International & Transnational Criminal Law

Mungwarere Genocide Trial Begins

 

The trial of Jacques Mungwarere on charges of participating in the Rwandan genocide begins today in Ottawa. Coverage here. This is Canada's second trial since bringing in the Crimes Against Humanity and War Crimes Act in 2000. As with the first trial, that of Desire Munyaneza (see Chapter 5 of the book), Canada has exercised custodial universal jurisdiction over Mungwarere and his alleged crimes, which arise from events in Rwanda in 1994.

There is no particular news about this matter, other than the fact that the accused had originally opted for a jury trial and unexpectedly reversed this decision on the day of jury selection. The trial will now proceed before a judge alone -- which, given the complexity of applying the law to the facts as they emerge during the trial (again, see Chapter 5), is probably to everyone's advantage.

Liechtenstein Ratifies ICC Crime of Aggression

 

On 8 May 2012, the state of Liechtenstein became the first member of the ICC's Assembly of States Parties (ASP) to ratify the new definition of the crime of aggression that was inserted into the Rome Statute after the Kampala Review Conference in 2010. Press release (courtesy of ICCNOW) can be found here.

Getting the crime of aggression into operation will be a long road -- it will not come into force until the ASP votes to that effect, which cannot take place before 2017 and/or one year after 30 states ratify this amendment, whichever is later. For my own part, I am skeptical about it ever coming into operation. But then, ICC skeptics have been proven wrong before, a good example of which is that the Rome conference in 1998 even produced a treaty, let alone that the treaty came into force after only four years.

Guest Blog: Omar Khadr, KSM and Military Commissions

I am very pleased to present a guest post from Professor Kent Roach, the Prichard Wilson Chair in Law and Public Policy at the University of Toronto.  Most people interested in the subject matter of this blog will have encountered Prof. Roach's writings in the criminal law area (both domestic and transnational), which are authoritative. He is a distinguished and learned teacher, practitioner and advisor.

At the bottom of the post you will find a link to Prof. Roach's most recent book, The 9/11 Effect: Comparative Counter-Terrorism, which you can purchase at a 20% discount by following the link -- too good to pass up.

 

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The imminent return of Omar Khadr to Canada and the start of the trial of Khalid Sheik Mohammed and other alleged 9/11 conspirators have put military commissions back into the news. Military commissions as conducted at Guantanamo represent a new paradigm that fall outside the traditional laws of war and crime.

The first entry in Omar Khadr’s voluminous case file held by the US Department of Defence is illuminating. It is President Bush’s memo of February 7, 2002 noting that he accepted the Department of Justice’s opinion that the Geneva Conventions would not apply to either al Qaeda or Taliban detainees and that the actions of terrorists had ushered in “a new paradigm” that “requires new thinking in the law of war.”  (Presidential Memo Regarding Detainees Feb 7, 2002 available at  http://www.mc.mil/CASES/MilitaryCommissions.aspx)

The new paradigm as represented by the Military Commission Act first enacted in 2006 and revised in 2009 combines crimes such as murder, conspiracy and material support of terrorism which have traditionally been the preserve of criminal law with other crimes that have better recognized under the laws of war. The result is a process that remains controversial because it allows the state to allege crimes while depriving the accused of some of the benefits of the criminal trial process, most notably trial before a civilian jury. Conversely, it allows the state to use trial by military commission while depriving the accused of some combatant privileges that would normally be available under the laws of war.

The Military Commissions Act of 2006 did not authorize the use of secret evidence, but it did include a number of crimes that were not traditionally recognized in the law of war. Khadr was charged with murder and attempted murder in violation of the law of war even though  his actions in throwing a grenade during a battle arguably were within the laws of war since it  did not constitute killing by treachery or perfidy or killing with weapons prohibited by the laws of war. Khadr was also charged with conspiracy even though four judges in Hamdan 548 U.S. 557 at 598-611 concluded that conspiracy was not part of the laws of war.

Khadr was also charged with material support of terrorism, a charge clearly available under American criminal law where Khadr could be tried by a Federal Court exercising extra-territorial jurisdiction, but not one recognized under the laws of war. Finally, he was charged with spying which is an offence in the law of war, but one that does not apply to someone like Khadr who was not behind enemy lines.

Khadr’s lawyers before the military commission brought a large number of challenges to these charges. They argued that the commission did not have jurisdiction over crimes such as murder and conspiracy. They also argued that the military commission did not have jurisdiction because Khadr was a child solider. In a number of generally terse decisions, these motions were all rejected. In one ruling, Military Judge Brownback asserted that Congress had a reasonable basis for acting and that it simply recognized crimes that existed in 2002 when Khadr was alleged to have committed them. Ruling on Defence Motion to Dismiss Charge III for Lack of Subject Matter Jurisdiction 21 April 2008 Khadr (AEO89) available at http://www.mc.mil/CASES/MilitaryCommissions.aspx

He also denied the child solider motion on the basis that there were no age limits placed on the definition of unlawful enemy combatants in the Military Commissions Act and that these provisions would prevail even if treaties prohibited trials of a person for acts committed when he was 15 years of age. Provisions for trials of juveniles in federal court would also not apply because military commissions fell outside of the definition of federal courts. United States v. Khadr, Ruling on Def. Mot. to Suppress Evidence of Statements (Violation of Child Solider Protocol), (Aug. 15, 2008), available at http://www.mc.mil/CASES/MilitaryCommissions.aspx (follow “Omar Ahmed Khadr” hyperlink; under “Category” tab, select “Docket”; at the bottom of the page, follow “9” hyperlink; at the bottom of the page,; follow “Military Judge’s Order Denying Defense Motion to Suppress Evidence of Statements (Violation of Child Solider Protocol) (D-062)” hyperlink)

Khadr did not have speedy trial rights because of his lack of connection to the US and because he did not face a criminal prosecution under the Sixth Amendment. These judgments fall into a pattern of extra-legalism in which hyper-legalistic claims and claims about authority were marshaled in an unconvincing way in an attempt to legitimate a process that was fundamentally unfair.

The military judge denied a motion that all statements given by Omar Khadr be excluded because of his age. Even if the Optional Protocol to the Convention on the Involvement of Children in Armed Conflict prohibited such statements, the Military Commissions Act would take precedence. Military Judge Parrish subsequently found in August 2010 that while there was evidence of an interrogator telling Khadr a fictional story about an Afghan prisoner being raped in an American prison that the threat did not amount to torture and was not related to Khadr’s incriminating statements. He rejected the suppression motion in a 9 page judgment and it was shortly after that judgment that Omar Khadr plead guilty before the military commission.   United States v. Khadr, Ruling on Suppression Motions D-097 and D-111, at 9, (Aug. 17, 2010) available at http://www.mc.mil/CASES/MilitaryCommissions.aspx (follow “Omar Ahmed Khadr” hyperlink; under “Category” tab, select “Docket”; at the bottom of the page, follow “2” hyperlink; at the bottom of the page,; follow “Military Judge’s Order Denying Defense Motions to Suppress the Accused Statements (D-097) and Video Tape (D-111)” hyperlink)

Concerns linger about the legitimacy of Omar Khadr’s guilty plea  both in relation to the military commission’s purported jurisdiction over the offences  and  the pre-trial ruling that Khadr’s incriminatory statements were not tainted by threats that he would be raped in an American prison. The treatment of Khadr is relevant to KSM’s forthcoming trial. It suggests that military commissions will have an uphill and perhaps impossible battle to be seen as legitimate both because of the role of the military and because of the problematic expansion of war crimes under the Military Commission Act.

 

Kent Roach is the Prichard Wilson Chair in Law and Public Policy at the University of Toronto. His new book The 9/11 Effect: Comparative Counter-Terrorism which critically assesses counter-terrorism in the UN and nine countries is available at a 20% discount at http://www.cambridge.org/ca/knowledge/discountpromotion/?site_locale=en_CA&code=S11ROACH

 

Charles Taylor Convicted by SCSL

 

In an unsurprising result, former Liberian President Charles Taylor has been convicted after his trial at the Special Court for Sierra Leone (SCSL). The trial court convicted him for aiding and abetting a variety of crimes against humanity and war crimes committed during the 1991-2002 civil war in Sierra Leone (including the conscription of child soldiers, a crime for which the ICC's first accused, Lubanga, was also convicted). Notably, Taylor was acquitted of having directly perpetrated any of the crimes, and the court also found he was not party to a joint criminal enterprise (JCE).

Reaction has been swift, including a significant amount of protest in Liberia, where Taylor remains popular. Coverage here and here, and a summary of the court's findings can be found here. The official version of the judgment is to be released in the near future.

Some Liberians have criticized Taylor's conviction as a "mockery of justice." The mockery of justice would have occurred if he was not found responsible. The record is quite clear, having been established in other cases such as the US prosecution of Charles "Chuckie" Taylor Jr., where the court heard evidence that the Liberian forces in Sierra Leone were encouraged to engage in cannibalism, among other acts. Taylor is the first head of government to be convicted before an international criminal tribunal. Hopefully he will not be the last. There will, of course, be an appeal. Today, however, another chink in the armor of impunity.

Parliamentary Organized Crime Report: Not Enough Attention to the Transnational

 

The Canadian federal Parliament's Standing Committee on Justice and Human Rights has just released its Report entitled The State of Organized Crime. The Committee heard from a wide range of witnesses over the course of quite a number of hearings, and makes 35 recommendations (reproduced below) for the improvement of Canada's efforts to combat organized crime.

So far as the subject matter of this blog goes, there is very little in the report to highlight. In fact, consideration of the transnational aspects of this subject matter is mostly noteworthy by its absence from the report, except in a very general way. This is despite the fact that the Committee heard from a number of witnesses who have the relevant expertise and, it would seem, did speak to the transnational issues.

There are a number of salutary proposals in the Report, including a challenge to the government to address the root causes of organized crime instead of confining its response to policing, as well as some proposed improvements to Canada's laws regarding money laundering and forfeiture of proceeds of crime (regarding which, see Chapter 7 of my book).

Two things worth mentioning here. First, there are some recommendations that could add fuel to the fire of the debate around Bill C-30 (which I blogged about last week):

RECOMMENDATION

The Committee recommends that the Government of Canada pursue legislation requiring telecommunications service providers and telecommunications device manufacturers to build the ability to intercept telecommunications into their equipment and networks.

RECOMMENDATION

The Committee recommends that the Government of Canada introduce legislation requiring telecommunications service providers and telecommunications device manufacturers to decrypt legally intercepted communications or to provide assistance to law enforcement agencies in this regard.

 

In the body of the report itself, the Committee suggests that these measures should be available without search warrants, but nonetheless with judicial oversight and privacy protection of some sort. This is similar to some proposals made by Professor Michael Geist, the idea being that there may be room for some streamlining of the judicial authorization process when it comes to these kinds of data-gathering, given the fluid and fast-moving nature of cybercrime generally (cybercrime being, increasingly, an activity under the "organized crime" umbrella).

Unfortunately, some of the government witnesses appear to have continued to perpetuate the fiction that police are finding it "difficult" to get information (particularly subscriber information) from ISPs during their investigations, a proposition the federal government has been arguing to support Bill C-30 but which is not consistent with the evidence on point. The Official Opposition note this in a set of dissenting remarks at the end of the Report. See also David Fraser's Privacy Law Blog on this point.

Second, there is some attention to the pressing need for effective information- and evidence-sharing among law enforcement agencies (see pp. 22-25). Unfortunately, no real separation is made between the idea of co-operation among Canadian domestic law enforcement agencies and the co-operation of Canadian officials with their counterparts in other states. I say this is "unfortunate" because some very different issues arise when you move the co-operation schema out into transnational fora. As I have argued (see Chapter 10 of my book) -- and as others, most notably Professor Kent Roach, have stressed -- information sharing with foreign law enforcement agencies can lead to serious human rights problems, depending upon the use to which the foreign authorities will put the information. There need to be rules and policies in place which address how, with whom and how much information can be shared with foreign authorities. These rules and policies need to be made available to the public and they need to be subject to civilian oversight. Maher Arar could tell you that, and in the Arar Commission Report it was addressed in great detail.

Instead, in the Report, the Committee notes that it heard testimony to the effect that "certain legislative restrictions have a negativeimpact on the ability of the police to share information with both domestic and internationallaw enforcement partners." It ascribes this point to the testimony of Inspector Robert Bazin, Officer in Charge, Border Integrity, “D” Division, Royal Canadian Mounted Police; however the link to Insp. Bazin's testimony does not work, so we are left in the dark as to what these legislative restrictions are.

In any event, the Committee clearly places its emphasis on facilitating these conduits: "What is required is a legislative scheme that is clear with respect to the sharing of criminal intelligence in order to facilitate more effective and efficient investigations of organized crime. The legislative restrictions should be removed in cases where they are not necessary for privacy or other reasons."

And that is all we get. No government communication on the issue of transnational intelligence and evidence sharing should fail to refer to the Arar Report, which points out the dangers referred to above. This is, perhaps, the most glaring problem with the Report. This is, after all, the Standing Committee on Justice *and* Human Rights, and it is disturbing to see a pressing human rights issue get such short shrift.

Cybercrime Convention: The Missing Part of the C-30 Debate

 

As Canadian readers of this blog will know, our country has recently been enmeshed in a hot debate over Bill C-30, currently in Parliamentary committee. The Bill is often referred to as the "Lawful Access" bill (stemming from an earlier title) but is now officially entitled the "Protecting Children From Internet Predators Act." It provides a number of new investigative tools for Canadian police for both the monitoring and gathering of electronic data, and imposes data preservation and monitoring requirements on ISPs and other service providers.

I don't intend to review the overall debate here (though if you're interested, a good place to start is Michael Geist's blog or David Fraser's privacy law blog), but rather to focus on something about the Bill that has been entirely missing from the debate: it is designed, at least in part, to allow Canada to ratify the Council of Europe Cybercrime Convention, to which we have been a signatory for many years but have yet to ratify. The reason we have not ratified it is because the Convention requires Canada to have in place an array of investigative tools that we currently do not have, such as an ability of law enforcement authorities to do real-time internet monitoring.

The idea behind this aspect of the Convention is twofold. First, it seeks to create an international network of states which can effectively (or at least more effectively than at present) investigate and combat transnational cybercrime. Second, for there to be an *effective* international network, states must be able to assist each other in gathering and transmitting evidence -- up to and including granting expedited requests for real-time internet traffic monitoring. The need for cooperation is pressing with regard to all kinds of transnational crime but particularly so with cybercrime, where the speed and fluidity of data transmission requires some very ramped-up tools.

So, to cooperate properly with its treaty partners, towards the very salutary public policy goal of combating cybercrime, Canada does actually need quite a lot of the tools contained in Bill C-30. I am mystified as to why this isn't part of the debate. The federal government has been quite ham-handed in how it has tried to sell the legislation to the public, using an American-style emotive title that misleads people about what is actually in the Bill and what it is for. It could probably get a lot more traction by saying to Canadians, "hey, the police need tools to combat identity theft, and cyber-attacks, and yes, child predators of various kinds on the internet. And we have agreed with a group of very civilized countries that we're all going to do this, and share the evidence with each other so that we can catch these dangerous criminals." As it is, the public has not been fooled by the child porn aspect and is swayed by emotive counter-arguments, such as "the government wants to invade your privacy" and "Big Brother wants to watch you on the internet."

Why does the government never mention the Cybercrime Convention? Did it forget? Are they undertaking some kind of Scalia-inspired rejection of international law as a reason for doing anything? It is passing odd.

The debate among most legal commentators has, to its credit, not been focused on the investigative tools themselves, but rather the lack of judicial oversight or other civilian control which the government wishes to provide to law enforcement under the Bill. There's a good piece about it in the 16 March issue of the Lawyers' Weekly, where Jameel Jaffer (a Canadian who has been lead counsel with the American Civil Liberties Union (ACLU)) commented:

"I think police officers will always feel that the transparency will interfere with their investigations... Law enforcement officers, just like everybody else, don't like to be second-guessed. That's sort of a natural instinct. But it's not one that we can indulge in a healthy democracy."

I think a useful thing to add to the debate is this: even though part of what's driving the government has been the need to ratify the Convention  (in the background, anyway), the Convention itself does not require the overbroad and needlessly invasive  use of these otherwise necessary tools that Bill-30 would allow. The Convention, in fact, explicitly anticipates that the domestic laws of each state will vary as to whether and how much judicial or other oversight is required, and imposes absolutely no obligations -- each country can sort that out for itself.

And even among those states which have ratified the Convention, the sorting-out is going on: witness the German High Court, just recently, striking down as unconstitutional provisions of that state's Telecommunications Act which: a) were clearly designed to implement Cybercrime Convention obligations; and b) gave law enforcement overly broad seizure and demand powers without requiring them to obtain permission. Sound familiar?

Last year I blogged that Canada hadn't ratified the Convention -- again -- because the legislation died on the order table. Now we're not able to ratify it because the implementing legislation is framed in such an unnecessarily invasive way that Canadians are rejecting it. It's time for the federal government to get on with this, because the cybercriminals are laughing all the way to the bank.

ICC Finds Lubanga Guilty

 

Today, Trial Chamber I of the International Criminal Court released its decision in the Court's first trial, that of Thomas Lubanga Dyilo. Lubanga was charged with the war crimes of conscripting and enlisting children under the age of 15, and using them to participate in hostilities in the Democratic Republic of the Congo in 2003. He was convicted as a co-perpetrator.

Naturally, the Chamber's decision is subject to appeal and no doubt there will be one. For now, however, this is a milestone and a victory for the court. This trial took an enormous amount of time to complete, and nearly went off the rails a number of times due to, inter alia, recanting witnesses and the court's castigation of the Prosecution for various failures to disclose evidence to the defence. However, the other trials currently under way appear to be moving at a faster clip. More importantly, this is a shot in the arm for the Court's credibility, which is still the subject of controversy.

I'll resist the temptation to react (for now), in favour of providing links to the decision, a summary of the decision, and the Coalition for the ICC's coverage. Also, here is an interesting critical comment by Thierry Cruvellier. This decision, like everything about the ICC, will be minutely dissected by publicists all over the world in the months to come.

A (Positive) Book Review

 

This blog hasn't been busy of late -- the school year is intense around now, and my Jessup international law moot team is about to blaze its way to glory in the Canadian round.

I'll be blogging on a number of interesting developments over the next while, but in the interim I'm pleased to post a review of my book by Mr. Marcus Davies, Counsel to the Criminal, Security and Diplomatic Law Division of DFAIT. The review was published in the new issue of the Canadian Yearbook of International Law (Vol. 48, 2010). I'm gratified that Mr. Davies feels the book is worthwhile. I should say, again, how grateful I have been for the support of my publisher, Irwin Law, who took a chance on an unusual book.

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International and Transnational Criminal Law. By Robert J. Currie. Toronto: Irwin Law, 2010. 647 pages.

In a world where advances in technology and transportation have shattered the notion that crime is local, Robert J. Currie’s book, International and Transnational Criminal Law, eloquently explores the complex and rapidly evolving fields of law known as “international criminal law” (ICL) and “transnational criminal law” (TCL). Unlike some texts in international law, which rely on excerpts from international instruments to convey their message, this book studiously synthesizes complex subject matter into readily digestible points. In so doing, the author presents the salient features of these areas of law in a manner that allows the reader to appreciate the interplay between the emerging streams in a style that is eminently accessible to teachers, students, practitioners, judges, and policy makers alike.

Currie’s overview of the history, developments, linkages, and nuances that define these emerging bodies of law conveys the fact that international and domestic law must constantly evolve to effectively respond to globalized crime. Accordingly, the book provides the reader with a set of tools that he or she can draw upon to understand the interplay between domestic and international law, as modern criminals look to exploit weaknesses in criminal law regimes between states, which, in turn, work to tighten the net around criminal activity with improved laws, enforcement, and co-operation.

An underlying theme in Currie’s book is that in order for one to appreciate ICL and TCL in a meaningful way, one must understand the historical, philosophical, and legal foundations of these bodies of law. Currie sets the stage for his examination of ICL and TCL by highlighting the evolution of international law from a largely consensual system of rules governing state interactions, to a body of law that can hold individuals directly liable for international crimes, or indirectly liable through domestic law regimes for transnational crimes of international and domestic concern. As part of the Essentials of Canadian Law series, this book explores these areas of law with a focus on Canada. By exploring the nexus between these bodies of international law and Canadian domestic law, Currie describes how Canada’s criminal law regime has adapted to respond to global crime. In so doing, the author leads his reader through this process seamlessly, each chapter building on the previous.

The first half of the book focuses on the gradual evolution of the state-centric concept of sovereignty. Attention is paid to the development of treaty and customary international law in holding individuals liable for horrendous crimes committed not only against the criminal laws of a single state but also against international law and, thus, the entire world community. Chapter 1 begins with a definition of ICL and TCL and examines how their development as bodies of law is impacted by different enforcement regimes, international co-operation, human rights, sources of law, and, ultimately, by the emergence of individual liability in international law. Chapter 2 considers the jurisdiction of states to prosecute ICL and TCL. Chapters 3 and 4 describe the core crimes of ICL — genocide, crimes against humanity, war crimes, and aggression — and their direct enforcement through international and internationalized criminal courts set up to deal with these crimes, such as the Nuremberg and Tokyo tribunals, the UN ad hoc tribunals, and the International Criminal Court.

In keeping with the book’s Canadian focus, Chapter 5 focuses on the prosecution of international crimes by Canadian courts from 1945 to 1999 and following the adoption of the Crimes against Humanity and War Crimes Act in 2000. Notably, Currie’s examination of the act is extremely detailed. He highlights the ways in which the act was designed to overcome the inadequacies of the Canadian legal regime for prosecuting war crimes as well as to implement Canada’s obligations under the Rome Statute of the International Criminal Court. Against this background, the author discusses the case of Désiré Munyaneza, a Rwandan national who was arrested in Canada in 2005 and found guilty in 2009 of two counts each of genocide and crimes against humanity, as well as three counts of war crimes linked to the Rwandan genocide of 1994. Currie deftly analyzes how the Canadian decision to convict a Rwandan national under the principle of universal jurisdiction, including the court’s reliance on international treaties and the jurisprudence of the international criminal tribunals for Yugoslavia and Rwanda, is evidence of the fact that international criminal law and domestic criminal law complement one another.

The second half of the book moves from the study of direct criminal liability under international law to an examination of crimes with international characteristics that states prosecute under their domestic criminal law systems. Chapter 6 is devoted to discussing the so-called “other international crimes” of torture, piracy, and slavery and apartheid, noting that whereas they cannot be prosecuted directly under international law, they are sufficiently egregious to merit domestic prosecution of the perpetrators wherever they may go, so as to ensure that they can find no safe havens. In his assessment of these crimes, Currie describes their history and requisite elements, as well as the measures that Canada has put in place to criminalize these offences. The chapter ends with an invitation to the reader to consider whether terrorism could be considered an international crime or a transnational crime of international concern — the author adopts the latter view.

In his treatment of transnational crimes of international concern and transnational crimes of domestic concern, Currie reviews the major international law regimes dealing with drug trafficking, terrorism, transnational organized crime, corruption, and cybercrime. Owing to the vast scope of the TCL, however, the author’s evaluation of this area is, understandably, quite survey-like, highlighting the applicable international law and the implementing legislation in Canada. Chapter 7, for example, focuses on transnational crimes of international concern by examining the “suppression conventions” for a wide number of crimes, including transnational organized crime, drug trafficking, terrorism, child sex-tourism, money laundering, and cybercrime. Whereas Currie notes that these conventions commonly require states’ parties to criminalize certain acts, exert jurisdiction in an expansive manner, and ensure that an offender is prosecuted directly or extradited for prosecution, the vastness of this area of the law limits his analysis to concise descriptions of the applicable international law and Canada’s implementing legislation. In this sense, the book is an excellent introduction to the law and a wonderful starting point for further investigation by the reader.

Chapters 8-10 supplement Currie’s survey of transnational criminal law by describing in detail the practical measures undertaken in Canada in order to implement its obligations to prevent and combat transnational crime. Chapter 8 describes in detail the approach that Canadian law and jurisprudence have taken to prevent transnational crimes of domestic concern, including Canadian courts’ application of the Libman test to determine their jurisdiction to prosecute domestic crimes involving the jurisdiction of more than one state. Chapters 9 and 10 provide a detailed examination of Canada’s extradition and mutual legal assistance regime, followed by an analysis of how Canada’s human rights obligations affect co-operation with other states for extraditions, deportations, and mutual legal assistance. For the latter, Currie gives a detailed examination, questioning whether the Canadian Charter of Rights and Freedoms can apply extraterritorially, and he includes a discussion of the fall-out resulting from the Supreme Court of Canada’s approach to extraterritorial jurisdiction in R v Hape.

Finally, Chapter 11 brings this impressive book to a close with an examination of immunity from prosecution before international tribunals, domestic courts, and within Canadian law. Currie’s work is an invaluable resource that will be welcomed by those with an interest in international and transnational criminal law. In addition to the comprehensive research and practical examples that inform this book, Currie’s ability to translate a very complex area of law into easily understood concepts will ensure that this book remains authoritative and relevant for years to come.

Marcus Davies
Legal Officer, Criminal, Security and Diplomatic Law Division, Foreign Affairs and International Trade Canada (The views expressed in this review are personal and not the official views of Foreign Affairs and International Trade Canada.)

[footnotes omitted]

 

(c) 2012 UBC Press

ICL/IHL Professorship

 

A quick post to circulate a recruitment ad from the Faculte de droit at Laval University.  They are looking for (if I'm translating correctly) a professor in the area of the international law regarding the protection of people. This expressly includes both international criminal law and international humanitarian law, as well as refugee law. It is a tenure-track position, and of course the successful candidate would be required to teach in French.

Guest Blog: The Mugesera Stay Decision

 

The Mugesera case is still in the news. Today, federal Justice lawyers were in court in Montreal, arguing that Justice Fraiberg of the Quebec Superior Court did not have jurisidiction to order the stay of the deportation proceeding in the first place. While reporting wasn't clear on this, it appeared both sides were arguing the point on which the court issued the stay--that the request of the UN Torture Committee for a stay on the deportation need not be complied with by Canada as a matter of international law.

I am pleased to present here a guest post by Prof. Dr. Stéphane Beaulac (Cantab.), distinguished professor of international law at the Université de Montreal, who makes a compelling argument on the correctness (or lack thereof) of the stay decision.

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On Thursday, 12 January 2012, William Fraiberg J. of the Quebec Superior Court issued a one-week stay («mesure de sauvegarde») of the deportation order again Léon Mugesera. This decision, albeit interlocutory in nature, is wrong in law and should be overturned on appeal, hopefully as soon as next week. Simply put, the reason is pretty straightforward: the Ontario Court of Appeal decision in Ahani governs on the question at issue and should be followed in the case at bar. But there is more… of course.

The short discussion that follows is grounded in the epistemology of legal interpretation, the perspective I have been adopting to address issues of interlegality and the domestic reception of international law. Besides focussing on the ways by which international normativity may be resorted to by national courts, what I call the “operationalisation” of international law – which is twofold, namely (i) the contextual argument and (ii) the presumption of conformity – the methodology of interpretation as a prism through which understanding how non-domestic legal norms may have an impact domestically provides a heuristic scheme to help us appreciate why there is still a divide between the two legal realities, a dichotomy that indeed remains in spite of the revisionist suggestions of a full integration of the legal world.

To (re-)use – or rehash?! – my favourite formulation of the problematics, let me suggest this: as far as judges in most common law jurisdictions (including Quebec, regarding its public law) are concerned, the matrix within which states operate and international affairs are conducted continues to be based on the Westphalian model of international relations, at the centre of which is the idée-force of sovereignty. The legal by-products of this social construct are twofold: constitutional law and international law, which correspond to the exercise of internal sovereignty (that of Jean Bodin) and external sovereignty (that of Emer de Vattel) respectively. The traditional stance, therefore, has held that the Westphalian model of international relations, which is governed by the Vattelian legal structure, involves an international realm that is distinct and separate from the internal realms.

The distinctiveness and separateness of the international / national realities explain two fundamental legal principles, one from international law and one from constitutional law.  The first then is that a sovereign state is not entitled to invoke its internal law — which includes its constitutional structure — in order to justify a breach of its international obligations.  Essentially, the reason why domestic law cannot justify a failure to honour obligations vis-à-vis the international community is that these norms and duties belong to two distinct and separate legal systems. The second core legal principle springing from the international / internal divide, in fact a set of rules, concerns the administration of the relationship between the two systems. These rules determine, as a matter of law, how one legal system interacts with and treats the other legal system, including the way in which the normativity emanating from one may be taken into account or utilised in the other.  Accordingly, the rules on the status of international law within the jurisdiction of a sovereign state are domestic rules, usually deemed important enough to be part of constitutional law.

In terms of judicial activities, the international / domestic dichotomy means that domestic courts and tribunals of sovereign states apply their domestic law, while the International Court of Justice and other international courts and tribunals apply international law. Put another way, the constitutional mandate of domestic courts is to interpret and apply domestic law, not international law. But this normative division does not mean, of course, that international judicial bodies cannot take into account domestic law, which is in fact an explicit source of international law under article 38(1) of the Statute of the ICJ, or that domestic caselaw does not influence their decisions as a secondary source of international law or as evidence of international customs. Conversely, no authority needs to be cited for the proposition that domestic judges may resort to international law when it has also become part of the laws of the land (… if need, one would refer to the 1998 Reference re Secession of Quebec case).

This, however, does not modify the basic situation that the international judiciary applies the legal norms of its realm and that national judiciaries apply the legal norms of their realms. The international reality is distinct and separate from the internal reality and, therefore, the actualization of international law through judicial decision-making is distinct and separate from the actualization of domestic law through judicial decision-making. Thus, it must still be assumed in Canada (… and in Quebec) that it is if, and only to the extent that, national legal rules of reception allow international law to be part of domestic law — and that it has in effect become part of that domestic law, such as through implementing legislation — that international norms may have an impact on the interpretation and application of domestic law by domestic courts. Strictly speaking, therefore, international law qua international law cannot be binding on national judges, whose judicial authority is constitutionally entrusted by and for a sovereign state.  Put another way, international normativity cannot apply per se within domestic systems because courts are concerned with and competent over national law, not international law. What norms from the international legal order can do, and indeed ought to do whenever appropriate, is to influence the interpretation and application of the laws of the land.

These were certainly among the factors – one academic fellow might wishfully hope! – taken into account by the Ontario Court of Appeal when rejecting the arguments based on the International Covenant on Civil and Political Rights in the 2002 decision in the Ahani case. The question at issue – in addition to the procedural one, relating to the interim order – was whether the Optional Protocol to this convention was part of the laws of the land. The fact that there is no legislation in Canada transforming any of these human rights commitments is very well documented in legal literature. Both the majority and the dissenting judges of the Court of Appeal reached the inescapable conclusion that these international norms have no legal effect within the Canadian domestic legal system: “Canada has never incorporated either the Covenant or the Protocol into Canadian law by implementing legislation. Absent implementing legislation, neither has any legal effect in Canada” (Ahani, para. 31). It would lead to an “untenable result”, Laskin J.A. wrote for the majority, to “convert a non-binding request, in a Protocol which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court” (Ahani, para. 33). Justice Rosenberg, in dissent, agreed with the majority on this point: “On the legal side, they [the federal government et al.] invoke the established principle that international conventions are not binding in Canada unless they have been specifically incorporated into Canadian law. The Covenant, while ratified, has never been incorporated into Canadian domestic law and therefore does not create legal obligations enforceable in Canada” (Ahani, para. 73).

What about Mr. Mugesera now?  The international instrument is the Convention against Torture and other Cruel, Inhumane and Degrading Treatment or Punishment, to which Canada is a party – ratification in 1987 – and of which some substantive treaty provisions have been incorporated in Canadian law by means of implementing legislation (Criminal Code, section 269.1). This seems to make the situation different than Ahani’s and the non-incorporation of the ICCPR, but only at first consideration. Indeed, as regards the enforcement aspects of the matter, there is no international normativity that is binding domestically in Canada; no statutory provision which would force a national court judge to stay a deportation order. Sure, Canada has made a declaration – dated 13 November 2009 – pursuant to section 22 of the CAT recognizing the competence of the Committee against Torture to consider petitions from individuals, which is the basis of Mugesera’s communication. This feature, to draw a parallel, is the same as the Optional Protocol of the ICCPR, giving jurisdiction to the Human Rights Committee, as in Ahani. And, again, similar to the latter, there is no legislation in Canada that has given effect domestically to the enforcement provisions of the UN conventional regime on torture.

 Put another way, even if one could distinguish Ahani on the fact that the CAT has been incorporated domestically, it would be erroneous to argue that the jurisdictional features of the CAT are part of the law of the land. Only the substantive ones were implemented in 1987 by means of section 269.1 Criminal Code, not the supra-national enforcement conventional provisions relating to the Committee against Torture. Thus, as in Ahani, the relevant international normativity has not been implemented by Canada and, as in that case, it would be an “untenable result”, as Laskin J.A. opined for the majority, to “convert a non-binding request, in [an international instrument] which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court” (Ahani, para. 33). On that basis, stricto sensu, but also for the (more theoretical) reasons expressed above, it is likely that the Quebec Superior Court interim order will be quashed on appeal. I would argue that, not only does it amount to a basic application of the doctrine of stare decisis, but overturning the cavalier ruling of Fraiberg J. is essential to preserving the fundamental precepts of Canada’s and Quebec’s public law, specifically in regard to the constitutional framework applicable to problematics of interlegality.