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

Chapter 3 - Immunity

  1. Overview
  2. Diplomatic and Related Immunities and Privileges
    (a) Overview
    (b) Inter-State "Retaliation"
    (c) Diplomatic Missions
    . General
    . Privileges and Immunities Relating to Prosecution
    . Privileges and Immunities Relating to Arrest, Search and Seizure
    . Other
    (d) Consular Posts
    . General
    . Privileges and Immunities Relating to Prosecution and Arrest
    . Privileges and Immunities Relating to Search and Seizure
    . Other
    (e) International Organizations and Others
    . International Organizations
    . Other Categories
  3. Head-of-State Immunity
    (a) Overview
    . Canadian Case Note
    (b) Customary International Law
    . Overview
    . Belgium v Congo
    . Comment
    (c) Conventional International Law and the Rome Statute
    (d) Canadian Law
    . Overview
    . Common Law Immunity
    . State Immunity Act
    . Foreign Missions and International Organizations Act [FMIOA]
    . Extradition Act
    . Crimes Against Humanity and War Crimes Act
    - General
    - Implementation
    - Liability of Civilian "Superiors"
    . Criminal Code
    (e) Estoppel by Rome Statute Ratification
    (f) Summary
________________________________________

1. Overview

"Immunity" simply means that a legal proceeding against someone who is "immune" cannot be sustained. For example, in Canada there is a federal "State Immunity Act" that bars civil litigation against some states and state actors.

Immunity can be temporary (ie. during the period of office only) or permanent, and it can vary by being applicable only to acts and omissions committed while the person is in office, or to all acts and omissions. There is no clarification of these variables implicit in the definition alone.

Immunity is held by the state of the visitor - not the potential defendant, and - at least at common law - is granted by the sovereign (ie. executive) authority of the host state (see s.3(d): "Common Law Immunity", below). Today however many forms of immunity are granted by legislation of the host state.

Probably the most well-known form of immunity is "diplomatic (and related) immunity", which is relatively straight-forward and explained in s.2 below.

The most relevant for international crimes prosecution purposes is the issue of "head-of-state" or "state" immunity, which is less clear. Section 3 below considers whether such immunity exists in Canadian law, and concludes that the best argument is that it does not.


2. Diplomatic and Related Immunities and Privileges

(a) Overview

The Foreign Missions and International Organizations Act (FMIOA) adopts of wide range of immunities and privileges for persons directly and indirectly involved with foreign diplomatic missions (through the Vienna Convention on Diplomatic Relations) and with foreign consular posts (through the Vienna Convention on Consular Relations). Similar immunities and privileges for a wide variety of other foreign persons and entities such as accredited "international organizations", their representatives and foreign missions associated with them are also authorized under FMIOA.

The immunities and privileges relating to diplomatic missions and consular posts are (generally, not always) granted "as-of'right" by virtue of status - even if the foreign country is not a signatory to the mentioned conventions. These are discussed in some detail below.

With respect to ancillary bodies and representatives the granting of the immunities and privileges is largely an executive discretionary case-by-case matter in the hands of the Canadian executive government. The legal authority for such grants is located in FMIOA and is spelled out in Regulations and federal Orders-in-Council passed under FMIOA. Current ones may be viewed here:

International Organization Regulations and OICs

For the purpose of any legal proceedings involving diplomatic, consular or other similar personnel, a certificate issued by the Minister of Foreign Affairs attesting to the status, immunities or privileges of the mission, post or otherwise as the case may be is sufficient evidence of such facts [FMIOA s.11].

(b) Inter-State "Retaliation"

One major exception exists with respect to the "as-of-right" privileges and immunities granted to persons related to diplomatic mission and consular posts. The Minister of Foreign Affairs may, in order to treat another country's diplomatic missions and consular posts (and any persons connected therewith) in Canada the same way that their Canadian counterparts are being treated in that other country: extend, withdraw or restore to the other country's personnel any of the immunities, privileges and benefits granted to them by Canadian law [FMIOA s.3] implementing portions of the the Vienna Conventions (both diplomatic and consular) under this Act (except duty and tax relief privileges) or under the FMIO Regulations and Orders-in-Council [FMIOA s.4(1)].

For the same purpose, the government may extend (and withdraw or restore) ANY duty and tax privileges [FMIOA s.4(2)(3)], and as well may detain goods imported by another state's diplomatic or consular personnel [FMIOA s.4(4)].

Plainly these are diplomatic 'retaliatory' measures used in periodic diplomatic spats. They strike me as petty-minded in the extreme but perhaps they serve a practical function beyond me.

(c) Diplomatic Missions

. General

The federal Foreign Missions and International Organizations Act [s.3] adopts into Canadian law a number of provisions of the Vienna Convention on Diplomatic Relations and the (separate) Vienna Convention on Consular Relations. These apply to diplomatic and consular-related staff even if their countries are not signatories to the Conventions.

Note that the distinction between diplomatic and consular functions is not clear-cut, but generally diplomatic functions relate to inter-state relations, while consular functions broadly relate to the affairs of private individuals and corporations in the host state (these are spelled out in detail in at VCConRel Art.5).

By these provisions diplomatic staff of foreign countries in Canada, their non-diplomatic staff, and their family members are granted (with some exceptions) a variety of legal privileges and immunities relating to criminal, civil and tax law [VCDipRel Art.37(1)]. The immunities and privileges that bear on criminal liability are outlined below.

Which specific immunities and privileges are granted to which person related to a diplomatic mission very much depends on their specific status with the Mission. As such, care should be taken in any fact situation to ascertain as accurately as possible the person's status within the mission, any familial relationships they may have with diplomatic staff - and as well if they are Canadian citizens or permanent residents. The following are the germane diplomatic categories for immunity and privilege classification [VCDipRel
Art.1]:
(a) The "head of the mission" is the person charged by the sending State with the duty of acting in that capacity;

(b) The "members of the mission" are the head of the mission and the members of the staff of the mission;

(c) The "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;

(d) The "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank;

(e) A "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission;

(f) The "members of the administrative and technical staff" are the members of the staff of the mission employed in the administrative and technical service of the mission;

(g) The "members of the service staff" are the members of the staff of the mission in the domestic service of the mission;

(h) A "private servant" is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;

(i) The "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.
Any immunities are from Canadian law only, and not from the law of their own country [VCDipRel Art.31(4)]. Immunity from Canadian law may be waived by the country from which the person came [VCDipRel Art. 32].

Immunities and privileges extended commence when they enter Canada and persist until they leave (or after expiry of a reasonable period for them to leave), even if their diplomatic functions have come to an end before that time.

All privileges and immunities are also extended - insofar as is possible under Canadian law - to diplomatic personnel in transit through third countries [VCDipRel Art.40]. Presumably this prohibits Canadian-initiated extradition and international arrest efforts. In any event, immunities persist indefinitely in relation to functions performed as a member of the Mission [VCDipRel Art.39].

. Privileges and Immunities Relating to Prosecution

"Diplomatic agents" (head of mission and diplomatic
staff) are "immune from the criminal jurisdiction" of Canada [VCDipRel Art.31(1)]. This immunity extends to "members of their families forming part of their respective households", if they are not Canadian [VCDipRel Art.37(1)].

Criminal immunity is further extended to "members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households", and to "members of the service staff of the mission ... in respect of acts performed in the course of their duties" - unless they are Canadian citizens or permanent residents. Private servants may or may nor have such immunities as are extended by executive Canadian action [VCDipRel Art.37(2)(3)(4)].

Diplomatic staff who are citizens or permanent residents of Canada only have immunity "in respect of official acts performed in the exercise of his functions", subject to the further extension of privileges and immunities by Canada to such persons, or to other staff members and servants of the mission [VCDipRel Art.38].

. Privileges and Immunities Relating to Arrest, Search and Seizure

The premises of foreign diplomatic missions are "inviolable" and may not be entered by Canadian authorities without permission of the "head of the mission" [VCDipRel Art.22(1)]. The same protection extends to the private residence of diplomatic staff [VPDipRel Art.30(1)].

Similarly, Canada is required to keep the mission safe [VCDipRel Art.22(2)].

Property coming into or leaving the mission "and the means of transport of the mission" is immune from "search, requisition, attachment or execution" [VCDipRel Art.22(2)(3)].

Further, "documents and archives" of the Mission are inviolable "wherever they may be" [VPDipRel Art.24]. The same protection for documents extends to the private residence of diplomatic staff, except with respect to seizure and execution provisions under civil and administrative proceedings in Canada respecting their private property, commercial dealings or estate management duties (ie. acting under a will) [VPDipRel Art.30(2)]. However, execution can only be conducted if it does not violate their person or their residence [VCDipRel Art.31(3)].

Missions in Canada may use "all appropriate means" to communicate "for official purposes" and to its government and other missions, including the use of diplomatic couriers (and bags) and coded messages. Such correspondence, diplomatic bags (if marked) are inviolable. Diplomatic couriers are immune from arrest or detention while engaged in their duties [VPDipRel Art.27].

"Diplomatic agents" (head of mission and diplomatic staff) are inviolable and may not be detained or arrested, and Canada must protect them from "attack on his person, freedom or dignity" [VPDipRel Art.29].

Diplomatic staff who are citizens or permanent residents of Canada only have inviolability "in respect of official acts performed in the exercise of his functions", subject to the further extension of privileges and immunities by Canada to such persons, or to other staff members and servants of the mission [VCDipRel Art.38].

. Other

A diplomatic agent (head of mission and diplomatic staff) is not obliged to give evidence as a witness [VCDipRel Art.31(2)].

"Diplomatic agents" (head of mission and diplomatic staff) are also immune from Canadian civil and administrative jurisdiction, except with respect to seizure and execution provisions under civil and administrative proceedings in Canada respecting their private property, commercial dealings or estate management duties (ie. acting under a will) [VCDipRel Art.31(1)]. However, execution can only be conducted if it does not violate their person or their residence [VCDipRel Art.31(3)].

(d) Consular Posts

. General

The federal Foreign Missions and International Organizations Act [s.3] adopts into Canadian law a number of provisions of the Vienna Convention on Consular Relations. These apply to consular-related staff even if their countries are not signatories to the Conventions.

Which specific immunities and privileges are granted to which person (and when) related to a consular post very much depends on their specific status within it. As such, care should be taken in any fact situation to ascertain as accurately as possible the person's status within the post, any familial relationships they may have with consular staff, whether they are Canadian citizens or permanent residents, and - IN PARTICULAR - whether the post is headed by a "career consular officer" or an "honorary consular officer". The following are the germane consular categories for immunity and privilege classification [VCConRel Art.1]:
Art.1(1)

1. "consular post" means any consulate-general, consulate, vice-consulate or consular agency;

2. "consular district" means the area assigned to a consular post for the exercise of consular functions;

3. "head of consular post" means the person charged with the duty of acting in that capacity;

4. "consular officer" means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;

5. "consular employee" means any person employed in the administrative or technical service of a consular post;

6. "member of the service staff" means any person employed in the domestic service of a consular post;

7. "members of the consular post" means consular officers, consular employees and members of the service staff;

8. "members of the consular staff" means consular officers, other than the head of a consular post, consular employees and members of the service staff;

9. "member of the private staff" means a person who is employed exclusively in the private service of a member of the consular post;

10. "consular premises" means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;

11. "consular archives" includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safekeeping.

......

Art.1(2)
Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers; the provisions of Chapter III govern consular posts headed by honorary consular officers.
As noted immediately above, there are two separate (but very similar regimes of privileges and immunities depending on whether the consular post is headed by "career consular officers" or "honorary consular officers". The privileges and immunities set out in this section are those that apply to consular posts headed by "career consular officers". The similar privileges and immunities respecting consular posts headed by "honorary consular officers" are spelled out in Chapter III of the Consular Relations Convention, to which referenced may be had [see VCConRel Arts. 58,59-62,64,66, 67,70].

Further, "the particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by Article 71 of the present Convention" [VCConRel Art.1(3)], which essentially only grants them immunities and privileges at the discretion of Canada.

As will be seen below, most immunities of consular-related staff only apply "in respect of acts performed in the exercise of consular functions." [VCConRel Art.43(1)]. As such, the following (extensive) list of these functions set out in the Convention is highly relevant to when immunity applies [VCConRel Art.5]:
1. protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

2. furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

3. ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

4. issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

5. helping and assisting nationals, both individuals and bodies corporate, of the sending State;

6. acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

7. safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

8. safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

9. subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

10. transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

11. exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;

12. extending assistance to vessels and aircraft mentioned in sub-paragraph of this Article and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and,without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorized by the laws and regulations of the sending State;

13. performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.
All the privileges and immunities of consular-related persons extend as well to the person's family and private staff [VCConRel Art.53(2)].

The immunities and privileges of a member of a consular post extend as soon as their consular duties commence, and terminate when they leave the country (or after expiry of a reasonable time to do so) [VCConRel Art.53(1)]. In any event, immunities persist indefinitely in relation to functions performed by consular officers and employees [VCConRel Art.53(4)].

All privileges and immunities are also extended - insofar as is possible under Canadian law - to consular personnel in transit through third countries [VCConRel Art.54]. Presumably this prohibits Canadian-initiated extradition and international arrest efforts.

Generally, where consular-related persons "carry on any private gainful occupation" in Canada, they lose their privileges and immunities - apparently EVEN with respect to their consular functions [VCConRel Art.57].

. Privileges and Immunities Relating to Prosecution and Arrest

Consular officers and employees (see definitions
above) enjoy immunity from "the jurisdiction of the judicial or adminstrative authorities of the receiving State IN RESPECT OF ACTS PERFORMED IN THE EXERCISE OF
CONSULAR FUNCTIONS" (author's emphasis) [VCConRel Art.43(1) (this key provision also applies to "honorary consular officers" [VCConRel Art.58]). Although not as clear as the counterparts in the Diplomatic Relations treaty, this wording is broad enough to cover civil, administrative and criminal proceedings, although it exempts civil liability in tort regarding transportation-related accidents, and contract actions grounded in private activities of the person [VCConRel Art.43(2)].

Further, consular officers are generally immune from arrest, detention or imprisonment except by court order, and specifically they are immune from arrest or detention pending trial on a criminal charge except under an arrest warrant pending trial for a charge of "grave crimes" (crimes punishable by five or more years in prison: FMIOA s.2(4)) [VCConRel Art.41(1)(2)].

The home country may waive these prosecution-related privileges and immunities of members of a consular post [VCConRel Art.45].

. Privileges and Immunities Relating to Search and Seizure

Consular premises "used exclusively for the purpose of the work of the consular post" and consular property are "inviolable" except in case of emergencies, or national defence and public utilities expropriation [VCConRel Art.31(1)(2)(4)]. Canada has a duty to "take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity" [VCConRel Art.31(3)].

Consular archives and documents are inviolable at all times and wherever they may be [VCConRel Art.33].

The freedom of consular communications such as correspondence, consular courier, coded communications "shall be permit(ted) and protect(ed)" by Canada [VCConRel Art.35(1)]. Note however that only "official correspondence" (and consular bags as below) of the consular post are "inviolable" [VCConRel Art.35(2)].

Consular bags "may contain only official correspondence and documents or articles intended exclusively for official use" and are exempt from detention and opening, except that in the event of "serious reason" to suspect abuse Canada may request them to be opened, failing which the bag will be returned to its place of origin [VCConRel Art.35(3)(4)].

Consular couriers are personally inviolable and "shall not be liable to any form of arrest or detention" [VCConRel Art.35(5)].

. Other

"The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity" [VCConRel Art.40].

Members of a consular post are compellable as witnesses in judicial and administrative proceedings within Canada, with the exception that matters related to their functions are privileged [VCConRel Art.44]. Consular officers are not subject to contempt of court proceedings for refusal to testify.

(e) International Organizations and Others

. International Organizations

Canada may, by executive order, designate international organizations as having certain privileges and immunities as set out in the Convention on Privileges and Immunities of the United Nations. These include [FIOMA s.5(1)(b)]:
  • protection of property from seizure, except by way of execution (to satisfy civil debts owing);

  • protection of their premises from search or any form of re-possession;

  • protection of their documents;

  • protection of official communications from censorship;

  • use of courier bags with the same immunity and privileges as diplomatic courier bags (see "Diplomatic Missions, above).
Canada may grant missions of foreign states that are accredited to such international organizations, their representatives and staff, and their families: immunities and privileges equivalent to those granted to diplomatic missions [FIOMA s.5(1)(b.1)(d)(e)].

Representatives of foreign states that are members of or that participate in an international organization enjoy, while engaged in their official duties (and subject to waiver by their home country) [FIOMA s.5(1)(c)]:
  • immunity from arrest, detention and seizure;

  • with respect to behaviour done in their official capacity, complete legal immunity;

  • inviolability of their documents and baggage;

  • the use of coded communications and courier bags.
. Other Categories

Similar privileges and immunities may also be granted judges, officials and staff of the International Criminal Court, and any other group so designated by Canada [FIOMA s.5(1)(h.1)(i)].

Canada may also grant, withdraw and restore privileges and immunities like those accorded to consular posts and their personnel to representatives of sub-divisions of foreign states (ie. provinces, internal "states", political regions, etc) [FMIOA s.6].

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