Subcommittee on International Human Rights Committee on Nov. 22nd, 2016

[The Chair, Liberal, Michael Levitt]

Good afternoon, everyone. Welcome to the 33rd meeting of the Subcommittee on International Human Rights.

Today we're continuing our study on Yazidis, Christians, and other religious and ethnic minorities in Syria and Iraq.

We have with us today Dr. Bill Wiley. Dr. Wiley is a Canadian lawyer and former officer in the Canadian Forces, specializing in international law. He is the founder of the Commission for International Justice and Accountability, or CIJA. He has worked on war crimes investigations with the Department of Justice and with the Office of the Prosecutor at the International Criminal Court. He is currently gathering evidence of human rights violations perpetrated by the Syrian regime.

Dr. Wiley, we're very excited to be hearing from you today, and we appreciate your taking the time to join us. Please take 10 minutes or so for your remarks. Then we will open it up to questions from committee members.

Thank you very much. Please proceed.

[William Wiley, Executive Director, Commission for International Justice and Accountability]

Thank you very much, Mr. Chair.

If you permit me, I'll begin by thanking your subcommittee for your continued engagement with the ongoing conflicts in Syria and Iraq, specifically the mass atrocities being perpetrated by government forces and non-state actors such as Daesh. I'm honoured to testify before you concerning our organized efforts to combat violations of international criminal and humanitarian law, ICHL, through the application of individual criminal responsibility.

By way of introduction, I would reiterate that my name is indeed Bill Wiley. I am the executive director of the CIJA. My testimony today will introduce the CIJA to you and in turn afford you an overview of our international criminal investigations and related work in Syria and Iraq, which Canada's strong leadership has done much to facilitate.

For some years, governments and non-governmental organizations have raised the alarm in response to the widespread and systematic disregard on Syrian and Iraqi territory for the precepts of ICHL. In addressing you, my role is not to elaborate on these facts, which are already well known. Rather, I propose to speak to the establishment of individual criminal responsibility for these egregious crimes and the role that Canada is currently playing to ensure that those most responsible for the perpetration of core international crimes are held accountable for their acts before a court of law.

Furthermore, my role, as I see it, is to correct statements, oft-made by advocacy groups in particular, that nothing is being done to investigate egregious offences. As such, I will take a moment in this opening address to highlight the concrete steps being taken by the brave men and women employed by the CIJA in Syria since 2011 and in Iraq since 2014 to secure justice for the victims of the crimes being perpetrated in their own countries.

Finally, I shall touch upon additional initiatives that can be implemented, not least with the support of Canada, to put into place a wider array of criminal justice accountability options.

What, then, is the CIJA? Stated succinctly, the CIJA is an international non-governmental organization with a mandate from its donors to undertake international criminal investigations in the midst of the ongoing conflicts. The CIJA's investigations conform to the evidentiary standards applied within any international and western domestic criminal law jurisdiction. Our modus operandi reflects the CIJA senior leadership's long experience gained in the service of international and hybrid courts as well as within domestic war crimes units such as that situated in our own country at the Department of Justice.

The CIJA's 150 personnel collect evidence to the highest legal standards and undertake analysis with an eye to preparing, as we do, dossiers inculpating ranking individuals for present-day and future criminal prosecution in domestic as well as international jurisdictions. As such, the CIJA is far more akin to the investigative division of an international prosecutor's office than it is to a human rights organization. As you might imagine, the fact that the CIJA undertakes criminal investigations in its capacity as a non-profit foundation, as opposed to a public institution, renders the CIJA truly unique.

With respect to the CIJA's evidence collection, our analytical interest extends beyond merely documenting prima facie crimes. The United Nations and various NGOs already undertake such work for informational and advocacy purposes. Rather, the CIJA's principal focus falls upon collecting, corroborating, and holding what is known in our field of law as “linkage evidence”—that is, evidence that links high- and highest-level political, military, and security intelligence actors to offences committed by lower-level perpetrators.

Linkage evidence is central to the building of ICHL cases for prosecution. Establishing the linkage component of the cases that we build for current and future prosecution absorbs roughly 90% of the CIJA's human and material resources committed to any given investigation. It is in this respect that the CIJA complements most effectively the ongoing and future work of domestic as well as international prosecutorial authorities. It is likewise in this respect that the CIJA is not to be confused with a human rights organization, focused as human rights organizations are on questions of victimization rather than upon the establishment of a responsibility therefore.

CIJA personnel deployed in Syria and Iraq, roughly 50% of the CIJA complement, take considerable but managed physical risks to ensure that, unlike in past conflicts, linkage cases are established whilst the subject conflicts are under way. We do this to ensure that those most responsible for core international crimes do not go unpunished—to wit, that perpetrators are not left in positions of authority for any longer than is rendered necessary by political, diplomatic, and sometimes military considerations.

Whilst the CIJA's work shall prove to be instrumental to future international criminal trials, I regard it as important for the subcommittee to understand that other criminal justice options already exist. Evidence collected by the CIJA is central to facilitating ongoing criminal justice efforts in national jurisdictions where perpetrators have been apprehended, particularly in the European Schengen zone. At the present time, the CIJA is assisting no fewer than 12 western countries in the domestic prosecution of Syrian regime officials, returning Islamic State fighters, and other members of extremist groups.

During the year to date, the CIJA has answered in excess of 30 domestic requests for assistance pertaining to almost 400 individual targets under investigation by national authorities. These domestic jurisdictions in the west remain the only current avenue for criminal justice accountability for core international crimes, at least as far as Syria is concerned. While there is much more to be done, the fact remains that a good deal is already being done by public institutions and, if you will permit me to reiterate, by the CIJA.

In Syria and Iraq, the CIJA has several dozen investigators on the ground handling multiple operations throughout these countries. Further staff are deployed in support roles in neighbouring states. Most CIJA investigators are Syrian and Iraqi nationals, whose capacity the CIJA has spent many years developing, not e least with financial assistance from Canada. Working under the supervision of international personnel with long experience gained in The Hague and elsewhere, the primary mission of these investigators is to collect voluminous amounts of information concerning the functioning of the Syrian regime, as well as the Islamic State, for evidentiary exploitation by CIJA political structure, military, and legal analysts.

To date, our personnel have moved into secure storage in the west in excess of 700,000 original pages of Syrian regime documentation; conducted hundreds of victim, and most especially insider, witness interviews; and collected other forms of physical and electronic evidence. Additionally, the CIJA continues to build a names database of Syrian regime political, military, and security intelligence officials. This system currently holds in excess of 1.2 million names. A distinct database of foreign terrorist fighters holds several thousand names.

Taken as a whole, the CIJA information and evidence holdings, as well as its investigative reach into Syria and Iraq, constitute a rich informational resource for public officials in countries such as Canada, informing as we do a wider range of criminal justice accountability, asylum screening, and targeted sanctions efforts. The CIJA systems will in future be utilized during state-building and concomitant lustration processes. The point I should like to make here is that the CIJA does not seek to supplant public institutions, and nor are we an advocacy body. Rather, the CIJA is designed to serve as a tool that public officials are free to take up as they see fit.

In Syria, the CIJA is largely self-supporting. In Iraq, CIJA investigations are undertaken pursuant to a memorandum of understanding with the Kurdistan regional government. On the basis of this MOU, the CIJA is able to secure crucial logistical and security support within Iraq at no cost. Working from various locations in the north, the CIJA examines, amongst other issues, the atrocity crimes perpetrated by the Islamic State against ethnic Yazidis, Christians, and other minority groups of particular concern to the subcommittee.

In its first Iraq-centred prosecution case file, completed several months ago, the CIJA identified two dozen suspects involved in orchestrating Islamic State slavery operations, which, as you know, have resulted in appalling instances of sexual violence and servitude. In sum, the seven prosecutable case files completed to date by the CIJA, over the last three years or more, identify several dozen individual perpetrators, reaching to the highest reaches of the Syrian regime and the Islamic State.

In addition to the criminal justice options being exercised in North America and Europe at the present time, there is an immediate road to large-scale justice in Iraq for the victims of Daesh offences. I refer to the fact that there is every prospect for Islamic State perpetrators to be put on trial in a specially designated court situated in northern Iraq, working to western standards of due process, for crimes such as the sexual offences perpetrated against ethnic Yazidi women and girls.

For some time, the CIJA has been leading the effort to establish such a specialized war crimes chamber within an existing Iraqi court. Our proposal has already garnered support from the relevant Kurdistan regional authorities, and we are optimistic that the Government of Iraq might soon agree to this idea.

Suffice it to say, by way of an introduction to this concept of Iraq-based fair trials for the Daesh perpetrators of core international crimes, most of the elements are already in place to commence the prosecution of Islamic State personnel currently detained on Iraqi territory.

In closing, I should like to highlight the fact that Canada is one of the very few states contributing concretely to efforts that are rendering possible criminal justice for core international crimes. More to the point, Canada continues to contribute generously to an undertaking that is facilitating the prosecution of Syrian regime and Islamic State perpetrators at the present time and that, concomitantly, has laid much of the foundation for the future international prosecution of the senior-most leadership of both the Syrian regime and the Islamic State.

I look forward to your questions. Thank you again for your continued interest in the wars in Syria and Iraq, not least in the context of criminal justice accountability.

[The Chair, Liberal, Michael Levitt]

Thank you very much for your remarks, Dr. Wiley.

We'll go straight to questions, beginning with MP Sweet.

[David Sweet, Conservative, Flamborough—Glanbrook, ON]

Thank you very much, Chair.

Thank you very much, Dr. Wiley, not just for your testimony but for the extraordinary work you are doing.

You say that you are self-supporting. Can you give us an idea of how you are funded? Is it through a number of nations that participate with your organization?

[William Wiley]

Yes, that's right, sir. To clarify, the “self-supporting” in Syria simply means that we don't, obviously, have a link to the government, and have to arrange for our own logistical and security measures.

The CIJA budget in the current calendar year is approximately 7 million euros. Off the top of my head, that's probably $10.5 million Canadian. Those funds, at the present time, are forthcoming from Canada, the United Kingdom, Germany, and the European Union. We are hoping that Denmark and Norway will soon rejoin us as donors. They've been very generous donors in the past.

[David Sweet, Conservative, Flamborough—Glanbrook, ON]

Great.

You mentioned an extraordinary volume of evidence that you've collected. Again, I share with you—I'm certain my colleagues would agree—our great gratitude for the work you are doing under perilous circumstances.

We've had some people testify before us in regard to mass graves that they feel have been left unprotected and unsurveilled, and the risk of the evidence not remaining unmolested is very high. Is this the case in many places where Daesh has been?

[William Wiley]

It certainly is the case. We've been out to see some of the mass graves in Nineveh that are now under Kurdistan regional government control. They are not in good shape. But a partner organization of which we think very highly, ICMP, the International Commission on Missing Persons, which is now an IGO, an international governmental organization, has the primary task of securing the sites where that can be safely done. I can't speak for them, but we worked together in Iraq, and there are certain complexities in their work, in that responsibility for the mass graves is controlled through the central government in Baghdad, as opposed to the Kurdistan regional government.

There are innumerable mass gravesites; there is no question about that. Perhaps I could just answer by saying that as long as the bodies are in the ground and nobody tampers with those gravesites, they're basically fine. Tampering usually takes the form of families returning to an area and trying to find missing loved ones.

[David Sweet, Conservative, Flamborough—Glanbrook, ON]

That's understandable.

You mentioned something else, Mr. Wiley, that I'm very interested in. In northern Iraq you're establishing a chamber for war crimes against humanity, at western standards. You mentioned that Kurdistan has already approved of it and you're waiting for the Iraqi government. Is that the case? I suspect you have international backing with those countries that have funded you. Or is this something they would support?

[William Wiley]

Yes. A number of countries, in particular the European Union, which of course is not a country, and indeed Canada have shown some tentative support for the idea. The missing link at the present time is to secure the buy-in from the central government in Baghdad, because the court itself, for security and logistical reasons, needs to be situated up north—in Erbil, really. We're hoping to crack that nut. We're pretty much out of time this year, but I'll travel into Baghdad, I think in January, to start knocking on doors to get that support, or at least the benevolent indifference that would also be satisfactory.

[David Sweet, Conservative, Flamborough—Glanbrook, ON]

My last question is rather broad-sweeping. We're obviously focusing on Yazidis and other religious minorities and the nature of ISIS/Daesh to target them. Through all of the evidence collection you've done, have you seen an inordinate focus on the humiliation, persecution, killing, torture, and sexual slavery of these minorities over the rest of the population?

[William Wiley]

The human rights advocacy community obviously has done a tremendous service in bringing the suffering of the Yazidis in particular to the attention of a wider world. That includes decision-makers like you, of course, on the subcommittee. Not to compare the suffering, but it's important to keep in mind that the overwhelming majority of victims of the Islamic State are Sunni Arabs, victimized in both Iraq and most especially Syria, where Islamic State rarely gets its hands on minorities—Shia, Christians, and so forth; there's no Yazidi to speak of in Syria.

[David Sweet, Conservative, Flamborough—Glanbrook, ON]

Thank you very much.

[The Chair, Liberal, Michael Levitt]

Thank you.

We'll continue with MP Miller, please.

[Marc Miller, Liberal, Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC]

Thank you.

I want to focus a little more on evidence collection. I mean, obviously with mass graves, after the evidence that the acts have occurred, the concern is around trying to tie those acts to the perpetrators. I read only a short brief on what you've done. It seems like a very, very tall task in a very, very difficult situation.

Perhaps you could just speak a little more about trying to tie the crimes to individuals.

[William Wiley]

As I suggested in the opening brief, that's 90% of the work in building the case file, insofar as we are focused on high- and highest-level perpetrators. With the Syrian regime's military, political, and security intelligence structures, establishing the linkages between the highest levels of the regime and the physical authors, if you will, of the underlying acts is relatively straightforward. That's what informs our heavy emphasis on securing regime documentation and moving it westward.

It's much more complicated with Islamic State—and I'm choosing my words carefully here, because we're not in camera. Effectively, with Islamic State we do secure documentation, but we are much more reliant on other forms of information that are more difficult to turn into admissible evidence. I speak to sensitive sources inside Islamic State structures. There are enormous volumes of material that we have secured, and do secure, through cyber-exploitation processes—captured computers, telephones, hard drives, and so forth. Other forms of open-source material are generated by IS itself via the social media revolution. I'm too old for this, but it's YouTube, Instagram, Telegram, Facebook, and these sorts of things.

The difficulty is not building the linkage case; ultimately, and here I speak to Islamic State, it will be transforming it into admissible evidence at trial. One of our national partners has a great deal of experience doing terrorist prosecutions over a prolonged period, and they have been advising us on some of the challenges and solutions to these problems.

[Marc Miller, Liberal, Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC]

Another aspect that another witness raised was the fact that a lot of the crimes, however they're characterized, were perpetrated by more low-level operators, neighbours, and friends—more local players in villages. How do you address that, first, obviously, in terms of documenting that—I assume there's a huge challenge—and second, as you look at post-state governance, a process of reconciliation that wouldn't necessarily entail full prosecution whether that ability is there in the first place or not? I'm just curious as to your views on a form of reconciliation that may preclude a strict application of law.

[William Wiley]

Realistically the scale of perpetration in Syria and Iraq is such that a minute fraction of perpetrators are ever going to be brought before a criminal court or tribunal. Ultimately alternative justice mechanisms of the sort to which you're referring are going to have to be put into place, such as truth commissions, or truth-seeking and truth-telling processes. We're criminal law people, as you'll have inferred, but we've built our evidential holdings and organized them in a way that ultimately they can be used by transitional justice mechanisms such as these.

[Marc Miller, Liberal, Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC]

I have a final question on your operating budget. The Government of Canada funded another $1.5 million. Is that sufficient, all in all? Can you give me a frank opinion, as to the contribution of member states and the people you're seeking money from, on what is your ideal world? If it's not enough, I'd be glad to hear a number.

[William Wiley]

In fact, in the current fiscal year plus an additional six months, so over an 18-month period, Canada's given us $3.3 million. It's divided between Syria and Iraq. It comes through different funding streams although we tend to see it as effectively one war. That's just the way things are organized at Global Affairs.

Canada is the most generous donor at the present time, or perhaps it's tied with the European Union; it depends on the conversion rates. The problem is not that Canada should give more; the problem is states, including states that draw very heavily on our material, that give nothing. This is our fundamental problem. The CIJA, because it is a criminal investigative body and performs a task that would normally be done by public authority, doesn't fit properly into any country's or the European Union's normal donor funding streams. We simply don't do normal NGO stuff, if I could put it in crude terms.

[Marc Miller, Liberal, Ville-Marie—Le Sud-Ouest—Île-des-Soeurs, QC]

Thank you.

[The Chair, Liberal, Michael Levitt]

Thank you.

We'll now move to MP Hardcastle.

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, Dr. Wiley. I'm having challenges today with my voice, so I'm going to front-load this. I'll ask a few quick questions and then I'll let you have the floor and you can kind of riff on what you think about it.

First I want to ask you to talk a little bit more about what you called a unique organization. We do know in the international community that some people have criticized the privatizing of international criminal investigations. Do you see the way this is going as being the way of the future? Does that unique structure create some unique challenges with regard to the co-operation of authorities? In your experience, are these new challenges because of the uniqueness of this entity? What are some of those challenges, and how can we maybe overcome them if this is the way of the future? I know you discussed earlier a little bit about our tribunal and the chamber and you said that you are concentrating on criminal law. What are your thoughts on that?

[William Wiley]

Certainly I would reiterate, ma'am, that what makes the CIJA unique is that it's the first time a private body, albeit non-profit, has undertaken international criminal investigations.

I'm a career international criminal investigator. I've been doing this for 20 years now. I started the foundation with the belief that international criminal investigations have no real future unless the system is shaken up to a certain degree. The difficulty is that the investigations have become very slow and very expensive. What we're seeing in the various countries that actually pay for these bodies—the Yugoslavia tribunal, Rwanda tribunal, the International Criminal Court, and so forth—is a considerable degree of donor fatigue. The budgets are just very, very high.

On one level, the CIJA is not about Syria and Iraq. In fact, we are engaged, albeit only modestly at this point, in a number of other armed conflicts. The CIJA is about fostering the evolution of international criminal and humanitarian law investigations, with the idea of making them faster, cheaper, and, from an evidentiary point of view, better.

We found that the model works. It works quite well, principally for three reasons.

One reason is leadership. We've all come out of the international system as investigators, analysts, and counsel, so we know how to put together an international criminal case, or indeed domestic criminal cases as well.

Second, and the principal advantage that we enjoy over international and domestic bodies—not that we're in competition, because we're meant to support these institutions—is the fact that we have a very, very high risk tolerance, a risk tolerance that no public body, other than armed forces, could realistically take on. I want to stress that there's a very big difference between a high risk tolerance and a high risk appetite. We have no risk appetite, but we have this high risk tolerance.

The third thing is that of course one needs enough money. Compared to an international criminal investigative body, we're of course very cheap, if I could put it crudely. We have had sufficient funding over the last several years, but frankly, fundraising is the bane of our existence, because we're lumped in with, if you will, the human rights community. If we were documenting, in the broad sense, like a human rights organization, our budget would be enormous, or it would be considered enormous.

Just to summarize that, and in answer to your first question, I'm aware of the criticisms of the so-called privatization of international criminal investigations. I hear them when I'm going around speaking. There are not many at this point...what we hear as normally coming from NGOs. Our colleagues, former colleagues in the public institutions, especially counsel, are very keen on the idea. I get a surprising number of discreet applications from colleagues still in the institutions and wanting to come and work with us.

Ultimately, the key task is that we need to see more of our dossiers go to trial domestically and of course internationally. The survival of our investigation is at trial. That's the proof in the pudding, if you will.

Finally, in terms of the co-operation challenges with public authorities, when selling this concept, so to speak, we don't charge domestic authorities for the assistance. If we have the resources and the money, then we assist. Sometimes, indeed, we're proactive, taking case files discreetly to national authorities when we pick up on higher-level suspects in their territory through our own networks.

Domestic authorities were very quick to warm to the CIJA model. We refer to it as the CIJA model, and I hope, in the fullness of time, we see, as soon as possible, more CIJAs emerge, called whatever they are. I think this is key to making domestic and international investigations better.

Yes, the domestic authorities have warmed very quickly. Each country has its own data privacy laws, which can be an issue. With some countries, especially if we're supporting them on the Islamic State side, the information flow is very much one way, from CIJA to the national authority. If we're supporting national immigration authorities, usually we're just running names, and they'll come back for clarification on the hits, but there's not a lot of back and forth there.

There's tremendous back and forth with the national prosecutorial and investigative authorities. It's very collaborative. Some countries are held back by their data privacy laws and the fact that we're a private non-governmental institution. In most countries, the laws are not that bad, including Canada. Some countries are simply ignoring whatever their data privacy laws are to get the job done.

[The Chair, Liberal, Michael Levitt]

Thank you very much.

We'll now move to MP Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you, Doctor, for coming in today. It was really great testimony.

I have two questions. One is to build on what MP Hardcastle said and what your answer was to her questions. We had a witness speak to us about accountability and building systems of accountability within the affected areas that we're talking about today. Does CIJA have a role to play in helping locals build accountability systems or, in essence, build a justice system post Daesh?