Mr. Speaker, I will be sharing my time with my colleague and friend, who is a distinguished jurist in his own right, the hon. member for Mount Royal.
In speaking in the third reading debate to the crimes against humanity and war crimes act, I will take note of a fact, which I think is rather exceptional, that the debates in the Standing Committee on Foreign Affairs and International Trade were exhaustive and at a very high level of technical competence. It reminded me of what the late president of old World Court, Manley Hudson, called an academy of jurists. In that sense, although it is still possible to offer projects of amendments, I hope that some of the parties will accept what I am doing, simply make points of clarification in the debate which courts can take note of as part of the travaux préparatoires in their future interpretations.
My first point is that the bill is enacting into Canadian law the provisions of an international treaty. As a matter of law, of Canadian constitutional law, it suffices for Canada to be bound by an international convention that we sign and that we ratify by executive act. In fact we gave this opinion to the foreign minister when I was parliamentary secretary a little earlier on the land mines treaty, because we wanted to send the symbolic message of the treaty coming to legal conclusion within a year of opening for signature. We could ratify without the enacting legislation and be legally bound. The practice since the privy council decision in the labour convention case in 1937 has been to recognize that since a legislative power to implement may be split sometimes between provinces and the federal government, it makes good sense to await provincial action. I mention that, nevertheless, because that is the position in law.
In implementing the treaty the Canadian government creates new jurisdictional bases and also new substantive bases of criminal liability or delinquencies within Canadian law. I would like to add this point because it does relate to some of the amendments I think suggested by the Bloc and by the New Democratic Party. It does not per se displace customary international law. I would suggest that except to the extent that customary international law may be in direct conflict with Canadian constitutional law or legislation enacted thereunder, it is in force and is a supplement to the treaty. There may be jurisdictional and other difficulties in implementing, but it is there.
I would simply refer to your notice, the judgment of the World Court in Nicaragua v United States, rendered by 15 votes to 1, in which the court refused to accept that the adoption of the United Nations charter had pre-empted all of international law, that it was all under the charter and nothing else. It said that was not so. Customary international law still prevails and the court based its judgment in Nicaragua v United States on customary international law.
A third point arises after the Rome treaty becomes law. It comes into force in international law when it is ratified by the 60 states stipulated as necessary to enact it. I raise the question: Does it bind non-signatory, non-ratifying states? I would here suggest the five permanent members of the security council. I am delighted to learn that the French government has decided to ratify this treaty. That is a breach in the opposition of the five permanent members of the security council that we had in Rome.
Monsieur Richard, the French minister of defence who was here several months ago, discussed this very earnestly with some of us and I became convinced that France would come through and I hope it will be an example to other permanent members: Russia, Great Britain, China and the United States, not least. There was the then heretical opinion by the brilliant Polish judge, Manfred Lachs, the most interesting judge in the post-war world court, in the North Sea Continental Shelf case, a dissenting opinion, but he did say that treaties by the universality of their reach and perhaps also the number of countries adhering to them could become binding on non-signatory, non-ratifying states because they are part of general international law. That was an heretical opinion 30 years ago when that decision was given. It is no longer heretical. It has become a more or less general part of law opinio iuris. Not everybody accepts it, but I cite it simply as an indication to the other remaining hold-outs who are permanent members of the security council. In the Latin phrase quod licet Jovie, licet bovi; what is permitted to Jove on high should be permitted to the humble oxen below.
It does not make sense for countries to push the jurisdiction of the ad hoc tribunal for Yugoslavia if they are not themselves prepared to say “We will be bound by the Rome treaty”.
An issue has arisen here as to the applicability of ordinary Canadian criminal law in ordinary Canadian courts. It is the General Pinochet factor. It is the most interesting, exciting and unexpected development in international law in the last year or two. The House of Lords in its judicial committee, normally known as a very conservative tribunal, took two big steps forward in asserting jurisdiction over General Pinochet. The home secretary made the political decision and took one and a half steps backward, but it is still there.
Under Canadian law any Canadian judge, in theory, subject of course always to the possibility of appeal, could find jurisdiction over a citizen of a foreign state, including even friendly foreign states and allies, if he or she so wished and felt there was an adequate base in Canadian law. The General Pinochet factor remains a wild card in international law, but it is interesting how much it has involved ordinary citizens, ordinary people and non-governmental associations in the international lawmaking process.
I am simply saying that the Rome treaty is a comprehensive and well thought out approach to universalizing jurisdiction over the most severe sort of crimes, crimes against humanity. It follows in the principle that was established in the first aerial piracy conventions and the first moves to control terrorism, of the hue and cry. That there is no safe place.
I do not expect the General Pinochet factor to be paramount in Canadian practice or even perhaps to occur, but it might be worth reminding people who have crimes on their conscience that if they want to take a holiday abroad or consult for medical treatment abroad, it is not really “Do not go to Great Britain”, but perhaps also “Do not go to Canada”.
I will note a last and general point because it emerged during the debate in the standing committee on foreign affairs and was the subject of thoughtful evidence by members of our permanent foreign ministry staff. It is a matter of law, and I note it and will read it into the record. The testimony led before the standing committee was quite directly that Canadian military personnel did not participate in those aerial missions which have been the focus of much public attention and debate in connection with Kosovo. But, and these are the affirmative points, Canada accepted the jurisdiction of the UN international tribunal for the former Yugoslavia over Canadian forces throughout the conflict. Also, in regard to every Canadian mission flown, a Canadian forces legal officer examined the target assigned with a view to ensuring its lawfulness under Canadian law and also international law.
That is a good example of respect for international law and a recognition that in policy decisions it is good to have the international law adviser at one's side. We know that during the Cuban missile crisis President Kennedy had his legal adviser, the very great, recently deceased, Professor Abe Chayes of the Harvard Law School, at his side. The action taken, among many options, was to choose that action which was compatible with international law, and it was effective. It is a good principle to note: keep the legal adviser at hand. We can do what is politically the right thing, but we can also do it compatibly with international law.
