[W.Z. In this version of the Goss Gilroy report, we simply highlight (in Fuchsia or Red color) segments of the original report relevant to the World War II "Nazi war criminal" cases, such as Wasyl Odynsky, Helmut Oberlander and Vladimir Katriuk.
Our comments are interspersed throughout the document, in square brackets and in Fuchsia color, as indicated by this text.]
Evaluation of
Canada's War Crimes Program:
Final Report
by Evaluation Unit,
Citizenship and Immigration Canada
September 2001
Acknowledgement
This Report was prepared with the
assistance of Goss Gilroy Inc.
1.0 Introduction
1.1 Background
1.2 Program Overview
1.3 Scope of Work and Focus of the Evaluation
2.0 Methodologies Used and Their Effectiveness
2.1 Key Methodologies
2.2 Progress and Effectiveness of Methodologies Used
3.0 The Relevance and Rationale for the War Crimes Program
3.1 Basic Relevance
4.0 Program Design
5.0 Program Delivery and Operational Effectiveness
5.1 Research, Analysis, Intelligence Gathering and Dissemination
5.2 Integrated Program Delivery
5.3 Automated Information Systems
6.0 Program Success and Results
This report presents the results of an evaluation of Canada's War Crimes Program carried out by a team from Goss Gilroy Inc. in the period from May 28 to September 28, 2001. The evaluation was requested by the CIC Corporate Review Unit, in cooperation with the Modern War Crimes Section of CIC and with the War Crimes Sections at the Department of Justice and the RCMP. The purpose of the evaluation is to assess the effectiveness of the War Crimes Program and to review its internal and external outcomes by answering specific evaluation questions relating to its relevance, design, delivery, and program success levels.
The War Crimes Program is a joint initiative of the Minister of Justice and the Minister of Citizenship and Immigration designed to support Canada's efforts in denying safe haven to war criminals and perpetrators of crimes against humanity. It is jointly delivered by three government bodies: Citizenship and Immigration Canada (CIC), Justice Canada, and the Royal Canadian Mounted Police (RCMP).
Approved in 1998 for an initial period of three years, the War Crimes Program was required to undergo a summative evaluation in the year 2000-2001. To this end an evaluation and performance framework was developed and completed in May 1999. This framework identified key evaluation issues and questions related to the program design, management structures, and overall effectiveness, as well as possible methodologies, data requirements and options for the evaluation. In addition, the performance framework supported ongoing measurement of the program's performance and accountability.
Based on this framework, CIC refined a list of 16 performance indicators for which data would be collected on an ongoing basis. However, delays occurred in the development and application of the program's data collection systems. A decision was therefore made to postpone the implementation of the summative evaluation until year 2001-2002.
In the interim, a summary review of the program was conducted to provide up to date information. This summary review presented existing information on the effectiveness of the program and the results obtained, examining both its design and its implementation.
a) Program Objectives
The objective of the War Crimes Program is to improve the effectiveness of Canada's efforts in denying safe haven to suspected war criminals. The program seeks to achieve this objective by three principal means: denying them entry in Canada, removing them from Canada, and prosecuting them in Canada.
To meet this overarching goal, resources have been invested towards five intermediate objectives, as outlined in the amended version of the evaluation framework:
These intermediate objectives are being addressed by two distinct program components: the World War II cases and the Modern Day cases of war crimes, crimes against humanity and other reprehensible acts. Each of these program components involves the participation of multiple delivery agents, with each a specific mandate.
[W.Z. It would be interesting to know if, in the "Modern Day cases" between WWII and the present, there are any people from Israel and/or Palestine?]
b) Program Delivery Structures
The War Crimes Program is delivered by a combination of delivery structures from various government departments and agencies. An Interdepartmental Operations Group was created to coordinate the program at the operational and policy levels and improve the exchange of information between delivery agents. This group is constituted of senior representatives from CIC, Justice Canada, and the RCMP.
[W.Z. Who are these people?]
CIC has established a central War Crimes Section responsible for coordination, support, liaison, and reporting, in order to ensure the efficient processing of cases through the immigration and judicial systems. In particular, it was provided with resources to deal with the backlog of Modern Day cases, process the new cases generated, and more effectively screen visa applicants abroad. It has also created a Modern War Crimes Intelligence Coordination Unit that handles research, information, consultation, and liaison functions with War Crimes operations personnel and other agencies. The work of CIC's headquarters units is supported by regional War Crimes Units and in-house legal advice capacity. The War Crimes Information Statistical and Executive Reporting System (WISER) covers six operational data systems at CIC and tracks the 16 performance indicators derived from the evaluation framework.
The Department of Justice has also created a War Crimes Section. Its mandate is to receive and investigate allegations against individuals suspected of involvement in war crimes, crimes against humanity, or other reprehensible acts. In particular, it was given resources under the program to process 14 new World War II cases and to litigate Modern Day cases.
The RCMP also plays an important role in delivering the program. Its War Crimes Section is composed of 7 regular members of the force with one civilian support person and a researcher on contract. The Unit is also supported by other RCMP units across Canada and by members posted outside the country. Its role includes outreach activities with minority communities, investigations for criminal prosecution, co-operation with foreign authorities, assistance to Canadian Refugee Board Hearings, and assistance to UN Tribunals.
c) Program Resources
The War Crimes Program operated with a budget of $46.8 million for the fiscal years 1998-1999 through 2000-2001. The Department of Justice received $16.5 million, CIC $28.2 million, and the Solicitor General $2.0 million over the three years of the program.
1.3
Scope of Work and Focus of the Evaluation
As noted, the evaluation focused on the overall effectiveness of the War Crimes Program and its internal and external results. Specifically, the evaluation addressed the following evaluation issues and questions.
1. Relevance [...]
2. Program Design [...]
3. Program Delivery [...]
4. Program Success [...]
2.0 Methodologies Used and Their Effectiveness
As noted in the project proposal and detailed work program, the evaluation relied on four key methodologies:
2.2
Progress and Effectiveness of Methodologies Used
The methodologies outlined above were successfully implemented by the evaluation team. The document review encompassed annual program reports and the data they contained, supplemented by working papers from program staff and by data on program activity levels provided by each of the implementing organizations. In addition, Canadian and international experts provided the evaluation team with background documents and papers commenting on different aspects of international humanitarian law and the Canadian program.
Some delays in organizing and carrying out interviews were experienced as a result of the events at the International Criminal Tribunal for the former Yugoslavia (ICTY) in the early to mid-July period. Similarly, the team was not able to conduct a series of interviews with members of the Immigration Review Board (IRB) in different regions of Canada as originally planned. Rather, the IRB chose to submit a written response to key evaluation questions of direct interest to their operations (see Annex 3 for the evaluation questions submitted to the IRB). The evaluation team was able to meet with a small group of four representatives of the IRB to follow up on the written inputs provided by the agency.
The evaluation team was able to review with appropriate agency staff the key management information systems developed during the program (see Section 5.3 below). Unfortunately, the automated results database at CIC (WISER) was still experiencing some problems with data quality and reliability at the time of the evaluation (mainly to do with data management problems in the source data bases for WISER). As a result, the evaluation relied on data collected by CIC's Modern War Crimes Section in the preparation of annual reports for its main indicators of evaluation results relating to CIC. This was supplemented with data on the frequency of requests for information (RFIs) submitted to BCW/BCI by users inside and outside CIC.
Despite the setbacks noted above, the evaluation team is confident that the findings and conclusions reported below are well supported by documentary evidence and by the experience and opinions of a wide range of key Canadian and international stakeholders. In fact, it is important to consider how the key stakeholders interviewed represent very important blocks of opinion and experience. With that purpose in mind, evaluation team members grouped the key stakeholder interviews and their results into the following important categories:
These four groups of
key informants provided the evaluation team with very specific information
on the operations and success of the program and with strong guidance as
to the views of key external stakeholders on the strengths and weaknesses
of the program. The latter represents a key consideration in that an
important program goal is to demonstrate, internationally and in Canada,
the Government of Canada's commitment to denying safe haven to suspected
war criminals.
[W.Z. This is public relations to promote a specific agenda and has nothing to do with justice. Indeed, the war crimes program is subverting the Canadian justice system to promote the agenda of the Holocaust Industry.]
The sections that follow present the findings of the evaluation of Canada's War Crimes Program as supported by the methodologies described above.
3.0 The Relevance and Rationale for the War Crimes Program
In essence, the evaluation issues relating to the relevance of the program concern the continued seriousness of the problems of World War II and Modern War Crimes cases and the appropriateness of the War Crimes Program as a response. In addressing these issues, the evaluation team considered the essential features of the War Crimes Program as planned and implemented to be:
These characteristics were used in describing the program to international stakeholders interviewed where those stakeholders were unfamiliar with one or other elements of the program.
In the first instance it is important to note that CIC data show a continued annual increase in the activity levels relating to immigration under all the different activity measures tracked and reported. A review of the four annual reports produced from 1997/98 to 2000/01 shows a steady increase in the annual number of entries prevented, refusals and exclusions, involvement in refugee determination hearings, and in cases under investigation in Canada and abroad (See Table 6.1 in Section 6.0).
At the same time, while there were no new World War II cases opened under that component of the program during 2000/01, some seven files continue with court proceedings ongoing. As noted in the most recent annual report, [note 2] it is becoming increasingly problematic to investigate and prosecute World War II cases due to the passage of time and its effects on both suspects and witnesses. Nonetheless, interviews in Canada with stakeholder groups and internationally with prosecutors in other jurisdictions strongly suggest that there are no grounds for backing away from Canada's commitments to investigate and prosecute appropriate World War II cases at this point in time.
In essence, the international situation continues to generate many instances of war crimes and crimes against humanity. This fact combines with continuing efforts by Canada to provide a haven for legitimate refugees to result in significant numbers of suspected persons attempting to enter Canada. In this situation there is a strong continuing rationale for a coordinated program of response by the Government of Canada.
In summary, data on caseloads and the situation of conflict in many countries suggests that the problem of suspects in modern day war crimes either resident in, or attempting to enter, Canada will continue into the foreseeable future. At the same time, while activities under the World War II component of the program may diminish over time, there are no criteria available which would suggest that the prosecution of appropriate cases should cease to be a priority at this time.
It is particularly notable that key national and international stakeholder groups interviewed strongly endorse the need for continuing with a program of this type (an inter-departmental war crimes program with dedicated resources and a central coordinating body).
International stakeholders drew a strong conceptual link from the program to Canada's international support of the International Criminal Tribunals for Yugoslavia and Rwanda and its efforts in support of the International Criminal Court.
They noted that
The Crimes Against Humanity and War Crimes Act, which came into
force on October 23, 2000, also contributed to Canada's international
reputation as a country with a serious commitment to an effective response
to the problem of crimes against humanity and war crimes. On the other
hand, they also point out that the War Crimes Program will need to proceed
to a prosecution under the Act at an appropriate time and that any
movement by the Government of Canada to diminish the capacities of the
program would produce a negative reaction from international partners.
[W.Z. Once again, the Goss Gilroy evaluation team and the Canadian War Crimes Unit appear to be more interested in public relations and international approval, than in justice and safeguarding civil liberties.]
Finally, while elsewhere in this report, the evaluation team suggests moving to a higher degree of program integration and coordination, external stakeholders from other jurisdictions regularly commented on the leadership shown by Canada in establishing an inter-departmental program with information sharing mechanisms and a central coordinating body. A number of officials of cooperating agencies of foreign governments indicated that they hope to use the Canadian program as a model in seeking improved coordination of their own national efforts to address, in particular, modern day war crimes.
A review of program documents and of the four annual reports submitted by Canada's War Crimes Program suggests no change in the formal stated priorities and objectives of the program. At the same time, the very high levels of activity relating to prevention of entry into Canada of suspected war criminals (especially from posts abroad) -- CIC data show entries prevented rising from 34 in 1997/98 to 644 in 2000/01 -- suggest that the first practical priority of the program has been to prevent entry to, or remove from, Canada persons suspected of war crimes or crimes against humanity.
This perception that prevention and removal of persons suspected of modern war crimes or crimes against humanity is the first priority of the program is shared by many staff persons interviewed in the three implementing agencies as well as by most external stakeholders. Both groups accept that focusing the program in this way presents the most cost-effective strategy for denying safe haven in Canada. At the same time, program staff in the three implementing agencies also point out that the prevention of entry or removal of persons suspected of war crimes or crimes against humanity are not the only priority remedies available to the program. They point to the Crimes Against Humanities and War Crimes Act and to the ongoing investigation of a number of modern war crimes cases which may result in prosecution under the Act as evidence that the prosecution of persons suspected of modern day war crimes who are resident in Canada is also an important priority for the program -- where such cases warrant prosecution.
For external stakeholders in Canada and internationally, the question of whether and when Canada will move forward with a prosecution under the Act represents an important test of the War Crimes Program as an expression of Government of Canada priorities and intent. It is important to note that different stakeholder groups have a different perspective and different reasons for placing a high level of importance on prosecution of one or more modern day war crimes cases as an expression of program priorities.
a) International Peer Community
This group of key external stakeholders was strongly positive in assessing the seriousness of the Canadian Government in dealing with modern day war crimes and crimes against humanity as evidenced by the existence of the Modern War Crimes Program and its components. They also noted Canada's stated commitments to the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) and its role in the establishment of the International Criminal Court (ICC).
On the other hand, this group also emphasized the critical importance of domestic prosecutions of modern day war crimes. Their perspective on this issue was two-fold. In the first instance, they noted that domestic and international media coverage of prosecutions is intense and would have much more effect on domestic and international opinion of Canada's intentions than a continuous stream of refusals of entry or denials of refugee status. In the second instance, they noted that -- in the absence of an established and working ICC -- without action to prosecute modern day war crimes by nation states, many war criminals will never be brought to justice. These stakeholders see Canada as an important factor in efforts to combat a culture of impunity for perpetrators of war crimes and crimes against humanity and they feel that domestic prosecution in Canada of a person suspected of a modern war crime will be one very effective means of combating a culture of impunity.
[W.Z. In other words, these "stakeholders" are openly promoting show trials and are not concerned with justice or civil liberties at all.]It is important to note however, that the international peer community also understands the cost, complexity and difficulty of domestic prosecutions for modern war crimes and crimes against humanity. They recognize that the decision to prosecute must be based on the strength of the evidence and not on political or policy considerations as such. Nonetheless, they re-iterate that the recent Crimes Against Humanities and War Crimes Act and the international profile Canada has actively pursued with regard to these issues has created an expectation that prosecutions will be forthcoming at some point.
b) Canadian and International Human Rights Organizations and Academics
Broadly speaking this group of external stakeholders shares the views of the international peer community but with important differences in interpretation and emphasis. In the first case, this stakeholder group places highest priority on ensuring that crimes against humanity and war crimes do not go unpunished (or at least do not go without trial).
For this group it is essential that Canada not be seen as so committed to seeking remedies under the Immigration Act that it returns persons who are strongly suspected of war crimes either into jurisdictions which will not move forward with judicial proceedings or to jurisdictions which will victimize the suspects through torture or other extra-judicial actions. These stakeholders draw an important distinction between the public policy "good" from a Canadian perspective of removing a suspected war criminal from Canada and the global "good" of ensuring that such crimes do not go unpunished. They see Canada as obligated to ensure that it contributes to the global good through appropriate domestic prosecutions.
As a second element in this view, international and Canadian human rights activists and academics are concerned that the burden of proof for denial of refugee status on the grounds of complicity in war crimes or crimes against humanity is much lower than for prosecution in criminal courts. While not denying the right and obligation of the Minister of Immigration to intervene in refugee determination proceedings on specific grounds relating to war crimes, they submit that when sufficient evidence is present to warrant prosecution, such a prosecution will contribute more directly to a perception of justice than will removal from Canada.
c) Community-based NGOs in Canada
Organizations representing Canadian communities that include either victims or both victims and perpetrators, also strongly favour the prosecution of war crimes and crimes against humanities (including World War II cases) as opposed to reliance on remedies under the Immigration Act alone. For victims organizations there is a strong need to ensure that perpetrators do not go unpunished. This links closely to the need to ensure that yesterday's perpetrators do not become tomorrow's victims if they are returned to regimes where revenge will take precedence over justice. Organizations whose members may include suspects also strongly endorse criminal prosecution as a strategy since they feel the burdens of proof are higher.
[W.Z. Do these victims organizations include Palestinians accusing Israeli Defense Forces (IDF) of torture, maiming and murder?]From an evaluation perspective, it is not necessary to choose from or endorse any one of the arguments advanced by external stakeholders regarding the reasons for strengthening prosecution of modern day war crimes as a priority for the Canadian War Crimes Program. What is important is to recognize that there is a strong perception among key external stakeholders to the Program that the intent of the Government of Canada to proceed with prosecutions in Canada of war crimes and crimes against humanity needs to be demonstrated at some point in the near future.
The question of the coherence of the Canadian War Crimes program and its degree of integration across the three implementing agencies is given considerable emphasis in the terms of reference to this evaluation (see Issues 2.1, 2.2 and 3.2).
In evaluating the coherence of the Program it is important to differentiate between co-ordination and integration. To date, the implementing agencies have focused mainly on the need for a co-ordinated response rather than an integration of either processes or operational units.
The main mechanism for coordination of the Program has been the Interdepartmental Operations Group or IOG which was created in 1998. The IOG is intended to coordinate the program from a policy, as well as an operational, perspective. [note 3] The work of the Interdepartmental Operations Group is summarized in the most recent annual report as follows:
[W.Z. What reprehensible acts are Helmut Oberlander or Wasyl Odynsky accused of that could lead to the revocation of their citizenship?]The Interdepartmental Operations Group ensures that the Government of Canada has properly addressed all allegations of war crimes and crimes against humanity against Canadian citizens or persons present in Canada. One of its purposes is to ensure that Canada complies with its international obligations. This includes the investigation, prosecution, and extradition or surrender of war criminals as well as co-operation with international tribunals set up for this purpose, namely the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). In order to meet this objective, the RCMP and the Department of Justice investigate allegations involving reprehensible acts that could lead to a possible criminal prosecution or revocation of citizenship while CIC pursues the application of remedies under the Immigration Act, in co-operation with the Department of Justice in certain instances when these matter proceed to court.
It is precisely in this area of coordinating a response to specific allegations of war crimes and crimes against humanity that the Interdepartmental Operations Group has made its strongest contribution to the coordination and the coherence of the Canadian War Crimes Program. From the creation of the IOG in 1998 to the end of fiscal year 2000/01, the group had reviewed 944 war crimes files, determined the course of action to be taken and channelled the file to the appropriate departmental authority for action. In carrying out this function the IOG has been seen by staff in all three agencies as an essential tool in improving the coordinated response to specific cases by the Government of Canada.
The work of the IOG is also cited by external stakeholders from other jurisdictions as one of the strongest distinguishing elements in the Canadian program. Many representatives of immigration, police and prosecutorial staff in partner countries interviewed during the evaluation highlighted the central, multi-departmental coordination of decisions on war crimes and crimes against humanity allegations as a unique strength of the Canadian Program.
On the other hand, the IOG -- which meets on a monthly basis with the Chair of the Group rotating annually among the three departments -- seems to have been less successful as a forum for policy coordination. Key stakeholders from within the three participating agencies cited the fact that the IOG had not (as of June 2001) produced an agreed set of criteria for choosing prosecution as a remedy rather than removal from Canada as one example of the difficulty of solving inter-agency problems that are not case-specific in the forum of the IOG.
There is also some confusion within the staff ranks of the War Crimes Sections of the three agencies (and at a wider level within CIC) of the roles and orientation of the IOG and its sub-committee dealing with cases. Especially within CIC and the Department of Justice there are staff members who feel that the decisions of the IOG on which remedy to seek (especially the choice between removal from Canada or criminal prosecution) may be biased in favour of an "Immigration" or "Justice" perspective. Participants in the process of case allocation are strongly of the view that these biases are perceived rather than real and there is no evidence of such a bias. On the other hand, there seems to be a need for the IOG to communicate better to staff of each of the three implementing agencies so that they have a clearer understanding of how decisions are made regarding cases under consideration.
Similarly, the difficulties noted below in arriving at a consensus on the best means of integrating and coordinating the investigation of modern war crimes and crimes against humanity has raised questions about the role and functions of the IOG.
The IOG represents a forum for coordination among three partner agencies with equal status. Thus, when two or more of the partner agencies have fundamental disagreements on how to cooperate in specific processes, there is no authority to convincingly arbitrate a solution. If the current level of program coordination (which represents an important positive achievement) is to progress to a more integrated approach to some key processes, then the question of the IOG's function in setting out policy for the relevant actors in the three agencies will need to be addressed.
5.0 Program Delivery and Operational Effectiveness
5.1 Research, Analysis, Intelligence Gathering and Dissemination
5.1.1 Citizenship and Immigration Canada
The Modern War Crimes Division [note 4] of CIC encompasses a core group of analysts, supported by a Resource Centre, staffed by researchers, and an Intelligence Coordination Unit. Together they respond to the need for information and advice on specific war crimes and persons and for information on the context in which war crimes and crimes against humanity occur.
[W.Z. Names, please?]The original focus of the analyst group and the researchers of the Resource Centre (BCW) was originally to provide research support to regional field officers -- at ports of entry, immigration centres or hearings offices -- and to enforcement partners to assist in identifying applicants and other individuals in Canada who may have been involved in war crimes. It quickly became apparent that overseas immigration officers could make significant demand on the new research and analysis capacity to screen for suspected war criminals and the workload of BCW expanded rapidly (see Figure 5.1 below and Annex 5). During the first five months of 2001, the Division has responded to 1048 requests for information, already exceeding the 895 requests received during the entire previous year.
In April 1998, the government approved a recommendation from the intelligence community to set up a dedicated war crimes intelligence unit. Since CIC is a major client for modern war crimes intelligence, an intelligence coordination unit was set up as a support to BCW. Both BCW and the new intelligence unit are located within CIC's Case Management Branch. The mission of the Modern War Crimes Intelligence Coordination Unit (BCI) is the "collection, collation, analysis, and dissemination of all-source War Crimes intelligence in support of CIC, other government departments, allies and the ICTY." Its principal role, however, is the provision of intelligence and research to BCW for the preparation of responses to field requests for information and assistance.
BCI intelligence information comes from a wide range of sources including human intelligence, documents and diplomatic intelligence, as well as imagery. Classified information gathered in BCI is analyzed and shared with the BCW analysts, or sanitized to an unclassified level for reference in the field. Most often the classified information serves to assist the BCW analysts and Resource Centre researchers to better focus their research in open, unclassified, sources.
The standard procedure for inquiries directed to BCW is for an assigned analyst to assess the research needs, then request the specific support of the Resource Centre for open site research and, often simultaneously, the support of BCI for classified research. The responses from these two support units then provide the BCW analyst with the information needed to formulate a sound analysis to send to the field -- at home or abroad.
There is considerable pressure to respond rapidly, as many of the queries result from screening for various visitor programs. Therefore, the standards call for complete responses in 5 or 10 days in most cases. Queries pertaining to permanent resident applications have longer processing time frames and are continually impacted by the more pressing needs of the growing volume of visitor program requests. These standards are also affected severely by "spikes" of intensive and resource exhaustive activity, such as the Kosovo crisis and the large numbers of clearances needed for occasions such as the Summit of la Francophonie.
Most important in this process is the analysts' role in ensuring consistency in application of the legislation through their continued contacts with field officers. In addition to adding area expertise to the process, analysts stay abreast of developments in jurisprudence and trends that can affect case decisions. They can also offer advice on processing strategies.
In addition to responding to requests for information and assistance from the field, BCW and BCI provide a range of policy guidance services to the Branch and other clients inside and outside CIC. They also provide briefings for CIC and other departments' staff going to overseas postings with a history of war crimes allegations and offer training to a considerable number of clients throughout the country. BCI liaises with other federal agencies on intelligence matters and provides guidance on the use of intelligence material. In accordance with its international obligations and commitments, Canada has agreed to provide sensitive information to the ICTY to assist the Tribunal's investigations. The Modern War Crimes Intelligence Coordination Unit is responsible for coordinating this support within Canada's intelligence community. This was not one of BCI's responsibilities when the unit was first created.
One of the important successes of the Intelligence Unit has been its ability to gain the confidence of the intelligence community in Canada and internationally and thus to have continued access to classified information from these sources.
The evaluation team was able to review the effectiveness of BCW and BCI from two distinct perspectives; the views of the international peer community cooperating with the Canadian Program in accessing and using intelligence; and the views of CIC staff working at posts abroad and in War Crimes Units in Vancouver, Toronto and Montreal.
From the perspective of the international peer community, the existence of the War Crimes Intelligence Unit and the way that it cooperates with BCW to provide CIC staff and partner agencies with access to classified information represents a unique strength of Canada's War Crimes Program. Indeed, some in other jurisdictions indicate that they intend to use the Program as a model in arguing that similar access to classified material should be made available in their own countries by intelligence agencies. International key informants also noted that tools (illustrated guides to military ranks and insignias, orders of battle, etc.) provided to Canadian immigration officers in locations such as Albania during the Kosovo crisis have been particularly useful.
From the perspective of the user group within CIC there is strong support for the quality and relevance of the information product of BCW and BCI. On the other hand, officers at posts abroad have reported their perception that response times seem to be slowing in recent months as BCW and BCI are responding to the continuing increase in requests for information. This issue was raised particularly in relation to immigration (as opposed to visitor visas) where processing times were reported as stretching into more than six months on occasion.
Different inland posts and War Crimes Units of CIC report a perception that the priority of BCW, including the Resource Centre and BCI, is to provide rapid and effective service to posts abroad and report the need to undertake some of their own research with their own analysts.
Figure 5.1
Information Requests Received by Month
Source: Prepared by Carrie Irving. Modern War Crimes Division. Resources Centre. February 2001.
In summary, the capacity developed at the Modern War Crimes Section of CIC for analysis, research and intelligence gathering and dissemination through BCW and BCI represents an essential feature of the War Crimes Program and provides critical service to clients within and outside CIC. The sustained increase in demand for these services over the past three years represents (see Figure 5.1 above) a challenge to the staff and resources available (one response has been the development of the Modern War Crimes System data base which is to be made available to CIC staff at posts abroad).
5.1.2 Department of Justice
The Department of Justice War Crimes Section maintains a research capacity in the form of a staff of three historians/analysts each of whom is assigned to a geographical area: Africa/Rwanda; the former Yugoslavia and the Middle East Asia (3 vacant positions were being filled at the time of the evaluation for a total complement of 6 historian/analysts). The historians/analysts at the DOJ War Crimes Section conduct in-depth research including archival research which requires travel to overseas locations and cover both modern and World War II cases. They draw on support from a four-person historical support group [note 5] (which also serves other members of the War Crimes Section) and a clerk for the research section and have access to specialized contract resources as needed.
[W.Z. It is important that those DOJ employees involved with WWII cases be interviewed and evaluated by experts from the Ukrainian community.]The roles of the Department of Justice War Crimes Section historian/analysts were developed first in response to the World War II cases and the need to support those cases with high quality historical and archival research (especially when Canada was able to negotiate access to archival material in the former Soviet Union and in former Warsaw Pact countries). The DOJ War Crimes Section staff are convinced that proper case preparation and prosecution of modern war crimes cases will (as with World War II cases) require the talents of historian/analysts specializing in the history of conflict prone regions.
[W.Z. When, by whom and with whom was access to archival materials in Ukraine negotiated? Was it during the tenure of Holowaty in 1996?]It must be noted that the type of research and analysis necessary for the preparation of cases for prosecution is seen as very different from the analysis and research undertaken by CIC staff in support of immigration proceedings. Typically, DOJ historian/analysts follow a sequential process in their research efforts. This process involves:
This has been the sequence used in the case preparation of World War II cases and would be subject to modification in the process of research and case preparation for modern cases.
In particular, DOJ sees the need for using more open source information gathering capacities including data base building, entering of documents and management of documents for litigation. As noted, at the time of the evaluation, the Department of Justice War Crimes Section was in the process of filling three vacant historians/analyst positions and increasing its geographical coverage capacity. This would allow the development of 6 geographically focused research teams for Africa, Yugoslavia, Middle East, Asia, Latin America and World War II cases.
DOJ War Crimes Section research staff advocate the creation of geographic research/analyst teams based on the six areas noted above and consisting of a lawyer, historian/analyst and RCMP officer for each area.
5.1.3 RCMP
The RCMP War Crimes Section is currently using the services of a researcher on contract working at the Unit and responding to broad information requests from investigators. The researcher conducts background research in support of case preparation and relies mainly on on-line services and public information bases and was careful to point out to the evaluation team that he is not engaged in the creation of intelligence but in the processing and analysis of information.
The RCMP War Crimes Section has emphasized somewhat different research needs in case investigation and case preparation for modern war crimes than has the Department of Justice. These differences arise in large part from differences between WWII cases with their predominant location in Germany and Eastern Europe and modern war crimes cases spread over a longer time frame (1964 to the present) and 59 different countries on five different continents. In general terms, the research perspective of the RCMP War Crimes Section relating to modern day war crimes emphasises the need for a rapid response time, the use of internet facilities to access large volumes of documentation and the ability to develop a contextual framework for cases based on the use of information produced by news agencies, NGOs and governments.
The RCMP War Crimes Section emphasises the different information needs of legal staff and investigators for research support during investigation and case preparation.
5.1.4 Summary: Research, Analysis and Intelligence Gathering and Dissemination
It is clear that the three agencies engaged in the Canadian War Crimes Program have invested significant resources in their capacity for information gathering, analysis and research (including intelligence gathering and dissemination). This has raised perceptions in some quarters that there is duplication of resources and overlap in the research functions in particular.
While it is difficult to answer this question in a definitive way since the agencies each report differing research and analysis needs the evaluation team developed the following major findings on research, analysis and intelligence capacities in the program;
5.2
Integrated Program Delivery
As previously noted, participating agencies have been more successful in pursuing a coordinated inter-departmental approach to World War II and modern war crimes cases than in the development of a more integrated War Crimes Program. [note 6]
Reviews of operations in the three implementing agencies and, especially, at regional War Crimes Units and posts abroad of CIC indicate that development of an integrated program approach has proceeded mostly in the form of integration of war crimes related activities into the broader spectrum of CIC visa, immigration and refugee operations in posts abroad, at ports of entry and in CIC regional offices. The training and briefing activities of BCW and BCI have combined with information and intelligence sharing activities and the development of tools to improve the penetration of war crimes priorities and of expertise among different field offices of CIC.
There is still, however, considerable scope for improving the integration of war crimes information systems and electronic tools into those used by CIC officers at ports of entry and posts abroad. There is also scope for continued training of CIC officers in foreign posts and ports of entry so that they are more aware of support capacities available.
The evaluation team identified three important issues relating to program integration across the three implementing agencies:
The first of these issues (agreed criteria for choosing prosecution or remedies under the immigration or citizenship acts) is currently the subject of efforts by the members of the Interdepartmental Operations Group but there is some urgency that this issue be dealt with expediently so that external observers may have more confidence that prosecution of modern war crimes remains a priority and a viable option for Canada's War Crimes program.
With regard to integration of activities at posts abroad, interviews with CIC, CSIS and RCMP staff indicate that there is considerable variation from one post to another regarding the extent of cooperation between CIC officers, RCMP liaison officers and CSIS security officers. To some degree this is a result of the very small staff complement of RCMP liaison offices and the fact that war crimes and crimes against humanity are not included in the mandate of CSIS (their involvement becomes a mandated necessity when terrorism or national security issues are involved).
There is also some indication that CIC officers in posts abroad are not always aware of the capacity in BCW/BCI to respond to information requests so that these officers may be requesting support from CSIS Security Liaison Officers (SLOs) which could better be provided by CIC's central War Crimes Section.
At any rate, there is some scope for a review of practices at different posts abroad to see how cooperation among the RCMP, CIC and CSIS could be optimized with regard to war crimes cases. While such cooperation cannot be made mandatory given the specific mandate of CSIS, where it does occur it has the effect of better coordination of the post's response to war crimes cases.
The third issue relating to program integration is discussed at more length in the section below.
5.2.1 Integrated Investigation and Preparation of Modern Day War Crimes Cases
Perhaps the most significant current issue in the design and delivery of Canada's War Crimes Program concerns the investigation and preparation for prosecution of cases where a resident of Canada is suspected of crimes covered under the Crimes Against Humanity and War Crimes Act.
There is currently a clear disagreement between the Department of Justice War Crimes Section and the War Crimes Section of the RCMP concerning the most effective process and structure for investigating serious allegations of modern war crimes and for preparing cases for a decision to prosecute (or not to proceed). This difference is deep-seated and covers the process of research, analysis, investigation (including questioning witnesses), case preparation and presentation. In essence the views of the two agencies can be characterized as follows:
a) RCMP War Crimes Section
RCMP War Crimes Section staff and RCMP officers serving in liaison posts abroad presented evaluation team members with a very clear picture of the current strengths and weaknesses of the set-up for investigating modern war crimes and the prospective roles of RCMP officers and Department of Justice researchers and lawyers.
The RCMP's view is that the process of investigating and prosecuting modern war crimes should remain the domains of the two different organizations with the RCMP responsible for directing the investigation, developing lists of interviewees, conducting interviews with potential witnesses and analyzing the available evidence for presentation -- at the point where an investigation is concluded or near conclusion -- to the Crown for a decision to prosecute or not. At that point, questioning of witnesses by prosecutorial staff is appropriate for the purpose of assessing witness credibility.
The RCMP officers see a need in this process to have access to legal advice from the DOJ War Crimes Section on the suitability of evidence and the applicability of Canadian and international law to specific crimes and suspects. They also see a need to have access to experienced prosecutors to provide advice during the investigation process and to make decisions on prosecution. They indicate that the current staff of the DOJ War Crimes Section does not include enough experienced prosecutors with court room experience (there are two staff of this type in the DOJ War Crimes Section) and that the research capacities of historians/analysts is not appropriate to the needs of modern day war crimes.
Finally, the RCMP raises an important issue in relation to Canadian jurisprudence, especially as it relates to the questioning of potential witnesses by DOJ War Crimes Section lawyers. They point out that Canadian (in keeping with Britain and the US) law presumes a fair degree of separation between investigators and prosecutors and wonder if DOJ lawyer involvement in questioning witnesses might represent a barrier to successful prosecution in future.
b) Department of Justice War Crimes Section
The view of Department of Justice War Crimes Section staff differs from that of the RCMP with regard to the best way to organize the investigation and preparation for prosecution of modern war crimes. They point to the complexity of Canadian and international humanitarian law regarding war crimes and crimes against humanity, the complexity of the context in which these crimes occur, and evolving practice in the investigation and prosecution of other complex crimes in areas such as fraud and drug trafficking. The DOJ War Crimes Section staff support a model with the following characteristics:
DOJ staff question the capacity of RCMP officers to stay current and knowledgeable on all key aspects of international law relating to war crimes and crimes against humanity. They also consider that the definition of these crimes is dependant on the military, ethnic and social context in which they occur and this can be critical for proving that, for example, a genocide has occurred. This area of investigation is, in their view, outside the normal theatre of police investigations in Canada.
In addition, the staff of the DOJ War Crimes Section consider that counsel in the Section possess the necessary knowledge and experience in Canadian and international law on war crimes and crimes against humanity to provide the essential legal advice for the process. They also believe that the Section's current capacity for historical research and analysis, which recently hired experts on former Yugoslavia and Rwanda, is highly relevant and suited to the task of supporting investigations of modern war crimes.
While the seriousness of the difference in viewpoints between the RCMP and DOJ War Crimes Sections on these issues is clear (and remarkably consistent among staff of the two organizations), it is not possible at this time to determine its effect on the pace and integrity of actual ongoing investigations. Nonetheless there is a clear need for this issue to be resolved if delays and weaknesses in the process of investigating modern war crimes and preparing appropriate cases for prosecution are to be avoided in the future.
In assessing this issue and attempting to provide guidance for evaluation purposes, the evaluation team members were careful to examine different organizational and process options being used in other jurisdictions and in other police investigations. Key informants from other jurisdictions (and Canadian and international academics) were asked to give their opinion on the most appropriate way to organize investigations of this type. The information gathered by the evaluation team indicates the following:
In an effort to examine the merits of the IPOC model, evaluation team members conducted interviews with two staff members of the unit and established the following characteristics:
This model is obviously somewhat in between current practice, the proposed model of the RCMP and the proposed integrated model advanced by DOJ War Crimes Section staff in discussions with evaluation team members.
The key factor in the success of IPOC seems to have been the close working relationship and professional respect of lawyers and police investigators working in a single unit from the inception of the program. In the case of IPOC, police have the final authority over investigations as advocated by the RCMP but counsel are clearly much more involved in day to day preparation of the investigative process than they are under the current Canadian War Crimes program.
[W.Z. I find it extremely disturbing that lawyers for the prosecution are working intimately with the RCMP investigators. If such is the case, then it is mandatory that a lawyer for the defense be assigned and be present at all interviews and investigations.]On balance, the situation in other jurisdictions, the complex nature of crimes against humanity and war crimes, and the experience of IPOC all seem to argue for a more fully integrated process of investigating and preparing modern day war crimes cases for prosecution, most likely within a single unit. The current situation with investigators and legal counsel working in separate organizational units in their respective agencies has contributed to an apparent inability of the personnel in the two organizations to develop the necessary professional relationship characterized by mutual respect and trust so that their personnel can work together in a timely and effective way.
The question of authority to direct investigations and whether that authority should reside with the RCMP or with DOJ counsel is less clear-cut. Police authority in the direction of IPOC investigations seems to be seen by legal counsel and police investigators as a strength of that organization and a necessary adjustment to Canadian legal tradition. On the other hand, international experience suggests that complex investigations are often successfully carried out under the authority of prosecution services. Finally, the Crimes Against Humanities and Modern War Crimes Act invests the authority to lay charges in the Attorney General of Canada which would seem to argue that the Minister of Justice should have final authority over any integrated unit.
In evaluation terms, the critical need is for a resolution of the differences of views between the War Crimes Sections of the Department of Justice and the RCMP over the most appropriate structures and processes for investigating modern war crimes and for preparing cases for prosecution. Since the Interdepartmental Operations Group has not been seen as a forum in which this issue can be resolved (it is a consultative body rather than a final arbitrator) it seems that a resolution of this problem will need to be addressed in the design of the next phase of the program.
5.3
Automated Information Systems
A feature of the proposal for the Canadian War Crimes Program has been the investment of some $7 million over the past two fiscal years in supporting the computer systems for modern war crimes operations. In addition, a program evaluation framework was developed in 1999 and, subsequently 16 indicators of program effectiveness were chosen for tracking using CIC's WISER information database.
At this time, the investment by CIC and by the Department of Justice in automated information management systems has given rise to the following dedicated systems;
At CIC:
At DOJ
For a more complete overview of the functions, progress and utility of these databases and management information systems see Annex 4 below.
MWCS
In summary, the Modern War Crimes System (MWCS) represents a suite of information and tools on modern war crimes intended to provide different levels of information and functionality to different areas of CIC. Its users include national and regional war crimes units as well as visa officers overseas, immigration processing staff, and hearings officers, investigators and ports of entry staff of CIC in the regions.
MWCS includes a reference tool with static information such as standards, procedures, profiles, and reference materials, and four databases: two relational data bases on events and persons (one BCW and one BCI -- secure and stand-alone) and two full-text databases with documentary material (again one BCW and one BCI -- secure and stand-alone).
The MWCS systems are operational and accessible at the present time at NHQ and at the Ontario Regional Unit (although without the full suite of completed data entry). Estimated roll out of the system is scheduled for other regional units in October of 2001 and at posts abroad for February 2002. There are a number of factors which have delayed full rollout of MCWS by CIC. These include:
Despite these delays, there is considerable interest in the MWCS system and its potential to support CIC staff in dealing with war crimes cases in Canada and abroad. There is also the potential for this system to support some of the work of analysts and researchers at the Department of Justice and RCMP War Crimes Sections. Most important of all, perhaps, is the fact that effective rollout and implementation of MWCS may take some of the burden of responding to Requests for Information from the Resource Centre and the BCI since it will provide information directly to end-users.
WISER
The War Crimes Information Statistical and Executive Reporting System (WISER) is a management results reporting system developed in part in response to the Evaluation Framework developed for the Canadian War Crimes Program. WISER is intended to report on some 16 indicators of program results (CIC only) and draws on data collected from various CIC operational systems including MWCS, FOSS, CAIPS, SAP, NCMS and the Interim War Crimes System (IWCS).
WISER provides reports and statistical information to Case Management Branch on costs and recoveries and on the effectiveness of MWC Units. It also tracks data on requests for information received by BCW and BCI.
WISER became operational in its latest iteration in February 2001. It has provided some of the information used in the preparation of the latest annual report. On the other hand, WISER is dependant on the data entered into various operational systems from which it draws information and it has been necessary to supplement WISER data with direct calls to responsibility centres to update information and send it directly to the Modern War Crimes Section of headquarters so that results information can be compiled. There is still a major task to educate users of the various operational systems such as FOSS and CAIPS so that appropriate codes are activated and WISER can track results data from the field.
The WWII Q&A Database
This DOS operated database at DOJ is used to track information on World War II cases and is well understood by the DOJ War Crimes Section staff. It is being maintained despite its age and limitations because the volume of information it contains would be very costly to transfer to a new system.
The Modern War Crimes Database
A new database at the Department of Justice War Crimes Section was installed in November 2000. The purpose of the Modern War Crimes database is to act as a file management system and to support document tracking and research. It contains three relational databases relating to suspects, documents and historical events and can be used for research as well as for case and file management. The system shares certain characteristics with the one currently in use at ICTY and will produce and use data (including open source data) that differs from the data in CIC's MWCS in that it is more case specific and includes evidence as a separate category from other information.
The Modern War Crimes Database at the Department of Justice War Crimes Section also differs from CIC's MWCS in that the latter is a larger scale system serving hundreds of users at posts in Canada and abroad with a wider range of material.
The system is in the early stages of implementation and has experienced some of the same difficulties as MWCS relating to the development of standards and procedures for data entry and for ensuring data consistency and integrity. The process of data entry has also proven to be extremely time consuming. Data entry for the system is ongoing and is the responsibility of the Historical Support Unit.
When completed, the Modern War Crimes Database will be a major tool to enable the Crown to meet its disclosure obligations during criminal and civil proceedings relating to war crimes.
Summary
Clearly, the development and full implementation of three key management information systems (WISER, MWCS, and the Modern War Crimes Database at DOJ) have been lengthy processes and subject to considerable delay (at least from the time frames envisioned for WISER in 1999).
On the other hand, MWCS and the Modern War Crimes Database can be expected to provide support to key agency processes relating to both the immigration and prosecution remedies available to the Canadian War Crimes Program at such time as they contain all the relevant data as planned. The WISER system, for its part, represents an important effort to develop and implement a results monitoring system by utilizing existing departmental information systems. Unfortunately, it is only partially functional at this time and continues to suffer problems relating to data quality, timeliness and integrity, which are resident in the existing CIC departmental systems, rather than unique to WISER. Nonetheless, it is appropriate for CIC to continue to improve WISER in the expectation of using it to track program results in the future.
In general terms, both CIC and DOJ seem to have underestimated the resources necessary to enter the large volumes of data required to fully establish MWCS and the Modern War Crimes Database.
6.0 Program Success and Results
This section deals with the expected and actual results of both the modern day and World War II components of the Canada's War Crimes Program and the additional resources invested by the Government of Canada in the program from 1997/98 to 2000/01. It also tracks some of the key successes of the program.
Table 6.1 below presents an aggregate picture of the key results reported for the Modern War Crimes component of the program from 1997/98 to 2000/01.
As indicated by the Table, the modern war crimes component of the program has seen a steady increase in the reported number of persons who were prevented entry into Canada from abroad because of a refusal to grant immigration or visitor status based on suspected involvement in war crimes or crimes against humanity. This category rose from 34 in 1997/98 to over 600 in 2000/01. It may be that the figures for earlier years represent under-reporting with overseas staff less aware of the importance of tracking this data. Nonetheless the renewed interest in tracking entries prevented, refusals and exclusions is not likely to have accounted for the very large increase in their reported incidence. In addition, interviews of CIC staff in posts abroad and at ports of entry confirm the increased attention paid to war crimes issues and to the use of relevant sections of the Immigration Act to deny entry to suspected war criminals.
Similarly, Table 6.1 illustrates a sustained increase in the number of cases reviewed and/or under investigation abroad and in Canada. Of even more importance perhaps has been the steady increase in the number of refugee determination hearings of the Immigration Review Board (IRB) that have been the site of interventions by CIC staff on behalf of the Minister of Immigration. This number has risen steadily since 1997/98 when it stood at 24 and almost doubled between fiscal years 1999/00 and 2000/01 when it rose from 127 to 227.
Table 6.1 also illustrates a key issue in program results, namely the difference between success in identifying and investigating cases on one hand and in securing removals from Canada on the other. Removals from Canada related to the program have increased only gradually from 27 in 1998/99 to 38 in 1999/00 and 42 in 2000/01. This occurred despite a continued dramatic rise in the number of alleged cases in Canada and abroad. The slow pace of removals reflects issues which are not specific to the War Crimes Program but it represents a challenge and a risk for the program over time.
Table
6.1
Reported Results Relating to Modern Day War Crimes
| Result | Definition | 1997/98 | 1998/99 | 1999/00 | 2000/01 |
|---|---|---|---|---|---|
| Entries Prevented | Immigrant Cases Refused 19-1(j) or (l) Visitor Cases Refused 19-1(j) or (l) Cases Refused on other grounds | 34 | 307 | 581 | 644 |
| Refusals and Exclusions | As above plus exclusions by CRDD | 199 | 332 | 596 | 697 |
| Removals | Persons removed from Canada, Refugee and Immigrant | 80 [note 7] |
27 | 38 [note 8] |
42 |
| Cases Reviewed Abroad | Number of War Crimes Cases Reviewed/Investigated in Visa Offices 19-1(j)/(l) and 1F(a) | 85 | 352 | 1008 | 2374 |
| CIC Involvement in RD Hearings | Cases in Which the CIC Minister Intervened | 24 | 58 | 127 | 227 |
| Total MWC Cases | Number of Alleged Cases in Canada and Abroad | 477 | 1620 | 3039 | 4246 |
| Cases Under Investigation | Cases Under Investigation Overseas | 51 | 45 | 125 | 300 |
| Refugee Cases Under CIC Investigation | 3 | 9 | 363 | 311 | |
| Immigration Cases Under CIC Investigation | 82 | 71 | 135 | 208 |
Interventions Before the IRB by CIC Staff
The increase in the number of interventions on behalf of the Minister of Immigration in refugee determination hearings of the IRB is especially significant as CIC established an important goal for the program of improving the frequency, quality and timeliness of interventions before the IRB relating to war crimes.
In relation to this important program goal it is important to review the views of the Immigration Review Board as transmitted to the evaluation team. The IRB divided its observations between those applicable to the Convention Refugee Determination Division (CRDD) and the Adjudication Division of the Board.
As noted already, the IRB provided its observations to the evaluation team in writing rather than through a series of interviews with individual staff, as originally planned. The team was able to meet with a small group of IRB staff members to discuss clarify observations made in the written submission.
With regard to CRDD, the board noted that it is apparent to members that CIC has made efforts to strengthen its representation before them on war crimes issues. They note an improvement in timeliness from 1997/98 to the present time. On the other hand, the CRDD is of the opinion that improvements in the quality of representations by CIC before the board relating to war crimes issues has only been noticeable recently and that timeliness and quality both remain issues.
In essence, the CRDD noted that the assessment of the credibility of refugee claimants in these cases is one of the most formidable challenges facing its members. They expressed a desire to work with CIC on issue related to scheduling and logistics for this administrative tribunal.
With regard to the Adjudication Division of the Board, written comments submitted by the IRB note the improvement in the timeliness and quality of presentations interventions by CIC relating to war crimes and the three-fold increase in the number of cases in a single year (1999/00 to 2000/01). They further comment on the positive effect of creation by CIC of dedicated units, which have allowed CIC employees to acquire more knowledge and skill in the areas of war crimes and crimes against humanity.
In conclusion, IRB members and staff interviewed were strongly of the view that the War Crimes Program and its associated resources were essential in improving the integrity of the immigration and refugee determination systems in Canada.
Prosecutions Under the Crimes Against Humanity and War Crimes Act
As already noted, the data on program results and success, up to this point in time, does not include the prosecution of a modern day war crimes case. There are a number of cases in preparation which may result in prosecution at some point in the reasonably near future. At such time, the Program and the Government of Canada will face important issues regarding the financial resources required for such a prosecution. As argued in Section 4.1 above, there are important public policy goals both in Canada and globally which suggest that prosecution of a case in Canada under the Act represents an important priority and milestone for the program. This fact makes it all the more important that a suitable inter-departmental model for the investigation and prosecution of modern war crimes be developed and accepted by the agencies involved.
Other Areas of Success and Impact for the Modern War Crimes Component
One key area of success and impact for the modern war crimes component of the program has involved partnerships and interactions with the international community involved in dealing with war crimes and crimes against humanity. Continued international cooperation (by CIC, Department of Justice and RCMP staff) with international tribunals, police forces, prosecutorial offices, immigration services and a range of other international partners has succeeded in establishing a strong opinion among international peers that Canada is a leader in its treatment of the issue of modern day war crimes and crimes against humanity. The annual reports of the program over the last four years document a wide range of activities in cooperation with external national and international authorities.
Key stakeholders from a range of those organizations were able to confirm to evaluation team members their strong belief that Canada's War Crimes Program represents a serious effort by Canada to deal with this issue.
Except through intermediary organizations, the evaluation team was not able to directly test the effect of the program on Canadian public opinion regarding Canada's commitment to denying safe haven to war criminals. It was possible to verify that the outreach and information activities of CIC, the Department of Justice, and the RCMP through news releases, annual reports, speeches, interviews and media contacts and sponsorship of conferences represents a reasonably effective effort at public education. For example, international stakeholders were very positive about the extent and openness of the program annual reports in presenting information which could be politically sensitive.
On the other hand, NGOs in Canada and abroad also noted that a single prosecution in Canada of a modern war crimes case would have a major impact on national and international opinion which would carry well outside the professional circles of those involved in this type of programming. They also emphasised that such a prosecution would reasonably be expected to produce a deterrent effect and reduce the number of suspected war criminals seeking refuge in Canada.
As noted above, the main intermediate objective of the program with reference to World War II Cases was very specific and quantitative in nature: to complete the litigation of 14 ongoing cases and develop approximately 14 new cases, applying appropriate prioritizing criteria prior to 2001.
Table 6.2 below presents a summary of the activity and results of the WWII program:
Table
6.2
Activity and Results as Reported: World War II Cases
| Category | Definition | 1997/98 | 1998/99 | 1999/00 | 2000/01 |
|---|---|---|---|---|---|
| Allegation Files (Cumulative) | Allegations Received -- checks being undertaken | 126 | 114 | 147 | 147 |
| Inactive Files | Files reviewed and not moved to active category due to insufficient evidence or other factors or because initial checks negative | 456 | 479 | 504 | 517 |
| Active Files (Development Stage) | 90 | 91 | 82 | 78 | |
| Active Files (Proceedings Ongoing) | 9 | 8 | 8 | 7 | |
| Total Active Files | 99 | 99 | 90 | 85 | |
| Closed Files 1 | a)
suspect deceased b) date of birth prior 1904 c) closed prior to 1998 |
880 | 6 | 10 | 4 |
| Closed Files 2 | Criminal Proceedings (pre-1995) or Federal Court and/or Immigration and Refugee Board Proceedings | 10 [note 9] |
2 | 2 | 1 |
| New Cases | 1 | 2 | 0 |
As reported in the most recent program annual report, since 1995 seventeen revocation and deportation cases have been initiated under the World War II component of the program. The Government has been successful in six denaturalization cases before the Federal Court of Canada. In two other cases, the respondents did not contest the proceedings, their citizenship was revoked and they left the country voluntarily. Defendants have been successful in three cases before the Federal Court of Canada and six defendants have died during proceedings (two of these died during IRB proceedings following a successful outcome for the Government of Canada before the Federal Court). As of June 2001, two proceedings were ongoing in the Federal Court. Three cases are at various stages of the revocation process following positive outcomes in Federal Court. In one case, citizenship has been revoked and a judicial review application is underway. Since 1995, program successes have exceeded losses, in contrast to the pre-1995 criminal prosecutions record which was zero successes for four prosecutions.
At the time of the program review in November 2000, the Department of Justice War Crimes Section indicated that problems relating to a backlog of case work prior to the commencement of the program, resulting from having three cases held up in appeal and problems in the status of cases where witnesses were deceased or could not give evidence, combined to limit the ability of the Department of Justice to initiate new cases under the World War II component of the program.
The most recent annual report notes that the passage of time has made it increasingly difficult to obtain admissible evidence to enable the Section to bring forward World War II proceedings and states the intention that the Section intends to continue actively investigating World War II matters. Given that active investigations of World War II cases are ongoing, it seems clear that new prosecutions may be forthcoming under this component of the War Crimes Program.
One of the important evaluation issues noted in Section 2.0 above concerns the question of whether or not the resources provided under the program have proved adequate to the task of ensuring that Canada does not provide safe to persons implicated in war crimes and crimes against humanity.
The following tables presents budgetary expenditure data in comparison to Treasury Board approved funding by fiscal year for each department for the three years 1998/99 to 2000/01.
Table
7.1
CIC - TB Approved Funding, Internal Allocations
and Actual
Expenditures by Fiscal Year
| Year | FTE | Salary ($) | EBP | Non-Salary ($) | Total ($) | |
|---|---|---|---|---|---|---|
| 98-99 | TB Funding | 56 | 2,342,000 | 468,000 | 3,475,000 | 6,285,000 |
| Internal Allocations [note 10] |
65 | 2,003,000 | 401,000 | 4,316,000 | 6,720,000 | |
| Expenditures | 1,412,000 | 282,000 | 4,134,000 | 5,828,000 | ||
| 99-00 [note 11] |
TB Funding | 76 | 6,042,000 | 1,208,000 | 4,996,000 | 12,246,000 |
| Internal Allocations | 65 | 3,532,000 | 706,000 | 7,888,000 | 12,126,000 | |
| Expenditures | 3,125,000 | 625,000 | 7,202,000 | 10,952,000 | ||
| 00-01 | TB Funding | 76 | 4,122,000 | 824,000 | 4,234,000 | 9,180,000 |
| Internal Allocations | 63 | 3,463,000 | 693,000 | 5,025,000 | 9,181,000 | |
| Expenditures | 4,023,000 | 805,000 | 4,871,000 | 9,699,000 | ||
| Total | TB Funding | 208 | 12,506,000 | 2,501,000 | 12,705,000 | 27,712,000 |
| Internal Allocations | 193 | 8,998,000 | 1,800,000 | 17,229,000 | 28,027,000 | |
| Expenditures | 8,560,000 | 1,712,000 | 16,207,000 | 26,479,000 |
| Year | FTE | Salary ($) | EBP | Non-Salary ($) | Total ($) | |
|---|---|---|---|---|---|---|
| 98-99 [note 12] |
TB Funding [note 13] |
49 | 2,991,089 | 598,218 | 1,449,573 | 5,038,880 |
| Expenditures [note 14] |
56.1 | 3,759,244 | 751,849 | 1,433,362 | 5,944,455 | |
| 99-00 | TB Funding | 58 | 3,473,194 | 694,639 | 1,570,842 | 5,738,675 |
| Expenditures | 49.3 | 3,219,309 | 643,862 | 1,312,491 | 5,175,662 | |
| 00-01 | TB Funding | 58 | 3,473,194 | 694,639 | 1,570,842 | 5,738,675 |
| Expenditures | 43.5 | 2,839,668 | 567,934 | 1,252,296 | 4,659,898 | |
| Total | TB Funding | 165 | 9,937,477 | 1,987,496 | 4,591,257 | 16,516,230 |
| Expenditures | 148.9 | 9,818,221 | 1,963,645 | 3,998,149 | 15,780,015 |
Table
7.3
RCMP - TB Approved Funding and
Actual Expenditures by Fiscal
Year
| Year | FTE | Salary ($) | EBP | Non-Salary ($) | Total ($) | |
|---|---|---|---|---|---|---|
| 98-99 | TB Funding [note 15] |
5 | 310,000 | 62,000 | 310,000 | 682,000 |
| Expenditures | 5 | 310,000 | 62,000 | 93,015 | 465,015 | |
| 99-00 | TB Funding [note 16] |
5 | 310,000 | 62,000 | 310,000 | 682,000 |
| Expenditures | 5 | 310,000 | 62,000 | 195,677 | 567,677 | |
| 00-01 | TB Funding [note 17] |
5 | 310,000 | 62,000 | 310,000 | 682,000 |
| Expenditures | 5 | 310,000 | 62,000 | 301,653 | 673,653 | |
| Total | TB Funding | 15 | 930,000 | 186,000 | 930,000 | 2,046,000 |
| Expenditures | 15 | 930,000 | 186,000 | 590,345 | 1,706,345 |
The data presented above supports the following findings relating to program resources:
In light of the findings reported in Sections 3.0 to 6.0 above, the evaluation evidence supports the following major conclusions by the evaluation team with regard to Canada's War Crimes Program.
Overall, the Program partners concur in the findings of the evaluation and will work to address the issues raised by the evaluators. More specifically:
1. Removal of persons suspected of war crimes from Canada may be based on denial of refugee status, denaturalization and revocation of citizenship, all with subsequent deportation, or on extradition to an appropriate authority for prosecution.
2. Canada's War Crimes Program, Annual Report 2000-2001, p. 2.
3. Canada's War Crimes Program, Annual Report 2000-2001 (p. 7).
4. This section deals specifically with the process of supporting War Crimes operations with information, analysis, research, and intelligence coordination. As such it does not encompass work done by the War Crimes Division of CIC to develop policies and procedures for use throughout CIC on dealing with war crimes issues and cases.
5. The members of the historical support group are involved in document management, linguistics, data entry, document tracking, etc.
6. As noted in the 2000/01 Annual Report on page 7, "Following the direction of the Government of Canada for a more integrated War Crimes Program the Interdepartmental Operations Group was created in 1998."
10. There was a reprofiling of funding from 98/99 to 99/00 due to a shortage of technical expertise available for the development of the War Crimes systems.
11. The lapse of funds in 98/00 and 99/00 was due to the postponement of systems development as a systems expertise was moved to Y2K readiness, the Kosovo crisis and the Marine Arrivals.
12. Overrun in spending in year 98-99 is due to the fact that, contrary to the original forecast, DOJ's actual use of FTE's exceeded the anticipated need.
13. DOJ did not proceed to internal reallocations.
14. Under-spending by DOJ in the 99-00 and 00-01 fiscal periods was due to a decline in litigation before the courts as several of their ongoing WWII court cases terminated and new ones were being developed. This decline was also due to the fact that the expected modern war crimes test case did not materialize as anticipated. Furthermore, staffing turnover has created vacancies for specialized positions which are taking some time to fill. These vacancies have in turn affected the number of non-salary dollars in terms of reduced travel and other case related activity. However, development of WWII and modern cases continues at a high pace, to bring forward new matters before the courts in the near future.
15. RCMP staff indicate that relative under-spending of TB approved funds in this year resulted from the fact that funding was received late in the year and the RCMP was unable to travel internationally as frequently as necessary as Mutual Legal Assistance Treaties (MLAT) had to be submitted to obtain the cooperation of authorities in Bosnia, Croatia, Rwanda, etc.
16. In the second year of the program, the RCMP consolidated and expanded their contact base, conducted preliminary trips to secure the assistance required by meeting with local justice and officials, assessing the requirements in terms of support personnel required, ie: translators, drivers, security and living conditions with respect to accomodation and transportation.
17. With operational issues resolved in the first two years, the RCMP were able to travel more frequently and spend the budget that was provided.
18. It is important to note that a successful decision in the Federal Court of Canada is not the end of the denaturalization process in that it remains for an Order-In-Council to be issued revoking citizenship and the defendant then has access to other avenues of appeal. Nonetheless, the evaluation team agrees that securing a successful decision on behalf of the Government of Canada in the Federal Court represents a successful outcome for the War Crimes Program.