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War Crimes and Related Law (Canada)
(February 2008)

Chapter 9 - Defences

  1. Overview
  2. Double Jeopardy
  3. Local Legality
  4. "Following Orders" (the "Nuremberg Defence")
    (a) Overview
    (b) Canadian Treatment of the Nuremberg Defence
    (c) Legal Orders Only
    (d) Mistake of Law
    (e) "Manifestly Unlawful"
    (f) Mistake of Fact
    (g) Summary
________________________________________

1. Overview

As most lay people understand criminal process, a "defence" is anything that effectively makes the charges go away - even if it is just the defendant's lawyer weakening the prosecution's evidence case enough for acquittal on the "beyond a reasonable doubt" standard of proof.

In Canadian law however the topic of "defences" more properly involves the advancement of positive evidence by the defendant to prove such things as intoxication, insanity, mistake of fact, duress, automatism, consent, self-defence and others. The Crimes Against Humanity and War Crimes Act [CAHWCA] makes these (and other) defences available to international crimes prosecutions:
CAHWCA s.11
In proceedings for an offence under any of sections 4 to 7 [author: the main and "supervisory" offences], the accused may, subject to sections 12 to 14 [children under twelve immune, no consent to death] and to subsection 607(6) [double jeopardy] of the Criminal Code, rely on any justification, excuse or defence available under the laws of Canada or under international law at the time of the alleged offence or at the time of the proceedings.
The most notable "Canadian" defences endorsed by this section are the principle that children under the age of twelve years are immune from conviction [CCC s.13], and that "consent" of the victim is not a defence to a crime of homicide [CCC s.14].

While a full discussion of the standard positive defences available in Canadian criminal law is beyond the scope of this summary program, there are some defences that are particularly unique to international crimes law. These are discussed below.


2. Double Jeopardy

"Double jeopardy" is the principal that a party should only be tried (and punished) once for a criminal wrong. This principal is carried into Canadian law via the old common law defences of "autrefois acquit" (previously acquitted) and "autrefois convict" (previously convicted) [CCC 607(6)]. That section also adds "pardon" as a defence, and expands "convicted" to include "discharge" (a form of absolute or conditional excusing of the offence), which is a common outcome of a criminal charge in modern times.

International crimes law being global in scope, it only makes sense to bring prior foreign legal proceedings within the consideration of double jeopardy, which is done:
CAHWCA s.12(1)
If a person is alleged to have committed an act or omission that is an offence under this Act, and the person has been tried and dealt with outside Canada in respect of the offence in such a manner that, had they been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, the person is deemed to have been so tried and dealt with in Canada.
However [as will be seen in Ch.12 when discussing the International Criminal Court (ICC)] there are obvious political concerns that a local (ie. national) "trial" might be a sham performed precisely in order to excuse the defendants from proper criminal consequences. This is one of the prerequisite conditions that can give the ICC jurisdiction over the matter in preference to local courts.

Thus the section continues:
CAHWCA s.12(2)
Despite subsection (1), a person may not plead autrefois acquit, autrefois convict or pardon in respect of an offence under any of sections 4 to 7 if the person was tried in a court of a foreign state or territory and the proceedings in that court

(a) were for the purpose of shielding the person from criminal responsibility; or

(b) were not otherwise conducted independently or impartially in accordance with the norms of due process recognized by international law, and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person to justice.
Further, if in the foreign proceedings the person was tried BUT never punished as sentenced, it is no defence to plead that previous conviction under double jeopardy doctrine [CCC s.607(6)]. Thus a trial WITHOUT punishment does not invoke the double jeopardy principle.

The Canadian Charter of Rights and Freedoms also embodies the principle of double jeopardy:
s.11(h)
Any person charged with an offence has the right ...

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

3. Local Legality

In normal Canadian law, foreign acts and omissions which are legal - in the place and at the time that they are done - cannot ground a Canadian criminal conviction [CCC s.15].

However in the context of international crimes - which are usually "political" in nature - prudence dictates concern that local governments may structure their law or legal practice to exonerate, excuse - or even require - the impugned behaviour. Therefore the CAHWCA has specifically overridden CCC s.15:
CAHWCA s.13
Despite section 15 of the Criminal Code, it is not a justification, excuse or defence with respect to an offence under any of sections 4 to 7 that the offence was committed in obedience to or in conformity with the law in force at the time and in the place of its commission.

4. "Following Orders" (the "Nuremberg Defence")

(a) Overview

People speak of the "Nuremberg" defence, which is roughly understood as a defence by military subordinates claiming that they were just "following orders".

The "Nuremberg defence" is often thought to have been conclusively eliminated from military and international law by customary international law doctrine established in the post-WWII military trials (the "Nuremberg" trials). In reality however the defence was expressly banned for use in those trials ONLY by their founding treaty, and - contrary to popular belief - it still exists widely as a legal defence in criminal prosecutions brought in relation to acts and omissions occuring during armed conflict. This is the case with the Rome Statute, and this is the case with the CAHWCA - which implements the Rome Statute into Canadian law (the CAHWCA provisions essentially re-state the Rome Statute ones on this topic).

It may even be argued that the "defence" is MORE broadly available in Canada, the CAHWCA having expanded its availability from the military context to now include: "order(s) by a government or a superior - whether military or civilian" [CAHWCA s.14].

(b) Canadian Treatment of the Nuremberg Defence

While formally structured as a prohibition, the CAHWCA treatment of the Nuremberg defence, has instead codified or regulated it, more plainly setting out when it is available. As the following discussion will show, the net effect is to strengthen and broaden the defence's availability in international criminal law (emphases are added) from what the public perception is:
CAHWCA s.14(1)
In proceedings for an offence under any of sections 4 to 7, it is not a defence that the accused was ordered by a government or a superior - whether military or civilian - to perform the act or omission that forms the subject-matter of the offence, UNLESS

(a) the accused was under a legal obligation to obey orders of the government or superior;

(b) the accused did not know that the order was unlawful; and

(c) the order was not manifestly unlawful.

14(2)
For the purpose of paragraph (1)(c), orders to commit genocide or crimes against humanity are manifestly unlawful.

14(3)
An accused cannot base their defence under subsection (1) on a belief that an order was lawful if the belief was based on information about a civilian population or an identifiable group of persons that encouraged, was likely to encourage or attempted to justify the commission of inhumane acts or omissions against the population or group.
The structure of s.14(1) is firstly to ban the defence, but then to set out the three-element condition (all three must be met) which - if met - allows the defence to be successful. Above I argue that this structuring is a facade and the 'excepting circumstances' have the perverse effect of actually expanding the defence. To make this point, I discuss these cumulative excepting circumstances - in turn - below.

(c) Legal Orders Only

CAHWCA s.14(1)(a) sets out the first element of the excepting circumstance which opens the way to the use of the Nuremberg defence: "the accused was under a legal obligation to obey orders of the government or superior".

The Nuremberg defence was never designed to protect persons NOT acting under orders, or persons disobeying orders. The "defence" has always presupposed that the orders given were "legal" within the context and at the time given. As such s.14(1)(a) seems quite unnecessary.

(d) Mistake of Law

The next two elements of the excepting circumstance set out in CAHWCA are: s.14(1)(b) (lack of knowledge of illegality) and (c) (if order was not "manifestly unlawful"). What is meant by "manifestly unlawful" is clarified somewhat by the next sub-section:
CAHWCA 14(2)
For the purpose of paragraph (1)(c), orders to commit genocide or crimes against humanity are manifestly unlawful.
Subject to the exception for orders that are "manifestly unlawful" (considered below), this is essentially what we know in Canadian law as the (prohibited) "ignorance of the law defence" and it is THE key element of the excepting condition which opens the way for the use of the Nuremberg Defence of "just following orders".

This then, far from being a "banning" of the Nuremberg Defence, is in reality its implementation into Canadian law - because in conventional criminal law, "ignorance of the law" is NOT a defence. It is a basic and long-standing principle of Canadian criminal law that ignorance of the law is no excuse (or defence) [CCC s.19]. While that principle has and can be criticized due to its manifest injustice (no living lawyer knows ALL the offences which might be committed), it persists as a necessary corollary to effective law enforcement - without which trials would become forensic investigations into the legal knowledge of the defendant (perhaps restricting convictions only to lawyers - which might explain it's persistence!).

In any event, for international crime prosecutions the defence of "ignorance of the law" is (now) alive and well in Canadian law. While the "manifestly unlawful" exception (discussed below) tempers this somewhat, that only changes the question form "whether" it is alive and well, to "how" alive and well it is.

(e) "Manifestly Unlawful"

What meaning then are we to attribute to "manifestly unlawful" orders?

To take a simple case - it is safe to speculate that an unambiguous order to 'bayonet all the babies' will be considered "manifestly unlawful". Additionally, s.14(2) informs us that "manifestly unlawful" orders include those "to commit genocide or crimes against humanity".

Before we unpack that further let's re-visit the tactical role of a finding that an order is "manifestly unlawful". It is something that the Crown will want to prove in order to defeat the defence's case that the defendant was under a mistake of law (ie. was "ignorant of the law") respecting the orders given. Put another way, if the Crown fails to prove this then a main barrier to the availability of the Nuremberg Defence is removed. All the defence then has to show is that the defendant is a poor lawyer - which (with all due respect to infantrymen everywhere) should not be a hard task.

Let us examine how this issue might practically arise in a case. It safe to assume that few such fact situations will involve nice type-written orders from Captain X to Lieutenant Y: "I hereby order you to commit the offence of genocide against the following group of people ...". No, any such orders - once their precise terms have been determined as facts from the written record, circumstances and testimony (assuming parole evidence to be admissible) - will be ones couched in the context and language of military or political activity. The specific intent behind them will be - in short - hard to determine and ambiguous. It will almost always be open for the defence to argue that the order allows of implementations or interpretations which do not necessarily entail the commission of genocide or a crime against humanity. This reality is only reinforced with the observation that Canadian criminal law is strictly interpreted in favour of the defence (not to mention that the vagueness of this defence-barring standard lends itself to Charter challenge under s.7 "fundamental justice" considerations).

Further, any judge hearing this case would be required (solely as a preliminary matter to determine the availability of the Nuremberg Defence) to determine whether the order given was one "to commit genocide or crimes against humanity". This preliminary procedural issue alone could require a factual and legal examination of equal or greater magnitude than the entire substance of a international crimes prosecution against the defendant before the court.

Perhaps the ONLY circumstances in which a "manifestly unlawful" order will be found as a fact will be those very few cases where the terms of the order admit of no implementation or interpretation EXCEPT the commission of genocide or a crime against humanity (ie. "bayonet all the babies"). It is ONLY in such circumstances that the "ignorance of the law" element is UNAVAILABLE to support the defendant's Nuremberg defence claims.
Note: Actually, perhaps I'm being too conservative here. I note that under s.14(2) orders to commit "war crimes" (as opposed to "crimes against humanity" and "genocide") are NOT NECESSARILY "manifestly unlawful". It thus appears that orders which admit of no interpretation other than the commission of a "war crime" (ergo, "bayoneting babies") MAY STILL trigger the Nuremberg defence.
In short, the circumstances in which the Crown can obviate the availability of the "ignorance of the law" element - and thus the availability of the Nuremberg defence - are extremely few. Perhaps convictions will be obtainable where atrocities are committed by professors of international law, but otherwise defendants will almost always be able to make out the s.14(1)(b) and (c) elements of the Nuremberg Defence exception, thus opening the way to the full application of the "just following orders" defence.

The result in the vast majority of cases (IF they are brought) against subordinates will be acquittal.

(f) Mistake of Fact

While this new Nuremberg defence effectively make 'ignorance of the law' available as a defence, it also treads into and modifies another related area of criminal defence: "mistake of fact" [albeit it does this WITHIN the framework of the main "ignorance of the law" (mistake of law) element discussed above].

It is first necessary to understand the role of "mistake of fact" as a conventional defence in Canadian criminal law. While the "mistake of fact" defence encompasses a complex body of law subject to as many permutations as are potential fact situations, it is generally stated as: "an honest mistake as to facts which - if true - would render the defendant innocent of the charges". Another way that this is sometimes stated is that - "given the (honest) erroneous belief - there can be no mens rea" (ie. variously meaning: criminal intention, or knowledge of circumstances).

Now to specifics. CAHWCA s.14(3) limits the availability of the "just following orders" defence by barring it when the "belief" (ie. mens rea) of legality was:
... based on information about a civilian population or an identifiable group of persons that encouraged, was likely to encourage or attempted to justify the commission of inhumane acts or omissions against the population or group".
In other words, a mistake of fact based on 'anti-victim propaganda' cannot be used as a defence.

Section 14(3) implicitly recognizes that "ignorance of the law" (which conditions the availability of the Nuremberg defence) includes some elements of subjective fact belief by the defendant (ie. is contingent on the perceived fact circumstances in which military or other violence is being anticipated).

To exemplify this, take the case of a defendant who bombs a village on the erroneous factual belief that it is occupied by enemy forces (and with the commensurate legal belief that the bombing is justified in the context of legitimate military objectives). Under conventional criminal law the defendant could advance "mistake of fact" in their defence - AND STILL CAN. However, as far as a "mistake of fact" finding might contribute to making out the exception to the "mistake of law" (ie. the Nuremberg defence, as discussed above) it is barred when it is based on propaganda.

It is ESSENTIAL to note that s.14(3) does not limit the conventional law of "mistake of fact" - it only limits reliance on propaganda as the basis of false factual beliefs as they contribute to a mistake of law - which in turn conditions the availability of the Nuremberg defence. While there is no burden in Canadian law that a mistake of fact be "reasonable" (ie. no burden of due diligence on the defendant), the unreasonableness of the belief will naturally be reflected in credibility findings on the fact-findings respecting the state of the defendant's belief. Section 14(3) in a sense imposes a limited degree of "due diligence" on the defendant before they can advance the mistake of law "defence" (towards the Nuremberg defence exception) - in that erroneous belief based on propaganda is NOT available to support the argument.

I am unclear as to the policy purpose behind, except as a form of proxy for due diligence (I invite enlightenment).

What can be stated however is that s.14(3) -
as an aspect of a defence - suffers from similar Charter s.7 problems as will plague the "manifestly unlawful" issue discussed above: the concept of "propaganda" is inherently "vague". In Canadian criminal law, an overly vague defence is tantamount to an acquittal: R v Morgenthaler (SCC, 1988).

(g) Summary

Far from being eliminated from Canadian law, CAHWCA s.14 codifies and thus plainly imports the "Nuremberg Defence" of "just following orders" into Canadian law. Formally, it does so by requiring certain preconditions to be met, but - far from these preconditions limiting the defence - they rather implcitly expand it from what it would otherwise be. In so doing they effectively append to it a broad "mistake of law" (ie. ignorance of the law) defence where none existed before in Canadian criminal law.

Further, where the preconditions to the Nuremberg Defence are ostensibly constrained under s.14 (ie. "no ignorance of the law defence where orders manifestly unlawful" and "no contributing mistake of fact based on propaganda") they do so in such vague and uncertain terms as to lend themselves to Charter s.7 challenge and striking as being too unconstitutionally vague to satisfy the requirements of "fundamental justice". The result will be their legal excision from s.14, with a net result that the preconditions (essentially "ignorance of the law") to the operation of the Nuremberg defence will be converted effectively into a PURE "ignorance of the law" defences - which was previously a defence expressly barred in Canadian law.

In the result CAHWCA s.14 is an odd and awkward provision which drastically inhibits the prosecution of any subordinates - be they military or political - for international crimes. Such prosecutions - if advanced - will necessarily become forensic investigations into the legal belief fo the defendant, and defendants will be motivated to remain as ignorant as possible as to the legality of their actions - a further pernicious result which will reward (and this encourage) already widespread feigned legal ignorance amongst such persons.

As the Canadian provisions discussed above (CAHWCA s.14) are drawn essentially verbatim from the Rome Statute, the above comments apply with equal force to prosecutions conducted in the International Criminal Court (ICC) itself.
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