Canadian case law presents a modest collection of decisions dealing with the law of armed conflict. A handful of reported cases dealt with escaped prisoners-of-war in Western Canada during World War II,1 applying the 1929 Geneva Convention.2 Canada was one of the few Allies not to participate actively in the United Nations War Crimes Commission. The war crimes prosecutions in the aftermath of World War II were of modest proportions,3 although one precedent is still cited today as an authority on command responsibility.4 Canada then became somewhat of a haven for fleeing Nazis.5 It was only in the 1980s, under pressure from Jewish organisations,6 that the Government established a commission of inquiry into the presence of war criminals in Canada. The Commission's president was a distinguished judge, Jules Deschenes.7 A decade later, he was one of the first judges elected to the International Criminal Tribunal for the former Yugoslavia (ICTY), where he had the distinction of being part of the majority in the famous Tadic decision.8
The report of the Deschenes Commission identified more than 800 suspected Nazi war criminals who were resident in Canada. Parliament responded by enacting legislation allowing for prosecution of war crimes and crimes against humanity on the basis of universal jurisdiction. The amendments to the Criminal Code9 authorised the courts to adjudicate crimes committed abroad by foreign nationals, to the extent that (a) they constituted crimes against humanity or war crimes under customary international law, and Page 154 (b) they had been punishable under Canadian law at the time they were committed. Canada's Constitution makes an exception to the principle of non-retroactivity of criminal offences where these are recognised at international law or the general principles of law recognised by the community of nations.10
Investigations of the cases identified in the Deschenes report led to only four prosecutions, none of them successful. The most important of them was that of a Hungarian collaborator named Imre Finta. Finta did not testify in his own defence, and never denied charges that he had participated in the 'de-jewification' of Szeged during the spring of 1944. This involved expropriation, ghettoisation, concentration, entrainment and eventual deportation (primarily to Auschwitz and Birkenau) of all Hungarian Jews, and was unquestionably part of the 'Final Solution'. Finta was charged with crimes against humanity involving the unlawful confinement, robbery, kidnapping and manslaughter of 8,617 Jews. The reasons for Finta's acquittal remain locked in the consciences of the jurors. Subsequent litigation focused on the trial judge's charge to the jury, which may or may not have been decisive in the ultimate determination of guilt or innocence. Essentially, the judge invited the jury to consider that even if Finta had committed the acts charged, they did not rise to the level of crimes against humanity, given that Finta might have assumed he was following lawful orders in the context of resistance to the Soviet troops, who were by then not far from Hungary's borders.
The Ontario Court of Appeal11 and the Supreme Court of Canada12 dismissed prosecution appeals directed at obtaining a new trial. Finta's high threshold for the mental element of crimes against humanity has been significantly cut down by the case law of the international criminal tribunals.13
Finta dealt a body blow to the political will for war crimes prosecutions. The Canadian Government's focus shifted to immigration legislation as a more effective technique for challenging war criminals38,14 although obviously expulsion and deportation fall short of proper criminal prosecution. After a review of the prosecutions in 1997, the Government revived the war crimes programme and devoted significant resources for investigation and prosecution. It also oriented its work increasingly towards what are called 'modern war crimes', that is, those committed in contemporary humanitarian crises such as the Rwandan genocide, the wars in the former Yugoslavia, and atrocities committed under tyrannical regimes in Afghanistan, Haiti, Iraq and Somalia. This is not to say that there is no further interest in World War II cases. There have actually been several recent successes with respect to former Nazis involving revocation of citizenship, although there is a high rate of attrition as suspects pass away during the proceedings. Page 155
The Canadian legislation intended to implement obligations assumed under the Rome Statute15 is the Crimes Against Humanity and War Crimes Act (in full, 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).16The Act reflects an important development in international criminal law, namely the elimination of the nexus between crimes against humanity and war crimes. At Nuremberg, the two concepts were intertwined but, as the Appeals Chamber of the ICTY insisted in its first major ruling, "customary international law no longer requires any nexus between crimes against humanity and armed conflict".17 This progressive development in international law was confirmed by Article 7 of the Statute of the International Criminal Court (ICC). Parliament did not deem it necessary to include a reference to genocide in the short title, given that genocide is widely considered to be an aggravated form of crimes against humanity.18
The legislation received Royal Assent on 29 June 2000. Canada deposited its instrument of ratification of the ICC Statute a week later, on 7 July 2000, becoming the fourteenth State party.19 The Crimes Against Humanity and War Crimes Act came into force on 23 October .20 It was the first major enactment of its kind in the Commonwealth. The Canadian legislation has been much studied by other legislators in their efforts to implement the Rome Statute in domestic law, in part because of the significant role Canada has played internationally in promoting ratification and implementation. Canadian experts have provided a great deal of guidance to other countries in this area, and they are, inevitably, influenced in their approaches by their country's own legislation.
While the Act was aimed at ensuring that Canada can respect the obligations it has undertaken by ratification of the Rome Statute, it was also intended to strengthen the effectiveness of the existing programme for dealing with war criminals within Canada. For this reason, the Act contains several provisions that effect consequential amendments to Page 156 such existing legislation as the Immigration Act,21 the Mutual Legal Assistance in Criminal Matters Act22 and the Extradition Act.23
The two-pronged objective of the legislation is also manifested in parallel substantive law provisions, one set being applicable to crimes committed outside Canada at any time, the other to crimes committed inside Canada subsequent to the Act's entry into force.
The Crimes Against Humanity and War Crimes Act repeals the existing definitions of crimes against humanity and war crimes in the Canadian Criminal Code, which were introduced in 1987 to give effect to the recommendations of the Deschenes report. It introduces three new definitions: genocide, crimes against humanity and war crimes. In fact, there are six provisions because each definition appears twice, once in the section of the Act describing crimes committed inside Canada, and the other in the section describing crimes committed outside Canada. The new provisions barely resemble the corresponding texts for the same three categories of crimes within the Rome Statute. Instead, the definitions in the Act make specific reference to customary international law, which they incorporate into Canadian law. These references mean that in prosecutions for genocide, crimes against humanity and war crimes, whether committed before or after the entry into force of the legislation, and whether committed inside or outside Canada, the courts will be required to rule on the state of customary law. It is an area in which, it must be said, they have little expertise.
As guidance for the courts, the Act makes two attempts to determine the state of customary law. A general provision, applicable to crimes committed both inside and outside Canada, states:
"For greater certainty, crimes described in Articles 6 and 7 and paragraph 2 of Article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law."24
The second provision establishes that crimes against humanity have been recognised as part of customary international law since 1945. It is applicable only to crimes committed outside Canada (the legislation does not authorise retrospective application to crimes committed inside Canada). The provision states that:
"[f]or greater certainty, the offence of crime against humanity was part of customary international law or was criminal according to the general principles of law recognised by the community of nations before the coming into force of either of the following: (a) the Agreement for the prosecution and punishment of the major war criminals of the Page 1...