Evidence of meeting #63 for Foreign Affairs and International Development in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was icc.
A recording is available from Parliament.
12:50 p.m.
Liberal
12:50 p.m.
Liberal
12:50 p.m.
Liberal
Rob Oliphant Liberal Don Valley West, ON
Thank you, Mr. Chair.
I want to thank Mr. Khan for being here. I'm glad you are supported by two Canadians of great stature. I hope you feel supported and not surrounded, which would be a good thing.
As a preacher, I have probably quoted Elie Wiesel more than any other author. He wrote, “They are committing the greatest indignity human beings can inflict on one another: telling people who have suffered excruciating pain and loss that their pain and loss were illusions.” I'm looking at Ukraine.
Canada has indeed added additional support to the court, guarding the independence of the court. It is very critical that, when we add funding to the court, you make the decisions about where the money goes. We do not make that.
You know, however, that Canada has a concern about sexual and gender-based violence in conflict. I'm wondering if you can talk a little bit about the evidence that you are trying to collect, where we have evidence that there are war crimes being committed.
12:50 p.m.
Prosecutor, International Criminal Court, As an Individual
What I can say is that there can never be enough Canadians. Therefore, I don't feel surrounded; I feel supported.
The next point is that I've spent quite some time, and I have some fantastic special advisers.... We launched a new policy last Christmas at the Assembly of State Parties on gender persecution. We're rolling this out next month at the Bellagio Center, and also at a round table for civil society a few weeks later at the end of May-June, to give life to gender persecution because we say there's not a conflict in the world in which there's not gender persecution. We can just look at Afghanistan and what's happened to women, girls and others there.
In terms of sexual and gender-based violence, we are already reviewing the existing policy to make sure it's fit for purpose, and hopefully that will be launched this December at the Assembly of State Parties in New York. The same applies to the policy for crimes against and affecting children.
Children very often are the most invisible parts of the civil population. Far too often they are conflated with the general civilian population, or even worse, sometimes they're collated with crimes of sexual and gender-based violence. Until we start seeing clearly how children are affected and disaggregating the types of harm that are inflicted upon them, and the generational consequences of the aftershocks of those, we're not going to be able to properly investigate or to put forward proper cases.
In terms of Ukraine, I think what is known from a number of public sources are the types of allegations regarding crimes against children. However, in terms of the detail of those, I don't think it would be appropriate for me to say more at this time.
12:50 p.m.
Liberal
May 4th, 2023 / 12:50 p.m.
Prosecutor, International Criminal Court, As an Individual
Can I just add one thing, if you don't mind, Honourable Oliphant?
Partnerships are key.
In addition to many other new initiatives, for example, for first time in the history of the court, we've joined a joint investigative team with seven countries under the auspices of Eurojust. We also produced, with the genocide network—and Canada plays an important role there—a guidebook for civil society organizations for how to document sexual and gender-based crimes, crimes against children, to make sure we don't revisit the horrors of the past, namely the overdocumentation we've seen in Myanmar regarding the Rohingya or what we've seen in Iraq and Syria that gave rise to the Murad Code.
Really, we're trying to deal with many partners—universities, civil society and national authorities as well—and collectively build this common ground where everybody feels that they have a stake, because they do. Hopefully, if we have that inclusive approach, we can do better than we have in the past.
12:55 p.m.
Liberal
The Chair Liberal Ali Ehsassi
Thank you.
We next go to Mr. Bergeron.
Mr. Bergeron, you have a minute and a half.
12:55 p.m.
Bloc
Stéphane Bergeron Bloc Montarville, QC
Thank you, Mr. Chair.
Ukraine and some of its partners have called for the creation of a special tribunal to prosecute crimes of aggression committed by Russian leaders against Ukraine.
Last December, at the Assembly of States Parties of the International Criminal Court, you acknowledged that there was a “gap” in the institutional architecture related to crimes of aggression, but nevertheless suggested that it should be possible to bridge this gap using the Rome Statute.
What did you have in mind when you made this statement?
12:55 p.m.
Prosecutor, International Criminal Court, As an Individual
I think everybody, from Nuremberg onward, realized that the crime of aggression is a serious crime. It subsumes within it parts of many of the conflicts but not always. Rwanda had an internal armed conflict. In a hundred days, there was no crime of aggression. It was Rwandese against Rwandese. After the Holocaust, maybe there hasn't been such an intense period of killing since that period, that example. That wasn't a crime of aggression. That wouldn't have cured anything. In relation to that, it was a failure of early warning signals.
I start with a general proposition as a lawyer. It's a matter of equity. The law we apply against others is the law we should hold ourselves to. It brings law into disrepute, it increases marginalization, and it leads to a gap, a distance and a dissonance in parts of the world if they see unabated selectivity in which law is being applied as a stick, when it is not being applied to oneself.
The Rome Statute has the crime of aggression. It was drafted in Kampala. It is active. We have an active jurisdiction, but there were jurisdictional requirements for it to apply. If we have matured as an international community, and if we realize that there is a missing piece and that the law can be better than it is, for me, the obvious logical and equitable way would be to amend it through the Rome Statute.
However, what I'm focused on is the law we have. I think it is a little unfortunate that the law we have is not impotent. The law we have was sufficient for Milošević, Karadžić, Mladić, Jean Kambanda and Hissène Habré in Senegal, and for individual after individual to come before courts and to bow their heads toward justice.
As you can see, in terms of the Ukraine situation and the new warrants in Libya and elsewhere, we're trying to be less pedestrian and to accelerate into action, be relevant and be on the front lines. I think focusing too much on the law we don't have can overshadow the law we do have. The challenge should be in making the law we do have as effective and as meaningful as possible. That should be something that binds us together.
12:55 p.m.
Liberal
The Chair Liberal Ali Ehsassi
Thank you.
We now go to Madam McPherson.
You have a minute and a half.
12:55 p.m.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
Thanks, Chair.
This has been very interesting. Thank you very much for all this information.
I know many of us are very seized with the violence that is happening in Sudan. We're worried about a proxy war. We're worried about it spilling out of the borders.
In recent years, with key actors responsible for the violence now being waged against civilians, we've seen the “increase in violence” result, yet so far, sir, you haven't released any statement condemning the violence or reminding relevant parties that your office has an open investigation or pledging your solidarity with victims.
Why is that? Perhaps you would like to do that now.
12:55 p.m.
Prosecutor, International Criminal Court, As an Individual
I don't think the police in Canada keep talking about what the law is. Their job is to investigate and to arrest people, and to bring them before the courts, which decide. Generally, my approach is different from my predecessor. There are many other parts—necessary humility, but also pragmatism. I'm not the High Commissioner for Human Rights. I'm not a special rapporteur in Geneva.
What preventative statements can do is show the impotence of international law. If people don't listen to it, every day of the week I'll be spending time giving statements on different situations that nobody heeds. I think this is a moment where we have to show them law in action. We do it by trying to do our job. Take the criticism, take the slaps of criticism, because it goes with the job, but in the end, as long as we act with fidelity to the law, over a period of time we'll show that the office has changed—it's building stronger cases and it's moving as quickly as the resources allow—and move forward.
That's my approach in terms of preventative statements. It's nothing against Sudan. I report twice a year to the Security Council, and then I say things quite openly. In my last report to the Security Council, I made it very clear that the co-operation had deteriorated, that the next period was going to be a litmus test as to whether or not Sudan was co-operating with the Security Council and whether or not the Security Council itself was willing, on its own decision, to be so flagrantly ignored, and the consequence of that.
If Sudan can ignore it, why can't every other country? But we will keep trying to work as well as we can.
1 p.m.
Conservative
Dave Epp Conservative Chatham-Kent—Leamington, ON
Thank you, Mr. Chair.
Thank you to all three of you gentlemen for being here today.
Mr. Khan, in your opening statement you referred to the rule of the law as “a shelter” for victims. In earlier questioning it became apparent—some of the effects of the lack of universalism—particularly in questions on Iran from my colleagues.
I am not burdened, as a colleague of mine says in the House often, with a legal education, so my questions might be a little naive. I have a daughter who has one, so don't confuse that with a lack of respect.
The 123 states parties have signed on. Does the lack of universalism affect any of your work in state party countries, given their relationships with non-state party countries? Is your work impeded at all?
1 p.m.
Prosecutor, International Criminal Court, As an Individual
I think it's not helped. Richard Goldstone, the first chief prosecutor of the Yugoslav and Rwandan tribunals, was very fond of saying that politics lies at the centre and the margins of international law, and if one doesn't understand the politics, one will not be able to understand and grasp the law. International relations are multi-led. Every state will have its strategic partners, its most-favoured nations, bilateral relations and multilateral relations, and, of course, that will inform other areas of the international firmament, positively and negatively. At the same time, states have certain responsibilities.
What we've seen and what gives me hope is that, when the International Covenant on Civil and Political Rights—or the International Bill of Rights or the children's universal declaration—was signed in 1966, the United States, China, a large part of the rest of the world didn't sign up, but they did eventually. Then it may be an issue of signing but not implementing.
The point is that one has to realize the small step for mankind, the giant leap for humanity, or whatever, from going to the moon. The reality is that we have to make humble steps to get to the destination we want. I think the fact that we have 123 states, so the majority of the world, is something to applaud. Of course, powerful states, popular states, whether it's the United States of America or Russia or China or Pakistan or India...one has to work. This may be a generational project, but it's a project worth putting the effort into and aspiring to deliver on.
1 p.m.
Conservative
Dave Epp Conservative Chatham-Kent—Leamington, ON
I'm going to extend that question to the present question of Ukraine—the investigation of Ukraine with only 45 countries of the 123 having signed on. I perhaps didn't understand. You said that when countries sign on, they must sign on to the whole treaty.
Is there any impact that you're anticipating with your work in Ukraine now because only 45 countries have signed on?
1:05 p.m.
Prosecutor, International Criminal Court, As an Individual
I wasn't clear on that. All of the 123 states are obligated, as a matter of treaty law, to co-operate with the court.
What happened was that I was in Cox's Bazar on the 24th, and the minute I came back to The Hague, I invited states to accelerate the opening of an investigation by their referring the matter to me. That was an accelerant. Instead of doing the normal process, it would give me quicker jurisdiction. Within 48 hours—unheard of in the ICC—39 countries referred the matter to us, and now it's 43.
That is a sign of positivity. It doesn't mean that the rest don't have to comply. It means that a third of the states felt sufficiently galvanized that they decided to refer the matter to make sure we could look into what was unfolding on the territory of Ukraine.
1:05 p.m.
Liberal
The Chair Liberal Ali Ehsassi
Thank you.
Now we will go to our final questioner, MP Sorbara.
You have three minutes.
1:05 p.m.
Liberal
Francesco Sorbara Liberal Vaughan—Woodbridge, ON
Thank you.
Good morning, gentlemen, and welcome, Mr. Khan.
Last week, I led the delegation to the Council of Europe meetings in Strasbourg. Mr. Browder was there, and Kara-Murza's wife was also in attendance and gave a speech to one of the European political parties that we attended. I listened to the remarks quite intently.
The Council of Europe is working on and proceeding on the establishment of a registry of record to document evidence and claims of damage, loss or injury as a result of Russian aggression against Ukraine. It's something that the secretary-general spoke about and the 46 member states are moving forward.
Would this registry of record be independent of anything that the ICC is currently proceeding on, or is there any sort of overlap...? The end goal is obviously holding Russia and the Russian perpetrators to account.
1:05 p.m.
Prosecutor, International Criminal Court, As an Individual
As I understand, it is completely separate.
The ICC, as an institution, can award reparations in relation to people who are convicted. The registry of record I think is in relation to war damages that we've normally seen, in other historical scenarios, come at the end of the conflict as part of a peace agreement. That would be a different piece of architecture that will deal with the rights of Ukraine or responsibility of others.
1:05 p.m.
Liberal
