Canada has been a driving force behind the creation of the International Criminal Court (ICC), whose Statute was adopted in Rome on July 17, 1998. The ICC will be the first permanent international court to have jurisdiction over the most serious crimes established in international law — genocide, crimes against humanity and war crimes and, once a suitable definition is adopted, the crime of aggression. The ICC Statute will enter into force after it has been ratified by 60 states.

Canada signed the ICC Statute on December 18, 1998, and is one of several dozen countries undertaking measures to implement the Statute within their national legal systems. While six countries (Fiji, Ghana, Italy, San Marino, Senegal, and Trinidad and Tobago) have already ratified the Statute, the legislation being introduced today makes Canada the first country to introduce comprehensive implementation legislation.

The ICC is designed to complement, not replace, national courts and will therefore exercise jurisdiction where national courts are unable or unwilling to bring transgressors to justice. The ICC Statute provides the tools to ensure that the Court will be an independent and effective institution, and also contains sufficient procedural safeguards to ensure that it operates in a responsible manner respecting due process. The crimes over which the Court has jurisdiction are carefully defined in accordance with established customary international law. The Statute contains a number of provisions to address the plight of women and children in armed conflict. The Statute recognizes rape, sexual slavery and other forms of sexual violence as a war crime and a crime against humanity, and also recognizes the enlistment or use of children under 15 in armed conflicts as a war crime.

Canada remains committed to a leadership role in bringing to justice those who commit genocide, crimes against humanity and war crimes, regardless of when or where these crimes have taken place. The amendments are part of the federal government’s resolve to have at its disposal all possible remedies to ensure that Canada is not a safe haven for war criminals.

The new Act would implement in Canada the Rome Statute of the International Criminal Court. It would replace the current war crimes provisions of the Criminal Code. The Act would include the following new offences:

The new Act would create offences, based on the Rome Statute, of genocide, crimes against humanity and war crimes. These would apply to conduct committed in Canada and would permit Canada to prosecute these offences or to extradite persons to the ICC to face prosecution there.

Genocide, crimes against humanity, and war crimes committed outside Canada would be defined under international law existing at the time and in the place of their commission, whether in the past or in the future. This would ensure that those involved in genocide, crimes against humanity or war crimes, regardless of when or where those events occurred, could be brought to justice.

The Act includes offences of breach of responsibility by military commanders and other superiors. Failure of a military commander or a superior to exercise control over persons under their authority, which results in the subordinates’ committing genocide, a crime against humanity or a war crime, could result in the criminal responsibility of the military commanders or superiors if they fail to take measures to prevent or repress the crime or to submit the matter to the competent authorities for investigation.

Canadian and international defences would be available to persons accused of genocide, crimes against humanity, war crimes and breach of command/superior responsibility with some exceptions. It would not be a defence that an offence was committed in obedience to the law in force at the time and in the place of its commission. The defence of superior orders would be in accord with that provided in the Rome Statute. In addition, the defence of superior orders could not be based on a belief that the order was lawful if the accused’s belief is based on information about an identifiable group of persons that was likely to encourage the commission of inhumane acts or omissions against the group.

The sentences and the parole eligibility rules that would apply to a conviction for genocide, crimes against humanity or war crimes that involve an intentional killing would be the same as that for murder in the Criminal Code. Ordinary parole rules would apply for all other sentences.

The Act includes offences to protect the integrity of the processes of the Court and to protect judges and officials of the ICC, as well as witnesses. In particular, it includes offences of obstructing justice, obstructing officials, bribery of judges and officials, perjury, fabricating or giving contradictory evidence, and intimidation. Witnesses who have testified before the ICC would be protected under the Criminal Code from retaliation against them or their families. All of these offences would apply when committed in Canada or by Canadian citizens outside Canada. Other existing Criminal Code offences would also apply to protect judges and officials from any harm when they are in or outside of Canada.

The Act also ensures that the possession and laundering of proceeds from these new offences would also be offences. This would ensure that proceeds located in Canada from the worst criminal offences like genocide, crimes against humanity or war crimes can be restrained, seized or forfeited in much the same way as proceeds from other criminal offences in Canada.

Money in Canada obtained from the disposal of forfeited assets or from the enforcement of fines or reparation orders of the ICC will be paid into the Crimes Against Humanity Fund, established under the Act. The Attorney General of Canada may then make payment from that Fund to the ICC’s Trust Fund established under the Rome Statute or to the victims of offences under the Act

The Crimes Against Humanity Act would implement Canada’s obligations under the Rome Statute to surrender persons sought by the ICC for genocide, crimes against humanity and war crimes.

Most procedures of the Extradition Act would apply to persons who are the subject of a request for surrender by the ICC. However, a person who is the subject of a request for surrender by the ICC would not be able to claim immunity under common law or statute from arrest or surrender under the Extradition Act. Grounds of refusal for surrender that are normally applicable in cases of state-to-state extradition will not apply to a request for surrender to the ICC

Canada would be able to assist the ICC in investigating offences of genocide, crimes against humanity and war crimes in much the same way that it currently assists other states with normal criminal investigations. The Mutual Legal Assistance in Criminal Matters Act would permit Canada to provide a wide range of assistance, from the identification of persons to gathering evidence in Canada for the purposes of prosecution.