The Court of Appeal and the Supreme Court of British Columbia

Commentaire d’arrêt : L’Affaire Araya et l’accès aux recours civils fondés sur le droit coutumier international au Canada

Les recours civils fondés sur la coutume internationale en sont encore à leurs balbutiements au Canada, mais ils sont ancrés dans l’argument logique que la coutume internationale, tel qu’elle est incorporée dans le droit canadien, peut servir comme fondement pour une cause d’action en réparation. Plus récemment, la recevabilité de l’affaire Araya c Nevsun Resources Ltd. a été examinée par la Cour suprême et la Cour d’appel de la Colombie-Britannique (C-B). La question novatrice de cette poursuite est celle de savoir si une personne non citoyenne peut se prévaloir d’un recours civil au Canada pour les violations du droit coutumier international, voire les principes jus cogens en matière des droits de l’homme. Comme nous le verrons dans cet article, l’affaire Araya est sur le point de faire évoluer le droit canadien en la matière.
Burundian Refugee Camp, Uganda (2018).

Prosecutors on the Front Line: Inside European War Crimes Units

They work from the Netherlands, Denmark or the United Kingdom, but they deal with mass crimes occurring on the other side of the world – in Syria, Rwanda or Nepal. “They” are the prosecutors in the war crimes units (WCUs). These highly specialized professionals are tasked with bringing to justice war criminals present on European soil, regardless of where their alleged crimes were committed. We met with these dedicated individuals who, in challenging circumstances and through endless legal complexities, seek justice for the most severe crimes.
Rohingya refugees entering Bangladesh.

Case Comment: Can the Office of the Prosecutor investigate the deportation of the Rohingya?

The Office of the Prosecutor applied to the Pre-Trial Division of the International Court of Justice for the first time for an early ruling on the jurisdiction of the court. In order to commence an investigation in the Rohingya affair, the Prosecutor needed to know whether the ICC had jurisdiction where these people were forced to move from a non-State Party to a State Party.
MONUSCO peacekeepers conduct cordon-and-search operations in camps in the area of Aveba that sheltered the positions of the Front for Patriotic Resistance in Ituri elements, in order to facilitate the prompt return of displaced populations.

Case Comment: Review of the Appeals against the Reparations Order in Prosecutor v. Germain Katanga

On March 8, 2018, the ICC Appeals Chamber largely confirmed the reparations decision of the Trial Chamber in Prosecutor v. Germain Katanga. Katanga was convicted in March 2014 of being an accessory to war crimes and crimes against humanity relating to conflict in the Democratic Republic of Congo. Despite its overall support, the Appeals Chamber did make some pointed obiter comments of the trial level’s approach to determining reparations. Protracted and complex individual assessments had been conducted, but in the end not relied upon, as each victim had been awarded a set US$250. In this regard, the Appeals Chamber emphasized that proceedings intended to compensate victims need to be as expeditious and cost effective as possible.
Bunia, the capital of the Ituri province that was plagued by violence during the conflict.

Case Comment: Lubanga: New Direction in Reparations Liability from the ICC

In the largest reparations case to date from the International Criminal Court (ICC), the Trial Chamber II handed down its decision in the Lubanga case in December 2017.1 The decision, rendered by judges Marc Perrin de Brichambaut (Presiding), Olga Herrera Carbuccia, and Péter Kovác, had two main objectives, namely to implement the Appeal Chamber’s earlier order, the Order for Reparations of 3 March 2015 (The “2015 Order”), and to set an amount for reparations.
Law books inside the Parliament of Victoria

Analysis: Extended Liability in the Magnitsky Act

The Magnitsky Act contains some unusual concepts in respect to extended liability, which cannot be interpreted by referring to Canadian criminal law. This article will attempt to address this lacuna by looking at a wide range of domestic and international instruments to suggest a reasonable interpretation of the words used in this piece of legislation to connote involvement in prohibited activities.
The judges’ table in a courtroom of the Constitutional Court of South Africa in Johannesburg

Case Comment: The Reach of South Africa’s Anti-Terrorism Law

The Constitutional Court of South Africa ensured that a permanent resident could be tried and convicted of terrorist activity under domestic law for bombings he had orchestrated in his country of citizenship, Nigeria, by rejecting a narrow interpretation of South African anti-terrorism legislation, while rejecting his reliance on the “armed struggle” exception to its definition of terrorism.
Refugees in Central African Republic observe Rwandan soldiers

Commentaire d’arrêt : L’Affaire Bemba – Les violences sexuelles et la responsabilité pénale des chefs militaires et des supérieurs hiérarchiques

Le 21 mars 2016, M. Jean-Pierre Bemba Gombo a été déclaré coupable et condamné, trois mois plus tard, à 18 ans de prison pour les crimes contre l’humanité et les crimes de guerre commis par les soldats du Mouvement de libération du Congo en République centrafricaine. Ce faisant, la Cour pénale internationale a rendu son premier jugement sur base de la responsabilité du chef militaire et du supérieur hiérarchique. Cette décision a été portée en appel. Suite aux audiences tenues en janvier 2018, M. Bemba attend le verdict de la chambre d’appel. 
Map of the San Juan River in 1851

Case Comment: The International Court of Justice Orders Compensation for Environmental Damage

The International Court of Justice for the first time assessed environmental damage in the context of a case brought by Costa Rica against Nicaragua for damage to protected wetlands in operations on territory that the Court determined belonged to Costa Rica. The Court had to determine the methodology that it would apply to assess environmental damages and its evidentiary requirements. The Court also determined the costs and expenses Costa Rica claimed were caused by the intrusion of Nicaragua.
Coal mining excavator

Analysis: A New Scheme For Canadian Corporate Responsibility Operating Abroad

The federal government has announced the creation of a Canadian Ombudsperson for Responsible Enterprise to carry out its international obligations and to ensure that Canadian companies operating abroad act responsibly in the communities in which they operate. This article will look at the government’s description of the new office it will create as well as the current mechanisms aimed at this goal.
Picture of chain link

Case Comment: Inter-American Court Issues its First Decision on Modern Day Slavery: Case of Hacienda Brasil Verde

The Inter-American Court of Human Rights issued its first decision on the right not to be subjected to slavery and trafficking. The case concerned the working conditions of labourers at Hacienda Brasil Verde, a privately-owned cattle ranch in Brazil. The Inter-American Court explored the meaning of modern-day slavery – a notion that originates from, but no longer mimics directly the historical practice of ownership of persons as property. 
Photographs of victims of Mengistu’s Derg regime at the Red Terror Martyrs Memorial Museum, Addis Ababa (Ethiopia)

Case Comment: Dutch Court Convicts Ethiopian War Criminal to Life Imprisonment

There have been a number of proceedings against officials of the brutal Mengistu regime in Ethiopia, from criminal proceedings in that country to immigration and extradition processes in countries in Europe and North America. The decision of the Dutch court represents a unique contribution to this developing jurisprudence with respect to Ethiopia and international criminal law in general.
LAV-25 of 12th Armored Regiment of Canada at the Combat Center’s training area.

Comment: Canada’s Trade-off Between Arms and Human Rights

Canada has exported light armoured vehicles to Saudi Arabia for many years. In 2016, the federal government approved the export of more of these vehicles worth billions of dollars and supplying many Canadian jobs. There had been no reported incidents of these vehicles being used against civilian populations until last summer, when photos and videos of the deployment of these weapons raised concerns about their use. A judicial review application of the approval of the newest export permits was dismissed for lack of this critical evidence in January, 2017. After the videos came to light, another application was filed by the same applicant seeking the cancellation of the permits. On January 9, 2018, a Federal Court judge refused to stop the second application at the instance of the federal government. 
The Assembly of States Parties celebrating after the historic activation of the crime of aggression during the final plenary on December 14, 2017.

Analysis: Activating the jurisdiction of the International Criminal Court over the Crime of Aggression

As described in an earlier article, the Assembly of States Parties to the Rome Statute of the International Criminal Court activated the crime of aggression that had “lain dormant” since 1998. Though the activation consensus gave a narrow jurisdiction to the ICC as a compromise, this action gives the crime that one of the Nuremberg judges said was the supreme international crime, containing the accumulated evil of all of the other war crimes, a place to start to develop as a key element of global justice.
Second Week of the Assembly of States Parties to the ICC

News: Second Week of the Assembly of States Parties to the ICC

As mentioned in a previous post, the Canadian Centre for International Justice (CCIJ) attended the Assembly of States Parties (ASP) to the International Criminal Court (ICC) Statute in New York City as a member of the Canadian Partnership for International Justice (“the Canadian Partnership”). The goal of the second week recap, as in the first, is to inform those who were not at the ASP about the topics and discussions that were on the agenda, with relevant links for those who would like to pursue these topics further.
Vancouver Law Courts

Case Comment: Potential Corporate Liability in Transnational Law Redux

The following case comment analyzes the British Columbia Court of Appeal decision in Araya v. Nevsun Resources Ltd, in which the plaintiffs allege Nevsun is liable for actions contrary to international law that occurred in Eritrea at a mining project in that country. The Court of Appeal unanimously dismissed Nevsun’s appeal from the decision of the Chambers judge on the issues of forum non conveniens, the act of state doctrine and potential liability for breaches of customary international law, allowing the action to proceed to trial. The analysis of the Court of Appeal of the issues is detailed and could be read with the decision of the same court in Garcia v. Tahoe Resources Inc. that allowed a similar action to proceed.
First Week of the Assembly of States Parties to the ICC

News: First Week of the Assembly of States Parties to the ICC

The Canadian Centre for International Justice is currently attending the Assembly of States Parties (ASP) to the International Criminal Court (ICC) Statute in New York City as a member of the Canadian Partnership for International Justice (“the Canadian Partnership”). The goal of the first week recap is to inform those who were not at the ASP about the topics and discussions that were on the agenda, with relevant links for those who would like to pursue these topics further.
Justice

Analysis: Thoughts on a Customary International Law Tort and the Canadian Legal System

In an earlier PKI Journal post, James Hendry summarizes the B.C. Supreme Court decision of Chambers Judge Abrioux in Araya v. Nevsun Resources Ltd. on whether there might be a private law claim for breach of customary international law (“CIL”). Following an appeal by Nevsun, that decision was upheld by the B.C. Court of Appeal on November 21, 2017. This article explores some of the legal and policy considerations raised by the breach of CIL claim.