Duty to Prevent and Punish Torture

 

Canada has legal obligations to exercise powers to prevent and punish torture arising from:  

 

o   laws passed by Parliament including the Crimes against Humanity and War Crimes Act, The Criminal Code of Canada, The Canadian Charter of Rights and Freedoms, The Immigration and Refugee Protection Act, and The Geneva Conventions Act; and,

 

o   international instruments to which Canada is a signatory including the:  Rome Statute of the International Criminal Court, Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment, Geneva Convention Relative to the Treatment of Prisoners of War, Geneva Convention relative to the Protection of Civilian Persons in Time of War, The Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International and Non-International Armed Conflicts and Charter of the United Nations.

 

A.                United Nations Instruments

 

1945: The United Nations Charter itself sought to make rights universal and to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained,” Preamble, paragraph 3.  The Charter is founded on the premise that peace can only be obtained and maintained when all states operated “in conformity with the principles of justice and international law” (Article 1), enshrined the rule of law and fundamental freedoms in national systems and worked cooperatively to ensure the universality of fundamental freedoms. (Articles 2, 3, 55(c), 56.

 

The Purpose of the UN Charter is to prevent war and achieve and maintain international peace and security by establishing universal human rights and the rule of law.  The Charter also embodies the principle of the sovereignty of states and prohibits military intervention except where sanctioned by the Security Council. Sovereignty is secondary to the protection of fundamental human rights.  While sovereignty can be overridden by the Security Council or by the General Assembly, in order to re-establish peace and human rights, there is no similar provisions whereby human rights can be displaced to re-establish sovereignty. Indeed, in the case of torture, the Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment (CAT),  specifically provides that freedom from torture overrides threats to sovereignty. (Article 2)

The UN General Assembly has re-stated the necessity of member states taking effective action to prevent and punish war crimes and crimes against humanity. (torture is a war crime and a crime against humanity)

 

1949: The Geneva Conventions

Canada has ratified all four of the 1949 Geneva Conventions and the two Optional Protocols of 1977.  The four Geneva Conventions came into force in Canada 14 November 1965.  The two Optional Protocols on 20 May 1991.

 

o    The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of August 12, 1949 (GCI)

o    Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of August 12, 1949 (GCII)

o    Geneva Convention relative to the Treatment of Prisoners of War, of August 12, 1949 (GCIII)

o    Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949 (GCIV)

 

The Geneva Convention Relative to the Treatment of Prisoners of War (GC III) specifically prohibits not only torture but also all forms of coercion on prisoners of war:

 

Article 17: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.  Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”

 

Geneva Convention relative to the Treatment of Prisoners of War (GC III), Article 130 III  and Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), Article 146 impose a duty on Canada to:  

 

“…enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.”

 

“…search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” Or

 

“…hand such persons over for trial to another High Contracting Party concerned, provided that such High Contracting Party has made out a prima facie case.”

 

“…take measures necessary for the suppression of all [other] acts contrary to the provisions of the present [ Geneva ] Convention…”

 

1969: 15 December 1969 by resolution, the UN General Assembly called on member states to ‘take necessary measures to investigate war crimes and crimes against humanity including torture, and to ‘detect, arrest, extradite and punish’ perpetrators. This resolution was based on the collective awareness that punishment of persons responsible was an “important element” in the prevention of such crimes. (U.N. G.A. Res. 2583 (XXIV) 15 December 1969, Preamble para. 3 and Article 1)

 

1975:  Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975 articulated the duty of each state to “ensure that all acts of torture are offences under its criminal law”, to investigate allegations of torture and, when torture appears to have been committed, to institute criminal proceedings against the alleged offender(s) “in accordance with national law.” (Article 9)

 

1987: Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment

As a signatory to The Convention against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment  (24 July 1987) Canada is required to arrest persons alleged to have committed, or been complicit in torture, and to detain them until criminal or extradition proceedings are implemented. Article 6.1                                                   

 

Duty to Prosecute or Extradite: Convention Against Torture                                      

6.1. “Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 [torture] is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.”

 

Jurisdiction to Prosecute: Convention Against Torture                                    

Canada was obliged by Article 5 of CAT to create an expanded jurisdiction to prosecute torture.

Article 5. 2. “Each State Party shall likewise take measures as may be necessary to establish its jurisdiction over such offences [shall ensure that all acts of torture, including attempts, complicity or participation] in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this Article.”

 

No Justification: Convention Against Torture

Articles 2.1, 2.2  prohibits the use of torture in the name of ‘military necessity.

 

2.1. “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” 

2.2. “An order from a superior officer or a public authority may not be invoked as a justification of torture.”

December 2000:  Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recommended by General Assembly Resolution 55/89 of 4 December 2000.  The stated purpose of these principles is to--through investigation and prosecution--establish individual and State responsibility for torture and to demonstrate the need for full reparation and redress from the responsible state. http://www.ohchr.org/english/law/investigation.htm

July 2002: The Rome Statute of the International Criminal Court 

Canada is bound by the Rome Statute of the International Criminal Court  (signed 18 December 1998 and ratified 7 July 2000) which defines torture as a war crime (Article 8 (2) (a) (ii)) and bars all immunity for torture and other war crimes, crimes against humanity and genocide.

 

No Immunity from Prosecution: Rome Statute of the International Criminal Court

“27.1 This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”

 

Duty to Prosecute: Rome Statute of the International Criminal Court

The purpose of the Rome Statute of the International Criminal Court is to put “…an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” Ratifying states such as Canada have a duty to vigorously pursue investigation of allegations of Rome Statute violations and prosecutions of alleged perpetrators.

Canada has implemented all its obligations to cooperate arising from ratification of the Rome Statute by passing the Crimes against Humanity and War Crimes Act and by amending the Extradition Act, the Mutual legal Assistance in Criminal Matters Act and the Criminal Code.

 

April 2005: Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Violations of International Human Rights and Serious Violations of International Humanitarian Law, adopted in April 2005 by the 61st session of the Human Rights Commission. This is a groundbreaking document that takes as its starting point the needs and wishes of the victims themselves, and constitutes the first compilation of the already existing obligation of States regarding victims' right to reparation.

 

Preamble, paragraph 8, “Recalling that international law contains the obligation to prosecute perpetrators of certain international crimes in accordance with international obligations of States and the requirements of national law or as provided for in the applicable statutes of international judicial organs, and that the duty to prosecute reinforces the international legal obligations to be carried out in accordance with national legal requirements and procedures and supports the concept of complementarity,” (paragraph 8 of the Preamble) 

 

The Guidelines go on to state, in clear language the duty of states to “investigate [violations of international human rights and humanitarian law] and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him.”(Article 4) [1]

 

February 2007: Torture and other cruel, inhuman or degrading treatment or punishment. This resolution adopted by the UN General Assembly 14 Feb. 2007, A/RES/61/153, specifically condemns all attempts to legalize torture or other cruel, inhuman or degrading treatment and emphasizes that torture is a violation of international humanitarian law, can be a war crime or a crime against humanity and emphasizes the primary duty of states to take effective action to investigate, prosecute and severely punish all acts of torture (paras. 2. 5. 6). The resolution also notes in paragraph 12 that “prolonged incommunicado detention or detention in secret places…can in itself constitute a form of [torture]…”

http://www.ohchr.org/english/issues/torture/rapporteur/docs/a_res_61_153.pdf

B.        Canadian Laws

 

I           Geneva Conventions Act R.S. 1985, c. G-3

Offences

Grave breaches of the Geneva Conventions that are offences under Canada ’s Geneva Conventions Act:

 

“wilful murder, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health,”

“wilfully depriving a prisoner of war of the right of fair and regular trial prescribed in this Convention.”

“extensive destruction and appropriation of property , not justified by military necessity and carried out unlawfully and wantonly.”

“unlawful confinement” (of civilians)

 

Jurisdiction to Prosecute: Geneva Conventions Act

Article 3 of the Geneva Conventions Act gives Canada the jurisdiction to prosecute ‘grave breaches’ including offences committed outside Canada by a person or persons not in Canada . Proceedings can be commenced in any territorial jurisdiction within Canada . 

The written consent of the Attorney General of Canada is required to commence proceedings.

 

Duty to Prosecute: Geneva Conventions Act

Geneva Convention relative to the Treatment of Prisoners of War (GC III), Article 130 III and Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), Article 146 impose a duty on Canada to:  

 

“…enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.”

 

“…search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” Or “…hand such persons over for trial to another High Contracting Party concerned, provided that such High Contracting Party has made out a prima facie case.”

 

“…take measures necessary for the suppression of all [other] acts contrary to the provisions of the present [ Geneva ] Convention…”

II.        Immigration and Refugee Protection Act 2001 c. 27 (IRPA), section 35 bars entry to foreign nationals when there are reasonable grounds to suspect involvement in a variety of acts including committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act or being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act. 

III.       Criminal Code of Canada : TORTURE

Section 269.1 of the Criminal Code mirrors the definition of torture in Article 1 of the Convention against Torture and defines torture as an act or omission:

·          by which severe physical or mental pain or suffering is intentionally inflicted on a person,

·          carried out for the purpose obtaining information, punishing, intimidating or coercing. 

·          at the instigation of or with the consent or acquiescence of an official.

 

Section 269.1 (1) Every official, or every person acting at the instigation of or with the consent of or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

(2) For the purposes of this section,

“official” means

(a)    a peace officer,

(b)   a public officer,

(c)    a member of the Canadian Forces, or

(d)   any person who may exercise powers, pursuant to a law in force in a foreign state, that would, in Canada be exercised by a person referred to in Paragraph (a), (b), or (c),

(e)    whether the person exercises powers in Canada or outside Canada ;

    “torture” means any act or omission by which severe pain or suffering, whether physical or mental, in intentionally inflicted on a person

(a)    for a purpose including

 

IV.       Crimes against Humanity and War Crimes Act

Canada was the first country to introduce comprehensive legislation incorporating the provisions of the Rome Statute for the International Criminal Court into domestic law with the proclamation of the Crimes Against Humanity and War Crimes Act.  Seventh Annual Report Canada ’s Program on Crimes Against Humanity and War Crimes, 2003 – 2004, p.4.

 

Jurisdiction to Prosecute: Crimes against Humanity and War Crimes Act

This Act gives Canada jurisdiction to prosecute anyone present in Canada suspected of committing, conspiring or attempting to commit genocide, crimes against humanity and war crimes including torture (a war crime) wherever and by whoever and against whomever such crime is alleged to have been committed. (sections 6 and 8)

 

Authority to Commence Prosecution: Crimes against Humanity and War Crimes Act

No prosecution can be commenced without the written consent of the Attorney General of Canada and the Attorney General of Canada must conduct prosecutions. (section 9)

 

Liability of Commanders and Superiors: Crimes against Humanity and War Crimes Act

Military commanders and superiors commit the offences if such person:

                             

‘fails to exercise control or to take necessary and reasonable preventative measures and offences are committed as a result.’ (Sections 5 – 8)

 

V.        Program on Crimes Against Humanity and War Crimes

Canada's War Crimes Program, a joint initiative of the Department of Justice Canada (DOJ), the Canada Border Services Agency (CBSA), and the Royal Canadian Mounted Police (RCMP) either keep war criminal and those responsible for crimes against humanity out of Canada or to take appropriate actions against such people including investigation, prosecution or extradition.

“The policy of the Government of Canada is unequivocal. Canada will not be a safe haven for persons involved in war crimes, crimes against humanity or other reprehensible acts.” Seventh Annual Report Canada ’s Program on Crimes Against Humanity and War Crimes, 2003 – 2004, p.3.

 

VI.       Canadian Charter of Rights and Freedoms

The rule of law, supreme in Canada , requires that the law apply equally to all.

 

“Whereas Canada is founded upon principles that recognize the supremacy of…the rule of law.”  

 

The Supreme Court of Canada says, the rule of law,  

 

“provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all.” (Reference re Secession of Quebec, [1998] 2SCR 217 at para. 70&71)

 

Canada ’s constitutional framers codified the constitutional supremacy over statutory law by stating:

The Constitution of Canada is the supreme law of Canada , and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” 52(1) 1982 Constitution.

 

Authority to Grant Immunity                                                                              

Neither Parliament nor the Attorney General of Canada possess the authority to grant any person immunity from prosecution for war crimes, crimes against humanity of genocide or to suppress investigations and prosecutions by virtue of being the head of a foreign state or otherwise.

 



[1] Article 4. In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations.
Article 5. To that end, where so provided in an applicable treaty or under other international law obligations, States shall incorporate or otherwise implement within their domestic law appropriate provisions for universal jurisdiction. Moreover, where it is so provided for in an applicable treaty or other international legal obligations, States should facilitate extradition or surrender offenders to other States and to appropriate international judicial bodies and provide judicial assistance and other forms of cooperation in the pursuit of international justice, including assistance to, and protection of, victims and witnesses, consistent with international human rights legal standards and subject to international legal requirements such as those relating to the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment.