Sunday, May 24, 2009

On Universal Jurisdiction, Those Pesky Spanish Judges and Canada's War Crimes Legislation

The Washington Post looks at Spain's National Court justices, who seek to hold the United States and other nations accountable for alleged war crimes and crimes against humanity, wherever they have occured, based on the legal principle of universal jurisdiction:
Judges at Spain's National Court, acting on complaints filed by human rights groups, are pursuing 16 international investigations into suspected cases of torture, genocide and crimes against humanity, according to prosecutors. Among them are two probes of Bush administration officials for allegedly approving the use of torture on terrorism suspects, including prisoners at Guantanamo Bay, Cuba.
The judges have opened the cases by invoking a legal principle known as universal jurisdiction, which under Spanish law gives them the right to investigate serious human rights crimes anywhere in the world, even if there is no Spanish connection.
... Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue Scilingo, said the universal-jurisdiction cases have valuable secondary effects. Officials targeted by Spanish judges need to be careful about where they travel; Spanish arrest warrants are generally enforced throughout Europe but also sometimes in Mexico and other countries.
...Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.
In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.
More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.

Also see Wikipedia's article on universal jurisdiction, for a good backgrounder.

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Canada Convicts Rwandan War Criminal

Earlier this week, on May 22, 2009, a 42 year-old Rwandan man was convicted in the Quebec Superior Court on seven counts of genocide, war crimes, and crimes against humanity in Canada's first prosecution under the 2000 Crimes Against Humanity and War Crimes Act.  

Canadian Press  reported on the conviction:

MONTREAL — A Rwandan man accused of murdering and raping Tutsis during that country's bloody genocide some 15 years ago has become the first person ever to be convicted under Canada's war crimes legislation.

Lawyers for Desire Munyaneza immediately said they would appeal a Quebec Superior Court ruling that found their client guilty of seven charges stemming from war crimes committed during the 1994 Rwandan genocide.

Quebec Superior Court Justice Andre Denis said he was convinced that Munyaneza was guilty of all the charges against him, making Munyaneza the first person to be convicted under Canada's Crimes Against Humanity and War Crimes Act.

Munyaneza, a 42-year-old father of two, faced seven charges related to genocide, war crimes and crimes against humanity for his role in massacres and rapes near Butare, Rwanda, between April and July of 1994.

Sections 6 and 9 of the federal Crimes Against Humanity and War Crimes Act  (excerpted below) grant jurisdiction to Canadian courts over war crimes and related offences committed outside Canada including crimes involving torture and conspiracy to commit to torture: 

OFFENCES OUTSIDE CANADA

Genocide, etc., committed outside Canada

6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada

(a) genocide,

(b) a crime against humanity, or

(c) a war crime,

is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

Conspiracy, attempt, etc.

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.

Punishment

(2) Every person who commits an offence under subsection (1) or (1.1)

(a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) is liable to imprisonment for life, in any other case.

Definitions

(3) The definitions in this subsection apply in this section.
"crime against humanity" 
«crime contre l’humanitĂ© »

"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"genocide" 
«gĂ©nocide »

"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"war crime" 
«crime de guerre »

"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission...

PROCEDURE AND DEFENCES

Place of trial

9. (1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the 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.

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