Canada

1 A Short History of Domestic Prosecutions of International Crimes Prior to Implementing Legislation

Canadian case law presents a modest collection of decisions dealing with the law of armed conflict. A handful of reported cases dealt with escaped prisoners-of-war in Western Canada during World War II,1 applying the 1929 Geneva Convention.2 Canada was one of the few Allies not to participate actively in the United Nations War Crimes Commission. The war crimes prosecutions in the aftermath of World War II were of modest proportions,3 although one precedent is still cited today as an authority on command responsibility.4 Canada then became somewhat of a haven for fleeing Nazis.5 It was only in the 1980s, under pressure from Jewish organisations,6 that the Government established a commission of inquiry into the presence of war criminals in Canada. The Commission's president was a distinguished judge, Jules Deschenes.7 A decade later, he was one of the first judges elected to the International Criminal Tribunal for the former Yugoslavia (ICTY), where he had the distinction of being part of the majority in the famous Tadic decision.8

The report of the Deschenes Commission identified more than 800 suspected Nazi war criminals who were resident in Canada. Parliament responded by enacting legislation allowing for prosecution of war crimes and crimes against humanity on the basis of universal jurisdiction. The amendments to the Criminal Code9 authorised the courts to adjudicate crimes committed abroad by foreign nationals, to the extent that (a) they constituted crimes against humanity or war crimes under customary international law, and (b) they had been punishable under Canadian law at the time they were committed. Canada's Constitution makes an exception to the principle of non-retroactivity of criminal offences where these are recognised at international law or the general principles of law recognised by the community of nations.10

Investigations of the cases identified in the Deschenes report led to only four prosecutions, none of them successful. The most important of them was that of a Hungarian collaborator named Imre Finta. Finta did not testify in his own defence, and never denied charges that he had participated in the 'de-jewification' of Szeged during the spring of 1944. This involved expropriation, ghettoisation, concentration, entrainment and eventual deportation (primarily to Auschwitz and Birkenau) of all Hungarian Jews, and was unquestionably part of the 'Final Solution'. Finta was charged with crimes against humanity involving the unlawful confinement, robbery, kidnapping and manslaughter of 8,617 Jews. The reasons for Finta's acquittal remain locked in the consciences of the jurors. Subsequent litigation focused on the trial judge's charge to the jury, which may or may not have been decisive in the ultimate determination of guilt or innocence. Essentially, the judge invited the jury to consider that even if Finta had committed the acts charged, they did not rise to the level of crimes against humanity, given that Finta might have assumed he was following lawful orders i...

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