Canada and the International Criminal Court

The International Criminal Court (ICC) is an independent, permanent court of last resort with jurisdiction to investigate and prosecute the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and aggression.

Canada played a pivotal role to establish the International Criminal Court and contributed to its development in a variety of important ways.

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.

The Rome Statute represents important advances in the prosecution of gender-based and sexually violent crimes that take place during armed conflict.

Canada and the movement for the ICC

Canada played a crucial role in establishing the International Criminal Court. The ICC initiative was facilitated by an earlier draft Statute prepared by the International Law Commission (begun after World War II and finally adopted in 1996) and was galvanized by reports of atrocities committed during the civil wars in Rwanda and the former Yugoslavia. Canada supported the ICC effort in the 1990s and continues to support the ICC with crucial leadership, advocacy and resources. Canada played a pivotal role in establishing the International Criminal Court and contributed to its development in a variety of important ways, which included:

  • Chairing a coalition of States called “The Like-Minded Group” that helped to motivate the wider international community to adopt the Rome Statute
  • Generating support for an independent and effective ICC through public statements and extensive lobbying
  • Contributing to a United Nations Trust Fund that enabled lesser developed countries to participate in ICC negotiations, thereby ensuring true international representation
  • Helping to fund non-governmental organizations (NGOs) from developing nations so that the ICC process would benefit from their unique perspectives

In 1998, Philippe Kirsch, a senior Canadian diplomat, was chosen by acclamation to chair the Committee of the Whole at the Diplomatic Conference in Rome. The Committee of the Whole acted as the pivotal negotiating body at the conference.

Canada at the Rome conference

During the conference, the Canadian delegation played a brokering role in negotiations that concerned the jurisdiction of the Court, the definitions of crimes and the Court’s procedures and general principles. The Canadian delegation bridged gaps and addressed legitimate concerns in creative ways, while preserving the principles required to maintain a strong Court.

After five weeks of negotiations, delegates at the conference had made tremendous headway on hundreds of technical issues related to the creation of the ICC. However, substantial divisions still existed on difficult issues like the scope of the Court’s jurisdiction and the extent of its independence. Accordingly, it fell to Philippe Kirsch, as chair of the Committee of the Whole, with the assistance of a bureau of coordinators, to draft a final, global proposal for the ICC. The result was a carefully balanced proposal that clearly reflected the majority position on a strong, independent ICC, but that also made every effort to address minority views in a constructive fashion.

On the final day of the conference, the final proposal that was drafted under Canada’s leadership received broad approval.

The Rome Statute of the International Criminal Court (“the Rome Statute”) was adopted by an unrecorded vote of 120 States in favour, 7 against and 21 abstentions.

Canada’s ICC leadership at home

On December 18, 1998, Canada was the 14th country to sign the Rome Statute.

On June 29, 2000, Canada enacted the Crimes Against Humanity and War Crimes Act, becoming the first country in the world to adopt comprehensive legislation implementing the Rome Statute.

On July 7, 2000, Canada ratified the Rome Statute. Lloyd Axworthy, the former minister of foreign affairs, deposited Canada’s instrument of ratification at United Nations Headquarters in New York.

The Government of Canada sponsored two Canadian organizations to produce a detailed technical manual on how to implement the Rome Statute. The manual is designed to encourage and enable other countries to ratify and implement the Rome Statute in support of the ICC.

Canadian ICC judges

In February 2003, Canadian Philippe Kirsch was elected as judge of the International Criminal Court. He was subsequently elected president of the ICC and served until 2009.

In December 2017, Canadian Kimberly Prost was elected as judge of the International Criminal Court for a nine-year term.

Crimes Against Humanity and War Crimes Act

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.

In order to ratify the Rome Statute, Canada’s Parliament enacted legislation to implement its obligations under the Rome Statute to ensure that Canada could fully cooperate with ICC proceedings. The CAHWCA also amended existing Canadian laws such as the Criminal Code, the Extradition Act and the 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. Defining these crimes in Canadian law allows Canada to take advantage of the complementarity provisions under the Rome Statute.

Jurisdiction

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
  • 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

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.

Defences

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 also protects the integrity of the processes of the ICC and protects judges, officials and witnesses of the ICC against certain offences, including:

  • Obstruction of justice
  • Obstruction of officials
  • Bribery of judges and officials
  • Perjury
  • Fabrication or provision of contradictory evidence
  • Intimidation

Witnesses who have testified before the ICC are protected from retaliation against them or their families under the Criminal Code. Other offences as currently defined in the Criminal Code 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 Criminal Code proceeds of crime provisions in Part XII.2 apply to most Crimes Against Humanity and War Crimes Act offences. 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 enables the establishment of a crimes against humanity fund, which can hold 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, to the ICC’s Trust Fund established under the Rome Statute, or directly to victims.

Extradition

Canada may arrest and surrender persons sought by the ICC for genocide, crimes against humanity and war crimes, as it was able to do for the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Canada also eliminated all grounds for refusing requests for surrender from the ICC. 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.

Mutual legal assistance

The Mutual Legal Assistance in Criminal Matters Act allows Canada to help the ICC to investigate offences of genocide, crimes against humanity and war crimes in much the same way that it currently assists foreign states with criminal investigations, from the identification of persons to gathering evidence in Canada for the purposes of prosecution.

Crimes against Humanity and War Crimes Program

In 1998, the Government of Canada established the current Crimes against Humanity and War Crimes Program. The mandate of the program is to deny safe haven to persons believed to have committed or been complicit in war crimes, crimes against humanity or genocide. The program is delivered through collaboration by four program partners: the Canada Border Services Agency; Immigration, Refugees and Citizenship Canada; the Department of Justice; and the Royal Canadian Mounted Police.

Gender and the International Criminal Court

While incorporating comprehensive provisions dealing with the rights of an accused, the Rome Statute represents important advances in the prosecution of gender-based and sexually violent crimes that take place during armed conflict.

Historically, gender-based crimes received little attention from investigators and prosecutors. However, the Rome Statute included gender-based crimes and made gender issues a central concern for the Court and the Office of the Prosecutor.

Genocide, crimes against humanity and war crimes

The central pillar of the Rome Statute is the definition of crimes. Both the definitions of crimes against humanity and war crimes specifically include “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence.” This list is significant because it represents a nuanced understanding of sexual violence within the context of international and internal armed conflicts. This understanding was first adopted by the International Criminal Tribunals for the Former Yugoslavia and Rwanda.

The definition of crimes against humanity also includes:

  • Persecution of any identifiable group or collectivity on various grounds, including gender
  • Enslavement, which includes trafficking in women

Rape and sexual violence have also been recognized as an act of genocide by causing serious bodily or mental harm.

Witnesses and victims

Apart from the obvious recognition of gender-based offences in the Rome Statute’s definitions of crimes, the Rome Statute includes a number of articles that will directly affect how women experience the ICC.

It is very difficult to prosecute crimes of sexual violence unless victims and witnesses can provide evidence for investigators and the Court. In order to minimize this difficulty, many governments and NGOs worked hard during ICC negotiations to define proper, gender-sensitive treatment of victims and witnesses.

Protection of the victims and witnesses and their participation in the proceedings

As an exception to the principle of public hearings, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

Staffing of the ICC and choice of judges

The Rome Statute also provides for reparations to victims, which may include restitution, compensation and rehabilitation. All of the articles on crimes, victim participation and victim protection included in the Rome Statute would be virtually useless if the Court were not staffed by people who are aware of and sensitive to gender issues. Therefore, the Rome Statute specifically requires the Prosecutor and the Registrar to strive for fair representation of women and men on their staff and to provide staff with legal expertise on issues such as violence against women:

Conclusion

The Rome Statute reflects the full range of gender issues relevant to the Court. Among the provisions that ensure that the rights of individuals are protected regardless of gender, the Rome Statute:

  • Adds gender-based crimes and crimes of sexual violence to the list of crimes under ICC jurisdiction
  • Codifies the rights of victims during international criminal proceedings
  • Ensures that the ICC has gender-sensitive judges and staff
  • Ensures that the ICC has a fair representation of female and male judges

These provisions represented a substantial accomplishment and a significant step forward for international justice.

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