Remedies for Victims Abroad – Remarks to the Seminar on the International Criminal Court for Victims of Human Rights Violations in Asia
February 27, 2004, Manila, Philippines
Matas, David
Global justice is in the air. With the advent of the International Criminal Court, the notion of universal jurisdiction, both civil and criminal, is sweeping the globe. The idea is not confined to the borders of the states that have ratified the Rome Statute. The obligation to provide both criminal and civil remedies for victims wherever they may be found, against perpetrators, wherever they may be found, is customary international law in the making. The Court is more than an institution. It is an idea, a catalyst, and a harbinger of the arrival international justice.
The search for justice is planet wide. Indeed, citizens of states that have not joined the Court are often more in need of justice, hungrier for justice, than citizens of states parties to the Rome Treaty.
International justice is not something that happens somewhere else. International justice begins at home. The International Criminal Court regime is based on the principle of complementarity, that the ICC complements local jurisdictions. That principle extends beyond the ICC to international criminal and civil justice generally. International tribunals will never have enough resources to bring every international criminal to justice. The political will for international justice will prevail only if it is widespread.
It would be a mistake to consider that the vacuum in international justice created by the premature termination of the Nuremberg tribunals after World War II has now been filled by the International Criminal Court. The International Criminal Court is part of the solution to global impunity. But it is far from the only solution.
The creation of the Court is a signal that there is now, as there as been never before, the will for international justice. Civil society must take advantage of that will to develop remedies for victims everywhere, for past wrongs as well as future wrongs, for states not parties to the Statute of the Court, as well as states parties.
Victims of international human rights violations are found both at home, where the violations were committed, and abroad, far from the crimes. The obstacles to seeking justice vary considerably depending on where the victims are found.
Victims often can not expect to find justice in the jurisdictions where the crimes were committed. Perpetrators remain in power and continue their crimes. Or, even if the perpetrators are no longer in power, they have arranged impunity for themselves as the price of their departure. Sometimes, even if the perpetrators have fled without impunity, the devastation perpetrators have wreaked is so complete that the justice system itself is destroyed. Victims seeking justice in countries far from the crimes face the enemies of indifference, ignorance and insularity. When crimes are committed by foreigners against foreigners in a foreign place, the place where the victim is found has a tendency to say, this is not our problem; this is an attempt to import foreign political struggles.
In general, if victims can obtain justice in the place of victimization, that is the preferable forum. Witnesses and documents are at hand. The healing process of justice is most needed in the place of victimization. Justice in the place of victimization is the most effective deterrent to the repetition of the crimes.
Victims seek justice abroad either because the victims are abroad and can not get justice at home or because the perpetrators are abroad. Even if the justice system where the crimes were committed is now functioning, once the perpetrators have fled, it falls to the jurisdiction where the perpetrators are found to bring the perpetrators to justice.
Victims who can not find justice at home should be able to get justice in the places where they flee. Victims, like perpetrators, are everywhere. Victims flee initially to avoid persecution. But eventually they resettle, integrate into new local surroundings. Part of that integration, a necessary component for making that integration successful, is providing justice for the victimization.
Jurisdictions where victims are found have more than a universal jurisdiction interest in universal justice. Places where victims are found need to provide justice to the victims so that the victims can become full, functioning, effective members of the societies they have newly joined.
The question becomes, what can be done for those assisting victims in their search for justice, aside from giving the address of the International Criminal Court in the Hague or of the local police station. Here, given the time at my disposal and the international focus of Amnesty International, I will answer that question only for victims abroad. For these victims, I have ten suggestions to propose.
My examples are drawn from the Canadian experience. But I believe that the lessons learned from that experience have general application.
1. First, canvass the adequacy of existing remedies. If they are obviously deficient, ask for reform. If there is hesitancy about reform, call for a commission of inquiry into the need for reform.
Canada was mired in a system of total immunity for decades. What eventually broke the logjam was the Commission of Inquiry on War Criminals, headed by the Judge Jules Deschenes. The Commission was created in February 1985 and reported in December 1986. It held public hearings about Canada’s sorry past, a past that allowed Nazi war criminals entry en masse into Canada and gave them immunity once they arrived. The judge also held private hearings about named individuals. His Commission made recommendations to change both criminal and civil law to allow both for prosecution and revocation and deportation of war criminals and criminals against humanity. His recommendations led in turn to changes in Canadian law to provide for prosecution in Canada of international criminal fugitives.
The Commission granted intervener status to a number of non-governmental organizations, including one, B’nai Brith Canada, which I represented. Non-governmental organizations were allowed to question witnesses as well as make submissions. Proceedings of the Commission were reported regularly in the media.
The Commission was an effective weapon against indifference. Its proceedings sensitized the public to the need for bringing human rights violators to justice. It mobilized public consciousness and created a dynamic for change.
2. Consider a libel suit. Human rights violations often occur in a context where the victims are vilified by the perpetrators. The vilification becomes a justification for past victimization as well as an incitement to future victimization. A successful libel suit can attack the root causes of the suffering of the victims.
This technique has been used to advantage by Falun Gong in Canada. Falun Gong is a meditation and exercise group that has been horribly victimized in China. It has tried three different libel suits each with different results.
The first sued the Sing Tao newspaper for publishing an article claiming that Falun Gong advocated the destruction of the world. Three Falun Gong practitioners were identified in the article, but many more practitioners joined the law suit. The Ontario Courts allowed the suit of the three identified practitioners to proceed, but struck out the suit of the others on the ground that they were not individually identified in the article. This non-suit decision was appealed first to the Ontario Court of Appeal in May 2003 and then to the Supreme Court of Canada, on a leave application, but without success.
A second libel lawsuit proceeded against the Chinese Deputy Consul General in Toronto, Pan Xinchun. Joel Chipkar, a Falun Gong practitioner, had written a letter to the Canadian newspaper the Toronto Star expressing concern about the cover up of SARS in China. The consul wrote a reply letter to the Toronto Star in which he labelled Chipkar and other Falun Gong practitioners as members of a “sinister cult”. Chipkar won the libel suit against the Chinese consul by default, in December 2003. The consul refused to defend against the lawsuit. The amount awarded against him was $1000 Canadian plus legal fees .
A third lawsuit in Quebec was filed by a number of Falun Gong practitioners against La Presse Chinoise for publishing disparaging articles against the Falun Gong. The articles often just repeated press releases from the Chinese embassy. The Quebec courts, unlike the Ontario courts, allowed the lawsuit to proceed. In addition, pending the lawsuit, the Quebec courts issued a safeguard order against the newspaper prohibiting the paper from repeating the disparagement. The Court this week in Montreal is hearing evidence on the merits of the case .
3. A second civil remedy and the third suggestion I am making here is suing the government of persecution for damages in the forum where the victims are found. If the courts of the forum where the victimization has occurred can not be expected to provide a remedy, the forum of the current residence of the victims provides the next best opportunity.
Most jurisdictions have state immunity legislation. So the issue becomes either fitting within one of the exceptions to that legislation or challenging that legislation.
Both of these legal techniques were tried by Houshang Bouzari. I was one of the lawyers for Bouzari in his lawsuit.
Bouzari was a torture victim in Iran who had to pay a ransom directly into state coffers to escape his torturers. He became a permanent resident of Canada and sued the government of Iran in Canada for return of the ransom and damages.
On Bouzari’s behalf, I argued that the commercial activity exception in the law applied to his case, since he was kidnapped by state agents and tortured in order to remove him from a commercial transaction with a state agency once he had refused to pay a bribe to the son of the then president Hashemi Rafsanjani. I also argued that the State Immunity Act, insofar as it gave an immunity for torture or for violations of other peremptory norms of international law, was unconstitutional, a violation of the Canadian Charter of Rights and Freedoms. Iran did not defend, but the Government of Canada intervened to defend the constitutionality of its legislation, the State Immunity Act.
Bouzari’s case was rejected by the Ontario Superior Court , and then heard by the Ontario Court of Appeal. The Appeal Court asked for further written argument on the question of the extent of connection the victim has to have to the forum for the court to accept jurisdiction. These submissions were due and filed this month, February.
Houshang Bouzari has used this lawsuit as a launching pad for the creation of a new non-governmental organization, InCat, the International Campaign against Torture. Front and centre in its program of action is a proposal to amend the State Immunity Act to provide an exception to state immunity for violations of torture and other peremptory norms of international law. If he succeeds in his lawsuit, this amendment may not be necessary. But if he fails, the campaign to fill the gap in the law he will have identified has already begun.
4. A third form of civil lawsuit and a fourth recourse for victims is a suit for damages against named individuals. This remedy would normally avoid the hazards of state immunity legislation, particularly if the perpetrator is no longer an office holder.
There have been a number of such lawsuits in the United States under the Alien Torts Claim Act and Torture Victim Protection Act. The only requirement for jurisdiction in these cases is that the perpetrator be in the US at least at some point so that the perpetrator can be served with court documents initiating proceedings.
The viability of the Alien Torts Protection Act as a legal remedy has now been put in question by the granting of certiorari in the Alvarez case. Alvarez was kidnapped from Mexico and tried in the United States for the murder of a US drug enforcement agent. He claimed that the US courts had no jurisdiction to try him, because of his kidnapping. The US Supreme Court rejected that argument in 1992. Alvarez was then tried and acquitted for the crime.
After acquittal, Alvarez sued both the US government and his kidnappers for damages under the Alien Torts Claim Act and succeeded in the Ninth Circuit Federal Court of Appeals . The United States Supreme Court has agreed to hear the case, to determine, in part, whether the Alien Torts Claims Act grants a cause of action or merely confers jurisdiction for a cause of action which has to be legislated in some other way. The case will be argued next month, March, in court.
Though the US has been a leader in fashioning the civil remedy for universal wrongs, there now is a risk that this development will be halted by the US Supreme Court. But, if that is so, the judgment will turn on an interpretation of US law, not international law. It may fall to other jurisdictions to pick up the baton the US now runs the risk of dropping.
The Philippines is well aware of the value of this remedy, since it led to an award in Hawaii in favour of torture victims against Ferdinand Marcos in 1995 of $2 billion. One has to wonder even today if such a lawsuit would succeed in the Philippines.
5. Civil litigation can invoke public remedies as well as private remedies. The simplest civil public remedy and the fifth recourse I suggest is asking the government to bar entry to perpetrators.
Most countries have legislation barring entry to war criminals and criminals against humanity. Moreover, the standard of proof for this prohibition is low, far less than the criminal standard of proof beyond a reasonable doubt. It is a simple matter to give a list of suspected perpetrators to the authorities and to ask the authorities to bar their entry.
Again, this is something I have tried on behalf of the Falun Gong. Falon Gong practitioners met with members of the War Crimes Unit of the Royal Canadian Mounted Police explaining to them the victimization the Falun Gong have suffered in China. They then provided a list of names with evidence in support and asked for a prohibition of entry. Included in the list was Jiang Zemin, former President of China and the leader of the repression against the Falun Gong. Falun Gong intends to add names to the list, as it gathers together more information. In total, the group expects to provide as many as ten thousand names.
The Government of Canada has not indicated which, if any, of those whose names the Falun Gong have forwarded will, in fact, be banned from Canada. Privacy legislation prevents this sort of information from being public knowledge. But the mere fact of invoking the remedy serves as a warning.
Right after Falun Gong announced this initiative requesting that Jiang Zemin and others be banned from Canada, a local Chinese radio station asked its callers to phone in a vote whether or not Jiang Zemin should in fact be banned. A clear majority of callers favoured banning.
6. A sixth remedy, a second public civil remedy, is deportation. Once a war criminal or criminal against humanity has arrived, the simplest way of dealing with the criminal may be to get him or her out.
Deportation procedures have the same advantage as prohibition of entry procedures. They are less complex than criminal proceedings; the standard of proof is lower; the rules of evidence are more relaxed. The remedy suffers the disadvantage that the criminal may be relocated without the crime being punished. But where punishment is not available, deportation becomes a next best alternative.
Deportation is a government initiated remedy. But, at higher levels, organizations representing victims can intervene.
The Rwandan community in Canada has been attempting to pursue this remedy in the case of Leon Mugesera. Mugesera gave a speech in November 1992 referring to Tutsis as cockroaches and calling for their extermination. There were mass killings immediately after the speech. Its words and themes became central to the propaganda inciting the genocide of April 1994.
Mugesera fled Rwanda immediately after his speech and surfaced in Canada in August 1993 as a permanent resident. The Government of Canada began removal proceedings against him, claiming misrepresentation, participation in crimes against humanity and incitement to genocide. The Government succeeded at the first two levels but lost at the Federal Court of Appeal . The Supreme Court of Canada has now agreed to hear the case.
The Rwandan community in Canada, needless to say, has followed this case with great interest. They applied unsuccessfully to intervene in the Federal Court of Appeal. I acted as their lawyer in this application. They asked the Government of Canada to seek leave to appeal to the Supreme Court of Canada, which it did. They will, I suspect, apply to intervene in the Supreme Court appeal, now that leave has been granted.
7. The third civil public remedy and the seventh recourse is revocation of citizenship. For those criminals against humanity who have become citizens, revocation of citizenship is a necessary first step towards deportation.
It is this procedure to which both Canada and the United States have resorted for Nazi war criminals. The United States has had more success with the remedy than Canada. For Canada, though there have been several court successes, the procedure has proved so lengthy and cumbersome as to be unworkable. Only three cases in Canada have led to removal, those of Jacob Luitjens, Mamertas Maciukas and Ladislaus Csizsik-Csatary. Maciukas and Csizsik-Csatary left on their own. All three left without exhausting legal recourses.
For those who wish to exhaust every legal recourse, the proceedings are without end. The case against Helmut Oberlander an interpreter for one of the Nazi roving killing units, the Einsatzgruppen, has now been going on for nine years with no end in sight.
The case of Helmut Oberlander, along with that of Johann Dueck and Erichs Tobiass went to the Supreme Court of Canada on the issue of delay. The cases had been taking so long in the Federal Court that counsel for the government was moved to complain to the Chief Justice about the delays of the trial judge. The trouble was that Justice counsel made this complaint without informing counsel for the three individuals concerned. This oversight led to the cases being thrown out by another Federal Court judge. The Federal Court of Appeal overturned this rejection of the cases. This decision was sustained by the Supreme Court of Canada. At the Supreme Court of Canada, I applied to intervene on behalf of B’nai Brith Canada, unsuccessfully. Canadian Jewish Congress was allowed to intervene. Both of us took the position that the cases should continue.
The Supreme Court held in 1997 that the dilatoriness in the cases defied explanation and was inexcusable . Despite those remarks, Tobiass died in Canada before proceedings against him were complete. Seven years after the Supreme Court of Canada criticized its delay, the Oberlander case still goes on.
The extreme frustration advocates for justice have faced in the Nazi war criminal cases have led to a number of suggestions for changing Canadian citizenship law. The government has accepted in principle some of these proposals, to consolidate and accelerate proceedings. Others remain open for discussion.
8. There are a number of criminal remedies that victims can pursue. The preferable remedy, if available, is extradition. Ideally, perpetrators should be tried in the jurisdiction where the crimes were committed. If the regime has changed, that trial becomes possible.
First the victims flee, while the perpetrators are in power. Then the regime collapses and the perpetrators flee, often ending up in the same jurisdiction as their victims. Victims in these circumstances have the best opportunity of invoking the criminal remedy of extradition.
In theory, extradition awaits a request from a foreign government. Surrender awaits a request from an international tribunal. But, here, as elsewhere, there is no need for victims to be passive. Victims can approach foreign jurisdictions to elicit requests for extradition. Or they can approach the jurisdiction where both they and the perpetrators are found to ask this jurisdiction to elicit extradition requests.
Robert Kaplan, who was Solicitor General of Canada from 1983 to 1994, during his tenure toured Western Europe, asking their governments to request extradition from Canada of the Nazi war criminals found on Canadian soil. The tour led to one request from the Netherlands, for Jacob Luitjens, which Canada strangely refused, on the basis that the crime for which extradition was requested, collaboration with the enemy, was not within the extradition treaty. Luitjens was eventually deported to the Netherlands, and the extradition treaty with Holland was changed. But the change had no impact on Luitjens .
While Robert Kaplan was Solicitor General, the Government of Canada acted on an old extradition request from West Germany for Albert Helmut Rauca, a person accused of the murder of 11,500 Jews from Kaunas Lithuania. Rauca fought his extradition by relying on his Canadian citizenship and the right given by the Canadian Charter of Rights and Freedoms to citizens to remain in Canada. I represented Canadian Jewish Congress in the Ontario Court of Appeal, who intervened to support the Government in its extradition proceedings . Rauca lost his court challenge; he was extradited and died in a German jail awaiting trial.
9. The second criminal remedy and my ninth suggestion is private prosecution. There is a tendency to think of prosecution as a public matter. But many jurisdictions allow for private criminal prosecutions.
Private prosecutions, like civil suits, puts the remedy in the hands of the victims rather than the state. The state may be reluctant to prosecute because of the cost of investigations abroad, the expense of translations, the burden of bringing the case to Court. A private prosecution allows the victims to circumvent bureaucratic objections.
It is easy for the state to bury a public investigation, by saying and doing nothing. It is harder for the state to bury a private prosecution. Even if the state can stop the prosecution, the interruption requires a public, visible act for which the state authorities will be held accountable. It becomes harder for the state to say no to a private prosecution than a public prosecution.
Again this is a remedy the Falun Gong in Canada is seeking to invoke. Canada has legislated a universal jurisdiction crime of torture. It is enough to give the courts jurisdiction that the victim is a Canadian citizen.
There is one such victim, Kunlun Zhang, detained and tortured in China between July 2000 and January 2001, who is prepared to launch a private prosecution in Ottawa against his Chinese torturers. The Canadian torture law, at least on one interpretation, requires the consent of the Attorney General of Canada for such a prosecution. Professor Zhang will be seeking that consent.
When and if this consent is provided, the counsel for Zhang can ask a Canadian court to issue an arrest against the perpetrators. The arrest warrant in turn can be forwarded to Interpol, in an attempt to have the perpetrators brought to Canada for trial.
Even if the proceedings stop at this point, they will have served a purpose. The issuance of process is a warning that persecution has consequences. In a country like China, where the desire to immigrate or visit Canada is widespread, the effective prohibition on entry that the launching of a prosecution involves is a deterrent to the continuation of violations. It is a statement from an objective independent source, the Canadian legal system, that the treatment of the victims is prima facie wrong.
10. The final and perhaps the most obvious remedy is a public prosecution for one of the crimes within the jurisdiction of the International Criminal Court, war crimes, crimes against humanity and genocide. Here too there is no need for the victims to be passive.
Victims can draw up a model indictment and present it to the prosecutors. Victims can call on the prosecutors to launch the prosecution.
That is what a panel of international law experts did in Canada preparing and submitting last year a detailed indictment against Robert Mugabe of Zimbabwe. The indictment was endorsed by representatives of three largest political parties, the Liberals, the Alliance and the Bloc Quebecois .
One virtue of national prosecution is that it is not subject to the limitations imposed by the Rome Statute. Some of those limitations are dictated by international law by which states are bound. But others were simply political compromises negotiated to achieve as wide an approval as possible of the Statute at the Rome Conference. States are free to disregard these political compromises when implementing their own prosecution complementarity legislation.
In particular, the provision in the Statute against retroactivity is a political compromise, and not part of international law. International law allows legislation punishing an international crime to be retrospective to the time when the act was an offence at international law. Without such a principle, the Nuremberg prosecutions would have been impossible, since the instrument giving the Nuremberg tribunal jurisdiction did not come into force until after the crimes the tribunal judged had been committed.
The Rome Statute provides that “No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute” . I note with interest that the draft bill for a “Philippine statute on crimes against international humanitarian law and other serious international crimes” repeats much of the Rome Statute, but does not repeat this provision .
That omission, from my perspective, is welcome, but does not go far enough. Canadian legislation is explicit, extending the reach of legislation on war crimes, crimes against humanity and genocide back in time to when the acts were offences at international law . Philippine law, I humbly suggest, needs the same explicit retrospectivity.
The call for an indictment against Robert Mugabe, like many other efforts, may not lead to an immediate remedy. But it provides a voice to the victims. It emphasizes the universality of the wrongs. It raises public consciousness of the violations that have occurred. And if the effort should fail, the failure points a way to a change in the law that will one day lead to justice.
Each jurisdiction is going to present its own opportunities and its own obstacles to universal justice. Victims who seek justice today bear the burden not only of reliving their victimization but also, all too often, of fashioning a remedy.
For some victims, grappling with the legal system invites retraumatization. But, for others, the effort to seek justice can itself be therapeutic. One facet of victimization is the denial of autonomy, powerlessness. Seeking a remedy is a reassertion of individual autonomy and worth. The search for a remedy means being active rather than passive, being a subject rather than an object, being human in answer to dehumanization.
It is unrealistic to expect every victim to take the initiative to seek a remedy. But if no victim does, the remedies will never be developed. Even if there are only a few victims who help to fashion the remedies, those remedies, once developed, become available for all. Perpetrators are held accountable. Precedents are set. Future wrongs are deterred.
For those of us who are serious in helping victims to seek justice, we need to direct our help to the construction of remedies. Today there are rights. Tomorrow there must be remedies.
David Matas is a lawyer in private practice in Winnipeg, Manitoba, Canada. He is a member of the Amnesty International Anti-Impunity Working Group.