War
Criminals &
Deportation:
Kenney is not too
open & Wente is not too helpful Aug 2011
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Thank goodness we have
Amnesty International reminding the
government to honour its
international treaty
undertakings. It is irresponsible of
Minister Kenney, and Globe
& Mail columnist Margaret
Wente to belittle Amnesty’s important
concerns. Amnesty wants Canada to
prosecute war criminals. It seems
absurd of Kenney
and Wente to say no to prosecution while
the government is pushing
ahead with a
costly crime-combating initiative for
criminals which only
conservatives
believe are there. The numbers show the
crime rate falling.
The world
is
changing. In 2002, the
International Criminal Court was
established
to allow prosecution of a series of
international crimes including war
crimes. High
ranking officials behind war crimes
are now being prosecuted there or
at
similar international courts for
specific countries. At the same
time, there are inevitably a
number of other lower police or army
or government officials who were
involved in
government war crime activities to a
lesser extent. It is this kind of
person
who largely features on the Minister’s
list.
People who are potentially
considered war criminals in this
kind of “abetting” role can find
themselves at risk of persecution in
their
home country. So they flee and ask for
refugee status. As the
International Criminal
Court has begun laying out the rules,
refugee hearings and courts have
been
finding increasing numbers of these
people complicit in war crimes and
they are
denied refugee status. Often, itis when
a refugee claimant tells his or her
refugee story that officials can
find in the
testimony “serious reasons to believe”
the person may have been
complicit in
war crimes and so, according to the
rules of refugee status, the person
does
not qualify as a refugee – he or she is
“excluded.” These
lesser
war criminals should be
prosecuted in the courts of countries
like Canada which identify them, as any other
criminal is prosecuted. This
is not just an Amnesty suggestion. As
the
statute to the ICC notes in its
preamble:
“… it is
the duty of
every State to
exercise its criminal jurisdiction
over those responsible for
international
crimes, …”
There
are related obligations under the
Convention against Torture (CAT),
which
Canada has ratified. In my paraphrase: Acts
of torture
shall be punishable under Canadian
criminal law (CAT Art.4). Canada will
establish jurisdiction to
prosecute if it
does not extradite (CAT Art.5). Canada
will take the person into
custody for
either criminal prosecution or
extradition (CAT Art. 6).
The
UN Committee against Torture last
examined Canada in 2005. In its
report on the
examination of Canada the Committee
raised a concern about Canada’s
apparent tendency
to try to expel rather than trying first
to prosecute persons. The
Committee
was concerned with:
“ … [the] …
apparent
willingness, in the light of the low
number of prosecutions for
terrorism and
torture offences, to resort in the first
instance to immigration
processes to
remove or expel individuals from its
territory, thus implicating issues
of
article 3 of the Convention more
readily, rather than subject him or
her to the
criminal process …”
Internationally, Amnesty
has been intimately involved with
the Convention against Torture and the
Rome Statute of the
International
Criminal Court. It
is entirely
appropriate that Amnesty in Canada
should encourage Canada’s Ministers
to
honour the international undertakings
Canada agreed to adopt. Minister
Kenney must
be aware of the Committee against
Torture and its views. So his letter
is not
exactly “open” when he acts as if only
Amnesty has ever raised such
concerns. Globe
columnist Margaret Wente can be
forgiven for not knowing, but she ought
to do more research. Other
states like
Holland and Belgium prosecute similar
persons for war crimes –
sometimes
successfully. It
is dishonourable for
Canada to ignore the international
agreements it entered and to avoid
its fair
share of this prosecution
responsibility. Canada should pull its
weight
and not
leave this for other countries to pick
up.
It is irresponsible of the
Minister to imply that Amnesty
should only turn its attention to Canada
when all other rights
violations in
other countries have been addressed.
Human rights should begin at home
for this
Minister as for Amnesty Canada.
Amnesty’s Canadian branch has the
special
responsibility to press its own
government to serve as a good example.
More
should be expected of a well-endowed
state like Canada.Canada has been accused before of
“rights
elsewhere” – lecturing other countries
on human rights in international
forums
and ignoring the same rights back home.
A treaty obligation does not
disappear
for those who consider themselves above
average. When Canada signs onto
a
treaty it has freely promised to meet
the obligations, convenient and
inconvenient, cheap and costly,
irrespective of what other countries
may do.Ministers
have an obligation to
make sure
that the public is aware of those treaty
obligations. The Minister has
not been
very “open.”
Wente’s column gives
publicity to selected names of the
potential
war criminals, manages to imply war
criminals flock to Canada for safe
haven,
and largely acts as cheerleader for
Minister Kenney. Her mindless
tossing out of
the cost of prosecuting war criminals is
unhelpful. There are costs
assumed
when one enters into international
agreements and there are costs of
doctrinaire anti-crime initiatives. They
are not the same. Also, if
Wente is
concerned about cost, one wonders why
she wants to pay the cost of
deporting
them. It would be cheaper to just let
them stay and work and pay taxes.
The Minister needs to be
more
fully “open” with Canadians on other
details. Responding to war
criminals is
difficult. The evidence from the story
given in a refugee hearing may
only be sufficient
to deny the person refugee status. That
does not make the person a
“criminal,”
only a potential criminal. It is
technically wrong to call them war
criminals. From
Dutch and Belgian experience, this
refugee exclusion evidence is
unlikely to be
sufficient to meet the higher test,
“beyond reasonable doubt,” which
would
allow a criminal conviction for the
majority – even if the Minister
followed
Amnesty’s advice and tried to prosecute.
That leads to another matter.
It could violate
international agreements
if Canada was to deport or extradite
some of these people. If
Canada honours its Convention against
Torture Art. 3 obligation:
“A
person may not be expelled if there is a
substantial probability that
he or she
will face torture or cruel or inhuman
treatment or punishment.”
This
doesn’t depend on whether the person is
a refugee or not. It applies to
convicted
and potential war criminals. Canada has
rightly recognized this
undertaking by making
provision for “protected persons” in the
Immigration and Refugee
Protection Act
2002. In this regard, the Committee
against Torture gave
recommendations to
Canada in its 2005 examination report:
“The State party [Canada]
unconditionally
undertake to respect the absolute nature
of article 3 in all
circumstances and fully
to incorporate the provision of article
3 into the State party's
domestic law;”
…
“The State party [Canada]
should
provide for judicial review of the
merits, rather than merely of the
reasonableness,
of decisions to expel an individual
where there are substantial grounds
for
believing that the person faces a risk
of torture;”
So what should
be done?The
government has begun
identifying
potential war criminals by means of
refugee status procedures. Instead
of trying
to prosecute them, Canada wants to
continue trying to deport or
extradite. This
may be difficult for a country fully
honouring international
undertakings. Canada
may hope that publicity will deter
potential war criminals. Yet there
is a
profound international issue to be
resolved - how to deal with lesser
war
criminals who cannot be prosecuted or
deported, but nevertheless have
given
testimony providing reasonable grounds
to believe they are war
criminals. For
now, these lesser war
criminals have to
end up somewhere and an honourable
Canada would accept its fair share.
It will
be a challenge explaining the situation
to the public who should know
and feel
comfortable with what their government
must do. The open letter from
Minister
Kenney is not an auspicious beginning.
