Evidence of meeting #9 for Subcommittee on International Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was genocide.
A recording is available from Parliament.
7:15 p.m.
Conservative
The Vice-Chair Conservative Michael Cooper
Thank you, Monsieur Trudel.
I now recognize Ms. McPherson for seven minutes.
7:15 p.m.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
Thank you, Mr. Chair.
I want to thank all of the witnesses for joining us today. This has been very interesting.
I think I may be following on Mr. Trudel's comments. We are in a situation, in which what we are seeing looks very much like a genocide. Obviously, that was the motion that I brought forward to the House of Commons.
My concern is how we stop this. How do we not get into a situation such as we had in Rwanda, where the genocide was declared after the fact and the loss of life was massive? What role can the International Criminal Court play in preventing it? Does the fact that Ukraine filed these applications very early help?
Perhaps I could start with you, Mr.... I'm just going to call you Chile, because it's easier and it's delightful to see you.
7:15 p.m.
Professor, Lincoln Alexander School of Law, Ryerson University, University of Windsor, As an Individual
That's all right. Thank you very much.
That's an important question, but first of all let me say again that it's too much to impose the obligation on a court of law to prevent a genocide. I think I need to make that very clear.
In Canada we have had our legal system here for hundreds of years, a lot longer than international criminal justice has been active, and people still commit those crimes we have in the Criminal Code, so we should not impose that obligation on a court of law. What a court of law does has to do with the extent to which political will is there is to ensure that there is punishment for the crimes.
I get the drift of your question. You have to do what you must as politicians, and there's a place for that as long as we leave room for the law to do its own job, its own work, and allow justice to be done.
Oftentimes, it's not unusual to have political statements lead the way. Even in law we recognize what we call “probable cause”. Mr. Stewart is a seasoned prosecutor here. Probable cause doesn't give you the proof you need to convict someone, but it does say there's something awful that's happened here that has caught the attention of the law, causing it to spring into action. That happens and I liken that to the sort of motion you have made.
There's a place for that as long as we recognize that, if there's no evidence, we're saying, this is what it looks like to us. You call it, and then you allow room for the law to come in and tell us whether that's really what it is. There are places for that sort of thing. Politics can lead the way, and the law then follows to do its work.
I don't know whether that helps.
7:15 p.m.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
It does.
Really quickly, how does the law do that? How do we support the International Criminal Court to do that work? What can Canada do more? Can we be playing a better role in funding the ICC? I know there has been some discussion around the idea that the ICC has been starved of resources and that we are asking it to do a job without giving it the tools to do that.
What can be done for that part?
7:15 p.m.
Professor, Lincoln Alexander School of Law, Ryerson University, University of Windsor, As an Individual
I'll say this quickly while Mr. Stewart thinks about his own answers.
That's a starting point. That's something that can happen: Fund the court. Support it beyond the case of Ukraine. Give it that standing support.
I will turn to the primary question: How do we even stop this from happening in the first place? We need to return to that proposal—that thing I'm saying. Let's rebuild international law. Let's try to plug all the gaps we see. If anyone asks me a question about what gaps we are seeing, on the crime of aggression, I'm happy to take that, but I don't think I have time to do it under your question now.
Let's fortify international law to the extent we can and put all the layers and walls of deterrence in place that we need to, to make sure that people think twice about these things before they start, because wars of aggression were described in the Nuremberg tribunal judgment as an accumulation of all the evils of all the other crimes we have in international law, and there's a reason for that.
7:20 p.m.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
I would like to hear from Mr. Stewart, and maybe in my next round I can ask you a bit more about how we will plug those holes.
7:20 p.m.
As an Individual
If there's no time right now, that's fine, but I do have something I want to say.
7:20 p.m.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
No, Mr. Stewart, I am passing it over to you. Please go ahead.
7:20 p.m.
As an Individual
I was going to say that it really is a long game. The response to these atrocities is multi-faceted, but the legal one is just as Chile said. If you look at the preamble to the Rome Statute, the idea is that you hold accountable those people who commit these atrocities. You make them accountable and, in doing so, you hope to deter future atrocities. Now, of course, that's not always going to work. Murders are still committed even though it's against the law in the Criminal Code, but each time you hold someone accountable, you build an atmosphere. You build a framework that's terribly important.
Why does everybody talk about the ICC every time there's a conflict? Why are we talking about war crimes in Ukraine now? That's because international criminal law is very much in the public mind. It's in your minds, as members of Parliament. This is extremely important because it's building a culture, an attitude and a morality, if you will, relating to warfare and all the rest of it. I think that's very important.
With respect to your other question, it really is important to support the International Criminal Court. Canada's doing that right now. There has been a remarkable response on the part of states parties, I understand, to the current situation in Ukraine. I did make the point that you can't earmark these things for Ukraine, but supporting the court allows it to take action of the sort I'm speaking about. I think that's very important. It's a long game.
Who thought Milošević would ever be in The Hague? Yet he was. Who thought that we'd ever get anywhere close to al-Bashir? We still don't have him at the ICC, but he's in detention in Khartoum. This is why I say you have to be patient. Some of the people convicted by the ICC escaped justice for seven or 10 years, but they were ultimately held accountable and that is what we have to do. We have to have the stamina and determination to hold people accountable for what they do. That's why it's important to support the International Criminal Court, and I'm so proud and glad that Canada is doing that now.
7:20 p.m.
Conservative
The Vice-Chair Conservative Michael Cooper
Thank you, Ms. McPherson. Your time has expired.
We will now proceed to the second round of questions, with five-minute rounds per member.
I recognize Ms. Vandenbeld for five minutes.
7:20 p.m.
Liberal
Anita Vandenbeld Liberal Ottawa West—Nepean, ON
Thank you very much.
Again, I'd like to thank all the witnesses.
My first question is for you, Mr. Stewart.
It's along the lines of what you were just saying, but specifically about the documentation of war crimes. You mentioned that, in this conflict, we're seeing war crimes in real time. I think you mentioned that the Dutch are sending forensic teams. I know that Canada is sending RCMP.
What is it that Canada can do? Is it to provide support to the Ukrainian prosecutor's office, or to train civil society on how to properly document crimes in ways that can be used in court? Is there more that Canada can be doing on this?
7:20 p.m.
As an Individual
I honestly don't know at the moment what the current status is. I understand that Canada has offered to send 10 RCMP officers to the ICC. I guess it will be up to Karim Khan how he deploys them.
I can say that, in my experience when I was still with the OTP, the RCMP officers who came over to assist us under an agreement that was developed while I was still deputy prosecutor were absolutely first class. Our people loved them. They hit the ground running, they fit in well and they worked extremely effectively. That's still the case. The more the better, I suppose I would say.
These investigations are vast, and they are multi-layered. You go from satellite imagery to intercepts, to open-source material that you can gather and authenticate, to witness testimony on the ground, to forensic examinations of crime scenes, to armament examination and all the rest of it. You layer this evidence so that you build up, not only the crime base, but you work up through the chain of command and you find who's responsible for what's happened, right up to the top, if that's where it goes.
Some of the things that, of course, you can rely on are what people say. What does President Putin say? What does Sergey Lavrov say? There's some wonderful stuff there, for anybody looking to do a criminal prosecution, I have to say. The support that Canada can give and other states parties can give to the office of the prosecutor now will be of great value, I think.
The other things you mentioned are important too. I know that Karim Khan, the current prosecutor, as we did, believes very strongly in complementarity. One thing that is innovative in this situation—I've seen this on their website—is that they have become a participant in the joint investigative team that's been set up by Eurojust, involving Lithuania, Poland and Ukraine. This allows the OTP to get access to evidence that's uncovered, say, by the prosecutor general of Ukraine, but also, in its discretion, to share evidence it acquires with them. It's this kind of innovative approach, bringing together a number of different elements, that could be very important.
There may be some diplomatic things that I won't get into that Canada could be helpful about. There are so many different levels at which we have to work, but yes, a full engagement by Canada is going to be very important.
I have to say, again, based on my experience, that Canada has always been extremely well represented in The Hague through its diplomats. The current ambassador, Lisa Helfand, is no exception to that rule. She's just great. I think, in working through her, that she will be very well informed about what the needs are and what's happening.
7:25 p.m.
Liberal
Anita Vandenbeld Liberal Ottawa West—Nepean, ON
That's very helpful. Thank you so much.
I'm limited in my time, and I do have a question for Mr. Eboe-Osuji.
You got my attention when you talked about the natural evolution of international human rights law and that it would be going toward declaring peace as a human right. I have a couple of questions about how that might work. I know we don't have a lot of time.
Would you clarify, for instance, the definition of peace versus security? Then, obviously, the idea of who is an aggressor state is something that can be disputed. Somebody's liberator might be another person's aggressor, especially if it's a third party or an alliance coming in to defend another country.
Finally, my concern might be that, if you are a military personnel who is participating in a conflict under orders, you know that, if you do things like rape, torture and extrajudicial killings, those are crimes against humanity. Those are illegal. What about peace? Would the mere participation in that conflict cause those military personnel to then be potentially breaking human rights laws?
I know these are big questions. If you don't have time, I would very much invite you to send answers in writing, unless there's time later, but, please, take the time you have to respond.
7:25 p.m.
Professor, Lincoln Alexander School of Law, Ryerson University, University of Windsor, As an Individual
Let me try. Your question is an important one.
The trick there is to limit the definition of what we mean by “peace” and take the bearing of that definition from the war of aggression. There is a definition of a war of aggression in international law. You have it in the Rome Statute. In 1972, the UN adopted resolution 3314, which defines it. It already lays out what a war of aggression is, so we don't need to worry too much about that.
What we need to avoid is expanding the concept of peace so it scares people. For instance, this idea of the right to peace is not an entirely new one for me. What I'm saying now is that we have to make a convention, rather than just a mere declaration.
The difficulty all along has been that, when people wanted to talk about the right to expand it, everybody gets in and discrimination against minorities and ethnic groups is a violation of the right to peace. Discrimination against women is a violation of the right to peace and all of that. Once you have that, people now say that they already have difficulties with this at home and now we want to add something else to it.
We would bring it down to say that we are talking about a war of aggression and we limit it to that. The laws against discrimination have their own purposes in international law. Let's leave those to do their work. Let's limit what we're talking about here to when one country decides to conduct military or special military operations—or whatever you choose to call it or not call it—against another country that has not attacked it. That is a war of aggression, and it is an international crime.
That is what we're talking about when we're talking about the right to peace, rather than expanding it too much.
7:30 p.m.
Conservative
The Vice-Chair Conservative Michael Cooper
Thank you very much.
Thank you, Ms. Vandenbeld.
I now recognize Mr. Viersen for five minutes.
7:30 p.m.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Thank you.
I want to go back to Mr. Stewart for a moment, particularly around our motion for this study here.
What we're really trying to get at is the nature of the crimes that are being committed in the conflict in Ukraine between Ukraine and Russia right now and the mechanisms for holding perpetrators accountable.
To recognize the genocide is one thing. I'm wondering if you have any other areas that we should pursue around the nature of these international crimes and perhaps the mechanisms. The court is one way, but perhaps you have other suggestions.
7:30 p.m.
As an Individual
Obviously genocide is a big word, and it catches attention and brings light to bear on what's happening. I think Professor Robinson could be of assistance here. Where you're talking about wilful killing, for example, wilful killing of prisoners of war or killing of civilians, the indiscriminate bombardment of cities and villages, that sort of thing that relates to the law of armed conflict, it's all codified in the Rome Statute, particularly in article 8. If we're dealing with an international armed conflict, you'd look at paragraphs (a) and (b) of article 8. I won't try to list all of the things, because as I mentioned in response to an earlier question, the list is a long one.
For example, when you hear allegations that Russian troops looted houses and dwellings and that sort of thing, that could potentially be the war crime of pillaging. Then the issue becomes whether this is just soldiers who are doing this, not being controlled by their officers, because there is an obligation under international law of armed conflict for officers to stop that sort of thing, to punish it and to prevent it. Is it not happening because they've lost control, or because that's what they want to happen because it's going to terrify the population and all the rest of it?
What I'm trying to underscore to you is that you could look at these different categories of potential crimes and then realize that when you break down the elements of these crimes, they're very complex. The intention issue can be very difficult to establish. It's so easy, I suppose, for a military commander to say we were trying to hit a military objective and the rocket went off course. If you have a pattern, however, of smashing down buildings indiscriminately, that argument becomes much more difficult to establish.
These are issues that really need to be developed through a careful layering of evidence, and you can't do that quickly. You simply can't do that quickly. It doesn't mean that you can't, as parliamentarians, be looking at these various categories.
When it comes to holding people accountable, I think it's very important to recognize that the International Criminal Court doesn't have a police force. We have investigators in the office of the prosecutor, so once you bring charges, once you obtain warrants of arrest from a pretrial chamber, then it really is up to states parties to execute that warrant. We have no power to do that ourselves. You have to rely on states or states parties. It doesn't have to be a state party. The United States was instrumental in the arrest of two of our suspects who were then tried and convicted of war crimes and crimes against humanity, so that's just an example.
The mechanism to hold accountable becomes very challenging. I mentioned Milošević before I mentioned al-Bashir. You can see the difficulty that any court like ours faces in trying to hold certainly the top-rank perpetrators to account. However, there, again, it becomes the duty, if you will, of the states parties that are part of the Rome Statute system of international criminal justice to bring that about.
I think strengthening that system is something that parliamentarians in Canada can certainly look at. I hope that helps with your question.
7:35 p.m.
Professor, Lincoln Alexander School of Law, Ryerson University, University of Windsor, As an Individual
Might I butt in here, please? I think this comes back—I don't want to look back, but I must—to this: In this day and age, the question now is how we evolve international law to the next level. It has moved so far to where it is. What else can be done? I return to whatever we can do to avoid a scenario where wars are being discussed as something that happens in ordinary course. Once somebody starts that war of aggression, we're talking about collateral damage. Mr. Robinson talked about that, which is true. International law recognizes that. Not everyone who dies in war has died as a result of sinister behaviour.
How do we stop getting to that point to begin with, so we don't have this discussion, this justification of killing human beings and destroying their lives? That is why I said, let's look at whatever we can do.
I do believe that beyond the prosecutorial question and this I believe is simply getting the question that was asked—
May 3rd, 2022 / 7:35 p.m.
Professor, Lincoln Alexander School of Law, Ryerson University, University of Windsor, As an Individual
Thank you.
The question that was asked is whether we can use civil remedies and I believe we can, so that, at the end of the war, people will have to worry about where the assets are and whether in nations all over the world there will be judgments against their property and assets all over the world.
7:35 p.m.
Conservative
The Vice-Chair Conservative Michael Cooper
Thank you very much.
Monsieur Trudel, you have five minutes.
7:35 p.m.
Bloc
Denis Trudel Bloc Longueuil—Saint-Hubert, QC
Thank you, Mr. Chair.
Mr. Eboe‑Osuji, I confess that earlier when we were talking about how to establish intent, I was a little surprised at your response, about the comparison with Rwanda. I too, before studying these issues, was certain that, in order to speak of a genocide, there had to be 100,000 or one million deaths and a clear intention to eradicate another people. It seems to be more nuanced under international law.
Earlier, you mentioned that intent must be established when determining whether it is genocide in legal terms. Could you elaborate on your thoughts on the notion of intent?
7:35 p.m.
Professor, Lincoln Alexander School of Law, Ryerson University, University of Windsor, As an Individual
The intent to destroy a group in whole or in part is a critical element of genocide. That's what separates a genocide from murder, which you can commit in peacetime as well as in war. However, to decide to eradicate a racial group, ethnic group, religious group or national group, and to eradicate them in whole or in part is what makes that difference.
It is something that can be established if there is direct evidence of it and that somebody who is involved in that enterprise of killing or destruction had intent to destroy a group in whole or in part. That can be evidenced, as can people saying, “This is what we want to do.” Otherwise, you could also use circumstantial evidence to say, “Hang on, what were you thinking when you were doing this?” You can also bring in circumstantial evidence, but the intent element is critical to genocide. There are a lot of killings that happen.
The case law of the ICTR, International Criminal Tribunal for Rwanda, in a case called Akayesu was the first case of genocide in international law—where James and I used to work many years ago as prosecutors. It says that once you have that intent element, you can kill a few people. Even one person raped with that intent can amount to genocide, so you don't need to have, as I said, 400 people, 800,000 people or six million people killed. That is very critical.
We need to have intent to have a case of genocide, and it's not an easy thing to prove. It's not impossible, because ICTR convicted a lot of people of the crime of genocide, but it requires careful attention to what evidence we have of direct implication of that intent or circumstantial evidence of it.