1. Prosecuting War Crimes Crimes Against Humanity Genocide Canadian Responsibilities

2. Canada’s Duty to Prevent and Punish War Crimes, Crimes against Humanity and Genocide Canada has legal obligations to enact legislation and to exercise powers to prevent and punish war crimes, crimes against humanity and genocide. Torture is a war crime and a crime against humanity.

3. Canada’s legal duties to prevent and punish torture arise from:  international instruments to which Canada is a signatory including the: Rome Statute of the International Criminal Court, Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment, The Geneva Conventions, The Protocols Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International and Non- International Armed Conflicts ( Protocols I & II); and,  Charter of the United Nations; and,  laws passed by Parliament including the: Crimes against Humanity and War Crimes Act, The Criminal Code of Canada, The Canadian Charter of Rights and Freedoms, and The Geneva Conventions Act. Canada’s Duty to Prevent and Punish War Crimes, Crimes against Humanity and Genocide

4. I. The Geneva Conventions Canada has ratified all four of the 1949 Geneva Conventions and the two Optional Protocols of 1977. The four Geneva Conventions came into force in Canada 14 November 1965 and the two Optional Protocols on 20 May 1991.  The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of August 12, 1949  Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of August 12, 1949  Geneva Convention relative to the Treatment of Prisoners of War, of August 12, 1949  Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949

5. I. The Geneva Conventions The Geneva Convention Relative to the Treatment of Prisoners of War (GC III) specifically prohibits not only torture but also all forms of coercion of prisoners of war: The Geneva Convention Relative to the Treatment of Prisoners of War (GC III) specifically prohibits not only torture but also all forms of coercion of prisoners of war: Article 17 “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.” “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”

6. I. The Geneva Conventions Article 12 of GC IV prohibits transfers of prisoners likely to result in a loss of rights. “Prisoners of war may only be transferred… after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.”

7. II Geneva Conventions Act R.S. 1985, c. G-3 Offences Some grave breaches of the Geneva Conventions that are offences under Canada’s Geneva Conventions Act: “wilful murder, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health,” “wilfully depriving a prisoner of war of the right of fair and regular trial prescribed in this Convention.” “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” “unlawful confinement” (of civilians)

8. II Geneva Conventions Act R.S. 1985, c. G-3 Jurisdiction to Prosecute: Article 3 of the Geneva Conventions Act gives Canada the jurisdiction to prosecute ‘grave breaches’ including offences committed outside Canada by a person or persons not in Canada. Proceedings can be commenced in any territorial jurisdiction within Canada. The written consent of the Attorney General of Canada is required to commence proceedings.

9. II Geneva Conventions Act R.S. 1985, c. G-3 Duty to Prosecute: Geneva Convention relative to the Treatment of Prisoners of War (GC III), Article 130 III and Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), Article 146 impose a duty on Canada to: “…enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.” “…search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” Or “…hand such persons over for trial to another High Contracting Party concerned, provided that such High Contracting Party has made out a prima facie case.” “…take measures necessary for the suppression of all [other] acts contrary to the provisions of the present [Geneva] Convention…”

10. III The Rome Statute of the International Criminal Court (created the International Criminal Court on 1 July 2002) The Rome Statute of the International Criminal Court defines torture as a war crime (Article 8 (2) (a) (ii)) and bars all immunity for torture and other war crimes, crimes against humanity and genocide (Article 27.1). Canada is bound by and ratified the Statute of the International Criminal Court. (Signed 18 December 1998 and ratified 7 July 2000) No Immunity from Prosecution: Rome Statute of the International Criminal Court Art. 27.1 “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”

11. III The Rome Statute of the International Criminal Court Duty to Prosecute: The purpose of the Rome Statute of the International Criminal Court is to put “…an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. Ratifying states such as Canada have a duty to vigorously pursue investigation of allegations of Rome Statute violations and prosecutions of alleged perpetrators. Canada has implemented all its obligations to cooperate arising from ratification of the Rome Statute by passing the Crimes against Humanity and War Crimes Act and by amending the Extradition Act, the Mutual Legal Assistance in Criminal Matters Act and the Criminal Code.

12. IV Crimes against Humanity and War Crimes Act “Canada was the first country to introduce comprehensive legislation incorporating the provisions of the International Criminal Court statute into domestic law with the proclamation of the Crimes Against Humanity and War Crimes Act.” Seventh Annual Report Canada’s Program on Crimes Against Humanity and War Crimes, 2003 – 2004, p.4.

13. IV Crimes against Humanity and War Crimes Act Jurisdiction to Prosecute: This Act gives Canada jurisdiction to prosecute anyone present in Canada suspected of committing, conspiring or attempting to commit genocide, crimes against humanity and war crimes including torture wherever and by whomever such crime is committed. (Sections 6 and 8)

14. IV Crimes against Humanity and War Crimes Act Authority to Commence Prosecution: No prosecution can be commenced without the written consent of the Attorney General of Canada and the Attorney General of Canada must conduct prosecutions. (Section 9)

15. IV Crimes against Humanity and War Crimes Act Liability of Commanders and Superiors: Military commanders and superiors commit the offences if such person: ‘fails to exercise control or to take necessary and reasonable preventative measures and offences are committed as a result.’ (Sections 5 – 8)

16. IV Crimes against Humanity and War Crimes Act Program on Crimes Against Humanity and War Crimes Canada has a War Crimes Program which is a joint initiative of the Department of Justice Canada, the Canada Border Services Agency, and the Royal Canadian Mounted Police mandated to either keep war criminals and those responsible for crimes against humanity out of Canada or to take appropriate actions against suspected perpetrators including investigation, prosecution or extradition. “The policy of the Government of Canada is unequivocal. Canada will not be a safe haven for persons involved in war crimes, crimes against humanity or other reprehensible acts.” Seventh Annual Report Canada’s Program on Crimes Against Humanity and War Crimes, 2003 – 2004, p.3.

17. V Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment As a signatory to The Convention against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment [24 July 1987] Canada is required to arrest persons alleged to have committed, or to have been complicit in torture, and to detain such persons until criminal or extradition proceedings are implemented. Article 6.1

18. V Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment Duty to Prosecute or Extradite: Article 6.1. “Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 [torture] is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.”

19. V Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment Jurisdiction to Prosecute: Canada was obliged by Article 5 to create an expanded jurisdiction to prosecute torture. Article 5.2 compels Canada and other State Parties to take such measures as may be necessary to establish its jurisdiction over torture in all cases where the torture is either committed in the state’s territory, the alleged offender is a national, the victim is a national or where the alleged offender is present in the state.

20. V Convention Against Torture No Justification: Articles 2.1 and 2.2 prohibits the use of torture in the name of ‘military necessity’. 2.1. “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” 2.2. “An order from a superior officer or a public authority may not be invoked as a justification of torture.”

21. VI Criminal Code Of Canada Section 269.1 of the Criminal Code mirrors the definition of torture in Article 1 of the Convention against Torture and defines torture as an act or omission:  by which severe physical or mental pain or suffering is intentionally inflicted on a person  carried out for the purpose obtaining information, punishing, intimidating or coercing.  at the instigation of or with the consent or acquiescence of an official.

22. VI Criminal Code Of Canada TORTURE Section 269.1 (1) Every official, or every person acting at the instigation of or with the consent of or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (2) For the purposes of this section, “official” means: (a) a peace officer, (b) a public officer, (c) a member of the Canadian Forces, or (d) any person who may exercise powers, pursuant to a law in force in a foreign state, that would, in Canada be exercised by a person referred to in Paragraph (a), (b), or (c), (e) whether the person exercises powers in Canada or outside Canada; “torture” means any act or omission by which severe pain or suffering, whether physical or mental, in intentionally inflicted on a person (a) for a purpose including (i) obtaining from the person or from a third person information or a statement, (ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and (iii) intimidating or coercing the person or a third person, or (b) for any reason based on discrimination of any kind, but does not include any act or omission arising only from k inherent in or incidental to lawful sanctions. (3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency.

23. VI Criminal Code Of Canada Jurisdiction To Prosecute: The Criminal Code allows for prosecutions of torture wherever the torture occurred and whatever the residence of the alleged perpetrator provided ‘that the person who commits the act or omission is, after the commission, present in Canada.’ (Section 7(3.7))

24. VI Criminal Code Of Canada Who can lay an Information: “Any one who, on reasonable grounds, believes that a person has committed an indictable offence [torture] may lay an information in writing and under oath before a justice, and the justice shall receive the information…” (Section 504)

25. VI Criminal Code Of Canada Charges against George Walker Bush On 30 November 2004, Lawyers Against the War laid a criminal information against George W. Bush in the Provincial Court of British Columbia at Vancouver BC alleging 7 counts of aiding, abetting and counselling the commission of torture at Abu Ghraib and Guantánamo Bay.

28. VI Criminal Code Of Canada Prosecution of George Walker Bush: His Honour Judge William Kitchen held there was no jurisdiction to prosecute the President of the United States under the Criminal Code and dismissed the 7-count information as a nullity.

29. VII The Canadian Charter of Rights and Freedoms The rule of law, supreme in Canada, requires that the law apply equally to all. “Whereas Canada is founded upon principles that recognize the supremacy of…the rule of law.”

30. VII The Canadian Charter of Rights The Supreme Court of Canada The rule of law “provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all.” (Reference re Secession of Quebec, [1998] 2SCR 217 at para. 70&71)

31. VII The Canadian Charter of Rights Canada’s constitutional framers codified the constitutional supremacy over statutory law by stating: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” 52(1) 1982 Constitution.

32. VII The Canadian Charter of Rights Authority to Grant Immunity Neither Parliament nor the Attorney General of Canada possess the authority to grant any person immunity from prosecution for war crimes, crimes against humanity or genocide or to suppress investigations and prosecutions by virtue of being the head of a foreign state or otherwise.