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Simon Shields,

Barrister and Solicitor
LSUC #37308N

Legal Writing and Research

War Crimes and Related Law (Canada)
(February 2008)

Chapter 1 - Overview

  1. The Nature of International Criminal Law
  2. "Customary International Law"
  3. Treaties
    (a) Overview
    (b) Signing and Implementation
  4. "Local" Canadian Law
    (a) Overview
    (b) Procedures
    (c) Parties
    (d) Immunity and Political Control of Prosecutions
  5. Comment


1. The Nature of International Criminal Law

"International Criminal Law", as considered in this program, is that body of law addressing violent behaviour - often on a mass scale and often between states and their agents. Historically it has evolved from the intense military conflicts of Europe throughout the 19th and 20th centuries, particularly in the forms of the four Geneva Conventions. Most recently this law has taken on a thorough and new codified form in coming into force of the Rome Statute of the International Criminal Court, and the implementing statutes of the Rome Statute's "state-parties".

The Canadian implementation of the Rome Statute is the Crimes Against Humanity and War Crimes Act [CAHWCA, in force in 2000], which spells out the main international criminal offences of: crimes against humanity, genocide and war crimes (and their ancillary forms). It is this statute and these topics that are the primary topic of this program.

International criminal law - like all international "law" - takes a little getting used to. It is not so much "law" - as we are otherwise used to it - as law in the process of struggling to free itself from mother politics. As politics is a field full of tolerated contradictions (some would say rampant hypocrisy), so you should be prepared for some of these in international criminal law. Instances of this are issues of sovereign immunity (purporting to immunize heads-of-state and their ministers from prosecution), the surprisingly broad (and surprisingly persistent) "Nuremberg Defence" of subordinates "just following orders", and (at least in Canada) the full federal executive control over the initiation and carriage of aany and all domestic CAHWCA prosecutions.

The Rome Statute regime countenances that most prosecutions will be conducted by local "state-party" criminal justice systems. The International Criminal Court (ICC) at The Hague, Netherlands can only take jurisdiction when it is shown that the otherwise-appropriate local state is either unwilling or unable to properly try a case on its merits ("default jurisdiction").

While the main source of law for any modern study of international criminal law is the "Rome Statute of the International Criminal Court", actual prosecution can involve up to three types of law - all of which have their own intricacies. These sources are "customary international law", treaties (both Rome Statute and otherwise) and "local" criminal law (ie. law of the particular country under which a prosecution is being conducted).

In ICC prosecutions only the first two of these come into play. However, when a prosecution conducted in "local" (eg. Canadian) courts then local law is always significant - and will be paramount in the event of conflict. The struggle between the substantive law expressed in treaties (including the Rome Statute) and its "implementation" in local law is a constant theme in international criminal law.

2. "Customary International Law"

To those accustomed to the English-originated common law system, the counterpart to "customary international law" (CuIL) is the "common law" itself. It is the body of judge-made law from international and local courts throughout the world and in the body of academic texts that reflect the history of international law.

CuIL is largely not written down or "codified", although in many cases - as will be seen - it has found itself replicated and thus codified in various treaties.

The frustratingly uncertain and scattered body of CuIL is of central important for Canadian prosecutions, since it is expressly adopted for interpretive purposes in the definitions of "war crimes", "genocide" and "crimes against humanity" in the Crimes Against Humanity and War Crimes Act (Canada) [CAHWCA]. I quote here that Act's definition of "war crime" as an example:
s.4(3) CAHWCA
"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

Note: that the expression "conventional international law" [CoIL] refers to treaty law to which Canada is a party and which is "in force" (ie. implemented - see "Treaties" below): CAHWCA s.2(1).
It is a safe assumption that in ANY war crimes prosecution, both prosecution and defence will scour CuIL for favourable or ambiguous principles which favour their case. Since the body of CuIL is so scattered in its sources this makes the task of analysing and rendering it coherent very similar to the (forensic) task of analyzing and rendering coherent the English (or Canadian) common law.

3. Treaties

(a) Overview

"Treaties" come under many names: "conventions", "declarations" or "charters" - but they are all essentially contracts between (typically) the executive levels of the signatory states to be bound by the terms of the treaty document.

How nice were it that simple. How, when, if and by whom that newly-inked treaty "law" can be integrated into an actual fact situation is a study all its own, which turns primarily on the extent to which the law of that treaty has been (further) converted into locally-enforceable law by the local state signatory. This process in Canada is known as "implementation" and entails the additional conversion of the treaty and/or its terms in Canadian law in the normal legislative course.

Of course, the ratification processes of each signatory state can differ widely. In some states, such as non-constitutional monarchies, the act of signing is a final and unfettered expression of the will of the state. In others, checks and balances built into the local constitution may require significant subsequent ratification either before or after signing.

(b) Signing and Implementation

The Canadian treaty approval process is an historically interesting mixture of these monarchic and democratic processes. Under Canadian constitutional law treaty "approval" falls into two stages: signing and implementation.

Though it can be manifest in a variety of somewhat arcane techniques, the authority to enter into or "sign" treaties resides with the executive government of the day: the prime minister and cabinet of the party in power. "Signing" can sometimes be accompanied by a further (somewhat redundant) document unilaterally issued by the signing authority and then filed in a central international repository, called a "ratification".

However signing (and ratification, if required) alone of a treaty only thereby binds the parties to its terms as international law enforcement mechanisms allow, and these are notoriously lacking in enforceable remedial authority and (more importantly) enforcement infrastructure.

As noted above, treaty terms are not enforceable in local courts in Canada until they have also been passed into Canadian law in the normal legislative course ("implementation"). Issues of implementation are further complicated as such "implementing statutes" rarely simply "adopt" treaty law in one simple statement to that effect, but typically re-state the terms of the treaty as suits local legal needs and political preference. In some cases this is quite necessary as the statement of the law in the treaty form is not amenable to Canadian legal categories, word usage - and lacks the necessary legal 'connection' to Canadian procedures. In others cases however the political "shopping" (ie. selection) can lead to situations of partial or varied implementation of the treaty, with foreseeable interpretive difficulties.

4. "Local" Canadian Law

(a) Overview

As noted above, the expectation of the Rome Statute regime is that most war crimes prosecutions will occur in "local" (ie. country) judicial systems which have jurisdictions over the persons accused and/or events alleged. Of course each of these countries has its own criminal justice system with its own "local" law.

Further - barring significant interceding changes in international law - Canadian courts will inevitably take their supervision from superior Canadian courts in the interpretation of all aspects of the prosecution. Thus it is, with prosecutions conducted in local (country) courts, that the substantive and procedural law of those courts will play the paramount role in the ultimate disposition of the case.

That said, the Canadian record of prosecuting CAHWCA offences has been near-silent (First prosecution: Oct 2005) [R v Munyaneza - ongoing as of December 2007]. International criminal law has seen FAR greater application in the administrative fields of immigration and refugee exclusion. In this it shares much in common with the closely-related (but newer) field of "terrorism" law, which is discussed for comparative purposes on its own [Ch.14]. I conclude however that "terrorism" law (at least in Canadian law) is - in light of the more thorough and embracing CAHWCA regime - a politically-induced legal redundancy.

(b) Procedures

When prosecutions are conducted within local systems it is implicitly the procedural law of that jurisdiction which will govern the conduct of the proceedings, as is the case in Canada:
CAHWCA s.2(2)
Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.
That said, the procedural and "civil rights" protections expressly in the Rome Statute itself are quite consistent with the relatively high standards of Canadian criminal justice. For instance, the "presumption of innocence", criminal standard of proof ("beyond reasonable doubt") and the prosecutor's onus of proof are all part of ICC doctrine. Other basic procedural protections include the defendant's right to knowledge of the charges, speedy trial, counsel, legal aid, cross-examination, right to compel witnesses, language interpretation, right to silence, evidence disclosure [Art 67].

(c) Parties

One variation from the Rome Statute brought about by the adoption of Canadian criminal procedures is the expansion of the range of defendants that the CAHWCA may prosecute. Under the Rome Statute only "natural persons" may be charged, but under Canadian law organizations, corporations and even governments are additional defendant categories.

(d) Immunity and Political Control of Prosecutions

A complex and uncertain issue in Canadian law is the extent to which old common law "sovereign immunities" persist to immunize foreign (and perhaps local) heads-of-state and their ministers from CAHWCA prosecution. Coupled with this is the equally obstructionist (but quite certain) requirement that the initiation and carriage of all CAHWCA prosecutions in Canada be the exclusive mandate of the federal executive government.

Both of these issues relate closely with the issue of ICC default jurisdiction, should either Canadian immunity principles or political fiat be deemed by that court to be unmeritorious obstructions to the rule of law.

5. Comment

I am no international law expert, nor even a Canadian criminal law expert. However I have found this brief foray into the law of international crimes revealing and fascinating for its exposure of the political "bones" that lie not far beneath its surface. What is revealed to me is consistent with what we already know of the world of politics - that it is often self-serving and

What is hopeful is that the rule of criminal law - despite its challenges and limitations - has at last firmly located itself amidst the political fray. To phrase it another way: we now have "better problems" than we did before the Rome Statute regime took hold in Canadian and international law, and that's progress.
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