Prisoners of War in the Hands of their Power of Origin: For an Application of the Geneva Conventions Until Their "Definitive Release and Repatriation", 2009

This paper assumes that at least some of the persons detained within the framework of the global confrontation against terrorism should have been granted the status of prisoners of war. This raises the question of what should be happening to these prisoners of war once they are transferred to their country of origin. Persons deprived of freedom within the framework of the global confrontation against terrorism are considered as enemies by both the detaining authorities and the authorities from their country of origin. This is happening either because the latter changed between the moment they were made prisoners and the moment they are transferred (e.g. Afghanistan, Irak) or because the have always been part of the opposition to their authorities. Being transferred to a country which should have offered them at least consular protection, and did not, means that they are once again jailed, abused, tortured, threatened, deprived of contacts with their family, etc.

This paper argues that prisoners of war should continue to benefit from this status if they are transferred to a country which will continue to detain them essentially because of their participation to an armed conflict, even if the receiving country is the prisoner of war’s country of origin. This position is founded on three arguments: (1) the Geneva POW Convention specifies it continues to apply until “final release and repatriation”; (2) international obligations forbid transferring someone to a country where they fear persecution; (3) loyalty instead of nationality should be the basis to determine whether an individual is entitled to the protection of the Geneva POW Convention.

Full details here (in French)

Study on Quebec's succession to treaties to which Canada is a party in the event of Quebec's accession to sovereignty, 1992

The prosecutorial discretion and the international obligations of the State with respect to the prosecution of grave breaches of the Geneva Conventions, LL.M. Thesis project, 2008

Canada has obligations under international and domestic law to act to prevent and punish violations of international humanitarian law. However, Canada rarely complies with its obligations in this area.

In this paper, we propose to highlight an important contradiction between, on the one hand, a body of law (national and international law) that obliges Canada to act to repress violations of international humanitarian law and, on the other hand, a body of law inherited from the Royal Prerogative that seems to give the Government of Canada full discretion not to act in this regard.

To resolve this contradiction, we propose the use of judicial review to compel the executive to address grave breaches of the Geneva Conventions.

Ensuring that Canada complies with its international commitments, particularly with regard to the prevention of violations of international humanitarian law and the repression of grave breaches, contributes to the strengthening of international law, helps to abolish impunity for the most serious crimes that shock the conscience of humanity and, in so doing, contributes to international peace and security.

Full project here (in French)

Accountability for violations of international law committed by armed groups acting in the interest of state organs, 2008

In a petition to the Inter-American Commission on Human Rights, we alleged that an armed sexual assault committed by two individuals constitutes an act of torture, alleging that these two individuals were in fact acting on behalf of a State body.

It is alleged in this case that the two attackers are members of an armed group that was allegedly set up by the Presidency, which also provided it with funding and weapons. It has not been established that the Presidency provides specific instructions to this group, but it is clear to all concerned that this group acts almost exclusively in the interests of the Presidency when it is not acting in its own interests.

Thus, in order to rule on the allegation that the armed sexual assault constitutes an act of torture contrary to inter-American law applicable in this case, the Commission will have to determine, on the basis of the evidence and its own investigation, the connection between this armed group and the Presidency and the criterion to be applied in order to decide to what extent the violations committed by the group are attributable to the State.

This is the context for this research note. After recalling the essentially customary nature of this law (1), we will look at the International Law Commission's codification project (2). Finally, we will review the case law of the main international judicial bodies to see how they have interpreted this issue (3).

Full details here (in French)

Detention Without Charge: Canada's response to terrorist threats under international law, 2008

Detention without charge is an exceptional measure of control, a deprivation of liberty that is ordered by the executive branch, with little or no judicial involvement, often for reasons of state security.

In Canada, detention without charge is an exceptional measure that must remain brief. The ability of law enforcement agencies to deprive a person of liberty without charge derives either from the law or from the common law powers of peace officers. Any detention in this context must be based on reasonable grounds and some form of necessity.

We will focus on the case where deprivation of liberty is used on national security grounds. Specifically, we will focus on situations arising from the so-called "war on international terrorism" which, since 2001, has led to a flurry of different measures in response to the fear generated by this new "crusade".

One month after 9/11, the Canadian government tabled in the House of Commons an impressive 184-page bill containing 146 sections, amending some 20 existing laws and enacting a new law. It creates new offences, some of which are related to "terrorism", but more importantly it gives the executive branch increased investigative powers. As stated in the preamble, the Act enacts "comprehensive measures to protect Canadians from terrorist activity while continuing to promote and respect the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms and the values that underlie it. If the purpose of the law is hardly debatable, the same cannot be said of its effect, in that it concentrates ever more powers in the hands of the executive while limiting the control mechanisms inherent in the judiciary. But that is not our purpose here.

The mechanism that allows Canada to detain indefinitely foreign nationals it suspects of posing a security threat, on the basis of a certificate issued by two ministers stating that the person poses a danger and should be returned to his or her country of origin, has been in place since 1991 and is therefore unrelated to the Anti-terrorism Act. Thus, the new Immigration and Refugee Protection Act was introduced in the House of Commons on 21 February 2001 and passed on 13 June 2001. This mechanism has attracted much criticism from both the legal community and foreign aid organisations. It was also the subject of significant censure by the Supreme Court, which gave the government one year to comply with its observations. On February 6, 2008, just days before the Supreme Court deadline, the House of Commons passed amendments to IRPA.

We submit that the mechanism that now exists in Canada, which provides for extra-ordinary measures under domestic law for foreigners suspected of posing a threat to state security, is contrary to international law. We believe that this mechanism represents a threat to the values and foundations of our society.

We will first review the main elements of this mechanism and then look at the main applicable norms of international law in order to identify, in a third step, the contradictions between the Canadian mechanism and international law.

Full details here (in French)

International obligations of States and the exercise of prosecutorial discretion in the implementation of international criminal law, 2007

Canada has obligations under international and domestic law to act to address violations of international humanitarian law. However, observation of Canadian practice shows that these obligations are rarely met.

For example, in 1994, following reports that individuals suspected of involvement in the genocide in Rwanda were in Canada, the response of the relevant authorities was to remove these individuals from Canada, without ensuring that investigations into the serious allegations against them would take place or that prosecutions would be brought. In an interview in September 2007, an officer from the Refugee Division confirmed that the normal practice of the Attorney General's office when a person suspected of involvement in grave breaches of the Geneva Conventions arrives in Canada is to ask Immigration Canada to deport him or her rather than initiate criminal proceedings. When the Attorney General of Canada refuses to prosecute a person alleged to have committed a grave breach of the Geneva Conventions and instead chooses to deport that person from Canada, without first ensuring that the person will be prosecuted in the country of destination, Canada is in breach of the obligation it undertook in becoming a party to the Geneva Conventions. While there may be good reasons not to prosecute in Canada, there is no good reason not to transfer a person suspected of having committed a war crime to a country willing to prosecute.

The problem here is that, despite international obligations to prosecute or extradite persons alleged to have committed grave breaches of the Geneva Conventions, and despite the fact that these international obligations have been transcribed into Canadian law and recognised as valid, the authorities persist in circumventing this obligation by simply deporting from Canadian territory persons alleged to have committed grave breaches of the law of armed conflict. And the current trial of Mr Désiré Munuyaneza is only one exception to a practice that is otherwise rife with violations.

In our view, there is a systematic refusal on the part of the executive branch, and in particular the Attorney General of Canada, to comply with the international obligations undertaken by Canada with respect to the repression of grave breaches of the Geneva Conventions. Moreover, where these international obligations have been transposed into national law, as in the case of the Geneva Conventions, the violation of international law is coupled with a violation of national law. This inaction would be "covered", i.e. unchallengeable, under the theory of discretionary powers derived from the royal prerogative. There would thus be a contradiction between what the law (national and international) requires of the executive and what actually happens in practice.

We propose to resolve this contradiction by using the supervisory and control powers of the courts and prerogative writs to compel the Attorney General to prosecute those accused of grave breaches of the Geneva Conventions.

We begin by reviewing the nature and contours of the obligation to prosecute grave breaches of the Geneva Conventions. We then turn to the issue of the Attorney General's discretion not to prosecute, in order to understand the limits to this power.

Full details here (in French)

Somalia - An analysis of the 2007 armed conflict in relation to selected elements of international humanitarian law, 2007