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.
U.S. Army soldiers and United Nations’ police move down a muddy alley way in Mitrovica, Kosovo, as they conduct a house-to-house search for weapons on Feb. 21, 2000.

Analysis: The Specialist Chambers and Specialist Prosecutor in Kosovo

On June 28, 2017, the Specialist Chambers of the Constitutional Court of Kosovo (SCCC), a court composed entirely of non-nationals of Kosovo, delivered a decision under the Constitution of Kosovo at The Hague. None of the judges of the Chamber were Kosovar; they were from Ireland, Italy and the Netherlands; and the decision was rendered at The Hague in the Netherlands. How and why was a Constitutional Court presided over by non-nationals, authorized to deliver a decision on the Constitution of Kosovo in another country?
The operations launched by the Armed Forces of the DRC, with the support of MONUSCO, against militiamen of the Force de résistance patriotique de l’Ituri, have enabled the gradual return of populations to Aveba and surrounding areas.

Case Comment: Reparations for Death and Destruction in the Congo

On March 7, 2014, Congolese warlord Germain Katanga was found guilty by the International Criminal Court (ICC) of being an accessory to crimes against humanity and war crimes as a result of an attack that took place in the Democratic Republic of Congo (DRC) in 2003. The charges relating to crimes against humanity were for murder, and the four war crimes were murder, attacking a civilian population, destruction of property and pillaging.
A school in Koindu damaged during the Sierra Leone Civil War by the Revolutionary United Front (RUF).

Analysis: The Notion of Civilians in International Criminal Law

The traditional and long held view has been that there a number of fundamental differences between war crimes and crimes against humanity. They are, in general, six essential elements. Of these six elements of war crimes and crimes against humanity, the element defining the category of crime by category of victim, has undergone a drastic change in 2017 in both the area of war crimes and crimes against humanity. This has been the result of judicial decisions at both the International Criminal Court (ICC) and the Extraordinary Chamber in the Courts of Cambodia (ECCC). The ICC addressed the issues of whether war crimes can be committed against soldiers belonging to the same party to the conflict while the ECCC examined whether soldiers can also be victims of crimes against humanity.
Sergei Magnitsky

Commentary: The Magnitsky Act – A Bold Step Forward, but Changes Needed

The Canadian Centre for International Justice (CCIJ) applauds the Government of Canada and the Canadian Parliament for granting unanimous consent to the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) on October 4. The Act enables the government to take measures against foreign nationals who are responsible for or complicit in corruption and gross violations of internationally-recognized human rights and freedoms. This long-awaited legislation fills a vacuum in Canadian law, creating sanctions and remedies. It serves as a much-needed tool against impunity for human rights violations and corruption, and for the rule of law and accountability in free and democratic societies.
Candles burning in Patiala, southeastern Punjab.

Case Comment: The Value of Assurances in Extradition Proceedings

India recently requested the extradition of Surjit Singh Badesha and Makit Kaur Sidhu who are Canadian citizens suspected of having conspired to murder Jaswinder Kaur Sidhu, the niece of Badesha and daughter of Sidhu, in an “honour killing”. The case reached the Supreme Court of Canada which released its decision on September 8, 2017. The central issue for the Court was whether the quality and role of assurances given by the Indian government justified the Minister of Justice’s finding that neither accused faced a substantial risk of torture or other mistreatment while in custody when surrendered to India for trial. That kind of risk would have been contrary to s. 7 of the Charter and s. 44(1(a) of the Extradition Act, which precludes extradition where the surrender would be “otherwise unjust or oppressive” in the circumstances.
Residents of Timbuktu pass by Djingareyber Mosque. The Mosque is one of the historical architectural structures which together earned Timbuktu the designation of World Heritage Site by UNESCO.

Case Comment: Reparations for the Destruction of the Precious Past

This article will explore the procedures and principles applied by the International Criminal Court (ICC) in ordering reparations for damage done to World Heritage sites. The case is remarkable because it was the first international trial concerning the destruction of historical and religious monuments alone and reparations for a war crime that was aimed at damage to such buildings and economic loss flowing from it, and not to victims of personal violence. It was also the first ICC case where the defendant admitted guilt.
Defendants at the International Military Tribunal for the Far East, 1946.

Analysis: Judges as Perpetrators of War Crimes and Crimes Against Humanity

While it is uncommon, judges have been subject to disciplinary proceedings or even criminal trials. Often these criminal charges dealt with corruption but at times they have also involved more serious offences, such as murder. However, it almost unheard of to have the criminal process used to convict judges of international crimes, such as war crimes or crimes against humanity.
Explosive remnants of war in post revolution Libya.

Case Comment: New Arrest Warrant at the International Criminal Court

On August 14, 2017, the Pre-Trial Chamber (PTC) of the ICC issued a warrant for the arrest of Mahmoud Mustafa Busayf Al-Werfalli in the situation, pertaining to Libya after the fall of the Gaddafi regime, referred to the Prosecutor by the Security Council. This is the 33rd person against whom proceedings have started by the Prosecutor of the ICC since the inception of the court in 2002, either by way of arrest warrant or as a result of a summons to appear. He is also the fifth person against whom a warrant for arrest was issued in the Libyan situation, although the first one who was not connected the Gaddafi government for the commission of international crimes in 2011. The allegations against Al-Werfalli are related to incidents which occurred between June and July of this year.
Sudanese president Omar Al-Bashir arrives in the southern capital of Juba.

Case Comment: The Reach of an ICC Arrest Warrant

An earlier article in this Journal considered the attempt by the executive of the Government of South Africa to cut its ties with the ICC out of concern about the warrants issued by the Court for the arrest and surrender of Omar Hassan Ahmad Al-Bashir and the ruling of the High Court that the attempt was unconstitutional. The High Court and the Supreme Court of Appeals had earlier held that the Government’s refusal to act on the warrants was a breach of domestic law. South Africa continuously maintained that its duty to arrest a visiting Head of State interfered with its ability to engage in diplomacy in Africa.
Court of Appeal and Supreme Court of British Columbia

Case Comment: Potential Corporate Liability in Transnational Law

An earlier article in this Journal discussed a preliminary application made by Nevsun Resources Ltd., a British Columbia mining company, to defeat an action brought against it by Eritrean nationals alleging breaches of their rights in the operation of the Bisha mine in Eritrea from proceeding in BC. Nevsun pleaded that the mine is owned and operated by Bisha Mining Share Company (“BMSC”). For the purposes of the application, the Chambers judge, Abrioux J., found that BMSC was effectively controlled by Nevsun which had pleaded that it was an “indirect shareholder” in BMSC. The central issue in the action is the liability of Nevsun for alleged torts and human rights breaches based on injuries occurring in Eritrea. The earlier article in this Journal analyzed the issue raised in this application, about whether British Columbia was forum non conveniens. The Chambers judge held that it was not.