FAIT Committee Meeting

STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE

COMITÉ PERMANENT DES AFFAIRES ÉTRANGÈRES ET DU COMMERCE INTERNATIONAL

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 30, 2000

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[English]

The Chairman (Mr. Bill Graham (Toronto Centre—Rosedale, Lib.)): Order.

Colleagues, Mr. Obhrai has asked me if we can discuss the coup in Fiji. He demonstrated how he intends to deal with it just now. There's a difference between a coup d'état and a coup de comité. It's less effective, but....

We'd like to continue with Bill C-19 this afternoon. We have four groups with us. I hope we can ask the groups, as usual, to keep their interventions to 10 to 15 minutes, so we have lots of time for questions.

In addition, Mr. Narvey, who is from Montreal, has asked if he could be added as a last-minute witness, supported by one or two members of the committee. This is unusual. I'm willing to ask him to come and sit down, but I can only give him five minutes at the end of the others to make his presentation. As I said to him earlier, when witnesses say to me they intend to be brief, that's when I know they're going to be long, so I'll hold him to the five minutes.

We will start with the Ukrainian Canadian Congress. No?

Mr. Obhrai is again hijacking the committee.

Mr. Deepak Obhrai (Calgary East, Canadian Alliance): I love this.

The Chairman: Mr. Obhrai.

Mr. Deepak Obhrai: Thank you, Mr. Chair.

As you know, a military coup attempt has taken place in Fiji. It has serious repercussions because a democratically elected government has been overthrown. The crisis is continuing. This morning I presented a petition to the Prime Minister from concerned Canadians, and this issue is becoming very important.

I think it is prudent for this committee to look at this resolution I have drafted and circulated. It calls for diplomatic initiatives by Canada. It calls for Canada to take a leading role to ensure the restoration of the democratically elected government in Fiji, and to take the position that Fiji, should it fail to return to democratic rule, will face expulsion from the Commonwealth and economic sanctions. I think we need to discuss this.

I have discussed this with your staff, and they seem to be happy with it. I have discussed it with the Department of Foreign Affairs, and I welcome them to appear and discuss this. I don't think we should face any opposition to this resolution, considering what has happened, with a democratically elected government being overthrown.

I'm asking for an emergency debate on this, perhaps as early as tomorrow.

The Chairman: Colleagues, I've spoken to some of you. I gather quite a few people are willing to accommodate this request to have a quick discussion about the Fiji matter. If we can all agree that you have a resolution that will be presented—

Mr. Deepak Obhrai: I have the resolution.

The Chairman: You can circulate the resolution to members this evening, and perhaps we can give ourselves half an hour or an hour some time tomorrow afternoon to discuss it.

I do not see this being a controversial matter. I think it's something we might want to discuss, as all of us will want to urge that the restoration of democracy in Fiji take place. So with your permission, members, I'd like to suggest we put that on the order paper for tomorrow afternoon, with the following observation as well.

Several members have stated they would like further time to reflect on Bill C-19. You can appreciate that the parliamentary calendar is such that we must get Bill C-19 completed before we rise. If we put it off, we'll be pushing ourselves further into a log-jam. I would like to recommend that we meet tomorrow afternoon and consider the Fiji issue.

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Also, several amendments have been proposed for Bill C-19. We could have an informal discussion about those amendments so we're more familiar with them. We won't actually go into clause-by-clause, but we'll agree that if we go to clause-by-clause on Thursday, we can start Thursday morning and we'll continue until we finish. We'll finish clause-by-clause and finish the bill presumably on Thursday.

Don't forget, colleagues, the clerk very wisely reminds me we also have our Kosovo resolution. In order for that to make any sense, we should really deal with it before we rise, as well.

Madam Lalonde.

[Translation]

Ms. Francine Lalonde (Mercier, BQ): Mr. Chairman, I have my notes from our last meeting and it was clear that if we could not finish the clause-by-clause study Thursday we would go on into Tuesday morning and should we could finish Thursday we would consider the Kosovo resolution. So Bill C-19 will get priority.

The Chairman: Okay, but let us try to finish Bill C-19 Thursday, do you agree?

Ms. Francine Lalonde: Mr. Chairman, as I told my colleagues opposite, when we are against something we usually say so in advance and it is highly visible. However, we want to do a serious and careful study of this Bill because we shall all have to live with it. We find it to be important.

The Chairman: We shall not presume that anyone is against it.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Kirsch said this morning how important it was to take the time needed to pass implementation laws, as other countries do. As you know, this is a very long Bill. If we only have two and a half hours to study all its provisions it might be advisable to extend our study until Tuesday should we not have the time to finish.

The Chairman: Yes, but as you know Mr. Kirsch thinks that we should definitely finish studying Bill C-19. It is very important that we pass that Bill. We must do it and do it well. Agreed?

Mr. Daniel Turp: When will the House adjourn? Perhaps you know it.

The Chairman: Let us not forget, Mr. Turp that the best is the enemy of the good.

Mr. Daniel Turp: Who said that?

The Chairman: I think it is Voltaire but it was also accepted by John Ralston Saul.

Mr. Daniel Turp: Voltaire was...

[English]

The Chairman: Okay, we have one. The clerk has drawn my attention to it. You all have in front of you another resolution, that the subcommittee on trade and investment requires an opportunity to meet at least twice, to complete their report on Europe. It also needs to be put in the House before we rise. Can we adopt that?

Some hon. members: Agreed.

The Chairman: It's for the subcommittee. Thank you very much. That's adopted.

Now we'll go to our witnesses from the Ukrainian Canadian Congress.

Mr. Deepak Obhrai: Mr. Chairman, on a point of order, is this resolution for tomorrow?

The Chairman: We've agreed to discuss it tomorrow.

We will start with Mr. Czolij. Thank you very much for coming. Sorry to keep you waiting.

Mr. Eugene Czolij (President, Ukrainian Canadian Congress): Mr. Chairman, members of the committee, my name is Eugene Czolij and I'm the president of the Ukrainian Canadian Congress. Joining me today is Mr. Peter Doody of the law firm Borden Ladner Gervais, which gave us legal advice concerning Bill C-19.

The Ukrainian Congress, also known as the UCC, is the national coordinating body of the Ukrainian Canadian community. Since its incorporation in 1940, the UCC has played an active role in the development of national policies and programs that not only impact on Ukrainian Canadians, but on Canadian society as a whole.

The UCC has been involved in the discussion surrounding the issue of denaturalization and deportation of naturalized Canadians for more than a decade. During this period, the UCC stood for the position that the Canadian government should not resort to denaturalization and deportation proceedings to deal with Canadians suspected of war crimes during World War II, since: (1) they are inadequate to determine a person's guilt or innocence as a war criminal; (2) they suppose, therefore, that another country will address this issue in Canada's place; and (3) evidence for denaturalization and deportation proceedings has become largely unavailable.

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The UCC has often stated that the Government of Canada should rather prosecute such individuals before Canadian courts of criminal jurisdiction in accordance with Canadian criminal law and standards of evidence in criminal proceedings.

The UCC believes that by introducing Bill C-19, the federal government will have to deal with the issue of war crimes and crimes against humanity before Canadian courts of criminal jurisdiction and cease denaturalization and deportation proceedings, especially against Canadians suspected of World War II crimes whose immigration files have been destroyed by government employees, consistent with the government's policy for disposal of unnecessary records after a fixed time.

We noticed the leadership role the Government of Canada demonstrated and the commitment made by the Minister of Foreign Affairs personally in seeing the Rome Statute come into being. We also responded to the minister's call when he stated during the second reading of Bill C-19 in the House of Commons, and I quote:

Let us have a serious debate, because this is one of the historic steps forward this country is taking in implementing a new legal order.

To that end, we retained Mr. Peter Doody to provide a comprehensive legal analysis of this bill together with a summary thereof, which we have forwarded to the clerk of this standing committee.

In the development of our position on Bill C-19, the UCC has always stood for a fair and just judicial process based on the rule of law. As Canada was extensively involved in the drafting of the Rome Statute, the UCC finds it somewhat surprising that Bill C-19 would treat crimes alleged to have been committed outside Canada differently from the way the Rome Statute treats these crimes.

More disturbing is the fact that Bill C-19 proposes to treat crimes alleged to have been committed in Canada differently from those alleged to have been committed outside Canada. I draw the committee members' attention to page 2 of Mr. Doody's summary, where he points out the following, and I quote:

Bill C-19 deals with crimes committed inside Canada by adopting the offences and defences in respect thereof in the Rome Statute. The effect is that Canadian courts, if Bill C-19 is passed, will have jurisdiction to try someone charged with committing an offence inside Canada on almost exactly the same basis as the International Criminal Court would try those accused persons if charged with those offences in that Court. The offence charged would be the same and, to a great extent, the possible defences to be raised by the accused persons would be the same.

Offences committed outside Canada, however, are treated quite differently by Bill C-19. Although the offences—genocide, crimes against humanity and war crimes—have the same names as offences created by Bill C-19 for acts in Canada, they are defined quite differently.

For instance, the definition of “crime against humanity” in respect of offences alleged to have been committed outside Canada does not include a requirement that the offences in question be committed against a “civilian population or any identifiable group of persons”. An act cannot be a crime against humanity as defined by the Rome Statute, or as defined for offences committed within Canada by Bill C-19, unless that act is committed as “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. There is no such requirement in Bill C-19 for an offence of “crime against humanity” committed outside of Canada prosecuted before a Canadian court.

[...]

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The draftspersons of the Rome Statute, who were eminent international jurists, obviously felt that someone should not be convicted of a “crime against humanity” in the absence of the improper motivation for the act which was committed, being “discrimination against or the persecution of an identifiable group of people”. The persons who drafted the Criminal Code amendments following the Deschênes Commission Report obviously thought the same thing, for those Criminal Code provisions included that requirement of improper motivation. The only reason, in my opinion, to remove the requirement of improper motivation from the definition of “crimes against humanity” alleged to have been committed by persons outside of Canada in prosecutions under Bill C-19 is to enable convictions to be entered without proof that the prohibited act was motivated by “discrimination against or the persecution of an identifiable group of people”.

On page 3 Mr. Doody raises additional examples of the differential treatment by Bill C-19 for offences committed inside and outside Canada by stating, and I quote:

The acts which constitute a “crime against humanity” under the Rome Statute (and, under Bill C-19, for offences alleged to have been committed within Canada) are all, except for murder and the sexual offences, defined in such a way as to make clear what specific acts are being prohibited. There is not, however, any definition of the specific acts contained in the definition of “crime against humanity” in Bill C-19 where that is the basis of an allegation of an offence alleged to have been committed outside of Canada.

There is a similar lack of clear definition of a “war crime” in Bill C-19 when the offence is alleged to have been outside of Canada, although a “war crime” is extensively and clearly defined when the offence is alleged to have been committed inside Canada.

That is why the UCC concurs with Mr. Doody's conclusion on pages 3 and 4 of his summary, where he states, and I quote:

It is a fundamental principle of the Canadian criminal justice system that the legislation creating an offence clearly set out exactly what acts are prohibited, so that the accused persons will know what they are alleged to have done and, equally as important, so that the court can apply the law in the same way for each accused person.

[...]

Certainty of the law protects individuals from unfair application of the law.

The UCC therefore believes more clarity and certainty are required in Bill C-19. The clarity and certainly in law that we seek begin with something very basic: that the same definitions and rules apply to crimes bearing the same names in Bill C-19, whether they are alleged to have been committed inside Canada or outside Canada.

Mr. Chairman, we also wish to draw the attention of the members of the standing committee to the first full paragraph on page 4 of Mr. Doody's summary, where he deals with the different applications of the law, depending on where the alleged crime was committed, by stating, and I quote:

Bill C-19 proposes to make retroactive the provisions creating offences outside of Canada, but does not make retroactive the provisions creating offences within Canada. The Rome Statute is not retroactive.

The effect of differentiating between crimes committed outside Canada and those committed inside Canada in this way means that if a person is alleged to have committed, within Canada, an offence which may be a war crime, prior to the coming into force of Bill C-19, that person could not be convicted of that offence. If the same act was committed outside Canada, however, prior to the coming into force of Bill C-19, the person could be convicted in Canada of the offence.

This last point is, in my opinion, particularly problematic when the effect of the creation of the offence of command responsibility and the elimination of the defence of superior orders is considered.

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The issue of retroactivity begs the same question: why the double standard in the Crimes Against Humanity Act, which the Minister of Foreign Affairs has announced to be, and I quote:

...the first major comprehensive implementing legislation brought forward by any legislature around the world and will provide a model for all other countries to determine how it will implement the international court statute.

Mr. Chairman, we have highlighted the major points we felt the committee needed to hear from us and welcome now your questions.

The Chairman: Thank you very much, Mr. Czolij, and also thank you for the comprehensive brief you filed, Mr. Doody. That's very helpful to our researchers and to us for being able to get to the details of your submissions. We appreciate that very much.

Could we next go to the Women's Caucus on Gender Justice, Ms. Bedont?

[Translation]

Ms. Barbara Bedont (Legal Text Coordinator, Women's Caucus for Gender Justice): First of all, I wish to thank you for the opportunity to address the Committee. The Women's Caucus for Gender Justice is an umbrella organization for over 300 women's rights organizations around the world, including many organizations in Canada.

We have been active since February 1997 at the ICC Preparatory Committee, the Rome Diplomatic Conference, and now the ICC Preparatory Commission to ensure that the International Criminal Court will be able to effectively investigate and prosecute crimes of sexual and gender violence.

[English]

The Rome Statute for an International Criminal Court contains gender provisions throughout the statute that will allow the court to pursue the perpetrators of horrendous crimes, including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, other forms of sexual violence, gender persecution, and trafficking in women and children. These provisions were a codification of international law, which has evolved since the Second World War, including the jurisprudence of the two ad hoc tribunals, such as the historic decision of Jean-Paul Akayesu, which recognized rape as a constituent act of genocide and torture.

The Rome Statute is not perfect. It contains many weak provisions, such as article 12 regarding the jurisdictional regime, article 16 about deferral by the Security Council, and article 124 regarding the opt-out clause, among others. These weaknesses mean states parties and civil society must be vigilant to ensure the court does not become ineffective or impotent.

Despite its limitations, the Women's Caucus believes that with the continued commitment of states, the ICC can become a tool for international justice, including gender justice. For this reason, we urge the Canadian Parliament to ratify their own statute as soon as possible to demonstrate Canada's commitment to international justice and to set a strong precedent worldwide.

I will now turn to an assessment of the provisions of Bill C-19.

The Women's Caucus would like to express its general support for Bill C-19, which constitutes strong implementing legislation for ICC ratification. It meets most of the requirements to allow Canada to effectively cooperate with the court and fulfil its obligations to the court upon ratification. As the first comprehensive implementing legislation, it sets a good precedent for other countries that will be drafting such legislation in the future.

Moreover, the bill includes many welcome provisions, such as clause 30, which establishes the Crimes Against Humanity Fund to receive and disburse all money obtained through enforcement of reparation orders. This fund will assist victims to collect reparations for their harms suffered.

However, there is room for improvement. We would like to suggest some ways in which Canada's implementing legislation for the Rome Statute can be strengthened.

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Our first recommendation is that Bill C-19 should be revised to fully incorporate Canada's obligations under international law according to the principle of universal jurisdiction. The Women's Caucus joins our voices to those who urge states ratifying the Rome Statute to take this opportunity to implement the concept of universal jurisdiction into their domestic laws; that is, to provide that other crimes under international law are crimes under national law, and that the state has the jurisdiction to try perpetrators of such crimes wherever the crimes occur.

The principle of universal jurisdiction under international law means that for some crimes that are particularly heinous, all states have the right—that is, the jurisdiction—to prosecute or extradite their perpetrators, no matter where they are committed. The ratification of the ICC affords a good opportunity to implement this concept in Canadian law.

It is necessary to stress that international crimes for which there is universal jurisdiction are not restricted to those crimes in the Rome Statute. For example, crimes under international law include war crimes not listed in the Rome Statute, and torture, extrajudicial executions, and enforced disappearances that are not committed on a widespread or systematic basis.

We note that Bill C-19 sets up two separate regimes of crimes. The first regime is contained in clauses 4 and 5. These clauses incorporate the crimes under the Rome Statute into Canadian law by providing that genocide, crimes against humanity, and war crimes are offences under the Canadian Criminal Code, and define these three crimes by reference to the relevant articles of the Rome Statute.

In this way, the Rome Statute crimes are made indictable offences within Canada. However, by virtue of subsection 6.(2) of the Canadian Criminal Code, the offences under clauses 4 and 5 are not indictable if they are committed outside Canada. Thus, this regime applies only to offences committed within Canada.

Bill C-19 makes the crimes under the Rome Statute crimes under Canadian law with reference to articles 6, 7, and 8 of the Rome Statute. However, these articles contain certain thresholds for the enumerated acts to be considered war crimes or crimes against humanity.

To be a war crime, the acts must be committed during times of armed conflict. To be a crime against humanity, the acts must be committed as part of a widespread or systematic attack directed against any civilian population that is defined as a course of conduct involving the multiple commission of acts pursuant to or in furtherance of a state or organizational policy to commit such attack.

It is important to recognize that the thresholds imposed under the Rome Statute were the results of political compromises made during the Rome diplomatic conference. Canada need not be bound by such definitions when defining such crimes under its domestic law.

I would like to stress this point, because it counters some earlier comments. The definitions of the crimes under the Rome Statute are actually narrower than their conceptions under customary international law. For example, the definition of “persecution” in the Rome Statute is narrower. Thus, the Women's Caucus doesn't believe that it is problematic to state that articles 6, 7, and 8 of the Rome Statute are customary international law as of July 17, 1998, which is in subclause 6(4) of the bill.

As for the second regime, we note that clauses 6 and 7 of Bill C-19 contain a broader category of crimes than clauses 4 and 5. This second regime comes closer to incorporating Canada's obligations under the principle of universal jurisdiction. It states that every person who commits genocide, crimes against humanity, or war crimes outside Canada is guilty of an indictable offence if they meet certain criteria specified under section 8. These crimes are then defined under section 7 according to customary international law.

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Clause 8 of the bill requires a connection to Canada in some way—for example, that the accused was a Canadian citizen, that the victim was Canadian, or most importantly, that the person was present in Canada. This connection to the country that would exercise jurisdiction over a crime is not required under international law under the principle of universal jurisdiction. The presence of the person in Canada is not a requirement under international law for the exercise of universal jurisdiction.

Aside from the legal reasons, there are policy reasons that Canada would want to eliminate this connection. There may be times in the future that Canada would like to have the option of undertaking an investigation or prosecution against someone who is not present in Canada. For example, a little while ago, when the U.S. asked Canada to start proceedings against Pol Pot, we were not able to do it at that time. There may be situations in the future where we would at least like to have that possibility. Bill C-19 does not allow this.

I'd like to bring your attention to subclause 9(3) of the bill, which states that the Attorney General retains discretion whether to commence proceedings under the Crimes Against Humanity Act.

Spanish criminal law does not require that the accused be present in Spain. Bill C-19 does not go as far as Spain. Thus, even with adoption of this bill, Canadian law will not be the most progressive legislation on this subject in the world. This second regime of crimes under Bill C-19 does not fully meet Canada's international obligations because of the requirement of the Canadian connection.

We recommend that Bill C-19 be revised to set up only one regime in which all crimes of genocide, war crimes, and crimes against humanity, including, but not limited to, the crimes under the Rome Statute, are made crimes under Canadian law regardless of where they are committed and regardless of any connection to Canada.

Perhaps the most important side effect of the Rome Statute will be that states themselves will be encouraged to take action against such crimes for fear that the ICC will step in. It is therefore important that Canada lead the way in using the ICC as an opportunity to put the principle of universal jurisdiction into practice.

The second recommendation is that legislation be adopted to allow civil lawsuits in Canada against perpetrators of genocide, war crimes, or crimes against humanity.

There are no civil remedies for crimes of genocide, war crimes, or crimes against humanity under the bill. Alternative mechanisms other than criminal prosecutions for ending impunity for such crimes are necessary in order to tackle the problem on all sides.

It is therefore desirable for the victims of these crimes to be able to pursue private lawsuits against the perpetrators. This is possible, for example, in the U.S. under the Aliens Tort Act. The history of cases under this act in the U.S. has shown that civil remedies can be a powerful tool for achieving accountability for such crimes.

There are times when the state cannot proceed with a prosecution for various reasons, but it is desirable that the perpetrator be made accountable for his or her crimes. In these situations, private lawsuits can fill a gap.

We therefore recommend that legislation be adopted to set up a system for civil lawsuits for such crimes. We would like to stress, however, that this legislation could be adopted after Bill C-19 is passed, and should not delay ratification.

On the same note, I'd like to make another recommendation for the future; that is, that guidelines be established to govern how the Attorney General exercises his or her discretion to commence proceedings for these offences under subclause 9(3) of the bill.

The Chairman: May I ask you how you're doing on your presentation? I don't mean to be rude and interrupt you, but I just want to warn all the witnesses that we have four groups, plus we have an extra person who has been added. We're having a vote at 5:30, which means we're going to have to leave here at 5:20 at the latest. The more everybody goes on, the less time there is for questions, and that's a shame, because members like to be able to ask questions of the witnesses.

As I say, I don't want to be rude, but you're over the 15 minutes now. I'm getting a little nervous, that's all.

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Ms. Barbara Bedont: Okay.

The Chairman: I'm just sharing that with you.

Ms. Barbara Bedont: I'll make this my last recommendation and then just do a conclusion.

The Chairman: As I say, I don't like to interrupt, but.... Do you have a paper that you could maybe circulate to the members afterwards?

Ms. Barbara Bedont: Yes.

The Chairman: Thank you.

Ms. Barbara Bedont: As the Pinochet case in the U.K. has shown, it is important that there be a transparent process for when a minister or other government official makes a decision that has a political dimension. Transparency and consultation ensure that the discretion is exercised properly. For example, Home Secretary Robin Cook received submissions from interested parties, including human rights organizations, before deciding whether to deny Spain's extradition request.

While the decision may ultimately rest with the official, it is important to have guidelines regarding (1) what criteria the Attorney General will take into consideration when deciding whether to commence proceedings; (2) the necessity of giving public notice and inviting submissions from interested parties; and (3) the necessity for the Attorney General to provide reasons for his or her decision.

Since time is short and many of my colleagues this morning made good recommendations and good submissions, the Women's Caucus would just like to support some of those recommendations, in particular the recommendation regarding the change from “may” to “shall” in clause 57 and the recommendation regarding streamlining the surrender provisions. Also, we have further recommendations of a more technical nature, which are attached to the statement that will be distributed afterwards.

We hope that Bill C-19 can be strengthened to reinforce Canada's ability to cooperate with the ICC and to take action domestically against the perpetrators of such crimes. It is important for Canada to set a high standard, since other states that will ratify their own statute in the future will be guided by the Canadian legislation. At the same time, we do not want these recommended changes to cause a lengthy delay in the ratification of the Rome Statute by Canada.

Canada can be proud of the leading role it has played in establishing this mechanism for international justice. We hope it will continue to do so by strengthening Bill C-19 and ratifying the Rome Statute quickly.

Thank you.

The Chairman: Thank you very much, Madam Bedont.

The Canadian Jewish Congress, with Professor Morgan.

Mr. Ed Morgan (Honorary Legal Counsel, Canadian Jewish Congress): Thank you, Mr. Chairman and committee members.

I'm here on behalf of the Canadian Jewish Congress. We thank the committee for giving us this opportunity to present some brief submissions to you on Bill C-19.

The Canadian Jewish Congress is an organization that's known to many members of this committee. It's an umbrella organization representing virtually all of the Jewish communities and Jewish organizations in this country.

As an organization that represents a community composed of large numbers of Holocaust survivors, the Canadian Jewish Congress has long been interested and active in the issue of war criminals and crimes against humanity as they are prosecuted in Canada. Indeed, we were interveners at the Deschênes commission, at which time counsel for the Canadian Jewish Congress was none other than Professor Cotler, as he then was.

Mr. Daniel Turp: As he then was.

An hon. member: And still is.

Some hon. members: Oh, oh!

Mr. Ed Morgan: And still is.

The Chairman: I know that all the professors at this table have lost all their credibility since they got elected to Parliament.

Mr. Daniel Turp: Not at all. Come on.

Mr. Ed Morgan: I should say that I personally find it daunting to be following Irwin Cotler in this role and to be before a committee chaired by my own international law professor, Mr. Graham.

The Chairman: I saw you had Turp on the list.

Mr. Ed Morgan: I already mentioned to Mr. Turp before we started—

Mr. Daniel Turp: But where's Ted McWhinney?

Mr. Ed Morgan: That's right. It's an impressive committee, I must say.

I myself had the honour and I suppose then the disappointment of having represented the Canadian Jewish Congress in the Finta case at the Supreme Court of Canada.

On that note, the Canadian Jewish Congress would like to praise this bill, Bill C-19, and this committee's work and the work of Parliament in remedying some of the problems raised by the Finta decision. In particular, we are pleased to see clause 14 of this bill, which brings the defence of superior orders in Canadian law more into line with international law.

We're especially pleased at both subclause 14(2), which makes it clear now—in case it wasn't clear before—that acts of genocide are always manifestly unlawful and cannot fall within the rubric of the defence of superior orders.

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In addition, we're very pleased to see the specific Finta problem addressed in subclause 14(3), which makes it clear that an accused person cannot any longer base a defence of superior orders on the racist or anti-Semitic information and attitudes of the society from which that accused person comes. This is the so-called Finta defence, which put Canadian law at cross-purposes with international law. We're quite pleased to see that this has been addressed in the present bill.

What I did want to focus some commentary on this afternoon is the definition of “offences” in the Rome treaty, and in particular as they might play out in the extradition provisions in the current bill. Two provisions come to our attention: article 7, paragraph (1)(d), deportations and forcible transfers of civilians from territories occupied during times of war; and article 8, subparagraph (2)(b)(viii), the transfer of civilian populations into occupied territories. These were, in my understanding, provisions that were submitted to the Rome treaty conference by Arab nations and in our view were part of an anti-Israel politicization of what was otherwise a very impressive and noble effort at international criminal justice.

Article 7, paragraph (1)(d), in our view, is less problematic, because the definition article, article 7, paragraph (2)(d), specifies that in order for the act of deportation of civilians from territories occupied during times of war to fall within the definition of a crime against humanity, force is required. It would be our submission that certainly any due process deportations of persons would not fall and could never possibly fall within that definition of an offence.

Article 8, subparagraph (2)(b)(viii), however, is in a different category. That's in the category of war crimes. It does not have any similar requirement, as article 7 does, that force be an element of the offence. Indeed, there's some suggestion that force might not be an element of that offence because the word “indirectly” has been added to article 8, subparagraph (2)(b)(viii). That is to say, the transfer can be either directly or indirectly by the power occupying the territory. It's my understanding that the word “indirectly” is indeed an addition made to the Rome treaty that has never found its way into any other international instrument in respect of this crime, including the Geneva Convention.

This morning I was in the audience when Mr. Kirsch indicated that there had been some discussion and possible remedy of this situation in the preparatory commission during this past year or that at least it has been addressed. He's correct, in that it has been addressed. Mr. Kirsch indicated that it was his understanding that it may have been addressed to the satisfaction of both Arab countries and the Israeli delegation. In my understanding, though, there has been no official statement of that agreement from any Israeli government official or delegation.

As I read the preparatory committee and the discussions pursuant thereto, I can understand why it would be difficult to say that this preparatory committee has remedied any of the perceived problems in article 8, subparagraph (2)(b)(viii). They are very cryptic, to say the least.

I have a copy of the preparatory committee here. The preparatory committee itself is not part of the text. It's more or less a footnote to the text, and it tries to give some aid in interpretation. As Mr. Kirsch indicated, this particular issue of the transfer of civilians into occupied territories directly or indirectly has been addressed in a footnote to the preparatory committee. So already we're into a footnote in the footnote. The footnote in the footnote provides that the perpetrator of this offence must have transferred—and then there's footnote 46 after the word “transferred”—directly or indirectly parts of its own population into the territory it occupies. Footnote 46, the clarification footnote that has been referred to, provides as follows:

The term “transfer” needs to be interpreted in accordance with the relevant provisions of international humanitarian law.

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I think I understand what they're getting at, although, as I said, it's quite cryptic. I would defy anyone to say that any point of international law is beyond any debate, including this general statement that it simply must fall within the terms of humanitarian law, period, without elaborating on what's meant by that.

I think the better argument, of course, is that humanitarian law first and foremost is about people. It needs a victim or a set of victims. It's not about territory or sovereign and national rights. It's about people.

The policy the Arab states were trying to criticize, and have continuously criticized through the mechanisms of the General Assembly and other international institutions, is the Israeli policy of incentive-induced voluntary transfers, not coerced transfers. In my view, this would not be prohibited by international humanitarian law because there's no inhumane element to voluntary transfer of civilian populations. There's only an inhumane element to coerced transfer of civilian populations.

Having said that, it's also my view that this is not an unambiguous way to address the problem of interjecting Middle East politics into what I said is otherwise a criminal justice process. In my view, it is an inappropriate interjection of politics into a criminal justice process. You can see here that there does not seem to be a willingness by the preparatory committee, and there was no willingness by the convention as a whole, to face the issue head-on, to simply say in so many words, we are addressing ourselves only to coerced transfers, not to indirect and uncoerced transfers.

I worry about this on a number of fronts. In particular, though, I worry about this in the extradition context, because Canada may be faced one day with an extradition request by a prosecutorial office under the ICC that wants to give this interpretation a try. We've been fortunate enough to have high-quality chief prosecutors in international criminal justice, but I ask rhetorically, will we always have prosecutors of the quality and responsibility of Madam Justice Arbour? I hope so, but we don't know the answer to that question.

International institutions, in my view, cannot be trusted to remain responsible when it comes to the potential of an anti-Israel provision. They have not been responsible in the past, and we don't have enough tradition of responsibility to project that they will always be responsible into the future.

So it is possible that Canada will be in a bind. Canada may be asked for the extradition of a person—an Israeli official perhaps, or something along those lines, someone who happens to be in Canada—by a charge laid at the International Criminal Court level, which, in my view, would be an irresponsible politicization of this process.

I should say that we have struggled with what should be the proper remedy. Otherwise, we are very supportive of this bill. Indeed, I would not particularly support the absolute removal of the transfer of populations as a war crime. The wholesale forced transfer of populations is of course a heinous act, and I can understand why that should be criminalized in an International Criminal Court context. But I would ask that an amendment be made to this bill that incorporates some of the language you will find, for example, in the Canada/U.S. Extradition Treaty.

I hope the committee members have a copy of our brief. I understand from the clerk that it has in fact been distributed.

Article 4 of the Canada/U.S. Extradition Treaty has the following two sentences, which I will read to you. It says that “Extradition shall not be granted in any of the following circumstances”, and then it lists several circumstances, number (iii) of which is as follows:

When the offence in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offence of the above-mentioned character.

We would ask that language to that effect be built into this bill, in particular in its amendments to the Extradition Act, in order to prevent the inappropriate politicization of the criminal process. It's already amended in order to make it clear that extradition can be to the ICC as well as to a sovereign state.

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Section 44 contains the reasons for refusal of extradition that are at the minister's discretion. It contains provisions such as if the extradition is asked for because of the racial, religious, or national affiliation of the accused person or because of the accused person's political views. Those of course go to individuals in the traditional extradition context.

Here we would ask for the specific language found in the Canada-U.S. extradition treaty to be added to section 44 to make it clear that a government official on behalf of a country whose policies are of some political debate, or part of some political process...that this also be a grounds for refusal of extraditing that individual.

I hope that's clear. I look forward to the committee's questions, and again I thank you for the opportunity of addressing you.

The Chairman: Thank you, Professor Morgan.

We now have the REAL Women of Canada, Madame Landolt.

Ms. Gwendolyn Landolt (National Vice-President, REAL Women of Canada): Thank you.

Mr. Chairman, I'd like to mention that our organization has consultative status with the UN, and as such we have attended all the preparatory committees and also we attended the Rome Statute in June and July 1998. So we have been a witness to the evolution of this International Criminal Court and we would like to make some very important comments.

As we already know, the Rome Statute confers jurisdiction over three crimes: genocide, crimes against humanity, and war crimes defined in article 6. On the surface one might assume therefore that the ICC is simply a further step in the orderly march toward the international rule of law and the peaceful settlement of international disputes. Unfortunately, the definition of “genocide”, “war crimes”, and “crimes against humanity” are at best definitions that are breath-takingly expansive. They are so elastic that the ICC will enjoy a wide discretion in applying them. Clearly the ICC is not a court of limited jurisdiction.

You already heard concerns from Mr. Morgan about the prosecutor, but the prosecutor unfortunately makes up complaints on the individuals or groups anywhere in the world, and there is no accountability under this statute. There is an enormous risk of politicization of the court, and we've heard examples of how the court will be used because there's no accountability with the prosecutor. Also, there's a real risk that the ICC will be captured, not even by government but by non-governmental organizations, NGOs, and others with narrow interests and the time to pursue them.

Since the court will be dominated by a politically unaccountable prosecutor, there's great concern. Also, I don't think it's generally understood that the ICC is not going to be a part of the United Nations. The UN Security Council has no say in the International Criminal Court apart from its ability to delay investigations for 12 months. This is conspicuously different from the Rwanda tribunal and the Yugoslavia tribunal, which came into being by virtue of article 7 of the UN Charter. This one is totally separate, free-standing. It is of great concern to us, except that it can fall under—and will in fact, for reasons I'll disclose in a few minutes—the influence of many people who have an agenda other than international crimes.

For example, the Women's Caucus for Gender Justice, from whom you've already heard, who call themselves, for the purposes of the ICC, the Women's Caucus For Gender Justice in the International Criminal Court, has played a dominant role in the structure and procedures of the ICC in Rome, because it managed to have gender specialists placed on the major delegations, such as that of Canada and United States.

To ensure that the feminist interpretation prevailed they have woven, as the other speaker has already said, gender-based provisions throughout the entire Rome Statute, including the requirement that there be fair representation of females and males in all staffing, including the judiciary, and the latter should all have legal expertise regarding violence against women. There are many sorts of expertise that could be required for the court, for the prosecutor, for the registry or the administrators, but to have it limited to have expertise in gender discrimination and gender violence is very deeply troubling if you want to have a criminal court as such.

• 1630

In fact, anybody who thinks that this is simply going to be a criminal court is very naive, is very trusting, because this simply is not providing that. The ICC is not, I repeat, a further step in the orderly march toward the international rule of law and the peaceful settlement of international disputes. Rather, because of the Rome Statute, it has become a gender tribunal and a human rights tribunal with wide discretion to the staff. For example, another problem with it is the question of the protections for the defendants and the accused.

All of us know that we want the Pol Pots and the Milosevics, and all those individuals, to be brought to a bar of justice. But we're not going to have this, in fact. What we do need is to have a due process for those who are accused. Unfortunately, under the ICC there is no due process. In fact, the accused cannot confront his accuser because priority is given to victims. We find the right to have cross-examination is not present. And of course we have no provision for a jury.

This is totally standing on its head our Judeo-Christian concept of criminal law. It's totally changed. During the negotiations, the Arab and the conservative Latin American delegations raised strong objections to the inclusions of this gender program within the ICC. Included was the words “enforced pregnancy”. It is significant that Canada, Australia, and western Europe insisted that it be included. Ultimately, the definition was somewhat limited, but we know the prosecutor, who no doubt will have a feminist bias, since the feminists' control of this ICC is apparent, will insist that it include a worldwide right to abortion on demand. No matter what one's personal views may be of this, it is significant that you're going to have a so-called criminal court changing the dynamics of the culture and religion of the Arab, Israeli, and Latin American countries.

Other language in the Rome Statute is similarly open to manipulation. We not only have the definition of the three main crimes open to manipulation, but we also have it widely interpreted so that it's very troubling. For example, they have gender. After three weeks of fighting and struggling at Rome, they finally defined that the word “gender” would mean “male and female in the context of society”. Nobody knows what that means. Yet you are putting this whole ICC into this pot, which has wide, elastic definitions of no understanding.

There are other problems with the ICC. Under the provisions of the Rome Statute, the ICC may employ free of charge the expertise of personnel provided by state members and individual NGOs. This means, of course, that well-funded radical feminist groups in countries around the world and also other than feminists—people with their own agendas—will be stacking the court. And it doesn't have to be feminism; it could be any number of things.

We also have it that NGOs from around the world can make financial contributions to the $80 million annual cost of this. This has a whiff of justice for sale.

We also have questions about the universal jurisdiction of this court. International law has always required that nation-states be bound by UN treaties only when ratified by them, and this is simply not going to happen with this ICC. So you have it becoming a politicized court.

I want to tell you that Canada, not only at this conference, but at many other UN conferences we attended, has taken a leading role in trying to convert this ICC and many other UN documents to serve a very narrow perspective. Canada makes controversial proposals. It has become, some like to say, a spokesperson for the European Union, Australia, and New Zealand. In fact, some have referred to Canada as the great stooge at these UN conferences because they know that when Canadian delegations make their presentations at these conferences Canadians will never find out what's going on. It's only because we were there to listen to the Canadian delegations that we were horrified.

• 1635

I've heard many shocking things when I've been at these UN conferences, but nothing has shocked me more than the Canadian delegation at these conferences. They operate in the dark, so nobody knows what's going on. This is due to the fact that the Canadian Parliament plays no role in entering into treaties or in the formation of international policies. Apart from the Prime Minister, the Minister of Foreign Affairs controls the entire situation with regard to Canadian delegations.

Canadians, by way of the paid senior bureaucrats in the Department of Foreign Affairs and the minister, are binding Canadians, not only internationally but by domestic policies. In fact, this is the first time in all the years we've attended UN conferences that we've had the opportunity to raise this issue, the reason being that there's only an executive decision that treaties and international obligations become ratified in Canada. The United States has a different system. They require a two-thirds majority of the American Senate. In Canada, we have absolutely no say, Canadians or Parliament, as to what we're bound by.

The reason for this is the 1947 letters patent, which gave Canada the powers of the British government. I've attached this to our brief. It was passed in 1947, when we had our first Canadian Governor General. Under that document, all the powers of the British Governor General could be brought over to Canada. It did not say that Parliament should be excluded. It did not say that. It just said all the powers....

In fact, what's happened is that the Department of Foreign Affairs and the government have said that they don't have to go to Parliament because it wasn't specifically written in the Constitution Act of 1867 and it wasn't specifically written into the letters patent of 1947. They have abrogated to themselves the entire power to bind us as a nation.

Whatever your views may be in this so-called ICC, which is a gender court, whatever your views are on all the issues, forget that. Look at the principle. What is going on is that Canadians, whether they're from Quebec or British Columbia, have no say as to how they're being bound because no one has questioned what's going on in the Department of Foreign Affairs. It's only because the ICC, Bill C-19, was brought forward, which requires extra-territorial application in Canada, that we've had an opportunity to bring this issue forward.

We have 19th century practices of ratifying international treaties and documents being applied in the 21st century. We're in the 21st century, yet there are no democratic rights in regard to what's going on. This ICC, the Rome Statute, is a prime example of what is going on. How many members of this foreign affairs committee know what was in the ICC statutes? You're only told what the Department of Foreign Affairs chooses to let you know.

I have seen the arrogance of our Canadian delegations. I have seen the tricks, the manipulations. I won't go into that here, but I'd be more than happy to give you examples from over six long years of attending these conferences. If those who are on the Liberal side say “That's okay, we're getting what we want”, think a minute. Some day you won't have a Liberal government in power. It's always possible. There may be another government that will reverse this.

Mr. Daniel Turp: No, no!

Voices: Oh, oh!

Ms. Gwendolyn Landolt: I know our friend Dalton Camp said that the Liberal Party regards the possibility of not being re-elected as a constitutional crisis. I think it's always possible. It may happen. So don't think you're happy with these reservations that have happened, these changes in the ICC. They may be what your personal agenda is, but that is not the issue today.

The issue today is the principle of no parliamentary approval or ratification. No other democratic country has that and nobody has exposed that, simply because we've never had the opportunity. We got this system from Britain, but Britain is different in many ways. The Lord Chancellor sits in the upper house. The Lord Chancellor is the head of all the judges. He can review the statutes. The Attorney General in Britain is different. He's not necessarily a member of the party in power. He can review what's going on. We do not have those checks and balances under our Canadian system.

• 1640

I am very grateful that I can expose this, because it's never been brought forward before. It's tying in with the ICC. I want to reiterate it is simply not a criminal statute that will get the Pol Pots. It is a gender human rights tribunal, and Canada, I can tell you, led the way. I saw the deviousness. The chairman of the whole was Philippe Kirsch, who was speaking to you this morning, and I know what he did to manipulate the results, of which I can tell you privately, but not now. I know the outcome came because of the manipulation, and the reason Canada and its delegations have been allowed to manipulate is they know Canadians will never find out.

I spoke to another head of the Canadian delegation in Rome, and I said, “What are you doing with this Rome Statute? It's supposed to be a non-political criminal court.” Very pompously he said, “This is the policy of the Government of Canada.” I said, “The Government of Canada? How many people know about it? How many on the foreign affairs committee know what you're doing here?” His only response was to smirk and walk away, knowing full well that not even members of the Liberal Party know what's going on and know the implications of this International Criminal Court.

Thank you very much.

The Chairman: You might be interested to know that in fact we had extensive hearings about this treaty during the course of its negotiations, and we had many members of the diplomatic delegation here telling us what they were doing.

But I notice Mr. Turp was very grateful to you for the plug you've been giving for his private member's bill, which he's been arguing in his most subversive manner for the last few years.

Mr. Daniel Turp: I wouldn't say it was extensive, Bill, because we had one hearing on 8 June 1998. It wasn't extensive, but it happened.

The Chairman: That's not to say we were not—

Mr. Daniel Turp: We were briefed by the Foreign Affairs people before the treaty was signed by Canada.

The Chairman: And members could go, if they wanted to, to Rome as well. They were included.

Ms. Gwendolyn Landolt: I'd like to make a comment. Again, you said the diplomatic corps brought this forward. You were told only what they wanted to tell you. You had to be there to see it.

The Chairman: Madam, we're capable of ascertaining what we are told by our diplomats and dealing with them. We deal with them on a regular basis. I don't think we have to be told by anybody what we know or don't know.

Ms. Gwendolyn Landolt: I stand corrected.

The Chairman: The members of this committee work hard to ascertain what is happening, and we don't pretend either not to understand how the Constitution of this country works, which some of us around this table have taught in law schools for many years.

Now I would ask for Mr. Narvey. I can only give you five minutes, sir.

Mr. Kenneth M. Narvey (Legal Researcher and Chief Operating Officer, Coalition of Concerned Congregations on the Law Relating to War Crimes and Crimes Against Humanity, Including Those of the Holocaust): I think I will speak more quickly even than I usually speak.

My name is Kenneth Narvey. I am the legal researcher and chief operating officer of a coalition of Montreal synagogues, six in number, including many survivors of the Holocaust. Its full name is the Coalition of Concerned Congregations on the Law Relating to War Crimes and Crimes Against Humanity, Including Those of the Holocaust.

[Translation]

My name is Kenneth Narvey. I am the legal researcher and chief operating officer of a coalition of Montreal synagogues, six in number, including many survivors of the Holocaust. Its full name if the Coalition of Concerned Congregations on the Law Relating to War Crimes and Crimes Against Humanity, Including Those of the Holocaust. I shall be pleased to answer your questions in any official language.

[English]

I have been for 23 years now a full-time worker on the questions that arise in this bill, with a number of Jewish organizations and on my own behalf, and now with the coalition. Representing a Jewish student organization, I was able to obtain during the period 1980-81 the present wording of paragraphs 11(g) and (h) of the Charter of Rights, on retrospectivity and double jeopardy. In front of Mr. Justice Deschênes, I proposed Criminal Code wording that was largely adopted by Mr. Justice Deschênes and then by the Parliament of Canada. This is the Criminal Code wording that is now being replaced.

It is my firm belief that anybody who comes before a committee should bring with him, if at all possible, specific draft wording in English and in French, because the committee cannot vote on an idea, but it can vote on specific draft wording. I wrote to the clerk on Sunday a letter, which I believe you have, and I will go very quickly through the four things it says. I have written today a second instalment, which I will also mention if time permits. And I will deliver to you further specific draft wording in time for your meeting of tomorrow.

• 1645

At page 1 of the bill there is definition of “conventional international law” that says conventional international law is not conventional international law unless Canada is a party to it. That's nonsense. A club is a club whether I belong to it or not.

I propose that where it says “Canada”, it should say “in respect of a given state” and “which that state has agreed to accept”. The idea of accepting something you're not really a party to is important. Japan accepted to apply the Geneva Conventions of 1929 during the Second World War without being a party, and therefore was held to it by the Tokyo tribunal. But it is any state, and not just Canada, that ought to be in the definition there.

The second thing is, the definition of the Rome Statute refers to the Rome Statute passed on such-and-such a date, as corrected by two procès-verbaux. There are two things wrong with that. There have been three procès-verbaux, not two. Secondly, nobody can tell from reading that what we're talking about when we say procès-verbaux.

I suggest this be made clear by the wording I have on page 5 of my letter:

...as corrected by procès-verbaux of rectification of the original of the Statute, issued by the Secretary-General of the United Nations, acting in his capacity as depositary of the Statute, after communicating proposed corrections to all interested States, including the procès-verbaux....

There's an odd thing. I have the procès-verbaux here. I don't know if they're in your briefing brooks. If somebody will tell me afterwards if they're not, I'll give you copies tomorrow. If you look at the schedule to the bill, the French of articles 6 and 7 and paragraph 8(2) totally omit all of the corrections that are in the procès-verbaux. There are over forty errors in the schedule to the bill by not including the actual corrections in the procès-verbaux. This is a scandal. I didn't think I would be pointing out over forty errors.

One of the corrections in the second procès-verbaux itself has an error. It says in English you shouldn't let people under 15 into armed forces or groups. In English that means armed forces or armed groups. The French left out “or groups”, so they added

[Translation]

«les forces armées ou groupes». This is ridiculous. It shouldnÂt say groups or armed forces but armed forces or armed groups. The French

[English]

is a little bit different from English. You put your adjective after the word, not before the word.

This shows there is room for further procès-verbaux to correct the statute.

That's at page 5 of my brief, and I have stuff available on both disk and paper to assist the committee with that.

At page 6 of my paper, in the third recommendation, I point out that the bill says the terms of the bill will be interpreted in accordance with the Criminal Code. But Canada is here subjecting itself to international law; therefore international law should also have something to say as to the meaning of the terms. I give specific draft wording to say the terms of the bill will be interpreted in accordance with international law in the broad sense, and failing that, the Criminal Code.

My fourth recommendation overlaps that of Professor Morgan. One thing I was surprised to see in this bill is it does not state that the Rome Statute is hereby approved. The Geneva Conventions Act says the Geneva Conventions are hereby approved. The NAFTA Implementation Act says the NAFTA agreement is specifically approved. While this bill implicitly approves the Rome Statute, it does not explicitly approve the Rome Statute.

I have drafted something at pages 8, 9, and 10 of my first letter. I don't expect people to jump into my arms on it, but I wish to point it out as an expression of concern about a way of dealing with a problem. My recommendation—and I have this in English and in French—is conditional approval of the Rome Statute. This would be a new clause 3.1 and would say:

The Rome Statute is hereby approved, except that the Parliament of Canada does not agree with the view, set out in article 8(2)(b)(viii) of the Rome Statute as corrected to date, that the transfer, directly or indirectly, by an Occupying Power of parts of its own civilian population into the territory it occupies

(a) constitutes a serious violation of the laws and customs applicable...and

(b) should constitute a war crime, for the purpose of the Rome Statute or otherwise

unless the said transfer is accomplished by force or other coercive means, without grounds permitted under international law, as set out in the definition of “deportation or forcible transfer of population” in article 7(2)(d)....

• 1650

I propose that Parliament instruct the Attorney General of Canada and the Deputy Attorney General of Canada that they shall not prosecute the offence of transfer except in the case of forcible transfer and that they should instruct the courts that they shall not convict for transfer except in the case of forcible transfer.

I also recommended, on page 9, that the committee instruct the Minister of Foreign Affairs to seek a procès-verbaux by the Secretary General that would correct the 8(2)(b)(viii) so that it only applies in the conditions of 7(2)(b). We do not want to assist the arrest of Shimon Peres for the crime of having encouraged Israelis to move to the West Bank or the Golan Heights.

I also propose that the committee instruct the Minister of Foreign Affairs to do what he can in the preparatory committees to this effect.

Lastly, I state that the minister should report to this committee and the Senate committee, and if he is unable to get changes, which I think he will be able to get, that the Rome Statute not be ratified absent a two-thirds majority in this committee, the Senate committee, the House and the Senate.

What I say is that there should be rectification before ratification, that sacrificing oneself for the greater good is a noble thing, but sacrificing one's friends is not.

The last thing I have written up is there has been unanimity from everybody except Madam Landolt, who did not address it, that inside and outside should be integrated. I believe in specific draft wording, not just ideas. So at the lunch break I began in my second thing to say how that should be done. It's by striking out clauses 4 and 5 and the heading before clause 4, and by changing the heading before clause 6 to “Offences Within or Outside Canada” and by changing the line in clause 6 to “commits within or outside Canada”.

I found clause 7 quite complicated, so I put it off until tomorrow to give you specific draft wording for clause 7. There are also problems that have been pointed out this morning. The definition of “crimes against humanity” is incorrect. Words have been dropped that should not have been dropped. Words have been added that should not have been added. The definition of “genocide” is incorrect. There are words that are there that are not the proper words.

There are a dozen other things that are wrong with this bill. I will type as fast as I can. I will give them to you tomorrow. I'm glad you're not doing clause-by-clause until Thursday, because I will give you more then. And I do hope you will go over to next week, because I will try to take it right down to the end.

Thank you.

Mr. Daniel Turp: Would you like to rewrite it?

Voices: Oh, oh.

Mr. Kenneth Narvey: Yes, I would. I would like to rewrite it, but I will provide you with drafts. My drafts, of course, are not written by God; they're only written by your humble servant. But your humble servant does know how to draft legislation in English and French.

I may say that for another standing committee, the Standing Committee on Citizenship and Immigration, I made three proposals for Bill C-16. Two of them were adopted by the committee. If I can have the same score here, I will consider my time well spent.

I do feel that I am defending a thesis before distinguished professors of law. Thank you very much.

The Chairman: Thank you.

[Translation]

Mr. Daniel Turp: [Editor's Note: Inaudible]

[English]

The Chairman: Mr. Narvey, you're obviously not aware of the dictum about the statutory draftsman who once said, “When I drafted this statute, only God and I knew what it meant, and I've forgotten”.

Voices: Oh, oh!

The Chairman: That's true of many of the statutes around this particular place.

Mr. Kenneth Narvey: I'm aware of the judge who said “The question is not what the draftsman intended to say, but what he succeeded in saying”. I do my best.

The Chairman: Good for you.

Colleagues, I'm going to hold this to five minutes, because I suspect the bells are going to start to ring about 5:15 and then we can go on a few more minutes.

Obviously these are very important briefs by all the witnesses. They've been very helpful. There are some very technical matters in there, which I assure the witnesses will be addressed by members of the department who are here and other experts we have who can look at the technical issues you've raised, for which we thank you very much.

We'll start with Mr. Anders and try and keep it to five minutes.

Mr. Rob Anders (Calgary West, Canadian Alliance): Thank you, Mr. Chairman. I'd like to direct my question, if I could, to Mrs. Landolt.

I am a new addition to this committee. I'm standing in for a colleague of mine. But I know that I never attended the United Nations during deliberations in setting this up. I know that I never attended Rome in the deliberations to set this up. I look around my committee colleagues, and I'm guessing none of them attended the United Nations or Rome as this was being set up either.

• 1655

You said you could go on with some detail with regard to some of what you call tricks and manipulations that were undertaken by the Canadian delegation. Since I wasn't there, and many of my committee colleagues weren't, can you elucidate us on that, please?

Ms. Gwendolyn Landolt: To start off with, the Canadian delegations are not reflective in any way of Canadian society. They're usually reflecting a very narrow perspective.

The chairman of the whole in Rome was the gentleman who spoke this morning, Philippe Kirsch. On July 5, which was a Sunday, Philippe Kirsch, who was chairman of the whole, when the conference was in recess—it was Sunday—called a private, secret meeting of the Canadian delegation at the Canadian embassy in Rome for 30 select people.

At that private, secret meeting he had the head of the feminist women for justice speaking, addressing them about why this court should be turned from a criminal court into a feminist gender court. No other voices were allowed but the 30 he was trying to influence, using his position improperly as chairman of the whole.

One of the persons there, from Costa Rica as a matter of fact, found out about it and was incensed and raised this on the floor the following morning. This person objected strenuously to the deception, the secretiveness, and the improper behaviour of the chairman of the whole calling a private meeting. Mr. Kirsch's only response was “We didn't have room for anybody else at this meeting”, which is peculiar, since the Canadian embassy hosts hundreds of people at receptions. Secondly, he promptly ordered that the conference be suspended temporarily so no further questions could be asked.

Another example of what occurred in Rome was, again, the chairman of the whole—and I'm bringing this up because he had the responsibility, he was there—advised the whole proceedings that there were many issues.... As you can imagine, there were tremendous issues involved here that were never even discussed. We never even got to some of the definitions; they weren't discussed. He told the conference of the whole that he would bring forward proposals by Wednesday noon of the last week. Unfortunately, he never brought the proposals to the floor until Friday morning, hours before the conference was terminated, and unfortunately the Italian government had already ordered a great ceremony the following morning and people were flying in, foreign ministers and prime ministers were flying in, in order to sign this document, to have this final approval through.

In fact, what happened by his delaying presenting the proposals is the delegations were unable to know what was in the document. You would go from country to country to country in delegations and you would ask, “Do you know what this is? Do you know the implications of this?” They said no. And this is being pushed through by Canada—and in many cases Canada was responsible for it; they want it.

They said Canada is—and I quote the word—a “stooge” for the western powers. I didn't think of that. I'll tell you that the head of the Arab delegation said Canada is a stooge for what's called the JUSCANE nations, which is Australia, Japan, New Zealand, United States, the European Union, and Canada. Canada is constantly being used for that purpose. For example, when there were sticky issues in the International Criminal Court that people couldn't resolve, another chairman would ask, “Canada, would you please go off and negotiate this”, because they know we write the language.

Canada came back with almost identical language, and then all the other nations, which are called the developing nations, which is about 135 countries, said “We don't like that”. But the chairman would say “Canada has graciously redrafted this language; you're holding up the progress.” These people, because of the public censure of objecting to what Canada had done, sat back.

Again and again Canada negotiated this peculiar gender definition. Canada attempted at the ICC to have all the judges be gender-specific and to have gender violence and gender crimes to be part of the background, ignoring all the other issues that should have been brought forward.

• 1700

Those are only some of the examples that occurred at ICC. I can go through every UN conference and give you example after example of Canada taking the lead role and other countries not doing it. I'd go to the United States and ask, “Why didn't you present this particular proposal which is so controversial?” They would throw up their hands and say that it was because they had to face the Senate and Jesse Helms and they were afraid and didn't want to do that.

But Canada doesn't have to address anybody; these things are whipped through by an executive decision only.

Those are some of the examples of the unethical and improper actions that I've observed, not just at the ICC, I want to reiterate, but at many UN conferences.

It's always Canada. In fact, people would say to me, “Oh, you're a Canadian”, and oh, the recoil! I said, “No, I don't support my own delegation on this.” Canada is known in many delegations as the ugly Canadians because of that.

I spoke to the ICC delegation for Canada and said that people didn't like what they were doing and they smirked and said, “Oh, no, they like us.” Obviously they don't know what's stewing. About one of our negotiators in Rome, for example, they said she was very well liked and very well received, but did you know that all the developing world called her “The Snake”? They didn't like her because, they said, she was going to strike again.

So what the perception of the Canadian delegation is—that they're noble and good—is not what the other delegations think, and certainly many of us who were there as Canadian NGOs were simply appalled by what went on.

The Chairman: I hope you will agree with me that not only the American Senate hears these opinions. We've just heard yours. Thank you very much.

Monsieur Turp.

[Translation]

Mr. Daniel Turp: Mrs. Landolt, even though I appreciate your suggestion that Parliament should be more closely involved in the treaty process, which is highly desirable, your submission was attacking the relatively successful attempts made the Government of Canada and other governments to give women a role in this International Criminal Court. I think that my party could not subscribe to your thesis and I wish to hear Mrs. Bedont's answer to your statements. I would like to give her the opportunity to present her own version of those events. This is my first question.

By the way, Mr. Narvey, I thank you for presenting us with amendments that will probably have to be passed. You have drawn our attention to technical errors in this Bill and I think that we are going to study carefully all your suggestions.

I would like our three witnesses to tell us if the universal jurisdiction should be as large as is proposed by Ms. Bedont. Do you think, for instance, that paragraph 8(b) of the Bill should be amended so that it would not limit the universal jurisdiction to the concept of custodial jurisdiction as Mr. Robinson indicated when he appeared before the Committee? Do you think that we should be able to prosecute in Canada individuals that are accused of war crimes or crimes against humanity even if they are outside this country? I also ask for the opinion of my colleague, the professor of international law.

Mrs. Bedont, you should answer Ms. Landolt's comments. The members of this Committee would be happy to hear another version of those events.

[English]

Ms. Gwendolyn Landolt: Excuse me, Mr. Chairman. May I just say something? It appears that you've misunderstood.

The Chairman: Perhaps you'll—

Ms. Gwendolyn Landolt: It's not women I'm concerned about. I'm a woman and I'm a lawyer and I went to law school long before feminism—

The Chairman: Madam Landolt, if you don't mind, we have a—

Ms. Gwendolyn Landolt: —entered the scene.

The Chairman: We have a procedure in this committee—

Ms. Gwendolyn Landolt: What I'm trying to get across is that this is an ideology.

The Chairman: We have a procedure in this committee, Madam, and that is that you ask the chair for recognition.

Ms. Gwendolyn Landolt: I thought he was asking me a question, Mr. Chair.

The Chairman: No, Madam, he did not ask a question of you—

Mr. Daniel Turp: No.

Ms. Gwendolyn Landolt: I thought you addressed me, did you not?

Mr. Daniel Turp: No, I didn't.

The Chairman: And, Madam, if you are a lawyer, you know the procedure as well as anybody else—

Ms. Gwendolyn Landolt: Oh, I thought he had addressed me first.

The Chairman: —and I would ask you to respect it.

Ms. Gwendolyn Landolt: I beg your pardon. I misunderstood that.

The Chairman: I would appreciate it if you would respect it.

We allowed you, when answering your question, to go well over the five minutes. I understand your point of view, and it's a point of view you're entitled to speak before the committee. But as you know, everybody has to operate within rules if we're to get things done.

• 1705

Mr. Turp has only five minutes for his question. He asked Madam Bedont and Professor Morgan to answer. I'd appreciate it if you would have the courtesy to allow them to answer. Thank you very much.

Ms. Gwendolyn Landolt: I misunderstood. I am sorry.

The Chairman: Well, then, perhaps if you misunderstand, the best wisdom in these cases is to remain silent rather than to interrupt.

Madam Bedont.

[Translation]

Ms. Barbara Bedont: I thank you for your question.

[English]

I don't want to waste the time of the members of this committee by responding to certain points that don't have anything to do with the subject we're talking about here today.

I think the best response is really the Rome Statute and the provisions of the Rome Statute, which make it clear that this is not a human rights tribunal. I don't think the international experts would agree that this is an international human rights tribunal. This is clearly going to be a system for criminal justice. There are sufficient safeguards to ensure that it won't be politicized, and Mr. Kirsch outlined some of those earlier today, so I won't respond to those points directly.

Regarding your question about paragraph 8(b), I agree that this paragraph does restrict it to custodial jurisdiction. I don't know if the solution is to amend it or if the solution is to eliminate all of clause 8, not just paragraph 8(b). Obviously I would leave that to the drafters to figure out. But it is this requirement that there be some kind of connection that prevents this regime of clauses 6 and 7 from fully adhering to the principle of universal jurisdiction, so you're correct in identifying that to be what we consider the problem.

The Chairman: Mr. Morgan.

Mr. Ed Morgan: Thank you, Mr. Chair.

Thank you, Mr. Turp.

It's an interesting problem. It seems to me, though, that because these amendments to the Criminal Code, in conjunction, hopefully, with an International Criminal Court and the extradition provisions.... It seems to me that what Canada is aiming to do, as Ms. Bedont said, is to only prosecute those under custodial jurisdiction who have some kind of link to Canada itself and leave to the international process those whose offences aren't linked, in the clause 8 way, to Canada.

You're correct in indicating that it falls short of what the true international law on the point is: Canada should be able to exercise international jurisdiction as it's defined in international law. But having said that, from a policy point of view I can understand why it is that we only want to engage in domestic prosecutions where there's some link to the country and leave the International Criminal Court to the international criminals whose offences have no link whatsoever to Canada. So I take your legal point, but I personally don't have a policy objection to the way it's drafted at the moment.

Mr. Kenneth Narvey: Mr. Chairman...?

The Chairman: Well, very briefly, because the five minutes are now up.

Mr. Kenneth Narvey: Very briefly, there has to be a link, but there was a link that was proposed by Mr. Justice Deschênes, who refers to me as having proposed it. What I showed was that in the law of western Europe, not only if a person is a citizen when they commit it do you have jurisdiction over them, but if they become a citizen, you then have jurisdiction over what they did before.

I think Mr. Justice Deschênes added that not only do you have jurisdiction if a victim is a Canadian, but if a victim becomes a Canadian afterwards, so that if a crime was committed against the person and that person later becomes a Canadian, or by a person and that person later becomes a Canadian, international law permits, under the principles of the locus, that Canada take jurisdiction. And I suggest that it should, as did Mr. Justice Deschênes.

The Chairman: It sounds a little bit like a criminal law version of Helms-Burton, but we'd better not get into that, colleagues.

Some hon. members: Oh, oh!

The Chairman: Professor Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): I have questions for most of the parties, but given the constraints of time I just want to begin with Ms. Landolt's comments about the court.

• 1710

You began with a proper expression or concern that people would have about courts, generally speaking, and which I think the ICC understood, the concern about politicization, and made reference to certain gender-based provisions and matters regarding the appointment of judges, under article 36 case studies.

But I have to tell you that in listening to your submission, the submission itself appeared to be replete with politicized commentary, of which some examples are “feminist control of the ICC”; “ICC is a gender court”; “this will lead to a world-wide right to abortion on demand”; “well-funded radical feminist groups will be stacking the court with justice for sale”; “Canada is a great stooge”. I can go on and on.

Then you asked, after doing this, the rhetorical question, “How many on this committee were told what was in the ICC statute?” Well, maybe some of the people on this committee—and I think I'm one of them—happen to have been in Rome, happen to have attended the preparatory committees, and happen to have participated in the process. What concerned me when I listened to your presentation was I didn't hear anything other than the characterization of this as the gender court.

In terms of a reference to the subject matter, jurisdiction is being limited to the most heinous of international crimes, so gender violence is but one particular and abbreviated component of a list of crimes. There is no reference to provisions respecting the exercise of jurisdiction; no reference to the high threshold respecting the role of the prosecutor; no reference to procedural due process—and I was surprised when you said there was no right to cross-examination in this statute; no reference to the witness protection system providing a certain sensibility with regard to the concerns of women or children; no reference to the fact that crimes of sexual violence are anchored in customary law in general, or international humanitarian law in particular; and no reference to the fact that recent judgments had nothing to do with the ICC.

The Akayesu judgment in Rwanda really gave expression and example to what was put in the ICC provisions. In other words, I'm concerned that your whole approach in your oral submission reflected a politicized commentary. I think we would have benefited much more from a juridical critique based on a specific reading and interpretation of Bill C-19, which is before us, rather than a commentary imputing politicization to the ICC process.

I trust your written submission will provide us with that juridical critique and leave out the politicized commentary, which frankly I did not find of assistance.

Ms. Gwendolyn Landolt: May I respond?

First of all, I'd like to make it clear that we are not dealing with women and women's rights; we're dealing with ideological rights. I think there's a great difference. In fact, the jurisdiction given here by the prosecutor is utterly independent. It's answerable to no one. We know that. I'm surprised you don't bring that out.

The question of victimization is also here—that victims have a very prime role. As a woman, I'm obviously concerned about that. Through the preparatory committees I've attended, they do not necessarily want them to disclose their identities. There is no opportunity for cross-examination. This is what is being put forward. I am a lawyer, and I have grave concern about those issues.

As you say, in Rwanda they've defined this and defined that, but the wording is very elastic in the three crimes. For example, what does rape mean in Canada, and what does it mean internationally? What do you mean by gender violence? What do you mean by these vague terms? What, in fact, is violence? They're proposing that violence be defined as emotional violence as well as physical violence. All these things are up for grabs. I am entitled to my own agenda and my own ideology, which is equally as valid as yours. I know you have quite a different ideology from mine.

I am proposing that these issues have not been grappled with. Canada took the lead and pushed it in a very narrow agenda. I stand by what I say about the lack of precise definition in the three definitions of the crimes. I stand by what I say that the victims have taken much more responsibility than they do normally. All I'm asking for is due process in law—that's all. There isn't any, by these standards. It's not what our understanding of criminal law is. This is quite different.

The third thing I'd like to bring to your attention is the question of jurisdiction. This is wide open, and if anybody thinks this is limited to simply a criminal court, I think they're blissfully naive.

• 1715

The wordings are so vague and elastic that it's going to be a much broader court, with supreme powers in the prosecutor. It is frightening. For example, the prosecutor can accept complaints from any individual worldwide. That means a minister of health in Brazil can be brought forward to this ICC by some NGO or individual because they don't provide this or that. In other words, the concept here is frightening.

If we had a court, Mr. Cotler, that was strictly a criminal court to get the Pol Pots and all those people—and that's what I thought we were going to have—I would be there first to have a permanent court. But we don't have that. I don't care what your views are on these issues, but obviously you and I don't agree on what's happened at the ICC.

I know you have another agenda from mine, but please be open to the fact that we all have agendas. I am proposing what I saw with my own eyes at all the preparatory committees, as well as at the Rome Statute.

Mr. Irwin Cotler: I just want to say that we all have ideologies and we all have agendas. I would hope we would have a joinder issue on matters of law, and not make references in manners of ideology and agenda.

Do I have time, Mr. Chairman?

The Chairman: The bell is now starting.

Let me just ask a technical question, Ms. Landolt. You made the point that the Rome Statute will affect the rights or guarantee the rights of abortion and affect legislation in countries that do not allow abortion. I just want a technical answer. Are you basing that on a reading of article 7.2(f), or is there something else in the statute you're referring to?

Ms. Gwendolyn Landolt: It's the question of enforced pregnancy that I want to include in the definition. I would like people to know that was brought forward by Canada in Geneva by the Minister of Foreign Affairs on April 30, 1968. He introduced enforced pregnancy as part and parcel of the definition, and it was included.

So what does enforced pregnancy mean? At the Rome conference—

The Chairman: It says it right here in the statute.

Ms. Gwendolyn Landolt: —we tried to narrow it.

The Chairman: The statute defines enforced pregnancy. Is that the basis you have for asserting to the committee that this statute will legalize, if you like, abortion throughout the world and not allow people to deal with the issue of abortion? Are you basing it on something else in the statute?

Ms. Gwendolyn Landolt: Mr. Chairman, that's one.

The Chairman: Okay. What is the other?

Ms. Gwendolyn Landolt: The definition of violence is another. What that definition means is another. There are numerous ones I could bring up, but certainly enforced pregnancy is the paramount one that comes to mind, because that took three weeks of debate, as Mr. Cotler will agree, at the conference.

The Chairman: We'll have to deal with that ourselves then, to try to understand where that takes us.

Colleagues, I'd like to go to another round, because there is obviously lots of interest in these issues, but we're going to have to break and get back to the House. It will take us ten minutes to get there.

I just want to remind members we've agreed we're not going to sit on Wednesday to go clause by clause. We will consider some of the amendments that are coming forward on Wednesday afternoon, but we will sit Thursday morning and Thursday afternoon with the hope of completing it. If we don't, we'll go on into Tuesday morning.

Mr. Turp.

[Translation]

Mr. Daniel Turp: Are we going to get the government's amendments?

The Chairman: Do we have them?

A voice: I hope that we will get them by tomorrow afternoon.

The Chairman: We will get them tomorrow afternoon. We shall have a rather informal discussion on all amendments so that everyone can get a chance to fully understand their meaning before we get to the clause-by-clause study.

[English]

I just want to thank all the witnesses. Don't misunderstand if we have a debate about these issues. As you said, everybody has a right to their opinions, Madam Landolt, and these raise important opinions. We're grateful to all the witnesses for bringing their perspectives to us.

Thank you very much. We're adjourned until 3:30 p.m. tomorrow.