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

Chapter 6 - Supervisory Offences

  1. Overview
  2. Military Commanders
    (a) Overview
    (b) Actus Reus
    (c) Mens Rea
    (d) Failure of Due Diligence
    (e) Penalty
  3. Civilian "Superiors"
    (a) Overview
    (b) Actus Reus
    (c) Mens Rea
    (d) Failure of Due Diligence
    (e) Penalty

________________________________________

1. Overview

When it comes to political violence, military commanders and civilian "superiors" are plainly in a position to both cause and prevent great harm. As such they are subject to additional penalties for serious breaches of these responsibilities. I have labelled these "supervisory" offences.

Note that the supervisory offences are all "paired" to the commission of the main war crimes offences (Ch.5). That is, an element of the supervisory offence is that it must RESULT in the commission of a main war crime offence: genocide, a crime against humanity or a war crime.

In addition - and like the main war crimes offences - supervisory offences may also be committed in the associated "ancillary" forms: counselling, conspiracy, aiding and abetting, accessory after-the-fact and attempt [CAHWCA s.5(2.1), 7(2.1); CCC s.21](see Ch.7: "Ancillary Offences").

As will be seen below, the supervisory offences are primarily ones of omission: of "failure" to control those under one's command. This can place a significant burden on the prosecution, which is put in the position of "proving a negative".

Where the military commander or civilian "superior" has actively engaged in or facilitated a war crime (ie. "commission") then they are more appropriately charged under the main offence (as a direct perpetrator or as one "aiding and abetting": CCC s.22), or with counselling or conspiracy.

The supervisory offences, and their ancillary forms, are all "indictable" within the meaning of Canadian criminal law.

Jurisdictional issues relating to "supervisory offences" can be confusing and complex. These issues are discussed more thoroughly in an explanatory chart provided in Ch.4: "Jurisdiction".


2. Military Commanders

(a) Overview

The meaning of "military commander" expands to include "a person effectively acting as a military commander and a person who commands police with a degree of authority and control comparable to a military commander" [CAHWCA s.5(4), 7(6)].

Note the extension to police and the absence of any requirement of officer rank. In military-type hierarchies any superior rank (even non-commissioned officer) can generally exercise command authority over an inferior rank, so there is no reason to believe that "military commander" could not include a corporal commanding a private.

Further, the provision regarding "person EFFECTIVELY acting as a military commander" would cover situations of unstructured authority, para-military loose militias, and even situations of rank breakdown or mutiny within structured authority where lower ranks seize effective control of troops.

The elements of the "supervisory" offence by a military officer are reviewed immediately below.

(b) Actus Reus

The actus reus of the supervisory offence for military commanders is that they [CAHWCA s.5(1)(a)(i); s.7(1)(a)(i)]:
... fail() to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence ....
The constituent elements of the actus reus then are:
  • failure by the military commander to exercise control over a person under their effective authority (an omission);

  • the commission of the main offence by the person (a third party crime);

  • the failure results in the commission of the main offence (causation).
(c) Mens Rea

The mental element of the supervisory offence is that [CAHWCA s.5(1)(b)]:
... the military commander knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence;
Thus the primary form of the mental element of the supervisory offence is not one of intention, but of knowledge of the impending or in-progress commission of the main war crime.

The secondary form of the mental element is criminal negligence in NOT knowing - ie. where the commander SHOULD have such knowledge. Criminal negligence is normally proven by an examination of: the circumstances of the situation, the defendant's authority and the resources at their control at the time (ie. did they practically have the ability to inform themselves of the situation). These are facts very similar to those which would be examined with respect to the next aspect of the offence definition: due diligence.

(d) Failure of Due Diligence

In order to convict of the supervisory offence, the prosecution must also prove that the military commander, subsequent to learning of the commission or impending commission of the main offence [CAHWCA s.5(1)(c)] EITHER:
  • fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences; or

  • fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution.
Essentially, if it is proven that the military commander - upon first learning of the offence or the impending offence - failed to do all they can to stop it OR failed to report the situation to "competent authorities", then prosecution will have shown absence of due diligence. From the defendant's perspective, BOTH failures must be negated to demonstrate due diligence and achieve acquittal.

An interesting issue in such a situation would be who are "competent authorities" to whom the situation can be reported. Many fact situations of war crimes involve widespread cultural complicity amongst the military - so would reporting to a known culpable superior adequate satisfaction of this duty or must the military commander go higher up - or even outside of the military command structure altogether to international prosecutorial "authority".

The supervisory offence for military commanders is similar to the Canadian "strict liability" offence in that it offers a "due diligence" defence to the charges. However in the typical Canadian strict liability situation the evidentiary burden of showing "due diligence" lies upon the defendant.

While it has not been determined in Canadian law, it is likely that - given the seriousness of the offences involved - that Canadian courts will place the evidentiary burden of showing the defendant's failure to exercise this due diligence on the prosecution. While a defendant will certainly want to put in their own evidence on this issue, they can only do so by opening themselves to cross-examination on all elements of the allegations, including all elements of actus reus and mens reas.

(e) Penalty

The maximum penalty for commission of a supervisory offence, or a related ancillary offence, by a "superior" is life imprisonment [CAHWCA s.5(3), 7(4)].


3. Civilian "Superiors"

(a) Overview

A "superior" is defined as "a person in authority, other than a military commander" [CAHWCA s.5(4), 7(6)].

Necessarily then these are civilians in positions of authority. As noted in the discussion of head-of-state immunity in Ch.3, this most logically includes high-ranking politicians - who often exercise control over military, militia and police authorities.

The definition is also broad enough to cover situations of hierarchical authority which are not even quasi-military in form. However the degree of formal structuring of authority required in civilian situations is uncertain (for instance, would it include the "leader" of a spontaneous mob?) - and is not addressed in the definition.

The elements of the "supervisory" offence by a civilian "superior" are reviewed immediately below.

(b) Actus Reus

The actus reus of the supervisory offence for "superiors" is that they [CAHWCA s.5(2)(a)(i), 7(2)(a)(i)]:
... fail() to exercise control properly over a person under their effective authority and control, and as a result the person commits an offence ....
In addition there is a requirement that [CAHWCA s.5(2)(c)]:
... the offence relates to activities for which the superior has effective authority and control;
The constituent elements of the actus reus then are:
  • failure by the superior to exercise control over a person under their effective authority (an omission);

  • the commission of the main offence by the person (a third party crime);

  • the failure results in the commission of the main offence (causation); and

  • the offence relates to activities for which the superior has effective authority and control.
It seems to me that this latter requirement - that the failure to exercise control relate to the superior's effective range of authority - would only operate to exonerate a defendant who had no control over the situation, and as such seems redundant in light of the causation element already provided for. Whether it will be given any independent meaning is yet to be seen.

(c) Mens Rea

The mental element of the supervisory offence is that [CAHWCA s.5(2)(b), 7(2)(b)]:
... the superior knows that the person is about to commit or is committing such an offence, or consciously disregards information that clearly indicates that such an offence is about to be committed or is being committed by the person;
Thus the primary form of the mental element of the supervisory offence is not one of intention, but of knowledge of the impending or in-progress commission of the main war crime.

The secondary form of the mental element can be described as "willful blindness": having clear information pointing to the intention to commit - or the in-progress commission of - a war crime AND intentionally disregarding it. This form might apply where the degree of knowledge of the circumstances is less than certain, for when there is certainty the primary form of mens rea would be satisfied. These are facts very similar to those which would be examined with respect to the next aspect of the offence definition: due diligence.

(d) Failure of Due Diligence

In order to convict of the supervisory offence, the prosecution must also prove that the civilian "superior", subsequent to learning of the commission or impending commission of the main offence [CAHWCA s.5(2)(d), 7(2)(d)] EITHER:
  • fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences; or

  • fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution.
This element of the offence is identical to the "due diligence" component that established and discussed above regarding military commanders. All comments made there apply equally with respect to "superiors".

(e) Penalty

The maximum penalty for commission of a supervisory offence, or a related ancillary offence, by a "superior" is life imprisonment, with no prescribed minimum [CAHWCA s.5(3),7(4); CCC 717(2)].
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