RSS FeedAccountability for Genocide: Does Criminal Justice Prevent Future Atrocities?
Chaired by Professor William Schabas (Irish Centre for Human Rights), the panel included Professor Catherine Lu (McGill University), Professor Gary Bass (Princeton University), and Justice Richard Goldstone (Constitutional Court of South Africa, Prosecutor – International Criminal Tribunals for Rwanda and former Yugoslavia).
Key questions addressed by the panel:
- What is justice?
- What is the role of the International Criminal Court(ICC)? What is the role of the prosecutor? What type of prosecutor/legal actor is imagined to efficiently work within a system of justice?
- How do politics, the law, and morality intersect?
On justice
Professor Bass contrasted the “normal version” of criminal justice, “one murderer, one prosecution, one jail sentence” to international criminal justice, where a small number of people are prosecuted as a mostly symbolic gesture. A “perfect justice” is not always the solution, which may exceed the costs that the parties are willing to take.
On the role of the Court/role of the Prosecutor
The ICC is seen as a soft option for politicians, according to Bass, sending a message that “we care” or “we are paying attention,” without committing the necessary resources for economic sanctions or military intervention.
Lu described her ideal vision of actors within ICJ: judges and lawyers with a good political instinct, politicians who possess the same instinct and a commitment to justice. Bass concurred with his depiction of a jurist who thinks like a politician but doesn’t appear to be one.
Justice Goldstone relayed an anecdote about his experience as Prosecutor, confronted by an irritated UN Secretary General Boutros Boutros-Ghali, who expected to be consulted before the ICTY indictments. Goldstone emphasized the necessity of an independent Court and office of the Prosecutor, as outlined in Article 42, Section 1 of the Rome Statute. The role of the Prosecutor is to investigate and issue appropriate indictments, once sufficient evidence is available. The Prosecutor, not being privy to political negotiations, cannot be expected to make political decisions nor is it the Prosecutor’s role.
On law, politics and morality
There was consensus on the panel that if the political will is present, the Court can be effective, at least in prosecuting and punishing, if not in deterrence. Goldstone was adamant in stating that the global community must decide whether it wants an efficient ICC.
Tough questions still remained, many presented by Professor Lu throughout the session, such as: When should one prosecute? What happens when “justice” causes harm, or prolongs a war? Can the ICC be seen as a legitimate and independent authority? Should limited financial resources be devoted to an external legal system or to much needed areas of reconstruction in the aftermath of a genocide?
Professor Lu described the law as embedded within politics and morality, explaining that “laws don’t interpret and apply themselves.” Due to the nature of the crimes under its jurisdiction, the ICC finds itself embedded within external political struggles, while grappling with being recognized as a legitimate judicial authority. While the panel concluded that deterrence is a small section of the ICC’s scope of action, the appropriateness of ICC as a uniform institution for international criminal punishment is still called into question.
Rule of Law in Canada
Most law students have at least some appreciation for the concept of the rule of law. In addition to the concepts of federalism and responsible government, it is considered one of the cornerstones of Constitutional Law.
Hon. Eugene A. Forsey explains this principle in How Canadians Govern Themselves,
It means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law — not the government; not the Prime Minister, or any other Minister; not the Queen or the Governor General or any Lieutenant-Governor; not the most powerful bureaucrat; not the armed forces; not Parliament itself, or any provincial legislature.
This concept was best illustrated by a 1959 landmark case regarding Jehovah’s Witnesses in Quebec.
Bailing out JW’s is not a Crime
In Roncarelli v. Duplessis, [1959] S.C.R. 121, Roncarelli used revenues from a restaurant he owned to bail out Jehovah Witnesses arrested for distributing pamphlets. In a society primarily Catholic at the time, the actions were considered to be disrupting the peace.
Duplessis was both Attorney General and Premier of Quebec at the time. He revoked Roncarelli’s licquor license and denied any renewal, specifically to limit his ability to generate such funds.
Although the province was within its power to dismiss licences at its discretion, it must be impartial and compatible with enabling statutes.
The Rulings on the Rule of Law
The court ruled that there is no such thing as unlimited power. Rand J. stated,
In public regulation of this sort there is no such thing as absolute and untrammelled “discretion”
“…Discretion” necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted.
Because there was no reasonable reason for revoking the license other than impairing the financial ability of Roncarelli to post bail, the court considered this to be an arbitrary use of power and invalid.
Fallout from the Case
It took 13 years for Roncarelli to achieve a favourable ruling by the Supereme Court of Canada. By this time, Duplessis’ goal of running him out of business was successful, and worse still, Roncarelli died soon after the decision.
The case was cited by the later Supreme Court decision in Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721; (June 13, 1985). Contrary to the constitution, the province had been publishing laws in English only (and not French) for around 100 years. To demonstrate the illegality of the practice, Rand J. was quoted in Duplessis,
…the rule of law [is] a fundamental postulate of our constitutional structure.
From these cases, we can obtain three broad principles about the rule of law in the Canadian consitution:
1. Every act by a public official, regardless of the official’s rank must have the authority of a particular law.
2. The law must be applied in a manner directly related to its legislative and social purpose.
3. The law must be applied in a manner consistent with the Supreme law and consistent with the Constitution.
18 Conditions for Rule of Law
1. The state must uphold and enforce laws that it enacts.
2. All are equal before the law.
3. Courts must be impartial and unbiased, and must seem to be impartial and unbiased
4. There must be a separation of powers between 3 branches of power, especially judiciary, must be judicial independence; independence of political and executive power.
5. Must be consistent application of the law, i.e. across jurisdictions
6. There is no such thing as effective right without a remedy.
7. Judicial decisions should (must) be accompanied by reasons that are publicized.
8. The legal profession should be independent of state control.
9. Any judicial decision maker must apply natural justice to the proceedings. What is natural justice? Not natural law. Procedural justice, due process. In front of an unbiased court.
10. Courts should be open to all; unhindered access
11. Legal protection for the poor. This is becoming more important.
12. Restraints on the powerful.
13. Laws are to be enacted through a democratic and transparent process.
14. Laws should be known to all. Publicized and available to all. No secret laws.
15. All actions of the State must be authorized by law.
16. All actions of the State must be consistent with Constitution.
17. Courts should be open and transparent
18. Law and order are recognized as indispensable elements of life
Prevention of Genocide
Global Conference on the Prevention of Genocide
On October 11th, the Global Conference on the Prevention of Genocide begins in Montreal. The Echenberg Family Conference on Human Rights is organized by the McGill Centre for Human Rights and Legal Pluralism and the McGill University Faculty of Law.
The conference aims to facilitate a dialogue between policy-makers, NGOs, media, young leaders, and genocide survivors, in order to shift the focus on genocide from intervention to prevention. Notable speakers include Lt.-Gen. (ret.) Roméo Dallaire and Wole Soyinka.
Compiled on the conference website are:
- Selected links on genocide in the 20th century
- Links to UN activities relating to genocide prevention
Cases heard by international tribunals:
- International Criminal Trial for Rwanda
- International Criminal Trial for Former-Yugoslavia
- International Court of Justice
Domestic cases in the US and Canada:
- Presbyterian Church of Sudan v. Talisman Energy, Inc
- 2006 U.S. Dist. LEXIS 86609 (S.D.N.Y., Dec. 1, 2006)
- United States District Court for the Southern District of New York
- Mugesera v. Canada
- Supreme Court of Canada [2005] 2 S.C.R. 91, 2005 SCC 39
I will be blogging from the conference, focusing on the legal aspects of this complex issue.
Sessions over the 3-day conference include:
- Accountability for Genocide: Does Criminal Justice Prevent Future Atrocities?
- Can the ICC help stop the atrocities in Darfur?
- Inducing the Will to Act: Humanitarian Intervention and The Responsibility to Protect Against Genocide
- Making Prevention Feasible: Overcoming the Fear of Quagmire
Accountability for Genocide: Does Criminal Justice Prevent Future Atrocities?
Chaired by Professor William Schabas (Irish Centre for Human Rights), the panel included Professor Catherine Lu (McGill University), Professor Gary Bass (Princeton University), and Justice Richard Goldstone (Constitutional Court of South Africa, Prosecutor – International Criminal Tribunals for Rwanda and former Yugoslavia).Key questions addressed by the panel:
- What is justice?
- What is the role of the International Criminal Court(ICC)? What is the role of the prosecutor? What type of prosecutor/legal actor is imagined to efficiently work within a system of justice?
- How do politics, the law, and morality intersect?
On justice
Professor Bass contrasted the “normal version” of criminal justice, “one murderer, one prosecution, one jail sentence” to international criminal justice, where a small number of people are prosecuted as a mostly symbolic gesture. A “perfect justice” is not always the solution, which may exceed the costs that the parties are willing to take.
On the role of the Court/role of the Prosecutor
The ICC is seen as a soft option for politicians, according to Bass, sending a message that “we care” or “we are paying attention,” without committing the necessary resources for economic sanctions or military intervention.
Lu described her ideal vision of actors within ICJ: judges and lawyers with a good political instinct, politicians who possess the same instinct and a commitment to justice. Bass concurred with his depiction of a jurist who thinks like a politician but doesn’t appear to be one.
Justice Goldstone relayed an anecdote about his experience as Prosecutor, confronted by an irritated UN Secretary General Boutros Boutros-Ghali, who expected to be consulted before the ICTY indictments. Goldstone emphasized the necessity of an independent Court and office of the Prosecutor, as outlined in Article 42, Section 1 of the Rome Statute. The role of the Prosecutor is to investigate and issue appropriate indictments, once sufficient evidence is available. The Prosecutor, not being privy to political negotiations, cannot be expected to make political decisions nor is it the Prosecutor’s role.
On law, politics and morality
There was consensus on the panel that if the political will is present, the Court can be effective, at least in prosecuting and punishing, if not in deterrence. Goldstone was adamant in stating that the global community must decide whether it wants an efficient ICC.
Tough questions still remained, many presented by Professor Lu throughout the session, such as: When should one prosecute? What happens when “justice” causes harm, or prolongs a war? Can the ICC be seen as a legitimate and independent authority? Should limited financial resources be devoted to an external legal system or to much needed areas of reconstruction in the aftermath of a genocide?
Professor Lu described the law as embedded within politics and morality, explaining that “laws don’t interpret and apply themselves.” Due to the nature of the crimes under its jurisdiction, the ICC finds itself embedded within external political struggles, while grappling with being recognized as a legitimate judicial authority. While the panel concluded that deterrence is a small section of the ICC’s scope of action, the appropriateness of ICC as a uniform institution for international criminal punishment is still called into question.
A Legal Obligation to Prevent Genocide
The panel on Making Prevention Feasible, chaired by Prof. Stephen Toope, focused on the proposal for a UN Emergency Peace Service, how to affect the inertia which plagues government action, and how to train negotiating parties for effective collaboration.
During the discussion, Dr. Jerry Fowler (US Holocaust Memorial Museum) described what he saw as the current normative environment with regards to preventative action and current international law on genocide. Fowler noted his skeptical views on the effect of the International Court of Justice‘s Bosnia v. Serbia ruling, which emphasized the duty to prevent genocide (Article 1 of UN Convention on Genocide).Fowler’s argument is that the duty to prevent is limited by the implied qualification, “with the means available under the current circumstances.” In short, the government will do what it can. Fowler notes that the judgment on what one can or cannot do is a political judgment, not a legal one. Therefore, the determination that certain atrocities are genocide will not influence the outcome of what the government is willing to do. He gave the example of Colin Powell on Darfur; the “legal” determination or use of the term genocide did not change the US government’s actions.
He emphasized that governments will not act out of a legal obligation to international law but out of a political necessity. This gap between law and politics needs to be filled by “constituencies of conscience,” Fowler claims, to create this political necessity and refocus how governments can act towards prevention.
Prof. Schabas provided a counterpoint to Fowler’s argument, indicating that the Bosnia v. Serbia holding did cause a change in thinking about genocide prevention. He explained that in 1994 during the Rwandan genocide the Security Council members interpreted the genocide convention as an obligation to prevent genocide only within their own countries. With the Serbia ruling, the legal argument provides additional momentum to the movement for the prevention of genocide internationally.
Prof. Toope addressed the two arguments and reminded the audience that it is not necessary to think of the evolution of legal obligation separately from the development of constituencies of conscience. This interaction depends on one’s concept of law, and how one sees law as being created. Toope recommended further reading on this topic in Emmanuel Adler‘s work on communities of practice.
The Role of the ICC Prosecutor
The session on Making Prevention Feasible and the discussion with Luis Moreno Ocampo revealed two different conceptions of the role of International Criminal Court (ICC) prosecution.
Prevention and the Role of Prosecutor
Justice Richard Goldstone described the role of Prosecutor as constrained by the specific limits authorized by the Rome Statute. Goldstone emphasized the Prosecutor’s duties as external to the political process of negotiations to end armed conflict, which are often concurrent to investigation and indictment.
During the discussion between Professor Akhavan of the McGill Centre for Human Rights and Legal Pluralism and ICC Prosecutor Moreno Ocampo, there was a clear shift in imagining the prosecution’s role in current conflicts, such as Darfur. Ocampo described a two-fold function of the Prosecutor’s office:
- The duty to investigate past and present crimes
- To contribute to the prevention of crimes
Moreno Ocampo sees prevention and deterrence at the heart of the Rome Statute, which authorized the ICC (see Preamble). He views the Darfur conflict as a testing model to see how law can be used to prevent atrocities. Enforcing the ICC’s arrest warrant for Ahmad Haroun will prevent future crimes in Darfur, according to Moreno Ocampo.
Constraints to Prosecutor’s office
Like Goldstone, Moreno Ocampo recognizes the constraints of the ICC, a judiciary without an analogous institution to domestic police to enforce its warrants. Ocampo has a holistic view which involves pressure from civil society to influence political will of national governments. The legitimacy and accountability of the ICC can be imagined as developing within this framework of practice, not from statutory law.
Another problem Ocampo notes is that “there will never be enough justice.” The ICC’s work should be seen as one part of a whole, a complement to other forms of justice, such as Truth & Reconciliation Commissions, and humanitarian work. He mentioned the lack of legal criteria on determining who to bring to trial. In the case of Nuremberg, he recounted that the number of people tried at each case, twenty-two, was determined by the number of chairs available in the courtroom.
Deterrence
In contrast to the previous panel, Ocampo sees the ICC as being an effective deterrent, especially in the case of military action. The ICC’s impact on reviewing the rules of engagement in Afghanistan and general military policies to avoid prosecution in the Hague has been significant.
Complementarity
Sudanese human rights lawyer Salih Mahmoud Osman questioned the concept of ICC’s complementary jurisdiction, as stated in the Preamble of the Rome Statute. Professor Akhavan described the relation as follows: If domestic courts are willing and able to prosecute, the ICC has agreed to not exercise its jurisdiction. Osman emphasized the importance of privileging ICC’s jurisdiction. In the case of Sudan, there are no crimes against humanity enumerated in the penal code.
Osman reiterated the necessity to support the ICC and to generate political will for its effective functioning through pressure on national governments. Adding to this equation, Moreno Ocampo further emphasized the need for effective lobbying on the international level.
All proceedings from the Global Conference on the Prevention of Genocide are now online.
Global Conference on the Prevention of Genocide
On October 11th, the Global Conference on the Prevention of Genocide begins in Montreal. The Echenberg Family Conference on Human Rights is organized by the McGill Centre for Human Rights and Legal Pluralism and the McGill University Faculty of Law.
The conference aims to facilitate a dialogue between policy-makers, NGOs, media, young leaders, and genocide survivors, in order to shift the focus on genocide from intervention to prevention. Notable speakers include Lt.-Gen. (ret.) Roméo Dallaire and Wole Soyinka.
Compiled on the conference website are:
- Selected links on genocide in the 20th century
- Links to UN activities relating to genocide prevention
- Cases heard by international tribunals:
- Domestic cases in the US and Canada:
- Presbyterian Church of Sudan v. Talisman Energy, Inc, 2006 U.S. Dist. LEXIS 86609 (S.D.N.Y., Dec. 1, 2006) United States District Court for the Southern District of New York
- Mugesera v. Canada, Supreme Court of Canada [2005] 2 S.C.R. 91, 2005 SCC 39
I will be blogging from the conference, focusing on the legal aspects of this complex issue. Sessions over the 3-day conference include:
- Accountability for Genocide: Does Criminal Justice Prevent Future Atrocities?
- Can the ICC help stop the atrocities in Darfur?
- Inducing the Will to Act: Humanitarian Intervention and The Responsibility to Protect Against Genocide
- Making Prevention Feasible: Overcoming the Fear of Quagmire
Law is Cool – Podcast #5
Show Notes
(7:39 Total Running Time)
0:14 Jacob Kaufman and Omar Ha-Redeye introduce themselves
0:22 The Law is Cool Blue Jays giveaway is mentioned
0:48 Audio comments from the University of Western Ontario are introduced, featuring Dave McKenna, Chris Boyko, Dana Lord and Will Hooper
2:06 Jacob shares the historical common origin of tort and criminal law
2:45 Omar mentions the imbalance of powers between tort law and criminal law
3:51 Jacob shares his thoughts on Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, 2004 SCC 4
(n.b. the decision wasn not 6-1 it was 6-3, with 1 person dissenting in part)
4:22 Jacob cites the Criminal Code s. 43, the challanged law.
4:50 Jacob cites Foundation for Children, Youth and the Law v. Canada at para. 40 explaining the majority opinion’s new construction of s. 43.
5:13 Jacob cites Foundation for Children, Youth and the Law v. Canada at para. 190 quoting Justice Arbour’s list of the contortions the majority had to go through to reach that new construction.
6:01 Jacob cites R. v. Malmo-Levine; R. v. Caine at para. 133 to show why Parliament, not the court, would have been the better body to rewrite s. 43.
7:01 Omar signs off
Combating Discriminatory Publications in Ontario
After reading R. v. Keegstra one might assume that protecting “identifiable groups” from hate communications is an objective maintained through all levels of government and their subsidiary agencies. For we live in a country that prides itself in free expression.
Our highest Court acknowledges that hate speech laws are justifiable to the extent of limiting this Charter right. Further, this form of governmental regulation expresses “our society’s collective disapprobation” that is “harmful to target group members and threatening to harmonious society.”
However, target groups and ethnic communities in particular, neither have the means, legal representation or money to pursue such a charge against large-scale media conglomerates, who, more often than not, are the assailants spreading such propaganda.
In addition to criminal proceedings there are other remedies that target groups may pursue. The following is a brief overview of the legal and non-legal remedies to combating discriminatory publications.
After that, a comparison is made between the Ontario and British Columbia Human Rights Commissions. Interestingly, the BC Human Rights Code contains provisions that are absent in Ontario’s Human Rights Code which are more generous to target groups.
The absence of such provisions makes it nearly impossible for Ontarians to seek any remedy through this avenue.
Remedial Avenues
1. PROFESSIONAL ASSOCATIONS / PRESS COUNCILS
· Generally: impartial third party groups supported by the journalism and media industry to provide a forum for reader complaints.
· Features: Provide guidelines on professional standards of journalism and have the power to censure journalists and newspapers when they do not abide by guidelines.
· Problem: Membership in Press Councils is voluntary; the primary published of discriminatory material do not subscribe
· Conclusion: Ineffective against the primary organizations engaged in publishing discriminatory material targeting identifiable communities.
2. HATE SPEECH LAWS
· Features: Criminal onus of guilt (beyond reasonable doubt) must be satisfied·
Additional Requirement: Consent of Attorney General required for prosecution
· Problem: Very difficult successfully prosecute a media organization for a discriminatory publication targeting an identifiable community; constitutionality of hate speech laws is not beyond doubt.
3. CIVIL (DEFAMATION) LAW
· Problem: No recognition of Community Defamation ® No remedy exists at civil law
4. HUMAN RIGHTS CODES
a. Ontario Human Rights Code (HRC):
· Limitation: Does not cover discriminatory publications targeting identifiable communities
· Conclusion: Provides no remedy for discriminatory publications targeting identifiable communities.
· S. 13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.b.
b. British Columbia Human Rights Code (HRC):
· Scope: Include publications in newspapers and magazines that target an identifiable community.
· Conclusion: Provides an effective and affordable means of accountability for publishers of discriminatory material targeting identifiable communities.
· S. 7 (1): A person must not publish, issue or display … any statement, publication, notice, sign, symbol, emblem or other representation that (a) Indicates discrimination or an intention to discriminate against a person or a group or class of persons, or(b) Is likely to expose a person or a group or class of persons to hatred or contemptbecause of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.
CONCLUSION
In Ontario, it is possible to publish discriminatory material targeting identifiable communities with no significant legal consequences.
One L, Life is Hell (a Law School Musical)
One month in, some time to relax with a skit we can all relate to.
Puffing on the Carbolic Smoke Ball
The case of the Carbolic Smoke Ball is perhaps the most famous contract case of all time, demonstrating some important fundamentals.
In Leonard v. Pepsico, Inc., 88 F.Supp.2d 116 (1996), Wood J. stated,
Long a staple of law school curricula, Carbolic Smoke Ball owes its fame not merely to “the comic and slightly mysterious object involved”… but also to its role in developing the law of unilateral offers.
Background
In Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256, the Carbolic Smoke Ball Company advertised anyone who took medication using their smoke ball product as directed would not contract influenza, guaranteed by a reward of £100.
Mrs. Carlill used the product as directed, but still caught influenza and sought the guarantee. The company rebuked the claim and said that it was not an offer.
Their rational was that Mrs. Carlill had not notified them of the acceptance of any offer.
They also claimed in their defence mere “puffery,” or exagerrated claims for promotional purposes. An offer, they claimed, cannot be made with the entire world.
Unilateral v. Bilateral Contracts
The court stated that advertisements are generally invitations to treat. This was not a contract made with the whole world, but an offer made to the whole world.
A company is able, if so foolishly inclined, to make such extravagant offers to the general public. Just because an offer is extravagant, doesn’t mean the company is not bound by it.
The advertisement in this case constituted a unilateral contract, which only require performance for acceptance, as opposed to bilateral contracts that require mutual promises.
This was confirmed by the subsequent case, Goldthorpe v. Logan, [1943] 2 DLR 519 (Ont CA), which found that if an offer is made to the public using an advertisement, any member of the public is free to lend themself to the terms and conditions.
Contemporary Cases of Puffery
In Leonard v. Pepsico, Inc., the defendant sought to claim an airplane from Pepsi based on a points program promoted in an ad.
However, in this case the judge found that the ad did not constitute an offer because no reasonable person would have seriously expected to collect on the offer of 7 million points, or expect to receive a military grade fighter jet.
Over a decade ago, the National Conference of Commissioners on Uniform State Laws sought to amend the Uniform Commercial Code in the U.S.
The intent was to shift the burden of proof to the defendants to demonstrate that a reasonable person will not normally be misled by extravagant advertising claims.
The reasonable person, a fictitious figure used by the courts, is probably the most influential persona in the Common Law system.
Resources
David A. Hoffman. (2006). The Best Puffery Article Ever. 91 IOWA LAW REVIEW.
