Mr. Irwin Cotler (Mount Royal, Lib.)
Mr. Speaker, I want to express my appreciation to the hon. member for Vancouver Quadra for suggesting that he would split his time with me, but I wish to speak in my own right and take the full 20 minutes.
I rise to speak to Bill C-19, the crimes against humanity and war crimes act, at a historic moment of remembrance and reminder, of witness and warning, on the eve of the 50th anniversary of the codification by the United Nations General Assembly in 1950 of the Nuremberg principles which are symbol and substance, source and inspiration of the revolution in international human rights law in general and international humanitarian law in particular.
For the Nuremberg principles codified for the first time, the Grundnorm principle that individuals, including heads of state, are criminally responsible for the commission of war crimes and crimes against humanity. Nor can individuals plead acts of state or superior orders as exculpatory grounds for their criminality. For these Nuremberg crimes were deemed to be crimes against humankind itself. Those who commit them are hostis humanis generis, the enemies of humankind, while the rights violated would include every right protected in the Universal Declaration of Human Rights, the Magna Carta of humankind.
It is not surprising then, given the continuing and pervasive state of international atrocity and criminality since judgment at Nuremberg, and the impunity accompanying it, that the idea and inspiration for establishing an international criminal court has remained on the international agenda with greater or less visibility since judgment at Nuremberg.
However, it took the globalized horror of the killing fields of the nineties, the horror of Bosnia, the agony of Rwanda, the brutalized women and children of Sierra Leone and Sudan, the emergence of the unthinkable, ethnic cleansing, and the unspeakable, genocide, as paridigmatic forms of armed conflict in the nineties, to give the idea of an international criminal court the moral compellability and sense of urgency that it warrants.
The establishment of an international criminal court was an idea whose time had come, indeed, was long overdue. What distinguishes the international criminal court from the ad hoc tribunals is that the ICC is the first permanent international tribunal with a global jurisdiction to try individuals for criminal violations of international humanitarian law.
Unlike the International Court of Justice, whose contentious jurisdiction is restricted to states, the ICC will have juridical authority to indict individuals from any global killing field, and unlike the ad hoc character of the Yugoslavian and Rwandan war crimes tribunals, the jurisdiction of the ICC will not be chronologically or geographically limited.
Bill C-19 is designed to implement in Canada the statute for an ICC, to provide a Canadian legislative foundation for the prosecution of war criminals so as to ensure that Canada will not become a haven for war criminals past or present, and to serve as an international model for Nuremberg legacy legislation.
Accordingly, I will first describe briefly the purposive character of the ICC and why it is of such moral and juridical compellability and urgency at this time. Second, I will outline the principles underlying Bill C-19. For reasons of time, I will limit myself to identifying rather than elaborating upon the respective purposes and principles of the ICC and Bill C-19.
I will turn now to the purposive character of the ICC, which may be summarized as follows.
Principle number one is to institutionalize and internationalize the Nuremberg legacy. In a word, there will be no safe havens for these hostis humanis generis, the enemies of humankind.
Principle number two is to end the culture of impunity. Despite the Nuremberg and Tokyo principles and precedents, impunity has been the national and international practice. The ICC will presage a culture of accountability as an antidote to a culture of impunity.
Principle number three is to deter international crimes and protect international peace and security. An ICC will not only deter prospective war criminals and génocidaires from killing their own citizens, let alone nationals from other countries, but it will facilitate and protect peacekeeping as well as the protection of international peace and security.
Principle number four is to counter the failure of national systems. In an ideal world, international crimes should be dealt with by national authorities of the state in which they were committed. In the real world, however, governments are often unwilling, even unable, to call their own citizens to account, as exemplified by the Yugoslavian and Rwandan experiences.
Principle number five is to remedy the limitations of such ad hoc tribunals. In a word, these ad hoc tribunals, such as in the former Yugoslavia and Rwanda, are no substitute for a permanent international tribunal. Politically, the selective establishment of such tribunals by the Security Council gives rise to allegations or apprehensions of political bias. Juridically, it is jurisprudential authority that is more situation specific than internationally specific.
Principle number six is to provide enforcement mechanisms. In a word, the ICC is necessary to overcome one of the main failings of international criminal law: the lack of a permanent, institutionalized enforcement system.
Principle number seven is to provide an alternative to military sanctions. There is presently no permanent, non-military or coercive juridical mechanism to hold individual perpetrators accountable. In such circumstances, the international community's only recourse is to impose sanctions, embargoes or to use military force. However, these are blunt instruments that may harm innocent civilians, as in Iraq, more than affect perpetrators. By focusing the rule of law more precisely on individual violators, international law would become more just and more effective.
Principle number eight is to afford redress for victims and their families, if not affected populations as a whole.
Principle number nine is to provide a counter to any historical revisionism after the fact and a means for truth, healing and reconciliation.
Principle number ten is to serve as an international justice model, as a standard-bearer in the implementation of international norms both domestically and internationally.
I will turn now to the basic principles underlying Bill C-19 itself.
The first principle is the individual criminal responsibility. This legislation is organized around the foundational Nuremberg principle, as set forth in the judgment of the Nuremberg tribunal itself, and I quote, that “crimes against international law are committed by men, not by abstract entities, and only by punishing the individuals who commit such crimes can international law be enforced”.
The second principle is the domestication of ICC crimes. Bill C-19 will create offences based on the Rome statute of genocide, crimes against humanity and war crimes that would apply to such international criminal conduct if committed in Canada, while similar offences would be created with respect to international criminal conduct committed outside Canada.
The third principle is the principle of command and superior responsibility. The bill includes offences of breach of responsibility by military commanders and other superiors. In a word, failure of a military commander or superior to exercise control over persons under their authority which results in the subordinates committing genocide, a crime against humanity or war crimes, could result in the criminal responsibility of the military commanders or superiors if they failed to take measures to repress the crime or to submit the matter to the competent authorities for investigation.
Principle number four is that of state responsibility for international crimes. States are under an obligation to prosecute, or to extradite for purposes of prosecution, any individuals present in their territory who are accused of international crimes of genocide, crimes against humanity or war crimes.
Principle number five is that of universal jurisdiction. As the perpetrators of such international crimes are indeed defined as the enemies of humankind, Canada now has the legislative basis to prosecute the perpetrators of such crimes from whatever source, if they are found in Canada.
Principle number six is that of complementarity, a principle of particular importance. In a word the ICC is designed to complement, not replace, national courts. It will therefore exercise jurisdiction where national courts are unwilling or unable to bring perpetrators to justice.
Principle number seven is that of offences against the ICC. Bill C-19 includes offences to protect the integrity of legal processes under the international criminal court and to protect judges and officials of the ICC as well as witnesses. In particular, it includes offences of obstructing justice, obstructing officials, bribery of judges and officials, perjury, fabricating or giving contradictory evidence, and intimidation of officials or witnesses.
I come now to principle number eight, the principle of protection against gender violence. The ICC statute includes explicit provisions for crimes of sexual and gender violence, identifying as crimes against humanity and war crimes, conduct that is directed specifically against women, such as “rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, or any other form of sexual violence of comparable violence”.
Principle number nine is that of the protection of children in armed conflict. The Rome statute also includes as a war crime the conscripting or enlisting of children under the age of 15 into national armed forces or using them to actively participate in hostilities in international armed conflict. This is a principle central to Canada's human security agenda.
Principle number 10 is the aiding and abetting principle. Persons who aid and abet, counsel, or otherwise assist in the commission of an offence are considered to be parties to that offence. The bill has also been amended to close any loopholes with respect to the inclusion of attempts, conspiracies and being an accessory after the fact.
Principle number 11 is with respect to the forced transfer of civilian populations into an occupied territory. The prohibition against forced transfer of a civilian population into an occupied territory by an occupying power will adhere to the intent and scope of the offence as set forth in the Geneva Conventions Act of 1949, as per the footnote to the ICC, and to protect against the politicization of this offence.
With respect to principle number 12, Bill C-19, unlike as some have said, does cover non-state actors. The bill provides criminal liability for “persons” which, pursuant to section 2 of the criminal code, includes legal entities such as corporations.
Principle number 13 is that of reparations. Victims will be entitled to reparations including restitution, compensation and rehabilitation.
Principle number 14 is a particularly important one, the principle of non-immunity, the Pinochet principle and beyond. In a word a person who is the subject of a request for surrender by the ICC, pursuant to clauses 48 and 70 of the bill, will not be able to claim immunity under common law or statute from arrest or extradition under the Extradition Act.
As well, a person who is the subject of a domestic prosecution, including a head of state or senior official, will not be able to claim immunity from prosecution under common law or statute, as set forth in clause 3 of the bill. The principle of non-immunity in section 27 of the ICC statute coupled with article 98 in that statute, may arguably be said to have been incorporated by reference in the domestication in Bill C-19 of the ICC statute itself.
Principle number 15 is that of due process. The ICC statute incorporates the highest international standards of the right to fair trial and due process, while Canadian law is further buttressed by due process guarantees as set forth in the Canadian Charter of Rights and Freedoms and related jurisprudence.
Principle number 16 is that of the superior orders defence. The scope of the superior orders defence has been clarified in the bill. Consistent with the Rome statute, persons accused of genocide, crimes against humanity, or other manifestly unlawful acts would not—I repeat, would not—be able to raise this defence. Further, and to address any adverse fallout from the Finta decision, a person would not be able to base a defence on hate propaganda against an identifiable group as grounds for defence against international crimes.
The last principle is principle number 17, that of state co-operation. State parties such as Canada are obliged to co-operate fully with the ICC, a principle anchored in our own mutual legal assistance and related legislation.
In summary, Bill C-19 is comprehensive, historic, indeed watershed legislation by any national or international standard. It is an expression and an example of the best witness testimony of representative human rights NGOs who appeared before the committee, as well as the expertise of the legal advisors and the members of all parties on the foreign affairs committee, such as the expertise of the hon. member for Beauharnois—Salaberry.
The legislation, as I indicated at the outset, is being enacted at a historic moment of remembrance and reminder on the eve of the 50th anniversary of the codification by the United Nations General Assembly of the Nuremberg principles in 1950. This legislation may be said to be the contemporary embodiment of an expanded, refined, updated set of Nuremberg principles for the new millennium. It will place Canada at the forefront of the international justice movement and give juridical validation to the anguished plea of victims and survivors from the Holocaust to the present day killing fields of “never again”.
It is a wake-up call and a warning to tyrants everywhere. There will be no safe havens, no base or sanctuary for the enemies of humankind. It is now incumbent upon Canada to take the lead in securing the necessary ratifications to bring the international criminal court treaty into effect and to ensure the dream and the efficacy of our own domestic landmark legislation.
Topic: Government Orders
Subtopic: Crimes Against Humanity And War Crimes Act