Crimes Against Humanity and War Crimes Program


3. EVALUATION FINDINGS (cont'd)

3.3. Program Success (cont'd)

3.3.4 Meeting International Obligations

Summary Findings

There is a general consensus that the Program has made a positive contribution to Canada meeting its international obligations, mainly through:

  • A coordinated and integrated interdepartmental approach;
  • A robust legislative framework which is coordinated with international commitments;
  • International forums and maintaining attention on the issue of crimes against humanity and war crimes; and
  • Encouragement and support of other jurisdictions to follow suit.

It is clear that there is no international legal obligation for Canada to allow entry to those suspected of involvement in war crimes and crimes against humanity in order to facilitate their prosecution. The purpose of the policy is to deny safe haven to suspects either by refusing them entry, prosecuting them where reasonable criteria are met, or removing them. The international logic of this system argues that as fewer countries provide safe haven, the scope for impunity will be significantly diminished.

Canada can also argue that its program is well aligned with the approach to universal jurisdiction adopted in legislation in the Netherlands, assigning Dutch courts the authority to prosecute only when the suspect is resident in the Netherlands.

Evaluation Evidence

Departmental staff knowledgeable on the subject of Canada’s international legal obligations were unanimous in their view that the Program has assisted Canada in meeting its international obligations through its integrated, multi-departmental approach. They also pointed to the legislative framework discussed in Section 3.1.2 and the fact that it allows relevant Canadian law to be harmonized with the requirements of the Rome Statute and the operations of the ICC.

A few departmental respondents pointed out, however, that there seems to be a contradiction in the requirement to deny safe haven on the one hand, and, on the other, the restriction under the Convention Against Torture prohibiting Canada from removing some perpetrators to their country of origin. While the latter restricts the Program’s ability to deport some persons alleged to have been involved in crimes against humanity and war crimes, it is a restriction faced by similar programs in every country signatory to the Convention.

The staff of international partner organizations and of external stakeholder organizations in Canada also generally felt that the Program was assisting Canada in meeting its international obligations. They pointed out that Canada has also encouraged other countries to establish similar programs and to make similar contributions to meeting international standards. In particular, staff of international organizations expressed the view that without the Program, Canada would have little international credibility regarding efforts to meet its obligations under the Conventions outlined above.

A few respondents from Canadian external stakeholder organizations suggested, however, that care should be taken in focusing on denial of entry of suspected persons if those persons either do not face justice in their home countries or are successful in entering a country without an effective war crimes program. In their view, that outcome, while it may meet Canada’s goals, does not contribute effectively to the global goal of combating impunity.

On closer analysis, this reasoning has an important flaw. The Program’s goal is to deny safe haven in Canada to those involved in crimes against humanity and war crimes and to remove or prosecute them if they are resident in Canada. There is no international obligation to permit entry for the purpose of mounting an effective prosecution.

One country study provides insights on addressing international obligations. The Netherlands, in applying the doctrine of universal jurisdiction in its International Criminal Offences Act (2003), was very clear to establish jurisdiction for war crimes, provided that the alleged perpetrator is resident in the Netherlands.

3.3.5. Deterring Entry into Canada

Summary Findings

In summary, it is difficult to demonstrate with any level of certainty that the Program has deterred war criminals from entering Canada. At the same time, there is a general opinion among stakeholders and staff that the existence of the Program, with its range of remedies, including criminal prosecution, represents at least the minimum necessary deterrent.

Evaluation Evidence

Some respondents from program departments, international partner organizations and external stakeholder organizations in Canada felt that the Program was a reasonably effective deterrent because of the large number of persons denied visas to enter Canada over the life of the Program. They also argued that the existence of the CAHWCAand the willingness of the Program to seek criminal prosecution act as a deterrent, especially given the severity of the associated penalties.

One possible measure of the extent the Program may deter entry into Canada is found in annual data on program activities which might serve as a deterrent. This includes cases investigated abroad for war crimes and crimes against humanity where entry was refused or applications withdrawn as well as exclusions from refugee protection and removals (which may, by serving as an example, deter some of those involved from seeking entry into Canada).

In the five years from 2001/02 to 2005/06 (the period from the last evaluation in 2001 to the latest published data), the Program denied entry to 1,794 persons applying to enter Canada from abroad based on investigations related to war crimes and crimes against humanity (refused or withdrawn). In the same time period, it reported 306 exclusions and 221 removals from Canada for the same reasons, for a total of 2,321.

These numbers do not provide irrefutable proof of the deterrent effect of the Program since we do not know how many persons involved in these crimes decided not to attempt to enter Canada as a result of these activities. On the other hand, they do point to a significant number of those suspected of involvement who have been denied entry, excluded or removed from Canada.

3.3.6. Meeting the Objective of the No Safe Haven Policy

Summary Findings

Combining the quantitative data on outcomes and inventory levels with the views of interviewees and respondents, it is still difficult to arrive at a definitive statement of the extent the Program has met the ultimate objective of denying safe haven to those involved in crimes against humanity and war crimes.

It is clear, however, that results reported do show that significant numbers of persons suspected of involvement in crimes against humanity have been denied entry or removed from Canada as a result of program activities. Similarly, the existence and use of the option of criminal prosecution has demonstrated that those involved in crimes against humanity and war crimes face the risk of prosecution and conviction if they come to Canada.

There is an important question, however, relating to the fit between the size of the RCMP/DOJ modern war crimes inventory and the investigative resources available to the RCMP War Crimes Section (with support from the DOJ War Crimes Section). The stringent criteria for cases entering or remaining in the inventory that was established in the most recent PCOC File Review Policy Adjustment is that an allegation must be serious in nature and supported by robust evidence. If only a small minority of these cases can be actively investigated due to limitations in the human and financial resources of the RCMP War Crimes Section, this represents an important limitation on the Program's contribution to the objective of denying safe haven.

Evaluation Evidence

The strongest indicator of the extent the Program has met the ultimate objective of Canada's no safe haven policy is the type and volume of results reported since the last evaluation in 2001. The 9th Annual Report provides an overview of results for the six fiscal years from 2001/02 to 2005/06.

Table 10: Results in Application of Immigration Remedies as Reported by CIC and CBSA
Results 2001/02 2002/03 2003/04 2004/05 2005/06 Total
Entries prevented 445 355 242 385 367 1,794
Exclusions 51 73 63 79 40 306
Removals 46 48 44 42 41 221
Sub-Totals 542 476 349 506 448 2321
Interventions in RPD hearings 350 242 387 155 237 1,371
Cases reviewed abroad 1,797 2,103 2,300 2,651 3,024 11,875
Cases reviewed in Canada 2,186 303 2,740 2,077 1,405 8,711

Source: DOJ: 9th Annual Report of the Crimes Against Humanity and War Crimes Program. 2005/06

As the prospects of successful prosecutions are increasingly unlikely for WWII crimes, in recent years the Program has focused on revocation of citizenship. For example, the Program RMAF, published in 2006, indicated that at the end of 2004/05, the inventory for WWII cases included 246 initial allegations and 55 active investigative files. There were three WWII-related revocation cases in court and five WWII-related cases awaiting a possible recommendation to CIC for revocation at that time. In 2006/07, the number of active WWII files had been reduced to 20.

In 2007, four WWII cases were forwarded to the Governor in Council with a recommendation for revocation of citizenship and removal following a ruling by the Federal court in each case. Of those four cases, the Governor in Council approved revocation of citizenship in two cases.

The prosecution under the CAHWCA now before the courts represents the initial test case for criminal prosecution under the Act. It has gone some way to establishing the scale, cost and complexity of investigations and prosecutions of this type and can be expected to influence policy and practice under the Program going forward.

Considering the interview responses, over half of respondents from the Program departments and most of those from other federal government departments were unable or unwilling to give an informed response to the question of the overall impact of the Program on Canada's no safe haven policy. Among those that did give an opinion, however, most felt the Program had contributed to achieving the overall objective by preventing entries, excluding and removing suspects who have entered, and by demonstrating a willingness to undertake criminal prosecution where it is warranted.

External stakeholders were also generally uncomfortable with making an overall judgment on the effectiveness of the Program but a few felt that the Program was achieving generally positive results. Notably, 74 percent of respondents to the online survey of program department staff describe themselves as satisfied with the Program as a response to denying safe haven to those involved.

Some interviewees have argued that there is a major imbalance between the investigative staff resources (and operational budget) of the RCMP War Crimes Section and the size of the inventory of active modern war crimes files. They think that this imbalance argues for shifting more to the immigration remedies and reducing the inventory of criminal investigations. They also note that even if the inventory were halved by use of more stringent criteria, it would still exceed both the investigative capacity of the RCMP War Crimes Section and the budget for prosecutions available to the DOJ War Crimes Section.

3.3.7. Unintended Impacts and Effects of the Program

The evaluation methods used give light to two types of possible unintended impacts of the Program: possible negative effects on Canada's bilateral relations with some countries (already discussed under partnership in Section 3.2.5); and a possible rise in domestic demand for additional investigations and prosecutions. This potential increase in demand would be difficult to meet given current and expected levels of resources.

Some interviewees at Canadian advocacy organizations felt the Program may place less emphasis on prosecution as a remedy given the duration, complexity and apparent cost of one specific case. At the same time, they expect that the national and international media attention granted to the case may lead to a greater expectation among their constituents for more prosecutions at a faster pace.

While they argue there is a need for improved outreach and an increase in awareness-raising activities by the Program, they expect these to lead to greater public demand for prosecutions. Given the current level of resources provided to the Program for criminal investigations and prosecutions, it is hard to see how it could respond.

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