Practice Relating to Rule 157. Jurisdiction over War Crimes
Canada’s LOAC Manual (1999) states:
If a breach [of the 1949 Geneva Convention III] amounts to a grave breach all persons responsible therefor, or having ordered such acts, shall, regardless of their nationality, be liable to be tried by any party to [the 1949 Geneva Convention III]. They may also be handed over by the latter for trial by any other party to [the 1949 Geneva Convention III] able to prosecute effectively.
The manual further provides:
The Criminal Code of Canada contains several provisions that allow Canadian courts to assume jurisdiction over and try alleged war criminals in a wide variety of circumstances.
… Any state into whose hands a person who has allegedly committed a grave breach falls is entitled to institute criminal proceedings, even though that state was neutral during the conflict in which the offence was alleged to have been committed.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war:
Parties to the conflict shall take such measures as may be necessary to suppress and punish all breaches of [the 1949 Geneva Convention III]. If a breach amounts to a grave breach all persons responsible therefore, or having ordered such acts, shall, regardless of nationality, be liable to be tried by any party to [the 1949 Geneva Convention III]. They may also be handed over by the latter for trial by any other party to [the 1949 Geneva Convention III] able to prosecute effectively.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states:
1616. Canadian law
2. The Criminal Code of Canada contains several provisions that allow Canadian courts to assume jurisdiction over and try alleged war criminals in a wide variety of circumstances …
1617. International law
1. Any state into whose hands a person who has allegedly committed a grave breach falls is entitled to institute criminal proceedings, even though that state was neutral during the conflict in which the offence was alleged to have been committed. Since 1945, it has been generally accepted that if a state is unwilling to institute its own proceedings, it may hand the person over to a claimant state on presentation of prima facie evidence that the alleged offender has committed the offence in question.
2. While International Law authorizes the trial of accused war criminals, the courts are established in accordance with the national law of the state having custody of the accused. Procedure is also left to that state.
Canada’s Geneva Conventions Act (1985), as amended in 2007, which provides for the punishment of grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I, provides:
Where a person is alleged to have committed an offence [in the meaning of Article 50 of the 1949 Geneva Convention I, Article 51 of the 1949 Geneva Convention II, Article 130 of the 1949 Geneva Convention III, Article 147 of the 1949 Geneva Convention IV or Articles 11 or 85 of the 1977 Additional Protocol I], proceedings in respect of that offence may, whether or not the person is in Canada, be commenced in any territorial division in Canada and that person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.
For greater certainty, any legal requirements that the accused appear at and be present during proceedings and any exceptions to those requirements apply to proceedings commenced in any territorial division pursuant to [the above].
Canada’s Criminal Code (1985) provides:
Every person who … commits an act or omission outside Canada that constitutes a war crime or a crime against humanity and that, if committed in Canada, would constitute an offence against the laws of Canada in force at the time of the act or omission shall be deemed to commit that act or omission in Canada at the time if,
(a) at the time of the act or omission,
(i) that person is a Canadian citizen or is employed by Canada in a civilian or military capacity,
(ii) that person is a citizen of, or is employed in a civilian or military capacity by, a state that is engaged in an armed conflict against Canada, or
(iii) the victim of the act or omission is a Canadian citizen or a citizen of a state that is allied with Canada in an armed conflict; or
(b) at the time of the act or omission, Canada could, in conformity with international law, exercise jurisdiction over the persons with respect to the act or omission on the basis of the person’s presence in Canada and, subsequent to the time of the act or omission, the person is present in Canada.
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that any person who has committed genocide, war crimes or crimes against humanity within or outside Canada may be prosecuted for such offences if:
(a) at the time the offence is alleged to have been committed,
(i) the person was a Canadian citizen or was employed by Canada in a civilian or military capacity,
(ii) the person was a citizen of a state that was engaged in an armed conflict against Canada, or was employed in a civilian or military capacity by such a state,
(iii) the victim of the alleged offence was a Canadian citizen, or
(iv) the victim of the alleged offence was a citizen of a state that was allied with Canada in an armed conflict; or
(b) after the time the offence is alleged to have been committed, the person is present in Canada.
In the Finta case
in 1989, in which the accused was prosecuted for war crimes and crimes against humanity committed during the Second World War, Canada’s High Court of Justice rejected the defence’s arguments that the law on which the prosecution was based was unlawful inasmuch as it gave the Courts extraterritorial jurisdiction. The Court held that one of the bases of jurisdiction which it considered were applicable to the case in question was the “‘universal principle’ of jurisdiction”. The Court went on to explain that “this principle recognizes that with respect to certain types of international crimes a country has the right to prosecute an offender irrespective of the fact that the offence was not committed on its territory”.
In its judgment in 1994, the Supreme Court, with reference to the relevant provision of the Canadian Criminal Code, stated:
Canadian courts have jurisdiction to try individuals living in Canada for crimes which they allegedly committed on foreign soil only when the conditions specified [enumerated within the judgment] are satisfied. The most important of those requirements, for the purposes of the present case, is that the alleged crime must constitute a war crime or a crime against humanity.
The war crimes and crimes against humanity provision stands as an exception to the general rule regarding the territorial ambit of criminal law. Parliament intended to extend the arm of Canada’s criminal law in order to be in a position to prosecute these extraterritorial acts if the alleged perpetrators were discovered here.
In their dissenting opinion, three of the judges stated:
Extraterritorial prosecution is thus a practical necessity in the case of war crimes and crimes against humanity. Not only is the state where the crime took place unlikely to prosecute; following the cessation of hostilities or other conditions that fostered their commission, there also is a tendency for the individuals who perpetrated them to scatter to the four corners of the earth. Thus, war criminals would be able to elude punishment simply by fleeing the jurisdiction where the crime was committed. The international community has rightly rejected this prospect.
In 2007, in the Hape case, Canada’s Supreme Court stated:
This Court recognized the foregoing principles in Terry. At para. 15, McLachlin J. wrote the following on behalf of the Court:
The principle that a state’s law applies only within its boundaries is not absolute: The Case of the S.S. “Lotus” (1927), P.C.I.J. Ser. A, No. 10, at p. 20. States may invoke a jurisdiction to prescribe offences committed elsewhere to deal with special problems, such as those provisions of the Criminal Code, R.S.C. 1985, c. C46, pertaining to offences on aircraft (s. 7(1), (2)) and war crimes and other crimes against humanity (s. 7(3.71)). A state may likewise formally consent to permit Canada and other states to enforce their laws within its territory for limited purposes.
The Statute of Westminster
, 1931 (U.K.), 22 Geo. 5, c. 4, s. 3, conferred on Canada the authority to make laws having extraterritorial operation and Canada has enacted legislation with extraterritorial effects on several occasions. Some examples can be found in criminal legislation, including the Crimes Against Humanity and War Crimes Act
, S.C. 2000, c. 24, which addresses crimes of universal jurisdiction. Section 6(1) of that statute provides that every person who commits genocide, a crime against humanity or a war crime outside Canada is guilty of an indictable offence. Pursuant to s. 8, such a person may be prosecuted in Canada: (a) if at the time of the offence the person was a Canadian citizen or a citizen of a state engaged in armed conflict against Canada, or the victim was a Canadian citizen or a citizen of a state allied with Canada in an armed conflict; or (b) if, after the time of the offence was committed, the person is present in Canada. These provisions exemplify valid extraterritorial prescriptive jurisdiction, and any trial for such offences would constitute a legitimate exercise of extraterritorial adjudicative jurisdiction.
In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes committed in Rwanda in 1994. The Court held:
II - TRIAL
 Mr. Munyaneza was charged under the Crimes Against Humanity and War Crimes Act (the “Act”), adopted by the Canadian Parliament in 2000 (S.C. 2000, c. 24). He is the first to be prosecuted under that legislation in Canada.
IV – THE LAW
3. THE CRIMES AGAINST HUMANITY AND WAR CRIMES ACT (“the Act”)
 On June 29, 2000, the Act was assented to and placed in Chapter 24 of the Statutes of Canada for the year 2000. Its complete title is the 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.
 The Act came into force on October 23, 2000.
 It is aimed at implementing the Rome Statute of the International Criminal Court, adopted on July 17, 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the “Rome Statute”).
 In contrast to all Canadian laws that punish offences committed on Canadian territory, the Act provides that a person who has committed abroad a crime of genocide, a crime against humanity or a war crime can be prosecuted in Canada if he or she resides here.
 One of the avowed purposes of the Act is to fight against the impunity of war criminals, like that which existed after the Second World War.
In a report in 1987, the Canadian Commission of Inquiry on War Criminals (“Commission Deschênes”) held: “Neither conventional international law nor customary international law stricto sensu
could support the prosecution of [Second World War] war criminals in Canada.”
The Commission added:
Prosecution of war criminals can, however, be launched on the basis of customary international law lato sensu
inasmuch as war crimes are violations of the general principles of law recognized by the community of nations, which article 11(g) of the Canadian Charter of Rights and Freedoms
has enshrined in the Constitution of Canada.
In 1987, in parliamentary debates on the proposed amendment to Canada’s Criminal Code, the Canadian Minister of Justice referred to changes already made in legislation in order to bring Canada in line with its international obligations and stated:
These amendments have also recognized the increasing acceptance in international law of the principle of according universal jurisdiction to the national courts in respect of internationally acknowledged offences.
In 2009, in a statement before the Sixth Committee of the UN General Assembly, made on behalf of Canada, Australia and New Zealand, the counsellor and legal adviser of Australia stated:
Universal jurisdiction is a long-established principle of international law. It vests in every State the competence to exercise, on behalf of the international community, criminal jurisdiction over those individuals responsible for the most serious crimes of international concern, no matter where those crimes occur. The principle first developed a[s] customary international law in relation to piracy to prevent pirates from enjoying impunity or safe haven. It has since been extended to include genocide, war crimes, crimes against humanity, slavery and torture.
The nature or exceptional gravity of these crimes renders their suppression a joint concern of all members of the international community. The principle of universal jurisdiction is an important mechanism through which the international community aims to ensure that individuals who commit these crimes do not enjoy safe haven anywhere in the world.
Primary responsibility for investigating and prosecuting serious international crimes, as with all crimes, rests with the State where the crime occurs. Where the territorial State establishes effective legal frameworks to prosecute and punish these crimes, the need for other States to assert jurisdiction is, as a practical matter, diminished. The territorial State is best placed to obtain evidence, secure witnesses and enforce sentences. And perhaps most importantly, it is also well placed to ensure that the “justice message” is delivered to affected communities.
However, it is a fact that many such crimes go unpunished, including through the movement of the accused to another country. Universal jurisdiction assists to cover that jurisdictional gap. With that in mind, we call upon all States to incorporate grave crimes into their domestic laws. We further call upon all States to provide each other with practical assistance to promote the rule of law and develop the capacity of domestic criminal justice systems to prosecute grave crimes. This is the front line in the fight against impunity and it should be our first priority.
Universal jurisdiction has a place in our collective system of criminal justice as a complementary mechanism to ensure an end to impunity.
On the rare occasion where a national court has asserted universal jurisdiction, State practice suggests that this has usually been due to a connecting link between the offence and the forum State, for example the presence of the accused on the territory of the forum State.
The national court should always exercise universal jurisdiction – and indeed all forms of extraterritorial jurisdiction – in good faith and in a manner consistent with other principles and rules of international law. This is essential to ensure that the desire to end impunity does not in itself generate an abuse of the principle.
National courts should at all times observe the minimum fair trial guarantees, including the right of the accused to be tried in his or her presence and without delay. Judicial independence and impartiality must be maintained to ensure that the principle is not manipulated for political ends.
In order to prevent impunity for these crimes, we encourage States, consistent with their international obligations and domestic practices, to cooperate to provide all available means of assistance, including mutual assistance, in order to ensure sufficient evidence for prosecution. By cooperating with national courts in prosecutions involving universal jurisdiction we all further our shared aim to end impunity.
In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:
132. Canada has no policy of resorting to the immigration process to remove or expel individuals instead of prosecuting them for crimes committed in Canada. If a foreign national commits a crime in Canada, he or she will be investigated and prosecuted according to the same process followed for Canadians. With respect to crimes committed wholly outside Canada, Canada can prosecute crimes for which universal jurisdiction exists, including torture, genocide, crimes against humanity and war crimes. For more information regarding the prosecution of such crimes, see the response to Question 17 below. Canada may also have jurisdiction to prosecute certain other offences committed outside Canada where Parliament has specifically established jurisdiction to do so, for example, in relation to certain terrorism offences.
Question 17: Please provide (a) detailed information on how the State party has exercised its universal jurisdiction over persons responsible for acts of torture, wherever they occurred and regardless of the nationality of the perpetrator or victim, and (b) specific examples and texts of any decisions on the subject, including the outcomes of reviews by the Program Coordinating Operations Committee (PCOC) and the two cases referred to in paragraph 49 of the State party’s report. In that regard, please comment on reports before the Committee that Canada has chosen the path of deportation rather than criminal prosecution against perpetrators of international crimes and has failed to take effective measures to exercise its universal jurisdiction over persons responsible for acts of torture, while its law, through provisions in the Criminal Code and the Crimes against Humanity and War Crimes Act, provides for universal jurisdiction and thus allows domestic prosecution.
179. With respect to specific prosecutions under the CAHWCA [the 2000 Crimes Against Humanity and War Crimes Act], the Public Prosecution Service of Canada’s first prosecution under the Act resulted in the conviction of Désiré Munyaneza of genocide, crimes against humanity and war crimes in relation to events that occurred in Rwanda in 1994. Mr. Munyaneza received a life sentence in 2009. An appeal is ongoing. A second case, R. v. Mungwarere, which is ongoing, concerns a Rwandan national residing in Windsor, Ontario, who was charged in 2009 with two counts of genocide. Additional charges of crimes against humanity were added in 2010. A trial date of April 30, 2012, has been set. The accused, Jacques Mungwarere, remains in custody.
180. Canada‟s War Crimes Program is based on the dual underlying purposes of ensuring that Canada will not become a safe haven for persons involved in war crimes, genocide or crimes against humanity, as well as making an effective contribution to the global effort to reduce and eventually eliminate impunity for such crimes. A committee composed of members of each department of the War Crimes Program reviews and scrutinises all allegations of genocide, crimes against humanity and war crimes, including torture, to ensure compliance with existing and emerging international obligations to extradite or prosecute. In order for a case to be investigated and/or prosecuted through the criminal justice system, a combination of factors needs to be present:
- the allegation discloses personal involvement or command responsibility:
- the evidence pertaining to the allegation is corroborated; and
- the necessary evidence can be obtained in a reasonably uncomplicated and speedy fashion.
181. While the criminal investigation and prosecution of war crimes committed abroad is resource-intensive and will therefore only be pursued where the above criteria are satisfied, the ability to conduct criminal investigations and to prosecute is an important element of the War Crimes Program. In some cases, a criminal justice response is the most appropriate action and sends a strong message to Canadians and the international community that the Government of Canada does not tolerate impunity for war criminals or for persons who have committed crimes against humanity or genocide. …
183. In some cases it is more desirable to remove an individual suspected of having a role in war crimes and/or crimes against humanity through immigration enforcement means so that they may face justice in their country of citizenship. These instances arise when there has been a change in country conditions and there has been recognition of legal reform (e.g., independence of the judiciary) and capacity building within the justice system, and, as a result, these countries are capable of carrying out efficient and effective prosecutions of suspected criminals.
In 2012, during the presentation of Canada’s sixth report to the Committee against Torture, the legal advisor in the Department of Foreign Affairs and International Trade of Canada stated:
With respect to the obligation to prosecute crimes of torture and to assist other States in this regard, Canada is committed to the principle that it will not become a safe haven for persons involved in war crimes, genocide or crimes against humanity, as well as to making an effective contribution to the global effort to strengthen accountability for such crimes. Canada has demonstrated its commitment in this regard through recent prosecutions of persons accused of having committed genocide and crimes against humanity in Rwanda. Canada also believes that wherever possible, people accused of such terrible crimes should face justice in the countries in which the crimes occurred. In cases where this is not possible, international courts and tribunals and other efforts to hold perpetrators accountable for serious international crimes may be used.
In 2012, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to Canada’s combined third and fourth periodic reports, Canada stated:
Extra-territorial jurisdiction for violations of the provisions of the OPAC [2000 Optional Protocol on the Involvement of Children in Armed Conflict]
186. Canada generally does not extend its jurisdiction to prosecute offences committed by Canadians or permanent residents abroad unless required to do so by treaty obligations. No such justification exists in the case of violations of the provisions of the OPAC.
187. Nevertheless, Canada adopted the Crimes Against Humanity and War Crimes Act
in 2000 implementing the Rome Statute [1998 ICC Statute], by which authors of genocide, crimes against humanity and war crimes, including that of “conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities,” may be prosecuted for that offence if present in Canada after the time the offence is alleged to have been committed.