Process

The Crimes Against Humanity and War Crimes Program involves a multi-dimensional process that takes into account international obligations, and includes criminal, civil (revocation of citizenship) and administrative (immigration) remedies.

All four Program partners—the Department of Justice (DOJ), the Royal Canadian Mounted Police (RCMP), the Canada Border Services Agency (CBSA) and Citizenship and Immigration Canada (CIC) — collaborate to ensure that the most efficient approach is taken in all war crimes, crimes against humanity and genocide cases.

The War Crimes Program

CIC and the CBSA act as the first line of defence against alleged war criminals attempting to seek haven in Canada. Both partners conduct rigorous visa screening processes, overseas and at our borders, to deny entry to people suspected of involvement in atrocities.

In cases where perpetrators are found in Canada, the Program may decide to initiate immigration and removal proceedings (CBSA), criminal prosecution (the DOJ and the RCMP) or citizenship revocation procedures (CIC and the DOJ) and subsequent removal.

Brief Synopsis of Process

Investigations related to war crimes focus on individuals in Canada who are alleged to have participated in genocide, war crimes or crimes against humanity anywhere in the world. Allegations are received from a variety of sources including victims, witnesses, foreign governments, local ethnic communities, non-government organizations and the media. The RCMP conducts criminal investigations, with assistance from the DOJ’s team of lawyers, researchers, historians and analysts.

Once completed, investigations are submitted to the DOJ for consideration for prosecution. Following examination of the results, the DOJ determines whether to issue a recommendation to prosecute to the Public Prosecution Service of Canada. A prosecution under the Crimes against Humanity and War Crimes Act requires the consent of the Attorney General.

If there is not enough evidence to proceed with a criminal prosecution, the DOJ may provide the results of its analyses to the CBSA to use in its enforcement activities, or to CIC to use in citizenship revocation proceedings.

Remedies

The Program has several remedies available to deal with alleged war criminals and people who are suspected of involvement in crimes against humanity or genocide:

• Designation of governments and regimes considered to have engaged in gross human rights violations under 35(1)(b) of the Immigration and Refugee Protection Act;
• Denial of visas to persons outside of Canada under the Immigration and Refugee Protection Act;
• Exclusion from the protection of the 1951 United Nations Convention Relating to the Status of Refugees under the Immigration and Refugee Protection Act;
• Inquiry and removal from Canada under the Immigration and Refugee Protection Act;
• Prosecution in Canada under the Crimes Against Humanity and War Crimes Act;
• Revocation of citizenship under the Citizenship and Immigration Act and deportation under the Immigration and Refugee Protection Act;
• Extradition to a foreign government (upon request) under Canada’s Extradition Act; and
• Surrender to an international tribunal (upon request) under Canada’s Extradition Act.

The decision to use one or more of these mechanisms is based on:

• the different requirements of courts and tribunals in criminal, civil and administrative cases to substantiate and verify evidence;
• the resources available to conduct the proceedings;
• the likelihood of success of a given remedy; and
• Canada’s obligations under international law.

Preventing Entry to Canada

The most effective measure to ensure that Canada is not a safe haven for suspected perpetrators of war crimes, crimes against humanity or genocide is to prevent them from coming to Canada in the first place. This measure is legislated in the Immigration and Refugee Protection Act (IRPA). Under the IRPA, CIC visa officers are responsible for the selection of permanent and temporary residents to ensure that they are not in violation of human or international rights. The CBSA provides visa officers with analysis and recommendations on applications, training, screening aids and intelligence support. For complex cases, the Program can request legal advice from the DOJ and investigative assistance from the RCMP to ensure that alleged war criminals are denied entry to Canada.

Enforcement in Canada

If suspected perpetrators do arrive in Canada or are found to be living in Canada, the Program partners assess the situation to determine the most appropriate remedy.

Criminal Investigation and Prosecution

Criminal investigation is the most challenging remedy for all partners involved. Investigations often span several years and require special steps such as gathering evidence in foreign states (sometimes under post-war conditions) and interviewing witnesses and traumatized victims from various backgrounds and cultures. Both the RCMP and the DOJ review the results of these investigations to decide whether to recommend criminal prosecution. If the decision is made to proceed with criminal prosecution, the Attorney General of Canada must consent to charges before they are laid. At this stage, the DOJ and the RCMP work closely with prosecutors of the counsel from the Public Prosecution Service of Canada (PPSC) who lead the cases before the courts.

Revocation of Citizenship

In cases where an alleged war criminal has acquired Canadian citizenship, and where the RCMP and the DOJ determine that it would be more appropriate to pursue proceedings under the Citizenship Act than to prosecute, the partners provide the results of their investigations to CIC. CIC is responsible for evaluating the information and determining whether or not to proceed with revoking citizenship. When the decision is made to revoke citizenship, CIC and the DOJ work closely together to ensure that citizenship is revoked and the perpetrator is deported.

Vacation of Refugee Status and Removal from Canada

As a signatory to the 1951 United Nations Convention Relating to the Status of Refugees, Canada is committed to providing protection to people who fear persecution as described in the Convention. This protection prevents refugees from being returned to the country where they have been persecuted. In turn, the Convention maintains that those who have committed crimes against peace, war crimes or crimes against humanity are not entitled to this protection. In October 1987, changes to the Immigration Act made it impossible for people who are suspected of war crimes or crimes against humanity to be admitted to Canada. The Act was further amended in January 1989 to allow individuals who were believed to have been involved in war crimes and crimes against humanity to be excluded from the refugee determination process.

In February 1993, additional changes were made to the Immigration Act to make it impossible for senior officials of regimes that have been designated by the Minister of Citizenship and Immigration as being involved in terrorism, systematic or gross human rights violations, or crimes against humanity to be admitted to Canada. The power of designation now lies with the Minister of Public Safety Canada.

In 2001, the Immigration and Refugee Protection Act (IRPA) replaced the Immigration Act. The IRPA maintains the legislated powers set out in the Immigration Act, but also makes it impossible for people who were senior officials of a designated regime, as well as those against whom there are sanctions issued by an international body to which Canada is a member, to be admitted to Canada.

When alleged war criminals are excluded from refugee status, or otherwise not admitted to Canada because of war crimes or crimes against humanity, the CBSA initiates removal procedures. However, all persons to be removed have access to a pre-removal risk assessment conducted by CIC officials.

Legislation

The following Canadian statutes authorize enforcement action against alleged war criminals or alleged perpetrators of crimes against humanity and genocide:

Citizenship Act

• Provides for the revocation of citizenship of people who have obtained citizenship by fraud or misrepresentation;
• Deems that people who gained admission to Canada by fraud or misrepresentation, and subsequently obtained Canadian citizenship, are subject to having their citizenship revoked; and,
• Provides that citizenship shall not be granted where the person is under investigation by the CBSA, the RCMP, the Minister of Justice or the Canadian Security Intelligence Service.

Crimes Against Humanity and War Crimes Act

• Provides for the prosecution of any individual present in Canada for any offence stated in the Act regardless of where the offence occurred;
• Codifies offences of genocide, crimes against humanity, war crimes, and breach of responsibility by military commanders and civilian superiors;
• Creates new offences to protect the administration of justice at the International Criminal Court (ICC), including the safety of judges and witnesses; and,
• Recognizes the need to provide restitution to victims and provides a mechanism to do so for victims of offences (regulations to implement these provisions have not yet been passed).

Extradition Act

• Allows Canada to extradite to other states upon request and also allows for the surrender to international criminal tribunals if so requested by these tribunals;
• Permits the use of video and audio link technology to provide testimony from witnesses located in Canada or abroad; and,
• Establishes clear procedures for the extradition or surrender process.

Immigration and Refugee Protection Act

• Provides for the examination abroad of all people seeking to enter Canada as a visitor or for permanent residence;
• Provides specific grounds of inadmissibility for people involved in war crimes or crimes against humanity and outlines procedures for their reporting, admissibility hearing and removal;
• Provides for the exclusion from the refugee determination process of people involved in war crimes or crimes against humanity;
• Provides for the designation of regimes considered to have engaged in gross human rights violations, war crimes or crimes against humanity; and,
• Limits appeal rights of people involved in war crimes and crimes against humanity.

International Involvement

Because of its coordinated approach and its capacity to apply a broad range of legislative remedies, Canada’s War Crimes Program plays a leading role in international efforts to bring war criminals to justice. Program partners work closely with other countries on war crimes issues, providing assistance, information, and legal and investigative support to various states also engaged in the global fight against impunity as well as to the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC).

All Program partners are represented in the Canadian government’s Interdepartmental Working Group for the International Tribunals, which examines the tribunals’ requests for assistance from Canada. They also work with the DOJ’s International Assistance Group (IAG)and Foreign Affairs and International Trade Canada (DFAIT) to support the international tribunals. The IAG reviews requests relating to war crimes or crimes against humanity for mutual legal assistance from foreign governments, international tribunals and the ICC.

Rome Statute of the International Criminal Court (ICC)

In the 1990s, Canada played a central role in establishing international involvement in pursuing perpetrators of war crimes and crimes against humanity, as well as promoting the creation of a permanent international court to bring to justice war criminals and perpetrators of crimes against humanity and genocide.

On December 18, 1998, Canada became the 14th country to sign the Rome Statute of the International Criminal Court. This Statute established the world’s first International Criminal Court (ICC) to help end impunity for the perpetrators of the most serious crimes of concern to the international community. In 2000, Canada enacted the Crimes Against Humanity and War Crimes Act, becoming the first country to implement the Rome Statute into domestic law.