Depoliticizing international criminal law

Realists frequently challenge the legitimacy of public international law as a bona fide legal discipline, contending that it is merely a political tool wielded by powerful states to enforce their diktats on the third-world. To Louis Henkin, “law is politics;”[1] elaborating on that theme, John Austin posited that international law is not really “law” because breaches do not engender legally-enforceable sanctions.[2] Such positions merit due attention, as they pose a serious challenge to efforts to promote adherence to international legal norms.

To respond effectively to Austin and Henkin, it is necessary to consider not only whether international law is possessed of “teeth”, but also the extent to which these teeth operate consistently and independently of political intervention. I will focus here on what I consider to be the two most significant developments in international criminal law over the last two decades: the creation of the International Criminal Court (ICC) through the Rome Statute of 1999, and the rise and fall of the doctrine of universal jurisdiction across various national legal systems. In many respects, both appear to have been rather successful in promoting individual accountability. For the first time, there exists a permanent and independent entity at the global level capable of prosecuting individuals charged with grave violations of international humanitarian law. Similarly, at the national level, many individual states have begun asserting the authority to prosecute such…

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“Wanted: War Criminals”? : the Challenge of Ensuring Justice for Canada’s Unwanted War Criminals

What do Léon Mugesera, Désiré Munyaneza, Jorge Vinicio Sosa Orantes, Branko Rogan and Jacques Mungwarere have in common? They are all present in Canada. And they are all suspected of having been involved, abroad, in the commission of genocide, crimes against humanity and/or war crimes. However, they face very different consequences for their alleged actions. Two have been criminally prosecuted (Munyaneza, Mungwarere), one has received a (yet to be executed) deportation order (Mugesera), one is the object of extradition proceedings (Sosa Orantes) and one faces revocation of his Canadian citizenship and possible removal from Canada (Rogan). Once a suspect is found on Canadian territory, Canada bears the responsibility of the international community to ensure accountability, here or abroad. This post examines Canada’s approach and some of the challenges it faces in living up to its commitment to fight impunity for the worst international crimes. The points and ideas discussed herein are fleshed out in an upcoming article[1] and book.[2]

Canada has been a fervent supporter of and a main actor behind the creation of the International Criminal Court (ICC), one of the first states to ratify the Rome Statute of the International Criminal Court[3] and the first to enact an implementing legislation, the Crimes against Humanity and War Crimes Act.[4] The War Crimes Act has as one of its main objectives to enhance and reinforce Canada’s capacity to…

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Economics v. Justice? International Nuclear Liability Regimes

After the recent earthquake in Japan, there has been a global outpouring of sympathy and support. Governments and individuals worldwide have been trying to help Japan recover from the tragedy. Likewise, the world has been on edge regarding the ongoing crisis at the Fukushima I (or Fukushima Daiichi) nuclear power station, as everyone hopes that an even more serious nuclear catastrophe can be avoided.

Yet what about those individuals devoid of empathy or, seemingly, any human emotion? Pseudo-humans so empty and craven that, seeing the Japanese nuclear crisis, they think first and foremost about what the impact will be on the stock market. Self-interested automatons from an economics textbook come to life, who focus only on things that matter – or rather, the thing that matters: money. Whose writing will cater to this audience? The Wall Street Journal? Fox Business News? Amateurs! Come with me, fellow homo economici, and let us cast off this veil of humanity.

Firstly, the crisis in Japan has been playing havoc with the stock market, and that can only mean one thing: investment opportunities! Here’s a great stock pick[1] to get the ball rolling: General Electric. GE built (wholly or in part) half of the reactors at the Fukushima I plant, and the crisis now unfolding has been partially attributed to a design flaw. In reaction to this news, GE’s stock price

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The Canadian Government & Omar Khadr’s Plight

On 25 October 2010, more than 8 years after being brought into US custody, Omar Khadr, pleaded guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying. On 31 October a Military Commission at the U.S. Naval Station in Guantanamo Bay, Cuba, sentenced him to 40 years in confinement. 

Mr. Khadr, however, will be imprisoned for a maximum of 8 years, on account of a plea agreement[1] which was signed, at least in part, on the understanding that, having served no less than a year of his sentence in the U.S., the Canadian Government would be amenable to an application to serve the remainder of his sentence in Canada, subject to Canadian rules of parole.  On 23 October the Government of Canada, in a diplomatic note[2] to the U.S. Government, expressed its “inclination to favourably consider” such an application.

The terms of the plea agreement are severe.  Among other things, Mr. Khadr waived any claim to credit for time served, agreed to direct counsel to submit a motion to dismiss his petition for habeas corpus in his case pending before the U.S. District Court for the District of Columbia, as well as all claims currently pending in the U.S. Court of Appeals for the District of Columbia Circuit.  In addition, while…

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Environmental Law and the Curse of Competency

Have you ever been in an organization full of incompetents, where one competent person has to do everyone else’s work even though it has nothing to do with their own job? I certainly have – and identifying that individual really took the pressure off me and my fellow rubes. “Tibor,” we’d say, “we can’t get this project done on time even though your project depends on it. Can you help us out?” Sure enough, Tibor would come through for us, and we’d all learn something about teamwork. Something depressing.

“What does this have to do with law?” you may ask (other than its relevance to my ongoing unjust dismissal hearing). Simple: by passing the environmental buck on to financial regulatory agencies such as the Ontario Securities Commission (OSC), we would be treating them just like poor old Tibor.

In the land of the incompetent, the semi-competent man is king. Similarly, in the ham-fisted world of inefficient and ineffective governmental organisations, a body which generally satisfies its mandate, such as the OSC, is a paragon. Of course, the OSC (or the rest of Canada’s financial market regulators) isn’t beyond criticism. Many complain that Canada is more lax towards fraud and white-collar crime than other countries. Nevertheless, the OSC has fared much better in meeting its dual mandate – protecting investors while promoting fair and efficient markets – than equivalent organizations…

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Two Worlds Apart: Canada Supports the Rights of a Niqabi Woman while France Approves Law Banning the Niqab in Public

If there existed an award for Controversial Clothing Garment of the Year, surely the niqab would grab the prize for 2010.[1] The niqab took the spotlight earlier this year when Quebec proposed legislation that would prohibit the wearing of the niqab for an individual seeking a government service. After a pause of several months, the hearing on the proposed legislation resumed on Tuesday (19 October 2010), though this issue has temporary drifted away from national interest.

However, the niqab has been garnering increasing attention elsewhere. In the past two weeks, two important decisions were released concerning the niqab. On 13 October 2010, the Ontario Court of Appeal opined that a niqab woman’s right to wear to the niqab in a sexual assault trial must be given due consideration. A week earlier in France, the Constitutional Council gave its approval on the constitutionality of legislation banning the niqab in public spaces. Admitted, the two decisions do not touch on exactly the same matter. Nonetheless by contrasting the decisions, one starts to sense a “Canadian flavor” in they way our courts address controversial issue where freedom of religion is implicated. The Court of Appeal’s strong push for reconciliation of rights, as well as its interest in affording a niqabi woman substantive (over formal) equality, provides some indication that multiculturalism is actively playing a role in the way the Canadian…

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A League of Their Own

In recent years China’s prominence on the world stage has grown rapidly. With consistently high GDP growth, a swelling middle class, and high-profile international events such as the 2008 Beijing Olympics or the Expo 2010 in Shanghai, many recognize China as an emerging superpower. But this growth has not been consistent across all fronts, and in some respects China lags far behind other world powers. Recent events have made one area in particular stand out in this regard: oil spills.

On July 16^th in the Chinese port city of Dalian, the explosion of two oil pipelines caused thousands of barrels of oil to begin gushing into the sea. The slick has since expanded to cover hundreds of square kilometres of water and spread upwards of 90km down the coast. The spill – and China’s cack-handed response – is clearly modelled after the U.S.’s ongoing gulf coast saga – but it’s a pale imitation. Unlike the American spill, there seems to be no threat of the oil being carried to other nations’ coasts. Yet even Australia has managed to pull off a massive spill affecting its neighbours. If China wants to get into the oil spill big leagues, they’ll have to find a way to go international.

But while the international oil spill scene is characterised by intense competition, there is a notable lack of corresponding cooperation. It’s…

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What’s wrong with banning the niqab?

Let’s start with the obvious: it violates the religious freedom of Muslim women who choose to wear the niqab for reasons of faith. Even those who would defend a ban, such as noted constitutional lawyer Julius Grey, acknowledge that this would violate religious freedoms – however, freedom of religion in Canada is never absolute, and the question is whether or not the government would be able to adequately justify such an infringement.

It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.

The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).

The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec…

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Hope still lingers as Canada ratifies the UN Convention on the Rights of Persons with Disabilities

Canada ratified the UN Convention on the Rights of Persons with Disabilities, on March 11^th, one day before the official opening of the Paralympic Games in Vancouver. This long-awaited ratification made Canada the 78^th nation to have adopted the Convention.[1] In addition to requiring provincial governments to update a number of laws, the document imposes a fundamental shift of the focus from institutionalization to integration of people with disabilities. Further, the convention will empower individuals to challenge laws and policies, deemed in conflict with the convention. The UN Convention on the Rights of Persons with Disabilities has important implications in Canadian immigration and refugee law. How far can its remedial stretch extend in offering hope to disabled immigrant and refugee applicants who seek permanent status or asylum in Canada?

The blatant exclusion of people of disabilities from immigration to Canada on the basis of disability stems back to the 1910 Immigration Act which altogether banned the immigration of people with mental disabilities. The 1927 Immigration Act expanded the basis for refusal to entry to Canada to physical disabilities as well. The subsequent amendment of the Act in 1976, introduced a less blatant discriminatory provision. Under this Act, people with disabilities could be excluded from immigration because they might place “excessive demands” on health or social services. This practice acquired a new dimension with the passing of the 1985 Immigration…

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Does the Charter Follow the Flag? the Afghan Detainee Transfers Example

In 2007, Amnesty International Canada and the BC Civil Liberties Association brought an application for judicial review of the transfer of individuals detained by the Canadian Forces deployed in Afghanistan. This action arose from allegations that the Canadian Forces were not taking adequate precautions to ensure that individuals, whom the Canadian Forces captured in Afghanistan and transferred to the Afghan forces, were not being tortured. To support their application, the plaintiffs sought a declaration that sections 7, 10 and 12 of the Canadian Charter of Rights and Freedoms (the Charter) applied to individuals detained by Canadian Forces in Afghanistan. Both the Federal Court and the Federal Court of Appeal held that the Charter did not apply to the actions of Canadian Forces in Afghanistan.

Having previously argued that the Supreme Court of Canada (SCC) should narrow its ruling in Hape, I was disappointed to learn that it turned down an opportunity to hear this case. In my last entry, I argued that when establishing whether the Charter applies overseas, the foreign state’s consent should only be the determinative factor where Canadian authorities or agents would be enforcing the Charter in that state. With all due respect to Mactavish J.’s efforts to navigate Hape’s legal labyrinth, the Federal Court’s decision in Amnesty International reveals the confusion resulting from Hape. This confusion stems from LeBel J.’s assertion that the…

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