Crimes Against Humanity and War Crimes Program Evaluation

5. Conclusions, Recommendation and Management Response

This final section of the report summarizes the conclusions and presents the recommendations and management response based on the findings of the evaluation. The information is structured along the main evaluation issues and questions.

5.1. Relevance

Is there a continued need for the CAHWC Program and a role for the federal government?

The evaluation confirmed there is a continued need for the Program. There is considerable evidence that crimes against humanity, war crimes, and genocide have been committed in the recent and ongoing non-conventional conflicts in Syria, Iraq, Central African Republic, Sudan, and South Sudan. These conflicts have resulted in mass displacements of people, including witnesses, victims, and perpetrators of such atrocities.

Within this context, the CAHWC Program remains relevant because it provides the coordination and expertise (through the RCMP and Justice) to investigate allegations of crimes against humanity, war crimes, or genocide. The Program also remains relevant as a coordinating point through which IRCC and the CBSA screen for inadmissibility under IRPA 35(1), ensuring perpetrators are identified before being able to seek refuge in Canada.

Does the Program meet government policy priorities and align with departmental strategic outcomes?

The evaluation found that the Program has aligned well with government policy priorities, including strengthening border security, maintaining the integrity of Canada’s immigration and refugee systems, improving the efficiency of the citizenship revocation process, and (in 2011) committing permanent funding to enforcing Canada’s no safe haven policy. The evaluation also found that while the Program is not specifically mentioned among its partners’ strategic outcomes, the essence of the Program is compatible with these strategic outcomes.

Is there still a role for the federal government to deliver the CAHWC Program?

As the federal government continues to fulfill its international obligation to provide safe haven to refugees, it must also fulfill its domestic and international legal obligations to exclude from refugee protection, extradite for prosecution by an international tribunal, revoke the citizenship and/or find inadmissible and remove perpetrators of atrocities. The federal government is also obliged to fulfill the principle of complementarity under the Rome Statute – which is to investigate and prosecute incidences of crimes against humanity, war crimes, or genocide that fall within Canada’s jurisdiction under the CAHWC Act. Demands under the principle of complementarity are likely to increase as the International Criminal Tribunal for the former Yugoslavia is winding down, while the one for Rwanda is already closed and the ICC reaches its capacity as well as its jurisdictional limits over nationals of states not party to the Rome Statute (e.g., Syria). In addition, given the scope and nature of the Program, the federal government’s responsibilities cannot be devolved to provincial/territorial governments.

5.2. Effectiveness – Performance

To what extent has the Program contributed to an increase in knowledge and awareness of the Program among stakeholders?

The evaluation found that partner staff have a high level of understanding about the Program and consider their own roles and responsibilities to be clear. Based on survey results and key informant interviews, the level of knowledge of the Program appears related to the length of time staff have worked in areas related to crimes against humanity, war crimes, and genocide as well as the partner for which they work. These findings indicate that efforts to build an understanding of the Program internally should focus on staff with five years or less experience.

To build knowledge of the Program internally and support partners’ capacity to deliver it, a variety of training activities have been undertaken as well as tools developed. There is a consensus that more training opportunities are needed, that mechanisms for delivering training need to be more inclusive of the regions (for IRCC and the CBSA), and that training programs for experienced staff are lacking (for Justice). The evaluation also found that tools, policies, and procedures are generally considered useful, but some require updating, such as the Enforcement Manual and Tactical Guide.

The Program’s knowledge management efforts, which support a coordinated approach by ensuring that relevant knowledge is shared, appear to have stalled or become dormant. This represents a risk for the Program as significant expertise resides in individual staff members; it is also a lost opportunity to improve Program efficiency.

External outreach to increase awareness of the Program is important for several reasons, including obtaining the assistance of diaspora communities in identifying persons believed to have committed crimes against humanity, war crimes, or genocide who have entered Canada. While the Program has continued to conduct outreach, the evaluation found that the Program has not followed through on suggestions to address identified gaps, such as developing a combined outreach plan among partners and conducting more outreach to groups in Canada, both of which were raised in the 2008 evaluation. Suggestions were to increase outreach with domestic and international NGOs, and victims/survivors and victims’ organizations to ensure diaspora communities are aware of the Program.

How well have allegations been managed under the Program?

The evaluation findings indicate that, in general, the Program has effectively managed allegations. The processes for identifying and screening allegations, investigating allegations, and selecting and implementing remedies were all considered well-managed by external stakeholders. In particular, Canada’s approach to admissibility screening was considered very effective and advanced compared to other jurisdictions. Investigations were characterized as well organized and detailed. The mechanism for selecting and implementing remedies, the File Review Subcommittee, has developed criteria for assessing files and assigning remedies, which is considered to generally work well and enable the Program to make the best decisions regarding how to direct its resources.

The evaluation identified some areas where the Program was experiencing challenges that affected its allegation management. In particular, the level of resources available has restricted the number of criminal investigations and prosecutions that can be undertaken. The Program funding level has not changed since 1998. As a result, some files that are identified as appropriate for criminal investigations and prosecutions remain in the criminal inventory but inactive. Coordination between the RCMP and Justice related to investigations is the subject of discussion between the partners and is considered a work in progress, particularly as it relates to the level of involvement by the CAHWC Section in investigations as well as the timing for involving the prosecutor from the PPSC. Both Justice and the RCMP acknowledge that the CAHWC Section would benefit from having more counsel with criminal prosecution experience.

Having a coordinated, multi-disciplinary program is considered by key informants to be a major benefit of the Canadian approach, yet at the same time sharing information among partners was cited as an area of improvement for the Program. Various strategies have been undertaken to improve information sharing, and some have been quite successful (the IRCC liaison person in the CAHWC Section), while others still need streamlining to remove duplication of effort among partners, such as the file transfer protocols developed between the RCMP and Justice and between Justice and the CBSA.

There is a clear consensus that the Program needs to improve its performance reporting. Performance reports are considered important for accountability as well as to build awareness of the Program. The most recent published performance report is for 2008–2011, which was noted by both internal and external stakeholders. In addition to more timely performance reports, the Program could also consider tracking individual-level progress through the remedy(ies). Current performance reporting is based on aggregate numbers and, while illustrative of the Program’s annual activities and outputs, it prevents the Program from linking these activities to its intermediate and ultimate outcomes and precludes the ability to more accurately assess the success rate and efficiency of remedies.

To what extent has the Program deterred and prevented persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide from coming to Canada?

The Program has prevented persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide from entering Canada. During the period covered by the evaluation, the number of visas applications assessed in overseas immigration offices for these crimes has averaged over 3,000 per fiscal year and Canada has denied 701 of these applicants entry. In recent years, the number of visas assessed overseas that were denied entry where commission or complicity in crimes against humanity, war crimes, or genocide was at issue has dropped substantially. The evaluation does not have information on the reasons for this decline.

Whether the Program has deterred individuals involved in these crimes from seeking entry into Canada cannot be determined with any certainty. However, the screening processes, the denial of entry, and the use of other remedies, including prosecutions, is thought to send a message to individuals involved or complicit in crimes against humanity, war crimes, or genocide, that Canada will not provide a safe haven.

To what extent does Canada protect Canadians and successfully remove persons believed to have committed or been complicit in crimes against humanity, war crimes, or genocide through the Program?

Performance data show use of all available remedies that will result in either removal or imprisonment of individuals who are believed to have committed or been complicit in crimes against humanity, war crimes, or genocide. For the time period covered by the evaluation, 140 individuals have been denied refugee protection, 47 claimants have been found inadmissible, and 138 individuals have been removed from Canada based on reasonable grounds to believe they were involved or complicit in crimes against humanity, war crimes, or genocide. In addition, the citizenship has been revoked from one individual and another has been imprisoned for life for involvement in crimes against humanity, war crimes, or genocide.

Whether these figures are an indication of success is more difficult to assess. For example, the number of removals per fiscal year has been declining since 2006. In addition, the number of outstanding warrants for removal remains at close to 200, which means that approximately 200 individuals reasonably believed to be involved in crimes against humanity, war crimes or genocide may potentially remain in Canada (some of these individuals might have left Canada without authorities’ knowledge). The available performance data are based on annual totals for each remedy.

How and to what extent has Canada demonstrated leadership regarding CAHWC issues?

The evaluation findings show that Canada is still considered one of the leading nations in the fight against impunity. This perception is based on Canada’s historic role in signing and implementing the Rome Statute, the early creation of a dedicated war crimes unit (which has influenced the approach of other countries), and playing a leading role in creation of the ICC. Canada continues to be a leader through the internationally renowned expertise within the CAHWC Program and through the development of influential jurisprudence on CAHWC issues.

However, the evaluation also found a strong undercurrent of opinion that Canada’s leadership has waned or is at risk of waning. A key theme within this undercurrent is that the international activities of the federal government do not align with Canada’s historic image as a leader on CAHWC issues. According to key informants, this has been exemplified through Canada’s absence from efforts to refer Syria to the ICC, opposition of Palestine’s ICC membership, and continued refusal to endorse budget increases for the ICC, despite its growing case load. Furthermore, Canada’s leadership in conducting prosecutions is questioned when compared to other established programs (Belgium) and even relatively new programs (Sweden) which have conducted more prosecutions than Canada in a shorter time period.

To what extent has the Program assisted Canada to meet its international obligations?

The evaluation found that Canada is meeting its international obligations through the available remedies, including denying entry to Canada, denying refugee status, and two prosecutions under the CAHWC Act. However, many key informants believe Canada’s ability to prosecute crimes against humanity, war crimes, and genocide has been constrained by inadequate funding. Several key informants were critical of Canada’s preference for immigration remedies, arguing this approach displaces international criminals, but does not hold them accountable. Arguably, while immigration remedies are Canada’s most cost-effective means of achieving the Program’s no safe haven outcome, this approach does not contribute to fulfilling the Rome Statute’s principle of complementarity and helps to create the impression of Canada’s leadership role waning.

The evaluation found Canada has done well in meeting its obligations for international cooperation and information sharing by working with international organizations such as INTERPOL and the EU Genocide Network, and establishing mutual legal assistance agreements, and other information sharing arrangements, with many international governments including Australia, UK, US, New Zealand, Croatia, Honduras, and Serbia.

5.3. Efficiency and Economy

To what extent has the Program achieved its results to date efficiently and economically?

The Program has implemented measures to maximize the achievement of its results, while minimizing the use of its resources. In particular, the file review criteria are intended to prioritize the least costly and complex remedy (denial of visas); use the next level of cost and complexity (refugee exclusion and deportation proceedings); and, when appropriate, escalate to the most costly and complex remedies (revocations and criminal investigations/prosecutions). Cost estimates and usage of the remedies indicate that the Program is allocating its resources efficiently based on the criteria. For example, when considering complex examples for each remedy, a visa application that raises crimes against humanity, war crimes, or genocide issues costs $6,280, compared to $55,162 for challenging refugee status, $122,908 for challenging admissibility and removal under IRPA, $1.58 million for citizenship revocation, and over $6 million for a criminal investigation and prosecution. Based on these estimates, a program with a $15.6 million budget clearly could not conduct many prosecutions of suspected war criminals.

Determining whether the Program is operating efficiently and economically or whether more resources could be provided to criminal investigations and prosecutions is hampered by the lack of financial data to support the analysis Two of the partner departments indicated that all Program funds were spent but could not provide information on whether expenditures were exceeded because the funding is A-base funding that is co-mingled with other resources Admissibility analysis under IRPA, which includes crimes against humanity, war crimes and genocide, is a programmatic function across the Operations Branch of the CBSA; therefore, the CBSA estimates it spends considerably more through its base funding. As a result, more than half of the Program budget can be accounted for only in general terms It would be helpful for future analysis to understand how the partners internally allocate resources to Program activities, including supporting activities such as knowledge management, training and Program coordination.

The Program has operated with the same budget since its inception in 1998, and opinion within the Program indicates that the strain of conducting its work within the available resources is showing. This is particularly the case with the RCMP, which has substantially exceeded its budget and had to use resources allocated to other mandates. The Program’s resource constraints have affected its ability to pursue criminal investigations and prosecutions.

The evaluation findings also indicate other areas for the Program to explore that might promote efficiency. In particular, an area that received a recommendation in the 2008 evaluation – information sharing among Program partners could still be improved. A shared database or virtual library so that research is not duplicated clearly still has support within the Program. The evaluation findings also support a review of the file transfer process so that relevant information gathered through investigations is provided when files are transferred from the RCMP to Justice and from Justice to the CBSA.

Another opportunity for efficiency gains is sharing information and collaboration among the Program, the DND, and GAC.

International information sharing could also produce efficiencies. Suggestions made by key informants were to share research information as well as information obtained through investigations among countries prosecuting modern war crimes. By sharing information, countries would ensure they are not duplicating efforts. Given the apparent under-resourcing in this area, the Program could explore opportunities to promote the sharing of information gathered through other countries’ investigations of modern day war crimes.

5.4. Program Design

Was the Program designed appropriately and did it operate in the manner intended?

The CAHWC Program was designed to be a coordinated, multi-disciplinary program. Both key informants and survey respondents believe that the coordinated approach is necessary and that the current legislative and policy framework is insufficient on its own to hold persons accountable who have committed crimes against humanity, war crimes, or genocide.

PCOC plays a valuable centralizing and coordinating role within the Program, providing the Program with the collaborative management structure it needs to prioritize cases and operate within the multi-departmental, multi-remedy approach to crimes against humanity, war crimes, and genocide. The Program has built upon the success of the Committee by introducing a PCOC secretariat, which is intended to improve administrative coordination among the partners. The ADM-level Steering Committee was generally recognized as an important component of the Program’s multi-departmental governance, but concerns were expressed over the Committee’s functionality and effectiveness, given the general lack of involvement of ADMs in the Committee.

The evaluation also found that the Program had undertaken substantial work to identify issues affecting program operation and organize efforts to resolve these issues. A number of innovative subcommittees have been established to improve the operation of the Program, such as the File Review Subcommittee, which has become a staple of the Program’s approach to allegation management. However, the work of some of these ‘problem solving’ subcommittees is often stalled due to various reasons, including a lack of funds and human resources. Consequently, several subcommittees that have been tasked with solving key ongoing operational issues, such as coordination and information sharing, have not reported on any results, nor is there evidence that the issues they were to address have been resolved. This leaves an open question over whether the governance structure is operating effectively (i.e., addressing all key issues) or efficiently (i.e., not wasting resources or effort on ultimately unnecessary initiatives).

5.5. Recommendation and Management Response

In order to strengthen the Program operations and governance, the following recommendation is submitted:

Recommendation

It is recommended that the Steering Committee undertake a review of the expected outcomes and the range and employment of remedies. Resources should then be aligned with the outcomes, with consideration of training and information-sharing needs. Finally, the governance should be considered, including terms of reference and membership for each committee/subcommittee to ensure that roles and responsibilities are clearly articulated and a lead is identified for each department to monitor performance and expenditures as well as liaise internally and amongst Program partners.

Management Response

Agreed. The Steering Committee will undertake an operational review of the Program.

The review will include a series of meetings commencing in the fall 2016 to:

  • Review the Final Report and consider its conclusions;
  • Examine the Program information, documents, files and databases reviewed for the evaluation and any other supplemental information, to inform the factual basis for the review discussion;
  • Discuss the activities and outcomes of the Program.

The Steering Committee will consider the following issues relating to the efficiency and effectiveness of the Program:

  • The nature and sources of Program funding;
  • Program governance structures and accountability;
  • The expected Program outcomes;
  • The range and employment of remedies available to the Program;
  • Training needs;
  • Information-sharing issues raised by Program partners; and
  • Other relevant issues raised by Program partners.

A document outlining the agreed implementation plan will be provided by the Steering Committee to the PCOC by March 2017.

Partners will put into operation the implementation plan, beginning in the 2017-18 fiscal year. PCOC members will report on the progress of implementation in their respective department/agency at regular PCOC meetings. PCOC will report to the Steering Committee on the progress of implementation.

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