Journal Committee Editors-in-Chief Sebastian Dutz & Archana Ravichandradeva
Editors CLAIRE COPLAND DERAKHSHAN QURBAN足-ALI JESSICA STEWART STEPHANIE LIM
Design Editor PHILIP BASARIC
Special Thanks
We would like to thank the members of the Rapoport Journal committee. Without such a strong and committed team, this year’s edition of the journal would not have been possible. We would also like to extend our gratitude to the Arts and Science Students’ union for the financial support they provided in facilitating the printing of this publication. On behalf of all Peace, Conflict and Justice students we would like to acknowledge our interim program director Paola Salardi and our program administrator Reina Shishikura for their tireless support and dedication. Finally, we would like to send a huge thank-you to all the people who submitted their work to the Journal this year. We pride ourselves in publishing outstanding undergraduate work on some of the most pressing issues around the world, and this would not be possible without your contributions.
Contents Letter From the Editors ......................................... 5 The Lesser of Two Evils........................................... 6 Photography ............................................................ 14 Transitional Justice & Reconciliation .................. 16 An Examination of the ICC .................................. 31 Canadian Corporations & International Law...... 41 Elixir of Mortality .................................................. 52 Forgiveness Book Review....................................... 56
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Letter From the Editors The Peace and Conflict Studies program at the University of Toronto was recently renamed the Peace, Conflict and Justice Studies Program to reflect how justice is an integral facet in any well-rounded, substantial discussion about peace and conflict. In this, the second edition of the Rapoport Journal for Peace, Conflict and Justice, we aim to mirror this transition by presenting an issue centred around the theme of justice. Justice is the key stage in transitioning from conflict to a sustainable peace. Justice is also a complex, difficult and multi-level process that includes input from individual, institutional, national, and global actors tackling a broad range of issues. The diverse set of submissions that this year’s journal committee has selected all touch on this complexity. An analysis of the unjust use of child soldiers sets the stage for pieces focused on transitional justice, the International Criminal Court, regulation of corporations, and finally, the concept of forgiveness. Despite the diversity of the topic, there are important linkages and trends that bind these pieces together and make them a cohesive whole. This year we are also proud to debut different types of submissions such as an op-ed, a book review, and photos. The interdisciplinary nature of the submissions truly reflects the interdisciplinary foundations of our program. Now firmly established, the journal attracted a record number of submissions in its second year. Narrowing down the pool of submissions was an incredibly difficult task. Once again, a blind peer review process led to the selection of multiple submissions from students in the Peace, Conflict and Justice program, a testament to the strength and diversity of the program’s student body. Global justice can be a difficult concept to grasp, but we hope that this edition of the journal provides some important context and critical analysis. We are very pleased to present the second edition of the Rapoport Journal for Peace, Conflict and Justice! Archana Ravichandradeva and Sebastian Dutz Editors in Chief 2015 5
The Lesser of Two Evils Comparing Civilian Attitudes Towards Violence in Sri Lanka and Uganda Will Zhang
What factors influence an insurgent group’s decision to use child soldiers? According to Beber and Blattman, a group’s propensity for child soldier recruitment is negatively correlated with its level of dependency on civilian and diaspora support. Based on qualitative research conducted on the recruitment practices of the Lord’s Resistance Army (LRA) in Uganda; they posit that the use of child soldiers, as a heinous practice that alienates the complicit insurgents from the civilian base from which the underage fighters are drawn from, is only feasible for groups whose continued survival do not critically rely on the civilian population for funding and assistance.1 The LRA, for example, received both financial support and training from the Sudanese government and could thus conduct its operations even in the absence of popular backing.2 The case of the Liberation Tigers of Tamil Eelam (LTTE), however, provides a problematic counterexample to Beber and Blattman’s theory. The LTTE extensively employed children during the last decade of its war with the Sri Lankan government, with an estimated 20-40% of its soldiers below the age of 18 by the end of the conflict.3 While a portion of these recruits were voluntary, the LTTE also employed coercive enlistment methods, from the detention of parents who refused consent to outright abduction.4 At the same time, however, the Tigers were based in the resource-poor northern and eastern regions of Sri Lanka5 and crucially depended on financial support from both the local Tamil population and Tamil expatriates worldwide. In the mid2000s, for example, the LTTE was believed to have received an estimated $2 million in funding every month from the global Tamil diaspora, many residing in western countries such as Canada, the United States, and the United Kingdom.6 Existing literature appears insufficient in explaining the case of the LTTE. 6
Beber and Blattman note that a lack of educational and economic opportunities may render abhorrent recruitment strategies more rational and acceptable in the eyes of the public.7 In order for this factor to sufficiently account for the discrepancy in popular support between the LRA and the LTTE, the situation for Tamil civilians during the period in which the LTTE practised child soldier recruitment would have had to be demonstrably worse than that of Ugandans at the time of the LRA’s operations. Statistical evidence, however, points to the contrary; Tamil children had a primary school enrolment rate of 90% in 2000,8 compared to only 50% for Ugandan children circa 1990.9 Uganda also had a national unemployment rate of 15.3% in 1992-3,10 far surpassing Sri Lanka’s 2000 rate of 7.6%.11 Other literature, such as Humphreys and Weinstein’s examination of selective incentives and social sanctions,12 focus on defining factors motivating individuals to join insurgencies rather than what compels the civilian population as a whole to accept insurgent recruitment methods. Such deficiencies on the part of canonical conflict literature suggests that additional considerations impact an insurgency group’s decision to pursue child soldier recruitment. Such factors, if verified, would pose important policy implications for both state and non-state actors seeking to eradicate this horrific practice. Through the course of their research into effective counterinsurgency strategies, Berman et al. put forth the conception of civilians as rational actors who decide between support of the government and insurgent groups through the weighing of overall costs and benefits.13 Building upon this conceptual model, this paper will posit that the civilian population’s threshold of tolerance for violent and coercive actions, including recruitment of child soldiers, on the part of insurgent groups is largely dependent on the relative degree of atrocities committed against it by the government. Insurgent groups can commit violent acts and engage in forced recruitment while continuing to enjoy public support if the sum total of such atrocities are perceived to be overshadowed by government brutality. The validity of this hypothesis will be tested through the application of Mill’s method of difference to a comparative case study 7
between the LTTE and the LRA. Mill’s method of difference holds that in comparing two similar cases, one of the two in which a given phenomenon arises, the cause of the phenomenon can be attributed to the factors that are not held constant across both cases.14 In comparing the LTTE and the LRA, several similarities become immediately apparent; both insurgent groups relied extensively on child soldiers, and practised forced recruitment strategies such as abduction. Once enlisted, young recruits in both insurgent groups would be subjected to a mix of spiritual, political, and material propaganda designed to instil a sense of loyalty to the insurgency and feelings of hatred towards the government.1516 Both Joseph Kony and Velupillai Prabhakaran, the respective leaders of each organization, actively fostered cults of personality to further inspire awe and fear in the minds of the civilian population.1718 Adolescents in both cases were the preferred target because they could perform most combat tasks as effectively as adults while being more susceptible to the influence of propaganda.1920 Both the Sri Lankan and Ugandan conflicts were also commonly characterized by significant levels of government violence against civilians. Much of the impetus for the formation of the LTTE and other Tamil insurgent groups stemmed from the Sinhalese-dominated Sri Lankan government’s repressive treatment of the nation’s Tamil minority, and many such practices intensified following the onset of conflict. During the 1983 anti-Tamil riots, the police stood by as Sinhalese killed unarmed Tamils and looted their property, and in some cases actively assisted the rioters in their activities.21 After government forces captured the LTTE-controlled district of Batticaloa in 1990, Tamil youth in the area were systematically rounded up and nearly 6,000 civilians were “disappeared”. Such atrocities were often exacerbated by the poorlytrained government troops, many as young as 18 who were sent to the front lines after only receiving 30 days of basic training.22 The Sri Lankan army has also recently been accused of employing rape as a form of torture against suspected LTTE members and supporters in their custody both during and after the conflict.23 Rape on the part of 8
government soldiers was also prevalent in the Ugandan conflict, most commonly in or around refugee camps. Members of the Uganda People’s Defence Force (UPDF) also systematically engaged in the arbitrary arrest and detention, torture, and execution of civilians, often with the flimsiest of justifications. Here, just as in Sri Lanka, the lack of discipline exhibited by the government forces contributed to the propensity for such atrocities.24 With other factors holding relatively constant, the key difference between the cases of the LRA and the LTTE appears to be the insurgent groups’ overall level of violence against the local civilian population. LRA brutality during the Ugandan civil war surpassed even that of the UPDF. In addition to widespread rape and killings, LRA cadres engaged in mutilation as a means of instilling fear and deterring civilian cooperation with the government. Systematic campaigns of mutilation would also be undertaken following setbacks in the conflict to reaffirm the LRA’s military capabilities.25 Abduction of new recruits from local villages would often be accompanied by looting and rape.26 New cadres would frequently be forced to desecrate dead bodies, a deeply taboo practice in Ugandan culture, as part of their initiation process into the group.27 These actions suggest that the LRA did not view the maintenance of civil relations with the local population as integral to its interests, and regularly committed violence against civilians as a means of achieving specific strategic objectives. When viewed through the conceptual lens provided by Berman et al., an argument can be made that civilians in the Ugandan civil war saw no rational benefit to pledging allegiance to either side of the conflict, as neither the LRA nor the government were perceived as acting in the interest of ensuring their peace and security. This sentiment is echoed in the testimony of one refugee: “The reason I ran was because I know how soldiers are in the bush. It is best to run from them, unless they catch you red-handed. You can’t separate between LRA and UPDF so you must just run.”28 The LTTE, on the other hand, appears to have been greatly motivated by a desire to preserve the support of its civilian population base. Although the group is notorious 9
for its employment of terrorism as a strategic weapon, nearly all such attacks have been directed against Sri Lankan Sinhalese and Muslims rather than their fellow Tamils.29 Even in situations where political considerations have necessitated violence against Tamils, the Tigers have taken proactive measures to distance themselves from direct culpability. The LTTE is widely believed, for example, to have orchestrated the 2007 assassination of a Tamil Hindu priest who had blessed Sri Lankan President Mahinda Rajapakse during his visit to a temple earlier in the year. When pressed on this incident by international humanitarian organizations, the Tigers denied involvement and denounced the accusations as an attempt by the Sri Lankan government to undermine Tamil solidarity.30 From the onset of the conflict in 1983, the LTTE had consistently sought to present itself as a legitimate defender of the interests of the nation’s entire Tamil population, and has lived up to such a reputation on numerous occasions by taking measures to preserve civilian peace and security. A young Tiger cadre in the documentary “My Daughter the Terrorist,” for example, describes how the LTTE assisted her family in escaping from the conflict zone and reaching safety by fending off pursuing government forces.31 When viewed in the wider context of its other civilian interactions, it is not difficult to see how the LTTE could continue the forced recruitment of child soldiers while retaining popular support. From the perspective of a Tamil civilian, the practice is likely to be viewed more as a draconian form of conscription necessary to sustaining the struggle against a nefarious enemy rather than a heinous act on the part of looters and rapists as is more the case with the LRA. The dramatic difference between these two views is highlighted through a comparison of the statement of the Ugandan refugee provided earlier with the following quote by the LTTE cadre interviewed in the documentary: “I felt if I didn’t join the movement, our people would be forced into slavery. That’s why I joined the LTTE.”32 Civilians embroiled in conflicts generally find themselves caught between a rock and a hard place, and opt for the most rationally appealing path by choosing the lesser of two evils. The findings of the comparative case study between the LTTE and 10
the LRA appear to support the contention that insurgent groups can maintain popular support even when employing methods such as the recruitment of child soldiers if government forces are viewed by the public to demonstrate an even lower degree of consideration for their well-being. This conclusion presents two interesting policy implications: For humanitarian organizations and other third-party interveners, a refocusing of efforts on reducing civilian brutality on the part of the local government may prove to be a more efficient allocation of resources, as success on this front would also indirectly reduce the level of violence committed by insurgent groups keen on retaining popular support. From the perspective of local governments, a proactive effort to improve relations with the civilian population may lead to an increased chance of counterinsurgency success, as such a process would increasingly limit the range of feasible actions available to image-conscious insurgent groups. In the Sri Lankan case, for example, the government would likely have defeated the LTTE much sooner if the Tigers had not been able to replenish their depleted ranks through recruitment of child soldiers for fear of alienating the local Tamil population. This insight taps into a theme prevalent across counterinsurgency theory: that success in winning over the public’s “hearts and minds” is perhaps just as important as success on the battlefield in achieving ultimate victory.
Works Cited “Abuses by the LRA and the UPDF against Civilians.” Human Rights Watch, accessed Nov. 19, 2014. http://www.hrw.org/reports/2005/uganda0905/5.htm
Achvarina, Vera. Evidence and Inference. Lecture, Toronto, October 30, 2014. Arunatilake, Nisha. “Education Participation in Sri Lanka – Why All ae Not in School.” The Institute of Policy Studies of Sri Lanka, accessed Nov. 19, 2014. http://www.ips.lk/lei/assets_ lei/education_participation.pdf Bernd Beber and Christopher Blattman, “The Logic of Child Soldiering and Coercion,” International Organization 67.1 (January 2013) Eli Berman, Jacob N. Shapiro, and Joseph H. Felter, “Can Hearts and Minds Be Bought? The Economics of Counterinsurgency in Iraq,” NBER Working Paper 14606, 2009:
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“Bulletin of Labour Force: Provincial profile of Year 2000.” Sri Lanka Department of Census & Statistics, accessed Nov. 19, 2014. http://www.statistics.gov.lk/samplesurvey/bul2000.pdf “The Development of Education in Uganda in the Last Ten Years” The Ministry of Education and Sports (Uganda), Sept. 7, 2001, accessed Nov. 19, 2014. http://www.ibe.unesco.org/International/ICE/natrap/Uganda.pdf Fagerlund, Emilia. “The Tigers’ Roar: Insurgent Violence Against Civilians in Sri Lanka,” Psychology & Society 4:1 (2011) Macartan Humphreys and Jeremy M. Weinstein, “Who Fights? The Determinants of Participation in Civil War,” American Journal of Political Science 52.2 (April 2008) Manoharan, N. “Financial Fodder – External Sources of LTTE Funds.” Institute of Peace and Conflict Studies, accessed Nov. 19, 2014. http://www.ipcs.org/article/terrorism-in-sri-lanka/ financial-fodder-external-sources-of-ltte-funds-1530.html “Millennium Development Goals Report for Uganda 2013” The Republic of Uganda, accessed Nov. 19, 2014. http://planipolis.iiep.unesco.org/upload/Uganda/Uganda%20MDG%20 Report-Oct%202013.pdf My Daughter the Terrorist, Video, dir. Beste Arnestad (2007; Norway: Snitt Film Production) Web. https://www.youtube.com/watch?v=dBdNX0OEzQI Oberst, Robert. “Tigers and the Lion: The Evolution of Sri Lanka’s Civil War,” Harvard International Review, 18:3 (Summer 1996) Ramesh, Randeep, “Tamil Tigers still enlisting thousands of child soldiers,” The Guardian. Nov. 12, 2004. http://www.theguardian.com/world/2004/nov/12/srilanka Somasundaram, Daya. “Child Soldiers: Understanding the Context,” BMJ: British Medical Journal , No. 7348 (May 25, 2002) “Sri Lanka: Rape of Tamil Detainees.” Human Rights Watch, Feb. 26, 2013, accessed Nov. 19, 2014. http://www.hrw.org/news/2013/02/26/sri-lanka-rape-tamil-detainees Tekwani, Shyam. “Pirapaharan: The Man who destroyed Tamililam.” Thuppahi’s Blog, accessed Nov. 19, 2014. http://thuppahi.wordpress.com/2011/09/04/pirapaharan-the-man-who-destroyed-thamililam/ Watkins, Thayer. “The Economy and Economic History of Sri Lanka.” San Jose State University Economics Department, accessed Nov. 19, 2014. http://www.sjsu.edu/faculty/watkins/ srilanka.htm
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End Notes 1 Bernd Beber and Christopher Blattman, “The Logic of Child Soldiering and Coercion,” International Organization 67.1 (January 2013) 69. 2 Ibid. 81. 3 Daya Somasundaram, “Child Soldiers: Understanding the Context,” BMJ: British Medical Journal , No. 7348 (May 25, 2002), 1270. 4 Randeep Ramesh, “Tamil Tigers still enlisting thousands of child soldiers,” The Guardian. Nov. 12, 2004. http:// www.theguardian.com/world/2004/nov/12/srilanka 5 Thayer Watkins, “The Economy and Economic History of Sri Lanka.” San Jose State University Economics Department, accessed Nov. 19, 2014. http://www.sjsu.edu/faculty/watkins/srilanka.htm 6 N. Manoharan, “Financial Fodder – External Sources of LTTE Funds.” Institute of Peace and Conflict Studies, accessed Nov. 19, 2014. http://www.ipcs.org/article/terrorism-in-sri-lanka/financial-fodder-external-sources-ofltte-funds-1530.html 7 Beber and Blattman 101. 8 Nisha Arunatilake, “Education Participation in Sri Lanka – Why All are Not in School.” The Institute of Policy Studies of Sri Lanka, accessed Nov. 19, 2014. 4. http://www.ips.lk/lei/assets_lei/education_participation.pdf 9 “The Development of Education in Uganda in the Last Ten Years” The Ministry of Education and Sports (Uganda), Sept. 7, 2001, accessed Nov. 19, 2014. http://www.ibe.unesco.org/International/ICE/natrap/Uganda.pdf 10 “Millennium Development Goals Report for Uganda 2013” The Republic of Uganda, accessed Nov. 19, 2014. 16. http://planipolis.iiep.unesco.org/upload/Uganda/Uganda%20MDG%20Report-Oct%202013.pdf 11 “Bulletin of Labour Force: Provincial profile of Year 2000.” Sri Lanka Department of Census & Statistics, accessed Nov. 19, 2014. http://www.statistics.gov.lk/samplesurvey/bul2000.pdf 12 Macartan Humphreys and Jeremy M. Weinstein, “Who Fights? The Determinants of Participation in Civil War,” American Journal of Political Science 52.2 (April 2008), 439. 13 Eli Berman, Jacob N. Shapiro, and Joseph H. Felter, “Can Hearts and Minds Be Bought? The Economics of Counterinsurgency in Iraq,” NBER Working Paper 14606, 2009: 42. 14 Vera Achvarina. Evidence and Inference. Lecture, Toronto, October 30, 2014. 15 Beber and Blattman 87-8. 16 Somasundaram 1269. 17 Beber and Blattman 87. 18 Shyam Tekwani, “Pirapaharan: The Man who destroyed Tamililam.” Thuppahi’s Blog, accessed Nov. 19, 2014. http://thuppahi.wordpress.com/2011/09/04/pirapaharan-the-man-who-destroyed-thamililam/ 19 Beber and Blattman 92. 20 Somasundaram 1270. 21 Robert Oberst, “Tigers and the Lion: The Evolution of Sri Lanka’s Civil War,” Harvard International Review, 18:3 (Summer 1996), 34. 22 Ibid. 34. 23 “Sri Lanka: Rape of Tamil Detainees.” Human Rights Watch, Feb. 26, 2013, accessed Nov. 19, 2014. http://www. hrw.org/news/2013/02/26/sri-lanka-rape-tamil-detainees 24 “Abuses by the LRA and the UPDF against Civilians.” Human Rights Watch, accessed Nov. 19, 2014. http:// www.hrw.org/reports/2005/uganda0905/5.htm 25 Ibid. 26 Beber and Blattman 81. 27 Ibid. 86. 28 “Abuses by the LRA and the UPDF against Civilians” 29 Emilia Fagerlund, “The Tigers’ Roar: Insurgent Violence Against Civilians in Sri Lanka,” Psychology & Society 4:1 (2011), 99. 30 Ibid. 108. 31 My Daughter the Terrorist, Video, dir. Beste Arnestad (2007; Norway: Snitt Film Production) Web. https:// www.youtube.com/watch?v=dBdNX0OEzQI 32 Ibid.
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Charlotte Smith
Chase McNabb 14
Chase McNabb
Chase McNabb 15
The Limitations of Transitional Justice
The Effects of Truth Telling on Combatant Reintegration in Rwanda and Sierra Leone Sarah Burton
Following the end of a civil war, the reintegration of combatants and conflicting groups into their communities is of critical importance to the security of the state because it dissuades combatants from defecting from the peace-settlement and returning to the opportunistic activities of the conflict. While demobilization, disarmament, and reintegration (DDR) projects have gained popularity in the past two decades, these projects often coincide with other peace-building mechanisms, such as those employing transitional justice. Truth and Reconciliation Commissions (TRCs) and truth-telling processes, for example, are extremely popular tools for achieving transitional justice, since they provide a forum for conflicting parties to express their grievances in order to create understanding and empathy, thereby promoting reconciliation.1 Moreover, in recent peacebuilding literature, truth-telling is promoted as a powerful reconciliation mechanism because it is assumed that truth-telling promotes “forgiveness” and “healing.”2 However, despite strong advocacy for both DDR projects and truth-telling processes, there is a gap in the literature where these two processes intersect: how does truth-telling help to promote societal reintegration in post conflict societies with high levels of violence and mass atrocities? Reintegration is essential in societies such as Rwanda and Sierra Leone, where community involvement and interaction are frequent and where ex-combatants often must return to their former communities. In fact, following the civil wars in both of these countries, the respective governments urged citizens to forgive former combatants and allow them to return to their communities. In order to help facilitate this process, the governments instituted truth-telling forums to promote the reconciliation of the conflicting groups. In Rwanda, the government used a traditional form of justice known as the gacaca 16
courts, which were originally a community-based system for resolving disputes. Due to the overpopulation of prisoners following the genocide, the gacaca courts were used as a truth-telling process, in order to promote reconciliation and provide retribution for the most heinous crimes. As such, it operated as both a restorative and retributive justice system. This contrasts with Sierra Leone, where two independent bodies were established in order to deal with the crimes perpetrated during the civil war—the Special Court for Sierra Leone (SCSL) and the Sierra Leone Truth and Reconciliation Commission (SLTRC). Given the hybrid nature of both these transitional-justice mechanisms and the mass atrocities committed in both civil wars, Rwanda and Sierra Leone were selected as the case studies for this paper in order to analyze and identify how truth-telling processes, in particular, promote the societal reintegration of ex-combatants and conflicting groups. This paper will argue that truth-telling mechanisms for transitional justice are counterproductive to the reintegration of ex-combatants and conflicting groups. The case of Rwanda will demonstrate that the gacaca courts created hostility towards perpetrators and caused the retraumatization of victims, through short-term exposure to their traumas. The case of Sierra Leone will demonstrate that although the SLTRC sought to contextualize the actions of child-soldiers in order to promote their rehabilitation, these methods were unsuccessful in reintegrating the former child combatants back into society. The Western model of “truth-telling” also created barriers toward reintegration for both child and adult combatants, given the cultural preference for “societal forgetting” in Sierra Leonean communities. Moreover, the funds allocated towards the SLTRC diverted money away from other development projects that may have been more conducive to community-healing and societal reintegration. As such, the truth-telling processes in both Rwanda and Sierra Leone created a barrier towards the reintegration of ex-combatants. The Gacaca Courts and Truth-Telling in Rwanda The dyadic nature of the gacaca courts, which incorporates elements of both 17
retributive justice and truth and reconciliation, has made it increasingly difficult for societal reintegration. Members of the community attend the gacaca court proceedings in order to discover the truth regarding their lost relatives, friends, and neighbours, and to establish a common history or knowledge surrounding the events of the genocide. Bert Ingelaere claims that, “Truth-telling is the cornerstone of the transitional justice framework due to the design of the Gacaca tribunals.”3 However, since the gacaca courts also act as a mechanism for employing retributive justice toward perpetrators, the accused frequently manipulate the truth or confess to less severe crimes in order to receive reduced punishments or liberation.4 According to Joshua Miller, “In some communities, [this had led to the emergence of] clandestine groups, referred to as ceceka (meaning “keep quiet”), [who] have organized a code of silence before the Gacaca courts.”5 This has negative repercussions on perpetrators’ relationships with victims, who feel that the truth is being manipulated, leading to a sense of deprivation from the truth or justice. Often, this can re-instill feelings of enmity toward the perpetrators, and can induce a sense of hopelessness in the search for truth and healing. In an interview with Philip Gourevich, one woman claimed that, “every time I come to Gacaca with an open mind, I just get more upset.”6
In Rwandan society there is also a distinction made between confessing
(gusaba imbabazi) and accepting moral responsibility (kwicuza).7 One woman, an inyangamugayo from the gacaca courts, stated in a focus group that, “certain génocidaires do not have the right to rejoin the community because, although they asked for mercy (basabye imbabzi) before the courts by pleading guilty and admitting the acts they committed, they have not shown remorse (batyicuza).”8 According to Jennie Burnet, this is of critical importance to the victims of the genocide because while lives cannot be replaced, there is a unanimous acceptance that justice through the courts is an important way to, “recapture the dignity of those who died in ignominious ways.”9 Denial or manipulation of the truth by perpetrators, as such, can directly impact how the community chooses to forgive the accused, and re-incorporate them 18
back into society. For example, in one Rwandan community, a Tutsi widow claimed that, “In general, the prisoners integrate themselves without any trouble. But there is one who did not change. He, stays at home, he talks to no one. Since he did very bad things in the genocide, killed a lot, we leave him alone like that. We’ve put him in quarantine.”10 Given the incentives that the accused have to lie in the hybridistretributive court system, the truth-telling process becomes distorted and can lead to these divides within society. Moreover, since the gacaca courts were meant to foster reconciliation and facilitate a sustainable peace through the establishment of the truth, the courts may have contributed to a sense of mistrust among citizens and a lack of social cohesion.11
In his research, Ingelaere analyzed the problematic social cohesion and
reconciliation process in Rwanda, and found that, “the decline in mutual trust, the distorted experience of reconciliation, and the lack of active popular participation in the Gacaca process, are mainly the consequence of a problematic quest for the ‘truth’.”12 This can be associated with the inability for the gacaca courts to establish a truthful recollection of events, due to the manipulation of the system by perpetrators. Ingelaere found in his research that, “53% of the population [replied] affirmatively to the proposition that ‘it is naïve to trust others’… after more than a year of Gacaca activities in 2006.”13 This is correlated with a 14% increase between 2002 and 2006 in the belief that, “defense witnesses will intervene in Gacaca in an attempt to diminish the magnitude of crimes of genocide and crimes against humanity,” a 17% increase in the belief that “there will be a large amount of false accusations during Gacaca”, and a 13% increase in the belief that “the accused who have not confessed are obeying a pact of silence.”14 Thus, there is a shared and rising perception among Rwandans that the gacaca courts have failed to establish a common truth.
Truth-telling can also have negative psychological effects on witnesses and can
re-instill negative emotions towards perpetrators by causing participants to re-live past experiences. In a study conducted by Bernard Rimé et al. on the gacaca courts, 19
the researchers tested whether collective rituals—particularly TRCs—can “modify the social attitudes that prevail in a given population as a result of past conflicts, violations of human rights, or massacres.”15 The results identified that the gacaca trials reactivated negative emotions in both victims and perpetrators, marked by an increase in feelings of fear, anxiety, and sadness.16 Accordingly, both victims and perpetrators who participated in gacaca manifested an increase in negative emotions, compared to those in the control group, who did not have a gacaca court in their community.17 This is supported by the research of Ervin Staub, who claims that the gacaca courts created, “Renewed anger and hostility by Tutsis who reengage with the horrible violence against them as they hear or give testimonies, and by Hutus who feel the discussion and indictments concerning the genocide serve to implicate all Hutus, including passive bystanders.”18 By causing participants to reflect upon the violence and atrocities committed both against and by them, the truth-telling process can manifest itself in the form of anger towards the ‘other’. Interestingly, as discussed by Staub, the gacaca courts not only possess the ability to re-invoke negative emotions, but also to create them where they were once absent. Furthermore, Staub claims that children became traumatized during the gacaca process from exposure to the violent testimony of victims.19 This is problematic since the invocation of negative emotions in later generations—who were either unaware of the violence or the extent of the violence—can prolong feelings of animosity towards ‘out’ groups and inhibit societal reintegration. In one community, for example, Rwandan women claimed that Hutu children were developing discriminatory attitudes towards the Tutsi, including discrimination against Tutsi children through ridiculing and derogatory names involving ethnicity, such as “rescapée child” or “child of Tutsi.”20 As such, the truth process may be inhibiting the reintegration of Hutus and Tutsis through the creation and manifestation of negative emotions, and the reinforcement of stereotypes emphasized during the genocide. These negative emotions become particularly problematic when they manifest 20
themselves in psychological disorders, such as post-traumatic stress disorder (PTSD) or when they lead to the re-traumatization of victims. Rimé et al. contend that being “reminded [of] past events and being confronted with perpetrators,” was accompanied by a substantial increase in PTSD indicators among victims participating in gacaca.21 Moreover, Staub identifies that the gacaca courts have led to the, “retraumatization of all survivors, especially those called upon as witnesses, as they describe or hear about all the violence and atrocities—killings, rape, mutilation, and so on—in the course of the genocide.”22 While the literature suggests that truth-telling can be healing, Karen Brounéus suggests that in situations such as the gacaca courts, psychological intervention after trauma in the form of a one-session debriefing—which involves a short and intensive trauma exposure, such as giving testimony—can increase the risk of PTSD and depression.23 In other words, “short re-exposure to trauma risks psychological ill-health.”24 Testifying in the gacaca courts forces witnesses to confront the violence for a brief period of time, which brings to the surface traumatic experiences that are then left unaddressed and untreated following the testimony. As such, the gacaca courts can worsen and even catalyze PTSD in witnesses and victims. In the case of the Rwandan genocide, aside from the murders and extermination campaigns, there was also an abundance of non-fatal violence, which is commonly associated with traumatization. “Non-lethal violence such as sexual violence ‘can have long-term lethal consequences’ due to stigmatization and the consequential loss of security or to sexually transmitted diseases, such as HIV/AIDS.”25 Under these circumstances, the gacaca courts often cause psychological-breakdowns by rape victims, who must re-live the violence by opening up and sharing their personal experiences with the community. According to a series of interviews conducted by Brounéus: “Several women spoke of having a ‘traumatisme’ when witnessing at the gacaca, which meant reliving the trauma very strongly, crying, shaking uncontrollably, or fainting.”26 Brounéus claims that one consequence of having a traumatisme is, “feelings of shame about having exposed such strong emotions in public, in front of the families and 21
perpetrator.”27 One woman, for example, stated that: “When I gave testimony, I had a psychological crisis… When you give testimony surrounded by people who have killed your family… you feel ill; you feel insane.”28 Another frequent consequence of suffering from a traumatisme is a feeling of isolation and vulnerability, particularly if no one follows up with the victim after he or she returns home.29 This is problematic because traumatization followed by a lack of support for psychological ill-health can lead to societal ostracization. Isolationism creates an obstacle to societal reintegration, since members of the community may segregate themselves from those who have harmed them. Moreover, interaction with perpetrators following these experiences of traumatization may contribute to a sense of insecurity in the victim, thus creating a rift within the community. While the retributive aspect of the gacaca courts may distort the truth-telling process and create feelings of animosity towards perpetrators, it is the ‘search for the truth’ that inhibits societal reintegration. By forcing individuals to re-live the horrors of the genocide through exposure to testimonies, the truth-telling process in Rwanda created negative and hostile feelings towards perpetrators. It also created feelings of isolationism both in perpetrators, who felt ostracized and condemned, and in victims, who suffered from a traumatisme. Thus, in the case of Rwanda, the truth-telling process was counterproductive to societal reintegration. The Sierra Leone Truth and Reconciliation Commission While some literature suggests that the Sierra Leone Truth and Reconciliation Commission (SLTRC) was conducive towards the societal reintegration of child soldiers,30 this paper proposes that the SLTRC had no positive effects of the reintegration of children within their communities. Given the dual-structure of Sierra Leone’s transitional justice framework, the SLTRC was meant to provide a safe and effective method for children to relay their experiences from the conflict without risking retribution by the courts.31 Cecile Aptel, purports that: 22
It may… be in the best interests of children to be encouraged to acknowledge their crimes and face up to their responsibility, as long as this is done under protective conditions. Alternative forms of accountability within the arsenal of transitional justice mechanisms that are more rehabilitative than criminal prosecutions, such as truth commissions and traditional ceremonies, may facilitate the reintegration of children.32 As such, the SLTRC’s mandate emphasized the need for special attention toward children in order to create a complete and historical record of their experiences, with an emphasis on their reintegration and reconciliation within society.33 Children were guaranteed the right to be heard and have their views taken into consideration, to be adequately protected to ensure their survival and development, and to be free from discrimination of any kind.34 Moreover, children were granted anonymity in their interviews in order to protect their identities and promote their reintegration with society. However, despite the measures taken to protect the ex-child soldiers and to reintegrate them into their communities, field-work suggests that these demobilized child combatants still faced, and continue to face, high levels of discrimination in their communities.35 Betancourt et al., claim that, “Upon returning to their communities, children formerly associated with armed forces and armed groups–commonly referred to as child soldiers–often confront significant community stigma.”36 This is problematic because community and family acceptance is essential to the rehabilitation and reintegration of child soldiers.37 In the case of Sierra Leone, returning child soldiers were often approached with apprehension and distrust, particularly if they were associated with high levels of violence or sexual violence.38 Theresa Betancourt et al.’s research found that 71% of youth in Sierra Leone reported exposure to discrimination within their communities, with the most cited reason being their status as a former child soldier.39 Moreover, over the course of two years, from 2002 to 2004, the researchers examined extremely minimal changes in the level of community acceptance, which increased from 10.18 (SD = 3.10) to 10.28 (SD = 2.47).40 This is of significant importance because these two years coincide with the operational years of the SLTRC, which lasted 23
from November 2002 until October 2004, suggesting that the SLTRC’s work had a minimal effect on community reintegration.
In addition to the experiences of child-soldiers, adult combatants also faced
adverse effects in regards to reintegration due to their participation in the war. According to Humphreys and Weinstein, only 34% of Revolutionary United Front (RUF) fighters returned to their home communities following the end of the civil war.41 Members of the Armed Forces Revolutionary Council (AFRC) and the West Side Boys (WSB) were similar in this regard.42 Furthermore, 25% of RUF fighters experienced “some” or “big” problems gaining community acceptance in the areas where they chose to live, while nearly 50% of AFRC experienced the same; 25% of West Side Boys (WSB) combatants experienced “some” problems.43 This information was collected over a period of three months during 2003, a year after the institution of the SLTRC. Moreover, the researchers’ data collection program, which began in June and ended in August, coincides with the public hearings organized by the SLTRC across the 12 districts, occurring from April until August 2003. Thus, despite public hearings which provided perpetrators with an opportunity to seek community forgiveness, hostility and discrimination against former-combatants remained relatively high.
It is plausible that the SLTRC was actually counter-productive to the
reintegration process, given that the Western-model of “truth-telling” was incongruent with the societal healing practices of Sierra Leone, which favours a “forgive-and-forget” approach. According to Rosalind Shaw, “In northern Sierra Leone, social forgetting is a cornerstone of established processes of reintegration and healing for child and adult ex-combatants. Speaking of the war in public often undermines these processes, and many believe it encourages violence.”44 Shaw contends that in some communities the SLTRC was often an obstacle to healing,45 thereby hindering reintegration: For some communities, such as a large village in which I worked in 2003 and 2004 that had held church ceremonies to reintegrate ex-combatants, the TRC disrupted their own practices of reconciliation. Sometimes whole communities agreed not to give statements or to give statements that withheld information 24
that they thought might be damaging to the ex-combatant children of their neighbors. People thereby sought to protect their communities and their relationships from the potentially damaging consequences of publicly remembering violence.46 Given fears that speaking about the war could exacerbate tensions and make it more likely for violence to resume, social forgetting was an essential technique for the reintegration and healing of both child and adult ex-combatants in Sierra Leone, and different communities developed their own processes for reintegrating combatants through rituals that discouraged speaking about the violence. In Temne-speaking areas, for example, former child soldiers were reintegrated into the community through rituals to “cool the heart,” which attempted to restore the child’s relationship with God through prayer, the application of consecrated water, and small offerings, and thereby also restore their relationship with their family and community.47 Similar rituals were used for adult combatants. According to Shaw, Because having and maintaining a “cool heart” requires a transformation of social identity, ex-combatants were discouraged from publicly talking about the war after these rituals, and reciprocally community members were enjoined not to call child or adult ex-combatants “rebels” or other combatant labels, not to ask ex-combatants about their past actions, and not to discuss the war in public after rituals of reintegration.48
As such, the SLTRC’s methods of truth-telling and public hearings would have
created barriers toward reintegration in communities where societal forgetting was crucial for community acceptance. In addition to the incongruencies between “truth-telling” and Sierra Leonean methods for societal healing, the SLTRC diverted funds away from other transitional justice mechanisms and development projects that may have been more conducive to societal reintegration. International donors provided approximately $5 million towards the creation and operation of the SLTRC, in addition to a $97,000 donation by the Sierra Leonean government towards the project.49 However, many Sierra Leoneans feel that the SLTRC did not provide what it had promised and believe that the money should 25
have been allocated towards other mechanisms that would have created community reconciliation.50 According to a 2009 survey conducted in the Makeni region, locals perceived the SLTRC as a justice mechanism to overcome violations from the past.51 However, what the local people wanted was, “the provision of tools or resources to overcome the violations of their needs in the present and future.”52 Accordingly, the locals believed that truth telling was not “sufficient” and instead they “wanted recovery of life and community.”53 One local chief from the south side of Makeni claimed that rather than holding people accountable, the money for the SLTRC should have provided mechanisms to promote peace within the country, such as by funding education and health.54 Another Sierra Leonean recommended that: The money should have been used to help the people that were directly involved in this saga, and then the second thing is to bring development things, things that will make the community forget about what has happened. Things like building schools or to help the teachers… good roads… that would have helped to salvage the situation.55
These development mechanisms are important for the societal reintegration
of post-war communities and in particular, the reintegration of ex-combatants. Demobilization, disarmament, and reintegration (DDR) research suggests that economic development is conducive to post-war security and peace.56 Moreover, Jeremy Weinstein and Macartan Humphreys suggest that “reintegration programmes that seek to create economic opportunities for combatants” reduce the risk of conflict and increase the likelihood of reintegration.57 Suggested mechanisms include providing income-opportunities for young men and ex-combatants,58 which can be achieved through investing in key projects such as education and infrastructure. However, rather than invest in these projects, the Sierra Leonean government provided its limited funds to support the internationally-backed TRC, which was based on Western-models of transitional justice. Since these transitional-justice models do not take into account the differing circumstances of the non-Western world, they overlook other rehabilitative 26
mechanisms that may be more conducive to creating peace, security, and reintegration in war-torn societies. Thus, in the case of Sierra Leone, the SLTRC diverted funds away from projects that would have been more conducive to rehabilitating ex-combatants back into society and merging conflicting groups. Conclusions The truth-telling processes in both Rwanda and Sierra Leone were counterproductive to creating societal reintegration. In addition to failing to alleviate the tensions between perpetrators and victims, the truth-telling processes actually worked against societal reintegration by causing psychological traumatization, creating hostilities between witnesses, and depriving more effective development projects from funding. Using the truth-telling processes of Rwanda and Sierra Leone as case studies, this paper demonstrated that truth-telling does not contribute to the reintegration of ex-combatants and conflict groups. Rather, truth-telling has more negative effects than benefits on community-healing. Therefore, in order to understand how justice can be provided to conflict-torn societies, other transitional justice mechanisms that promote societal reintegration should be analyzed.
Works Cited Aptel, Cecile. “Unpunished Crimes: The Special Court for Sierra Leone and Children,” in Sierra Leone Special Court and its Legacy: The pact for Africa and International Criminal Law, ed. Charles Jalloh, 340-360. New York: Cambridge University Press, 2014. Betancourt, Theresa S., Jessica Agnew-Blais, Stephen E. Gilman, David R. Williams,and B. Heidi Ellis. 2010. “Past Horrors, Present Struggles: The Role of Stigma in the Association between War Experiences and Psychosocial Adjustment among Former Child Soldiers in Sierra Leone.” Social Science & Medicine no. 70: 17-26. Brounéus, Karen. “Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts,” Security Dialogue no. 39: 55-76. Burnet, Jennie E. “(In)Justice: Truth, Reconciliation, and Revenge in Rwanda’s Gacaca,” in Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence, ed. Alexander Laban Hilton, 95-118. Piscataway:
27
Rutgers University Press, 2010. Cook, Philip and Cheryl Heykoop. “Child Participation in the Sierra Leonean Truth and Reconciliation Commission,” in Children and Transitional Justice: Truth telling, Accountability and Reconciliation, ed. Sharanjeet Parmar, 159-192. Cambridge: Harvard University Press, 2010. Dougherty, Beth K. “Searching for Answers: Sierra Leone’s Truth & Reconciliation Commission,” African Studies Quarterly, no. 8 (2004): 39-56. Gourevitch, Philip “The Life After,” The New Yorker. 4 May 2009. Humphreys, Macartan and Jeremy Weinstein. “Demobilization and reintegration in Sierra Leone: Assessing progress,” in Security and Post-Conflict Reconstruction: Dealing with Fighters in the aftermath of war, ed. Robert Muggah, 48-60 Abingdon: Routledge, 2009. Humphreys, Macartan, and Jeremy Weinstein. “What the fighters say: a survey of ex-combatants in Sierra Leone, June-August 2003.” Survey by Center on Globalisation and Sustainable Development. Columbia University (2004). Ingelaere, Bert. “‘Does the Truth Pass Across the Fire without Burning?’ Locating the Short Circuit in Rwanda’s Gacaca Courts,” The Journal of Modern African Studies no. 47 (2009): 507-528. Millar, Gearoid. “Local Evaluations of Justice through Truth Telling in Sierra Leone: Postwar Needs and Transitional Justice,” Human Rights Review, no. 12 (2011): 515-535. Miller, Joshua L. Psychosocial Capacity Building in Response to Disasters. New York: Colombia University Press, 2012. Olsson, Louise. Equal Peace: United Nations Peace Building Operations and the Power-Relations Between Men and Women in Timor-Leste. Uppsala: Uppsala University, 2007. Staub, Ervin. “Justice, healing, and reconciliation: How the people’s courts in Rwanda can promote them,” Peace and Conflict: Journal of Peace Psychology no. 10 (2004): 25-32. Rimé, Bernard, Patrick Kanyangara, Vincent Yzerbyt, and Dario Paez. “The Impact of Gacaca Tribunals in Rwanda: Psychosocial Effects of Participation in a Truth and Reconciliation Process After a Genocide,” European Journal of Social Psychology no. 41 (2011): 695-706. United States Institute of Peace. Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone, Rosalind Shaw. Washington: United States Institute of Peace, 2005. (Special Report, No. 103). 1 Bernard Rimé, Patrick Kanyangara, Vincent Yzerbyt, and Dario Paez. “The Impact of Gacaca Tribunals in Rwanda: Psychosocial Effects of Participation in a Truth and 1
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End Notes 1 Reconciliation Process After a Genocide,” European Journal of Social Psychology no. 41 (2011): 698. 2 Karen Brounéus. “Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts,” Security Dialogue no. 39: 66. 3 Bert Ingelaere. “‘Does the Truth Pass Across the Fire without Burning?’ Locating the Short Circuit in Rwanda’s Gacaca Courts,” The Journal of Modern African Studies no. 47 (2009): 507. 4 Joshua L. Miller, Psychosocial Capacity Building in Response to Disasters (New York: Colombia University Press, 2012), n.p., Truth and Reconciliation Commissions; Jennie E. Burnet, “(In)Justice: Truth, Reconciliation, and Revenge in Rwanda’s Gacaca,” in Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence, ed. Alexander Laban Hilton (Piscataway: Rutgers University Press, 2010), 102. 5 Burnet, “(In)Justice,” 102. 6 Philip Gourevitch, “The Life After,” The New Yorker, 4 May 2009, 41; Miller, Psychosocial Capacity, n.p., Truth and Reconciliation Commissions. 7 Burnet, “(In)Justice,” 105. 8 Ibid. 9 Ibid., 106-107. 10 Ibid., 105. 11 Ingelaere. “‘Does the Truth,” 511. 12 Ibid. 13 Ibid., 509. 14 Ibid., 512. 15 Rimé et al., “The Impact,” 698. 16 Ibid., 701. 17 Ibid. 18 Ervin Staub. “Justice, healing, and reconciliation: How the people’s courts in Rwanda can promote them,” Peace and Conflict: Journal of Peace Psychology no. 10 (2004): 27. 19 Ibid. 20 Brounéus. “Truth-Telling,” 66. 21 Rime et al.,“The Impact,” 703. 22 Staub, “Justice, healing,” 27. 23 Brounéus. “Truth-Telling,” 60. 24 Ibid., 62. 25 Ibid., 60; and Louise Olsson. Equal Peace: United Nations Peace Building Operations and the Power-Relations Between Men and Women in Timor-Leste (Uppsala: Uppsala University, 2007), n.p. 26 Brounéus. “Truth-Telling,” 69. 27 Ibid. 28 Ibid. 29 Ibid. 30 Cecile Aptel, “Unpunished Crimes: The Special Court for Sierra Leone and Children,” in Sierra Leone Special Court and its Legacy: The pact for Africa and International Criminal Law, ed. Charles Jalloh (New York: Cambridge University Press, 2014), 352. 31 Ibid. 32 Ibid. 33 Philip Cook and Cheryl Heykoop, “Child Participation in the Sierra Leonean Truth and Reconciliation Commission” in Children and Transitional Justice: Truth-telling, Accountability and Reconciliation, ed. Sharanjeet Parmar (Cambridge: Harvard University Press, 2010), 167. 34 Ibid. 35 Theresa S. Betancourt, et al., “Past Horrors, Present Struggles: The Role of Stigma in the Association between War Experiences and Psychosocial Adjustment among Former Child Soldiers in Sierra Leone,” Social Science & Medicine no. 70: 18. 36 Ibid., 17. 37 Ibid, 18. 38 Ibid., 17 39 Ibid., 22. 40 Ibid. 41 Macartan Humphreys, and Jeremy Weinstein, “What the fighters say: a survey of ex-combatants in Sierra Leone, June-August 2003,” Survey by Center on Globalisation and Sustainable Development, Columbia University (2004), 39. 42 Ibid. 43 Ibid., 40.
29
44 United States Institute of Peace, Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone, Rosalind Shaw. (130). (Washington: United States Institute of Peace, 2005 (Special Report, No. 103)), 1. 45 Ibid., 8. 46 Ibid., 8-9. 47 Ibid., 9. 48 Ibid., 9. 49 Beth K. Dougherty, “Searching for Answers: Sierra Leone’s Truth & Reconciliation Commission,” African Studies Quarterly, no. 8 (2004): 43. 50 Gearoid Millar. “Local Evaluations of Justice through Truth Telling in Sierra Leone: Postwar Needs and Transitional Justice,” Human Rights Review, no. 12 (2011), 517. 51 Millar, “Local Evaluations,” 524. 52 Ibid. 53 Ibid. 54 Ibid. 55 Ibid. 56 Macartan Humphreys and Jeremy Weinstein, “Demobilization and reintegration in Sierra Leone: Assessing progress,” in Security and Post-Conflict Reconstruction: Dealing with Fighters in the aftermath of war, ed. Robert Muggah (Abingdon: Routledge, 2009), 50. 57 Ibid. 58 Ibid.
30
An Examination of the International Criminal Court Katherine Cheng Introduction
The purpose of this essay will be to demonstrate that though international
criminal law has come a long way in the last fifty decades, the importance of prosecuting both sides of a conflict still persists and can be resolved with a push towards a more dialogical and integrated structure between existing tribunals, special courts, and the International Criminal Court. This essay will assess the systematic issues and solutions with international courts and tribunals in a temporal and structural manner seen within the greater context of international law in international politics. Firstly, this essay will address the current practical and political challenges that affect prosecutorial decisions. Secondly, it will pinpoint where and how selective prosecutions exist in the judicial system. Thirdly, it will argue that the prosecution of both sides of a conflict is crucial for both moral and practical reasons. Finally, this essay will propose modest suggestions on how to minimize the negative effects of prosecutorial bias and possible improvements on the International Criminal Legal structures. Part I: Current Challenges
It would be impossible to execute international criminal law with
prosecutions of all deserving crimes, as with the existence of all courts.1 As a reactionary mechanism of making the most out of limited resources, various strategic approaches towards prosecution has thus been incorporated into the process to 31
combat these limitations.
Due to practicality, it is evident that a limitation of resources necessarily
implies selective prosecution and a lack of definitive military force weakens the capabilities of the International Criminal Court (ICC), as with all international law and law in general. The Special Court of Sierra Leone (SCSL) has had their budget reduced to a tenth of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Court for Rwanda (ICTR)’s, and their timeframe has been restrained to three years opposed to the near decades of the tribunals.2 At times, it may not seem appropriate to delegate a certain percentage of resources to lesser criminals. Or if one does assign a certain designated quota of prosecutorial balance, it may be argued that this too is a form of discrimination, which is what Esad Landžo attempted to convey in the Čelebić Case.3 He pleaded as having been unfairly discriminated against for being a symbolic representative of the 1992 Bosnian Muslim crimes due to administrative convenience, which counters Customary International Law.4 As shown here, the obstacles into the political spheres.
The political bias on prosecutorial selectivity is the more contentious of
the two selectivity causes and should be eliminated to the best of one’s ability. In tribunals, the necessity of state compliance for financial and evidential support from the prosecuted states can (and does) become used against the prosecutors as a tool of manipulation and threat. For example, Rwanda threatened to withdraw support following tensions initiated by Carla del Ponte within the ICTR. States are even hesitant to partake in the future of international prosecution within the ICC out of fear that they may one day become the victims of their own doing. With the establishment of the Rome Statute in 1998, definitions such as “war crimes and aggression” remains contested due to this fear and ultimately leads to negative ambiguity in the Rome Statute that delegitimizes its power. With a similar fear projected from the past, less powerful prosecuted states may challenge the authority 32
of the prosecutors by bringing into light the dark shadows of these states. As seen with the Pinochet Affair and Klaus Barbie case, Spain (who separated from the Franco regime) and France (who played an oppressive role in Algeria and Indochina) are subject to the strategic and rhetorical device of having the legitimacy of their prosecutions undermined on grounds of hypocrisy. Though this is not a legally sound tactic, it does work to alter public opinion and sympathies – which can be effective as public outrage served as the starting bases for the historical trials and tribunals of the 20th century. State referrals as outlined in Article 13(a) and 14 of the ICC suggests that recommendation (or the lack thereof) would hint at political backgrounds, as allies or friendly states may be hesitant to use it against one another in fear of being misconstrued as hostile. Though the ICC would have broader temporal and jurisdiction, it may come at the sacrifice of a more selective attitude to the law itself as a branch of the Security Council. Part II: Where and How Does Prosecutional Bias Exist?
In order to better illuminate the issue of prosecutorial bias, it is pertinent
to draw attention to where it is found and how it exists. From a level of increasing severity, its prevalence can be seen with: i) the prosecution of losing versus victorious powers, ii) which cases to investigate, iii) who serves as the prosecutors, iv) and the structures of the systems themselves. i) Ever since the establishment of the World War II trials there has been a consistent and non-coincidental trend of victor states as also being free of prosecutions. As this is the most obvious display of political prosecutorial bias, it is the easiest to combat. Active prosecution of both sides has since been more prevalent in the ICTY and SCSL in an attempt to tackle this issue. However, in actuality the unbalanced prosecutions have their roots in much deeper levels.
ii) On a less obvious manner, there has also been a questionable trend
of defining acts and of deciding on which cases to collectively prosecute as an 33
international community to the benefit of the politically powerful.5 With the onset of the Rwandan conflict, the term “genocide” was carefully absent when discussing the conflict due to the implications of the use of such language. This hesitancy can be seen further with silence on numerous other contemporary conflicts that mimic that of former Yugoslavia and Rwanda, such as the conflicts of Iraq or NATO states – yet have remained without any analogous reactions. Tribunals are not created if it is not within the political interests of the Security Council members to do so, though they still retain the power to do so. Rachel Kerr elaborates that biases towards NATO states are not unthinking or coincidental, but that the biases take into consideration the seriousness and proportionality of potential repercussions if NATO states withdraw financial and cooperative support.
iii) Further evidence of political power at play within prosecutorial bias is
with the actors who serve as supposedly independent prosecutors. Within the ICTY and ICTR alone, Prosecutor Louise Arbour was replaced with Carla Del Ponte in June 2000 following her 1999 criticism that NATO powers had actively bombed Yugoslavia but were hiding under the guise of right to humanitarian intervention.6 Del Ponte, once appointed, directly addressed Arbour’s concerns of illegitimacy and misplacement. Her own position was later attacked as she sought to further question and investigate members of the Rwandan Patriotic Front of the ICTR in 2003.7 Her role, originally the Head Prosecutor of both ICTR and ICTY, was split into two after a successful campaign by Rwanda. Following this weakening of power, she was then placed only in the ICTY and suspiciously removed from the ICTR proceedings.8
iv) Lastly, the structure of International Criminal Law itself can be seen as an
arm of the UN, which can be further seen as a Western construct. The intentions of this organization will not be greatly stressed, due to the complexity of the situation and the extent of material that would be required for analysis. Within a more specific context of comparing the regionalized ICTR with the ICTY, the structure of the 34
ICTR can be seen as politically motivated from the very beginning. The limits of the Rwandan Tribunal were geographically broader yet more temporally restrained than the ICTY, which was not an arbitrary decision.9 This careful selection of boundaries was in actuality an attempt to prevent the United Nations (UN) and Rwandan Patriotic Front from being subjected to scrutiny for the unmonitored planning that took place before the conflict and the continuing violence of RPF’s “revenge killings” following the conflict.10 In the newer implementation of the ICC, the structural flaw can be seen with its extensive association with the Security Council, which inherently contains an unequal distribution of power with permanent members and veto powers. The Security Council’s ability to directly refer cases to the ICC that would have otherwise lay outside of their jurisdictional power is cause for concern, as it seems to further propel the political power of the permanent members. Part III: Why does the Prosecution of Both Sides Matter?
Though established that prosecutorial bias will always exist, there are both
moral and practical incentives in attempting to ensure that both sides of a conflict are prosecuted. The moral and Kantian view of criminal law assigns the value of retributive practice in the symbolic and actual punishment of those who partake in blameworthy behaviour that counters societal perceptions of moral norms.11 Following the German and Kantian streams of thought, the neutrality of punishment to those who violate society’s moral framework is necessarily associated with law in its search for the application of a greater justice. To not abide by this crucial rule of law in an international legal system, which has the capacity to override domestic law, would be detrimental to the idea of criminal law itself, as it would be violating law at its highest power and grandest system. Without equal application of law, rules deteriorate into an archaic tool for reinforcing politics, as seen historically with monarchs. Furthermore, the system of international law is built upon the ideas of universality. To act against universal and equal prosecution would be seen as directly 35
contradictory and hypocritical to law specifically on the international level.
The second approach to the benefits of prosecuting both sides can be found
within the utilitarian framework, where the purpose of criminal law is seen to be an improvement of society by improving the security of society through incapacitation, rehabilitation, and deterrence of crime. Within this realm, equal prosecution of international criminal law would aid with the promotion of transitional justice, legitimacy, and deterrence. As part of the raison d’être of International Criminal Law, the proper delegation of punishment to severe crimes would aid the process of internal reconciliation and restoration of dignity to victims during the political transitional period. The sense of justice achieved would ultimately restore trusting relationships, which would otherwise not occur without the proper political or judicial strength. Secondly, the prosecution of both sides of a conflict would help legitimise international criminal law as an achievement of indictment proportionality, which would solidify its reputation as a genuine legal structure as opposed to a Western political tool, further encouraging cooperation from states. This line of thought mirrored that of Richard Goldstone, the South African judge and first Chief Prosecutor of ICTY and ICTR, who sought increased prosecutions of the victorious side. Finally, a prosecution of both sides might possibly deter the escalation of future conflicts as retaliation is also seen as punishable, in contrast to the message that one will not be punished as long as one wins. Part IV: How to Combat These Challanges
There are a few approaches to addressing the different levels of selective
bias to address the established systemic issues of balanced prosecution. First there must be a distinction between the scale of appropriate and inappropriate reasons for selectivity. As a certain degree of prosecutorial selectivity is necessary, there can be strategic approaches towards maximizing the practicality of limited resources. More objective reasons, such as the severity of crimes committed and the likeliness 36
of successful prosecution given the available evidence can - and should - be taken into consideration. Uncertainty begins to reveal itself with the more subjective and politically linked factors such as the potential negative impact that prosecuting a political leader of the victorious party, would have towards that state and its international interactions. The most effective guarantor of apolitical and objective judgements would be to vigorously appoint neutral individuals to positions of prosecutorial power and to give them more authority, in order to avoid a repeat of the corrupted Arbour and Del Ponte reappointments.
A second step towards the issue of selective prosecution is to critically
analyze the available and potential structures of international criminal law. Each structure has its respective advantages and disadvantages, and it would be effective to ensure that there is conscious communication and collaboration between these branches to maximize the advantages and minimize the disadvantages. The newest implementation of the ICC is evidence of the recent trend from ad hoc tribunals towards permanent courts.12 The full potential of the ICC looms closer as approximately 160 states are expected to have ratified the treaty within the next several years. The advantages of the ICC would be that it is intended to be a permanent and neutral court set up with broader geographic and temporal boundaries, available for use by any participating state at any given time if i) the accused is a national of a state party, ii) the crime took place on the territory of a state party, or iii) a situation is referred to the court by the Security Council.13 The weakness of the ICC is that it lacks the military, financial, and administrative resources needed to accomplish such a daunting task. As of September 2010, approximately 8900 communications about alleged crimes were received by the Office of the Prosecutor, of which nearly half were dismissed as outside of the Court’s jurisdiction and a total of only 36 individuals have been publicly indicted. This lack of support can be seen more symbolically and significantly with the refusal of the 37
United States to ratify the treaty. Though unlikely, there is the possibility that this may eventually change as allies confront the United States (U.S.). The acknowledgement that the fears of the U.S. regarding the ICC exist outside of it as well, and the incentives of possible deterrence would ultimately alleviate the expensive foreign intervention responsibilities of the U.S.14 However, the neutrality of the ICC would be sacrificed in favour of substantive strength if the U.S. decides to give its support, as they are campaigning for the inclusion of the Security Council veto power when deciding which cases to prosecute. The unwanted politicization of the system may lead to unintentional benefits for international criminals, as they can use the ICC as protection or as evidence of Western hegemony.15
At this point in time, the most effective approach towards international
criminal law and its accountability for the duty of non-biased prosecutions would be further communication between existing tribunals and special courts while maintaining the hierarchical power of the ICJ and ICC and independence of prosecutors. Though localized reactions to regional conflicts are susceptible to the dangers of inter-tribunal inconsistency and internal corruption, the high-profile status of these cases seem to be most effective both as tools of judicial justice and deterrence within the public eye. In the more recent version of SCSL, which was built upon the Statute of ICTR, the freedom and independence of the prosecutors were narrowed to prevent questionable bias. David Crane, the Special Court’s Prosecutor, has proven to be very impartial with prosecutions. If this localized trend of effective neutrality continues, the slower and more permanent ICC will have time to establish itself and to learn from the individual successes of the tribunal and specialized courts. Part V: Conclusion
Though at times the ability of international criminal law may seem limited
and futile, the optimism that permeates its academic backing is not one of simple naivety. Within the short timeframe of 60 and 20 years, the issues of prosecutorial 38
bias on various different levels have continuously been revealed and slowly resolved. Further resolution to what has been established as an issue can be achieved with a separation of strategic yet objective factors from politically motivated influences. Greater transparency of the problematic reliance on international politics by international law would be best overcome through greater communication between the different branches of international criminal law as an effort to minimize one another’s political actions and to maximize uniformity and knowledge.
Works Cited Brown, Bartram S. “U.S. Objections to the Statute of the International Criminal Court: A Brief Response.” International Law and Politics 31, no. 855 (1999): 855-892. Cassese, Antonio. “Reflections on Internatinal Criminal Justice.” Journal of International Criminal Justice (Oxford University Press) 9 (2011): 271-275. Charney, Jonathan I. “The Impact on the International Legal System of the Growth of International Courts and Tribunals.” International Law and Politics 31, no. 697 (1999): 698708. Cryer, Robert. Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. Cambridge: Cambridge University Press, 2005. Côté, Luc. “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law.” Journal of International Criminal Justice (Oxford University Press) 3, no. 1 (2005): 162186. Erlinder, Professor Peter. “The Rwanda War Crimes Coverup.” Global Research. September 3, 2009. http://www.globalresearch.ca/the-rwanda-war-crimes-coverup/15037 (accessed February 6, 2014). Griffiths, Courtney. “The Politics of International Criminal Law.” New African Magazine. March 1, 2012. (accessed February 3, 2014). Hague Justice Portal. 2005-2011. http://www.haguejusticeportal.net/index.php?id=6086 (accessed February 3, 2014). Kennedy, Gerard J. “Week 15: International Criminal Law.” International Criminal Law. Toronto: University of Toronto, January 29, 2014. —. “Week 17: Topical Issues in International Criminal Law II.” Prosecutorial Discretion. Toronto: University of Toronto, February 5, 2014. Nollkaemper, André. “Decisions of National Courts as Sources of International Law: An Analysis of the Practice of the ICTY.” In International Criminal Law Developments in the Case Law of the ICTY, by Gideon Boas & William a. Schabas, 277-296. Koninklijke Brill NV,
39
Leiden: Brill Academic Publishers, 2003. Peskin, Victor. “Beyond Victor’s Justice? The Challenge of Prossecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda.” Journal of Human Rights, 2005: 213-232. Piercy, Marge. Woman on the Edge of Time. New York: Alfred A. Knopf, Inc, 1976. Project on International Courts and Tribunals. 1997. (accessed February 3, 2014). Re, David. “To the Hague: from Nuremberg to the ICC: International Criminal Law.” Durham Castle Lecture Series. Durham: Durham University, November 28, 2012. “Rome Statute of the International Criminal Court.” United Nations Legal Documents. 19992002. http://legal.un.org/icc/statute/romefra.htm (accessed February 6, 2014). Schwarzenbergre, Georg. “The Problem of an International Criminal Law (Current Legal Problems).” In International Criminal Law and Procedure, by John Dugard and Christine van den Wyngaert, 3-37. Hants: Dartmouth Publishing Company, 1996. Zolo, Danilo. Victor’s Justice. London: Verso, 2009.
End Notes 1 Gerrard J. Kennedy, “Week 17: Topical Issues in International Criminal Law II,” Prosecutorial Discretion (Toronto: University of Toronto, February 5, 2014). 2 Courtenay Griffiths, “The Politics of International Criminal Law.” New African Magazine. March 1, 2012, 29. 3 The Court ultimately ruled that there was insufficient evidence of discrimination. “Hague Justice Portal,” accessed February 2014, http://www.haguejusticeportal.net/index.php?id=6086. 4 Luc Côté, “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” Journal of International Criminal Justice (Oxford University Press) 3 (2005): 176. 5 Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005) 192. 6 Cryer, Prosecuting International Crimes, 221 7 Erlinder, Professor Peter. “The Rwanda War Crimes Coverup.” Global Research. September 3, 2009. http://www. globalresearch.ca/the-rwanda-war-crimes-coverup/15037 (accessed February 6, 2014). 8 Cryer, Prosecuting International Crimes, 221. 9 The jurisdiction of the ICTY was limited to within the Yugoslav territory and of January 1991 and onwards, whereas the jurisdiction of the ICTR included neighbouring States (as long as it was committed by a Rwandan citizen) but only the single year of 1994. 10 Cryer, Prosecuting International Crimes, 209-210. 11 Gerard J. Kennedy, “Week 15: International Criminal Law,” International Criminal Law. Toronto: University of Toronto, January 29, 2014. 12 Jonathan Charney, “The Impact on the International Legal System of the Growth of International Courts and Tribunals.” International Law and Politics 31, (1999): 700. 13 “Hague Justice Portal.” 14 The indictment and arrest of Chilean General Pinochet is one of many examples of where U.S. citizens are theoretically still subject to foreign trials. Bartram S. Brown, “U.S. Objections to the Statute of the International Criminal Court: A Brief Response.” International Law and Politics 31, 855 (1999): 887. 15 Griffiths, “The Politics of International Criminal Law,” 29.
40
Prosecuting Canadian Corporations For Extraterritorial International Crimes Punya Bagga
In an increasingly globalized world, with eroding state borders, and the emergence of a host of non-state actors as powerful players in the international arena, the status of the transnational corporation in international law, especially in terms of criminal liability, remains murky at best. Generating revenue in the billions and accounting for a huge share of Canada’s GDP, the extraction industry has spawned a number of Canadian corporations that operate all over the world, often in conflict zones. Despite being embroiled in myriad human rights abuses and having lawsuits leveraged against them, these corporations have enjoyed impunity for what we, post WWII, have recognized as international crimes warranting prosecution. This essay will explore, through the use of two Canadian case studies, the extent to which human rights norms apply to corporations, and their extraterritorial liability for violations under international and domestic law. Furthermore, it will examine the legal avenues in Canada through which plaintiffs, seeking justice, can make their case for extraterritorial adjudication of matters involving international crimes committed by Canadian corporations.
A corporation can be defined as “’a body formed and authorized by law to act as
a single person although constituted by one or more persons and legally endowed with various rights and duties including the capacity of succession,” and the ability to act as a collective entity separately from its shareholders.1 The nationality of a corporation 41
is the state in which it is incorporated and/or where its head office is located. These features seemingly impart corporations with a legal personality and a capacity to act independently of the laws of the state of their incorporation when conducting business through their subsidiaries abroad.
However, unlike states, and more recently individuals with regards to
international crimes, corporations have no legal personality in international law and are thus seldom subject to criminal proceedings under it.2 This is because, without a legal personality, crimes applicable to corporations are ill-defined and so they cannot be conceived as perpetrators of human rights violations.3 Though some international organisations, like the UN, have ‘rights and duties’ towards states and individuals, no such human rights obligations are recognized internationally for transnational corporations, though their conduct is pursuant to the domestic laws of state(s).4 Apart from non-binding resolutions, such as the Charter of Economic Rights and Duties of States, guiding the behaviour of transnational corporations and responsibilities of host states, there is minimal accountability for human rights. As we shall see, the blatant disregard for human rights by several Canadian companies operating outside the country’s borders is a direct contradiction of Canada’s international image as the bastion of human rights. International law has evolved to reflect realities and has made individuals subject to criminal responsibility. There is need for the same revaluation of transnational corporations and the regulation of their ever expansive reach and potential to inflict harm on communities. Nonetheless, several attempts have been made to hold corporations accountable for their activities in foreign territories through domestic courts that are capable and willing to exercise extraterritorial jurisdiction.
The criminal law enforcement jurisdiction of states has been, adhering to the
sacrosanct principle of sovereignty, territorially limited. The S.S. Lotus case was novel in that it allowed Turkey to exercise its prescriptive jurisdiction extraterritorially over individuals. Through subsequent state practice, prescriptive jurisdiction is recognized 42
as limited to “matters connected to state territory; where the perpetrator is a national of the state; where the victim is a national of the state; where the essential interests of the state are engaged; or where the act is one of those giving rise to universal jurisdiction by all states.”5 The Canadian Supreme Court recognizes that prescriptive jurisdiction is applicable extraterritorially where there is a “’real and substantive link’ between a given act and a state’s territory or territory under its de facto control.”6
The emergence of the principle of universal jurisdiction gives jurisdiction to
all states to prosecute crimes internationally that are recognized through treaties and customary international law. This includes jus cogens violations of genocide, war crimes, crimes against humanity and others such as piracy, slavery, forced labour and aircraft hijacking, regardless of principles of territoriality and nationality.7 Crimes violating the jus cogens norms, also identified under Article 5 of the Rome Statute establishing the International Criminal Court, bring individuals, for the first time, under the purview of international criminal law.8 Moreover, under Article 25(3)(c) of the same statute, it is criminal to aid or abet in the commission or attempted commission of a crime.9 The practice of condemning entire states for grave breaches of international law, like Germany at the end of WWI, came to a near end after the Nuremberg and Tokyo tribunals in which organizations, including businesses, could be held criminally liable for abetting the Nazi regime. According to Dragatsi, this shift from collective towards individual criminality for mass crimes spelled the demise for any sort of corporate liability for international crimes before international courts.10
In one of the landmark cases assessing extraterritorial criminal liability, Kiobel
v Dutch Petroleum, the company was accused of violating customary international law by aiding and abetting the Nigerian dictatorship in its violent suppression of protests, by aggrieved Nigerian nationals before a United States district court. 11 The Supreme Court ruling held that corporations were not subject to criminal liability under the Alien Tort Claims Act of the United States, which allows extraterritorial adjudication 43
of international law violations by non-nationals, and that customary international law was not substantially proven to be violated as the intent to commit the crime was not established.12 As can be seen through this case, there is little accountability for corporations under international law, due to an absence of their explicit mention.
Indeed, Canada is at the forefront of global extractive industries, primarily in
mining, oil, and gas, wherein 60% of global mining exploration is done by Canadian companies. Unfortunately, according to one report, out of the 171 high profile incidents associated with unethical mining practices, 34% were committed by Canadian companies.13 Their unethical conduct in developing, often conflict ridden, countries involve a gamut of human rights and environmental abuses, as well as conflicts with local communities. From Goldcorp’s Marlin mine in Guatemala to Bear-Creek Mining Corp. in Peru, where upon suspension of the company’s license, it proceeded to challenge the decision by bringing up Canada’s free trade agreement with Peru.14 The impunity with which Barrick Gold operates the Porgera mine in Papua New Guinea has even led to calls for an independent review by the UN High Commissioner for Human Rights,15 owing to the company’s employment of security personnel involved in numerous cases of rape and extrajudicial killings of illegal miners.16 These transnational corporations have no obligations to uphold human rights but corporations engaging in war crimes, crimes against humanity, genocide, and those constituting grave breaches of international law, are liable for criminal prosecution, provided that national courts actually show a willingness to exercise their jurisdiction.
Contracts with Canadian mining companies in the Democratic Republic of
Congo persisted through its civil war, heightening the internal struggle for resources. In 2005, a report by the United Nations Organization Mission in the Democratic Republic of Congo found that the copper mining company, Anvil Mining, was complicit in war crimes in the village of Kwila. The corporation’s subsidiary was accused of providing transportation to Congolese government troops and helping to transport corpses after 44
the Kwila massacre.17 A civil class action suit was filed by Congolese victims in 2010 before the Quebec Superior Court. The case was dismissed by the Court of Appeal, once again, on jurisdictional grounds.18
In a similar case, brought up in a US District Court of New York under the
Aliens Tort Claims Act, Talisman Energy was charged in 2001 by former and current residents of Sudan with accusations of “conspiracy, aiding and abetting with the Government of Sudan to commit genocide, torture, war crimes and crimes against humanity.”19 Though Talisman argued that corporations did not have legal capacity to violate international law and so the Court lacked subject matter jurisdiction,20 the case was admitted. Talisman was denied dismissal of the case based on jurisdictional grounds in consideration of the fact that these were grave jus cogens violations of international law and private corporations as juridical/non-natural legal persons had no immunity under U.S. domestic or international law.21 Though progress was made in affirming the applicability of universal jurisdiction in cases of international crimes, the case was dismissed on grounds of insufficient evidence by the plaintiffs. In addition, Canada placed political pressure on the U.S., contesting its jurisdiction as it did not have ‘real and substantial’ links to either the plaintiffs, defendant, or location of the crime. Nevertheless, though no charges have been brought up against Talisman in Canada, the Court gleaned the Canadian government’s acknowledgement, from its intervention, that corporations could be held criminally liable for violations of jus cogens norms.22
Canada’s extreme reluctance in adjudicating extraterritorially, despite there
being jurisdiction for international crimes, is apparent. The above cases highlight some of the impediments for domestic courts. Political pressure and the perceived negative effect on inter-state relations is evident in the Talisman case. International law may have evolved but states are still reverent of the principle of sovereignty and its corollary of immunity from intervention in domestic and foreign policy (Canada had insisted 45
that it was using investment as an economic incentive for Sudan to end the civil war).23 Canadian courts also tend to frequently use the principle of forum non conveniens, which requires that extraterritorial jurisdiction be contingent on evidence proving that other courts are not more appropriate to adjudicate the matter. A decision to dismiss the case based on this involves issues like accessibility to evidence, residence of victims, possibility of a proper investigation, and costs of proceedings among other things. 24 Another hindrance is comity, whereby courts will refuse to exercise jurisdiction they may have out of respect for “the laws or interests of a foreign country,” as the U.S. did in the Talisman case.25 Moreover, courts insist on a presence of ‘real and substantial’ links between the act itself and Canada, including “unlawful consequences” in the territory.26
Setting aside procedural jurisdictional challenges in domestic courts and the
substantive flaws in defining the legal personality of corporations in international law, a thorough examination of various domestic and international statutes will show us the many ways in which corporations can be understood to have the capacity to violate international law and be held criminally liable. The Rome Statute is the preeminent doctrine on international criminal law and gives the International Criminal Court jurisdiction over war crimes, genocide, and crimes against humanity, but relates to individuals. Dragatsi claims that the scope of individual criminal liability under Article 25(3) can include corporations. This Article makes the distinction between three ways in which the crime can be perpetrated: directly or indirectly, through co-perpetration, and through perpetration by means (of another person).27 Co-perpetration involves acting with another in which there is, “a functional division of tasks between the different co-perpetrators, who are normally interrelated by a common plan or agreement.”28 This plan need not be directed to committing the crime but it must involve an element of criminality. Arguably, corporations as collective entities constituting more than one person have this functional division of 46
tasks in the execution of business activities, and though the ultimate purpose of the corporation may not be criminal, the fact that transnational corporations have at times participated in the commission of war crimes, crimes against humanity, and genocide in their respective host countries, lends credence to the element of criminality. This forms the actus reus part of a criminal act in international criminal law as it refers to the act itself. The mens rea component constituting ‘knowledge and intent’ is one which is tricky to establish. In fact, the lack of criminal intent formed part of Anvil Mining’s defence29 and was one of the reasons why the Court sided with Talisman Energy.30 Though with increased globalization and spread of information, it is difficult to claim that the corporation as a whole did not know better than to conduct business in risky environments, Dragatsi contends that even the knowledge aspect would require that the co-perpetrators involved be mutually aware and accepting that their common plan may lead to the crime. In addition, there must be evidence linking the corporation/its subsidiary to the execution of the criminal act and that “directors or high-level managers...maintained a significant degree of control over the criminal acts committed at the scene of the crime.”31 The immensity of the required evidence shows why extraterritorial adjudication of international crimes is so difficult and is often avoided by domestic courts.
A more likely reason for which a corporation can be held criminally accountable
involves the aiding or abetting of the commission or attempted commission of a crime, which falls under Article 25(3)(c) of the Rome Statute. This involves the provision of a number of goods such as computers and other technology used for discriminatory reasons, selling armaments to assist in killings, transportation vehicles (Anvil Mining), etc.32 Certainly, the provision of these things can also be understood as “interfer[ing] in civil strife in another State,”33 a violation of the principle of non-intervention under Article 4 of the Friendly Relations Declaration, a source of customary international law. Establishing intent of the criminal act will, however, remain difficult. 47
Dragatsi shows how action through domestic legal systems can yield a more
effective recourse for prosecution when existing laws (Criminal Code of Canada) are used in conjunction with international criminal law that is incorporated into domestic legal systems. Canada has implemented the Rome Statute nationally, through legislation, in the form of the Crimes Against Humanity and War Crimes Act (CAHWCA) in 2000.34 This effectively makes the perpetration of crimes considered a violation of international law also a violation of national law. The author makes the argument that since subsection 2(2) of the CAHWCA states that “’words and expressions used in this Act have the same meaning as in the Criminal Code,” and since the Criminal Code claims that ‘every one’, used interchangeably with ‘person’, is party to a crime who “’actually commits it’” (and the definition of ‘person’ can include an organization under section 2), then it logically follows that the criminal liability of a ‘person’ under CAHWCA who commits war crimes, genocide, or crimes against humanity must include corporations.35 This interpretation of ‘person’ to mean a corporation thus redirects the individual criminality scope of the CAHWCA. Through the use of international and domestic law, it could therefore be possible that a Canadian corporation is prosecuted for extraterritorial crimes under the CAHWCA and the Criminal Code. A long stretch and quite a technical argument, but technicalities can go a long way in law.
Another proposal which holds corporations liable and helps to mitigate the
difficulties in establishing mens rea is put forth by Luca’s thesis. Luca argues that corporate and securities law, itself, mandates that corporations disclose their “highrisk activities”. These could involve any sorts of legal risks involving human and environmental abuses and conflicts with local communities.36 This is hard law and Luca claims non-disclosure can be used by plaintiffs to prove that the corporation had knowledge of the risks involved, i.e. potential of a crime being committed.37 This ties in with the co-perpetration and common plan argument made above. Moreover, corporate law necessitates that directors are responsible to stakeholders, in the case of transnational corporations, this involves local communities.38 In this way, though 48
corporate and securities law do not explicitly address the upholding of human rights, they can be used in conjunction with the avenues provided by international and domestic law to bring corporations to book. Once again, whether the mens rea component values knowledge over intent, vice-versa, or equally will affect the determination of something as a criminal act, though it can be argued that knowledge and inaction may serve as valid intent.
Issues of international criminal law are not without complexity. One should
also consider what effect, if any, transgression of human rights by corporations has on the home country which is party to several human rights conventions, like Canada. It is also important to assess the value of corporate liability over individual liability. There are several benefits of corporate liability such as assets being used for reparations to victims (less burdensome than having high ranking individuals in corporations pay out of their pockets) and elimination of challenges in determining who individually will be held responsible, which could involve a lot of misdirection by individuals within the corporation itself in order to avoid blame.39
An alternative would be to foster corporate social responsibility within the
structures of corporations, something many Canadian companies are trying to do. John Ruggie, Special Representative of the Secretary General, proposed the ‘protect, respect and remedy’ framework for corporations to deal with extraterritorial offences.40 Though non-binding and inapplicable to those not under jurisdiction, Article 3(b) of the International Covenant on Civil and Political Rights, to which Canada is a party, talks about the right to access to judicial, administrative, and legislative authorities for claims seeking remedy.
As is evident, adjudicating corporate criminal liability extra-territorially is
extremely complex. Not only are corporations not legal persons under international law, but domestic courts are also hindered by jurisdictional challenges even in the cases of violations of jus cogens norms. In order to remedy such situations and provide due 49
justice, there needs to be an evolution in international law to hold corporations liable for international crimes. Meanwhile, the use of a tedious combination of domestic, international, and corporate law is the best option for plaintiffs seeking to prosecute
Works Cited transnational corporations. Albin-Lackey, Chris, and Arvind Ganesan. Gold’s Costly Dividend: Human Rights Impacts of Papua New Guinea’s Porgera Gold Mine. New York, NY: Human Rights Watch, 2011. Print. Aspremont, Jean D’., W. Michael Reisman, and Math Noortmann. Participants in the International Legal System: Multiple Perspectives on Non-state Actors in International Law. Milton Park, Abingdon, Oxon: Routledge, 2011. Print Currie, John H., Valerie Oosterveld, and Craig Forcese. International Law: Doctrine, Practice, and Theory. Toronto: Irwin Law, 2007. Print. Dragatsi, Hélène. Criminal Liability of Canadian Corporations for International Crimes. Toronto: Carswell, 2011. Print. Jonge, Alice De. Transnational Corporations and International Law: Accountability in the Global Business Environment. Northampton, MA: Edward Elgar Pub., 2011. Print. Luca, Ioana. Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations. Thesis. University of Toronto, 2011. N.p.: n.p., n.d. Print. “Barrick Ignores UN High Commissioner for Human Rights Recommendation Regarding Papua NewGuineaRapes.” MiningWatch.N.p.,n.d.Web.12Feb.2014.<http://www.miningwatch. ca/news/barrick-ignores-un-high-commissioner-human-rights-recommendation-regardingpapua-new-guinea-rap>. “Congolese Massacre Victims Denied Justice in Anvil Mining Lawsuit.” KAIROS Canada. N.p., n.d. Web.12 Feb. 2014. <http://www.kairoscanada.org/sustainability/congolese-
End Notes massacre-victims-denied-justice-in-anvil-mining-lawsuit/>. 1 Hélène Dragatsi, Criminal Liability of Canadian Corporations for International Crimes (Toronto: Carswell, 2011), 11-12. 2 Jean d’Aspremont et al., Participants in the International Legal System: Multiple Perspectives on Non-state Actors in International Law (Milton Park, Abingdon, Oxon: Routledge, 2011), 272-27. 3 Iona Luca, Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations (University of Toronto, 2011), 9, 11-12. 4 John H. Currie et al., International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law, 2007), 458. 5 John H. Currie et al, International Law: Doctrine, Practice, and Theory, 443. 6 John H. Currie et al ,International Law: Doctrine, Practice, and Theory, 450. 7 Alice de Jonge, Transnational Corporations and International Law: Accountability in the Global Business Environment (Northampton, MA: Edward Elgar Pub., 2011), 103. 8 John H. Currie et al, International Law: Doctrine, Practice, and Theory, 920-921. 9 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 92. 10 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 21. 11 de Jonge, Transnational Corporations and International Law, 106.
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12 de Jonge, Transnational Corporations and International Law, 106. 13 Luca, Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations, 1. 14 Luca, Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations, 3. 15 “Barrick Ignores UN High Commissioner for Human Rights Recommendation Regarding Papua New Guinea Rapes.” http://www.miningwatch.ca/news/barrick-ignores-un-high-commissioner-human-rightsrecommendation-regarding-papua-new-guinea-rap 16 Chris Albin-Lackey, Gold’s Costly Dividend: Human Rights Impacts of Papua New Guinea’s Porgera Gold Mine (New York, NY: Human Rights Watch, 2011), 5. 17 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 108-109. 18 “Congolese Massacre Victims Denied Justice in Anvil Mining Lawsuit.” http://www.kairoscanada.org/sustainability/congolese-massacre-victims-denied-justice-in-anvil-mining-lawsuit/ 19 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 120. 20 John H. Currie et al, International Law: Doctrine, Practice, and Theory, 685-686. 21 John H. Currie et al , International Law: Doctrine, Practice, and Theory, 687. 22 John H. Currie et al, International Law: Doctrine, Practice, and Theory, 688. 23 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 121. 24 Luca, Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations, 8-9. 25 de Jonge, Transnational Corporations and International Law, 116-117. 26 John H. Currie et al , International Law: Doctrine, Practice, and Theory, 446. 27 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 83-84. 28 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 87. 29 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 110. 30 de Jonge, Transnational Corporations and International Law, 106. 31 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 88-89. 32 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 92. 33 John H. Currie et al , International Law: Doctrine, Practice, and Theory, 216. 34 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 99-100. 35 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 136. 36 Luca, Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations, 2. 37 Luca, Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations, ii. 38 Luca, Canadian Mining Companies, Social Disclosure and Extra-territorial Human Rights Obligations, 15. 39 Dragatsi, Criminal Liability of Canadian Corporations for International Crimes, 13. 40 de Jonge, Transnational Corporations and International Law, 93.
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The Elixir of Mortality Will the European Court of Justice’s Ruling Make the Internet Forget? Emily Tsui
In 1954 before the age of the Internet, Queen Elizabeth II was caught on film throwing a tennis racquet at Prince Philip on a state visit to Australia. The evidence was immediately destroyed. What the Queen did in private should have faded into obscurity. Yet, if “queen throwing shoes” were to be entered into Google.com today, over 18,000,000 results would appear in 0.36 seconds which would immediately reveal what happened. Where human memory forgets, the internet remembers. It can hardly be imagined that if the Queen realized that a living library of memories was immediately accessible to a third of the global population, she would have behaved in the same unrestrained fashion. However, a ruling by the European Court of Justice (ECJ) in May 2014 (C-131/12) promises to give all Europeans the “right to be forgotten.”2 This right grants internet users in the European Union (EU) the right to request information which is “inaccurate, inadequate, [or] irrelevant”3 to not be displayed on search engines. It does not include the provision to explicitly delete information from the internet, and this ruling exclusively applies to European search engines. However, if some information does not appear in Google, which controls 90% of the European search engine market, it may as well not exist.4 This European response to the global problem of reconciling privacy laws and freedom of expression is theoretically brilliant. Practically speaking however, C-131/12 creates contradictory conditions which are almost impossible to reconcile with the fundamental objective of the ruling. Unless a subsequent directive is enacted that further clarifies methods to execute the plan, the ruling threatens to undermine itself as it may actually make information that was intended to be removed more publicized. 52
Mathias Döpfer, the chief of Germany’s largest publishing house, lamented that “Google knows more about every active digital citizen than George Orwell would have dared to imagine in even his boldest visions.”5 The internet’s ability to recall everything is severely disproportionate to the human memory, to the benefit of many and the lament of others. As recognition of the internet’s immortality increases, self-censorship develops and people become more hesitant to use the internet as a platform of critical thinking and discussion. There is a growing wariness to project one’s image into the same digital realm as a potential employer. Freedom of expression has become more self-regulated. Even if there is a delete function available, search engines’ archives are often non-consensual and unforgiving. The ruling does not outline provisions for accountability in the data removal process, which consequently illuminates other problems. Having Google act as a court of judgement is contradictory on a continent which demands transparency in European-wide institutions. While Google is accountable to its shareholders and the American board of directors, there is little that the Europeans can do to make their voices louder in cases where they feel as if their European values are being superceded by American interests. The current process that Google employs to determine whether a data removal is appropriate also creates a negative, understated effect. The objective of the ruling is to allow for individuals to quietly remove unwanted information about themselves. Yet Google’s method of consulting the webmaster prior to removal may prompt the webmaster to highly publicize the information before the page is de-linked in retaliation, as ironically was the consequence in the case that sparked C-131/12. The decision of the Court clearly outlines the right of individuals to have search engines disassociate their name to the result queried. However, the lack of detail by the Court or decisive action by EU institutions to establish guidelines for 53
enforcement mechanisms is concerning because it produces loopholes. If the EU is committed to this ruling, it must first assuage the reservations expressed by the British House of Lords Committee,6 the EU Article 29 Data Protection Working Party7 and the Organisation of Security and Co-operation in Europe8 on the lack of specificity by the ruling. Even though the ruling does embody a uniquely European response, it is becoming increasingly clear that there is a division of opinion among the 28 member states. One way to resolve this is for the EU to issue a follow-up directive which addresses the flaws that threatens to undermine C-131/12. Despite these hesitations, the ruling has generated discussions worldwide and encouraged individuals to demand greater online accountability. Online privacy rights are ultimately linked to basic principles of justice, regardless of whether the European or American worldview is accepted because they guarantee a decent standard of living by enabling the “development of his life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past.”9 Even though there are critics, primarily from the United States, which argue for the paramount freedom of expression, the “right to be forgotten” is a hallmark of progress in reconciling privacy and expression rights. However, without proper follow-up legislation, this “right to be forgotten” may become forgotten itself.
Works Cited “Communique by OSCE Representative on Freedom of the Media on Ruling of the European Union Court of Justice.” Organization of Security and Co-operation in Europe. May 16, 2014. Accessed October 10, 2014. http://www.osce.org/fom/118632. “Europe: 1, Google: 0: EU Court Ruling a Victory for Privacy.” Der Spiegel International Edition, May 20, 2014. Accessed October 10, 2014. http://www.spiegel.de/international/business/ court-imposes-right-to-be-forgotten-on-google-search-results-a-970419.html. “Factsheet on the “Right to Be Forgotten” Ruling (C-131/12).” European Commission. June 3, 2014. Accessed October 12, 2014. http://ec.europa.eu/justice/data-protection/files/factsheets/ factsheet_data_protection_en.pdf.
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Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja González, Case C-131/12, [2014] E.C.R. I___ (delivered May 13, 2014). http:// curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=431792. Hardman, Robert. “From the Unwelcome Visitor at the Palace to the Joy of Losing Herself in a Crowd... Robert Hardman Reveals the Private Side of a Thoroughly Modern Monarch.” The Daily Mail UK, September 25, 2011. Accessed October 9, 2014. http://www.dailymail.co.uk/ news/article-2041776/Queen-Elizabeth-Private-thoroughly-modern-monarch.html. Mantelero, Alessandro. “The EU Proposal for a General Data Protection Regulation and the roots of the ‘right to be forgotten’.” Computer Law and Security Review 29, no. 3 (2013) 230. Accessed March 23, 2015. http://www.sciencedirect.com/science/article/pii/ S0267364913000654 “’Right to be Forgotten’ is Misguided and Unworkable Says Lords Committee.” Communications Law 19, no. 3 (2014): 75. Accessed October 12, 2014. http://search.proquest.com/ docview/1560795106?accountid=14771. Toobin, Jeffrey. “The Solace of Oblivion.” The New Yorker, September 29, 2014. Accessed October 10, 2014. http://www.newyorker.com/magazine/2014/09/29/solace-oblivion.
End Notes 1 Robert Hardman, “From the Unwelcome Visitor at the Palace to the Joy of Losing Herself in a Crowd... Robert Hardman Reveals the Private Side of a Thoroughly Modern Monarch,” The Daily Mail UK, September 25, 2011, (accessed October 9, 2014). http://www.dailymail.co.uk/news/article-2041776/Queen-Elizabeth-Privatethoroughly-modern-monarch.html 2 “Factsheet on the “Right to Be Forgotten” Ruling (C-131/12),” European Commission, June 3, 2014, (accessed October 12, 2014). http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf 3 Ibid. 4 Jeffrey Toobin, “The Solace of Oblivion,” The New Yorker, September 29, 2014, (accessed October 10, 2014). http://www.newyorker.com/magazine/2014/09/29/solace-oblivion 5 “Europe: 1, Google: 0: EU Court Ruling a Victory for Privacy,” Der Spiegel International Edition, May 20, 2014, (accessed October 10, 2014). http://www.spiegel.de/international/business/court-imposes-right-to-be-forgottenon-google-search-results-a-970419.html 6 “’Right to be Forgotten’ is Misguided and Unworkable Says Lords Committee,” Communications Law 19, no. 3 (2014): 75, (accessed October 12, 2014). http://search.proquest.com/docview/1560795106?accountid=14771 7 Toobin. 8 “Communique by OSCE Representative on Freedom of the Media on Ruling of the European Union Court of Justice,” Organization of Security and Co-operation in Europe, May 16, 2014, (accessed October 10, 2014). http:// www.osce.org/fom/118632 9 Alessandro Mantelero, “The EU Proposal for a General Data Protection Regulation and the roots of the ‘right to be forgotten’,” Computer Law and Security Review 29, no. 3 (2013) 230, (accessed March 23, 2015). http://www. sciencedirect.com/science/article/pii/S0267364913000654
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Book Review
Understanding the power of Forgiveness Simone Garcia
Forgiveness is integral to the process of moving forward after violent conflict.
Whether on the part of individual victims or of a systematically excluded group, reconciliation is impossible without an effort to forgive – but not forget – past atrocity. By linking personal history to the legacy of the Second World War, Mark Sakamoto’s Forgiveness: A Gift From My Grandparents is a literary testament to this fact. Putting a human face on the war that touched millions, Sakamoto thoughtfully highlights the many facets of life impacted by conflict – whether in the form of outright warfare, discrimination, or of a familial nature. Forgiveness weaves past and present together to form a tapestry of two distinctly different lives brought together after war, underscoring the possibility for growth inherent in the ability to forgive. Raised in starkly contrasting circumstances, it is unlikely that the story’s protagonists, Ralph Augustus MacLean and Mitsue Margaret Sakamoto, could have foreseen the imminent overlapping of their lives. However, the effects of war are far-reaching. Growing up on Eastern Canada’s Magdalen Islands, Ralph MacLean experienced violence from an early age at the hands of his abusive father. Lacking opportunities for advancement in his own community, and with “revenge in his heart”1 due to the untimely death of his brother-in-law – a pilot with the Royal Air Force – Maclean enlisted with the Canadian Forces, becoming a rifleman in the First Battalion. Sent to the defence of Hong Kong, which Winston Churchill himself accepted as a “no good”2 plan, MacLean soon found himself a prisoner of war at the hands of Japanese Forces. Sakamoto recounts the horrors his grandfather suffered with an almost clinical tone, accepting them for what they were: realities of life as a POW. 56
On Canada’s opposing coast, the relative peace of Mitsue Sakamoto’s daily life was soon interrupted by the repercussions of being Japanese in an increasing racist Vancouver. Despite growing up in a happy and tightly knit home, the strength of Mitsue’s family was not enough to counter the international effects of Pearl Harbour. Along with her husband, Hideo, Mitsue and her family were removed from their homes and sent to await their fate at Vancouver’s Hastings Park, where they were treated as illegal aliens in a country previously viewed as their homeland. As the war raged on, Japanese families – regardless of citizenship status – were forcibly resettled to communities in Canada’s interior. The Sakamotos soon found their lives akin to those of slave labourers, working sugar beet plantations near Coaldale, Alberta. As with the author’s description of MacLean’s personal horror at the hands of the Japanese, the details of Mitsue’s resettlement are recounted as simple fact: no more, no less. After the war, fate intervened in bringing the Sakamotos and the MacLeans together. Having moved to Calgary upon his return, Ralph MacLean soon married and started a family of his own. Hideo and Mitsue also relocated, moving to Medicine Hat after Mitsue’s near breakdown over the family’s desolate living conditions in the farming community of Coaldale. With growing children, the two families began to move forward in their lives, although not without difficulty. The author highlights this, writing of MacLean, “It took him time to recover […] But Ralph did most of the heavy lifting himself. He kept forgiveness close.”3 Despite the hardships he faced throughout his life – and likely, because of them – MacLean forever remembered the words of Mark 11:25: “[…] if you hold anything against anyone, forgive him, so that your Father in Heaven may forgive you your sins.”4 In 1954, Medicine Hat’s first baby of Japanese descent was born: the author’s father, Stanley Gene Sakamoto. Thirteen years later, Stanley met Diane – Ralph Maclean’s daughter – at a high school dance. The rest, one might say, was history. Although the couple shared little in the way of common heritage, both were unified by 57
virtue of having families strong enough to overlook the crimes committed by strangers with whom they had little in common. Mark Sakamoto recounts the first time Ralph paid a visit to Mitsue’s home, writing “There was an unspoken understanding between them. Deep down, they knew each other. They had both discarded the past, keeping only what they needed. Thirty-three years later, the forgiveness that was shared that night would give me my life.”5 In a style reminiscent of Michael Ondaatje’s The English Patient, Sakamoto effortlessly interlaces two lives and two histories, and, through the events of his own life, illustrates the overlap between past and present that is an inherent part of the post-conflict experience. The author views trauma, not as a crushing defeat, but as a stepping-stone in the healing process – a trait he doubtlessly inherited from his grandparents, who “…bore witness to the worst in humanity, yet also managed to illuminate the finest in [it].”6 Writing of his personal fears, Sakamoto asks himself at a particularly harrowing moment: “If I could abandon my own mother, who in my life was safe?”7 The novel is a testament to Sakamoto’s emulation of the example set by those before him. For the author, the learned act of forgiveness – of moving on and looking forward – in tandem with a single look from his daughter, was enough to vanquish his previous anxiety. More than a tale of family life, Forgiveness also highlights the inability to neatly divide history from the present. So much of Sakamoto’s story demonstrates this overlap: from the concrete effects of Mitsue and Ralph’s histories on Mark’s very existence, to the present ramifications of past decisions both individual and national. There is no better example of this than during Sakamoto’s personal confrontation with his grandparent’s legacies in the “King’s Boardroom8” in Ottawa, where “every major Canadian decision about the Second World War took place.”9 Included in those choices was “the decision to send Ralph Augustus Maclean to war”10, and “to intern Mitsue and Hideo Sakamoto.”11 These decisions – wrapped in the rhetoric of “national defence”12 – 58
were felt personally and domestically, and their ramifications echo to this day. Indeed, the government of British Colombia only released a formal apology to those who suffered internment in 1988, quoting the words of Lester B. Pearson: “The action by the Canadian government was a black mark against Canada’s traditional fairness and devotion to principles of human rights.”13 Examining the Canadian government’s failure to provide adequate reparations to those affected by enforced resettlement – writing that, in 1948, the Sakamotos only received $25.65 of the $818 they were owed for items lost and lives uprooted14 – highlights the complexity surrounding the process of reconciliation. Although the government issued a $300 million compensation package with their formal apology15, many felt that it was far too long in coming – a classic case of too little too late. There are countless contemporary examples that echo this sentiment. For example, gacaca courts in Rwanda aimed at reconciliation have contributed far less to peace than originally expected, and far more to the aggravation of underlying tension16. Macaratan Humphreys and Jeremy Weinstein have examined the shortfalls of disarmament, demobilization, rehabilitation, and reintegration (DDRR) packages in contemporary war-torn nations such as Sierra Leone, concluding that, “there is little evidence that UN operations were instrumental in facilitating DDRR at the individual level.”17 It is clear that policy-makers must learn from the past in designing better strategies to facilitate reconciliation and rehabilitation after conflict – harnessing the power of forgiveness, just as the Sakamotos and MacLeans have done. The abundance of historical detail present in the book serves as both its downfall and its strength. While unnecessary in certain moments – the reader does not need to know where, exactly, Sakamoto’s grandmother keeps her chopsticks – the inclusion of historical evidence, personal anecdotes, and horrific descriptions of torture adds to the inclusive nature of Sakamoto’s tale. It is as if the author is inviting the reader into his life and into the lives of his family members, for better or for worse. For example, in describing his father, Sakamoto’s tone becomes humorous, but
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one would be hard-pressed to overlook the tenderness in his description of the man who raised him. In a similar vein, the author’s depiction of his mother’s descent into alcoholism is heartbreaking. In many ways, Forgiveness reads like a well-researched diary whose intent is catharsis, with the author seeking absolution from his past with his words. It is clear that Sakamoto is successful in this endeavour, learning from the legacy of his grandparents in realizing that “Breaking down is the easy part. Anyone, at any time, can break down. The act of coming together again is what makes a hero. Moving on, with an open heart, seems, at times, impossible. But it’s not.”18 It is a sentiment that we would all do well to keep in mind, regardless of our personal histories.
Works Cited Brouneus, Karen. “Truth-Telling as Talking Cure? Insecurity and Re-traumatization in the Rwandan Gacaca Courts”, Security Dialogue 39 no. 1 (2008): 55-76. Accessed March 24, 2014. http://journals1.scholarsportal.info.myaccess.library.utoronto.ca/pdf/09670106/v39i0001/55_ tatciaritrgc.xml. Humphreys, Macartan and Jeremy M. Weinstein. “Demobilization and Reintegration.” Journal of Conflict Resolution 51 no. 4 (2007): 531-567. Humphreys, Macartan and Jeremy Weinstein. “Who Fights? The Determinants of Participation in Civil War” American Journal of Political Science 52, no. 2. (2008): 436-455. McCullough, Sandra. “B.C. Government apologizes for treatment of Japanese-Canadians.” National Post, May 8, 2012. http://news.nationalpost.com/2012/05/08/b-c-governmentapologizes-for-treatment-of-japanese-canadians/ Ostrovsky, Simon. “The Only American Fighting for Ukraine Dies in Battle.” Vice, August 20, 2014, https://news.vice.com/article/the-only-american-fighting-for-ukraine-dies-inbattle?utm_source=vicenewsfb Sakamoto, Mark. Forgiveness: A Gift From My Grandparents. Toronto: Harper Collins. 2014.
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End Notes 1 Sakamoto 2014, 35. 2 Sakamoto, 2014, 61. 3 Sakamoto, 2014, 173. 4 Ibid, 167. 5 Ibid, 183. 6 Sakamoto, 2014, 237. 7 Ibid, 224. 8 Sakamoto, 2014, 232. 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid, 85. 13 McCulloch, 2012. 14 Ibid, 157-159. 13 McCulloch, 2012. 16 Brouneus, 2008, 56. 17 Humphreys and Weinstein, 2007, 531. 18 Sakamoto 2014, 89.
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