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International criminal law in Canada

A prezi describing some of the difficulties associated with the implementation into Canadian law of the Rome Statute of the ICC, with particular emphasis on expansive modes of liability in international criminal law and how these might clash with Charter

Frédéric Mégret

on 26 November 2010

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Transcript of International criminal law in Canada

International criminal law in Canada:
The problem of command responsibility "The requisite mental element of a war crime or a crime against humanity should be based on a subjective test. (...) False information and slanted reporting is so predominant that it cannot be automatically assumed that persons in units such as the Gendarmerie would really know that they were part of a plot to exterminate an entire race of people." R. v. Martineau, [1990] 2 S.C.R. 633 R. v. Finta, [1994] 1 S.C.R. 701 ICTY, Tadic:
JCE1: "all co-defendants, acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a different role within it), they nevertheless all possess the intent to kill"
JCE 2: "The second distinct category of cases is in many respects similar to that set forth above, and embraces the so-called “concentration camp” cases. The notion of common purpose was applied to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running the concentration camps i.e. by groups of persons acting pursuant to a concerted plan…"
JCE3: The third category concerns cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act, which while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose.
Leadership of the Nazi party,
Schutzstaffel (SS) and Sicherheitsdienst (SD),
Sturmabteilung (SA)
"General Staff and High Command JCE Criminality of organizations Command responsibility Rome Statute of the ICC Conspiracy "During much of the discussion, the Russians and French seemed unable to grasp all the implications of the concept; when they finally did grasp it, they were genuinely shocked. The French viewed it entirely as a barbarous legal mechanism unworthy of modern law, while the Soviets seemed to have shaken their head in wonderment—a reaction, some cynics may believe, prompted by envy". Bradley Smith Essen Lynching Case Section 1? (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; "The Accused is not charged with having done something or having failed to do something, but solely with having been something….American jurisprudence recognizes no such principle so far as its own military personnel are concerned….No one would even suggest that the Commanding General of an American occupational force becomes a criminal every time an American soldier violates the law…one man is not held to answer for the crime of another". Harry E. Clarke, Sr., Yamashita's lawyer Correlation of mens rea with:
Stigma of the offence
Severity of the punishment Principle of fundamental justice Crimes against Humanity and War Crimes Act R v. Vaillancourt (1987) Deriliction of duty offence? Mugesera v. Canada (2005)
"the accused must have knowledge of the attack and must know that his or her acts are part of the attack or at least take the risk that his or her acts will compromise part of it"
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