Immunity from Prosecution for Genocide

The Regina Leader Post on July 3, 2014, published an article under the headline “African Leaders Award Themselves Immunity from Court of Justice”:

A pan-African court set up to prosecute the continent’s worst criminals will not be allowed to try sitting heads of state or their cronies after they voted to give themselves immunity.

The continent’s leaders agreed on their exemption at a closed-door session of an African Union (AU) meeting, then tried to bury the decision in an obscure paragraph of the post-summit communiqué.

The decision was a “backward step in the fight against impunity … and a betrayal of victims of serious violations of human rights,” said a spokesman for Amnesty International. More than 40 activist organizations had opposed the move. Two sitting presidents – Uhuru Kenyatta of Kenya and Omar al-Bashir of Sudan – one former president, Laurent Gbagbo of Ivory Coast and one deputy president, William Ruto of Kenya, currently face trials at the International Criminal Court, where there is “no such immunity.”

The impression that there is “no such impunity” with regard to Canada and its legal status in the International Criminal Court is inculcated by Canada’s government. Foreign Affairs, Trade and Development Canada, publishes a historical note explaining its role in being the first nation to accept without reservation the jurisdiction of that court:

In order to ratify the Rome Statute of the International Criminal Court, Canada’s Parliament had to enact legislation to implement its obligations under the Rome Statute.

Canada became the first country in the world to incorporate the obligations of the Rome Statute into its national laws when it adopted the Crimes Against Humanity and War Crimes Act (CAHWCA) on June 24, 2000. Canada was then able to ratify the Rome Statute on July 9, 2000.

To ensure that Canada can fully cooperate with ICC proceedings, the CAHWCA also amended existing Canadian laws like the Criminal Code, Extradition Act and Mutual Legal Assistance in Criminal Matters Act.

The Crimes Against Humanity and War Crimes Act obliges Canada to arrest and surrender persons sought by the ICC for genocide, crimes against humanity and war crimes.

Canada’s surrender process under the CAHWCA is a streamlined version of Canada’s existing extradition process. In 1999, Canada amended its Extradition Act so it could legally surrender accused persons to the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Under the CAHWCA, Canada simply added the ICC to this list.

Canada also eliminated all grounds for refusing requests for surrender from the ICC. Under the CAHWCA, the Extradition Act was also amended to ensure that a person requested for surrender in Canada could not claim statutory or common law immunity to block their surrender to the ICC. Finally, Canada amended the Extradition Act so that evidence could be offered in a summary form.

Canada’s CAHWCA of the year 2000 first appears to accept the Rome Statute creating the independent and impartial third party adjudication jurisdiction of the international Criminal Court (ICC). But the statute goes on to withdraw the acceptance:

Section 4(1). Every person is guilty of an indictable offence who commits (a) genocide.

Section 9(3). No proceedings for an offence under any of sections 4 to 7 of this Act… may be commenced without the personal consent in writing of the Attorney General or the Deputy Attorney General of Canada, and those proceedings may be conducted only by the Attorney General of Canada or counsel acting on their behalf.

Genocide is a fact particularly with regard to part of the aboriginal people of Canada, namely those who historically did cling and still do cling to the belief they enjoy constitutional protection for their sovereignty, as contrasted with that part which is willing to sell its claim of sovereignty by treaty or to have it expropriated, for money.

See James Daschuk, Clearing the Plains: Disease, Politics of Starvation and the Loss of Aboriginal Life (University of Regina Press, 2013). Of this, the Toronto Star in an opinion by columnist Carol Goar on June 10, 2014, said:

You were never taught this version of Canadian history in school. If the guardians of the nation’s collective memory are successful, your children will also be shielded from the truth.

Sir John A. Macdonald, Canada’s first prime minister, deliberately starved thousands of aboriginal people to clear a path for the Canadian Pacific Railroad and open the prairies to white settlement. His “National Dream” cost them their health, their independence and – in many cases – their lives.

It is all meticulously documented in a new book, published in time for the 200th anniversary of Macdonald’s birth. “The consequences of Macdonald’s actions still resonate today,” says author James Daschuk, a professor of kinesiology and health studies at the University of Regina.…

His conclusion: “The uncomfortable truth is that modern Canada is founded upon ethnic cleansing and genocide.”

As Daschuk did his Ph.D. on the historical fact of genocide in Canada, I did mine on the constitutional history of precisely how the genocide was implemented specifically by the judges and lawyers of the country.

At all material times since 1876 the Attorney General of Canada has been the architect and implementer of the legal state of affairs under which regime the unconstitutional genocide has been implemented, and as to which the judiciary and the legal profession has maintained a steadfast willful blindness. See, for example, Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

My indigenous former clients, the sovereigntists who want their land, not the money, and who complain of the genocide resulting from its expropriation, relied upon the constitutionally correct legal opinion of Attorney General and Minister of Justice Télesphore Fournier, who occupied that high office July 8, 1874 to May 18, 1875. That legal opinion itself relied upon the “Royal Proclamation of 1763″ and section 109 of the “Constitution Act, 1867,” to establish that the Public Lands Act of British Columbia is unconstitutional because it in effect expropriated land for which no Indian treaty could be produced.

The opinion was adopted as a minute in council of the federal cabinet. It required the disallowance of the provincial legislation as unconstitutional. See, Minute in Council, 23 January 1875. This opinion was settled as correct by the Judicial Committee of the Privy Council in 1897:

AG Ont. v. AG Can.: In re Indian Claims, [1897] AC 199, 210-11 (JCPC): The beneficial interest in the territories ceded by the Indians under the treaties became vested, by virtue of s. 109, in the Province of Ontario.… The effect of the treaties was, that, whilst the title to the lands continued to be vested in the Crown, all beneficial interest in them, together with the right to dispose of them, and to appropriate their proceeds, passed to the Government of the Province. “An interest other than that of the province in the same” appears to them [their Lordships] to denote some right or interest in a third-party, independent of and capable of being vindicated when in competition with the beneficial interest of the old province.

Perhaps British Columbia would have seceded from the Canadian confederation had the federal government in fact implemented the 1875 decision to disallow the provincial land legislation. But nothing was done to implement it. Instead, Attorney General Fournier was replaced by Edward Blake as Attorney General and Minister of Justice May 19, 1875 to July 7, 1877.

Blake was responsible for enacting the Indian Act, 1876, pursuant to which, as amended from time to time, Canada has assumed jurisdiction to govern all Indians in all regions of Canada regardless of the unconstitutionality of the venture. Part of that governance is section 88 of the Indian Act that makes provincial laws of general application apply to Indians in abrogation of indigenous sovereignty pending treaty of cession.

Since 1876 the raising of the unconstitutionality and resulting genocide disappear from the historical record in so far as at least of the judges’ and lawyers’ role of implementing it.

That is, it disappeared until 1973 when I raised the issue of indigenous sovereignty and the corresponding unconstitutional genocide resulting from ignoring it. But each time I raised it the issue itself was ignored: simply not mentioned by any of the courts in which I raised it; until in 1999 I was disbarred for criminal contempt of court for having raised an issue that “hectored” and scandalized the judiciary, on the false ground that every judge before whom I had raised the issue carefully and patiently had addressed the issue and the law identified in relation to it. If true, there would be a record of the judicial decisions in which that supposedly occurred. No such record exists. The issue was ignored and I was silenced on the false ground that it had been addressed.

Canada has moved on from the starvation identified by Daschuk. The mode of genocide today is no longer the direct “killing” that is indicted by article 2(a) of the Convention for the Prevention and Punishment of the Crime of Genocide. The form of genocide identified by my sovereigntist clients’ as ongoing is the “serious bodily and mental harm” indicted by article 2(b) of the convention. The entrenched injustice of living under a system of justice that ignores the constitutional law in a country that poses as a constitutional democracy under the rule of law causes angst and despair unto death, as mirrored by the statistics of suicides.

Canadians find the phenomenon perplexing because it is understandable if but only if the truth of the genocidal constitutional history and the role therein of the judges and lawyers are addressed; which it can not be since the perpetrators exercise a monopoly over the administration of “justice.”

It is understandable why the African leaders seek to obtain immunity from liability for genocide in their own “nation building” given the historical, and ongoing, immunity of Canada for the genocide in its nation building.

Immunity anywhere signifies the non-existence of the rule of law everywhere. But again that will not happen, because like Canada the legal establishment of the United States practices the same willful blindness to the unconstitutional genocide at the historical heart of its legal system.1

“The law” in the phrase “the rule of law” in a constitutional democracy such as Canada and the United States claim to be, consists in the written words of the constitution plus the interpretation placed upon them, in case of ambiguity, by the original and authoritative precedents, those first few judicial decisions that are then taken to be part of the written constitution. When the judiciary ignores “the constitutional law” in this specific sense and invents something new, the decision so taken is not “law.” It is called per incuriam with the following significance:

Per incuriam is a Latin term which means “through lack of care.” A court decision made per incuriam is one which ignores a contradictory statute or binding authority, and is therefore wrongly decided and of no force. A judgment that’s found to have been decided per incuriam does not then have to be followed as precedent by a lower court. In criminal cases a decision made per incuriam will usually result in the conviction being overturned.

When, as in Canada and the United States, the supreme courts refuse to grant leave to appeal in cases where the ground of appeal is that the lower courts are ignoring the constitutional law as previously established in the 18th and 19th centuries, in favour in the 20th century of applying different law invented by the supreme courts in willful blindness to what has previously been settled, it is more significant than a merely wrongly decided case.

When the practice is entrenched for a whole issue such as constitutional recognition of indigenous sovereignty, the country has passed from being a constitutional democracy under the rule to law to being an empire. One of the characteristics of empire is genocide in the course of empire building.

The duplicity of Canada, then, in its Crimes Against Humanity and War Crimes Act is not simply a matter of bad draftsmanship. Neither is the decision of the Supreme Court of Canada in the Tsilhqot’in Nation case a simple mistake. Such is the hallmark of empire.

  1. See mightisnotright.org.
    See also, the case law background to the sovereignty issue leading up to the In re Indian Claims case of 1897 all of which is also ignored by the courts: Campbell v. Hall, (1774), 98 er 848 (jcpc); Marshall v. Clark, 1 Kentucky r. 77 (1791); Weiser v. Moody, 2 Yeat’s 127 (Penn. sc)(1796); Sherer v. McFarland, 2 Yeat’s 124 (Penn. sc)(1797); Fletcher v. Peck, 6 Cranch’s87 (1810); Johnson v. McIntosh, 8 Wheat. 543 (1823); Danforth v. Wear, 9 Wheat. 673 (1824); Cornet v. Winton, 2 Yerger Tenn. ca 129 (1826); Cherokee Nation v. State of Georgia, 5 Pet. 1 (1831); Worcester v. Georgia, 6 Pet. 515 (1832); Cameron v. Kyte, (1835), 12 er 678 (jcpc); Mitchell v. United States, 9 Peter’s 711 (1835); New Orleans v. Armas, 9 Pet. 224 (1835); New Orleans v. United States, 35 us 662 (1836); United States v. Fernandez, 35 us 303 (1836); Clark v. Williams, 36 Mass. r. 499 (1837); Godfrey v. Beardsley, 2 McLean 412 (Ind.)(1841); Balliot v. Bauman, 5 Penn. 150 (1843); Brown v. Wenham, 10 Metcalf 496 (Mass. sc)(1843); Coleman v. Tish-Ho-Mah, 4 s&m 40 (hcea)(1844); Ogden v. Lee,6 Hill’s 546 (nysc)(1844); Stockton v. Williams, 1 Mich. r. 546 (sc) (1845); Bown v. West, (1846), 1 e&a 117 (Upper Canada); Fellows v. Lee, 5 Denio 628 (nyce)(1846); Montgomery v. Ives, 13 s&m 161 (Miss. hcea)(1849); Breaux v. Johns, 4 Louisiana r. 141 (1849); Gaines v. Nicholson, 9 How. 356 (1850); Marsh v. Brooks, 49 us 223 (1850); People v. Dibble, 18 Barbour’s nyscr 412 (1854); Scott v. Sandford, 19 How. 393 (1857); Fellows v. Denniston, 23 ny 420 (ca)(1861); Connelly, v. Woolrich, (1867), 11 lcj 197 (sc Quebec); Connelly, v. Woolrich, (1869), rlos 356 (ca Quebec); United States v. Foster, 2 Biss. 377 (Wisc.Cir.)(1870); Minter v. Shirley, 3 Miss. 376 (1871); Holden v. Joy, 84 us 211 (1872); and St. Catherines Milling v. r., 14 ac 46 (jcpc). The supreme court of Canada deals only with its own self serving decisions from 1973 on in the Tsilhqot’in Nation case of 2014. To ignore what has gone before is the negation of the rule of law, under which the governing precedents are the ones first upon the scene, the ones that authoritatively settle a constitutional question, not the most recent decision taken in blindness to the previously settled constitutional law legislation and precedents. []

Bruce Clark, Ph.D. in jurisprudence, is an Indigenous rights activist and author of Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self Government in Canada and Justice in Paradise. Read other articles by Bruce, or visit Bruce's website.