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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.
Posted at 09:49 PM | Permalink | Comments (0)
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.
Posted at 07:24 PM | Permalink | Comments (5)
(For background, see Professor Lafontaine's blog post on the Mugesera deportation, below).
Unlike many stories involving international and transnational criminal law, this one is getting some legs under it. First, Mugesera himself is reported to be critically ill in hospital in Montreal, having allegedly taken an overdose of medication. This was in reaction to the 11 January decision of Justice Shore of the Federal Court, which ordered his deportation.
The international law end of it is heating up. The UN High Commissioner for Human Rights made a request of the government of Canada that it stay the deportation until it is able to assess the case--essentially to decide whether it would be a human rights violation for Canada to deport Mugesera to Rwanda. The office of Public Safety Minister Vic Teows quickly stated that it would not comply with the UNHCR request, which set off some controversy.
Then, Mr. Mugesera's new lawyers obtained a one-week stay of the deportation ruling, from the Quebec Superior Court, in order to provide time to argue that the government is bound to comply with the UNHCR delay request. Minister Teows is not impressed and has announced plans to seek to appeal or vacate the ruling. The Quebec Superior Court ruling itself has been criticized by distinguished U. Montreal law professor Stephane Beaulac (his comments in French here).
The question is an interesting one: any decision by the UNHCR regarding whether or not Canada should deport Mugesera to Rwanda will not be binding on Canada. However, the legal question is whether or not Canada is bound to delay its proceedings in order for the UNHCR to make its inquiry. It is something of a replay of the Ahani case (2002, ONCA), which didn't end well for the individual.
Law professor moment: and students wonder why we make them take courses in procedure in law school. Even in international law, the day-to-day practice is procedural! They, and everyone following or involved in the Mugesera matter, should bear in mind the remarks of Justice Rosenberg (dissenting) in Ahani:
"[T]he courts in their commendable effort to support the government’s defence of this and other countries from terrorism must bear in mind the words of Justice Frankfurter in McNabb v. U.S., 318 U.S. 332 (1942) at 347, which were adopted for this country by Lamer J. in Reference Re Section 94(2) of the Motor Vehicle Act at p. 310: “the history of liberty has largely been the history of observance of procedural safeguards.”
Posted at 03:06 PM | Permalink | Comments (0)
I am delighted to have, as the first post of 2012, a guest blog entry by Professor Fannie Lafontaine of the Faculty of Law, Laval University. Professor Lafontaine is Director of the International Criminal and Humanitarian Law Clinic (www.fd.ulaval.ca/cdpih), Researcher at the Peace and Security Program of the Institut québécois des hautes études internationales (www.psi.ulaval.ca) and author of the forthcoming (and hotly anticipated) book Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (Toronto: Carswell, 2012).
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Almost 8 years after his expulsion was ordered by the Supreme Court of Canada because of « reasonable grounds to believe » that he had committed acts of genocide and crimes against humanity, Québec City resident Léon Mugesera received his expulsion order from Citizenship and Immigration Canada. As the press reported on 31 December 2011 in an article that initially went largely unnoticed, but which has since been widely picked up by the media, Mr. Mugesera and his supporters circulated an email to various officials, individuals and the press asking support to prevent his deportation to Rwanda and his lawyer has asked for judicial review of the decision.
This new development in the Mugesera saga comes in an international environment that has seen prodigious developments in the past months. This post will address two main issues: the international context in which this decision by the Canadian authorities takes place and Canada’s responsibilities in the global endeavour to ensure that justice is done for those suspected of involvement in the worst international crimes.
For decades, numerous states and the International Criminal Tribunal for Rwanda (ICTR) have had great difficulties with extraditing or deporting suspects to Rwanda, essentially because of concerns for their security or fears that they could not get a fair trial there. This long-standing debate has led to an important decision by a Chamber of the European Court of Human Rights (ECHR) on 27 October 2011, which dismissed the application by a Rwandan genocide suspect who was fighting extradition to Rwanda by Sweden because, according to the Court, “he would not risk a flagrant denial of justice". The Appeals Chamber of the ICTR in November 2011 also confirmed the transfer of Jean Bosco Uwinkindi to Rwandan courts, a first such transfer from the ICTR. These decisions depart from a long line of national cases from countries such as France, the United Kingdom, Finland, Germany and Switzerland that had refused extradition or expulsion of Rwandan suspects for security or fair trial concerns. (a useful summary can be found on the Justiceupdated blog). The United States had for its part allowed such a transfer in late 2010. The decisions of the ECHR and of the Appeals Chamber of the ICTR were anxiously awaited as potentially opening the gates for such transfers from across the globe, as well as from the ICTR, which is eager to hasten the pace of its completion strategy. It would not be far-fetched to advance that Canada was also anxiously waiting for the outcome of these important international cases to decide on the course to take in the Mugesera case, where a legal vacuum of close to 8 years was becoming more and more unsustainable.
The recent trend, embodied by the two international decisions, to allow transfers to Rwanda, does not end the passionate and furious debate as to whether Rwandan courts are indeed able to ensure fair trials, despite a new Transfer Law affording human rights guarantees to all suspects; whether accused are indeed secure in Rwandan detention, despite the building of new prison facilities to facilitate transfers from other jurisdictions; or, rather, whether simple retribution will prevail. This post does not aim at taking position in this debate. Such an assessment can only be done on a case-by-case basis in a court setting free of bias toward either position and with a balancing of credible evidence based on precise legal standards. This is what the Canadian authorities appear to have done in the risk assessment that has led to the deportation order. Importantly, this is an issue that Canadian courts will have the difficult task of doing, if the Federal Court grants leave for judicial review of Mr. Mugesera's deportation order.
Most foreign decisions rejecting transfer to Rwanda had been based on the lack of fair trial guarantees rather than on the risk of mistreatment in detention. The ECHR case also does not find sufficient evidence on the risk of mistreatment. As for fair trial, it should be mentioned that while Rule 11bis of the ICTR's Rules of Evidence and Procedure provides that transfers to national jurisdictions can only occur if the Court is satisfied « that the accused will receive a fair trial in the courts of the State concerned”, the standard pursuant to Article 6 of the European Convention for Human Rights is more demanding for one who alleges violation of the Convention. As the ECHR stated:
It should be noted that, in the twenty-two years since the Soering judgment, the Court has never found that an extradition or expulsion would be in violation of Article 6. This indicates that the “flagrant denial of justice” test is a stringent one. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article » (par. 115).
The test in Canadian law is also stringent where Charter rights are at play in extradition or deportation procedures. The conditions of detention, trial or sentence that could be imposed on the accused must « shock the conscience » of Canadians (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Canada v. Schmidt, [1987] 1 S.C.R. 500), a quite stringent test indeed.
Without prejudging the outcome of an eventual judicial review from the courts in the Mugesera case, which would undoubtedly consider the foreign and international law developments in respect of transfers of genocide suspects to Rwanda in addition to the applicable domestic law, it is worth reflecting on both possible outcomes as well as on Canada’s decision to choose the path of expulsion rather than that of prosecution before its own courts. Indeed, prosecution was favoured in two previous cases related to the Rwandan genocide, Munyaneza and Mungwarere.
The Canadian Government has adopted a theoretically aggressive “no safe haven” policy, echoing other democracies that have vowed to ensure that their borders would not harbour international criminals. The policy encompasses many remedies, both criminal and administrative. Once a suspect is found on Canadian territory, Canadian authorities may chose prosecution in Canada under the Crimes against Humanity and War Crimes Act, extradition to a foreign government (upon request), and surrender to an international tribunal (upon request). It can also choose other remedies, which are more focused on national interest than in ensuring that justice is done for the suspected crimes, including revocation of citizenship and deportation, as well as declarations of inadmissibility and orders for removal from Canada. The proceedings against Mr. Mugesera have taken the administrative channel of inadmissibility and removal. Despite allegations that Rwanda would have requested extradition, there is no available information that indicates that Canada considered this vehicle, which would guarantee that the suspect would be tried for his alleged crimes.
The criteria that guide the discretionary decision in the choice of remedy against a suspected war criminal present in Canada is vaguely defined, but includes the sufficiency of evidence to base a criminal conviction, the possibility that the person be tried in another state or before an international jurisdiction, and, perhaps above all, financial considerations (the issue of the criteria that guide –or should guide- the decision to exercise universal jurisdiction in a specific case is discussed in greater detail in an upcoming article). In this regard, however, the lingering question is whether a decision to transfer rather than extradite or prosecute is in conformity with Canada’s international obligations regarding the fight against impunity for the worst international crimes.
As things currently stand, the vast majority of individuals excluded from Canada because it is alleged that they had committed international crimes are not sent back to face trial abroad. The tenth annual report on Canada’s War Crimes Program indicated the following numbers since the inception of the program in 1998 (as of March 2007): four hundred and forty-three removals and one prosecution (Munyenaza). During the 2007-2008 fiscal year, the CBSA removed twenty-three persons found to have been involved in war crimes or crimes against humanity and although the reports for the following fiscal years are not yet available, it is known that a second prosecution was launched against Mungwarere in 2009. There was one extradition in 2007 in the case of Seifert (Italy v. Seifert, 2007 B.C.C.A. 407, 246 B.C.A.C. 46, leave to appeal to S.C.C. refused, [2007] S.C.C.A. 503 (QL) and there will likely be another one in the case of Jorge Vinicio Sosa Orantes, although in the latter case, unfortunately, extradition is contemplated for immigration fraud in the USA rather than for the suspect’s alleged involvement in crimes against humanity in Guatemala. [editor's note: see the earlier guest blog about the Orantes case by Matt Eisenbrandt of CCIJ here]
These numbers are telling. Perhaps the obvious should be recalled: deportation or removal of war criminals from Canada certainly cannot replace criminal prosecutions nor can it be a substitute for extradition. The over-reliance on administrative remedies may serve the limited purpose of not allowing Canadian soil to harbour war criminals, but does very little to serve the broader objective of ensuring accountability for the core crimes. The ultimate aim is to ensure that justice, at home or abroad, is rendered. The public release in July 2011 by the Canada Border Services Agency of a list of thirty men alleged to have committed crimes against humanity or war crimes and wanted for deportation has made the headlines, in Canada and abroad, and has brought to the fore the tension between Canada’s obligations on the international plane to contribute to the fight against impunity and the limited role the War Crimes Program effectively allows it to play.
Having said that, it seems obvious that Mr. Mugesera would stand trial in Rwanda if deported there from Canada, regardless of the existence of a formal process of extradition. If Canadian courts indeed confirm Mugesera’s expulsion, serious thought should be given to ensuring that Canada is able to monitor the proceedings against the accused, visit him in prison and also obtain assurances that he will not be mistreated or otherwise have his rights seriously violated. Canadian courts have ordered similar guarantees in other circumstances, notably with respect to the death penalty and, in a more limited fashion, torture. These additional guarantees, ordered by the Court or decided politically, as imperfect as they might seem, would contribute to ensuring that Canada does not completely evade its international responsibilities in case deportation is confirmed by the Court.
These types of guarantees find support in the two international cases referred to above. First, in both cases, a sort of monitoring of the national proceedings was ordered or discussed: in the Uwikindi case, the African Commission on Human and Peoples’ Rights was tasked with monitoring the trial and reporting to the ICTR every month on progress, the ICTR also reiterating its power according to Rule 11bis of its Rules of Evidence and Procedure to revoke the order of transfer. The European Court based its decision on the guarantees of fair trial contained in the new Rwandan Transfer Law, but discussed the offer made by Rwanda, confirmed to the Court, that Swedish authorities could monitor the detention and proceedings.
Second, the Court also discussed the undertakings of the Rwandan authorities that the suspect would not be subjected to life-imprisonment in isolation, as its national legislation generally allows in replacement for the death penalty, a sentence which would be contrary to international human rights standards. The amendments in 2008 to the Organic Law no. 31/2007 of 25/07/2007 relating to the Abolition of the Death Penalty (Organic Law no. 66/2008 of 21/11/2008 Modifying and Complementing « the Death Penalty Abolition Law ») indeed allows indefinite detention in isolation, but forbids it in cases of transfers from the ICTR or from third states (arts. 3-4). Such minimal guarantees should, it is argued, accompany any order of removal of Mr. Mugesera from Canada or be requested by Canada to Rwanda as a condition to the suspect’s transfer.
Clearly, if Canadian courts reverse the deportation order and decide that there cannot be genuine and fair prosecution in Rwanda, or if there is a substantial risk of mistreatment, Canada bears the legal and moral responsibility to conduct such proceedings before its courts. The case of Mugesera, having navigated through the Canadian court system for over a decade, carrying with it a gigantic bulk of relevant evidence, is a particularly suitable case for prosecution on the basis of universal jurisdiction, a jurisdictional vehicle often impeded by the difficulties of gathering sufficient evidence to sustain a criminal conviction. This is more true considering that the highest court of the land has already decided in its 2005 decision referred to above that there were “reasonable grounds to believe” that Mr. Mugesera had committed acts of genocide and crimes against humanity. It would be, it is supposed, not too big a step to make the case beyond a reasonable doubt in a criminal setting.
The decision of the Canadian authorities to proceed with expulsion rather that prosecution is probably driven by political and financial considerations, comforted by legal arguments now reinforced by the recent ECHR and ICTR cases. There is in principle no problem in prosecuting suspects in the states where the crimes occur - quite the contrary. The case of Rwanda, however, is a complex one, as evidenced by the passionate judicial, academic and public debates that have taken place the world over and that have now migrated to Canadian courts. Regardless of the propriety of the political decision, exclusively legal considerations must now guide how the story will end: Mr. Mugesera must be prosecuted for his alleged crimes, in a fair and impartial trial. Here or there.
Posted at 07:07 PM | Permalink | Comments (5)
