Indirect Enforcement: National Prosecution of the Core Crimes

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 214-268

214

cHA PteR 5

INDIRECT

ENFORCEMENT:

NATIONAL PROSECUTION

OF THE CORE CRIMES

A. IntRodUctIon

As discussed in Chapter 1, there are two enforcement models which

can be used to combat international crimes: the direct enforcement mo d-

el, 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 court s thereafter. However, as has

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

ceptional; to the extent that the 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 t he prosecution of the core crimes by na-

tional cour ts, with an empha sis on the Canadian context. A mostly his-

torical introduction will be followed by analysis of the primary Canadian

legislative instrument, the Crimes Against Humanity and War Crimes Act

Indirect Enforce ment: National Prosecution of t he Core Crimes 215

(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 international level, international criminal justice mechanisms

were among the earliest tasks the f‌ledgling United Nations set for itself,

and the f‌irst several years after its founding saw t he aff‌irmation of the

Nuremberg principles by the General Assembly, the drafting and con-

clusion 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) culminated in

the conclusion in 1949 of the Geneva Convention s.4 Moreover, in the

immediate aftermath of the war, there were thousands of war cr imes

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 UK, France, Denmark,

Finland, Belgium, the Netherlands, the USSR, and China. The govern-

ments of both Ea st and West Germany prosecuted Nazi war criminals

for decades.

However, it is debatable how much justice was actually dispensed.

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

and commutations of sentence were in common 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 S.C. 2000, c. 24, online: http://laws.justice.gc.ca /en/showtdm /cs/C-45.9 [CAH Act].

2 78 U.N.T.S. 277, entere d into force 12 January 1951.

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

4 (1950), 75 U.N.T.S. 31, 85, 135, and 287.

5 S ee, generally, Frank M. Buscher, The U.S. War Crimes Trial Program in Ger-

many, 1946–1955 (New York: Greenwood Press, 1989); Anthony P.V. Rogers,

“War Crimes Tria ls Under the Royal Warrant: Br itish Practice, 1945–1949”

(1990) 39 I.C.L.Q. 780.

6 S ee Pier Paolo Rivello, “The Prosecution of War Cri mes Committed by Nazi

Forces in Italy” (2005) 3 JICJ 422.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW216

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 the 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 Conventions were ratif‌ied by

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

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

itional barr iers 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 tr ials for international crimes that were held be-

yond the immediate aftermath of the war were noteworthy.10 Perha ps

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

Nazi military commander and head of the Jewish Off‌ice of the German

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

So lut i on .”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 resolution w as passed by a vote of f‌ifty-eig ht in favour, sev-

en against, w ith thirty-six st ates (including Canada) abst aining. Canada is st ill

not a party to th is Convention. It is debatable whether the non-applicabi lity of

statutes of li mitations to these cr imes has achieved custom ary internationa l law

status; see Rob ert Cryer et al., An Introduction to Inte rnational Criminal Law an d

Procedure (Cambridge: Cambri dge University Press, 2007) at 64 –66. However,

art. 29 of the Rome St atute, below note 23, expressly proh ibits the application of

limitation s, which makes the matter m ostly academic for many state s.

8 Christ ine van den Wyngaert, “War Cri mes, Genocide and Crimes Ag ainst

Humanity — Are St ates Taking National Prose cutions Seriously?” in M. Cherif

Bassiouni, e d., International Criminal Law, 2d ed. (Ard sley, NY: Transnat ional,

1999), vol. 3, 227 at 230.

9 See Chris topher Hitchens, The Trial of Henry Kissinger (New York: Verso, 2001).

10 Aside f rom the Eichmann case, reviewed here, see a lso Fédération Nationale

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

translat ion published in (1988), 78 I.L.R. 125 (Fr. Ct. Cas s. Crim.); Public Pros-

ecutor v. Menten (1981), 75 I.L.R. 331 (Neth. Sup. Ct.); Polyukhovich v. Common-

wealth of Australia (1991), 101 A.L.R. 545 (H.C.A.).

11 The Attorne y-General of the Governmen t of Israel v. Eichmann (1968), 36 I.L.R. 18

(Israel Dist. Ct., 1961) (Eichmann (Dist. Ct.)) and (1968), 36 I.L.R. 277 (Israel

Sup. Ct., 1962) (Eichmann (Sup. Ct.)). See, gene rally, L.C. Green, “The Eichmann

Case” (1960) 23 Mod. L. Rev. 507; J.E.S. Fawcett, “The Eichmann Case” (1962)

38 Brit. Y.B. Int’l L. 181; Hannah Are ndt, Eichmann in Jerusalem: A Re port on the

Banality of Evil, revi sed and enlarged ed. (New York: Penguin, 1992).