Mrs. Francine Lalonde (Mercier, BQ)
Madam Speaker, this second reading of Bill C-19 is an opportunity to say how long it took this bill to appear. It is not that Canada was long in the preparation of it, but this bill is of a very particular nature, because it is the translation into law of an international agreement to create an international criminal court for global concerns.
I will take the liberty of reading a text by Philippe Weckel, a professor at the University of Nice-Sofia-Antipolis, which summarizes well, it seems to me, the realization of the Rome statute in Bill C-19.
The Rome conference opened on June 15 and closed July 18 following the adoption of a treaty on the statutes of the first international criminal jurisdiction of a permanent and universal nature.
An old utopian idea is achieved paradoxically with the help of realism. This success, uncertain to the last minute, will not enthuse those who wanted to proceed much more quickly and go further.
However, the balanced compromise finally reached, after the laborious negotiations of the night of July 16-17, gives the new institution a chance to survive—
I repeat “gives the new institution a chance to survive”.
—and to progressively develop its activities and authority. In other words, this historic moment signals an achievement, causes certain frustrations but gives rise to cautious optimism.
This introduction expresses both the hope raised by the Rome Treaty creating, once the signing and international ratification conditions have been met, an international criminal court, and the difficulties connected with it.
The famous conference of July 17 and 18 ended, it must be said, in confusion. On July 18, 23 states, including France, signed a document that had been hastily put together and not reread. Two months later, the true and authentic instrument of the Rome Treaty was still an unknown quantity.
As the bill tells us, this treaty was adopted on July 17, or the morning of July 18, corrected by the protocols of November 10, 1998 and July 12, 1999. This speaks to all the difficulties surrounding the birth of something on which thinkers had focused a half-century of efforts.
The term “international criminal court” is an unusual one in itself. Any viewer who has not yet given up on such a complicated subject, knows what a court is, and there is nothing new and different about the words international and criminal either.
The truly revolutionary aspect of it is the combination of the three. Until this treaty, a criminal court was an instrument, within a state, which judged individuals who had committed offences of a criminal or other nature. The international court was in place to judge conflicts between states or between groups and a state.
For the first time, a court will be called the “international criminal court” to ensure—this is the objective—that certain categories of extremely serious crimes will no longer go unpunished, as has been the case until now. This is our hope and objective.
What crimes will the international criminal court deal with? There are four different types. There is the genocide, which is defined as follows:
—acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such—
Crimes against humanity are also included. A crime against humanity is defined as follows:
—acts...committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack—
War crimes are defined as:
(a) grave breaches of the Geneva Conventions of 12 August 1949—
Such breaches include attacks against civilian populations, deportation, hostage takings, the intentional destruction or the pillaging of civilian property, including towns, villages, dwellings or buildings which are undefended and which are not military objectives, and employing poison or poisoned weapons.
Finally, there is the crime of aggression, which could not be specifically defined in the Rome Statute. The court will have authority over the crime of aggression only when this crime has been properly defined under a new treaty.
As members can see, and also our viewers, the future international criminal court will have a huge responsibility.
Throughout history, and until the creation and operation of that court, these crimes were often not defined or named as such, but they were recognized in foreign policy and in history as actions taken by certain states in their quest for power. We know that, over the centuries, that quest for power has been a quest by one country to dominate another. It can also be domination over groups or confrontation with other nations. All manner of horrors were perpetrated.
This was how political tyrants and dictators behaved, but their actions were not judged. People might be revolted by the ensuing millions of deaths, but there was no other way to judge, and worse, no other way to try them.
How did this idea of an international court arise therefore? Several individuals must have had the same idea over the years, centuries even, but it was actually in the aftermath of World War II and specifically the crimes against the Jews that the Nuremberg tribunal was set up. In fact, it was the first international criminal justice organization.
It is clear when we look back on these events that this tribunal caused many problems, particularly from a legal perspective. Right up to the beginning of the trial, genocide was not considered a crime. At Nuremberg, victims were only witnesses, not complainants or civil parties. It was the states that judged.
It has not been possible to rid this tribunal of its image as a court of victors. Very often, as we know, history is written by the victors, and much time must pass before it can be rewritten, I might add, since my background is in history.
The idea of an international court arose at the same time as the Nuremberg tribunal was created. This idea first came up at the UN over 50 years ago. On December 9, 1948, the Convention on the Prevention and Punishment of the Crime of Genocide, with its article 6 providing for the possibility of the future establishment of an international criminal court, was adopted by the UN National Assembly.
Article 6 provided that persons charged with genocide would be tried by a competent tribunal of the state in the territory of which the crime had been committed or by such international penal tribunal as might have jurisdiction.
How is it then that the treaty launching the process of adoption was not signed until July 1998? Because even though this idea was adopted by the UN, it ran into tremendous difficulties, the first being that the sovereign states could not agree to the creation of a court whose jurisdiction exceeded their own and which could try actions committed by the powers in control of a state at some point in their history.
The project was the result of certain events, it must be said. The international law commission was making no progress. The work was resumed in 1989, but what really hastened progress was the events in Bosnia and later Rwanda, and the Security Council's decision to use its powers to create the international criminal tribunal to judge the crimes committed in Bosnia and Rwanda to which we have referred.
The mere mention of these two courts shows how difficult it is to have a true international court. After everything that has been done, we know that 65 individuals have been charged, 35 are presently imprisoned, and 14 have been sentenced. This shows how lengthy proceedings are, that it takes a long time to ensure justice and the appearance of justice. No one, however, would say it was not worthwhile.
Unlike the international criminal tribunal created for Bosnia and Rwanda, the international criminal court will have two main elements. There will be a permanent court with nine justices, in the Hague. States ratifying the Rome Statute will be required to work in collaboration with this court. How? Mainly by delivering up the accused and the witnesses, or evidence in their possession.
The court will operate along the same lines as the international criminal tribunal for the former Yugoslavia. As well, the international criminal court will be able to delegate its powers to national judicial systems, which is what interests us even more in Canada.
Courts in countries that have ratified the statute could judge accused persons themselves, in accordance with the rules of law recognized by the court. This latter mechanism is what is termed application of—and this is a term that will come up a great deal—“universal jurisdiction”, which confers upon national courts in countries such as Canada jurisdiction over serious crimes committed outside their territory and not involving any of their nationals.
It is important to keep these two conditions in mind. They are rather surprising as principal conditions, because—I would need to go into detail on amendments to Canadian statutes here—a Canadian court could have been empowered to judge in Canada criminals who were not Canadians or had committed crimes against persons who were not Canadians.
The minister of the time did not consider it appropriate to enforce the law of Canada, so that the jurisprudence is such that, without the passage of Bill C-19, no court in Canada can judge criminals who are not Canadian or who did not allegedly commit crimes against Canadian nationals.
The fact of being able to delegate to other national courts the attributes of the permanent court at The Hague—this is the hope—will take a load off this international court, and lighten its operations and its costs, two sources of criticism against the international court of justice and against the International Criminal Tribunal for the former Yugoslavia, whose mandate was expanded to include Rwanda.
I have spoken of the long history behind this Rome Statute, but I have not yet said why many base their hopes for world peace on the creation of such a court. The first reason given is to ensure justice for all.
I will quote Kofi Annan:
For nearly half a century—almost as long as the United Nations has been in existence—the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought, no doubt, that the horrors of the Second World War—the camps, the cruelty, the exterminations, the Holocaust—could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time—this decade even—has shown us that man's capacity for evil knows no limits. Genocide...is now a word of our time, too, a heinous reality that calls for a historic response.
As a corollary, we can add that this court aims at putting an end to impunity. Justice for all means the end of impunity.
Jose Lasso, the former UN commissioner for human rights said, and we should bear this in mind:
We run a greater risk of being brought to justice and sentenced for the killing of one man than for the killing of 100,000.
That is what impunity is all about.
That impunity has resulted in a rapid increase in the number of conflicts in several regions of the world. Perhaps we get that impression of a rapid increase because we are immediately aware of these conflicts, through our modern media. In any case, we are aware of an increasing number of conflicts and of the fact that many of those who committed terrible crimes escape justice through power, wealth and honours. There is nothing that we can do against these people.
If such a situation is generally accepted in this day and age, it will undermine the moral order. Some think that the Rome Statute, which parliament will ask Canada to ratify, will help put an end to conflicts. How can they say that? There can be no peace without justice, no justice without laws, no laws worthy of that name without a court responsible for ruling on what is fair and legal under specific circumstances, including in situations of ethnic conflicts.
It is clear that not everyone shares the same hopes regarding this treaty until it becomes law.
The international criminal court will try to remedy the inadequacies of special tribunals and will take over when national institutions, in the area of criminal justice, do not have the will or the ability to act. I should point out that those who have already signed this treaty, or who will sign it, are committed to do everything in their power- but, as we will see, this power does not have enough teeth—to ensure that country leaders who do not ratify the statutes and may have committed crimes against humanity can be prosecuted. If these people leave their territory, they could be extradited and tried in another country.
Some claim that the Rome Statute could deter future war criminals. Perhaps, but, as far as I am concerned, that argument is not any more valid than another one that we reject, namely that imposing capital punishment in a country has a deterrent effect on criminals. I believe this is why Canada decided to abolish the death penalty.
Many hopes are pinned on this international criminal court, but let us be clear. Before we get to the stage where this universal jurisdiction can be exercised, 60 countries must ratify the Rome treaty. What progress has been made to date? Eight countries have made the move.
Naturally a number of countries whose leaders might be targeted by this court will not be rushing to add their signature.
As William Chabase said in a presentation to the Standing Committee on Foreign Affairs and International Trade, those countries which are in the position of disapproving of the actions of leaders of other countries will rush to sign the accords and the Rome convention.
Which countries have ratified this treaty? Belgium, the Fiji Islands, Ghana, Italy, Norway, San Marino, Senegal, and Trinidad and Tobago.
There is a long road ahead before the Rome treaty is fully implemented. It should be emphasized that the United States has serious reservations about this international criminal court. Other countries, such as France, may also drag their heels because of the influence of the military and their assessment of the impact of the international criminal court. I mention these two countries because they are important, but there are undoubtedly many others.
Earlier I said that there has been criticism, even from experts and politicians who are in favour of the international criminal court, but who fear that it will not be able to completely meet our expectations, and in certain cases not be able to meet them at all.
I wish to cite Lise Bissonnette, an editor who has now moved on to other equally noble functions. On July 20, two days after the treaty was adopted, she wrote the following:
The new international criminal court is a very incomplete step in the fight against impunity.
She poses a number of questions. These are very certainly the same questions we will be asking ourselves when we begin our deliberations in committee.
She goes on to say:
Beyond the classic definition of genocide, war crimes, and crimes against humanity, must these offences be broadened to include enslavement, sexual offences, the use of chemical or biological weapons? Will the court have automatic and universal jurisdiction and could it pursue nationals of a state that had refused to sign the treaty? Where would the jurisdiction of national courts end and that of the international court begin?
Some responses have been forthcoming since the writing of this editorial, but other questions remain unanswered.
Again quoting Lise Bissonnette:
The zeal focussed by numerous countries, which eventually led to the creation of the international criminal court, paradoxically shows how readily the international community could prevent war crimes, genocide and aggression. As history has shown, from Latin America to Africa, only the democratization of nations put an end to abuse, to reprisals against civilian populations, to political murders, to the violent crushing of minorities and dissidents. The most scandalous of impunities is not, therefore, that allowed to dictators and their underlings when they are allowed to get off scot-free because there is no international tribunal before which they can be judged—
I will raise my voice here and repeat what Lise Bissonnette said “—the most scandalous of impunities is that guaranteed to them at the very moment they are leading their reign of terror”.
The most sordid recent example—
It dates back to 1998.
—was that of Indonesia and of former President Suharto, whom the international community has just let off for economic rather than moral reasons, he who had on his conscience the proven genocide of one third of the population of East Timor. This was perpetrated before the very eyes of the country's trading partners, and with their full knowledge, for over twenty years.
As far as the warm, and self-serving friendship Canadian Prime Minister Chrétien had for this murderer (a minimum of 200,000 people killed during his regime and on his orders) is concerned, the fact that our Minister of Foreign Affairs was at the same time agitating for the creation of an international criminal court makes our diplomacy look pretty calculating and cynical.
This is a harsh judgment, but one that is worthwhile. The example of the relative effectiveness of the International Criminal Tribunal for the former Yugoslavia justifies such questions, which need to be asked today, as the committee begins its deliberations.
The Minister of Foreign Affairs' global position on human security is an important component of this international criminal court to ensure the protection of children and civilian populations, but are we not, at the moment, in international terms, agreeing that the only role of the international community is to ensure order within existing borders?
We are giving ourselves the means to punish the heads of states once we catch them. Madam Justice Arbour's charge against Milosevic, who remains the President of the Yugoslav Federation, served as a signal, but at the moment, and I will point this out in committee, almost all the peacekeeping measures we refer to, the ones we invest in, are means of repression, when we must accept that the vast majority of current conflicts are conflicts within countries and due to various causes.
These causes, which may be the unrecognized but disputed self-determination of peoples, may underlie the huge problems we see and, in this area, the international community is much less active.
There is a whole side to this activity by the international community that must be raised during committee debates.
As my speaking time is drawing to a close, I can say that at second reading, the Bloc Quebecois supports this bill, but we have some concerns, including the fact that the treaty was signed without prior debate in parliament, as we have been calling for prior to the implementation stage, when we cannot change much.
I point out that my colleague from Beauharnois—Salaberry has a private member's bill calling for international treaties to be put before parliament prior to the ratification stage and not when an enacting bill is under consideration, such as this one.
The subject is a difficult one for ordinary citizens, but the House of Commons must be the place to explain difficult issues, the place for instruction on democracy and on international democracy vital to future peace.
Subtopic: Crimes Against Humanity Act