International & Transnational Criminal Law

UN Peacekeepers to Make Arrests for ICC

 

The UN Security Council has passed Resolution 2098, which authorizes the UN peacekeepers of the MONUSCO mission in the Democratic Republic of the Congo to arrest individuals who have been indicted by the International Criminal Court. A demonstration of the point Antonio Cassese famously made, that the ICC is a "giant without arms and legs," and that its enforcement capacity will often depend on the political will of the international community.

Coverage here.

Kim Dotcom Extradition: NZCA Won't Order Disclosure Against US

 

In the long-running saga of the American extradition case against Kim Dotcom, owner of the Mega-Upload internet "sharing" service (media reports here), the New Zealand Court of Appeal has recently overturned lower court decisions ordering the US, as requesting state, to disclose a broad swathe of the evidence underpinning its record of the case. The decision is essentially one of statutory interpretation, turning on the fact that the US is an "exempted state" under part 3 of the NZ Extradition Act. It is entitled to present its request by way of "record of the case," rather than submitting the actual evidence that supports the extradition request, or part of it, as is required of other states. And, according to the Court of Appeal, it need not disclose evidence even on motion by the person sought.

While the dependence of the finding on the New Zealand statute makes the decision of limited relevance outside that country, I noted with interest the CA's finding that there is nothing in international law that would bar a disclosure order. This is something that the Canadian extradition case law is still tied up in knots about, and our overall law on the subject weighs against disclosure in most circumstances but is certainly divided. A number of Canadian courts have declined to order disclosure against the US, in part due to concerns about extraterritorial application of our law (particularly the Charter, which drives most disclosure matters).

The CA dealt with the matter quite simply at para. 119:

"The extradition court does have jurisdiction to order disclosure to ensure a fair hearing because it has all the powers and jurisdiction of a court conducting a committal hearing. Because the applicant is a party to the proceeding, orders for disclosure does not involve the District Court making orders with extraterritorial [e]ffect."

Essentially, by accessing our courts, the requesting state has attorned to our jurisdiction and is subject to all remedies that might be imposed on a party. This is certainly the kind of reasoning that underpins motions for abuse of process in Canadian extradition matters, so it's really quite a modest extension. Food for thought.

The Jeffrey Delisle Case: Sentencing a Spy

 

The case of convicted Canadian spy Sub-Lt. Jeffrey Delisle has been the focus of great attention by the Canadian media for the last few days, due to the fact that Delisle's sentencing hearing was held over the course of January 31 - February 1. Delisle is a military intelligence officer who was based right here in Halifax, NS, from where he sold military data and intelligence to an old Cold War bugbear, the Russian government (quite an enthusiastic facilitator of espionage these days, it would seem).

The case has been going on for some time, and all of the major media outlets have collected their reportage on the matter (see CBC and CTV, e.g.). In October 2012, Delisle pleaded guilty to one count of breach of trust and two counts of passing information to a foreign entity. These charges were laid not under our conventional criminal law (i.e. the Criminal Code) but under the Security of Information Act, an updated version of the old Official Secrets Act, which was enacted as part of the omnibus terrorism law amendments after 9/11.

Some fairly stiff sentences are available under the Act, including life imprisonment, but at the sentencing hearing the Crown opted to request twenty years for the passing of information charges and an additional five years (to be served consecutively) for the breach of trust. The defence requested a sentence of 8-9 years.

The gap between the two positions on sentence is significant, as it reflects quite well the difficulty of the sentencing conundrum which faces Chief Judge Patrick Curran of the Provincial Court of Nova Scotia. There have never been any charges, let alone any convictions, under the Act. As a result, all parties (and the court) are singing from a blank hymn book in terms of any sentencing precedent. Canadian sentencing law does not have formal guidelines or checklists, but for typical offences it is easy enough to get within the appropriate range; the sentence imposed for a break, enter & theft for a repeat offender, for example, would be easy enough to come up with. But that is decidedly not the case here. The Crown led an earlier Canadian case under different legislation and some British cases, but none seemed particularly appropriate to this case.

Accordingly, all parties here have to fall back on the usual principles which underpin Canadian sentencing law. The Crown has, appropriately, emphasized the seriousness of the offence -- not exactly a hard task in this particular case, since Sub-Lt. Delisle had high security clearance and access to information which may have compromised not only Canada's national security but that of our NATO allies as well. Even in the abstract, these were serious crimes. The Crown is seeking a stiff sentence in the interest of applying the principle of deterrence (since it is clear that, as a society, we would want to de-motivate anyone who was inclined to take the course of action that Delisle did), and the principle of denunciation, i.e. denouncing the offence, which in some ways represents an attack on the very foundations of Canada's civil order.

The latter will be in keeping with the overall tenor of the public reaction to Delisle's crimes, which has struck me as slightly on the bloodthirsty side. On the other hand, in a country whose military has shed a great deal of blood in the name of international security, perhaps it is not surprising to see a strong reaction to crimes reasonably described as traitorous. The defence has chosen to emphasize the fact that Delisle was apparently despondent and at a difficult time in his life when he entered into the arrangement with Russian security forces. It is entirely appropriate to plead the personal circumstances of the offender at the sentencing stage, though it is difficult to imagine this particular line of argument will carry much weight.

What might carry more weight, however, was the defence attack on the Crown's witnesses who appeared at the sentencing hearing, all high-ranking Canadian military and security personnel. The defence's cross-examination of these witnesses was clearly designed to highlight a potential weakness of the Crown's argument on sentencing, which is the abstraction of the hard facts. By this, I mean that the Crown witnesses appear to have testified that Delisle's actions harmed Canada's national security and that of our allies, but fairly candidly admitted that it is very difficult to ascertain the scope of the damage. There was a suggestion that an informed interpreter of some of the information which is known to have been passed might be able to ascertain the identities of certain CSIS operatives, but (based on the media reports) that seemed to be the most concrete example of what was otherwise fairly speculative evidence. Indeed, that was the tenor of the testimony of the only defence witness, Prof. Wesley Wark, who emphasized that it would be very difficult to tell what damage was done.

The sentencing phase of an ordinary criminal case is usually shaped by the Crown proving facts and the defence proving mitigating circumstances, which all go towards helping the judge craft an appropriate sentence.  This is not an ordinary case. Here, the Crown may* be treading close to the line of asking Judge Curran to essentially assume that damage was caused (called in evidence law "taking judicial notice"), or to impose a harsh sentence on the basis that damage probably was caused, and could go on being caused, though we may never know for sure. This is not how it is supposed to work; judicial outcomes are meant to be based on proven facts.

Though this is speculation on my part, one wonders that the Crown did not have more evidence to present about the amount of harm Delisle's actions caused. Presumably there have been many back channel discussions with allies, and there have been suggestions from security experts that Canada's status among its NATO allies has been weakened. There are mechanisms by which evidence can remain confidential in national security cases, but since the Crown did not choose to avail itself of these, then the case may indeed be as speculative as the defence argued. If so, it may be the government's undoing in terms of getting the 25-year sentence it is seeking. To be sure, the nature of this crime in and of itself merits a significant prison sentence, but Judge Curran may find it difficult to impose it in a partial vacuum.

One factor that has been discussed in the reporting is a desire on the part of the government to show Canada's military and security allies that we take this crime seriously and are prepared to apply a commensurate level of gravitas. That is an entirely appropriate political goal, though I am not sure if it belongs in the sentencing phase. Arguably, the government of Canada has done its job by criminalizing this kind of espionage, investigating it and prosecuting it when it happened. In my view, showing our allies we are serious and trying to repair diplomatic damage should not be part of the sentencing judge's consideration; his job is to ascertain the facts and apply Canadian sentencing law to them, albeit in an unusual context.  I note in passing that, if anything reflects badly on Canada's seriousness here, it may be the rather poor security arrangements which allowed Delisle easily to smuggle the information out in the first place.

The sentencing decision has been reserved until February 8, and will no doubt attract a great deal of media attention. I do not envy Judge Curran the job he currently faces. Watch this space.

-----------------------------------------

* I say "may" because I was not at the sentencing hearing and did not read the Crown or defence briefs; I am reacting to what I was able to ascertain from media reports.

Proposal to Refer Syria to ICC

 

There is a proposal being floated to refer Syria to the International Criminal Court. Read the Opinio Juris blog post about it here.

New Book: An Introduction to Transnational Criminal Law

I am delighted to (somewhat belatedly) announce the publication of a major new book by my friend and TCL colleague, Dr. Neil Boister of the Law Faculty at the University of Canterbury, NZ. The book is entitled An Introduction to Transnational Criminal Law and it is a succinct but comprehensive overview of that body of law that scholars and practitioners are increasingly calling "transnational criminal law."

Anyone who has read my book (esp. chapters 1 and 7) will know that Neil's work has been a huge influence on my own as regards this particular sub-field of international law. His first major shot across the bow was nearly a decade ago, with his important article "Transnational Criminal Law?" (2003) 14 EJIL 953, which thoughtfully presented the case that the lawyers had to catch up with the criminologists in recognizing that transnational crime and the body of law dealing with it did not properly belong under the category of "international criminal law." With this book he is poised to continue bringing order and compelling thinking to bear on the importance, and even necessity, of studying and practicing TCL as a distinct discipline. My hat is off to him.


Below is the publisher's blurb and a list of chapter titles, to whet your appetite. I highly recommend you purchase the book.

 --------------------------------------------------------

The suppression of cross-border criminal activity has become a major global concern. An Introduction to Transnational Criminal Law examines how states, acting together, are responding to these forms of criminality through a combination of international treaty obligations and national criminal laws. Multilateral 'suppression conventions' oblige states parties to criminalise a broad range of activities including drug trafficking, terrorism, transnational organised crime, corruption, and money laundering, and to provide for different types of international procedural cooperation like extradition and mutual legal assistance in regard to these offences. Usually regarded as a sub-set of international criminal justice, this system of law is beginning to receive greater attention as a subject in its own right as the scale of the criminal threat and the complexity of synergyzing the criminal laws of different states is more fully understood.

The book is divided into three parts. Part A asks and attempts to answer what is transnational crime and what is transnational criminal law? Part B explores a selection of substantive transnational crimes from piracy through to cybercrime. Part C examines the main procedural mechanisms involved in establishing jurisdiction and then the exercise of jurisdiction through the effective investigation and prosecution of transnational crimes. Finally, Part D looks at the implementation of transnational criminal law and Part E at the prospects for transnational criminal justice.

This book provides the first accessible and comprehensive introduction to this important area of law. It should be invaluable both to students and to professionals involved in the fight against transnational crime.

 

TABLE OF CONTENTS

Part A: Introduction
1: What is Transnational Crime?
2: What is Transnational Criminal Law?
Part B: Crimes
3: Piracy and Modern Maritime Offences
4: Slavery, Human Trafficking, and Migrant Smuggling
5: Drug Trafficking
6: Terrorism
7: Transnational Organised Crime
8: Corruption
9: Money Laundering
10: Emerging Transnational Crimes
11: General Part of Transnational Crime
Part C: Enforcement
12: Jurisdiction
13: International Law Enforcement Cooperation
14: International Law Enforcement Cooperation at Sea
15: The Anti-Money Laundering Regime
16: Legal Assistance
17: Legal Assistance in Asset Recovery
18: Extradition of Transnational Criminals
Part D: Conclusion
19: Trends in Transnational Criminal Procedure
20: Institutions
21: Implementation and Compliance
22: Towards Transnational Criminal Justice

Terrorism and the Khadr Cases

 

Just a slight(ly shameless) self-plug: the Canadian Institute for the Administration of Justice has just published a collection of conference papers entitled Terrorism, Law and Democracy: 10 years after 9/11.  The papers are from a conference of the same name which was held in October 2011.

Among the papers is one of mine, "A Tale of Two Brothers: The Impact of the Khadr Cases on Canadian Anti-Terrorism Law." The text of the introduction to the paper is reprinted below, and you can find a pre-publication copy here (though, of course, I encourage you to buy the book). Also some great pieces by Kent Roach, Lorne Waldman, Audrey Macklin and Graham Hudson, among others.

 

A Tale of Two Brothers: The Impact of the Khadr Cases on Canadian Anti-Terrorism Law

  - by -

  Robert J. Currie*

 

 

I.          INTRODUCTION

After something of a slow start, Canada’s post-9/11 terrorism laws have seen a fair amount of traffic over the last several years, and many of these prosecutions were high-profile in both the public and the legal senses. The case of the “Toronto 18” was well-chewed over by the press, coverage oscillating between grim amusement at the apparent incompetence of some of the accuseds and the sobering danger presented by others.[1] The Supreme Court of Canada recently granted leave to appeal in the cases of Momin Khawaja,[2] who was convicted for various terrorist activities carried out within and outside Canada, and of Suresh Sriskandarajah[3] and Piratheepan Nadarajah,[4] both of whom are facing extradition to the U.S. for allegedly providing support to the Liberation Tigers of the Tamil Eelam (“LTTE”). In all three of these cases, which will be heard together, the constitutionality of the definitional aspects of the Criminal Code’s terrorism offences will be dealt with by the top court. There is no doubt that anti-terrorism prosecutions are well on the national radar.

Arguably, however, the highest-profile Canadian terrorism cases have been two that did not involve prosecutions in Canada—those of brothers Abdullah and Omar Khadr. Both are Canadian nationals who have faced or are facing prosecution before U.S. courts for alleged terrorism-related activities, but regarding whom there have been Canadian legal proceedings. Omar Khadr’s case has gone to the Supreme Court of Canada on two occasions,[5] while Abdullah Khadr’s extradition case[6] was stopped only by the Court’s dismissal of the Crown’s leave application.[7] There has also been a great deal of public notoriety for both of the cases, and indeed for the entire Khadr family who were famously dubbed “Canada’s first family of terrorism” by Ontario Conservative MPP Bob Runciman.[8]

These proceedings tell us little, if anything, about substantive Canadian anti-terrorism law; indeed, at the time of writing there is no public indication that either of the Khadr brothers will face any charges in Canada. However, they have played a major part in generating a complex and interesting jurisprudence on various aspects of what might loosely be termed “cognate” areas: the administrative and procedural aspects of Canadian anti-terrorism law. The Omar Khadr case has been a major battleground for issues such as: the extraterritorial application of the Charter; obligations owed by the government to a citizen facing foreign prosecution; the implications of the Canadian government’s complicity in foreign abuses; and the nature and scope of the courts’ ability to judicially review Ministerial exercises of the federal foreign affairs authority. The Abdullah Khadr case, an extradition proceeding, traversed such issues as: the distinction between intelligence- and evidence-gathering;[9] the government’s duty to exercise diplomatic protection of its nationals abroad; and the implications of mistreatment by foreign states on Canada’s international criminal cooperation obligations. In each case, there is a distinct intermingling of domestic and international law issues, which both courts and commentators have found difficult to disentangle.

While there is a great deal to be said about the Khadr cases, this paper will argue that they illustrate two legal and policy imperatives that must inform the future development of Canadian anti-terrorism law. The first is familiar: the end must continue to be worth what it costs. The terrorists who seek to harm us must be made accountable for the harm, and the governments who seek to protect us (including foreign governments) must remain accountable for the manner in which they pursue and prosecute. To be effective in the overall, democratic sense, an anti-terrorism regime must be both vigorous and fair; and while the balance between these two priorities is always a moving target, it is one we must vigilantly continue to strike.[10]

The second, and related, imperative is the recognition that Canadian anti-terrorism law does not exist in a domestically-based vacuum but engages significant and sometimes complex questions of international law and international relations. Canadian law in this area is underdeveloped in various important ways, due both to the novelty of the issues and the rocky interface between domestic law, international law and government policy that they involve. While a cogent picture is beginning to emerge, this state of continued underdevelopment threatens to undermine Canada’s commitment to fundamental human rights and due process, a threat aggravated by state attempts to circumscribe the ability of the courts to act as arbiters and protectors of Charter values. All players in the legal system—governments, Crown counsel, defence counsel and courts—must come to terms with these issues so that the system remains focused, effective and accountable. Specifically, this will require greater facility with international law generally and a more robust approach to its use in the protection of the fairness of Canadian legal process.

---

* Associate Professor, Schulich School of Law, Dalhousie University, Halifax. E-mail: robert.currie@dal.ca

[1] E.g. I. Teotonio, “Toronto 18 attack was to mimic 9/11,” Toronto Star online: < http://www.thestar.com/News/GTA/article/655068  >

[2] R. v. Khawaja, 2010 ONCA 862, leave granted [2011] SCCA No. 80.

[3] U.S.A. v. Sriskandarajah, 2010 ONCA 857, leave granted [2011] SCCA No. 63.

[4] U.S.A. v. Nadarajah, 2010 ONCA 859, leave granted [2011] SCCA No. 64.

[5] Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 SCR 125 [Khadr 2008]; and Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 SCR 44 [Khadr 2010].

[6] United States of America v. Khadr, 2010 ONSC 4338 [Khadr Extradition], affirmed 2011 ONCA 358 [Khadr Extradition Appeal].

[7] See “Abdullah Khadr extradition request may go to top court,” CBC online: < http://www.cbc.ca/news/politics/story/2011/07/29/pol-abdullah-khadr.html  >. Leave to appeal refused: [2011] SCCA 316.

[8] As quoted on the website of the PBS television show “Frontline,” online at: < http://www.pbs.org/wgbh/pages/frontline/shows/khadr/family/canada.html  >

[9] On this point, see Kent Roach, The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation Between Intelligence and Evidence, Vol. 4 of Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (Ottawa: Government of Canada, 2010).

[10] See generally Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge: Cambridge University Press, 2011); Roza Pati, Due Process and International Terrorism: An International Legal Analysis (Leiden: Martinus Nijhoff, 2009).

 

Terrorism and Slavery

 

An interesting report here about how a relatively new criminal organization (Al-Qaeda) is holding up abolition of an ancient crime (slavery), in Mali.

Money-Laundering Charges in SNC-Lavalin Case

 

CBC is reporting that the government of  Switzerland, which arrested former SNC-Lavalin executive Riadh Ben Aissa last spring, has formally charged him with money-laundering relating to $139 million in payments which left the company and ended up in Swiss bank accounts. This is quite a complex multi-state investigation involving the RCMP, Swiss authorities, Tunisia, Libya and the British Virgin Islands. There are allegations of corruption of public officials being thrown around as well.

In the section on corruption in the book, I comment on how the OECD (the sponsoring organization of the 1998 anti-corruption treaty that preceded the UNCAC) has been critical of Canada both for the manner in which it implemented the treaty and its half-hearted approach to prosecuting. Of course, that has changed in the last couple of years, with both investigations and charges happening. These comments in the CBC story were particularly interesting:

 

An expert from the Organisation for Economic Co-operation and Development cited by Swiss broadcaster RTS criticized Canada's inability to clamp down on errant multinational businesses. Mark Pieth, chairman of the OECD's working group on bribery in international business, said: "At the OECD, we had criticized Canada for its weak legislation and its way of combating corruption in big enterprises." But Pieth said the ongoing investigation into SNC-Lavalin "is a positive sign."

New CRS Report on Terrorism-Organized Crime Link

 

At this link you can see a new report generated by the  US Congressional Research Service, exploring the always-popular issue of the linkages and synergies between terrorism and transnational organized crime. It also offers various observations about what form American foreign policy responses might take, including how to oversee "the implementation of cross-cutting activities that span geographic regions, functional disciplines, and a multitude of policy tools that are largely dependent on effective interagency coordination and international cooperation."

Update on the Mungwarere Trial

 

A while back I blogged about the beginning of the Mungwarere genocide trial taking place in Ontario. The Crown closed its case in July, and the trial was scheduled to resume (and presumably has done so) with the beginning of the defence case on October 9.

In the meantime, here is an article written by Sonya Nigam, Executive Director of the University of Ottawa's Human Rights Research and Education Centre, which sets out the observations made by a student intern who was observing the trial.