Hate speech and international criminal law: The Mugesera decision by the supreme court of Canada

Journal of International Criminal Justice

Volumn 3, Issue 5, 2005, Pages 1121-1133

  Rikhof, Joseph ^a,b  

^a Centre for Education Law and Society   (Canada)

^b UNIVERSITY OF OTTAWA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 31044432246     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi082     Document Type: Article

References (94)

1. Decision of Supreme Court of Canada, 2005 SCC 40, §8, available online at: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc040.wpd.html (visited 6 September 2005). The Supreme Court issued another decision in which it dismissed a motion by Mugesera to stay the proceedings before it on the basis that 'an extensive Jewish conspiracy was hatched to ensure that the Minister's appeal would succeed and that the respondent Mugesera and his family would be deported' (2005 SCC 39, §9); this decision by the court was couched in unusually strong language in saying (in §17) 'Regretfully, we must also mention that the motion and the documents filed in support of it include anti Semitic sentiments and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada'.
2. Ibid., § 17-24.
3. See also Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, § 100, 149 and footnote 54.
4. SCC decision, Appendix III.
5. Ibid., § 3-4.
6. The Immigration Act was replaced on 28 June 2002 by the Immigration and Refugee Protection Act (IRPA); both acts contain provisions dealing with the commission of war crimes and crimes against humanity by using for the contents of such offences the Criminal Code of Canada until October 2000 and the Crimes against Humanity and War Crimes Act (which also includes the crime of genocide) after that date. For a description of the latter, see W.A. Schabas, 'Canadian Implementing Legislation for the Rome Statute', 2 Yearbook of International Humanitarian Law (1999) 337-346;
7. W.A. Schabas, 'Canadian Implementing Legislation for the Rome Statute: Jurisdiction and Defences' and D. Robinson, 'Implementing International Crimes in National Law: The Canadian Approach', in M. Neuner (ed.), National Codes on International Crimes: National Approaches to the Implementation of International Criminal Law in Domestic Law (Berlin, BWV - Berliner Wissenschaft Verlag, 2003);
8. T. Gut/M. Wolpert on Canada in A. Eser, U. Sieber and H. Kreicker (eds), National Prosecution of International Crimes - Nationale Strafverfolgung völkerrechtlicher Verbrechen, Vol. 5 (Berlin: Duncker and Humblot, 2005), at 19-88;
9. and W. Burchards, Die Verfolgung von Völkerrechtsverbrechen durch Drittstaaten, Das kanadischen Beispiel (Berlin: BWV - Berliner Wissenschaft Verlag, 2005) 338-377.
10. While in Canadian criminal law, only a limited number of instances give rise to extraterritorial jurisdiction, Canadian immigration law provides authority to refuse applicants who wish to come to Canada if they have committed any offence outside Canada known under foreign law as long as that offence is an indictable one and has its equivalent in Canadian criminal law at the time of commission; the three offences in question were all known in Rwandan criminal law in 1992.
11. Mugesera v. Canada (Minister of Citizenship and Immigration), Federal Court, Trial Division, IMM-5946-98, 10 May 2001, §7, available online at: http://decisions.fct-cf.gc.ca/fct/2001/2001fct460.shtml (visited 6 September 2005).
12. Ibid., § 3 and 5;
13. see also the decision of Supreme Court of Canada, 2005 SCC 40, § 25-27 and Appendix I.
14. Ibid., § 2 and 5;
15. see also decision of Supreme Court of Canada, 2005 SCC 40, §27.
16. For a commentary, see W.A. Schabas, 'Mugesera v. Minister of Citizenship and Immigration, Canadian Immigration and Refugee Board appellate decision on expulsion of alien for inciting genocide in Rwanda', 93 American Journal of International Law (AJIL) (1999) 529-533. Appeals to the IAD for persons found to have been involved in serious crimes was abolished in 2002 with the advent of IRPA.
17. Mugesera v. Canada (Minister of Citizenship and Immigration), Federal Court, Trial Division, IMM 5946-98, 10 May 2001, § 34-44 and 54-58;
18. see also the decision of the Supreme Court of Canada, 2005 SCC 40, § 29.
19. Also W.A. Schabas, 'National Courts Finally Begin to Prosecute Genocide, the "Crime of Crimes"', 1 Journal of International Criminal Justice (JICJ) (2002) 49-51.
20. Mugesera v. Canada (Minister of Citizenship and Immigration), Federal Court of Appeal, A-316-01, 8 September 2003, available online at: http://decisions.fca-caf.gc.ca/fca/2003/2003fca325.shtml (visited 6 September 2005);
21. see decision of Supreme Court of Canada, 2005 SCC 40, § 30-31.
22. Ibid., §208.
23. Ibid., §240.
24. While not in the nature of a legal finding, the court alludes to the notion of judicial notice in §8 of its decision by saying: 'There is no doubt that genocide and crimes against humanity were committed in Rwanda between April 7 and mid-July 1994'. Regarding this concept, see J. Stewart, 'Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent', 3 International Criminal Law Review (2003) 245-274.
25. Section 22 of the Canadian Criminal Code, available online at: http://laws.justice.gc.ca/en/C-46/index.html (visited 6 September 2005).
26. Section 464(a) of the Criminal Code; there are four types of general inchoate offences in Canadian criminal law, namely conspiracy, counselling, attempt and accessory after the fact, which are regulated in ss. 463-465 in conjunction with ss. 22-24 of the Criminal Code. The same inchoate offences can also be committed in respect to genocide, war crimes and crimes against humanity by virtue of ss. 4(1.1) (for offences committed in Canada) and 6(1.1) (for offences committed outside Canada) of the Crimes against Humanity and War Crimes Act, available online at: http://laws.justice.gc.ca/en/C-45.9/index.html (visited 6 September 2005);
27. see Federal Court of Appeal in Zazai, A-539-04, 20 September 2005. In international criminal law, these have received different treatments depending on the type of substantive offence. Accessory after the fact does not exist at all, while conspiracy, incitement and attempt can only occur in relation to the crime of genocide according to the ICTY (Art. 43(b), (c) and (d)) and ICTR (Art. 2.3(b), (c) and (d)) Statutes, while the ICC Statute (Art. 25) extends the notion of attempt to all three crimes, retains incitement for genocide only, and does not mention conspiracy.
28. For an explanation, see C. de Than and E. Shorts, International Criminal Law and Human Rights (London: Thomson; Sweet and Maxwell, 2003), at 8-9, which says: 'These are offences designed to cover situations when a full criminal offence has not yet been committed but was suggested (incitement), agreed to (conspiracy) or begun but not completed (attempt).'
29. § 63-64;
30. the same court clarified the elements of the inchoate offence of counselling a month after the Mugesera decision in the Hamilton case (2005 SCC 47, 29 July 2005) by saying in §29: 'In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: That is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct.'
31. Section 318 of the Criminal Code.
32. Section 319 of the Criminal Code; there are actually two different offences in this section, namely communicating statements in any public place where such incitement is likely to lead to a breach of the peace (319(1)) and communicating statements, other than in a private communication, wilfully promoting hatred (319(2)).
33. See SCC decision, § 84-85 (re the connection to genocide, relying on both Akayesu and Judgment, Nahimana, Barayagwiza and Ngeze (ICTR 99-52-T-I) ('Media case'), 3 December 2003) and 102 (re the connection to hatred, again relying on the Media case).
34. SCC decision, §87, directly quoting Akayesu.
35. SCC decision, § 88-89, again relying on the Akayesu and Media cases.
36. SCC decision, §101.
37. Ibid., § 104-105.
38. Ibid., § 77-80, 95-98 and 109-111.
39. [1994] 1 SCR 701.
40. SCC decision, § 126, 143-144 and 172 by indicating that the requirement of discrimination for crimes against humanity is not according to customary international law as expressed by the ICTY/ICTR jurisprudence;
41. the SCC decision also overruled the Finta case indirectly in § 121 and 123 by saying that the decisions of the IAD and the Federal Court, Trial Division, were incorrect by adding the element of cruelty to the actus reus of crimes against humanity as demanded in Finta. The Finta decision had been criticized for these reasons in J. Rikhof, 'Exclusion Clauses: The First Hundred Cases in the Federal Court', 34 Immigration Law Reporter (2nd) (1995) 29, at 44-46
42. and I. Cotler, 'War Crimes and the Finta Case', 6 Supreme Court Law Review (1995) 577
43. and 'International Decision' in 90 AJIL (1996) 460.
44. The Finta case has been referred to in the ICTY case law in Judgment, Tadić (IT-94-1), Appeals Chamber, 15 July 1999, § 265-267 re the mens rea for crimes against humanity.
45. Canadian law has also been used in Judgment, Furundžija (IT-97-17/1), Appeals Chamber, 10 December 1998, §185 re bias of judges;
46. and Decision, Kordić (IT-95-14/2), Trial Chamber, 6 April 2000, § 20 re test for motion for acquittal.
47. SCC decision, § 128 and 173.
48. Ibid., §153.
49. With the possible exception of the requirement of a policy for the systematic portion of crimes against humanity according to Art. 7(2)(a) of the Rome Statute as noted by the court itself in §158.
50. SCC decision, § 154-158.
51. Ibid., § 161-162.
52. Ibid., §164-167.
53. Ibid., § 132-136 and 150.
54. Ibid., § 139-145.
55. Ibid, § 146-147 and 150;
56. the court examined the ICTR jurisprudence as developed in the Media case and Judgment, Ruggiu (ICTR-97-32), Trial Chamber, 1 June 2000,
57. and compared those decisions with the ICTY Judgment, Kordić (IT-95-14/ 2), Trial Chamber, 14 January 2000, §209 and footnote 272.
58. SCC decision, § 169 and 177.
59. Sections 4(3) and 6(3).
60. For an overview, see the website of Coalition for the International Criminal Court, http://www.iccnow.org/countryinfo.html (visited 6 September 2005) and the National Prosecution of International Crimes Project of the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, available online at: http://www.iuscrim.mpg.de/forsch/straf/projekte/ nationalstrafverfolgung2_e.html (visited 6 September 2005).
61. See in general http://www.trial-ch.org/trialwatch/home/en (visited 6 September 2005);
62. see also R. Rissing-van Saan, 'The German Federal Supreme Court and the Prosecution of International Crimes Committed in the Former Yugoslavia', 3 JICJ (2005) 381-399
63. and D. Vandermeersch, 'Prosecuting International Crimes in Belgium', 3 JICJ (2005) 400-421.
64. §130.
65. Judgement, Kvočka (IT-98-30/1A), Appeals Chamber, 28 February 2005, §261.
66. For the development of the underlying crime of murder, see Judgment, Delalić (IT-96-21), Trial Chamber, 16 November 1998, § 422 and 431-439, where it compared domestic legislation (including Canadian law in footnotes 435 and 450);
67. this definition of murder was used in subsequent jurisprudence without further domestic references. The same approach was used for the crime of rape where Akayesu referred briefly to domestic law in §596, and Judgement, Kunarac (IT-96-23), Trial Chamber, 22 February 2001, § 439-460 (including Canadian law in §453)
68. and Appeals Chamber, 12 June 2002, § 126-133 after which their definition was followed by other ICTY/ICTR cases. For other crimes against humanity, the ICTY/ICTR jurisprudence referred to other international law areas such as human rights or humanitarian law.
69. For this approach, see General Prosecutor v. Damiao DaCosta (no.1/2003), 10 December 2003, at 14-15 of the Special Panel for Serious Crimes of the Dili District Court of East Timor, available online at: http://www.jsmp.minihub.org/courtmonitoring/spsccaseinformation2003.htm (visited 6 Sptember 2005).
70. See supra note 36, specifically the Media case.
71. For commentaries, see G.S. Gordon, 'A War of Media, Words, Newspapers, and Radio Stations: The ICTR Media Trial Verdict and a New Chapter in the International Law of Hate Speech', 45 Virginia Journal of International Law (2005), 140-179,
72. and W.K. Timmermann, 'The Relationship between Hate Propaganda and Incitement to Genocide: A New Trend, in International Law Towards Criminalization of Hate Propaganda', 18 Leiden Journal of International Law (2005) 257-282.
73. §147;
74. see the Media case, §1078;
75. see also Timmermann, at 270 and 278-282.
76. See Gordon, supra note 45, at 195-197.
77. Ibid.
78. The Media case alludes to domestic regulation of hate speech in §1075 but does not discuss any jurisprudence.
79. §101.
80. See supra note 16;
81. however, counselling can both be a party offence if the counselled crime is committed and an inchoate offence if the counselled crime is not committed (see the SCC decision, § 60-61);
82. the former type of counselling is akin to the notion of instigation in the ICTY and ICTR Statutes, Arts 7.1 and 6.1, respectively, and to the concepts of soliciting and inducing in the ICC Statute, Art. 25(3)(b).
83. The SCC in the Hamilton case, see supra note 17, §25;
84. see also Timmermann, at 268.
85. See SCC decision, §118.
86. For that reason, it is likely that the SCC approach in § 134-135 for which it relied on international jurisprudence re the term 'instigate' is too narrow at the moment. It has been argued that the inchoate offence of conspiracy can be read into Art. 25(3)(d) of the Rome Statute (see K. Kittichaisare, International Criminal Law, Oxford: Oxford University Press, 2001, at 235 and 250) but since that article deals with the concept of common purpose, it is likely that the agreement alluded to is an element of that particular party offence rather than an inchoate offence.
87. Especially offences against the public order such as inciting mutiny, assisting a deserter, causing a riot or assisting in an escape of a prisoner of war.
88. While the residual character of this crime against humanity has provided the ICTY and ICTR with an opportunity to include a great number of criminal acts within its parameters (see. G. Mettraux, International Crimes and International Tribunals (Oxford: Oxford University Press, 2005), 184-185
89. as well as Judgment, Brdjanin (IT-99-36), 1 September 2004, § 992-1050;
90. Judgment, Kordić (IT-95-14/2), Appeals Chamber, 17 December 2004, § 101-109,
91. Judgment, Blagojević (IT-02-60), Trial Chamber, 17 January 2005, § 578-602
92. and Judgment, Kvočka (IT-98-30/1), Appeals Chamber, 28 February 2005, § 313-339), hate speech has been the only inchoate type of activity so far.
93. For Canadian law, see D. Stuart, Canadian Criminal Law, A Treatise (4th ed., Toronto: Carswell, 2001), at 704-705.
94. §178.