THE LAWYERS WEEKLY

Thursday, September 3, 1999

Law would confirm Canada's role in International criminal court

Cristin Schmitz

Ottawa - The federal government is drafting a new law to ratify Canada's participation in a future International Criminal Court (ICC).

The planned legislation, which will include amendments to the Criminal Code and the new Extradition Act, could be tabled in the House of Commons as early as the fall, confirmed Donald Piragoff, general counsel with the

Department of Justice.

"I don't see it as being a contentious bill, "Piragoff said. "It really is geared very much toward giving us the ability to meet our treaty obligations under the Rome statute, and to be one of the first countries to

ratify the statute.

"It will ensure that Canada can provide co-operation to the International Criminal Court, surrender people to the court, and prosecute particular offences where we are required to prosecute under the treaty."

Piragoff said the second Preparatory Commission for the ICC, which took place at the United Nations in New York from July 26 to Aug. 13, ended with "significant progress" on the draft rules of procedure and evidence for the world court.

The permanent court, which requires 60 countries to ratify, is widely anticipated to be operating in three to five years, although optimists believe it could be as early as 2001. It will prosecute genocide, crimes against humanity and war crimes where governments fail to do so.

Countries at the preparatory commission agreed to empower the ICC to recognize various class privileges which could protect communications between doctors and patients, and war crimes victims and counselors, for example.

Heavy lobbying by the Vatican led to an agreement to give specific immunity to clergy from testifying about atrocities they hear about in the confessional. The Holy See prevailed, despite more than 30 priests and nuns

in Rwanda having been arrested for alleged roles in the 1994 genocide which killed more than half a million members of the Tutsi minority.

However, the privilege for sacred confessions will protect only the penitent, not clergy who are involved in war crimes.

Draft rules of procedure and evidence, which must be finalized by next June 30, must still be officially adopted. Also discussed at the preparatory commission were proposals to protect the rights of victims in war crimes prosecutions. "It looks like there will be recognition that victims do have a right to participate in the process," Piragoff said.

Pressure from developing countries produced agreement to establish a working group to define the crime of "aggression" by one state against another, and to define the role of the U.N. Security Council with respect to aggression. This crime would not be recognized until at least seven years after the court is created.

"The bottom line is that we've agreed to continue discussing it, but that it should not detract from the urgent work on the elements of crime and the rules of procedure and evidence," said Darryl Robinson, legal officer with the Department of Foreign Affairs. He said good progress was made on fleshing out definitions of the various war crimes, such as "sexual slavery, "pillaging" and "killing or wounding treacherously"(e.g., raising a white flag and then shooting the enemy between the eyes).

Robinson said Canada is advocating an expansive, more

"prosecutor-friendly" approach to defining war crimes, while other countries, notably the United States, prefer a more restrictive approach.

One side "is being careful about not being inadvertently too broad" while the other is concerned that the definitions not be so narrow that they exclude certain atrocities, he said.

He said the U.S., which has been strongly opposed to subjecting its citizens to ICC jurisdiction, seems to have modified its position somewhat. "One reaction being considered by the United States was to destroy the court or prevent it from coming into exxistence and they seem to have shifted away from that," he explained.

"Another U.S. approach was to 'fix' the statute by amending it and they seem to have shifted away from that as well. Now they are trying to find ways to increase their comfort, but at least they are trying to do it within the four corners of the statute."

Canada is "pleased with the very constructive attitude that we have seen in this preparatory commission and the amount of work that has been done, but at the same time we are always alert to the sheer volume of work that remains," Robinson added.

"There are still a lot of very complicated issues on the table still to be sorted out, such as the elements of 'crimes against humanity' and numerous procedural issues."

On Aug. 16 Canadian lawyer Phillipe Kirsch, the chair of the Preparatory Commission for the ICC and the former senior legal advisor to Foreign Affairs Minister Lloyd Axworthy, was appointed Canada's ambassador to Sweden.