International & Transnational Criminal Law

Is Canada Helping Other Countries Kill People?

 

This post is re-printed from The Conversation, under the terms of a Creative Commons license. The original can be found here. The Conversation is a great platform where academics are able to publish publicly-digestible reflections from their research and contribute to public discourse. Many thanks to my editor on this piece, Lee-Anne Goodman.

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A steadily decreasing number of countries still impose the death penalty as the ultimate sentence in criminal cases. Canada has been part of the trend to abolish the death penalty, having done so decades ago.

In the 2001 case of United States v. Burns, the Supreme Court of Canada ruled that people cannot be extradited to face the death penalty abroad, unless the country requesting them agrees to keep death off the table.

Canadians, the Supreme Court said, take seriously the idea that the death penalty is not only a human rights abuse but bad public policy, in part because of the very real danger that it will be imposed on people who have been wrongfully convicted. Canada does not impose it, and does not assist other countries in doing so.

Or do we?

 

Legal assistance treaties

There are other ways besides extradition in which we assist foreign states in their own criminal prosecutions. Because both people and evidence cross borders more frequently now than ever before, Canada has a number of mutual legal assistance treaties (MLATs) with other states. These treaties oblige Canada, at the request of the foreign state, to seize evidence located in Canada and transmit it for use in the foreign state’s prosecution.

Canada is among many states that use MLATs, and on the whole they are important co-operation mechanisms for fighting transnational crime. However, there have long been concerns about whether and when limits should be placed on this form of co-operation by countries hoping to protect human rights.

The problem: What if a state provides evidence for use in a foreign prosecution, but the foreign state breaches the human rights of the accused? What if the person is tortured, denied a fair trial or subjected to the death penalty? Is the state that sent the evidence implicated in this conduct, and if so is it lawful to send the evidence in the first place? [note: you can read an article of mine on this subject here. It is older, but still fairly current as the law, as such, has not really changed]

Over time, there has been a trend towards governments placing limits on MLATs to address exactly these kinds of concerns.

The U.K. Supreme Court dealt with this kind of scenario in March 2020, in a case called Elgizouli v. Secretary of State for the Home Department. The U.S. had made an MLAT request for evidence to be used in a prosecution for grave crimes allegedly committed in the Syrian conflict, but refused to provide assurances that the death penalty would not be imposed. The British government decided to provide the evidence anyway, choosing to override its normal policy of not providing assistance without such assurances.

The Supreme Court unanimously held that this was an unlawful move because it did not adequately address the human rights of the accused — and some judges opined that this would put the U.K. in breach of its own human rights obligations under both domestic and international law.

 

Decisions not made public in Canada

What’s interesting about the case is how it highlights the significantly different situation in Canada. In the U.K., not only was the relevant policy on use of MLATs published on a government website, but the original decision to provide assistance to the U.S. was available to be challenged in court.

The situation in Canada is significantly different. Here, all of our MLAT relations are handled by the International Assistance Group, a specialized office at Justice Canada, which fields requests from other states and makes the decisions about whether and how to respond to them.

However, while the execution of these decisions is eventually subject to some amount of court supervision under the relevant legislation, the decisions themselves are never published or made publicly available. Even the person targeted by the foreign investigation does not always have notice of them or any opportunity to challenge them.

One could venture that, legally speaking, Canada should limit MLAT requests where human rights concerns exist; the 2001 Supreme Court ruling in Burns suggests this, as does a 2014 case called R. v. Wakeling. However, the Supreme Court of Canada has so far only set vague guidelines, and we don’t know how the International Assistance Group actually makes its decisions. There is no indication Canada even has a formal policy, or if so, what it is.

There is no public indication whether, when an MLAT request is made, Canada asks the foreign state if the death penalty is a possible outcome, and if so, whether any consideration is given to whether we should provide evidence.

 

No transparency

This lack of transparency is all the more startling when you realize that there are guidelines and reporting duties in place for the RCMP, CSIS and the CBSA.

To be clear, I am not suggesting that the International Assistance Group ignores these concerns, or that it fails to strive to comply with the law. In fact, what we do know about Canada’s MLAT practice suggests that Canada is careful and does not co-operate in death penalty cases. The answer to the admittedly provocative headline of this article is, actually, “no.” But what about cases where other human rights, such as the right to a fair trial, are implicated? There, things are more opaque.

As the Elgizouli case in the U.K. shows, as well as Canada’s own history with Maher Arar and others, co-operating with other states can be perilous. Governments sometimes make mistakes, potentially with great cost to individuals.

With a sophisticated government body such as the International Assistance Group, it would be absurd to suggest that there’s no policy in place. However, we should know what it is, and there should be more public scrutiny of the decisions it makes.

Third Edition Published

 

I am delighted to announce that the 3rd edition of our book, International & Transnational Criminal Law, was published in January 2020. The publisher's blurb is below, and the book can be ordered here. Speaking of the publisher, Joseph and I are very grateful to Jeff Miller and his fabulous colleagues at Irwin Law, who are always such a pleasure to work with. We are also grateful to our distinguished colleague, Charles Cherner Jalloh, for generously agreeing to write the foreword for this edition; and to Gillian MacNeil, who continues as lead author of Chapter 11 on Immunities.

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International criminal law has focused on the prosecution of truly international crimes — genocide, crimes against humanity, war crimes, and aggression. The emerging field of transnational criminal law reflects the fact that our post-Cold War, post-9/11 world has seen the growth of transnational crimes of international concern, such as terrorism, money laundering, organized crime, and human and narcotics trafficking, as well as transnational crimes of domestic concern, which are simply ordinary domestic crimes that involve the jurisdiction of more than one state.

This book surveys these two related but increasingly distinct fields with a focus on Canada, bringing together in one accessible text topics that are of increasing importance in a world of globalized crime, from a substantive perspective and through examination of the expanding range of international tribunals dealing with such crimes. This third edition updates caselaw and international practice from Canada, including substantial revisions relating to the prosecution of cross-border crimes. It also combines examinations of international courts and tribunals, transnational criminal law treaties, and recent literature to provide a unique perspective on these two international law disciplines that, while best viewed as separate, retain a common heritage and some overlapping concepts and applications.

 

If "climate strikes" fail, what's next? Forecasting transnational "climate terrorism"

 

(this article originally appeared in The Lawyer's Daily, 18 October 2019 issue (paywalled). I also did a radio interview on this subject on 22 October 2019)

As I write this, cities all across Canada are gearing up for the second round of “climate strikes,” mass protests against climate change that are being held to coincide with the United Nations’ emergency climate summit on September 23, 2019. In Europe and in other time zones, they have already begun, people all over the world coming together in an expression of collective protest against a global warming situation that we know from the 2018 IPCC Report is dire.

In this moment, our ears are still ringing from the angry address delivered to the UN summit by Swedish climate activist Greta Thunberg. “We are at the beginning of a mass extinction and all you can talk about is money and fairy tales of endless economic growth,” she said to the assembled leaders, “How dare you?” However, her words should make all of us look into the mirror; as philosophy professor Monique Deveaux recently wrote, given the scope of the danger to humanity and the world, we have a collective political and moral responsibility to take aggressive action. And we are failing to live up to that responsibility. Despite decades of warning, efforts to de-carbonize the atmosphere and forestall cataclysmic change are stagnant. How dare we, indeed.

If our abysmal record of climate inertia continues, if the climate strikes don’t spur change, what’s next? I am neither a climate expert nor a philosopher, but I am a criminal lawyer and academic with some knowledge of transnational terrorism. While terrorism is a complex phenomenon and takes many forms, it is fairly uncontroversial that many groups labelled “terrorists” were motivated by frustration with the failure of political efforts to effect needed social change. Think of “freedom fighters” in colonized developing states who used “terrorist” methods to overthrow repression by colonial governments; of anti-fascist movements who take to the streets to battle racists and neo-nazis who are insufficiently controlled (and even encouraged) by governments; of the Black Panther Party, who presented armed resistance to institutionalized anti-Black racism.

The IPCC has given us a deadline of what is now less than 12 years before cataclysmic effects from climate change will be upon us. We need to begin to consider the possibility that, if climate strikes fail and meaningful progress is not made, then people frustrated with the failure of governments and political processes will take matters into their own hands. We must consider that we may see the formation of a “Green Brigade,” made up of people who think that violent, destructive means are the only way to force change. I’m surprised it has not already happened.

If this forecast of mine is correct, then we may eventually be forced to confront some tough questions that go to the heart of our criminal justice system. It is not difficult to imagine that a so-called “eco-terrorist” who, say, blows up a coal plant could argue that their action is morally justifiable, because of the literal threat to humanity posed by carbon emissions and that, therefore, they are not guilty of a criminal offence. Under normal circumstances this argument will fail; violent, anti-social and destructive behaviour needs to be prosecuted because, as a starting point, it is both morally wrong and, left uncontrolled, could destabilize society. Even if your goals are altruistic, you do not get to choose which rules can be broken. Indeed, controlling these kinds of impulses is what our criminal law is for.

However, the current circumstances are anything but ordinary—we are potentially facing extinction, or at least catastrophic change. The accused climate terrorist could argue that, at some point, the moral pendulum swings over to preservation of life on earth as the first priority. While their methods may not be conventionally ethical, they might say, their cause is very much so. At some point, the question of lawful/unlawful must give way to prioritizing survival over mass destruction. Why, they might ask, should they be convicted of a crime for trying to save humanity?

Is there room for this viewpoint? Those who study terrorism know that this kind of question, as uncomfortable as it is, is not new. As Professor D.J.C. Carmichael reluctantly argued decades ago,[1] while certain terrorist acts may be illegal because they are morally abhorrent, at some point simple utilitarianism may tip the balance towards justifying them in a broader moral sense.

And to be sure, in principle our criminal law allows for this. The idea behind the defence of “self-defence” is that when you are attacked by someone, you can respond with reasonably proportionate physical force. Even though your own use of force would normally be criminal, the law says you are “justified” because of the extreme circumstances. Similarly, the defence of “necessity” operates to excuse illegal conduct if it is committed in response to a situation of imminent peril or danger, where there is no reasonable legal alternative to the unlawful act.

The way the law is currently framed, certainly in Canada, would likely make these defences unavailable to our coal plant-destroying eco-terrorist. And yet, if we believe in the moral force of the principles that underlie these defences, then we are going to have to have uncomfortable discussions about the moral pragmatism of destructive behaviour that is nonetheless geared towards, literally, saving the world. In fact, this conversation has already begun in other countries; in March 2018 a group of climate activists in Boston were held not civilly responsible for various counts of trespass and disturbing the peace, on the basis of a necessity defence.

Moreover, bringing other countries into the equation also points to related issues we may face down the road. When people are sought for extradition, states sometimes refuse to extradite them to face trials in foreign states because the crime alleged is “political” in nature. The modern trend has been against applying this “political offence exception” in terrorism cases, on the basis that political ends do not justify terroristic means. However, extradition can be a politically fraught affair even in normal circumstances—and again, we do not live in normal times. As the climate worsens, it seems reasonable to think that governments that have taken significant climate mitigation measures might be less inclined to extradite an individual to face prosecution for a pro-climate—if destructive—action. The geo-politics surrounding climate and those surrounding transnational crime, which previously have been mostly separate, could converge, and require difficult and creative legal thinking.

To be clear, I am not proposing eco-terrorism as a solution, nor am I suggesting that these defences apply. What I am quite sure of is that we need to gear up for the conversation. Our criminal justice system is designed to deal with no less than the most pressing moral issues in our society. Maintaining its legitimacy in the face of challenges posed by “climate terrorism” will require some hard thinking about how we apply basic concepts to new and pressing moral dilemmas.

 

ADDENDUM: after I wrote this article I discovered an excellent and prescient piece on the same topic, published in the McGill Law Journal by Hugo Tremblay in 2012. You can read that here.

 

[1] D.J.C. Carmichael, “Terrorism: Some Ethical Issues” (1976) 24 Chitty’s LJ 233.

Histories of Transnational Criminal Law

 

A few weeks ago I had the pleasure of attending a conference entitled "Histories of Transnational Criminal Law," which was organized and convened in Hannover, Germany by Prof. Neil Boister of the University of Canterbury, Prof. Florian Jeßberger of the University of Hamburg, and Prof. Sabine Gless of the University of Basel. The overall goal of the conference was to bring together a group of scholars who work in this emerging field called "Transnational Criminal Law" and try to suss out its historical roots and underpinnings. The ultimate product will be a collection of papers under the same title, which is to be published by Oxford University Press.

I was not alone in thinking that the conference was a smashing success, and it was certainly one of the best conferences I have been to in some time. The organizers wisely chose to make the scope inter-disciplinary, so while the program was dominated by lawyers there were also terrific contributions from the sociology, criminology and history disciplines. The papers were interesting, the discussions stimulating, and the venue (provided by the conference funder, the Volkswagen Foundation) second to none. A highlight was an opening address by Judge Kim Prost of the International Criminal Court, whose professional history is deeply steeped in TCL matters and who gave a lively account of various late 20th-century developments in the field.

I was also so pleased to make the personal acquaintance of various scholars, such as Profs. Jeßberger and Gless, whose work I had read over the years, and of course to see old friends like Prof. Boister, Prof. Joanna Harrington of the University of Alberta and Prof. Sara Wharton of the University of Windsor (with whom I presented a paper entitled "The Emergence of Regional Transnational Criminal Courts").

Just for fun, below is a picture from some post-conference frivolity, in which are shown (l to r) Prof. Roger Clark (the godfather of TCL), yours truly, Prof. Mangai Natarajan, and Prof. Boister. (photo credit: Bob Currie)

 

Canada Committed "Colonial Genocide": Report

 

As has been widely reported, the National Inquiry Into Missing and Murdered Indigenous Women & Girls recently released its Final Report. It was accompanied by an explosive Supplementary Report that provides a legal argument (hereafter the "Genocide Argument" or "Argument") that in its dealings with its Indigenous peoples Canada is responsible under international law for genocide. Even more explosively, Canadian Prime Minister Justin Trudeau has publicly stated that he accepts that genocide was committed, sparking inquiries from the United Nations and the Organization of American States.

A few observations:

1) the Genocide Argument is just that -- a legal argument. The Inquiry is not a court and it is not within its jurisdiction to make binding conclusions or findings of law. That said, the Prime Minister's acceptance of this argument undoubtedly gives some legal resonance to it as a matter of international law.

2) the Argument is presented as the view of the Inquiry itself, but in fact was drafted by very reputable and credible scholars and lawyers who are part of the Canadian Partnership for International Justice (CPIJ), an organization of which my co-author Joseph Rikhof and I are also members. It is not explicitly stated but should be understood that the Argument does not represent the views of the CPIJ nor any of its individual members.

3) the latter point is worth making, in no small part because some members of the Partnership have already expressed the view that the Argument is flawed and its conclusions incorrect. Joseph Rikhof's view to this effect can be found here. (Another opinion to this effect, by Canadian international lawyer Bruno Gelinas-Faucher, can be found here.) Probably the best piece of writing on the Argument yet has been done by CPIJ partner Professor Payam Akhvan, whose wide-ranging article highlights the analytical problems with the Argument but quite correctly notes the cultural currency of the word "genocide" outside its legal definition, as well as the pressing imperative that the Inquiry's conclusions need to be meaningfully addressed.

4) I agree with the views expressed by Joseph and Payam. Regrettably, in my view, the Inquiry's choice to launch this legal argument has predictably resulted in an intense discussion (in the media and among scholars) about whether the word itself is being used correctly/appropriately, and has distracted from the conclusions reached in the Inquiry's nearly 1200-page report, which lay out an appalling historical and ongoing pattern of discrimination against Indigenous women and girls which needs addressing. As Prof. Akhavan notes, "semantic debates should not get in the way of doing what is necessary to end violence against Indigenous women and girls."

 

Extradition Scrap: Netherlands Court Bars Extradition Over UK Prison Conditions

 

As has been widely reported (try here and here), a Dutch court recently ruled that an alleged narcotics smuggler could not be extradited from the Netherlands to Great Britain, because of atrocious conditions at the prison in Liverpool, England. A copy of the decision can be found here; it is in Dutch but contains extensive quotations (in English) from a UK government report that scrutinized a number of British prisons.

As this excellent article by UK extradition lawyer Ben Keith explains, this is an increasingly serious problem for the UK, and for a number of European states. It is worth pausing to think about this -- an EU member state will not extradite someone to the United Kingdom, also (for the moment) an EU member state, one of the permanent five members of the UN Security Council, supposedly one of the richest and most civilized countries in the world. Because the conditions in its prisons are "inhuman."

It is also worth noting that Canada has extradition relations with the UK, Romania, and other states referred to in Mr. Keith's article. As we note in Chapter 9 of the book, Canadian courts (led by the SCC) have mostly resolutely refused to deal with the issue of foreign prison conditions and whether it is at all humane to extradite people to face imprisonment (and sometimes lengthy and excessive pre-trial detention). I would suggest it is time for a re-consideration.

New Book: Einarsen & Rikhof, "A Theory of Punishable Participation in Universal Crimes"

 

I am delighted to announce the publication of a terrific-looking new book: A Theory of Punishable Participation in Universal Crimes, by Professor Terje Einarsen of the University of Bergen, and my knowledgable and able co-author, Dr. Joseph Rikhof, recently retired from the War Crimes Program at Justice Canada. Here is the publisher's blurb:

"This study is the second in a four-part series entitled "Rethinking the Essentials of International Criminal Law and Transitional Justice." The first volume - The Concept of Universal Crimes in International Law - explored the parameters and theories related to crimes under international law. This volume examines the notion of punishable participation in such crimes. It presents a general theory of personal criminal liability and provides a comprehensive overview of all forms of criminal participation in international law. The authors examine numerous primary materials in international and transnational criminal law, both historical and current, relating to both international and domestic case law. They also analyse academic literature that attempts to explain and bring consistency to the jurisprudence, as well as other sources such as reports of the International Law Commission. This rich tapestry is then used to test and further develop an overarching conceptual theory and matrix that provides a better understanding of the boundaries of personal criminal liability lex lata and lex ferenda, and of the relationship between the various forms of punishable participation in universal crimes. Like the first volume, this book makes an important contribution to a more coherent and practical understanding of international criminal law. The authors are recognised experts in the field, with many years of experience from academic, government and judicial service."

I am certainly looking forward to reading this book, having already enjoyed the first book in the series, Prof. Einarsen's master work, The Concept of Universal Crimes in International Law (which, in fact, I reviewed for the Journal of International Criminal Justice). Dr. Rikhof, whose sophistication as both practitioner and scholar of international criminal law is largely un-matched, has doubtless brought his usual meticulousness and penchant for deep analysis to this work.

I'm particularly pleased to see the attention the authors bring to domestic case law and how it figures into the matrix of theories about individual liability for what the authors prefer to call "universal crimes." This is an important source that often goes un-scrutinized -- or when it is included, writers sometimes don't know what to do with it from a methodological point of view. I've also had a sneak peek at Chapter 5, which has a discussion about liability in transnational criminal law, and found it very stimulating.

You can order the book on Amazon, here. However, like all of the books in the wonderful Torkel Opsahl Academic EPublisher Publication Series, it is available for free at this link.

 

Reconsidering Canada's Anti-Money Laundering & Terrorist Financing Laws

 

Canada's Standing Committee on Finance (a committee of our federal House of Commons) recently released its new report on reforming our anti-money laundering and terrorist financing laws. The report makes 32 recommendations for changes to the AML regime, on such topics as adjustments to reporting requirements, "politically exposed persons" (PEPs), crypto-currency, real estate ownership and casinos. A good write-up by Jacqueline Shinfield at the Blakes firm can be found here. 

 

UK Weakens Human Rights Protections Under MLAT

 

Back in 2000 I published an article in the journal Criminal Law Forum, entitled "Human Rights and International Mutual Legal Assistance: Resolving the Tension." The cite is (2000) 11 Criminal Law Forum 143, but you can read a pre-publication version here. "Mutual legal assistance" (MLA) essentially refers to states gathering/seizing evidence on their territories and sending it to treaty partner states, for use in criminal proceedings being conducted in the partner states. In the article I examined a number of issues about the human rights implications of states providing MLA to other states with which they are cooperating, and whether and in what circumstances doing so would violate the international human rights law obligations of the requested states. While it was fairly well-established that states parties to human rights treaties (particularly the ECHR) would breach their obligations by extraditing individuals to face human rights abuses in the requesting state, the question was much more diffuse when it came to MLA because the general view was that MLA did not engage the rights of the individual more closely. Thus, states tended to reserve the right to provide MLA in such circumstances, though as a matter of policy many human rights-promoting states tended to avoid it.

In putting together the article I was lucky enough to be able to interview (in 1998) an official from the Edinburgh office of the UK's Crown prosecutions office, who told me that the UK's policy matched the description above -- as a matter of policy, the UK would not provide MLA to states where there were grounds to believe the accused would suffer human rights abuses, even though this might breach the MLA treaty ("MLAT"). This policy was, and has been in the years since, most keenly applied in death penalty cases. In 2011 the UK Foreign Office issued a policy document entitled "Overseas Security and Justice Assistance: Human Rights Guidance," which made clear that officials involved in international cooperation should seek assurances from the requesting state that the death penalty will not be imposed, prior to providing MLA.

(The most recent update of the policy can be found here; see also an excellent article by Bharat Malkani in (2013) 62 ICLQ 523).

Currently this policy is being litigated in the UK, in the case of Alexanda Kotey and El Shafee Elsheikh, two former UK  nationals who fought with ISIS in the Syrian war, were captured by Kurdish forces, and are now facing prosecution for various crimes in the US. The UK Home Secretary initially indicated that the provision of MLA to the US in the case would have to suspended while the death penalty was on the table, but has since rescinded that decision and decided to provide cooperation, given the "exceptional circumstances" of the case and in particular the seriousness of the crimes. Elsheikh's mother has brought a legal challenge to this decision; coverage here and here. The argument being made is that the UK is legally obliged to comply with the policy.

A good account of the case and the applicable UK law by Prof. Malkani can be found here. The claimants have a tough row to hoe, not made easier by the fact that the two individuals in question were stripped of their UK nationality in 2014. Prof. Malkani makes the point, which I think is correct, that the law as it stands actually supports the government's position; and if one is inclined to think that states (particularly non-death penalty states) should be restrained from helping other states carry out the death penalty, then what the case points to is the need to strengthen the law.

My own observation is that, as I have remarked in conference papers from time to time, the international legal situation has not changed since my article was published in 2000. One of the pernicious problems of inter-state criminal cooperation is that states tend to resist the application of human rights norms to the process, and have to be dragged kicking and screaming into agreement with some fairly simple ideas, such as that to enable foreign states to commit human rights abuses makes the requested states complicit in those abuses. Those states which even care about this nonetheless maintain their practice at the level of policy, and resist both compulsion to do so by courts and interpretations of international and domestic human rights instruments that might lead in that direction.

The result? A still-diffuse set of international practices and norms around whether and how inter-state criminal cooperation should be shaped by human rights standards, starved for legal vitality by deliberate stickhandling on the part of states.

Canada Joins Five-State Coalition to Combat Tax Crime

 

It was recently announced that Canada has joined a five-state coalition of tax authorities, called the "Joint Chiefs of Global Tax Enforcement (J5)", the overall goal of which is to "increase collaboration in the fight against international and transnational tax crime and money laundering." The Canadian government actor involved is, of course, the Canada Revenue Agency. The other partner agencies are the U.S. Internal Revenue Service (not so "internal" any more, I guess), the Australian Criminal Intelligence Commission, the Australian Taxation Office, the Netherlands Fiscale Inlichtingen - en Opsporingsdienst, and the UK's Revenue & Customs.

The IRS webpage on the J5 indicates that it was formed in response to a call from the OECD for states to do more to "tackle enablers of tax crime," and describes the desired results:

The outcome of this active collaboration will see the J5:

• Enhance existing investigation and intelligence programs
• Identify significant targets for new investigations
• Improve the tactical intelligence threat picture now and into the future
• Lead the wider community in developing its strategic understanding of the methods, weaknesses and risks from offshore tax crime and cybercrime
• Raise international awareness that the J5 is working together to reduce  transnational tax crime, cybercrime and money laundering, and create uncertainty for those who seek to commit such offenses.

 

No word yet on whether there is a specific treaty in place to facilitate this collaboration or whether the states will rely on their existing criminal cooperation networks and instruments (extradition, mutual legal assistance, etc.). This is an interesting development in the historical sense, as states have traditionally been loath to engage in much enforcement activity regarding the tax/fiscal laws of other states.