Indirect Enforcement: National Prosecution of the Core Crimes

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 227-289

227

CHAP TER 5

INDIRECT

ENFORCEMENT:

NATIONAL PROSECUTION

OF THE CORE CRIMES

A. INTRODUC TION

As discussed in Chapter 1, there are two enforcement models that can

be used to combat international crimes: the direct enforcement model,

which refers to the prosecution of perpetrators before international

courts that are set up expressly to try international law crimes; and

the indirect enforcement model, which refers to the prosecution of inter-

national crimes before the domestic courts of states. Direct enforce-

ment in the modern day has its roots in the Nuremberg and Tokyo

tribunals, and has seen rapid development since the establishment of

the ad hoc tribunals in the early 1990s and the International Criminal

Court (ICC) and internationalized courts thereafter. However, as has

been explored in more detail in Chapters 3 and 4, these courts are ex-

ceptional; to the extent that t he core crimes saw any signif‌icant amount

of prosecution prior to the late twentieth century, these prosecutions

were carried out by state courts. That said, it has often been the case

more in law than in practice, since there has traditionally not been a

great deal of willingness on the part of states to prosecute such offend-

ers. This has changed in the last twenty or so years, owing in no small

part to the success of the direct enforcement regime.

This chapter will survey the prosecution of the core crimes by na-

tional courts, with an emphasis on the Canadian context. A mostly his-

torical introduction wil l be followed by analysis of the primar y Canadian

legislative instrument, the Crimes Against Humanity and War Crimes Act

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW228

(CAH Act),1 as well as other legislative schemes that allow Canada to

involve itself in enforcement activities against the core crimes.

1) Overview: The Post-war World

The work of the Nuremberg and Tokyo tribunals perhaps represented

the peak of post-war willingness to pursue and prosecute perpetrators

of the core crimes, but there was a great deal of political and legal will

to use criminal justice to address some of the horrors of that conf‌lict.

At the inter national level, inter nationa l criminal justice mechanisms

were among the earliest tasks the f‌ledgling United Nations set for it-

self, and the f‌irst several years after its founding saw the aff‌irmation of

the Nuremberg principles by the General Assembly, the drafting and

conclusion of the Genocide Convention,2 and the beginning of work on

the Draft Code of Crimes against the Peace and Security of Mankind.3 The

work of the International Committee of the Red Cross (ICRC) culmin-

ated in the conclusion in 1949 of the Geneva Co nvent ions.4 Moreover,

in the immediate after math of the war, there were thousands of war

crimes trials, many held by the victorious allies within the European

countries they were occupying (as well as in Japan and Singapore),

while others were held by war-torn countries themselves: the United

Kingdom, France, Denmark, Finland, Belgium, the Netherlands, the

USSR, and China. The governments of both East and West Germany

prosecuted Nazi war criminals for decades.

However, it is debatable how much justice was actually dispen sed.

Many of the post-war trials were exercises in symbolism, and parole

and commutat ions of sentence were in com mon usage.5 Many Italian

war criminals were never prosecuted,6 nor did the Allied Powers ever

provide for their extradition to face trial elsewhere. Moreover, as the

Western world sought to move forward and strengthen the apparat-

uses of peace and stability, interest in pursuing the perpetrators of the

core crimes waned even as violent conf‌licts continued to f‌lare. This

1 SC 2000, c 24, online: http://l aws.justice.gc.ca/en/showtdm /cs/C-45.9 [CAH Act].

2 78 UNTS 277, entered into force 12 January 1951 [Genocide Convention].

3 GAOR, 51st Sess Supp No 10, UN Doc A/51/10 (1996).

4 (1950), 75 UNTS 31, 85, 135, and 287 [Geneva Conventions].

5 See, generally, Frank M Buscher, The U.S. War Crimes Trial Program in Germa ny,

1946 –1955 (New York: Greenwood Pr ess, 1989); Anthony PV Rogers, “ War

Crimes Tria ls under the Royal Warrant: Br itish Practice, 1945–1949” (1990) 39

ICLQ 780.

6 See Pier Paolo Rivello, “The Prosecut ion of War Crime s Committed by Nazi

Forces in Italy” (2005) 3 JICJ 422.

Indirect En forcement: National Prosecut ion of the Core Crimes 229

was exacerbated by the onset of the Cold War, where mutual suspicion

and lack of willingness to tolerate inquiries into matters of internal

affairs sapped t he motivation for political and legal cooperation to act-

ively combat and prosecute these crimes. Developments were modest;

the UN Convention on the Non-applicability of Statutes of Limitation to

War Crimes and Crimes against Humanity,7 for example, attracted only

a lukewarm reception. While the Geneva Conventi ons were ratif‌ied by

many states, there was little if any active use of the aut dedere mechan-

ism, and “few states adapted their legislation in such a way that trad-

itional barriers to such prosecutions would be removed.”8 While there

was no lack of perpetrators —Josef Stalin, Idi Amin, Pol Pot, perhaps

even Henry Kissinger9— the star appeared to have set on the cause of

international criminal justice.

The few domestic trials for international crimes that were held be-

yond the immediate aftermath of the war were noteworthy.10 Perhaps

the most famous was the tr ial in Israel of Adolf Eichmann, a prominent

Nazi military commander and head of the Jew ish Off‌ice of the German

Gestapo during W W II, who was primarily responsible for the “Final

Solution.”11 Eichmann was abducted from his home in Argentina in

May 1960 by individuals who were later revealed to have been Israeli

7 The Convention was adopted in UNGA Res 2391 (XXIII), 26 November 1968.

The adoption of the resolut ion was passed by a vote of f‌ifty-e ight in favour, seven

against, w ith thirty-six state s (including Ca nada) abstaining. Canad a is still

not a party to th is Convention. It is debatable whether th e non-applicability of

statutes of li mitations to these cr imes has achieved custom ary internation al law

status; see Rob ert Cryer et al, An Introduction to Int ernational Criminal Law an d

Procedure, 2d ed (Cambridge: Cambridge Universit y Press, 2010) at 78–79. How-

ever, art 29 of the Rome Statute, below note 23, expre ssly prohibits the applica-

tion of limitat ions, which makes the matter mo stly academic for many states.

8 Christine van den Wy ngaert, “War Crimes, Genocide and C rimes against

Humanity — A re States Taking National P rosecutions Seriously?” in M Cher if

Bassiouni , ed, International Criminal Law, 2d ed (Ard sley, NY: Transnationa l,

1999), vol 3, 227 at 230.

9 See Christopher Hitchens, The Trial of He nry Kissinger (New York: Verso, 2001).

10 Aside from the Eichmann case, reviewe d here, see also Fédération Nationale

des Déportés e t Internés Résistants et Patr iotes et Autres c Barbie (1985), English

translat ion published in (1988), 78 ILR 125 (Fr Ct Cass Cr im); Public Prosecu-

tor v Menten (1981), 75 ILR 331 (Neth Sup Ct); Polyukhovich v Commonwealth of

Australia (1991), 101 ALR 545 (HCA) [Polyukhovich].

11 The Attorney-G eneral of the Government of Israel v Eichman n (1968), 36 ILR 18

(Israel Dist Ct, 1961) (Eichmann (Dist Ct)) and (1968), 36 ILR 277 (Israel Sup

Ct, 1962) (Eichmann (Sup Ct)). See, generally, LC Green, “The Eichmann Ca se”

(1960) 23 Mod L Rev 507; JES Fawcett, “The Eichmann Case” (1962) 38 Brit YB

Int’l L 181; Hannah Arendt, Eichma nn in Jerusalem: A Report o n the Banality of

Evil, revise d and enlarged ed (New York: Penguin, 1992).