Somebody else's problem: how the United States and Canada violate international law and fail to ensure the prosecution of war criminals.

• Author: Weiss, Nicholas P.
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

The United States and Canada have created programs to ensure that they will not be havens for war criminals and human rights violators. This, however, fails to meet their international legal obligation to ensure that suspected war criminals and human rights violators will be prosecuted for their crimes. This Note analyzes and compares the war crimes prosecution policies of Canada and the United States. It concludes that both countries take inadequate measures to ensure war criminals are prosecuted for their crimes, and thus, these countries are failing to meet their international obligations. This Note recommends both countries implement statutes to ensure suspected war criminals are prosecuted, forcing Canada and the United States to conform to their international obligations.

CONTENTS I. INTRODUCTION II. CANADA DOES NOT ENSURE THE PROSECUTION OF WAR CRIMES AND CRIMES AGAINST HUMANITY A. Canada 's Jurisdiction B. Canada's History of Investigation and Prosecution of War Crimes and Crimes Against Humanity C. Canada's Preference for Removal of War Crimes Suspects III. THE UNITED STATES DOES NOT ENSURE THE PROSECUTION OF WAR CRIMES AND CRIMES AGAINST HUMANITY A. United States' Jurisdiction B. The United States' History of Investigation and Prosecution of War Crimes and Crimes Against Humanity C. The United States' Preference for Using Immigration Law Against War Crimes Suspects IV. INTERNATIONAL LEGAL OBLIGATIONS VIOLATED BY THE UNITED STATES AND CANADA A. Obligation to Ensure Prosecution B. Customary International Law is Changing to Support Ensuring Prosecution of War Criminals C. Criticism of Canada's Policies D. Criticism of the United States' Policies V. RECOMMENDATIONS FOR THE UNITED STATES AND CANADA A. Solutions Going Forward: Canada B. Solutions Going Forward: United States VI. CONCLUSION I. INTRODUCTION

In June 2011, the Canadian government asked its citizens to help it in the hunt for thirty suspected war criminals living in Canada. (1) However, instead of bringing the war criminals to justice, Canada began to remove them from the country without any guarantee the suspects would be prosecuted. (2) Addressing criticism for failing to ensure prosecution, Canada's Safety Minister, Vic Toews, declared "Canada is not the UN. It's not our responsibility to make sure each one of these [suspected criminals] faces justice in their own countries[.]" (3) Thirty people suspected of war crimes may never be prosecuted. Instead, they will simply go back to their lives. When faced with the responsibility of ensuring that war criminals are prosecuted, Canada chose practical expediency over justice.

This Note argues that both the United States and Canada have abrogated their legal obligations by failing to ensure that war criminals and perpetrators of crimes against humanity are brought to justice. (4) These countries must either prosecute for substantive offenses, or ensure that other states prosecute for the substantive offenses if they are to prevent those who have committed atrocities from going free. (5) Both the United States and Canada have overcome their decades-long problems of insufficient temporal and geographic jurisdictions to prosecute for war crimes and crimes against humanity. (6) However, simply possessing jurisdiction to prosecute is not sufficient to achieve the obligations set by treaty and custom. To fulfill their international obligations, Canada and the United States must ensure the war criminals and human rights violators within their borders are prosecuted.

This Note is divided in five parts. Part II outlines the jurisdiction and history of Canada's successes and failures in ensuring the prosecution of war criminals. Part III does the same for the United States. Part IV analyzes the international obligations the United States and Canada, failing to ensure prosecution of war criminals, have violated. Part V advocates some statutory remedies both Canada and the United States should enact to meet their legal obligations.

Canada and the United States have made it a priority to identify and apprehend individuals found in their borders who have committed war crimes and crimes against humanity. (7) Within the past twenty years, the different strategies employed by each country to apprehend and bring to justice such individuals have begun to converge. (8) Starting in 1979, the United States began a serious effort to locate, apprehend, and deport war crimes suspects, particularly those associated with the Nazi genocide. (9) Canada, on the other hand, held the unfortunate stigma of being a haven for Nazi war criminals and did not truly begin apprehending suspected war criminals until 1995. (10)

The United States has largely either removed suspected war criminals from the country or prosecuted these individuals for naturalization or immigration fraud. (11) This is partly because the United States only recently passed legislation granting universal jurisdiction for war crimes and crimes against humanity. (12) Canada, on the other hand, tends to remove suspects from Canada rather than seek any kind of criminal prosecution. (13) Both are responding to the difficulties inherent in prosecuting war crimes that occurred far outside their borders but are doing so in a way that violates international legal obligations. The United States and Canada have declined to prosecute suspected war criminals and opted instead to either prosecute for immigration-related violations or deport without assurances that those suspected of war crimes and crimes against humanity will be prosecuted. Both states are bound by international agreements to ensure prosecution, yet both have failed to meet their international obligations. (14)

2. CANADA DOES NOT ENSURE THE PROSECUTION OF WAR CRIMES AND CRIMES AGAINST HUMANITY

   While Canada has enacted legislation to prosecute war criminals and human rights violators, the actual effect in prosecuting war criminals has been fairly impotent. A combination of little political will and restrictive Supreme Court rulings (15) has stymied domestic prosecution of war criminals. To date, Canada has prosecuted, convicted, and sentenced only a single war criminal. (16) Canada's record in ensuring that war criminals are prosecuted abroad once they have been removed from Canada is equally dismal. Canada has become very effective at removing suspected war criminals, but not nearly as effective in ensuring they face justice.

   1. Canada's Jurisdiction

      Canada has statutory jurisdiction to prosecute suspected war criminals under the Crimes Against Humanity and War Crimes Act ("Canada War Crimes Act" or "the Act"). (17) The Canada War Crimes Act was enacted on June 29, 2000 to domesticate the Rome Treaty. (18) It grants Canada the statutory jurisdiction to prosecute genocide, crimes against humanity, and war crimes, regardless of where or against whom the crimes took place, and specifically permits Canadian courts to prosecute crimes committed before the Act was enacted. (19) With its retroactive provision, the Act grants Canada greater jurisdiction to prosecute war criminals than even the Rome Statute permits the International Criminal Court (ICC). (20) The Canada War Crimes Act states that if an intentional killing forms the basis of the offense, the perpetrator shall be imprisoned for life. (21) This is a substantially more stringent standard than the Rome Statute, which merely permits the ICC to imprison a suspect for a term of years up to life. (22)

   2. Canada's History of Investigation and Prosecution of War Crimes and Crimes Against Humanity

      Canada's expansion of jurisdiction was driven in large part by Canada's unfortunate legacy of permissiveness towards war criminals. (23) Some organizations estimate that as many as 3,000 Nazi war criminals fled to Canada after World War II. (24) Following condemnation by international organizations, Canada adjusted its criminal code in 1987 to enable the prosecution of Nazi war criminals living in Canada. (25) Yet, the 1987 legislation is largely considered a failure. (26) Only four prosecutions were ever attempted. (27) Three of the accused had their charges dropped outright, and the fourth ended in acquittal. (28)

      The last attempt to prosecute Nazi war criminals in Canada resulted in the acquittal of Imre Finta. (29) Canada charged Finta with manslaughter, kidnapping, unlawful confinement, and robbery in relation to his alleged activities as a police officer assisting the Nazis in the forced deportation of 8,617 Jews from Szeged during the Holocaust. (30) The Canadian Supreme Court made a bewildering ruling in which it established a broad defense of superior orders that departed from international practice. (31) The court also applied a heightened actus reus requirement found nowhere in either international or Canadian law. (32)

      This ruling handicapped Canadian prosecution of war crimes and reinforced the perception that Canada was not serious about addressing the issue of suspected war criminals living in Canada. (33) While Canada could have reacted to this setback by increasing the total deportation of war criminals, Canada successfully extradited or deported only two suspected war criminals between 1980 and 1997. (34)

      Since the implementation of the War Crimes Prosecution Act, only one person has been successfully prosecuted to conviction. (35) In 1997, Desire Munyaneza emigrated from Rwanda to Canada. (36) In 2000, the same year as the passage of the Canada War Crimes Act, the Immigration and Refuge Board rejected his application for refugee status, finding reason to believe that Munyaneza had participated in the 1994 Rwandan genocide. (37) Munyaneza was finally charged in 2005, after Rwandan-Canadians recognized him living in their community. (38)

      Munyaneza was charged and convicted of seven counts of genocide, crimes against humanity, and war crimes for acts of murder, sexual violence, and pillage committed in Rwanda in 1994. (39) He was...