Journal Committee

Editors-in-ChiefSebastian Dutz

&Archana Ravichandradeva

Editors

CLAIRE COPLAND

DERAKHSHAN QURBAN -ALI

JESSICA STEWART

STEPHANIE LIM

Design Editor

PHILIP BASARIC

Special Thanks

We would like to thank the members of the Rapoport Journal com-mittee. Without such a strong and committed team, this year’s edi-

tion 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 stu-dents 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.

4

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

Contents

5

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 re-flect how justice is an integral facet in any well-rounded, substantial discus-sion 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 indi-vidual, 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 Interna-tional Criminal Court, regulation of corporations, and finally, the concept of forgiveness. Despite the diversity of the topic, there are important link-ages 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, Con-flict 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 con-text 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 Chief2015

6

The Lesser of Two EvilsComparing 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 mid-

2000s, 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.

7

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

8

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 poorly-

trained 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

9

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

10

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

11

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,” Inter-national 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:

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.

12

“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/Inter-national/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 Partici-pation 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, ac-cessed Nov. 19, 2014. http://planipolis.iiep.unesco.org/upload/Uganda/Uganda%20MDG%20Report-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 Inter-national 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/pirapa-haran-the-man-who-destroyed-thamililam/Watkins, Thayer. “The Economy and Economic History of Sri Lanka.” San Jose State Univer-sity Economics Department, accessed Nov. 19, 2014. http://www.sjsu.edu/faculty/watkins/srilanka.htm

13

End Notes1 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/srilanka5 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.htm6 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-of-ltte-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.pdf9 “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.pdf10 “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.pdf11 “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.pdf12 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-detainees24 “Abuses by the LRA and the UPDF against Civilians.” Human Rights Watch, accessed Nov. 19, 2014. http://www.hrw.org/reports/2005/uganda0905/5.htm25 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=dBdNX0OEzQI32 Ibid.

14

Chase McNabb

Charlotte Smith

15

Chase McNabb

Chase McNabb

16

The Limitations of Transitional Justice

The Effects of Truth Telling on CombatantReintegration in Rwanda and Sierra Leone

Sarah BurtonFollowing 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

17

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

18

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

19

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 hybridist-

retributive 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,

20

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

21

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

22

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:

23

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

24

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

25

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

26

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

27

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 CitedAptel, Cecile. “Unpunished Crimes: The Special Court for Sierra Leone andChildren,” in Sierra Leone Special Court and its Legacy: The pact for Africaand 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:

28

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 Truthand Reconciliation Process After a Genocide,” European Journal of SocialPsychology 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 ofPeace, 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

29

End Notes1 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.

30

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.

31

An Examination of the International Criminal

CourtKatherine 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

32

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

33

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

34

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

35

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

36

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

37

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

38

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

39

Works Cited

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.

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): 698-708.

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): 162-186.

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,

40

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, 2217 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.

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. 1999-2002. 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

41

Prosecuting CanadianCorporations ForExtraterritorial

International CrimesIn 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

Punya Bagga

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

43

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

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

45

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

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

47

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.

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 “high-

risk 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

49

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

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 Citedtransnational 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, Hélene. 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-regarding-papua-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 Notesmassacre-victims-denied-justice-in-anvil-mining-lawsuit/>.

1 Hélene 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-rights-recommendation-regarding-papua-new-guinea-rap16 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.

52

The Elixir of MortalityWill 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.

53

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

54

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 Edi-tion, 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.

55

Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Ma-rio 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&do-clang=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.” Communi-cations 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 Notes1 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-Private-thoroughly-modern-monarch.html2 “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.pdf3 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-forgotten-on-google-search-results-a-970419.html6 “’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=147717 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/1186329 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

56

Book ReviewUnderstanding the power of

ForgivenessSimone 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.

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

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58

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 –

59

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

60

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 CitedBrouneus, 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-government-apologizes-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-in-battle?utm_source=vicenewsfb

Sakamoto, Mark. Forgiveness: A Gift From My Grandparents. Toronto: Harper Collins. 2014.

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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.

End Notes