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Canadian Implementing Legislation for the Rome Statute1

Published online by Cambridge University Press:  17 February 2009

William A. Schabas
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Extract

Canada has been very much at the centre of the establishment of the International Criminal Court (ICC) since the momentum shifted in late-1994 from the International Law Commission (ILC) to more broadly representative bodies established by the General Assembly. It was Canada that chaired the ‘like-minded’, a group of states active during the several sessions of the Preparatory Committee and during the Diplomatic Conference in Rome from 15 June to 17 July 1998. The ‘like-minded’ were committed to invigorating the ILC's draft statute by enhancing the independence of the Prosecutor and trimming the sails of the Security Council. At Rome, Canadian diplomat Philippe Kirsch was elected chair of the Committee of the Whole, and he directed the intense negotiations throughout the five-week session. Kirsch crafted the final package of compromises that was submitted to the Conference at its close, on the morning of 17 July, and that succeeded in rallying the vast majority of delegations when put to a vote later that day. Since then, Kirsch and his team have presided over the ongoing work of the Preparatory Commission.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 3 , December 2000 , pp. 337 - 346
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2000

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References

3. Kirsch, P. and Holmes, J.T., ‘The Rome Conference on an International Criminal Court, The Negotiating Process’, 93 AJIL (1999) p. 2CrossRefGoogle Scholar; Lee, R., ‘The Rome Conference and Its Contributions to International Law’, in Lee, R., ed., The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (The Hague, Kluwer Law International 1999) pp. 1–39Google Scholar; P. Kirsch, ‘The Development of the Rome Statute’, in Lee, ibid., pp. 451–461.

4. An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts, S.C. 2000, c. 24 [hereinafter the ‘Crimes Against Humanity and War Crimes Act’ or ‘the Act’]. The Act received Royal Assent on 29 June 2000.

5. Canada signed the Rome Statute on 18 December 1998.

6. Crimes Against Humanity and War Crimes Act, s. 1.

7. Bill C–19, 2nd Session, 36th Parliament, 48 Elizabeth II, 1999, s. 1.

8. Schabas, W.A., Genocide in International Law, The Crime of Crimes (Cambridge: Cambridge University Press 2000) p. 11Google Scholar. But see Prosecutor v. Kayishema and Ruzindana, Case No. ICTR–95–IT, Judgment 21 May 1999, para. 636.

9. Deschênes, J., Commission of Inquiry on War Criminals Report (Ottawa, Minister of Supply and Services 1986)Google Scholar.

10. Criminal Code, R.S.C. c. C–46, ss. 7(3.71)–7(3.77).

11. Cotler, I., ‘R. v. Finta’, 90 AJIL (1996) p. 460Google Scholar.

12. Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9, Arts. 6–8.

13. Crimes Against Humanity and War Crimes Act, s. 4.

14. Ibid., s. 6.

15. Ibid., s. 6(4).

16. Ibid., s. 6(5).

17. R. v. Finta [1994] 1 SCR 701.

18. Canadian Charter of Rights and Freedoms, RSC 1985, Appendix II, No. 44, s. 11 (g); International Covenant on Civil and Political Rights (1976), 999 UNTS 171 [1976] CTS. 47, Art. 15(1); American Declaration of the Rights and Duties of Man (by virtue of ratification of the Charter of the Organisation of American States, as amended [1990] CTS 23, Art. 26.

19. Crimes Against Humanity and War Crimes Act, s. 4(3).

20. Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277 [1949] CTS 27.

21. ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’, UN Doc. A/50/22, para. 61.

22. Bruun, L. Lyman, ‘Beyond the 1948 Convention — Emerging Principles of Genocide in Customary International Law’, 17 Maryland JIL & Trade (1993) p. 193Google Scholar; Van Schaack, B., ‘The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot’, 106 Yale LJ (1997) p. 2259CrossRefGoogle Scholar.

23. Prosecutor v. Akayesu, Case No. ICTR–96–4–T, Judgment, 2 September 1998, para. 5 15. See also Prosecutor v. Rutaganda, Case No. ICTR–96–3–T, Judgment, 6 December 1999.

24. Code pénal Journal officiel, July 23, 1992, art. 211–1.

25. UN Doc. A/C.6/SR.83 (Lapointe, Canada). The National Archives of Canada reveal that during the drafting of the Convention, ‘cultural genocide’ was a preoccupation of the Canadian government. ‘The Canadian delegation to the seventh session of the Economic and Social Council was instructed to support or initiate any move for the deletion of Article III on ‘cultural’ genocide (see document E/794) and, if this move was not successful, it should vote against Article III and, if necessary, against the whole Convention. The delegation was instructed that the Convention as a whole, less Article III, was acceptable though legislation will naturally be required in Canada to implement the Convention’: ‘Commentary for the Use of the Canadian Delegation’, nac RG 25 Vol. 3699, File 5475–DG–3–40'2’ (this text is also in nac RG 25, Vol. 3699, File 5475–DG–1–40). In a report to Ottawa at the conclusion of the debate, the Canadian representative took a rather exaggerated view of his own importance in the debate: ‘According to instructions from External Affairs, the Canadian delegate had only one important task, namely to eliminate the concept of ‘cultural genocide’ from the Convention. He took a leading part in the debate on this point and succeeded in having his viewpoints accepted by the Committee. The remaining articles are of no particular concern for Canada. Most of the contentious items have already been settled. The delegates are for the greater part wearying of their own eloquence on the subject and the final articles may well be dealt with during the next two weeks.’ ‘Progress reports on work of Canadian delegation, in Paris, November 1, 1948’, RG 25, Vol. 3699, File 5475 DG–2–40.

26. Crimes Against Humanity and War Crimes Act, ss. 5, 7.

27. R. v. Vaillancourt, [1987] 2 SCR. 636, pp. 653–654Google Scholar; R. v. Martineau, [1990] 2 SCR 633, p. 645Google Scholar. Also R. v. Logan, [1990] 2 SCR 731Google Scholar; R. v. Creighton, [1993] 3 SCR 3Google Scholar.

28. Prosecutor v. Akayesu, supra n. 23, paras. 121, 497, 498, 516, 539; A.-G. Israel v. Eichmann, 36 ILR (1968) p. 18 (District Court, Jerusalem), para. 30; Prosecutor v. Serushago, Case No. ICTR–98 39–S, Sentence, 5 February 1999, para. 15.

29. Canadian Charter of Rights and Freedoms, supra n. 18, s. 33.

30. Canada v. Meyer 4 LRTWC (1948) 98 (Canadian Military Court). See Brode, P., Casual Slaughters and Accidental Judgments (Toronto, University of Toronto Press 1997)CrossRefGoogle Scholar; Margolian, H., Conduct Unbecoming: The Story of the Murder of Canadian Prisoners of War in Normandy (Toronto, University of Toronto Press 1998)Google Scholar.

31. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1950) 75 UNTS 31,[ 1965] CTS 20, Art. 49; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1950) 75 UNTS 85, [1965] CTS 20, Art. 50; Geneva Convention Relative to the Treatment of Prisoners of War (1950) 75 UNTS 135, [1965] CTS. 20, Art. 129; Geneva Convention Relative to the Protection of Civilians (1950) 75 UNTS 287, [1965] CTS 20, Art. 146.

32. Canadian Charter of Rights and Freedoms, s. 11(h).

33. Crimes Against Humanity and War Crimes Act, s. 13.

34. Ibid., s. 14.

35. R. v. Finta, supra n. 17, pp. 816–817 and 847–848 (per Cory J.).

36. Crimes Against Humanity and War Crimes Act, s. 14(3).

37. Ibid., s. 15(1).

38. Ibid., s. 15(1.1).

39. Ibid., ss. 16–23, 26.

40. Ibid., s. 25.

41. Rome Statute, Art. 79.

42. Crimes Against Humanity and War Crimes Act, s. 30(1).

43. Ibid., ss. 57–62.

44. Ibid., s. 27.

45. Extradition Act, S.C. 1999, c. 18.

46. Crimes Against Humanity and War Crimes Act, s. 71.