Somebody Else's Problem: How the United States and Canada Violate International Law and Fail to Ensure the Prosecution of War Criminals

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Abstract

The United States and Canada have created programs to ensure that they will not be havens for war criminals and human rights violators. This, however, fails to meet their international legal obligation to ensure that suspected war criminals and human rights violators will be prosecuted for their crimes. This Note analyzes and compares the war crimes prosecution policies of Canada and the United States. It concludes that both countries take inadequate measures to ensure war criminals are prosecuted for their crimes, and thus, these countries are failing to meet their international obligations. This Note recommends both countries implement statutes to ensure suspected war criminals are prosecuted, forcing Canada and the United States to conform to their international obligations.

CONTENTS

I.   INTRODUCTION

II.  CANADA DOES NOT ENSURE THE PROSECUTION OF WAR CRIMES
     AND CRIMES AGAINST HUMANITY

        A. Canada 's Jurisdiction

        B. Canada's History of Investigation and Prosecution of War
        Crimes and Crimes Against Humanity

        C. Canada's Preference for Removal of War Crimes Suspects

III. THE UNITED STATES DOES NOT ENSURE THE PROSECUTION OF
     WAR CRIMES AND CRIMES AGAINST HUMANITY

        A. United States' Jurisdiction

        B. The United States' History of Investigation and Prosecution
        of War Crimes and Crimes Against Humanity

        C. The United States' Preference for Using Immigration Law
        Against War Crimes Suspects

IV. INTERNATIONAL LEGAL OBLIGATIONS VIOLATED BY THE UNITED
    STATES AND CANADA

       A. Obligation to Ensure Prosecution

       B. Customary International Law is Changing to Support Ensuring
       Prosecution of War Criminals

       C. Criticism of Canada's Policies

       D. Criticism of the United States' Policies

V.  RECOMMENDATIONS FOR THE UNITED STATES AND CANADA

       A. Solutions Going Forward: Canada

       B. Solutions Going Forward: United States

VI. CONCLUSION

I. INTRODUCTION

In June 2011, the Canadian government asked its citizens to help it in the hunt for thirty suspected war criminals living in Canada. (1) However, instead of bringing the war criminals to justice, Canada began to remove them from the country without any guarantee the suspects would be prosecuted. (2) Addressing criticism for failing to ensure prosecution, Canada's Safety Minister, Vic Toews, declared "Canada is not the UN. It's not our responsibility to make sure each one of these [suspected criminals] faces justice in their own countries[.]" (3) Thirty people suspected of war crimes may never be prosecuted. Instead, they will simply go back to their lives. When faced with the responsibility of ensuring that war criminals are prosecuted, Canada chose practical expediency over justice.

This Note argues that both the United States and Canada have abrogated their legal obligations by failing to ensure that war criminals and perpetrators of crimes against humanity are brought to justice. (4) These countries must either prosecute for substantive offenses, or ensure that other states prosecute for the substantive offenses if they are to prevent those who have committed atrocities from going free. (5) Both the United States and Canada have overcome their decades-long problems of insufficient temporal and geographic jurisdictions to prosecute for war crimes and crimes against humanity. (6) However, simply possessing jurisdiction to prosecute is not sufficient to achieve the obligations set by treaty and custom. To fulfill their international obligations, Canada and the United States must ensure the war criminals and human rights violators within their borders are prosecuted.

This Note is divided in five parts. Part II outlines the jurisdiction and history of Canada's successes and failures in ensuring the prosecution of war criminals. Part III does the same for the United States. Part IV analyzes the international obligations the United States and Canada, failing to ensure prosecution of war criminals, have violated. …