Canada's Crimes Against Humanity and War Crimes Act
In order to ratify the Rome Statute of the International Criminal Court, Canada's Parliament had to enact legislation to implement its obligations under the Rome Statute.
Canada became the first country in the world to incorporate the obligations of the Rome Statute into its national laws when it adopted the Crimes Against Humanity and War Crimes Act (CAHWCA) on June 24, 2000. Canada was then able to ratify the Rome Statute on July 9, 2000.
To ensure that Canada can fully cooperate with ICC proceedings, the CAHWCA also amended existing Canadian laws like the Criminal Code, Extradition Act and Mutual Legal Assistance in Criminal Matters Act.
Genocide, Crimes Against Humanity and War Crimes
The Crimes Against Humanity and War Crimes Act officially criminalizes genocide, crimes against humanity and war crimes based on customary and conventional international law, including the Rome Statute of the ICC. Defining these crimes in Canadian law allows Canada to take advantage of the complementarity provisions under the Rome Statute.
The Crimes Against Humanity and War Crimes Act incorporates several grounds of jurisdiction:
- Active nationality and territorial jurisdiction, which ensures Canada holds jurisdiction over crimes committed on Canadian territory and by Canadians anywhere in the world;
- Passive nationality jurisdiction, which gives Canada jurisdiction over crimes committed against Canadian nationals; and
- Universal jurisdiction, which allows Canada to prosecute any individual present in Canada for crimes listed in the CAHWCA - regardless of that individual's nationality or where the crimes were committed
This wide-ranging approach is consistent with Canada's previous war crimes policy.
Offences of Breach of Command/Superior Responsibility
Under the Crimes Against Humanity and War Crimes Act, breach of command/superior responsibility is a criminal offence. This means that military commanders and superiors are obliged to take measures to prevent or repress genocide, crimes against humanity and war crimes. In the event that such a crime is committed by one of their subordinates, military commanders and superiors are responsible for submitting the matter to the competent authorities for investigation.
Canadian and international defences are available to persons accused of crimes listed in the CAHWCA, with some exceptions.
Arguing that a crime was committed in obedience to the law in force at the time and in the place of its commission does not constitute a defence. And though the defence of superior orders is consistent with the Rome Statute, if the accused's belief is based on information about an identifiable group of persons that is likely to encourage inhumane acts or omissions against that group, then the defence of superior orders cannot be based on a belief that the order was lawful.
Sentences and Parole Eligibility
The Crimes Against Humanity and War Crimes Act provides for penalties ranging up to and including life imprisonment. Where intentional killing forms the basis of the offence, mandatory minimum sentences apply (such as life imprisonment for first degree murder). The parole eligibility rules for crimes involving intentional killing are the same as those for murder under the Criminal Code. Ordinary parole rules apply for all other sentences.
Offences Against the Administration of Justice of the ICC
The Crimes Against Humanity and War Crimes Act protects the integrity of the processes of the Court and protects judges, officials and witnesses of the ICC against certain offences, including:
- Obstruction of justice,
- Obstruction of officials,
- Bribery of judges and officials,
- Fabrication or provision of contradictory evidence, and
Witnesses who have testified before the ICC are protected from retaliation against them or their families under the Criminal Code. Other existing Criminal Code offences also apply to protect judges and officials from harm when they are in Canada or abroad.
All of these offences apply when committed in Canada or by Canadian citizens outside Canada.
Proceeds of Crime Offences
The Crimes Against Humanity and War Crimes Act also makes it an offence to possess and/or launder proceeds obtained from crimes listed under the Act. This means that if proceeds from genocide, crimes against humanity or war crimes are located in Canada, they can be restrained, seized or forfeited in much the same way as proceeds from other criminal offences in Canada.
Crimes Against Humanity Fund
The Crimes Against Humanity and War Crimes Act established a Crimes Against Humanity Fund, which holds all proceeds obtained from the disposal of forfeited assets and the enforcement of fines and ICC reparation orders in Canada. The Attorney General of Canada may then use the Fund to make payments to the ICC, the ICC’s Trust Fund established under the Rome Statute, or directly to victims.
The Crimes Against Humanity and War Crimes Act obliges Canada to arrest and surrender persons sought by the ICC for genocide, crimes against humanity and war crimes.
Canada’s surrender process under the CAHWCA is a streamlined version of Canada’s existing extradition process. In 1999, Canada amended its Extradition Act so it could legally surrender accused persons to the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Under the CAHWCA, Canada simply added the ICC to this list.
Canada also eliminated all grounds for refusing requests for surrender from the ICC. Under the CAHWCA, the Extradition Act was also amended to ensure that a person requested for surrender in Canada could not claim statutory or common law immunity to block their surrender to the ICC. Finally, Canada amended the Extradition Act so that evidence could be offered in a summary form.
Mutual Legal Assistance
The Crimes Against Humanity and War Crimes Act allows Canada to help the ICC investigate offences of genocide, crimes against humanity and war crimes in much the same way that it currently assists foreign states with normal criminal investigations. The Mutual Legal Assistance in Criminal Matters Act was amended to permit Canada to assist the ICC with many aspects of its investigations, from the identification of persons to gathering evidence in Canada for the purposes of prosecution.
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