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Exporting Criminal Justice

I trust that it is not in bad taste to praise an institution to which one belongs, at least when one is discreet enough to refer only to achievements in which one has had no part. The Supreme Court of Canada, as others before me have noted, has earned an impressive reputation abroad, particularly after it began deciding cases under the Canadian Charter of Rights and Freedoms. In fact, the Davos Institute has ranked Canada’s justice system as the second best in the world, after Denmark’s (IMD International, The World Competitiveness Yearbook, Lausanne, Switzerland: International Institute for Management Development, 2000, Table 3.42, p. 418).

In a speech last September to mark the 125th anniversary of the Supreme Court, the eminent British lawyer Sydney Kentridge discussed a wide variety of references to judgments of this Court by the judiciaries of England, South Africa, Australia, India, New Zealand, Zimbabwe, Hong Kong, Scotland, Israel and the United States. Mr. Kentridge also told a story about Lord Goff, of the Privy Council in England. His Lordship was hearing a case from the Caribbean involving a death sentence. One of the barristers was asked why he was citing a Canadian authority. According to Mr. Kentridge, Lord Goff instructed the barrister as follows:

"What you are going to tell his Lordship is that this is a judgment of the Supreme Court of Canada and therefore not lightly to be dismissed."

While courts abroad have cited the highest court in Canada on subjects such as civil liability, administrative law and Aboriginal rights, it is clear that Canadian decisions regarding the rights and freedoms guaranteed by our Charter have represented the Supreme Court’s most significant contribution to the international human rights discourse. Foreign jurisdictions have looked to our Court on a variety of issues, notably assisted suicide, restrictions on political statements by civil servants, and campaign spending rules.

In the area of criminal law, our Court has provided guidance on such fundamental issues as the presumption of innocence and the limits that may be placed on individual rights in a free and democratic society. For example, in S. v. Zuma, [1995] 4 B.C.L.R. 401, its very first decision, the Constitutional Court of South Africa considered the validity of a provision that reversed the burden of proof in a criminal law context. The Constitutional Court was strongly influenced by the judgments of our Court in R. v. Oakes (1986), 26 D.L.R. (4th) 449, R. v. Downey (1992), 90 D.L.R. (4th) 449, R. v. Chaulk (1990), 62 C.C.C. (3rd) 193 and R. v. Whyte (1988), 51 D.L.R. (4th) 481. The Court of Appeal of Hong Kong, in A.G. of Hong Kong v. Lee Kwong Kok, [1992] 2 H.K.C.L.R. 76, and the Privy Council on appeal ([1993] A.C. 951), also considered the Canadian case law on reversing the burden of proof in criminal law, and whether such a reversal can be justified in a free and democratic society, even though the Hong Kong Bill of Rights did not have a provision equivalent to s. 1 of our Charter.

Although globalization has increased the need to universalize economic and trade-related conflict resolution mechanisms, less thought has been given, at least until quite recently, to developing a set of universally acceptable and effective rules for criminal responsibility to protect fundamental human rights. This has made the international influence of our Court even more relevant.

Multilateral and international trade dispute resolution bodies have, of course, been with us for many years. With the globalization seen in recent years, these bodies have proliferated and grown in popularity. International commercial arbitration is becoming institutionalized (in this regard, see Haigh, Kunetski and Antony, “International Commercial Arbitration and the Canadian Experience” [1995] 34 Alta. L. Rev. 137). Clearly, states and private parties that wish to submit their commercial disputes to arbitration face no shortage of resources. They have access to such agencies and institutions as the Commercial Arbitration and Mediation Centre for the Americas (CAMCA); the Inter-American Commercial Arbitration Commission; the International Centre for Settlement of Investment Disputes (created in 1966 by the World Bank); the International Court of Arbitration of the International Chamber of Commerce; the Permanent Court of Arbitration in The Hague (which has been in existence since 1899 but which has, of late, been focussing increasingly on commercial arbitration); the Arbitration and Mediation Centre of the World Intellectual Property Organization (WIPO) and a plethora of national arbitration centres that are also involved in international arbitration, such as the American Arbitration Association and the Quebec National and International Commercial Arbitration Centre.

Moreover, in 1966, the United Nations established UNCITRAL, the United Nations Commission on International Trade Law, which in 1985 developed a Model Law on International Commercial Arbitration, and in 1976 adopted arbitration rules that are regularly incorporated into commercial contracts. The commission also has the mandate to promote the important Convention on the Recognition and Enforcement of Arbitration Awards, which was signed in New York in 1958, has since been ratified by 105 nations, and was incorporated into Canadian law in 1986. In addition, the World Trade Organization (WTO) offers a mechanism for resolving trade disputes between states through a process of negotiation and submission to a special panel appointed by the Dispute Settlement Body of the WTO General Council.

At the same time, there is no doubt that we are now witnessing a globalization of rights. Fifty years after the Universal Declaration of Human Rights, which has inspired several other major related international human rights instruments such as the Conventions on Genocide andTorture, many groups and individuals that, until recently, did not truly think of themselves as rights holders, are asserting these fundamental rights in an increasingly concrete fashion.

In this context, courts in Canada have proven themselves, in the last two decades, to be a highly valued and much noticed forum in which important and controversial social and political claims have often clashed. This new Canadian identity has made us a focal point of international expectations in dealing with the current upsurge in claims by rights holders.

The criminal justice model is a particularly apt forum for the process by which rights are expanded. Lying as it does at the junction between public and private law, domestic criminal law has become the forum par excellence for society to reaffirm its fundamental and yet evolving values, and to calibrate the mechanisms that check abuses of government power and the other unavoidable excesses of democracy.

Canada has championed and indeed, played a leading role in the creation of the International Criminal Court (ICC), which it duly ratified last summer. I would like to salute my friend Philippe Kirsch for his work in this regard. Canada has a position of leadership in this area, and has the opportunity to transform the perception, which is particularly strong in this country, of its peacekeeping role.

Such a transformation is a very natural one, since criminal law, at the domestic level, is the preferred system for maintaining and restoring peace. In fact, it is a substitute for the use of force or armed intervention an approach that all too often seems to be the only option available internationally, albeit the least attractive one.

I am aware of the ongoing efforts within international organizations such as the United Nations and the Organization of African Unity (OAU), and within the European Union, to develop effective military intervention mechanisms for situations in which such intervention is necessary and does not exist or is inadequate. I am not proposing some utopian vision where the justice system completely supplants the use of force. Rather, I believe we are on the threshold of a new pact, one that is deeply rooted in democratic systems, in which force is always governed by law and subject to civil and criminal liability, even when it is exercised by legitimate authorities.

What we need to do is to affirm that the sovereignty of states is compatible with two facets of interdependence: the requirements of intervention, whether voluntary or mandatory; and accountability for the abuse of power and force. Today I will discuss the second facet: accountability. Just as some countries make a name for themselves by exporting luxury goods, Canada is one of a small group of nations that aim to export certain ideals, as well as our emphasis on the rule of law, due process and integrity. Leaders can only be held personally accountable for very serious criminal acts within a process that calls for a large measure of integrity and fairness.

Clearly, even before deciding the minutiae of international criminal procedure, the conditions calling for legitimate criminal sanctions must first be exported. Without those prerequisites, international justice would become an additional forum for alienation, or worse still, a source of conflict, possibly violent conflict, in itself.

Equally important is the need for concrete involvement in this undertaking. Canadians are rightly proud of the pre-eminent role that Canada has played in peacekeeping, not only because of our spectacular diplomatic success in promoting that model, which earned Lester B. Pearson the Nobel Peace Prize in 1957, but also because of our ongoing commitment on the ground. Ever since Pearson’s initiative, when Secretary of State for External Affairs, to quell the outbreak of the conflict between Egypt and Israel, which led to the deployment of an international force under the aegis of the United Nations, UN peacekeeping operations have grown in number and sophistication,and Canada’s commitment has been unwavering. To date, more than 100 000 Canadians have taken part in over 40 missions. It would therefore seem natural for that commitment to be expressed in an intellectual and material contribution, disproportionate if necessary, to building a justice system. The fundamental principles that make Canada’s criminal law legitimate and effective are exportable, and they cannot be conveyed merely by advocating ideas at diplomatic meetings. They must be promoted by commitment to the issue and actual presence on the ground. This calls for a plan of action that encompasses the major themes of Canada’s global presence and reflects Canada’s wealth of the necessary raw materials: intellectual capital, humanism and audacity.

In his excellent book entitled Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press, 2000), Gary Bass skilfully addresses the gap between national ideals and foreign policy, especially in the United States. Bass takes the opposite position. Relying on recent political science studies, he notes that in some areas, the foreign policy of states amounts to an extension of their basic social commitments as nations. As an example, he cites a study showing that the states that are most generous in terms of humanitarian aid are the ones that have the most generous social welfare programs at home. Bass carries over this premise, at pages 17 and 18, to what I would call the export of programs to foster peace:

I argue that liberal ideals make liberal states take up the cause of international justice, treating their humbled foes in a way utterly divorced from the methods carried by illiberal states.

What does this mean for war crimes tribunals? If a war crimes tribunal is victors’ justice, it makes a difference who the victors are. Victorious legalist liberal states tend to operate abroad by some of the same rules they observe at home. A trial, the supreme legalistic act, wrote liberal political theorist Judith Shklar, “like all political acts, does not take place in a vacuum. It is part of a whole complex of other institutions, habits, and beliefs. A trial within a constitutional government is not like a trial in a state of near-anarchy, or in a totalitarian order.”

There has also been a great deal of discussion in Canada about the shift of political issues into the judicial arena, and the expansion of that arena as a forum for debate between values that were formerly expressed in the political arena. I do not think it would be premature to say that a similar shift is taking place at the international level, in response to initiatives by the liberal states to which Gary Bass refers, which do indeed champion the rule of law, and the supremacy of the law over force. I would not go so far as to suggest that we are going to see law gain the upper hand over politics in the international arena, but I do believe that the rising importance of the law is an inevitable consequence of the globalization of rights.

There has also been considerable discussion about when humanitarian intervention is legitimate, lawful and appropriate, particularly in connection with the NATO air strikes in Kosovo. The Canadian initiative announced last September, which established an International Commission on Intervention and State Sovereignty, is very much a part of this process, and its proceedings are sure to be followed very closely. I suspect that recognition of a positive legal duty to intervene is still very far off, even in cases of imminent humanitarian catastrophe, just as, at the other end of the spectrum, we are having serious problems getting aggression defined as a war crime. But between these two poles there is the germ of a political will both to prevent and to punish crimes against humanity and genocide. Intervention does not necessarily involve force; it may consist of a demand for an accounting. Crime, particularly violations of the laws of war that apply to internal armed conflicts, is at the heart of the debate about the legitimacy and legality of either kind of intervention.

I also suspect that the emphasis on holding political and military leaders personally responsible for crimes they claim to have committed on behalf of a state or of a people within a state they repudiate, makes it easier to reject the notion that state sovereignty should prevent such leaders from being called to account by the community targeted by their actions that is to say, humanity as a whole.

And yet, having stated the need for liberal democracies to place the emphasis on exporting their standards of justice and their commitment to the rule of law, Gary Bass, whom I mentioned earlier, points out the most serious obstacle to the spread of these ideas, which others might consider a kind of legal and law-enforcement imperialism. Bass argues that the liberal democracies involved in these international justice projects consistently decline to make the ultimate commitment on the ground, if such an effort puts the lives of their soldiers at risk. This is where the distinction between the various types of peace officers becomes significant. According to the legal meaning of that expression in Canadian law, police officers who serve in Canada are peace officers; Canadian troops in Bosnia are not. This is an inexplicable lacuna in an international legal order that invests more than $200 million a year in a criminal justice exercise that still has not resolved its growing pains when it comes to intervention. The moderate use of force to apprehend internationally indicted war criminals rests on a relatively solid bedrock of legitimacy and legality, but it demands that states make a political and operational commitment. It seems to me that this is a reasonable limitation on the extent to which responsibility may be abdicated to non-state actors. It is difficult to imagine how international civil society could organize itself outside the state framework to fill this lacuna. We are all familiar with Doctors Without Borders, Reporters Without Borders and Lawyers Without Borders, but it is harder to envision Police Without Borders. It is these inevitable limitations on the privatization of state functions that should prompt international organizations to give serious thought to the question of which functions properly fall to them.

The inertia of the international actors is one of many obvious indications of how difficult it is for international law to adjust to the exigencies of this newcomer to the playing field, criminal law. On a number of occasions, I have pointed out the problems inherent in attempting to graft these two legal disciplines together, so that criminal sanctions can be used to secure compliance with international humanitarian law. Public international law was initially intended to regulate relations between states, and as such it is essentially consensual law. It is concerned more with the principle than with the fine details of rules, and is very mindful of state practice, from which a large portion of its substance is derived. It incorporates concepts and traditions from a variety of legal systems, is respectful of states’ interests and is very sensitive to political considerations. Criminal law, on the other hand, is coercive, authoritarian and rigid. It is concerned with details and particular facts, and it is applied on the basis of precise rules. It has little use for the methodology of comparative law. It perceives political considerations as irrelevant, or even as pernicious or dangerous. In the final analysis, however, there are certain basic principles that are common to both disciplines. In their modern incarnations, both seek to protect individual rights and to preserve peace and order. Grafting public international law onto criminal law is unquestionably a challenge, which is exacerbated by the cultural clash that occurs when the different legal traditions meet. As Isaid earlier, the gulfs between private and commercial legal systems have already been narrowed to a considerable extent, in order to meet the needs of the modern economy and business world. No such cross-fertilization has yet occurred in criminal law, there being generally little exchange between the different systems. Criminal trials in common law jurisdictions are, therefore, still fundamentally different from criminal trials in civil law jurisdictions.

As well, we too often cling to petty battles about things like minute procedural details that reflect the contributions of the major legal systems found in the West, which derive from or are related to the common law or the civil law (whether it is called Roman or Continental law), when what needs to be done first is to firm up the fundamental premises of criminal justice. On the question of procedure, only a few major principles should be non-negotiable. I would suggest that the most important of these principles are the independence and integrity of the judiciary and the right to a fair and public trial with a real possibility of acquittal.

It is only liberal states that genuinely support the idea of war crimes trials. They see such trials as a natural extension of the concept of universal rights, which is itself the cornerstone of individual rights-based democracies (Bass, pp. 20-26). I am in complete agreement with Gary Bass’s contention that modern international war crimes trials necessarily embody Western demands for procedural fairness, both in reality and in principle. No one is arguing that war crimes trials should be less than fair, as we understand the concept of fairness, because those who might have instead positioned themselves in the forefront of the resistance to any form of international justice.

Of course, there are some who resist the universalization of the rule of law, or at least the export of criminal justice norms to the international level. In addition to resisting the idea that they should be subject to judgment by foreigners, which requires them to reject any truly universal model of criminal responsibility, they will argue that by participating in any efforts toward an international justice system they would risk corrupting their own systems. At page 25 of his book, Gary Bass points to a very clear example in the words of Harlan Fiske Stone, then Chief Justice of the United States Supreme Court. Referring to the work of his colleague Justice Robert Jackson, chief prosecutor of the American delegation to the Nuremberg trials, the Chief Justice said:

It would not disturb me greatly … if power were openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the constitutional safeguards to those charged with crime…

Jackson is away conducting his high-grade lynching party in Nuremberg. … I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas. (Quoted in Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law, New York, Viking, 1956, p. 176).

It is easy, of course, to criticize the shortcomings of an endeavour in which one declines to get involved. The contrast between the vision of Chief Justice Stone, who expressed a preference for, or at least some tolerance of, the summary justice of the gallows, and that of Justice Jackson, as expressed in his opening statement at the Nuremberg trials, is striking:

That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason. (Justice Robert Jackson, U.S. opening statement at Nuremberg.)

Despite the dominant role played by American lawyers at Nuremberg, there are few echoes of this great ideological debate in the United States today. Canada, however, as a member of a democratic coalition, is strategically positioned to urge an ideal model of justice. We are able to formulate realistic expectations about the way the model should function. We must first recognize that the need to invoke the criminal process generally amounts to a recognition that other social institutions such as the educational system, child and family services, the family itself, the mental health system, income redistribution schemes, and sometimes even the cultural community and the media have failed. We cannot expect that criminal justice will cure all social ills, especially since the justice system can act only in some form of association with a number of other institutions that provide evidence, diagnosis, rehabilitation support, and fundamental affirmation of a range of shared moral values and a common social vision. As long as the international criminal justice system has to operate without the help of local social institutions, or, worse, in conflict with them, we must give it the same kind of support that we give to reconstruction efforts to relieve the devastation caused by war and the violent crimes often associated with it.

Since international criminal justice cannot rely on an institutional partnership to support its vision, it must define itself. A fundamental choice must be made regarding the nature of the judicial process and, more specifically, about the actual objective of the trials. There are essentially two options. Given the problems that exist, the first is to set modest objectives for the trials themselves. It is already a monumental job simply to prove the commission of a crime, in the narrow technical sense, such as the planning and commission of a homicide, in the presence of the legal circumstances required for the homicide to be a crime under international jurisdiction. Given the ultra-sceptical and ultra-critical atmosphere in which this type of criminal tribunal must operate, the basic idea of the first model would be to keep things as simple as possible, and to do everything we can to achieve a speedy final disposition in each individual case.

The second model is more ambitious. Unlike the first, it envisages a trial directed toward shedding light on the broader context. This involves painting a complex historical fresco, not only to establish individual guilt, but also to use the dramatic setting of the trial to build the collective memory that will enable victims and perpetrators alike, and even entire populations, to purge their brutal past. (For a very persuasive argument in support of this model, see Mark Osiel, Mass Atrocity, Collective Memory and the Law, Transaction Publishers, 1997.)

If we consider both the nature of the crimes involved and the efforts, at the international level, that have been put into prosecuting the people responsible, it seems to me that the second model is the one that is needed. A commitment to that model, however, involves serious consequences that must be clearly stated at the outset, and accepted as the unavoidable price of such an ambitious vision. In order for the criminal process to be able to undertake this historic task, certain basic premises and traditional requirements of criminal justice at the national level may need significant modifications.

It is also important to consider from the outset whether it is realistic to expect a criminal prosecutor to take on the job of an historian. Criminal prosecution is a much more threatening endeavour than historical analysis, for peoples that have already built a collective memory in which the truth as it is understood by a court of law is not a major ingredient. History leaves room for doubt. It is a work in progress, that seeks to reconstruct a past that has been influenced, understood and revised having regard to the present and even the future. The justice system, on the other hand, demands irreversible conclusions. It allies itself with a permanent, official interpretation of the facts, which often produces irreversible consequences. It prefers detailed reconstructions of specific events, with proof to a high degree of certainty, to satisfy its own need for finality. The need for review and, worse, the possibility of error, must be kept to a minimum, both to protect those who would suffer the irreversible consequences of the initial erroneous judgment and to ensure the credibility, and thus the continued legitimacy, of the justice system itself. At the same time, if it is genuinely possible for a criminal trial to result in acquittal, which is an absolute prerequisite for a fair trial, this could be perceived as an affront to historical reality, as there are those who will characterize an acquittal as an official repudiation of everything the prosecution alleged, including the context that was relevant to the question of guilt under the law.

For example, the incessant claims that the International Criminal Tribunal for the Former Yugoslavia (ICTY) is anti-Serb result from a distorted view of reality. The ICTY is not anti-Serb. Why do some people in Belgrade, and even elsewhere, perceive it as such? There are several reasons, some of which are unrelated to any rational discourse. But it is also, in part, because there is no satisfactory answer to the question of why there are only two international criminal tribunals. The fact that other individuals who may be just as guilty are not being prosecuted, does not make those who are prosecuted any less guilty, but it does make targeting them less fair. When you are engaged in the business of justice, it is very costly, and even dangerous, to be less than fair, or even to be perceived as such. And when you are engaged in the business of truth, you have to tell it all.

When a major international trial is held, problems of access to information and evidence will arise at every turn. When the aim is to lay out the entire warp and weft of a war and expose the sordid role played by powerful leaders, traditional investigative methods are scarcely sufficient, and even those methods are often unavailable. It would be an unimaginable task to try to reconstruct military operations and political discussions at the highest levels of government without having access either to the records of the parties directly involved in the conflict or to the intelligence in the hands of those who were observing them at the times in question. Plainly, this is not the environment in which a criminal investigation is traditionally conducted. This means that countries that take the interests of international criminal justice to heart will have to adjust to the new constraints within which investigators must operate by facilitating access to the information needed, and by re-evaluating the ways in which national interests are traditionally protected. In addition, proceedings in an international criminal court should be responsive to states’ concerns, while relying on evidence that is verifiably reliable. Proceedings before the ad hoc tribunals are a clear example of this. In this regard, I would like to cite two documents. First, while Article 70 of the ICTY Rules of Procedure and Evidence, which allows the Prosecutor to receive information on a confidential basis and to use it solely for the purposes of investigation, not as evidence before the Court, has led to much greater cooperation on the part of some states, it puts the Prosecutor in a somewhat unenviable position. Prosecutors cannot use information without the consent of the state or person who provided it to them under the protection of Article 70. This makes it very difficult to bring indictments, and even more difficult to initiate a trial, without knowing in advance what evidence will actually be available when the critical time comes.

This situation is also connected to the question of the compellability of states before international criminal bodies. The ICTY acknowledged in the Blaskic case that for the purposes of a criminal investigation, no binding orders can be issued to states that are believed to hold information relevant to an indictment. I know of no system of criminal justice that can operate without the power to compel the production of documents or the appearance of witnesses. In fact, in the dispute that arose between the Office of the Prosecutor and Croatia and its then Minister of Defence during the trial of General Blaskic, Canada intervened and submitted an amicus curiae brief to the Tribunal in support of the Prosecutor’s position regarding the power to compel, and was joined by three other states who shared that view. While the majority of states did not comment on this issue in Blaskic, China alone submitted written argument in support of Croatia’s position.

The legal precedent created in that case is crucial to the future operations of the International Criminal Court. Even more crucial is the actual commitment needed from those who will have to consider the issue of the scope of state secrecy versus the requirements of criminal justice. In this regard, as in many others, Canadian criminal justice is exportable; not necessarily in terms of its formulas, the fine points of its rules and procedure, or even some of its fundamental constitutional characteristics such as the right to a trial by jury, but for its deeply rooted vision of responsibility, transparency and equality.

The second generation of peacekeeping initiatives, this time involving the justice system, is still in its infancy. It is no longer a matter simply of negotiating a cease-fire or a resolution to a conflict and then deploying a military and/or civilian mission to implement it. This vision is much more ambitious. The mere act of intervention, even as an arbitrator, reflects a moral commitment of solidarity with “the other”. But rationalizing intervention by claiming neutrality is no longer acceptable, if it ever was. The ascension of the legalist and judicial approach in the international arena is similar to what Canada has experienced over the last 20 years under the Charter. Canada’s commitment to a civil and universal vision of peace through justice should continue to be at the leading edge, not of any moralistic discourse, but of committed actions. As Lester B. Pearson said in reference to peacekeeping operations in his Nobel acceptance speech:

If, on that foundation, we do not build something more permanent and stronger, we will once again have ignored realities, rejected opportunities and betrayed our duty.