Indirect Enforcement: National Prosecution of the Core Crimes

• Author: Joseph Rikhof/Robert J Currie
• Pages: 264-326

264

CHA PTER 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 crime s before the domest ic court s of state s. Direct enforcement

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 i n the early 1990s and the International Crim inal Court (ICC)

and internationalized courts thereafter. However, as has been explored

in more detail in Chapters 3 and 4, these courts are exceptional; 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 tha n in

practice, since there has traditionally not been a great deal of willing-

ness on the part of states to prosecute such offenders. 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

national courts, with an emphasis on the Canadian context. A mostly

historical introduction will be followed by analysis of the primary

Canadian legi slative instrument, the Crime s Against Humanity and War

Indirect Enforce ment: National Prosecution of the C ore Crimes 265

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

Canada to involve itself in en forcement activ ities against the core crimes.

1) Overview: The Post-war World

The work of the Nuremberg and Tokyo tr ibunals 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 the aff‌irmation of the Nur-

emberg principles by the General A ssembly, the draft ing 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 t he Red Cross (ICRC) culminated in t he con-

clusion in 1949 of the Gene va Conventions.4 Moreover, in the immediate

aftermath of the war, there were thousands of war crimes tr ials, many

held by the victorious allies w ithin 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 govern-

ments of both East 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 tr ial elsewhere. Moreover, as the

Western world sought to move forward and strengthen the apparatuses

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

crimes waned even as v iolent conf‌licts continued to f‌lare. This was

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

1 SC 2000, c 24, online: http s://laws.justice.gc.ca /eng/acts/C- 45.9/index.html [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 Conven tions].

5 See, generally, Frank M Busche r, The U.S. War Crimes Trial Program in Germany,

1946 –1955 (New York: Greenwood Pre ss, 1989); Ant hony PV Rogers, “War Crimes

Trials Under the Roy al Warrant: British Pr actice, 1945–1949” (1990) 39 ICLQ 780.

6 See Pier Paolo Rivello, “The Prosecution of War Cr imes Committed by Nazi

Forces in Italy” (2005) 3 JICJ 422.

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW266

lack of willingness to tolerate inquiries into matters of internal affairs

sapped the motivation for political and legal cooperation to actively

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 Hum anity,7 for example, attracted only a luke-

warm reception. While the Ge neva Co nventio ns were ratif‌ied by many

states, there was litt le if any act ive use of the aut dedere mechanism, and

“few states adapted their legislation in such a way that traditional bar-

riers 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

beyond 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 militar y commander and head of the Jewish Off‌ice of the German

Gestapo during World War II, who was primarily responsible for the

“Final Solut ion.”11 Eichmann was abducted from his home in Argentina

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

agents, and smuggled into Israel to face tr ial for his World War II activ ities.

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

The adoption of the resolution w as passed by a vote of f‌ifty-eig ht in favour, seven

against, w ith thirty-six st ates (including Canada) absta ining. Canada is sti ll

not a party to th is Convention. It is debatable whether t he non-applicability 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 Int ernational Criminal Law a nd

Procedure, 4th (Cambridge: Cambr idge University Press, 2019) at 82–84. How-

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

tion of limitat ions, which makes the matt er mostly academic for many state s.

8 Christine van den Wyn gaert, “War Crimes, Genocide a nd Crimes Against

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

Bassiouni, e d, International Criminal Law, 2d ed (Ardsley, NY: Tran snational,

1999), vol 3, 227 at 230.

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

10 Aside from the Eichmann cas e, reviewed here, see also Fédération Nation ale

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

translat ion published in (1988), 78 ILR 125 (Fr Ct Ca ss Crim); Public Prosecutor

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

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

11 The Attorne y-General of the Governmen t of Israel v Eichmann (1968), 36 ILR 18

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

1962) (Eichmann (Sup Ct)) [Eichmann]. See, gen erally, LC Green, “The Eichmann

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

Brit YB Int’l L 181; Hannah A rendt, Eichmann in Jerusalem: A R eport on the Ban-

ality of Evil, rev ised and enlarged ed (New York: Penguin, 1992).