Justice Deschenes addresses the Lord Reading Society upon presentation of human rights award

The long march to international criminal justice

Steven G. Slimovitch and Arnold J. Cohen, advocates

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On December 10, 1997 the Lord Reading Law Society presented Mr. Justice Jules Deschenes with its annual Human Rights award for his many contributions and exemplary work in the field including chairing Canada's war crimes commission, and sitting as a judge on the international war crimes tribunal for the former Yugoslavia and Rwanda. Former Chief Justice of Québec, Allan B. Gold, formally presented the award to Justice Deschenes on behalf of the Society, calling him a shinning light of the legal profession and an inspiration to all jurists.

Former Chief Justice of Québec. Allan B. Gold formally presented the award to Justice Jules Deschenes.

Justice Deschenes gave a detailed discourse on the evolution of the system of international criminal justice beginning in 1474 with the establishment of the first international court.

The evolution of international criminal justice

According to Justice Deschenes, it was only really after the end of World War I. and pursuant to the Treaty of Versailles that the idea of an international criminal court took root. The treaty led to the accusation of Kaiser Wilhelm II. and the trial of various military officers for war crimes. At the end of the war, the Allies gave Germany the duty to try those accused of war crimes, yet unfortunately in Germany the accused were seen as heroes to the people. In the case of the Kaiser, he escaped to the Netherlands which then refused to extradite him. As regards the military officers, the harshest sentence handed out was to a ship captain - three years for the intentional sinking of a hospital ship.

After World War II., the world witnessed the trials of war criminals at Nuremberg and at Tokyo. Justice Deschenes questioned whether the trials at Nuremberg were truly international or rather a trial by the Allies. As regards the Tokyo trials, by 1951 all trials had finished, and by 1953 all sentences had been served. In fact some of those convicted went on to become cabinet ministers, and even one, a candidate for prime minister.

The Deschenes commission and the prosecution of Nazi war criminals in Canada

In more recent times, Justice Deschenes chaired perhaps the most well known commission on war crimes, the Deschenes Commission. Two options were proposed by the Commission for the Canadian government: (a)prosecute those in Canada alleged to have committed war crimes; or, (b)strip them of their Canadian citizenship and then deport them.

The Government chose the first option yet had no success for numerous reasons, including the death of an accused, and the unavailability of witnesses, many of whom were behind the "iron curtain". In addition the Supreme Court in the case of Irme Finta set a very high standard of proof. A number of other prosecutions have also been attempted yet with no success, all for different reasons.

To date, the only successful proceedings were against Jacob Lujents by way of deportation back to his country of origin (the Netherlands) where he was imprisoned for approximately eight years, before being afforded executive clemency.

The Government has since decided to abandon the prosecution route and is now trying the deportation method. Yet unfortunately several of the cases currently in the system have been saddled with procedural problems, some so serious that stays of proceedings were issued (only to be set aside in appeal).

The principal problem now is one of the age of war criminals. Many accused are in their late 70's or 80's and with the trial and appellate process, the proceedings could drag on for many years.

Justice Deschenes pointed by comparison to the example of the Australians who have suffered the same lack of success with criminal prosecution of war criminals as Canada has, with three prosecutions resulting in three dismissals. Australia has consequently abandoned the idea. In contrast, the United States has used the denaturalization process with success.

The Rwanda and Yugoslavia international criminal tribunal

With the wars in Yugoslavia and Rwanda, the United Nations has taken action to create an international criminal tribunal. In November 1993, eleven judges were selected from all continents. Yet a daunting task lay ahead, without any precedence whatsoever to use as a guide. All of the following had to be done (among others): rules of practice and a code of procedure drafted, a system of legal aid and an aid system for witnesses put in place, a prison built, and a prosecution office and a clerks office set up. Madame Justice Louise Arbour of the Ontario Court of Appeal has recently assumed the role of chief prosecutor for both courts.

Nine or ten trials are currently in progress. Two accused have been convicted and both decisions are in appeal. At present, seventy-five arrest warrants have been issued, yet only ten have been executed with the remainder of the suspects still free in their home country with full impunity as long as they remain in their home country. More prosecutions could be carried out if the home countries had the political will to execute the arrest warrants. Although the accused are usually well known personalities, there is no will to deliver them to justice.

The proposed permanent international criminal court

As regards the establishment of a permanent international criminal court, although the idea is over forty years old, it was only in 1994 that the United Nations General Assembly established an ad hoc committee to pursue the idea. It was recommended that such a court be established by international treaty and not just by a U. N. resolution. The U. N. General Assembly has already given its approval and the Preparatory Committee has held meetings in 1996 and 1997.

The project is highly politicized. Because the Court will be established by treaty, the treaty will only be enforceable in those countries which are signatories to it. Needless to say, many of the worst offending countries are likely not to sign. On a positive note however, a prosecution will be able to be launched either by an individual country or the U.N., the principle of individual international criminal responsibility will be established, and a nomenclature of crimes will be set. International guarantees of human rights will also be entrenched.

Justice Deschenes concluded that while the road to international criminal justice is a difficult one, we should not despair. He also congratulated the Canadian government as being a true leader in this field.

Justice Deschenes was thanked for his elegant and enlightening remarks by the Chief Justice of Québec, Pierre Michaud.

 

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