International & Transnational Criminal Law

New ICC Prosecutor Elected

 

As expected (see my earlier post here), Gambian national and current Deputy Prosecutor Fatou Bensouda has been elected, by the Assembly of States Parties to the Rome Statute of the International Criminal Court, to succeed Luis Moreno-Ocampo as the Prosecutor of the ICC.

Coverage is reasonably rhapsodic, although a skeptical Kenyan commentator has criticized the decision as continuing the Ocampo status quo; read him here. Some more practical background here.

Various Extradition Developments

 

Just a few scattered notes about extradition as we approach some holiday down time...

1) Back in June, the Quebec Court of Appeal rendered a remarkable ruling (the CanLii version of the decision is down) in the extradition case of  Doyle Fowler, a dual US-Canadian citizen who lives in Montreal. Florida authorities allege that in 2007, when Fowler was 16, he participated in the murder of a friend's uncle and then fled to Montreal to live with his mother. An extradition request was initiated which resulted in the Minister of Justice ordering Fowler surrendered -- after Florida prosecutors had agreed to charge him only with second-degree murder and get the death penalty off the table (extradition to face the death penalty is prohibited in Canada, pursuant to the SCC's decision in U.S.A. v. Burns and Rafay).

Unusually, the Court of Appeal allowed a judicial review of the surrender decision. While I am relying on a CBC story about the decision (as the original is only in French and I'm not up to the task of fully comprehending it), it appears that the Court decided that it would "shock the conscience" of Canadians to send Fowler back to face a potential sentence without parole, particularly in light of the fact that he was a juvenile when the offence was committed.

I say this is unusual for two reasons. One, it is rare for a surrender decision to be overturned in Canada, full stop. Second, it seems to fly in the face of a number of SCC decisions from the 1990s in which the Court refused to reverse decisions to extradite based on differences between the sentencing regime in the requesting state and that in Canada, even if those differences were significant (think, minor marijuana possession charges). Another unusual aspect of this case: the Crown has apparently decided not to seek leave to appeal it, as the decision was rendered in June and there is no evidence of an application for leave in any of the databases I checked.

I was shocked to learn that life without parole can be imposed on youth in the United States. While we obviously must have a solid and workable extradition relationship with the U.S., this is the kind of situation that must give us pause. Clearly, there needs to be: a) some calibration of the extradition treaty to mitigate how presumptively easy extradition would be in this kind of case; b) give the extradition judges more control over managing the human rights implications of surrender, perhaps by revisiting what "double criminality" actually means; or c) both.

 

2) Speaking of the unusual quashing of extradition decisions by Courts of Appeal, the SCC recently denied the Crown leave to appeal the Ontario Court of Appeal's decision in the Abdullah Khadr extradition case. And with good reason. As I commented at a recent terrorism conference, it says something about the ferocity of the Crown's law and order agenda in international criminal cooperation that it would even seek leave in this case, which involved blatant and shocking violations of both Khadr's human rights and international law obligations owed to Canada, by the governments of the U.S. and Pakistan. For more, you can read the brilliant decision by Justice Christopher Speyer (acting as extradition judge) here.

 

3) The Canadian Council on International Law (CCIL) has launched its new online publication, CCIL Review/Revue. There isn't much content there at the moment, but see this article (in French): "Belhassen Trebelsi: Extradition Impossible?"

Canada in the News

Just a random sampling of news stories that came across my desk in the last two days, offered for interest but also to feed my staple point about the importance of this subject matter to Canada and that it's increasingly relevant and newsworthy.

1) Canada has been roughed up again by Transparency International, slipping from 6th place to 10th place on that organization's annual "Corruption Perceptions Index" for 2011. As the Globe & Mail reports, the head of TI's Canadian branch sees this as good news, as it reflects increasing public awareness of corrupt business practices and our government's poor history in suppressing them. Plus, 10th in the world is still pretty good, and we're the highest-ranking state in the Americas. As reported a while back on this blog, the RCMP has stepped up efforts in this area of late, but forthcoming cuts to their white-collar crime budget may cause us to stall yet again.

2) Abousfian Abdelrazik has been removed from the United Nations' 1267 terrorist blacklist. Thus ends a rather sordid saga of a Canadian citizen whose own government set him up for detention and torture in Sudan, and then actively blocked every effort to get him returned (you can see the Federal Court's decision here, but it's only part of the story -- see more in the Globe's report). It's certainly a good thing for the future that the UN created the Office of the Ombudsperson of the Security Council's 1267 Committee, so that cases like this can be dealt with expeditiously. An even better thing that the current Ombud is a very reputable Canadian lawyer, Kimberly Prost. As reported, however, Mr. Abdelrazik is still unhappy, as evidenced by his multi-million dollar civil action against the government of Canada.

3) In a startling development in Canadian legal publishing, there was a story about the International Criminal Court on the cover of The Lawyers Weekly! Prosecutor Ocampo was the subject of a feature interview (link may eventually expire) when the film about his work, "Prosecutor," was recently screened at the University of Ottawa. In it, he urged Canada to support the Court, predicting that other states (which he declined to name) will attempt to exert influence on it as it completes more cases and increases in power and legitimacy. He also declined to comment on the Canadian government's emphasis on deporting and de-naturalizing suspected core crimes perpetrators, calling it "a Canadian decision."