governments certainly can always do more to improve their approach to investigations, to intelligence gathering, to information sharing, all of which we would say needs to be done in a way consistent with human rights obligations. But that can be done.

    As for the long-term view, with respect to any human rights concern Amnesty always says--and this includes the concern of suicide bombing--you can't understand and approach the issue and find solutions by looking at only that one concern; you need to look at the broader human rights context. There's no question that part of the solution to any human rights problem in any particular country is creating and delivering a solid, promising human rights future and reality to the people of that country.

    I don't want to suggest I'm naive enough to think that if human rights were widely protected in Israel, suicide bombings would end overnight, or we wouldn't have suicide bombings in Iraq. There's a complexity of factors that lead any individual or group to carry out something like suicide bombings. But there's no question that we will achieve a much more secure and safer world if governments around the world are reliably and consistently always putting a commitment to human rights at the forefront of their foreign policy decisions, their trade policies, their military decisions, etc. Unfortunately, we live in a world where that's often far from the case.

    The Chair: Thank you.

    We'll go now to Mr. Macklin, please.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you, Mr. Chairman.

    Thank you, witnesses.

    As we sit here and as each of us asks questions, we sort of develop answers to the overall picture.

    I was noticing that in this process it appears that the Statute of Rome has a seven-year window for review. I was wondering, with respect to the statute itself, as opposed to the general recommendations you're making, are there any statutory changes that we ought to be implementing in order to better clarify the concerns that are being expressed here?

    Do you have any comment on the way in which the statute itself is currently drawn and drafted?

º  (1625)  

    The Chair: Mr. Neve.

    Mr. Alex Neve: That opens up a wide front.

    I would say at this point in time we think that we have in the Rome Statute, while not perfect.... There were a number of elements in the Rome Statute that ended up being compromised in order to ensure that a treaty would emerge, and even at that, less than half of the international community to date, although very close to half of the international community--actually, we probably are at about half now--have actually signed on to the treaty. Our southern neighbour, of course, very notably has not yet.

    I think, therefore, we're still at a stage where what is important is to consolidate and reinforce what we obtained through the Rome Statute and to focus our efforts on making sure that it is well enforced, that we have--as I think we do have--a strong panel of judges who will sit on the International Criminal Court, that we see--which we do not yet see at the national level--domestic courts starting to implement their obligations under that treaty. As I said in my own remarks, that's an area where we very notably fall far short in Canada, and that's not tenable in the long run.

    The international leadership, the tremendous globally respected leadership that Canada has played and continues to play in the establishment of the International Criminal Court, is ultimately going to be undermined and undone if it doesn't become evident that we are willing to match those fine international words and actions with the tough action that's necessary at home to make sure our courts are part of the struggle to deliver global justice.

    My temptation would be to say that for the years to come, that's where our focus needs to lie, rather than on reopening a treaty that was a product of very long, painstaking, hot summer months of negotiation and compromise in Rome in 1998. We need to make sure that what we have actually takes hold.

    Maybe a decade or two from now we can come back to the question of whether there are improvements and refinements.

    Mr. Paul Harold Macklin: So although the statute calls for a seven-year review, you're not expecting there will be one. If there were, how would that review be conducted, just so the committee and I would know how we might make input, if we chose to do so?

    Mr. Alex Neve: I'm not as familiar with the seven-year review period. Is the seven-year section I'm thinking of the specific provision that allows countries to exempt themselves from the war crimes jurisdiction for seven years?

    Mr. Paul Harold Macklin: I understood it was a review that would be required. I was referring to an article I was given by William Schabas and Clémentine Olivier entitled: “Is Terrorism a Crime Against Humanity?” On page 271 it referred to the fact that the situation may well change when the statute is reviewed seven years after its entry into force. I'm just presuming there must be a provision there.

[Translation]

    Mr. Pacifique Manirakiza: Yes, there is a provision in the Rome Statute that provides for a review of the statute after seven years. Would this be the right time to consider including suicide bombings in this statute? I think that from the way I discuss the issue, and the way Mr. Neve discussed it, our view is that crimes included in the categories of crimes against humanity—particularly murder, extermination, torture or other inhumane acts—are explicit enough that suicide bombings could be included. We could in fact start thinking about making these incidents a separate crime, but as far as I'm concerned, I fail to see how they would constitute a separate crime. Would this be a separate crime simply because one individual blows himself up? No. Would it be separate simply because this individual causes terror within the civilian population? Well this is not the only type of crime that causes terror within the civilian population.

    So in my opinion it would even be difficult to get any consensus within the international community on this offence, which actually has a very political connotation. This could even reopen the whole debate regarding the concept of terrorism, which is why terrorism was not included among the crimes that come under the jurisdiction of the International Criminal Court.

º  (1630)  

    The Chair: Thank you.

    Mr. Bergeron.

    Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Thank you, Mr. Chairman.

    First of all, thank you for your presentations. The more I hear people discuss this issue, the more I conclude that what we are being asked to do is much more political than legal in nature.

    When Mr. Macklin quite rightly talks about the possible legal consequences internationally of such an initiative, perhaps the intention of those bringing forward this motion today is to change the terms of international law to include suicide bombings in the definition of crimes against humanity.

    What I am wondering about, and I would like to ask you this quite bluntly, is this: What point is there in the Standing Committee of Foreign Affairs and International Trade passing a motion condemning suicide bombings, and only suicide bombings, as crimes against humanity? Would we be adding to the debate in its legal implications, would we be adding to the debate in its political dimensions, or would we be taking away from the debate legally and politically by taking such a stand today?

    The Chair: Mr. Bergeron, I think this question should be directed more to the mover of the motion, but if Mr. Neve or Mr. Manirakiza care to answer, they may.

[English]

    Mr. Alex Neve: I don't know the wording of the resolution you're considering, but if I could make a suggestion on something I think would be very strong and useful from the committee, it would be a resolution that highlights that this committee is of the view that suicide bombings directed against a civilian population and part of a systematic and widespread attack constitute crimes against humanity.

    Even though I've tried to tell you that there's fairly strong international legal opinion that it is the case, I think more and more statements that reinforce that argument bolster the efforts to actually prosecute and deal with suicide bombings as crimes against humanity in national and international courts.

    I also suggest it would be very useful for this committee to go on in that resolution and draw attention to the concern that Canadian practice to date has been insufficient in ensuring the prosecution of individuals who are alleged to have committed crimes against humanity, including suicide bombings, and that this committee feels there is a real imperative for Canadian policy practice resources to be improved on that front.

[Translation]

    The Chair: Would you care to add something, professor?

    Mr. Pacifique Manirakiza: Yes, I would just like to add a few words. I think that a motion such as this would have a significant political impact. There would not really be any legal impact, in my opinion, but there would be a significant political impact, in that it would add to the international condemnation of suicide bombings.

    I'm trying to imagine what happened in France in 1998 when they passed a law stating that slavery was a crime against humanity. There too, the impact was mainly political, because there was an attempt to confront a situation in which the French government had been involved, which is not the case here. In this case, the motion would simply highlight the highly reprehensible nature of these attacks. The impact would be political only.

º  (1635)  

    The Chair: Thank you.

    I will now give the floor to Mr. Eggleton.

[English]

    Hon. Art Eggleton: I think we're hearing that it is covered in the legal framework of the Rome Statute. So if we want to pass Mr. Day's motion, or some amendment to it, then we're talking about political action to reinforce or affirm what the Rome Statute already says.

    However, I want to ask Mr. Neve a question, because three times in his comments he has tried to draw our attention to the broader question of prosecution in Canada of those people who could be guilty of human rights violations.

    The prosecution of war criminals, at least in the case of the Nazi war criminals, has taken on a different direction because of unsuccessful prosecution, or a feeling that it is very difficult to amass the evidence. So removing citizenship has become an easier or perhaps more effective way of dealing with that. Then the prosecution can go on in another country where more evidence might exist. I've certainly heard that argument with respect to the Nazi war criminals. I don't know about ones from other countries, such as Rwanda and the other places of more contemporary war crimes.

    What's your response to that? Is that a really difficult problem? How can we improve our ability to prosecute these people? Can the new International Criminal Court play into this in some way? How might that all work? How can we improve our record in that connection?

    Mr. Alex Neve: Let me begin by stating the obvious. It's not easy to prosecute war crimes or crimes against humanity. We're talking about events that often took place in the midst of war or mass human rights violations, where it will be difficult to amass the evidence.

    That being said, I think the international community has come a long way since the late 1980s and early 1990s, which is the era I think you're referring to, when some unsuccessful efforts were made to mount war crimes prosecutions in Canada on World War II-era cases. Once the Supreme Court of Canada rendered its decision in the Finta case in the early 1990s, they were ultimately shut down. The Supreme Court, in our view and in the view of many, set a legal hurdle that was far over and above what international law required around crimes against humanity, and made it virtually impossible to prosecute.

    That has now been addressed through the Crimes Against Humanity and War Crimes Act in 2000. Some of the most obvious difficulties that the Finta decision gave rise to have now been specifically addressed through legislation. So I don't think prosecutions will face that hurdle any more.

    The international community has also come a long way since then, and things are happening on the global level. Governments are cooperating, sharing information, working together around these cases, be it at the Yugoslav tribunal or the Rwanda tribunal. A new court is now up and running to deal with Sierra Leone as well--the International Criminal Court. One of the major keys to successfully being able to move ahead with prosecutions is making sure governments are working together, so evidence can be shared easily from one nation to another, and lessons learned can be shared about some of the challenges, which will be considerable.

    We're talking about prosecuting for instances that happened in the midst of chaos halfway around the world, in a different language, and in a different culture. There will be challenges, but I think the international community is really getting there. Canada, as one of the leading nations in that regard, is in a much stronger position to be able to start to successfully mount some prosecutions now.

    Hon. Art Eggleton: So it's a matter of political will.

    Mr. Alex Neve: I think it's political will and resources. It comes back to the point that it's not easy, and not easy includes not cheap. It means that from time to time investigators will have to be sent from Canada to Rwanda, the Yugoslav republics, or who knows what corner of the world. Witnesses will have to be flown here. The right kind of investigative and research staff will have to be provided to the RCMP and justice lawyers, to make sure they can carry this out. We have some of that in place, but I think more is needed.

º  (1640)  

[Translation]

    The Chair: Would you like to add something else? That is all right? Fine.

    I will now give the floor to Mr. Day.

[English]

    Mr. Stockwell Day: Thanks again, Mr. Chairman, and thanks to both of you, especially Mr. Neve.

    I found your comments incisive, Mr. Neve, and helpful in terms of the legal aspect. You nicely dodged the bullet when you were wrongly put on the spot in terms of what would be the intentions of the mover of the motion. That's for committee members here to debate, but I appreciate that you were willing to take the chance.

    Part of my frustration is something along the lines of what Mr. Eggleton was saying. Recently we've seen great difficulty in bringing the crimes against Milosevic to a conclusion. As a matter of fact, unless you have an update I'm unaware of, with the dismissal of the judge in that particular case it looks like the whole thing starts again. Witnesses are going to be lost, and there's even speculation that he may either put off or avoid prosecution.

    Just last week, I believe--and you probably remember the name of one of his accomplices--a proven accomplice to genocide had his sentence reduced, which to me was amazing. Now, he probably will be in jail for the rest of his life, because I think it went from 42 to 35 years, but again, it's the message that goes out.

    There are certain words or terms that have such a sense of human approbation to them that they strike fear in the heart of everybody, and make them pull away from wanting to be accused of that. In terms of the discussion on the Armenian question, the government here had no problem with motions saying it was an atrocity, it was terrible, etc. But the word “genocide” is loaded--and it's appropriate, I think. So the word “suicide” attached to bombing....

    There is a narrow, very narrow, component of followers of Islam--I'm talking about the group Hamas, as an example--that uses suicide bombing for political purposes, for political gain. It's part of their stated mandate. They will use it. They're excited by it. That's why, in my view, attaching the word “suicide”, which has such a harshness about it, strikes the same level of fear as attaching the word “genocide” to it.

    So yes, it is partly political. It gives, I think, an extra arrow in the quiver of prosecutors internationally, but it does send a political message against a group that uses suicide bombing for political purposes, and even excuses it. Hamas excuses it for the advancement of their political gain.

    Now, that's my hypothesis. You don't have to get involved on the political side, but again, with your familiarization with the Rome Statute and other similar ones, do you see....? I still fail to see how, if you add that extra indictment, the suicide part, it really weakens the present ability of prosecutors in their pursuit. Because I think it strengthens it.

    Mr. Alex Neve: I guess I would just come back to my sense of caution--and I guess this would come down to, if you do proceed with the resolution, how you word it--that I do not think you want a resolution that suggests that this committee is of the view that suicide bombing isn't currently a crime against humanity.

    Mr. Stockwell Day: Yes, I appreciate that.

    Mr. Alex Neve: I think any resolution you do pass should try to be an accurate statement of the current state of international law with respect to suicide bombings as a crime against humanity, because I think what you want to do is reinforce it rather than undermine it in any way.

    Coming back to your opening points on the Milosevic trial and others, the Milosevic trial now is often pointed to as an example of the way in which the international justice project may be doomed to failure, or is really not going to be able to deliver the goods. I think there are two important things to remember. For every Milosevic there have been quite a number of successful and important prosecutions, from both the Yugoslav tribunal and the Rwanda tribunal. Some powerful judgments have been rendered by both tribunals that have clarified and advanced legal understandings of crimes against humanity, of notions of rape as a war crime, have fleshed out the definition of that loaded word you were referring to earlier, “genocide”. All of those judgments are now in turn being used at a national level by courts, which are starting to carry out some prosecutions as well.

    So a lot of really good work is happening as well. There will always be, just as there is nationally with criminal cases, the grandstanding media spectacle trial that comes along and gets snarled, that has the misfortune of having a judge who faces health problems or whatever the case may be. But I would not want us to get too hung up on the Milosevic trial as being the poster child for where we're going with international justice, because I think there's a lot to be both very proud of and very hopeful of on that front.

º  (1645)  

    Mr. Stockwell Day: That's fair.

    The Chair: Mr. Wilfert.

    Mr. Bryon Wilfert (Oak Ridges, Lib.): Thank you, Mr. Chairman.

    Thank you, gentlemen, for your comments.

    I put forth the following observations. If the International Criminal Court had existed at the time of 9/11, under the Rome Statute the court could never have been the forum for prosecutions for the 9/11 acts simply because where states have the ability to prosecute and are willing to prosecute, it does not fall under the court's jurisdiction. I don't think there's any question that the United States, which obviously suffered a significant attack on September 11, has been and is willing to prosecute al-Qaeda and others.

    At the same time, there's the argument that if crimes against humanity were to encompass criminal acts to the degree that's being suggested, it might discourage states from ratifying the Rome Statute.

    Finally, the United States has been able to prosecute under its own criminal justice system what we may define as acts of this nature.

    I'd like you to briefly respond to those.

    Is the issue before us a political issue or a legal issue? If we're going to embrace something that does not in law advance the cause, there's not much point in doing it. If existing instruments are being utilized successfully, is there any benefit in going forward, particularly when we're talking about the Rome Statute and how close we are to ratifying it--you said about half had signed on--and how important that is?

    Mr. Chairman, thank you.

    Mr. Alex Neve: Maybe I'll start, and my colleague may have some additional comments.

    I think there are two related but different concepts we have to keep in mind when we consider crimes against humanity. One is the question of whether the International Criminal Court would have jurisdiction over a particular instance. The other is the whole question of the universal jurisdiction that exists over crimes against humanity.

    It's perfectly correct that when it comes to that first question around whether the International Criminal Court itself would have jurisdiction, it would depend on whether or not it has jurisdiction by virtue of a relevant state having ratified, which means it either has to be the state where it took place or the nationality of the perpetrator. The United States is a very good example, whereas many nations around the world haven't ratified.

    That doesn't mean, though, that there is not still some powerful value in understanding any particular wrongdoing, be it suicide bombings, torture, or mass murder, as a crime against humanity. Under customary international law, which doesn't depend on whether or not a state has ratified the Rome Statute, or any other treaty for that matter, there is a binding worldwide legal principle that says universal jurisdiction applies, which means any court anywhere has the obligation to prosecute and take action. I think that's where we have in some respects the most critical potential when it comes to ensuring that there is justice for acts such as suicide bombings, by understanding them as a crime against humanity and then applying that customary international legal principle of universal jurisdiction, which ultimately should guarantee that there's nowhere to run and hide. That's not to say we don't face huge challenges in convincing a number of governments to live up to their obligation to assert universal jurisdiction when wrongdoers are within their jurisdiction, but at least we have the legal tools to do so.

º  (1650)  

[Translation]

    The Chair: Professor.

    Mr. Pacifique Manirakiza: Thank you. I understand the honourable member's concern, mainly the danger that the concept of a crime against humanity become a catch-all, something that would include all inhumane acts that are not at all considered criminal.

    I am saying that the answer to this question is no. There are no grounds for seeing the concept of crimes against humanity as a catch-all, a concept too broad to include everything.

    That leads me to say that in the end all suicide bombings are not crimes against humanity—that is the legal reason I mentioned earlier—because if a suicide bombing is a completely isolated act, a fortuitous act that is not part of a widespread or systematic attack, we cannot say, in such a case, that the suicide bombing passed the test to be described as a crime against humanity. It is like murder, in fact. We know that some murders are described as crimes against humanity, while others are murders under domestic law. So even in this case, a suicide bombing can be considered a crime solely with respect to domestic law, without passing the test to be described as a crime against humanity.

    The Chair: Thank you.

    Ms. Lalonde, please.

    Ms. Francine Lalonde: That is very interesting. You do not want to talk about this issue, but this is the Foreign Affairs Committee—this is a comment my colleagues have heard me make several times—and we know that the stands we take can have an impact on tense political situations. We could begin this discussion again at another time, but at the moment, it is clear that suicide bombings are one of the "terrorist" acts that seek to win victory for a territorial or a political cause on the one hand. On the other hand, there is also international terrorism, which uses terrorism to establish its power.

    In the first case, with Israel, Palestine, Chechnya and many other countries, there have been governments in place that also abused their military power, governments that could be said to have committed war crimes and, in some cases, crimes against humanity, which are just as detestable and reprehensible.

    So our position is that as the Foreign Affairs Committee, all we can do is to speak out against both and that taking a strong position against suicide bombings only at this time—not that we do not condemn them—would force us to take a stand. In our view, this does not help solve anything and does not provide justice, because, in fact, there are two situations that have nothing to do with the law nor with... I am not saying that this is always the case. For example, the Israelis have the right to defend themselves, that is true, but not by any means whatsoever, and the same goes for Palestine.

    I heard Hubert Védrine say that we can condemn terrorism as much as we like, but it will always exist for reasons having to do with political situations. He was not talking about morality or law, but rather about political situations.

    So I would like to hear your views on that, on our foreign affairs concerns.

º  (1655)  

[English]

    Mr. Alex Neve: Well, you're quite right. Certainly from Amnesty International's perspective, we never comment on the political side of these issues.

    That having been said, I would agree there would be great value, as you continue to deliberate and discuss this, in considering a resolution, if you feel the necessity to pass a resolution dealing with the issues of crimes against humanity, that addresses that issue in a holistic manner, because there are a wide range of issues and concerns with respect to crimes against humanity.

    I've highlighted some of these issues--the failure, including that of our own government, even though we're making some progress, to ensure that there are reliable and consistent efforts to punish and prosecute the perpetrators of crimes against humanity, which would include suicide bombers. It would include torturers. It would include financiers of terrorism and architects of genocide.

    A resolution that points to this concern and in some way calls upon the Canadian government to be part of a more concerted international effort to ensure that crimes against humanity, in all of their various forms, are suppressed, punished, and prosecuted would perhaps be one particular example.

[Translation]

    The Chair: Prof. Manirakiza, you have the floor.

    Mr. Pacifique Manirakiza: One of the important characteristics of a crime against humanity is that we can assign responsibility for it to those in government, to organizations or to private entities, that is non-government entities.

    In the case of suicide bombings, I think the emphasis is placed on the suicide, on the fact that someone blows himself up. I think this should be seen as a weapon of war, an illegal way of waging war, like other means, such as tanks, and so on. Ultimately, the results of a suicide bombing are virtually the same as those of a helicopter bombing. It causes terror everywhere, whether it is a person who blows himself up or a bombing by a helicopter or a tank. In my opinion, suicide bombing should be seen as an illegal weapon people use—and it is important that this be understood. This is an illegal weapon, because it is prohibited under international humanitarian law.

    The Chair: Thank you. This ends our meeting with you. I would like to thank both of you, Mr. Neve and Mr. Manirakiza. This is the first time you have appeared before us, and we were very pleased that you were able to come. We hope to see you again in the near future. Thank you very much.

[English]

    I think this will be it for the day. We're going to have a vote soon, and we'll have to go.

    Thank you.

    The meeting is adjourned.