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]

Thursday, May 11, 2000

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[English]

The Acting Chair (Ms. Carolyn Bennett (St. Paul's, Lib.)): I will call the meeting to order and hope that Mr. Assadourian will arrive shortly.

The order of the day, from Monday, May 8, 2000, is that Bill C-19, An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts, be now read a second time and referred to the Standing Committee on Foreign Affairs and International Trade. Pursuant to Standing Order 75(1), clause 1 of the bill is postponed and and we will now proceed with hearings on clause 2.

Two of our witnesses are here. The Department of National Defence witnesses are coming a little later, I understand.

We have, from the Department of Foreign Affairs and International Trade, Darryl Robinson, legal officer, United Nations, human rights and humanitarian law section; and from the Department of Justice, Donald Piragoff, general counsel, criminal law policy section.

Welcome.

Mr. Darryl Robinson (Legal Officer, United Nations, Human Rights and Humanitarian Law Section, Department of Foreign Affairs and International Trade): Thank you very much. We're happy to have this opportunity to discuss Bill C-19 and, of course, the International Criminal Court, and to answer any questions you might have about them.

I'm from the Department of Foreign Affairs. With me is my colleague Donald Piragoff, from the Department of Justice. Our third colleague, Dominic McAlea, is at another briefing but will be here shortly.

All three of us were members of the Canadian delegation in the preparatory negotiations and the Rome conference and are now in follow-up negotiations that are developing some subsequent instruments needed for the International Criminal Court. Also, all three of us have worked on this legislation.

I know that Minister Axworthy would very much have liked to be able to speak with you, but of course he's at another ministerial meeting. We all appreciate the standing committee's timetable and the need to proceed expeditiously in looking at this bill.

I should also explain that in normal circumstances I would strongly prefer of course to provide a prepared speech in both languages to circulate to the members. In this case, when we received the good news that this had been referred to the committee on Monday night, I was away at a seminar for developing countries on how to implement the ICC statute. I've spent Tuesday and Wednesday coming back to be with you here today, so I hope that's all right.

We have of course distributed some lengthy binders, in English and in French, which should give the committee members more than enough reading material.

This is actually our third time before the Standing Committee on Foreign Affairs and International Trade. We appeared once before a partial committee in New York, when the committee was in New York during one of the prep coms, and then again just before the Rome conference negotiations, so we've had the opportunity to discuss the Canadian positions and the state of play in the negotiations.

Now we're here again with Bill C-19, the Crimes Against Humanity Act. This act is going to do two things. It's going to strengthen Canada's capacity to prosecute genocide, crimes against humanity, and war crimes. It's also a bill to implement the International Criminal Court statute.

We noticed that a lot of the discussion in second reading related not so much to Bill C-19 itself but of course to questions about the International Criminal Court. For that reason, we would suggest to the committee members that maybe one approach would be that I could describe the International Criminal Court generally. Then, if you wanted, we could have a discussion on any questions you might have about the ICC itself. Then we could proceed to look at Bill C-19 itself. Does that sound agreeable?

The Acting Chair (Ms. Carolyn Bennett): Yes.

Mr. Darryl Robinson: All right.

As most of you know, the idea of a permanent international criminal court has been around for quite a while, particularly since the Nuremberg and Tokyo tribunals. It wasn't until we had the atrocities in the former Yugoslavia and in Rwanda that the Security Council was compelled to create ad hoc international tribunals for the most serious crimes. This was a very important step, but we still see the need for a permanent international criminal court.

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With a tribunal, there's always the lengthy delay in establishing a tribunal and the additional costs involved in setting up a new institution every time there's an outbreak of atrocities. In addition, tribunals are subject to Security Council control, where five states have a veto, which gives rise to an appearance, at least, of selective justice.

Finally, a permanent court would serve as a more effective deterrent. By its permanence, it's a more permanent threat in the minds of potential war criminals.

So the international community still saw the need for a permanent court, which would be more efficient and effective than creating ad hoc tribunals every time. After four years of preparatory negotiations, we completed, successfully, the Rome conference, in July 1998. This was under Canadian chairmanship. There's not time right here, I think, to go into all the details of the Rome Statute, but I can just say that the statute that we have met all of the objectives that like-minded states—like Canada—sought for a strong and effective court.

But at the same time, the statute has throughout it very important checks and balances, safeguards, and safety valves to ensure that it's going to operate in a responsible manner. We're all happy to answer questions on any details about the safeguards of the statute.

The ICC is an institution to establish accountability, but it's premised on sovereignty. The two most important aspects of the court are, one, it only deals with the most serious crimes in international law, and two, it's complementary to states—states have the first opportunity to prosecute.

For the future, we need 60 ratifications for the statute to enter into force. We now have 96 signatures and 8 ratifications. Legislatures around the world are now working on implementation and ratification of the statute. Support is actually growing in a very surprising way. Already, many states that were hesitant about the court are coming around.

For example, France had hesitations during the preparatory negotiations. They are now one of the strongest supporters of the ICC. In fact, they've amended their constitution to enable them to ratify it, which should be in the next few weeks. Trinidad and Tobago was a country that abstained in the Rome conference because they had hesitations about it. They became the second country to ratify the statute. My third example would be Israel, which in fact voted against the statute. There have now been some very promising developments and promising statements indicating that they are also changing their views on it.

So what we're seeing with the ICC is this groundswell of public support, and we're seeing that governments and legislatures are responding.

Now, it's perfectly reasonable to have questions or concerns about an institution of this nature. A lot of these questions were raised in second reading. I believe that most or all of these questions can be answered through careful scrutiny of the statute—and that's what we're here to do—because these concerns were in the minds of states at the time the statute was developed.

I'm only going to describe the three main features of the Rome Statute.

The first is the crimes. The court only has jurisdiction over the most serious crimes of concern to the international community as a whole, namely, genocide, crimes against humanity, and war crimes. These crimes are carefully defined to reflect customary international law, existing law. The definition of genocide is based on the genocide convention of 1948. The definition of crimes against humanity is based on the statutes of the two tribunals created by the Security Council, and also the Nuremberg tribunal in jurisprudence. The definitions of war crimes are based on the Geneva Conventions, the addition of protocols to the Geneva Conventions, the Hague regulations, and other sources indicating customary international law. The definitions in the Rome Statute are far more precise, more detailed, than any of the preceding bodies such as the tribunals.

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The second major feature, of course, is complementarity, which I think you're all generally familiar with. The ICC allows states the first opportunity to prosecute. The ICC gets involved only where states fail to prosecute or are unwilling or unable to genuinely carry out a real proceeding. The test for that is a rigorous one out of concern for sovereignty. The ICC would only supplant a national attempt if the national authorities were essentially running a sham proceeding intended to shield the accused, or where national authorities had essentially collapsed, and even the procedures in complementarity are very rigorous. There are all sorts of requirements for consultation with states, deference to states. There are layers of screening and appeals to be sure that any decisions by the ICC will be sound.

Finally, my third feature is to note all the various safeguards in the statute to ensure that it's not unaccountable and it's not irresponsible. As some examples, there are the various qualifications and criteria for the election of the judges and officials of the ICC. There are mechanisms in the statute to ensure professional behaviour. There's a pretrial chamber, which oversees the work of the prosecutor to ensure that the prosecutor respects the statute, respects the rights of the accused, and respects the rights of states.

The statute affirms and upholds the general principles that we're familiar with here in Canada, and provisions throughout it guarantee various rights of the accused recognized internationally. The procedures ensure that this court is going to offer the highest standards of justice.

There are mechanisms in the statute for consultation with states wherever there's some sort of sensitive issue, and all of this is overseen by an assembly of states parties. The assembly of states parties meets to provide management oversight of the court, to decide its budget, to amend its instruments, and so on.

So again, we're happy to explain and discuss any aspects of the statute or the ICC generally, how any of these provisions work. I hope you'll find that the statute provides for a court that's both effective and also credible and responsible. Right now, parliamentarians around the world are working to make this ICC a reality, and I hope this committee will agree that it's worthy of Canada's support.

Thank you.

The Acting Chair (Ms. Carolyn Bennett): Thank you.

Mr. Piragoff.

Mr. Donald K. Piragoff (General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Madam Chair.

I apologize that I do not have a written statement to provide the committee in both official languages. I was notified only last night that the committee wanted a statement. Usually when I appear before committee, I'm with my minister; she gives the statements, and I answer the questions. But I did scribble together some notes, which I have provided to the translators, and if the committee wishes, I can have them translated and distributed in a couple of days.

When enacted, Bill C-19 would achieve three goals. First, it would implement in Canada the Rome Statute of the International Criminal Court. Second, it would strengthen the foundation for criminal prosecutions in Canada. And third, it would reinforce Canada's current war crimes program.

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As Mr. Robinson indicated, Canada is among the first countries to introduce comprehensive implementation legislation, after having played a lead role in the negotiations and establishment of the Rome Statute of the International Criminal Court.

The involvement of Canada in the creation of the International Criminal Court and the proposed enactment in our own country of the Crimes Against Humanity Act both reflect the federal government's resolve to have at its disposal all possible remedies to ensure that Canada is not a safe haven for criminals who are involved in the most heinous crimes, whether in Canada or abroad.

The bill achieves these goals with two methods. First, in accordance with the definitions and other provisions contained in the ICC statute, the bill creates new crimes of genocide, crimes against humanity, and war crimes if committed in Canada. These crimes may be prosecuted in Canada, or the alleged offender may be surrender to the ICC for trial.

In accordance with the ICC statute and given that some aspects of the ICC statute reflect modern developments that cannot be applied backward in time, these crimes apply only prospectively to conduct committed in the future. These new provisions in the bill would ensure that Canada is able to implement its obligations under the ICC statute.

In addition to implementing the ICC statute, the second initiative is that the bill repeals the existing war crimes provisions contained in the Criminal Code and replaces them in this act with new crimes of genocide, crimes against humanity, and war crimes. In accord with the policy of Parliament in 1987, these crimes apply both prospectively and retrospectively to conduct committed outside Canada.

In order to avoid retroactive application of substantive definitions of crime, these offences are defined according to the state of international law, whether in international conventions or customary international law, that exists at the time of the commission of the offence. These provisions are intended to address a number of problems resulting from judicial interpretations of the existing Criminal Code provisions and are in accord with Parliament's war crimes policy of 1987 that Canada will not be a safe haven for war criminals from abroad.

The bill also creates offences of breach of responsibility by military commanders and civilian superiors. Their failure to exercise control over persons under their authority, which results in the subordinates committing crimes of genocide, crimes against humanity, or war crimes, could entail the superiors' criminal responsibility if they fail to take measures to prevent or repress the crime or to submit the matter to the competent authorities for investigation.

The proposed Crimes Against Humanity Act represents a balance between Canadian values of justice, fairness, and the rule of law and the need to prosecute persons who commit genocide, crimes against humanity, and war crimes. It provides specifically for the protection of the rights of the accused, while at the same time adjusting to the reality of international modern crime.

Accused persons would be entitled to all applicable safeguards and defences under international and Canadian law, save for a few exceptions that reflect international law.

For example, the defence of superior orders would be in accord with that provided in the Rome Statute. Furthermore, this defence, which would apply only as a defence to war crimes, cannot be based on a belief that the order was lawful if the accused's belief was based on information about an identifiable group of persons who encouraged the commission of inhumane acts or missions against the group.

For persons charged with genocide, crimes against humanity, and war crimes, it would not be a defence that an offence was committed in obedience to the law in force at the time and in the place of its commission.

In addition, new possession and laundering of the proceeds of crime offences would be created in this bill. The bill would established mechanisms to enforce orders of the ICC for restraint and forfeiture of assets. Moneys obtained would be paid into a crimes against humanity fund that is also established by the bill. The Attorney General of Canada would have the capacity to distribute these moneys to the victims of these crimes.

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The bill also proposes changes to Canadian extradition and mutual legal assistance legislation. These modifications would ensure compliance with International Criminal Court obligations. Building on recent amendments to the Extradition Act last year in 1999, the new provisions in this bill would allow the Minister of Justice to surrender to the International Criminal Court persons who are the subject of a request for surrender by the ICC.

The bill would also affirm that any immunities otherwise existing under Canadian law would not bar surrender to the International Criminal Court or to any international criminal tribunal established by resolution of the Security Council of the United Nations. Also, normal grounds of refusal for extradition would not be applicable to surrender to the International Criminal Court.

Precise provisions have also been included in the bill in accord with the Rome Statute to protect the administration of justice of the International Criminal Court and to ensure the safety of judges, officials, and witnesses of the ICC.

The International Criminal Court is designed to complement, not replace, national courts, and will therefore exercise jurisdiction where national courts are unable or unwilling to bring transgressors to justice. Therefore, the International Criminal Court will not supplant Canadian courts. Canadian authorities will still have the first opportunity to carry out investigations and prosecutions, and generally the ICC will not be able to intervene when genuine investigations or proceedings have been undertaken in Canada.

In situations where the ICC asserts jurisdiction—for example, where another state is unable or unwilling to prosecute—the bill ensures that Canada will be able to assist the International Criminal Court in its investigations in much the same way as it currently assists other states with normal criminal investigations, even in situations where there is no involvement of the International Criminal Court. And this refers to the second initiative of the bill.

We are now in a better position than before with this bill to prosecute the most serious criminals and abusers of human rights and make sure they do not escape justice. This bill will resolve a number of problems that developed from judicial interpretation of the current war crimes provisions contained in the Criminal Code.

In every case, however, the government will assess the situation and will use the remedy that is most effective and appropriate for each particular case, whether it be criminal prosecution, surrender to the International Criminal Court, extradition to another state, revocation of citizenship, or deportation.

The International Criminal Court and this bill are part of a framework that is essential to stop impunity and to ensure that people responsible for the worst crimes are held accountable for their actions. These measures include domestic prosecution for these crimes, greater use of universal jurisdiction, and better international cooperation in suppressing crimes against international humanitarian law. This bill furthers an international framework of accountability, deterrents, and justice for victims.

Thank you, Madam Chair.

The Acting Chair (Ms. Carolyn Bennett): Thank you very much.

We'll begin the questioning, and then when the lieutenant-colonel arrives, we'll let him speak so that further questions can be asked of all three witnesses, if that's all right.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Canadian Alliance): Sure.

The Chair: Go ahead.

Mr. John Reynolds: How many of our G-8 partners have ratified so far? Where do they stand?

Mr. Darryl Robinson: I think all of the G-8, except for the United States and Japan, have signed at this time. In terms of ratifications, ratification obviously is a much slower process, particularly with something like the International Criminal Court. But France should be ratifying shortly, and the United Kingdom will be publishing its implementing legislation soon. So we anticipate, in the end—

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Italy.

Mr. Darryl Robinson: Oh yes, thank you. Yes, Italy has already ratified. Germany is deep into ratification.

Eventually we expect to have all the G-8, with the possible exception of course of the United States, but we're still working on them.

Mr. John Reynolds: Where is the United States at? Why are they being difficult?

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Mr. Darryl Robinson: The United States has always been supportive of the ICC in principle, but they've had a number of reservations about the possibility that an ICC might ever, under any conceivable circumstances, have jurisdiction over a U.S. soldier.

The U.S. position in Rome was that there must be no theoretical possibility of an American soldier appearing before the ICC. Of course, the problem is if we design a statute so that for one country there's no theoretical possibility that country would ever be before the ICC, then it would follow that there's no theoretical possibility of any country ever being before the ICC.

What we've tried to do is make a statute that's going to give states that are generally behaving legitimately as much comfort as possible. The absolute biggest comfort of all is the complementarity regime. The ICC will not intervene if the state is doing its own investigation.

To look at, for example, a possible American situation, suppose an American soldier was accused of committing a particular war crime. All the United States has to do is carry out a credible, real, genuine investigation. If the U.S. concluded that there was no crime and closed the case, the ICC would defer.

So in terms of where things stand with the United States, we're working now in this preparatory commission. The preparatory commission, by the way, is making these subsidiary instruments necessary for the court to work. We're still working with the United States. We're trying to find some way to address any remaining legitimate concerns they may have, provided they do not undermine the statute or the ability of the court to do what it was created to do.

In fact, we've made a lot of headway. A number of the various concerns the United States has raised we've managed to address in the prep com. But there still remains the one of no theoretical possibility. So coming into the June prep com, the United States does have a proposal. We'll have to see how it goes. I think everybody recognizes the great value of having the United States on board. Every reasonable effort will be made to try to accommodate them. U.S. support will make the court much stronger on its feet.

Mr. John Reynolds: That's fine. Just to follow up on that question, if someone in Canada, one of our soldiers, were investigated in Canada, and say in one case we didn't find enough evidence to charge him, and in another case we did, but he was acquitted, is there any conceivable way the ICC can say, well, we don't think that investigation was good enough, and we'd like to try him in international court? Is that a possibility?

Mr. Darryl Robinson: I think the answer to the question is that it's in the statute. I think it's article 17. Article 17 explains the complementarity regime. If members want, they can check tab G in their Crimes Against Humanity Act binders. Tab G is the Rome Statute, which we've included. On page 17 is article 17, which has the complementarity regime.

In the scenario you're putting forward then, the Canadian soldier is accused of crimes.... The court's going to defer. Notice article 17, subparagraph 1(b). That means that Canada can carry out an investigation and then decide not to proceed. Or we could carry out an investigation and then acquit. That would fall under article 17, subparagraph 1(c). In either of those cases, the ICC has to defer to our procedure unless they meet this very difficult threshold of basically saying that Canada was unwilling or unable to carry out a genuine process.

Even that might sound vague to you, but then we have paragraphs 2 and 3 of article 17, which go on to say what exactly what we mean by “unable”, “unwilling”, and “genuine”. What do these things mean? That's where you see this rather stringent test of it being for the purpose of shielding the person concerned. That's the hurdle the ICC would face in attempting to impugn any Canadian process.

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Not only is that the hurdle, substantively, that the court has to get through, but procedurally there are so many hurdles. The ICC would first have to consult with Canada. We would explain why what we did was acceptable.

Article 18, which has the procedures, again essentially requires the prosecutor to back down unless there's a very good reason to think Canada was basically conducting a deliberate sham of a process. The prosecutor would have to be convinced that was the case. The prosecutor would have to convince a pretrial chamber of three judges of different nationalities that this was the case. Canada could then appeal again to an appeals chamber, and that appeals chamber would have to think it was the case. Then you would get into the situation where if the prosecutor thought we ran a sham, the pretrial chamber thought it was a sham, and the appeals chamber thought it was a sham, you might begin to wonder if there were something seriously wrong with our process.

I guess my answer is yes, there is a theoretical possibility that Canada could be found to violate this, but only if we were in fact running a sham investigation, which I don't think any of us would support here.

Mr. John Reynolds: Okay.

[Translation]

Mr. Daniel Turp: I am happy to be back at the Standing Committee on Foreign Affairs and International Trade. When I find myself in the company of Mr. Robinson and Mr. Piragoff again, it brings back some good memories. You had appeared on June 9, 1998, I believe a few weeks before the final session of the Rome Conference. As I did in the House of Commons last week, I would like to congratulate you on what you accomplished in Rome before and since that time. I would ask that you convey, on my own behalf and on behalf of the Bloc Québécois also, our appreciation to Philippe Kirsch for the remarkable work he did as chair of the preparatory conference. It is something we should be proud of.

I have gone through the bill, but before making some remarks and asking some questions, I would like to remind you of an important issue that I continue to raise in the House and that I will raise here again: it is the notion that parliamentarians should be involved in the treaty-making process. There were a few hours of hearings on June 9, before this treaty was adopted by the Conference and signed, but it is essential that Parliament be involved in the treaty-making process to a greater degree than it is currently.

I realize that the treaty can be discussed when the bill is being studied, but in actual fact, parliamentarians had very little opportunity to speak to the draft treaty itself, which is something they should be able to do in the case of such major treaties. I also realize that this bill is being studied before the treaty is ratified, which is really as it should be, and which therefore allows for discussion of the bill. However, it is only the bill that is being discussed and we could never have an influence at this stage on the treaty's content, if we disagreed with it.

My comments will perhaps apply to what comes next, because currently, the preparatory commission, as you said a few minutes ago, is developing the key elements of the subsidiary legislation: evidential and procedural rules and a document on the elements of crimes, which are key elements that complement the treaty and should be studied by Parliament or a parliamentary committee such as this one. Looking toward the future, then, I hope that the work of the preparatory commission, as well as its findings, can be reviewed and examined here, so that parliamentarians can have an influence in these matters.

I have a few questions I would like to ask. The first has to do with aggression. There is a provision stating that aggression is a crime that may, at some point, be prosecuted before the ICC. The definition is not given. It is postponed until later, when the treaty may be amended. Could you tell us where the discussions and debate are with regard to the idea of aggression being a crime that might be prosecuted before the International Criminal Court?

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My second question concerns clause 7 of the bill. Mr. Piragoff, on consulting a few people, I learned that clause 7 would not necessarily pass a Charter test. Have you examined this possibility? Could you tell us your opinion on the constitutionality of clause 7 with regard to the Canadian Charter of Rights and Freedoms?

With regard to clause 8, I would like to raise a question that I raised last week in the House, during my speech. Clause 8, sub- clause (b), provides for universal jurisdiction, which is fully desirable and justified. Customary international law allows for it, and I believe that the Rome Statute does not prevent the exercise of universal jurisdiction, but it is a universal jurisdiction of limited scope, because the sub-clause specifies that the person who may be prosecuted, and over whom Canada could exercise jurisdiction, must be present in Canada. This means that Canada is already giving up prosecuting a person and exercising its universal jurisdiction if that person is not present on its territory.

I would like you to indicate whether or not we can go further, whether any States have gone further in terms of universal jurisdiction. Spain, Switzerland and Belgium come to mind. I would also like you to tell us why you don't want to go as far.

My last question pertains to the consequential amendments. Because we currently have an outstanding bill on immigration that is before Parliament, and not only a bill on citizenship, I am under the impression that we need amendments or another provision. I am not referring to consequential amendments, but to conditional ones with respect to the Immigration Act to account for the fact that we will probably soon be passing new immigration legislation.

Those are my questions. I would like to make another comment afterward, if I may.

[English]

Mr. Darryl Robinson: Thanks very much. There are several very good questions there.

On your questions about consultation, ratification, signature and so on, I think you've made some good points. I hope in this hearing here, for example, we can not just look at the bill, but also have the opportunity to discuss any questions about the Rome Statute itself, because I think that's a good point.

With respect to signature, I guess you've raised a question on the procedures we follow. I can say that in signing the statute, the government followed the current proper procedures for signature. You've raised a larger question of whether those procedures should be different. We'll have to discuss that in the context of your bill.

Then with respect to the prep com, it's a good question that I'll certainly be happy to take back to the Department of Foreign Affairs to explore and discuss whether it seems like a useful idea.

On the questions about the bill, my colleague Donald will be happy to respond.

Mr. Donald Piragoff: Thank you, Madam Chair.

Mr. Turp's first question was on clause 7 of the bill, concerning the new offence of breach of responsibility by military commanders. I believe the question was on whether there are any constitutional problems with respect to this clause.

It's a two-part answer. Clause 7 derives from article 28 of the Rome Statute. The Rome Statute provides that the responsibility of commanders, both military and civilian, is a mode of commission. It is very similar to the same type of responsibility as that of someone who aids or abets the principal of a crime. In other words, it's secondary liability.

Secondly, the Rome Statute provides that one of the bases of liability of a commander is negligence. The commander should have known whether the forces under his or her command were committing or were about to commit such crimes. The new phrase “should have known” might indicate just an ordinary basic civil concept of negligence.

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Those two aspects of the treaty, if they were to be implemented directly into Canadian law, could run afoul of the Canadian Charter of Rights and Freedoms for two reasons. One, there is constitutional jurisprudence by the Supreme Court of Canada, particularly in a case called Vaillancourt, which held that constructive liability was unconstitutional. In other words, because of the stigma of certain crimes such as murder—and of course these crimes are as severe, if not more severe, than murder—people have to be convicted for what they actually did, not on what is attributable to the acts of others.

Therefore, rather than creating a mode of participation, as their own statute did, the bill proposes to create a separate offence of failure to exercise proper control. Therefore, the failure of a military commander is not a mode of participation to somebody else's crime, but rather we have created a separate crime looking at exactly what the failure of the military commander is; what is his or her culpability, addressing culpability on that basis.

The second problem I mentioned, with respect to taking article 28 directly into Canadian law, is the issue of negligence. The Rome Statute might imply the more civilian standard of “should have known”. Our interpretation is that since the Rome Statute is dealing with a criminal trial, the intent of article 28 is to set a criminal standard.

We have made that clear in our bill in paragraph 7(1)(b) by saying “the military commander knows, or is criminally negligent in failing to know” that subordinates under his or her command were about to commit or were committing offences. Referring to the phrase “criminally negligent” picks up language in the Criminal Code that makes it clear we are talking about a criminal negligence standard.

Given those two changes in the bill from the scheme in the ICC statute, we believe clause 7 is consistent with the Canadian Charter of Rights and Freedoms. It does not violate it because it specifically addresses the concerns and follows Canadian jurisprudence in rectifying any possible problems we could have if we tried to implement article 28 directly.

That's one of the benefits of our system of ratification. We have to actually pass legislation if there are nuances or problems with respect to domestic law or constitutional law. Because we create new legislation to ratify, we're able to rectify those kinds of problems when we come around to ratifying a treaty. I think that refers, in part, to the question Mr. Robinson was answering.

The second question was on paragraph 8(b) of the bill, which provides that Canada may exercise jurisdiction if:

at the time the offence is alleged to have been committed, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the offence on the basis of the person's presence in Canada and, after that time, the person is present in Canada.

I believe the question was, why do we require that the person be present in Canada before we assert universal jurisdiction?

Paragraph 8(b) reflects the current provision in the Criminal Code in section 7, which was enacted by Parliament in 1987. It also reflects Canada's and Parliament's concept of universal jurisdiction in other sections of the Criminal Code where we have asserted universal jurisdiction.

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A number of international treaties, such as treaties against hijacking of aircraft or terrorist attacks on ships and other terrorist conventions, contain similar provisions. They all require that universal jurisdiction be exercised if the person is present on the territory. In other words, it's a custodial jurisdiction.

During the Rome conference, custodial jurisdiction was proposed as a basis for jurisdiction—that is, a country could have jurisdiction if the person were in its custody. That unfortunately was not accepted by all states, and therefore it is not in the Rome Statute.

So even in the course of the negotiations in Rome, the concept of universal jurisdiction being debated was custodial, not the basis of jurisdiction whereby a country could unilaterally assert jurisdiction over any offence anywhere in the world, whether or not it had any kind of contact with the offence or with the offender.

If one looks at clause 8 of the bill, in both paragraphs 8(a) and 8(b) one can see Canada is actually asserting quite a broad basis of jurisdiction. In paragraph 8(a), for example, we are asserting jurisdiction over any crimes committed by or against Canadian citizens. That is, if the victim is a Canadian citizen, we will exercise jurisdiction, and if the person is a Canadian citizen, we will exercise jurisdiction over his or her crimes. Even if they were employed by Canada in a civilian or military capacity, we will exert jurisdiction over them. We will also exert jurisdiction over persons engaged in armed conflict against Canada or allies of them against Canada.

So in the end result, if one looks at the fact that most of these situations result in armed conflict, and if Canada is involved in an armed conflict or a Canadian citizen is a victim of one of these atrocities, we will be able to assert jurisdiction. Of course the greatest basis for jurisdiction, or the greatest interest for Canada, is if Canadians are actually victims of war crimes, crimes against humanity, or genocide, and the bill specifically deals with those situations in paragraph 8(a).

Paragraph 8(b), which is on universal jurisdiction, really becomes a residual basis of jurisdiction once one looks at the breadth of what is in paragraph 8(a). As I indicated, there is a theory of universal jurisdiction that countries should assert their jurisdiction over any crime anywhere in the world, because of its heinousness, irrespective of what type of contact the country may have with the crime or the offender.

That is not the approach Canada has taken in past legislation. It was not even the approach argued in Rome. In fact, a much more restrictive approach was argued in Rome, which was the custodial principle. It was not accepted for the ICC. However, Canada has consistently asserted that custodial universal jurisdiction principle for about twenty years now, and our government's policy is to continue to assert the universal jurisdiction based on presence or custody of the person in our territory, despite the fact that it did not meet universal acceptance for the purposes of the ICC. But it is a recognized international basis of jurisdiction.

The third question was, is this in accord with what other countries do? I can't speak for what all countries do, but I know in the recent Pinochet case, for example, to a large extent the jurisdictional basis of Spain and other countries that were asserting jurisdiction was nationality of the victims. Spanish nationals had been allegedly tortured and killed by General Pinochet or pursuant to General Pinochet's orders, and Spain was basing its jurisdiction not on universal jurisdiction but on the nationality of the victims, who were Spanish nationals.

I think that answers all the questions Mr. Turp presented.

Thank you.

The Acting Chair (Ms. Carolyn Bennett): We should go to Mr. Assadourian, then we'll hear from the lieutenant-colonel, and then we'll go back around.

• 1030

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

This is a very divisive issue. I've received many presentations from the Canadian Ukrainian community, who are very much concerned with this issue. Also I've received lots of expressions of concern from Canadian Armenians, which is just the opposite concern: it doesn't go far enough. Some say it goes too far; some say it doesn't go far enough.

In the case of the Ukrainians, they say “Well, why do we have to go deep into history, World War II or whatever?” In the case of the Armenians, they say “Why don't we go to the first of the century?” So that's where my concern comes from.

Basically we all agree with the concept that we should punish those who commit crimes against humanity. But I have some questions here I'd like to have you answer.

First, on time limitations, as far as I know, genocide doesn't have time limitations by the UN definition. But about crimes against humanity and war crimes, I don't know. Maybe you can answer that question.

Second, what is the effective date of this? How far back can we go in history? Can we go to the beginning of World War I or the end of it, or the time of the Nuremberg trial in 1948 or whenever that date was?

The third question I have is, you say war crimes, but what happens when war is not declared? The Vietnam War went on for many decades. It was not declared war. Also, what about civil wars? In Lebanon, for example, there were 15 years of war and 100,000 people died, much more than any other war that happened in the past. Does that also fall into this category of crimes against humanity or war crimes or genocide?

My other question is this. Is what's happening in Sierra Leone one of the issues you can address with this International Criminal Court? Or is it a totally different situation that has to have a different body in the world to address this concern, what's happening today and what happened last week or last year, whatever the case may be?

My other question has to do with, as a follow-up to my colleague from Reform, the jurisdiction of the American government over their soldiers. I have the luxury of being a bit older than most of the people here, fifty-plus. During the Vietnam War there was a soldier called Lieutenant Calley. He was charged with the massacre of 300 Vietnamese in My Lai Village, he was found guilty of the massacre, and he was sentenced. The day after, the President—you'll recall he said he wasn't a crook—forgave him, and he got a total, absolute discharge.

What happens in that case, if a government, the U.S. government in this case, finds a person guilty of crimes against humanity or massacre, and the day after the President of that particular country, in this case the United States—it could happen in Rwanda or anywhere else—finds it's a forgive-and-forget situation because it happened somewhere else, or whatever their explanation may be?

Also, for the last six and a half or seven years I have been a member of Parliament, and I've always had a problem with especially your—you legal officers of Foreign Affairs—definition of genocide for the Armenians. Last year on June 10 I asked a question to Mr. Lloyd Axworthy. He described in his answer what happened in 1915 against the Armenians as the intent to destroy an ethnic minority. Here in your definition, you use exactly the same words, “intent to destroy, in whole or in part, an identifiable group”.

Tell me, what happened in 1915 to the Armenians, is that genocide according to you, or is it just an incident or tragedy in history?

Thank you very much.

Mr. Darryl Robinson: You've asked lots of tough and good questions. Thanks.

The first question was with respect to time limitations, statutes of limitations. Does the clock ever run out on a prosecution? As you said, for genocide there is no time limitation. You asked about crimes against humanity and war crimes. For those crimes, in fact it's the same principle. There is in fact a convention called the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which specifically asserts that. In addition, that point has been reaffirmed not just in that convention but also in the ICC statute again, and so on and so forth. So that's the answer to the first question.

The second question was on the date. How far back in time can we go? The Crimes Against Humanity Act allows Canada to prosecute offences retrospectively in accordance with whatever customary or conventional international law existed at that time and in that place.

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Mr. Sarkis Assadourian: What do you mean by “at that time and in that place”?

Mr. Darryl Robinson: That means, for example, that if you wanted to charge somebody with a grave breach of the Geneva Conventions, that was established in 1949, so grave breaches of the Geneva Conventions can be applied from 1949. But you couldn't apply that to something in 1925.

But theoretically you could do a prosecution even before World War II. There would be two difficulties: one is identifying what international law was at that time, because this is an emerging area of international law, this idea of crimes where individuals are accountable. But it can be done. The second, though, is a practical one of your evidence, your witnesses, and so on and so forth.

I'll just stick with the legal answer, and maybe Don would want to talk about the practical side. The Crimes Against Humanity Act allows retrospective prosecutions as far back as you can uphold in customary law. That is, I think, all the answer I can give right now.

Your third question was, what about an undeclared war? You're right, most armed conflicts today don't have the formality of a declaration of war. That's why international humanitarian law no longer hinges on a formality such as a declaration of war. IHL is activated by the commencement of armed conflict. They've moved away from the word “war” because it also connotes this formality of a declaration. You just have to look at the situation objectively. Was Vietnam an armed conflict? I'd say yes. That's how that's done.

For what's happening right now in Sierra Leone, which is your fourth question, and whether the ICC will be able to deal with that, unfortunately the ICC only has prospective jurisdiction. It can only deal with crimes that start from the moment it comes into being. That was a political compromise. Basically, it was agreed that this is going to be a court for the century we're now in, not for the previous century.

There are other ways of dealing with crimes in Sierra Leone, and Canada is exploring those—for example, the creation of another Security Council tribunal or some mechanism like that.

But this just illustrates exactly why we need an International Criminal Court, because every time something like Sierra Leone blows up, we have to then scratch our heads and start from scratch to try to devise some way of dealing with it. If we had a permanent international court up and running that would shrink in size when there was nothing happening and grow in size when there was something like Sierra Leone, then it would just be so much more effective and efficient. If we had an ICC, the ICC could be in Sierra Leone right now investigating, instead of waiting for five years, which it will take with the tribunal, and having all sorts of stale evidence.

Your fifth question is probably the hardest: What happens where you have a prosecution and then it's followed up by a pardon by the state? Can the ICC take jurisdiction? In fact, that was discussed at the Rome conference, and at that time there was a hesitation about giving the ICC the ability to look at pardons by an executive. So the ICC can only look at the quality of the judicial process. If the person was tried in a legitimate judicial process, then the principle of autrefois acquit or autrefois convict applies and protects them even if they're subsequently pardoned. Arguably, it's a gap in the ability of the ICC to act. But you can see that the principle of it is that they're protected by the principle of double jeopardy. They can't be tried a second time if they've had a legitimate trial.

Now, there is one way the ICC might be able to do it. If you had a pardon but the pardon was planned all along such that the trial itself was actually a sham, then you could try to get the jurisdiction. But if you had a legitimate trial followed by a pardon, then unfortunately the ICC and Canada would be unable to respond.

Your sixth question was about genocide and the Armenian situation. I can only tell you that the Government of Canada, to my knowledge, has not stated a view that that was genocide.

• 1040

Mr. Daniel Turp: It was a tragedy.

Mr. Darryl Robinson: Yes, and I'm afraid that's as far as I can go.

Mr. Sarkis Assadourian: You're the legal officer. You're supposed to express your point of view. Why don't you tell me what the situation was legally as far as you're concerned? Was that genocide or just a tragedy?

An hon. member: He's going to get in trouble here.

Mr. Sarkis Assadourian: I'm getting in trouble too.

Mr. Darryl Robinson: Actually, I'm not here to tell you my views. I'm here to tell you my government's views.

Mr. Sarkis Assadourian: So what is the government's view?

Mr. Darryl Robinson: To my knowledge, the government has never specifically stated that the events in Armenia were genocide.

Mr. Sarkis Assadourian: According to Bill C-19, genocide means “with intent to destroy...an identifiable group”. So was that genocide?

Mr. Darryl Robinson: The genocide convention was created in 1948.

Mr. Sarkis Assadourian: I understand that. I don't want to get into a legal argument. I want to go to the definition here. What you told us here in Bill C-19 on page 5 is “intent to destroy”. Those same words were used by the Minister of Foreign Affairs on June 10, 1999. Based on what you're telling us in this bill and the answer given to us by the minister, is that genocide or not?

Mr. Darryl Robinson: You're talking about a hypothetical scenario, where the genocide convention was passed in 1900.

Mr. Sarkis Assadourian: Yes. It's irrelevant.

Mr. Daniel Turp: Convince your party that your party recognizes that it's genocide. Come on, convince your party, Sarkis.

Mr. Sarkis Assadourian: Give me an answer.

Mr. Darryl Robinson: My answer is that, to my knowledge, the Government of Canada has never acknowledged this event as genocide.

Mr. Sarkis Assadourian: But I just gave you the answer—

The Acting Chair (Ms. Carolyn Bennett): Let's have the lieutenant-colonel—

Mr. Sarkis Assadourian: I've waited six and a half years for this.

The Acting Chair (Ms. Carolyn Bennett): I don't think you've been waiting. I think you've been asking the same question every day.

Mr. Daniel Turp: With the same answer.

Some hon. members: Oh, oh!

The Acting Chair (Ms. Carolyn Bennett): Lieutenant-Colonel, we will hear from you, and then we'll have another round of questions.

Lieutenant-Colonel Dominic McAlea (Director of Law/International, Office of the Judge Advocate General, Department of National Defence): Thank you, Madam Chair. I apologize for arriving late. I understand there's an expectation that I was going to give an opening statement. It was not my intention to give one, unless you want one. I'd like to make myself available to answer any questions the committee has with regard to the military aspects of both the statute and the bill.

The Acting Chair (Ms. Carolyn Bennett): We'll go back to Mr. Reynolds.

Mr. John Reynolds: Mr. Piragoff, you said that this bill will strengthen prosecutions in Canada. Specifically, how will the bill strengthen them?

Mr. Donald Piragoff: The bill resolves a number of difficulties that resulted from judicial interpretations of the existing Criminal Code provisions, particularly in the Finta case. The policy of Parliament in 1987 was that under what was called the made-in-Canada policy, people would be prosecuted in Canada according to Canadian law for whatever crimes they may have committed in the past outside of Canada. They would be given the guarantees of Canadian law.

The way Parliament achieved that was to say, we will basically do a dual criminality test. The court will look at the conduct that occurred outside of Canada and determine whether or not it violated international law. If it violated international law, the court would then look at the conduct through the eyes of the Canadian Criminal Code and say, does that conduct violate something in the Criminal Code at the time the offence was committed? We would prosecute the Canadian offence. For example, if there were a deportation situation, we would prosecute the Canadian equivalent of deportation, which is unlawful confinement. That was basically how the Finta case proceeded.

The Supreme Court of Canada said that might have been the intent of Parliament, but because of the stigma associated with war crimes and crimes against humanity, a person was really being prosecuted for a war crime, for deporting people, not simply the Canadian offence of unlawful confinement. Therefore, the jury would have to determine both the Canadian offence and the international offence. In other words, it wasn't for the judge to determine whether or not international law had been violated as a jurisdictional issue, but the jury would have to determine two sets of facts under two sets of laws, which made it very complex.

This particular bill resolves that problem because it doesn't require proving both an international offence and a Canadian offence. It now creates Canadian offences that incorporate, by reference, international law. So we would be prosecuting a Canadian offence, but the exact definition of that Canadian offence would be the international offence. There would only be one set of laws being put forward to a jury, which makes it a lot easier.

• 1045

Secondly, it has now been proposed that the defence of superior orders be amended in accord with the Rome Statute, which is the most recent pronouncement of international law concerning superior orders. That makes it clear that superior orders is not available as a defence in crimes of genocide or crimes against humanity because those types of crimes are always manifestly unlawful.

Superior orders may still be a defence, however, in cases of war crimes, primarily because the whole notion of superior orders is part of the military command structure. In other words, there's obligation to obey orders. On the other hand, there are certain obligations that if the order is manifestly unlawful, a soldier does not have to obey the order. Lieutenant-Colonel McAlea can deal with that in more detail if you like.

In that particularity, where it is available for war crimes, the bill addresses another concern, which was raised in the Finta case. That is the possibility that an accused person could raise propaganda or hate propaganda as being the basis for his or her belief that the orders that he or she was following were lawful. The bill particularly provides that a belief based on information about an identifiable group that is likely or tends to justify inhumane acts against that group cannot be a reasonable basis for founding the belief.

So those are a couple of ways that this bill makes prosecution easier than it is under the existing Criminal Code provisions.

Mr. John Reynolds: Thank you.

The Acting Chair (Ms. Carolyn Bennett): Mr. Turp.

[Translation]

Mr. Daniel Turp: First of all, I did not receive an answer to my question about aggression and the conditional amendment to the Immigration Act. I would, therefore, appreciate your taking note of these two questions.

I will now ask my first supplementary question. If I understand correctly, sub-paragraph 8(a)(iii) of this bill will enable Canada to prosecute General Pinochet. It could be used as a basis for requesting the extradition of General Pinochet should it come out, as someone claimed in recent months, that this individual was the victim of a crime against humanity that the General allegedly committed. Am I correct in stating that General Pinochet could be tried in Canada under this new provision of the bill on crimes against humanity?

My second question deals with State immunity. This bill contains amendments to prevent a head of State, a head of government or an individual acting in an official capacity from invoking court immunity. Once this bill becomes law, could Canada, for example, arrest in Canada a foreign head of State who had come here in order to attend a meeting of the Agence de la Francophonie, the Commonwealth or other organizations or to participate in international conferences?

During the latest Sommet de la Francophonie, requests had been made to arrest the current president of Burundi for crimes against humanity that he allegedly had committed. I would imagine that, at that time, we could have said that this was not possible because the State Immunity Act or other federal legislation would prevent this type of arrest. Would this bill enable us to prosecute someone for a crime against humanity if the individual were present here in the country for an international conference? That is my second question.

• 1050

My third question is a little bit more technical. In preparing for today's committee meeting, I tried to find out what other States were in the process of adopting legislation to implement the Statute of Rome and I would like your assistance. Are Australia and the United Kingdom currently in the process of adopting implementation legislation? Are there any other examples that could be useful to us as we prepare our work and questions?

As for my last question, I stated in the House last week that I find the abbreviated title of the bill that you are proposing does not quite reflect the content of that bill. “Act respecting crimes against humanity” is not a title that includes war crimes. I think that a title that may be a bit longer but more appropriate would be “Act respecting crimes against humanity and war crimes”. The crime of genocide is included in crimes against humanity, but we cannot claim that war crimes are included in crimes against humanity. In order to be more rigorous, as you must be, you should lengthen this abbreviated title.

The last thing I want to say is more of a comment. Many people have said that, despite the amendments to the Criminal Code and perhaps because of the Finta case, there are not many lawsuits. I believe that the people working for Mr. Piragoff's department let it be known that there were 400 war criminals in Canada, who are coming from Central America, Africa, the former Yugoslavia and that there were still 91 files on crimes that were allegedly committed during the Second World War.

Are there any lawsuits now? Will there be any political will to try all these individuals who are suspects, who live in the country and who, with this legislation, will now be easier to prosecute?

[English]

Mr. Darryl Robinson: My colleague Don and I will divide up the answers to your questions.

On the first one, actually I have to ask for a clarification. Your question was with respect to assault?

Mr. Daniel Turp: No, aggression.

Mr. Darryl Robinson: Oh, aggression.

Mr. Daniel Turp: The meaning of aggression. How was it translated? Was it assault?

Mr. Darryl Robinson: Yes. I was puzzled.

Mr. Daniel Turp: Well, it was aggression.

Mr. Darryl Robinson: Sorry. I should have listened with both ears. That's fine. It's an understandable translation. Aggression is assault, right?

You're asking how it's dealt with in the statute?

Mr. Daniel Turp: How is it being dealt with now or in the future?

Mr. Darryl Robinson: All right.

As you probably know, there was very strong insistence by the great majority of states that this ICC has to deal with the crime of aggression. There are two problems. First, states could not agree on what aggression was. So there's no agreement, first of all, on how to define it. Secondly, there's no agreement on what the role of the Security Council ought to be. For example, under the UN charter it's indicated that the Security Council has the primary responsibility to determine if there's been a breach of the peace or aggression.

On those issues, we're so divisive that it looked pretty clear in Rome that we were never going to get an agreement on aggression. The bureau that was in charge of making these negotiations go forward said that if we couldn't agree on aggression, we should just drop it out of the statute. The reaction to that was very intense. The great majority said that we at least want a place holder that aggression is going to go in someday.

So article 5 of the statute has the crime of aggression, but then it says the court doesn't have jurisdiction over aggression until such time as we agree on a definition and, perhaps more difficult, the preconditions for the exercise of aggression, namely what the role of the Security Council is going to be. So basically, in the Rome Statute, aggression is there purely as a place holder.

• 1055

Now what's happening in the context of this preparatory commission is that aggression is being discussed. There's a working group on the subject. But I can't report that there's been a lot of progress there. It's still the same problem, essentially: what is the role of the Security Council going to be?

For some countries, having a Security Council role is unacceptable because it's a political body. For other countries, having a Security Council role is absolutely mandatory because the Security Council has that right under the UN charter and the UN charter is paramount to all others.

So in those negotiations, unfortunately, it's not obvious when, if ever, there's going to be a breakthrough. In any event, the earliest time that aggression could be put in the statute is, yes, seven years after entry into force. The statute has a rule about amendments.

So I think that's the answer to the aggression situation question.

In terms of your question about the immunity of visitors, yes, if, once the Crimes Against Humanity Act is in force, we received a request for surrender from the ICC or from a Security Council tribunal, this bill contains an amendment to the Extradition Act that basically indicates that immunities are not going to bar cooperation. So that means we would have the power to arrest the person and send them to the court.

There is something to note, though, which is that the Rome Statute contains an article 98, and article 98 tells the ICC not to put a state, such as Canada, in a position where it would have a conflicting obligation. What I mean by that is that it's unclear today what immunities exist now in international law with respect to these crimes. In what situations is there still an immunity? What are the immunities of a current head of state or a serving diplomat? Is it different if they're from a state party or a non-state party to the ICC? There are all sorts of questions in the air.

Basically, the ICC statute tells the court to respect state or diplomatic immunities to the extent that they still exist in international law. So the court cannot put a country in a position of basically being forced to either breach their obligation to cooperate with the ICC or, alternatively, breach their obligation to respect some other person's immunities. So there is that safeguard within the ICC itself. The International Criminal Court will give consideration to whether there is an immunity that ought to be respected. But once the ICC makes the determination that the immunity does not apply, they can put the request to Canada, and Canada will comply with this provision.

So the short answer after that circuitous route is yes.

Mr. Daniel Turp: Will we prosecute?

Mr. Darryl Robinson: That's a different situation for a domestic prosecution. Again, you have the situation where the status of immunities right now is unclear.

Canadian has obligations. For example, under the Vienna Convention on Diplomatic Relations, we have obligations. There is nothing in the Vienna Convention about “but not if crimes about humanity, or war crimes”. So that situation is rather unclear. In fact, looking at it from a political or policy perspective, at first blush it seems attractive that Canada should have the ability to take anyone in Canada, strip their immunity, and prosecute them here. But the effect of that, if you apply it around the world, is it means that any state can prosecute the current sitting head of state of another state. It would make the world a very suddenly strange place, where....

Or there's the case of diplomats. Right now, our diplomats everywhere in the world have immunities, and the immunities are there to protect diplomats from being persecuted by states for political purposes. If we now establish a rule that those immunities don't apply to these crimes, then it means that if a country like Syria or Iraq wanted to harass a Canadian diplomat, the diplomat who was formerly protected by diplomatic immunities, all Syria or Iraq would have to do is call the person a war criminal and they would be allowed to arrest them.

So it's not clear, I think, that the world has moved to that point yet. In fact, there's an issue of sovereign equality at stake. Can one prince, if you will, judge another prince? The answer—at least what appears to still be the answer—is no.

• 1100

The situation is different, of course, with a former head of state, as in the Pinochet situation, because Pinochet does not have that absolute personal state immunity. Now he's just a human being with an immunity he held from the official duties he did before.

It seems clear that this immunity does not protect you for committing genocide, crimes against humanity, or war crimes. So the former head of state is liable, but that's a different situation from current heads of state and diplomats, who have an absolute personal immunity flowing from their sovereign equality. It's not clear that it would be the right thing to do for us to set that aside.

This is exactly another reason an international criminal court is what's needed. If you agree that there would be problems if states were to judge each other in accordance with this, but you don't want impunity for these people either, what should the international community do? It should create a court and give that court the power to try anybody for these crimes. That's what we've done with the International Criminal Court. What I mean is, while one prince cannot judge another prince, the princes can all get together, agree to establish an international criminal court, fill that court in with safeguards to guarantee impartiality, independence, no frivolous prosecutions, and give that institution the ability to penetrate immunities.

Mr. Daniel Turp: But they are not all parties to that treaty.

Mr. Darryl Robinson: Yes. That's where it gets unclear. I think it's fairly clear that among the parties we've given away our immunity vis-à-vis the ICC. Canadian officials anywhere do not have any protection against the ICC that way. If we commit crimes we can be called to account, either here in Canada or by the ICC.

With respect to non-states parties the situation is not so clear, but even there, there are question marks. What if it's a Security Council referral and you're a non-state party? I suspect—and this remains to be determined—that the ICC will have the ability to pierce the immunity flowing from the enforcement powers of the Security Council. I'm thinking, for example, of the Milosevic situation. There's a current head of state who has been indicted by the Yugoslav tribunal, but the Yugoslav tribunal is invested with the Security Council powers. By analogy, if the Security Council were to invest the ICC with that same power, I think that the ICC could even go after non-states parties.

In summary, immunity is a very rapidly evolving area. I hope I've explained the reasons why. Maybe it's not quite right for states to judge current heads of state and diplomats of each other just yet. Former officials are a different story. But even for the current ones, the ICC should and does have the ability to do it. As for Canada, in our bill we are giving ourselves the power to seize the person and send them to the ICC.

I'm sorry, that was only one question. This is long.

Mr. Daniel Turp: Two, two.

Mr. Darryl Robinson: Sorry, I apologize for being so long. The immunity is just such an exceptionally complicated area.

Mr. Daniel Turp: They're long answers, but they're interesting.

Mr. Darryl Robinson: Thank you.

Mr. Sarkis Assadourian: Can I ask my question now?

Mr. Darryl Robinson: I'm sorry, I apologize. I have to answer two more questions from Mr. Turp: what are other states doing, and will we be able to take a sneak peak at what they're doing to help us?

It's in fact going to be the other way around. We're the leaders. They're reading our bill right now for inspiration. The United Kingdom actually is drafting legislation now and they're hoping to publish it sometime this summer or fall. Australia is behind that.

On the last one, the short title of the statute, I think we'll think about it and we'll chat with our people, both our ministers and our departments. One hesitation I have about it is that it makes the short title less short. I can see the point. You could call it crimes against humanity and war crimes. That raises the question, why not genocide? The argument could be that genocide is a crime against humanity. But equally one could then call this act the genocide, crimes against humanity and war crimes act.

This is the only kind of niggling doubt I would have about it. But we will undertake to take the idea back. I think it's worth looking at.

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The Acting Chair (Ms. Carolyn Bennett): Mr. Piragoff.

Mr. Donald Piragoff: The question was whether a person like General Pinochet could be dealt with under clause 8 of the bill. Paragraph 8(b), which refers to universal jurisdiction, would apply to a person like General Pinochet. We could either use this particular bill or we could use the provisions in the Criminal Code that incorporate or implement the Torture Convention.

Both the Torture Convention provisions in the Criminal Code and this bill use the same formulation, that is, that a person who is present in Canada is subject to Canadian jurisdiction if they have committed either torture or war crimes, crimes against humanity. So we would be able to prosecute a person in a situation similar to that of General Pinochet.

That then raises the second question about prosecutions. Will there be more prosecutions as a result of the passage of this bill? Prosecution has not been a viable option since the Finta decision. With the passage of this bill, which will cure some of the problems that resulted in Finta, prosecution will become a more viable option. Whether we prosecute in a particular case or not depends on the strength of the evidence.

As indicated, the government will use the remedy that is most effective and appropriate for each particular case, whether it be prosecution, surrender to the ICC, extradition to another state, revocation, or citizen deportation. We would have to examine each case on its own merits and look at the strength of the evidence to determine whether we could successfully launch a prosecution or whether some other remedy might be more appropriate.

The last question was on immigration, which was a previous question. I'm aware of Bill C-31, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger. That's not a short title.

Bill C-31 was introduced on April 6 of this year. It does make some cross-references to the Criminal Code, which are proposed to be repealed by this bill. We have notified the immigration department that they have to make an amendment to their bill in order to provide for appropriate cross-referencing with the provisions of this bill.

Mr. Daniel Turp: So they will do it rather than....

Mr. Donald Piragoff: Yes, it's their bill; they should do it.

The Acting Chair (Ms. Carolyn Bennett): Professor Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): I just wanted to say that I happened to be in Rome as an NGO delegate at the time of the adoption of the ICC statutes.

I mention this in part, too, because I want to join my words to that of my colleague Daniel Turp, in paying tribute, for the record, to the distinguished and distinguishable contribution that was made Philippe Kirsch as chair at that treaty conference. As Daniel Turp mentioned, it was something that all Canadians can look upon with pride.

I also want to cite the contribution made by DFAIT in that regard, as those who were making the legal contributions upon which much of Philippe Kirsch's work was based.

Mr. Daniel Turp: What about DND?

Mr. Irwin Cotler: That is incorporated by reference.

I want to take up your invitation to ask some questions with respect to the ICC statutes. My question deals with articles 12 and 13 really, the matters of the preconditions for the exercise of jurisdiction.

You may have covered this, Darryl, before I entered, and if so, I apologize.

It has to do with the triggering of jurisdiction. As I understand it, jurisdiction is triggered for the ICC if a crime is committed on the territory of a state party, or the accused is a national of a state party, or a non-state party assents to the exercise of jurisdiction regarding the crime in question.

There is one thing I wish to have clarified. It is my understanding that jurisdiction can be triggered even with respect to a non-state party, where the Security Council, acting pursuant to its authority under section 7 of the charter, refers to the prosecutor a situation in which such crimes appear to have been committed. Is that a correct reading of the ICC...?

• 1110

Mr. Darryl Robinson: You have it exactly right.

Mr. Irwin Cotler: Because there's been some suggestion that somehow there's a kind of immunity for non-state parties, but that immunity would not exist if a section 7 authority triggers a reference by the Security Council to the prosecutor.

Mr. Darryl Robinson: Yes, that's exactly right. Something that particularly concerns people is internal armed conflicts entirely within a state's borders, and the state is not a party to the ICC, and the state doesn't want to give a declaration recognizing the ICC's jurisdiction. In that situation you still have the ability of the Security Council to initiate the proceeding.

We're also hoping, though, with the International Criminal Court not just to get 60 ratifications to bring it into force, we also want to make it as widely ratified as the UN charter, the Geneva Conventions and so on. We want to get 180 ratifications, and then the need to rely on the Security Council isn't there so much. We'll have as much of the world as possible.

Mr. Irwin Cotler: That ought to be the objective, because there's always the possibility of alleged politicization once you're dealing with the Security Council references.

Let me make a last comment, although it can be seen as a question. It has to do with article 10 of the Rome Statute, which says that:

Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

I find this intriguing because, in effect, the ICC statutes were developed in advance of the Pinochet doctrine, and now the Pinochet doctrine has emerged. Don, I think you made some reference to its being organized somewhere around the nationality principle. My own appreciation was that the basis for the prosecution was really the doctrine of universal jurisdiction. Although most of the crimes, for example, were committed in Argentina and Chile, the Spanish courts allowed the case to proceed in Spain on the basis of the principle of universal jurisdiction, which in fact was enshrined in Spanish legislation as well as international law at the time.

The reason I mention this is that it's interesting that Senegal, which was the first state to ratify the International Criminal Court, actually has prosecuted the exiled dictator of Chad, Hissein Habre, in other words, under the principle of universal jurisdiction, which has come to be known, although lesser known, as the African Pinochet.

I mention this because.... Is there a possibility that with the emergence of the Pinochet doctrine and its far-reaching significance and amplifications, there may be an orientation towards using the doctrine of universal jurisdiction and circumventing the ICC remedial approach, because of the rather more protracted approach re the ICC and the more direct approach under the Pinochet doctrine?

Mr. Darryl Robinson: First of all, the purpose of article 10, when it was put in originally, related to the definitions of the crimes. In defining crimes against humanity and war crimes, everyone was attempting to reflect customary international law. Everyone also recognized that customary international law would continue to move forward.

There are a few gaps in the Rome Statute. For example, using biological or chemical weapons, which I think is relatively clearly established as a war crime in international law, doesn't appear as such in the statute. Likewise, the prohibition on the recruitment of child soldiers has been raised from 15 years to 18 years. I don't suggest or pretend that's customary international law today, but someday.... The ban on landmines hopefully will become customary international law.

So the point of article 10 is that we're not freezing it.

I think you're right that article 10 applies to more than just crimes, and I think you're right that it also applies to the jurisdictional regime. In the Rome conference it was discussed whether or not to give the ICC universal jurisdiction, and in fact there was a lot of support for doing so. As a political compromise, the ICC itself only has jurisdiction on the territory or nationality basis.

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But you're absolutely right: that in no way was intended to undermine the ability of states to exercise the universal jurisdiction. In fact, right now, as parliaments around the world are implementing the ICC statute, many of them are looking very seriously at creating their own universal jurisdiction.

So in fact the ICC ratification process is having precisely this effect: it is making states sit down and make these things crimes, and it is asserting universal jurisdiction. That's a good thing, I think. If states want to assert as broad a jurisdiction as they feel comfortable with and begin diligently carrying out their own investigations and prosecutions such that the ICC doesn't get a lot of business, that's great. That's why we made the International Criminal Court.

Mr. Irwin Cotler: That's the complementarity principle.

Mr. Darryl Robinson: That's the complementarity principle. That's what we want states to do: to do the prosecuting themselves. Exactly, thank you.

The Acting Chair (Ms. Carolyn Bennett): Thank you. I obviously went out of order for a minute, so is there a question...?

I know Mr. Assadourian has a question.

Mr. Daniel Turp: I have another question.

[Translation]

Go ahead, Sarkis.

[English]

You're good at your questions, Sarkis.

Mr. Sarkis Assadourian: If you have a question, I would be happy to accommodate you. Thank you very much.

I want to follow up on the “obeying orders” concept that you mentioned earlier. I think it's on page 10, at clause 14. I also want to refer to what's called military culture—and this whole question maybe can be answered by Lieutenant-Colonel McAlea.

I want to use some phrases here to explain the military culture of some armies in the world. One says: “In the army, you say `yes, sir'. If you say `no, sir', you have no brains. ” The second quotation I have is: “Don't be a fool and die for your country. Let the other SOB die for his own.” The third one says: “Execute the order and complain later.”

With this kind of culture that we have in some militaries in the world, how do you explain a soldier following orders violating basic standards—as you and I agree—here in Canada and being found guilty for crimes he or she may have committed during the conflict? He had basically no choice. He had to follow orders.

The other point I want to make is that during the Communist era, the Stalin era, soon after World War II or just before, and during and after, there were many crimes committed by the communists against the Ukrainian people and against the Soviet people as a whole. Specifically I'm talking about the Ukrainians: 12 million people died. Would what happened with the communists be qualified by Bill C-19 as an indictable offence? Also, if that is too far back in history about the communists, keep in mind that just a few years ago, 10 years ago, before Germany reunited, there were many crimes against humanity: shooting innocent people crossing the border. I mean, is that also something we can look into? Can we look into this situation with this ICC?

I have another point. My riding is Brampton Centre. There are many Canadian Sikhs living in my riding. They suffered a tremendous slaughter in 1985. On June 2, they will be coming here to Ottawa to commemorate that slaughter. Would you also characterize what happened in the temple there as crimes against humanity?

The final point is that at almost the same time in China, in Beijing, in Tiananmen Square, we cut off our relationship with them—or we reduced our level of contact with the Chinese government—because we did not tolerate this kind of activity by the Chinese army, the Chinese Red Army or Chinese Liberation Army, whatever they are called. Are you prepared to call these people to justice at the end of the day?

LCol Dominic McAlea: Thank you very much.

I'll respond to the first question. Certainly the examples that you've cited existed more prevalently in the past, but with respect to obedience of orders, I can simply say that you're quite right, we do cultivate the habit of obedience of orders. It's important. It's important because if orders are not obeyed, we can't achieve the mission. One of the missions is requiring that the troops respect international humanitarian law, the law of armed conflict. If they don't obey orders, we can't even ensure that.

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I can't speak for all our armies. I can speak for the ones with which I've had experience—primarily the NATO and the western armies. In all of those, we teach an obligation to disobey manifestly unlawful orders and we talk about an obligation to disobey manifestly unlawful orders.

Now, is that practice or standard universal? No, it's not. Certain countries that allow blind obedience to orders will either have to not support the court or change their practice so that it reflects what we say is the appropriate international standard, reflected in the statute of the court and translated into our own domestic draft legislation.

Is that responsive enough to your question?

Mr. Sarkis Assadourian: Would we charge a Cambodian army officer following orders of the Khmer Rouge and slaughtering millions of people?

LCol Dominic McAlea: I'll get my colleagues to answer about whether or not we would prosecute them in Canada, but if you're asking me if it is a violation of the international law, I will say yes.

Mr. Sarkis Assadourian: I agree that it's a violation, but how can you prosecute this soldier? He doesn't know A from B or whatever the case may be. He just says “Yes, sir”, and follows the order.

LCol Dominic McAlea: Because the principle we use is that we assume—and somebody may challenge the assumption—there are certain orders that are so offensive, so viscerally offensive, to even the most basic ethical and moral systems that any person receiving the order will be able to distinguish it as a manifestly unlawful order. This is the point.

We have a concept we call making rules soldier-proof. Soldiers are not the most sophisticated persons in all cases. They're often given orders in circumstances where cognitive abilities have been caused to degrade as a result of fatigue or injury or dehydration or fear; all of these things will make a person's ability to process facts and directions more difficult. That's why we make the standard for obedience to orders very basic and something that is durable enough to survive in combat situations. We don't need someone to be sophisticated or universally educated to follow the standard we propose.

The Acting Chair (Ms. Carolyn Bennett): Mr. Piragoff.

Mr. Donald Piragoff: There are a number of questions—hypothetical or particular fact situations—with respect to a number of incidents of the recent past as well as pre-World War II. The question, I think, comes down to whether or not these offences can be prosecuted by Canada.

As indicated earlier, this bill has two initiatives. One is to implement the ICC statute, which provides for prospective jurisdiction of the court and prospective jurisdiction for us with respect to crimes in Canada. That part of the bill is to meet our obligations under the ICC statute so that we can be in a position to prosecute, meet the complementarity test, or surrender.

The other part of the bill deals with and incorporates the Criminal Code amendments that were enacted in 1987. The delicate balance that was achieved by Parliament in 1987 was to deal with war criminals who committed crimes outside Canada: that legislation would apply both backwards in time and forwards in time, both retrospectively and prospectively. Your question is, how far back can it go? It can go as far back as international law will permit.

Mr. Sarkis Assadourian: My comment is on whether international law permits it or not.

Mr. Donald Piragoff: We tied our legislation to the state of international law that existed at the time, so that we would not be put in a situation where we were proclaiming something to be criminal that international law at the time did not recognize as being a crime under international law.

As for what Stalin did, what other individuals may have done prior to World War II, I cannot give a definitive answer. As Mr. Robinson indicated, at the present moment the law of immunities is in a state of flux. Prior to World War II, prior to 1939, international law was in a state of flux. After World War I there was clearly a recognition that there may have been some other types of crimes in existence besides traditional war crimes, but those were not clearly articulated until the period from 1938-39 to 1945, when the Allies were making public pronouncements that at least what the Nazis were doing they considered to be violations of international law, and that the perpetrators of the crimes between 1939 and 1945 would be held to account.

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So there were clearly international statements made by various countries, saying “We think you are violating international law.” Whether or not statements were made during the 1930s with respect to other conduct that occurred during the war, I'm not a historian; I can't answer that question. I can just tell you what the framework of the law is. Whether certain conduct would fit within international law at the time I can't say. I'm not a historian, and I'm primarily a criminal lawyer first before I'm a public international lawyer.

Mr. Sarkis Assadourian: Mr. Robinson, how about Tiananmen Square and the temple situation? Is that being judged in the ICC, or should we forgive and forget?

Mr. Darryl Robinson: With respect to the International Criminal Court, the answer to your question is straightforward. As a political compromise, the ICC itself can't judge anything happening before the ICC statute enters into force. So the ICC can only deal with crimes in the future, thus alleviating my need to take guesses at these past ones.

Mr. Sarkis Assadourian: Their city was...[Inaudible—Editor] Is that what you're telling me?

Mr. Darryl Robinson: Pardon me?

Mr. Sarkis Assadourian: People have concerns. How do they express their concerns? When you talk to Sikh community members in my riding, they are furious at what happened in 1985. You talk to the Chinese, and they are furious. You can't just say “It just happened, what's the danger for them?”

Mr. Darryl Robinson: No, I'm not saying that any of these events didn't happen. What I'm not able to do.... To give you a legal conclusion on whether these things were criminal or not would require, first, a very thorough review of all the facts, and second, a very careful review of what customary law applied at that time, and then third, an application of that law to those facts. That's just not something we're able to do before a mike, I'm afraid.

Mr. Sarkis Assadourian: Crimes against humanity existed for how many years?

Mr. Darryl Robinson: Well, even that's not totally clear. It existed at least from the 1940s and probably before.

Mr. Sarkis Assadourian: This happened in 1985.

Mr. Darryl Robinson: Yes.

Mr. Sarkis Assadourian: That was forty years after the laws were passed.

The Acting Chair (Ms. Carolyn Bennett): Mr. Turp.

Mr. Daniel Turp: Sarkis, you should know how to deal with civil servants.

The Acting Chair (Ms. Carolyn Bennett): You can have a go at the other witnesses later.

Mr. Daniel Turp: You're on the government side, Sarkis. You have to convince the ministers and the government to do what you think should be done, or should have been done, in these cases.

Mr. Piragoff, I'd like to put a question to you on the answer you gave me on clause 7, which I think raises the very interesting and difficult issue of the relationship between international law and Canadian constitution law.

You said you were happy that we have a system where we need to adopt legislation to implement a treaty like the Rome Statute, and that it gives us some kind of leverage or leeway. What in fact it allows you to do is not to implement the legislation, not to implement the statute, not in the way it should be implemented. Because you cannot do it because of a constitutional impediment, the issue then would be that you need to change the Constitution before becoming a party to the Rome Statute. That probably was the case for France, and that's why they need to change their constitution.

Maybe it's only a theoretical question, but still I think it's a question that deserves to be asked. Since the charter was adopted in 1982, that question has not been really addressed. In the cases where we want to become party to treaties that would require that we change the Constitution, we do not change the Constitution, but go ahead and implement legislation, which is not necessarily consistent with the obligations we've accepted in becoming party to those treaties.

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So I'd like your comment on that. You must have thought of that in your department.

Mr. Donald Piragoff: Yes, thank you.

It's a very good analysis, except that the situation you've posed isn't our situation. Article 28 of the Rome Statute, dealing with responsibility of commanders and other superiors, is not an article we are obligated to implement in Canadian legislation. If we were obligated to implement article 28 into Canadian legislation, then we would have had to do two things: first, during the negotiations, we would have had to negotiate it differently; or second, we would have had to take a reservation; or third, we would have had to amend our Constitution. Those are the three options.

Article 28 is an article that applies to trials within the International Criminal Court; therefore, it is not an obligation on Canada. There's no obligation on Canada to enact any of the provisions concerning responsibility with respect to Canadian offences. We are taking it upon ourselves to ensure that we have complementarity, that we have a system of offences in Canada that can match toe to toe, to use the vernacular expression, whatever is in the ICC statute.

It doesn't necessarily mean that our offences have to be exactly the same, although our offences are defined as exactly the same. But all other aspects of criminal law and procedure.... The common law, for example, doesn't have to be amended completely in order to accord with what might be the law on jurisprudence of the ICC. All that is required is that in general, if a person is in Canada, we can meet the complementarity test, that we can generally prosecute a person according to Canadian law.

That doesn't mean the Canadian law has to be exactly the same in all aspects. We have chosen to be exactly the same for the purpose of the definition of the offences. For other things, such as the defences and modes of participation, there may be differences between our law and that of the ICC. There may be differences between French law and that of the ICC. But those are things that do not have to be changed.

So your comments are accurate, but they don't apply—

Mr. Daniel Turp: Not in the context of article 28.

Mr. Donald Piragoff: But not in the context of article 28. It is not a provision that we have to implement word for word.

The Acting Chair (Ms. Carolyn Bennett): Thank you very much, and thanks to the witnesses.

We will suspend for a minute or so while we move in camera to discuss future business and discuss the potential witnesses.

(Proceedings continue in camera)