Dealing with War Crimes

The Challenges in Dealing with War Crimes: Canada’s Options

By Alana M. Abramson

July, 2009

Background
As of 2009, there were an estimated 1,500 suspected war criminals living in Canada (Banerjee, 2009). The Canadian government has a number of options in dealing with this issue and has taken a “No Safe Haven for War Criminals” approach. Their responses to this end include criminal prosecution, revocation of citizenship, deportation, and extradition to international tribunals or courts. Although these remedies are highly intrusive to the personal freedom of accused persons residing in Canada, the process and authority granted to government bodies to perform these acts is not often scrutinized. In addition, the $15.5 million a year spent nationally on the Crimes against Humanity and War Crimes Program in Canada (CBSA, 2007) remains a mystery to many. The first Canadian criminal court conviction for war crimes took place in May of 2009 and this case raises questions of how policies to deal with these accused individuals are being applied, both nationally and internationally.

On May 23, 2009 in Quebec, Desire Munyaneza, a Rwandan national living in Canada, was convicted for acts of genocide that occurred in 1994 while he was living in Rwanda. Many following this story may wonder how someone could be prosecuted in Canada for crimes he did not commit here. The answer lies in an international commitment to hold war criminals accountable no matter where they live. As part of Canada’s commitment to the Rome Statute (discussed later), there is a coordinated effort by several government agencies to apprehend and prosecute suspected war criminals living in the country. This is not the first time Canada has attempted to prosecute someone for war crimes committed in other countries. For example, in 1990, after a six-month trial, a Toronto jury acquitted Imre Finta, then a 77-year-old local restaurateur, of war crimes he was alleged to have committed in his native Hungary in 1944 (Fulton & Steele, 1995, 24). In fact, despite many attempts in Provincial and Federal courts, no case of this kind has been successfully argued to conviction until this year (Fulton & Steele, 1995, 24). Although Munyaneza’s lawyers have vowed to appeal this conviction that carries with it a life sentence, this case is a celebrated success by the Canadian Centre for International Justice, Rwandan Support Groups, and the RCMP.

Munyaneza was located by a specialized unit of the RCMP while he was living in Toronto. This unit has been in operation since the mid-1980s as part of the federal War Crimes Program and now works in partnership with the Department of Justice (DOJ) and Citizen and Immigration Canada (CIC) to investigate possible war criminals living in Canada (CBSA, 2007). Once these individuals are identified, the RCMP, DOJ, CIC and Canadian Border Services Agency (CBSA) review the case and decide how to proceed. One of the options available is to prosecute the individual in Canada and this is what happened in the Munyaneza case. This conviction was only possible under Canada’s Crimes Against Humanity and War Crimes Act, which came into effect as federal legislation in 2000.

The Crimes Against Humanity and War Crimes Act was created after Canada signed the Rome Statute. Both the Act and Statute have played an important role as part of international strategies that seek to hold people accountable for grievous acts like genocide and other crimes against humanity such as enslavement, deportation, imprisonment, torture, and sexual violence. The Rome Statute was adopted in 1998 and was formally signed in Italy by 120 states. After being adopted by the United Nations, the Statute came into force in 2002 and 60 countries (including Canada, but not the United States) have ratified the document. The Statute is seen as groundbreaking as it included the idea of “universal jurisdiction" - the legal principle that allows countries to prosecute crimes against humanity that take place outside their borders. The Rome Statute is also important because it set the stage for the development of an International Criminal Court. This court, currently seated in The Hague, Netherlands, is an independent arm of the United Nations and is “the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community” (ICC, 2009). Parties to the Rome Statute, such as Canada, collectively oversee the operation of the court and have the ability to refer situations or cases. The UN Security Council can also refer matters, although the UN does not have any authority over the Court.

The Court is to be considered a court of “last resort” and is meant to work in partnership with State initiatives to deal with accused war criminals in the most appropriate way. The Munyaneza case, for example, could have been referred to the International Criminal Court, however, the choice was made to deal with it within Canada, using the Crimes Against Humanity and War Crimes Act as a practical application of the universal jurisdiction principle. However, criticism has been made as to the cost of prosecuting such matters within Canada. This critique has been met by those who support the use of the Crimes Against Humanity and War Crimes Act such as Professor Broomhall (Faculty member, International Criminal Law at Universite du Quebec a Montreal) who said, "I think it's a victory for the professionalism of the Canadian justice system to say these trials are not too expensive, they're not too complicated, they don't pose insurmountable legal hurdles, we can do them here. It's not to say we're going to do them every day, but I think those who say they can't be done have lost a bit of their credibility at this point" (2009).

What is the connection between this issue and the law and social justice?
The International Criminal Court and the Crimes Against Humanity and War Crimes Act are important because, historically, those in politically powerful positions who committed war crimes were not held accountable for their actions. Protected by their positions of privilege, these individuals often were not apprehended and even less likely to be prosecuted. The Munyaneza case illustrated that prosecution is possible and recent decisions made in other cases by the International Criminal Court suggest the same. However, these are only two approaches Canada has when dealing with possible war criminals. According to the Department of Justice, under the War Crimes Program, other responses include:

  • extradition to a foreign government (upon request);
  • surrender to an international tribunal (upon request);

  • revocation of citizenship and deportation;

  • denial of a visa to persons outside of Canada;

  • denial of access (ineligibility) to Canada's refugee determination system;

  • exclusion from the protection of the 1951 United Nations Convention relating to the Status of Refugees;

  • inquiry and removal from Canada under the Immigration and Refugee Protection Act.

The War Crimes Program in Canada is not only focused on apprehension but emphasizes prevention through heavy screening of citizenship applications through the CBSA. As a result, between 2006 and 2007 a total of 361 persons were prevented from coming to Canada because of possible involvement in war crimes or crimes against humanity (CBSA, 2007).

Clearly, the approach of the governments in dealing with suspected war criminals is either to prevent their entry into the country in the first place or, if detected, to export them or seek punishment through their own courts or the International Court. This is argued by the Department of Justice to be in line with the policy that “Canada will not be a safe haven for war criminals.” This approach, however, raises questions of social justice and morality. In the desire to have more integrated approaches in dealing with previous acts of war, not all countries in the world are united in the way they deal with these matters. The reliance on traditional systems such as criminal prosecution and incarceration is not questioned and the utility of such practices is assumed. Is punishment and exclusion the best way to deal with persons who have committed these unthinkable acts? Assuming that individuals act freely, rationally, and autonomously in times of war, it seems that this may be a vast oversimplification of the types of conflict that have happened in Rwanda. Is the Canadian judiciary equipped to ensure a fair trial for those accused of acts that took place within a country that has experienced violence on a scale that we have never known? As State Party to both the Rome Statute and International Criminal Court, Canada must think critically about the implications of our responses to accused war criminals found living in this country.

Questions to Consider

  1. Some argue that prosecuting war criminals for acts committed years prior will deter future acts of genocide. This implies that war crimes are thought-out and calculated on the basis of rational choice. Do you think this is the case? Why or why not?
  2. It has been argued that prosecuting war criminals will help heal the living victims and victims’ families for crimes committed against them. Do you believe this to be true? What assumptions must be made in order to make this argument? Do alternatives to criminal prosecution such as the Truth and Reconciliation Commission in South Africa offer any promise?
  3. The argument has been made that during war, people who commit harm to others are simply carrying out orders. Do you agree? What impact does this have on personal accountability and implications for justice?
  4. It has been argued that prosecuting war crimes brings the atrocities of war back into the public eye. Do you think this might serve to prevent war by being a reminder of the past?

Resources for Further Exploration

Case Law of the International Criminal Tribunal for Rwanda

http://www.hrw.org/reports/2004/ij/ictr/index.htm

Canada Border Services Agency (CBSA) (2007) Canada's Program on Crimes Against Humanity and War Crimes, 10th Annual Report.

Accessed at: http://www.cbsa-asfc.gc.ca/security-securite/wc-cg/wc-cg2007-eng.html

Fleeing Justice: War Criminals in Canada

http://archives.cbc.ca/war_conflict/war_crimes/topics/1435/

CTV Article – Opposition to Prosecuting War Crimes

http://montreal.ctv.ca/servlet/an/plocal/CTVNews/20070902/war_criminals_070902/20070902/?hub=MontrealHome

Canada’s Crimes Against Humanity and War Crimes Act

http://www.iccnow.org/documents/Canada.CrAgH.WcrEng.pdf

International Criminal Court – Information

http://www.icc-cpi.int/Menus/ICC/About+the+Court/

Department of Justice (Canada)

http://www.justice.gc.ca/eng/pi/wc-cg/index.html

Fulton, K. & Steele, S. Running Out of Time for Justice. Maclean's; 2/13/95, Vol. 108 Issue 7, p24, 2p, 1 color

Banerjee, S. May 22, 2009. The Canadian Press.

Accessed at: http://cnews.canoe.ca/CNEWS/Politics/2009/05/22/9537696-cp.html

Truth and Reconciliation Commission of South Africa.

Accessed at: http://www.doj.gov.za/trc/