August 3, 2011 By Kristen Shane, Embassy Magazine

Government ministers are conflating immigration and criminal law in their quest to find and deport 30 men allegedly involved or complicit in war crimes or crimes against humanity, say international criminal justice lawyers and other observers. That’s dangerous, they say, because the ministers are effectively labelling people as war criminals who have never been found guilty of such crimes by a criminal court. Meanwhile, one ambassador says he was surprised to learn Canadian authorities were seeking one of his countrymen over such allegations. Immigration Minister Jason Kenney and Public Safety Minister Vic Toews announced July 21 that the Canada Border Services Agency was releasing the names, photos and other identifying information of 30 men wanted for deportation from Canada.

In four news conferences during the week that followed, the ministers, often flanked by two CBSA officers, publicized the capture of five of the wanted men, thanks at least in part to public tips arising from the most-wanted list. These included two from Peru, and one each from Honduras, Pakistan and the Democratic Republic of Congo. Peruvian Manuel de la Torre Herrera and Honduran Cristobal Gonzalez-Ramirez have already been deported. The CBSA called off the hunt for another man on the list, a Sri Lankan, who is reportedly in US custody awaiting deportation from Florida.

In their messaging around each capture, the ministers linked the men wanted for deportation to war crimes or crimes against humanity.

“The notion that a foreigner who illegally enters Canada, has been found by our legal system to be involved in the worst kinds of crimes possible, such as war crimes and crimes against humanity, who is under a deportation order and a warrant—the notion that such an individual enjoys the same privacy rights as a law abiding Canadian citizen is bizarre in the extreme,” Mr. Kenney told the National Post in explaining why his government publicly released the men’s identities.

In addition, Mr. Kenney tweeted last week, “It’s just bizarre that groups on the left like the [Canadian] Council for Refugees & Amnesty [International] are opposed to our effort to deport war criminals.”

The “Wanted by the CBSA” website, featuring photos and information on each man, says: “It has been determined that they violated human or international rights under the Crimes Against Humanity and War Crimes Act or under international law.”

Except that none of the 30 has ever faced trial on charges of committing crimes against humanity or war crimes. Instead, the Immigration and Refugee Board, an administrative tribunal, has only rejected their asylum applications. The IRB ruled the 30 men were inadmissible because of suspicions they had engaged in war crimes or crimes against humanity, but experts say that is a far cry from actually being found guilty of any wrongdoing.

“I hear reference to the Crimes Against Humanity and War Crimes Act, but that’s what’s being used in a criminal prosecution. And that’s not what they’re using,” said Jayne Stoyles, executive director of the Canadian Centre for International Justice. “The label of war criminals kind of implies that someone has been through a criminal process. But they haven’t. And they’re not even being investigated through a criminal process.”

Under media questioning last week, Mr. Toews said, “We are not making a finding of guilt or innocence in terms of the actual criminal charge. We are simply saying the evidentiary level or threshold has been met in terms of determining whether or not they’re inadmissible.”

Lowering the bar

The Crimes Against Humanity and War Crimes Act came into force in 2000 and outlines Canada’s jurisdiction to try individuals here who have committed war crimes, crimes against humanity or genocide elsewhere. It was used to try and convict a failed Rwandan refugee claimant, Désiré Munyaneza, in 2009, for which he is serving a life sentence. Another Rwandan accused under the same law of participating in Rwanda’s 1994 genocide, Jacques Mungwarere, is awaiting trial, according to his lawyer, Christian Deslauriers, which is likely to happen next April.

A war crimes program that integrates teams from the Justice department, RCMP, Citizenship and Immigration Canada and the CBSA, funds the prosecutions of these cases. Its budget was frozen at $15.6 million per year between 1998 and 2010. CBSA spokesperson Natalie Glister said in an email to Embassy that the government “declared that funding for the Program would be ongoing” in its 2011 budget.

Lawyers involved in those cases say they are complicated and costly to mount. Mr. Deslauriers said a trial like Mr. Mungwarere’s would cost in the millions. It may require after-hours court sessions to hear from witnesses via video link from Rwanda. During the investigation process, five RCMP investigators conducted interviews with many witnesses in Rwanda, Canada and the United States.

Media reports pegged Mr. Munyaneza’s trial costs to taxpayers at more than $1.6 million. In the lead-up, an RCMP investigator undertook several evidence-gathering trips to Rwanda. The judge, defence counsel and prosecutor went to Rwanda and European cities to interview eyewitnesses and survivors, said Bruce Broomhall, a University of Quebec at Montreal professor and lawyer who followed the case.

Experts say because of the high costs associated with such cases, the focus has been on keeping suspected criminals out of Canada rather than trying them. Not only is such a strategy more cost effective, the bar is much lower; it’s much easier for the IRB to rule someone is inadmissible than for a grant to investigate and prosecute someone for a crime committed halfway around the world and a decade earlier.

The 2006-2007 annual report of the integrated war crimes program said that in order for an allegation from the public or referral from the CIC and the CBSA to be added to the RCMP and Justice department’s inventory of criminal investigations, “the allegation must disclose personal involvement or command responsibility, and the evidence pertaining to the allegation must be corroborated and obtainable in a reasonable and rapid fashion.”

The Justice department and RCMP had 55 modern war crimes files open on March 31, 2008. The CIC and CBSA removed 466 people from Canada through their part in the program between 1997 and 2008.

The CBSA won’t give specific details of the crimes the men on its most-wanted list are accused of having committed because of privacy laws, but media reports have indicated a range of histories. A former Peruvian soldier Jose Domingo Malaga Arica admitted to immigration officials that he was part of a helicopter crew involved in murdering two civilians in 1987. Meanwhile, the fifth man apprehended, Abraham Bahaty Bayavuge of the Democratic Republic of Congo, said he has never so much as killed a cat. He said he was a computer technician in his native DRC. The IRB reportedly refused his refugee claim in 2004 because it said it had evidence Mr. Bayavuge worked for Congolese security services under human rights abusers Mobutu Sese Seko and Laurent Kabila.

“It’s easier in a sense to get rid of the problem in this way,” said Mr. Broomhall. “In the immigration process…you just sometimes need to have a sense that someone may have been affiliated with a particular group or with a particular person and that may be sufficient. There isn’t necessarily direct evidence that that person themselves even was part of that group let alone was actually involved in committing crimes.”

For his part, DRC Ambassador Dominique Kilufya Kamfwa said he was surprised to hear of the accusation against Mr. Bayavuge, who was apprehended on July 28. Mr. Kilufya Kamfwa knew nothing more than what he had read in the press and said his embassy was pushing Foreign Affairs for more information. He wasn’t aware if Mr. Bayavuge was wanted on war crimes charges in the Congo. If the Canadian government could give his government proof that Mr. Bayavuge participated in such crimes in his native land, Mr. Kilufya Kamfwa said, it would investigate.

Based on what he’s read in the press and his expertise in the field, Mr. Broomhall said the practice of labelling the men wanted for deportation as war criminals is “deliberately misleading, even abusive.”

Indeed, the Toronto Star reported last week that the family of one of the men named on the most-wanted list is threatening a defamation suit against the CBSA. The family’s lawyer said it’s reprehensible for the government to portray his client as a war criminal without laying charges.

Another man on the list spoke to the Toronto Sun in hopes of clearing his name. Francisco Manuel Hernandez Hernandez received US citizenship after failing a refugee claim in Canada. He was once a soldier in El Salvador but said he isn’t a war criminal and says he’s stressed by the allegation.

“I take it that this is part of a policy of the government to vocally express its toughness on immigration abuses, more than being tough on crime,” said Mr. Broomhall. “If this were really about being tough on crime, we’d be looking at prosecuting these people.”

Mr. Toews told a news conference on July 27, “Usually the crimes are prosecuted in the countries where they’re committed or through the UN; that’s the most appropriate jurisdiction. There are certain rare cases where individuals are prosecuted in this country for crimes committed elsewhere, but that’s not the general rule. That’s not a particularly effective way of prosecuting given that the evidence is in other countries.”

When asked whether Canada would seek assurances that deportees would be prosecuted, he said Canada’s role is to remove the persons deemed inadmissible. It’s up to the countries to where they are deported to “take appropriate action against those individuals.” Now that the governments know about them, they or the UN can make a decision, said Mr. Toews.

But Mr. Broomhall said the International Criminal Court and ad-hoc tribunals set up after conflicts in Rwanda and Yugoslavia are for the most senior people accused and not lower-level functionaries. It would be nice to see governments of countries where the crimes are alleged to have been committed prosecute, but they sometimes don’t have the resources or political will, which leaves it up to other countries like Canada. He said he’s not advocating for Canada to prosecute all potential war criminals that end up here, but it should use common sense and different options available.