Crimes Against Humanity and War Crimes Program Evaluation
2. Program Profile
This section provides a brief description of the Program, its partners, and its governance structure. A detailed logic model for the CAHWC Program, illustrating the relationship between the Program’s planned activities and its expected results, is found in Appendix A.
2.1. Program Objectives
The purpose of the Program is to support Canada’s policy to deny safe haven to persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide, and to contribute to the domestic and international fight against impunity. The Program also aims to reflect the federal government’s commitment to international justice, respect for human rights, and strengthened border security. The operational and coordination objectives of the Program are shown in Table 1 .
Table 1: Program objectives
- To prevent the admission to Canada of people believed to have committed or been complicit in war crimes, crimes against humanity, or genocide.
- To detect, at the earliest possible opportunity, persons who are believed to have committed or been complicit in war crimes, crimes against humanity, or genocide who are in Canada, and to take steps to prevent them from obtaining immigration status or citizenship.
- To examine all claims that persons suspected of having committed war crimes and crimes against humanity are living in Canada and, where appropriate, to investigate and prosecute these individuals.
- To revoke the immigration status or citizenship of individuals believed to have committed or been complicit in war crimes, crimes against humanity, or genocide who are in Canada, and to remove them from Canada.
- To ensure that all allegations are addressed, and that the appropriate remedy is applied in each case.
- To increase information sharing among the four Program partners.
The Program uses a three-pronged approach to achieve these objectives, including:
- Preventing suspected perpetrators of crimes against humanity, war crimes, or genocide from reaching Canada by refusing to grant immigrant, refugee, or visitor status;
- Detecting suspected perpetrators of these crimes who are already in Canada and taking steps to exclude these individuals from refugee protection, prevent/revoke their immigrant or citizenship status, and remove them from Canada, and;
- Considering criminal prosecution or extradition (Department of Justice Canada, 2015c).
2.2. Program Background
The impetus for the current program dates to the mid-1980s and the findings of the Commission of Inquiry on War Criminals (Deschênes Commission), which concluded there were suspected war criminals living in Canada. In response to these findings, the Canadian government announced that persons alleged to have been involved in committing crimes against humanity, war crimes, or genocide would be subject to criminal prosecution or have their citizenship revoked and be removed from Canada. This work was operationalized through specialized war crimes units established in Justice and the RCMP (Department of Justice Canada, 2015c).Footnote 7 These efforts led to the announcement in 1998 of the CAHWC Program that would add new partners to the fight against impunity, including IRCC and later (in 2003, upon its inception) the CBSA (Department of Justice Canada, 2015c).Footnote 8
Also in 1998, Canada signed the Rome Statue of the International Criminal Court (Rome Statute), which led to the creation of the Crimes Against Humanity and War Crimes Act (CAHWC Act) in 2000. Canada’s immigration laws were also strengthened in 2001 through the creation of the Immigration and Refugee Protection Act (IRPA). This new legislative framework reinforced Canada’s existing no safe haven policy and strengthened Canada’s international role in holding criminals accountable for crimes against humanity, war crimes, or genocide (CBSA, CIC, Department of Justice Canada, and RCMP, 2011, p. 4).
2.3. Crimes Against Humanity and War Crimes Definitions
The CAHWC Program deals with three broad areas of international crimes, which are defined as follows:
- Crimes against humanity
- This includes systematic and widespread murder, extermination, enslavement, deportation (or forcible transfer of population), imprisonment (or other severe deprivations of physical liberty), torture, sexual violence, persecution of an identifiable group, or other inhumane acts or omissions committed against any civilian population or identifiable group, as defined in international law, whether or not these acts contravene laws in force at the time and place of the crime’s commission (Department of Justice Canada, 2015c; GoC, 2000, sec. 4(3); UN General Assembly, 1998 Article 7). Unlike war crimes, crimes against humanity may be committed in the absence of armed conflict.
- The crime of genocide includes an act or omission committed with intent to destroy (in whole or in part) an identifiable group of persons (such as a national, ethnic, racial, or religious group), which may include killing, causing serious bodily or mental harm, deliberately inflicting life conditions to bring about physical detriment, imposing measures to prevent births, and forcibly transferring children from one group to another group as defined in international law. These crimes constitute genocide whether or not the acts contravene the laws in force at the time and place of the crime’s commission (Department of Justice Canada, 2015c; GoC, 2000, sec. 4(3); UN General Assembly, 1998 Article 6).
- War crimes
- Under the Rome Statute, war crimes are a diverse but specific list of 53 types of crimes, some of which were already listed under crimes against humanity. War crimes as defined in international law pertain to the use of inhumane weapons and the conduct of war; the treatment of civilians, prisoners, adversaries, peacekeepers, and humanitarian workers; unnecessary destruction or seizure of property; pillaging; conscription of child soldiers; and hostage taking. Many of the laws apply specifically to international conflicts, while certain paragraphs within the Statute’s definition of war crimes deal specifically with internal armed conflicts. The acts that constitute war crimes are considered crimes whether or not they contravene the laws in force at the time and place of the crime’s commission (Department of Justice Canada, 2015c; GoC, 2000, sec. 4(3); UN General Assembly, 1998 Article 8).
The Program uses several legislative remediesFootnote 9 to respond to persons believed to have committed or been complicitFootnote 10 in crimes against humanity, war crimes, or genocide. The choice of the remedy depends on a number of factors, including whether the individuals are attempting to enter Canada or are already in Canada (CBSA et al., 2011, p. 5) and the availability of adequate evidence to pursue the remedy. In situations where the individual is already in Canada, an interdepartmental committee, the File Review Subcommittee, assesses all allegations and determines which remedy to apply in Canada and to which department or agency to refer the allegations. Remedies available through the Program are as follows:
- Denial of visa/entry
- IRPA provides the legislative authority for IRCC immigration officers to deny overseas visa applications and the CBSA border services officers to deny entry at Canadian ports of entry if the person(s) in question is/are believed to have been involved or complicit in crimes against humanity, war crimes, or genocide. Individuals who are found inadmissible are not allowed to enter Canada (CBSA et al., 2011, p. 5).
- Exclusion from the refugee determination process
- As part of the refugee determination process, the CBSA can intervene in matters before the Immigration and Refugee Board (IRB) if it determines that there are reasonable grounds to believe that the claimant committed or was complicit in crimes against humanity, war crimes, or genocide. In those cases, the CBSA files its argument for exclusion under Article 1(F)(a) of the 1951 United Nations Convention Relating to the Status of Refugees, which states a person cannot be a Convention refugee if they have committed crimes against peace, war crimes, or crimes against humanity (CBSA et al., 2011, p. 7). If the IRB finds the claimant excluded from refugee protection, a removal order may be issued by the Immigration Division (ID) of the IRB (see below under Admissibility hearings).
- Admissibility hearings
- For foreign nationals or permanent residents who are already in Canada, where are concerns over the possible commission or complicity in crimes against humanity, war crimes, or genocide, CBSA officers will write a report that sets out the relevant facts and transmit this report to the Minister’s Delegate. If the Minister’s Delegate finds the report well founded, it may be referred to the ID of the IRB for an admissibility hearing. The subject of the report is then required to attend the admissibility hearing. A member at the ID hears the case and decides whether the person should be allowed to remain in Canada (CBSA et al., 2011, p. 8; IRB, 2014). If the decision is that the person is inadmissible, a removal order is then issued (see below).
- If an individual is found to be inadmissible to Canada, the IRB will issue a removal order. Prior to removal, and upon application by the claimant, the CBSA will initiate a Pre-Removal Risk Assessment (PRRA) to determine whether the claimant would be in danger or at risk of persecution if removed to their country of origin. IRCC reviews and decides on the PRRA. If the individual is deemed to be at risk were they to be removed from Canada, the removal order is stayed. Otherwise, the CBSA will initiate removal proceedings (CBSA et al., 2011, p. 8).
- Revocation of citizenship
- This remedy operates through the Citizenship Act, which enables the government to revoke the citizenship of persons who obtained their citizenship through misrepresentation, fraud, and knowingly concealing material circumstances. Following a decision to initiate revocation proceedings, a notice of intent is issued and the individual may elect to refer their case to the Federal Court for hearing. During the period covered by the evaluation, the GIC made the determination of whether citizenship should be revoked. The individual was able to choose to challenge the revocation decision in Federal Court and further upon appeal. Once citizenship is revoked, the person reverts to their former status as a permanent resident or foreign national and may be subject to an admissibility hearing and removal (CBSA et al., 2011, p. 9; CIC, 2015). Amendments to the Citizenship Act have changed the revocation process and the GIC is no longer involved. The changes to the process, which were effective as of May 2015, are outside the scope of this evaluation.
- Extradition and surrender to an international criminal tribunal
- Under Canada’s Extradition Act and related treaties, countries with which Canada has an extradition agreement, or entities which are designated in the Schedule to the Extradition Act (including the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court [ICC]) may request that Canada arrest and surrender a person sought for prosecution or sentencing who is located on Canadian soil and is wanted for extraditable conduct. Extraditions involve three key stages, which include authorization from the Minister of Justice, assessment of evidence by a Canadian court to determine the justification of extradition, and surrender of the person to the foreign state/international criminal tribunal (CBSA et al., 2011, p. 10; Department of Justice Canada, 2015b).
- Criminal investigation and prosecution
- Allegations of crimes against humanity, war crimes, or genocide undergo a preliminary investigation by the RCMP. These files are then submitted to the File Review Subcommittee of PCOC (see Section 2.6 for more information on PCOC) for further consideration. If the criteria are met, the file becomes part of the criminal inventory of files. The RCMP then prioritizes these investigations based on established standards, which include legal opinions from Justice regarding jurisdiction, procedures, and evidentiary requirements. Priority files receive further checks by the RCMP, which endeavors to gather testimony and documentary and physical evidence, domestically and abroad. The RCMP prepares a disclosure package of the evidence and provides it to Justice. Justice reviews all relevant law and evidence and provides a report with recommendations on whether to pursue criminal charges to the (Deputy) Attorney General of Canada. If approved, the report is forwarded to the PPSC. If the PPSC also recommends prosecution, the file is then transferred to the PPSC, who in turn, will then seek the approval of the Attorney General to initiate prosecution. If the PPSC decides not to prosecute, the file returns to the File Review Subcommittee to consider other remedies. Under the CAHWC Act, persons found guilty of committing genocide, crimes against humanity, or war crimes where intentional killing forms the basis of the offence, will receive a mandatory sentence of imprisonment for life (GoC, 2000, p. 4).
2.5. Program Partners and Roles
The CAHWC Program is delivered through a partnership with the CBSA, IRCC, Justice, and the RCMP. Each partner plays a specific role in the Program based on its expertise and mandate.
In December 2003, the majority of the modern war crimes activities and corresponding resources of IRCC was transferred to the CBSA (Department of Justice Canada, 2008). Under the current program, the CBSA serves as the program lead for immigration cases involving crimes against humanity, war crimes, or genocide. The Agency’s operational role in the Program is fulfilled through three divisions: the National Security Screening Division (NSSD), the Inland Enforcement Operations and Case Management Division, and the Intelligence, Operations and Analysis Division (IOAD).
Specific roles within these divisions span the immigration continuum and include denying inadmissible persons access to Canada at ports of entry, excluding refugee claimants from protection, and deporting inadmissible and excluded persons from Canada (CBSA et al., 2011, p. 3). The IOAD is responsible for providing intelligence support to field officers and producing tactical guides on emerging groups of concern (with respect to Sections 34 and 35 of IRPA). Upon referral, the NSSD of the CBSA also conducts security screening on overseas visa applications and provides recommendations to IRCC on the admissibility of visa applicants. The NSSD also screens all refugee claimants over the age of 18 for possible section 34, 35 or 37 inadmissibility.
The CBSA’s Hearings and Investigations Unit and the Policy Unit of the Inland Enforcement Program Management Division also play a role in formulating policy related to IRPA Section 35. In addition, the Hearings and Investigations Unit plays a role in formulating directives and guidelines on war crimes issues and provides programmatic advice and support to other areas of the CBSA and the IRCC on hearings and investigations of the IRPA Section 35 cases.
The Operations Sector at National Headquarters (NHQ) is responsible for operating Canada’s Immigration Program through 60 points of service at missions abroad and five case processing centres in Canada. IRCC officers assess applications for temporary and permanent residents (including applications on humanitarian and compassionate grounds) to Canada in accordance with IRPA. Although IRCC may request additional security screening through the CBSA’s NSSD, visa officers make the final determination on inadmissibility. In cases where persons are believed to have committed or been complicit in crimes against humanity, war crimes, or genocide manage to evade Canadian authorities and are present in Canada, IRCC is involved in ensuring these individuals undergo a PRRA prior to being removed from Canada.
IRCC also acts as the Program lead for citizenship revocation cases. In these cases, IRCC’s Case Management Branch works closely with Justice to prepare recommendations for revocation to the GIC and to manage files that end up in litigation.Footnote 11
The RCMP’s Sensitive and International Investigations (SII) Unit is mandated to enforce the provisions of the CAHWC Act. The RCMP investigates allegations by gathering evidence domestically and abroad, primarily in the form of testimony and physical evidence. Justice provides support to the investigation by conducting research and preparing letters of assistance. Due to reorganization at the RCMP, as of FY 2013–2014, the War Crimes Unit was absorbed by the SII’s Extra-Territorial Response Unit. Specialized war crimes investigators are working within this unit.
Department of Justice
The Department’s Crimes Against Humanity and War Crimes Section (CAHWC Section or the Section) consists of lawyers, paralegals, case and research officers, historians, analysts, and case and administrative support. The team provides contextual/background and legal research and advises on all pending files in the RCMP’s CAHWC inventory and continues this role once the file has been prioritized. Upon request, the Section will assist the RCMP in the analysis of the evidence. The CAHWC Section also prepares a report that recommends whether or not to pursue criminal prosecution. If the Attorney General of Canada decides to prosecute the matter, the CAHWC Section may continue to play an advisory and ongoing support role for the PPSC throughout the prosecution process.
In addition to supporting investigations and prosecutions, Justice, through its International Assistance Group (IAG), takes the lead on cases involving extraditions to foreign state or international tribunals. The Justice CAHWC Section also works with IRCC in investigating allegations and assessing cases for possible citizenship revocation (CBSA et al., 2011, p. 10,3). For revocation cases that proceed to litigation, counsel in the CAHWC Section work closely with Justice regional litigators. The Justice CAHWC Section provides legal advice to IRCC and the CBSA, and Justice litigators conduct litigation related to admissibility, exclusion, and removal decisions.
Although not formal program partners, the Program works with various other departments to achieve its goals. For example, the Program works with Global Affairs Canada (GAC) in the use of national interest letters in matters where there are conflicting departmental mandates, and works with Public Safety Canada in designating regimes under Section 35 of IRPA.
Activities of the Program partners are coordinated through the PCOC, which coordinates and facilitates interdepartmental efforts to assess allegations, develop operational policy, carry out integrated planning and accountability functions, and ensure Program compliance with international obligations (CBSA et al., 2011, p. 3). The PCOC consists of representatives from each of the partner departments (Department of Justice Canada, 2008). The PCOC includes a number of subcommittees which are responsible for specific tasks, including a File Review Subcommittee (for assessing files using established criteria, and determining which remedy should be initially applied), an Enhanced Cooperation Subcommittee (to improve information sharing among partners), and a Program Efficiencies Subcommittee.
The Program partners also operate a Steering Committee, which is composed of senior officials at the Assistant Deputy Minister or equivalent level from each partner. The Steering Committee plays an oversight role for PCOC and is tasked with ensuring Program activities align with its objectives within each of the partnering departments and with overall Government of Canada policy (CBSA et al., 2011, p. 3). The Steering Committee meets on an ad hoc basis.
Since its inception in 1998, the Program’s budget has been $15.6 million per fiscal year. The funding is divided among the four partners: the CBSA receives $7.2 million; Justice $5.74 million; IRCC $1.96 million; and the RCMP $682,000. Since 2008, the CBSA has received its $7.2 million funding allotment through ongoing A-base funding. In Budget 2011, the Government of Canada made the remaining $8.4 million of the Program’s budget permanent funding, which followed a recommendation in the 2008 evaluation of the CAHWC Program.
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