CLAIHR is currently engaged in two projects:
The Prosecution of Désiré Munyaneza
The Residential Schools Truth Commission
Prosecution of Désiré Munyaneza.
Désiré Munyaneza, born in 1966, is a Rwandan man being prosecuted in Montreal for crimes committed during the Rwandan genocide in 1994. This case is notable as this is the first person to be arrested in Canada on charges of war crimes and crimes against humanity for his alleged role in the 1994 Rwandan Genocide. This is the second attempt in Canada to prosecute someone for crimes against humanity for crimes committed abroad in the context of an armed conflict.
In 1994, an estimated 800,000 Tutsis and moderate Hutus were slaughtered by Hutu extremists in the central African country within a deadly 100 days, in one of the century’s worst massacres.
Among other atrocities, Désiré Munyaneza is alleged to have participated in a mass slaughter of as many as 500 terrified Tutsis seeking shelter in a Roman Catholic church during Rwanda’s 1994 genocide. Munyaneza is also accused of having played a very significant role in rape and sexual violence – having personally raped many women and girls and having encouraged the militia under his command to do the same.
In 1997, Munyaneza fled to Canada carrying a fake Cameroon passport. He immediately filed a refugee claim, insisting that because he was a Hutu, he would be killed if he was sent back to Rwanda.
Mr. Munyaneza’s refugee claim was denied largely on the testimony of an RCMP (Royal Canadian Mounted Police) war crimes investigator who linked Mr. Munyaneza to the Rwandan massacre. The Immigration and Refugee Board panel found that there were reasons to believe he had participated in crimes against humanity. According to Art. 1F of the 1951 Convention Relating to the Status of Refugees, a person is excluded from asylum if there are serious reasons to believe that he or she has committed a crime against peace, a war crime, a crime against humanity or has committed an offence against the purposes and the principles of the United Nations.
In October 2005, he was arrested in October 2005 at his Toronto-area home and brought to Montreal to stand trial on charges of rape, murder and looting.
Désiré Munyaneza faces seven charges under the Crimes Against Humanity and War Crimes Act, the first prosecution under this Act, including two counts of genocide, two counts of crimes against humanity and three counts of war crimes. The indictment accuses him of committing murder, psychological terror, physical attacks and sexual violence with intent to wiping out the Tutsi.
The Crimes Against Humanity and War Crimes Act was adopted to implement Canada’s obligations with respect to the International Criminal Court and to provide for the prosecution of international crimes before Canadian courts
Following the unsuccessful prosecution of Imre Finta in the early 1990s, leading to the 1994 decision of the Supreme Court of Canada, the Canadian Department of Justice has focused on citizenship revocation proceedings rather than criminal prosecutions in dealing with alleged war criminals. The Finta decision, which involved the prosecution of a WWII era Hungarian police officer, was unsuccessful largely due to the difficulty in trying a person alleged to have committed crimes 50 years prior. Mr. Finta was charged with manslaughter, kidnapping, unlawful confinement and robbery. He was accused of committing these acts while forcing the deportation of 8,617 Hungarian Jews.
In Finta, there were great difficulties with the testimony of witnesses, including suggestions of unintentional collaboration through stories told over the years since the war. Significantly, the case also provided an interpretation of the ‘military orders defence’ that since the accused was merely following orders he should not be entirely responsible for his actions. Further, the court found that in order to be convicted of international crimes, the perpetrator must have known and understood the context of the crime, meaning whether they knew or ought to have known that a state of war existed and that their actions, even during a state of war, would “shock the conscience of all right thinking people.”
Due to the failure of Canadian authorities to convict Mr. Finta for the crimes he was charged with, it was decided that it would be more expeditious and realistic to focus on immigration law to remove alleged war criminals from Canada rather than to try them for their crimes. For the most part, this has involved former Nazis. While there have been some successes in establishing that they entered Canada under false pretenses, a decision from the court does not lead to deportation. Once it is found they did enter the country unlawfully, the ultimate decision to revoke their citizenship and deport them rests with Cabinet. In order for these individuals to be removed on this basis, Cabinet needs to pass an Order in Council, which has proven to be extremely difficult to attain. Many of these individuals remain in Canada.
However, since the 1994 Finta decision, international humanitarian law has progressed substantially so that the defence that one was merely following orders can no longer shield an individual from accountability. The ad hoc tribunals established to prosecute the perpetrators of international crimes committed in the former Yugoslavia and Rwanda, and more recently the Special Court in Sierra Leone and the International Criminal Court, clearly set out individual criminal responsibility for one’s actions during armed conflict – whether internal or international in nature. The Munyaneza trial is tremendously important for Canada in terms of its own ability to hold war criminals accountable for their actions, but also as an example among its international colleagues in a world where international accountability has tended to be restricted to international tribunals or military courts. Now that international criminal law has become much more firmly established and understood, this case will provide us with an opportunity to send a message that there will be no impunity for such crimes in Canada.
CLAIHR will be actively monitoring these proceedings and will be updating this website regularly with highlights of the trial and commentary as interesting issues arise. See below for a link to the trail summaries compiled by our University or Ottawa chapter. Further, should this case become appealed, we will be seeking intervenor status to ensure that international human rights and humanitarian legal standards are adhered to and drawn upon.
If you are interested in volunteering on this project, feel free to contact us. This project will primarily be based in Montreal.
Residential Schools Truth Commission
THE INDIAN RESIDENTIAL SCHOOLS TRUTH AND RECONCILIATION COMMISSION
As part of the national Indian Residential Schools Settlement reached in 2006, a Truth and Reconciliation Commission (the “TRC”) will be established in early 2008. The TRC will be part of an overall holistic and comprehensive response to the Indian Residential School (”IRS”) legacy in Canada with a view to acknowledging and documenting the injustices and harms experienced by Aboriginal peoples as result of forced attendance at the schools for almost a century.
While the TRC will not have judicial or inquisitorial powers and will not have jurisdiction to order reparations or grant amnesties, CLAIHR is of the view that it has the potential to play a critical role in truth telling, public education, creation of a historical record of past violations of human rights in Canada and providing recommendations for the future relationship between Canada and its Aboriginal peoples. Accordingly, CLAIHR will monitor and periodically report on the work of the TRC and its compliance and acknowledgement of various international human rights norms.
In particular, victims of gross violations of international human rights law have the right to be provided with full rehabilitation, satisfaction and guarantees of non-repetition. The right to know the truth is an additional collective and individual right which requires states to provide information on the causes of event, the reasons, the circumstances and conditions of the violations. This non-derogable right has been affirmed by treaty bodies, regional courts and international and domestic tribunals.
Indigenous peoples in Canada are also entitled to enjoy the existing human rights codified in such international agreements and declarations as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, and the Declaration on the Rights of Indigenous Peoples, Nairobi Declaration on Womens’ and Girls’ Right to a Remedy and Reparation, as well as the General Assembly resolution 60/147 of December 16, 2005 entitled Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Humanitarian Law. Amongst other things, these agreements and declarations prohibit forcible removal of indigenous peoples, recognize the right to education without discrimination and affirm the right of indigenous peoples to education in their own culture, provided in their own language. The IRS system in Canada violated each of these internationally protected rights, in addition to many others, and the TRC’s work should create a historical record that recognizes this long legacy of human rights violations as a result of attendance at IRS.
Upon its establishment, CLAIHR will monitor the TRC for its compliance with international human rights standards, and generally report on:
- the TRC’s record of investigating and recording all cases of past human rights violations, including civil, political, economic, social and cultural rights;
- the TRC’s analysis of institutional violations and the failure of those institutions;
- the competency of its membership , including independence, impartiality, training of staff and accessibility for Canadians and in particular, victims; and
- the TRC’s results and recommendations, to be published and widely disseminated without undue delay, including information of all relevant social and political conditions received by the TRC, its findings, documents relied upon, and conclusions.
- CLAIHR will assess the TRC’s compliance and findings against international human rights standards in relation to other Truth and Reconciliation Commissions and against the following international documents, amongst others:
Declaration of basic principles of justice for victims of crime and abuse of power, adopted by the UN General Assembly in 1985;
Set of principles for the protection and promotion of human rights through action to combat impunity, Annex II to the Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, UN Doc. E/CN.4/Sub. 2/1997/20/Rev. 1, 2 October 1997;
The rule of law and transitional justice in conflict and post-conflict societies, report of the UN Secretary-General, UN Doc. S/2004/616, 23 August 2004;
Updated Set of principles for the protection and promotion of human rights through action to combat impunity, Addendum to the Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher, UN Doc. E/CN.4/2005/102/Add.1, 8 February 2005;
Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, adopted and proclaimed by UN General Assembly resolution 60/147 of 16 December 2005, UN Doc. A/RES/60/147;
UN Economic and Social Council, Guidelines on justice in matters involving child victims and witnesses of crime, Resolution 2005/20 of 22 July 2005;
Study on the right to the truth, Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. E/CN.4/2006/91, 8 February 2006;
Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Truth Commissions, Un Doc. HR/PUB/06/1, 2006;
The United Nations Declaration on the Rights of Indigenous Peoples, Resolution 2006/2.
BRIEF HISTORY OF INDIAN RESIDENTIAL SCHOOLS IN CANADA
Beginning in the late 1800s, Canada operated nearly every IRS in Canada as a joint venture with various religious organizations. The IRS were located in every province and territory except Newfoundland, New Brunswick and Prince Edward Island. Approximately 130 IRS existed over time, and while most IRS ceased to operate by the mid-1970’s, the last federally-run IRS in Canada closed in 1996.
IRS policy consisted of a justification for removing children from their communities and disrupting Aboriginal families to re-socialize children in the schools and ostensibly integrate them into the non-Aboriginal world. Canada forcibly removed Aboriginal persons, usually young children, from their homes. With the goal of assimilation in mind, the schools were designed as total institutions. By 1920, the Residential School Policy included compulsory attendance at Residential Schools for all Aboriginal children aged seven to fifteen.
By 1948, 60% of the Indian school-age population in Canada was enrolled in IRS. In the IRS, children were prohibited from practicing their Aboriginal beliefs, culture, language and other practices, often with the goal of achieving assimilation. The quality of education was woeful, as was the quality of life. IRS were chronically under-funded and plagued by abuse.
Apart from the abysmal living, learning and working conditions at the IRS, and the fatally flawed educational strategies employed, there was a fundamental want of supervision and protection of the students to ensure they were safe and well protected. Whether it was general abuses and neglect with respect to the manner of operation of the IRS, or the more specific failures relating to the flourishing of sexual predators, Canada failed in its responsibilities to the children.
The nature of the abuses suffered by IRS children included emotional, mental, physical, sexual and spiritual. The abuses were prevalent, severe and much of it known to the federal government. Even after the IRS were finally closed in 1996, abuse spilled back into the communities, the effects of the IRS program echoing in the lives of subsequent generations of children. Today, Aboriginal communities suffer a myriad of problems, including high rates of incarceration, youth suicide, drug and alcohol abuse, health problems, poverty and social exclusion, which may, at least in part, be traced back to the IRS legacy.
By May 2005, there were approximately 14,000 existing individual claims filed by former students against Canada and some 11 class proceedings in various provinces, seeking damages as a result of attendance at IRS, including the first certified IRS class proceeding, Cloud v. Canada. Significant pressure was also being brought to bear in the political arena. .
The Honourable Justice Frank Iacobucci, former member of the Supreme Court of Canada, was appointed by the federal government as Federal Representative to negotiate with legal counsel for former students from First Nations, Inuit, Inuvialuit, and Métis communities and family members of former students, various religious and church entities, the Assembly of First Nations and other Aboriginal organizations,
The Federal Representative’s mandate was, generally, to achieve a final and comprehensive settlement of legal claims arising out of attendance at IRS, to recommend truth, reconciliation, commemoration and healing initiatives and to consider improvements that could be made to the Dispute Resolution process. After 6 months of negotiations, the parties reached an Agreement in Principle on November 20, 2005, and a final Indian Residential Schools Settlement Agreement (”Settlement Agreement”) on May 8, 2006.
ESTABLISHMENT OF THE TRC
The TRC is established by Article 7.01 of the Settlement Agreement. Once Federal Cabinet approval was obtained in May 2006, the parties were required to seek the approval of the courts in nine Canadian jurisdictions (Ontario, Quebec, Saskatchewan, Manitoba, the Northwest Territories, British Columbia, Nunavut, Alberta and the Yukon). Following motions for settlement approval between August and October 2006, unanimous court approval was granted by all nine courts on March 8, 2007. The Settlement Agreement came into effect on September 19, 2007 It is expected that the TRC will become operational in early 2008.
While established pursuant to the Settlement Agreement, the TRC process is separate from the legal claims settled by the agreement, and survivors who opt out of the compensation package under the agreement may still participate in the TRC’s activities and work.
The Settlement Agreement provides $60 million for the development of the TRC. The TRC will also co-ordinate activities with another aspect of the Settlement Agreement, the Commemoration Policy Directive, which allots a further $20 million for commemorative projects, locally and nationally.
MANDATE OF THE TRC
The TRC is not designed to act as a public inquiry or to conduct a formal legal process and will therefore not duplicate the function of criminal investigations, civil law suits or the Independent Assessment Process under the Settlement Agreement. The TRC does not have jurisdiction to exercise any inquisitorial powers nor does it possess subpoena powers.
The mandate of the TRC is to report to Canadians what occurred in Indian Residential Schools attended by First Nations, Inuit and Métis children and the lasting legacy of those institutions with a view to achieving justice, healing and reconciliation. Generally speaking, the TRC will:
(a) provide those who were affected with an opportunity to tell their stories in a safe and culturally appropriate forum;
(b) initiate and encourage reconciliation from all interested parties, including former IRS students, their families, communities, religious entities, government and the people of Canada;
(c) complete an accurate and public historical record; and
(d) promote awareness and public education about the Indian Residential School system and its impact on the human dignity of former students and their families.
Its guiding principles include having a victim-centred and holistic approach, confidentiality (if requested), inclusiveness, accessibility, transparency, accountability, voluntary participation, respectfulness, educational, and forward-looking focus on renewing and rebuilding the relationship between Aboriginal and non-Aboriginal Canadians. In the exercise of its powers, the TRC will recognize the unique experiences of all former students and the significance of Aboriginal oral tradition, and will build upon the work of past and existing processes, archival records and documentation, including the work of the Royal Commission on Aboriginal Peoples 1996.
The period under investigation by the TRC will commence with the historical circumstances that led to the opening and operation of the first IRS in Canada. Only abuses or events that occurred prior to the establishment of the TRC will be examined. The TRC will hear testimony about the cultural, social and intergenerational impacts of the schools. The focus of the public hearings will be the abuses that both national society and victims, in particular, consider to be the most serious and in most urgent need of public attention.
The TRC’s key activities will include public hearings, taking statements, research and creation of a historical record, establishment of a research and archive centre, education of local communities, commemoration initiatives and truth sharing. The Commission’s core work will be focused on the following:
(a) individual statement taking/truth sharing permitting victims to describe their experiences in a safe supportive environment and to contribute to the development of collective stories about the impact of the schools;
(b) creation of a database to preserve and archive all the materials collected or created during the TRC, which will assist in identifying patterns and trends and may help to more accurately estimate the total number of victims of specific abuse;
(c) research and analysis of the short and long term legacy of the IRS system on individuals, communities, groups, institutions and Canadian society, including intergenerational impacts;
(d) public hearings to permit the TRC to formally acknowledge as well as engage and educate the public about past wrongs, reducing the likelihood of continued denial of historical truths;
(e) public outreach and communications, with the TRC inviting victims and others to provide statements and ensure that its goals are publicly understood; and
(f) creation of a final report and recommendations, the TRC’ most enduring legacy.
In the context of these activities, the TRC will have the powers to receive statements and require all documents, materials and transcripts of recordings of statements to be preserved in a manner to ensure the greatest accessibility to the public. The TRC does not have any compulsory jurisdiction, and participation in all events and activities is strictly voluntary. Neither amnesties nor prosecutions are within the mandate of the TRC. However, Canada and the involved religious entities have agreed to provide all relevant documents to and for the use of the TRC, subject only to the privacy interests of individuals as provided by law.
The TRC shall consist of one chairperson and two other commissioners appointed by federal Order in Council. The Commissioners are to be individuals of recognized integrity, stature and respect to be drawn from a range of professions. Consideration will be given to appointing at least one Aboriginal commissioner. Appointments are to be made from a pool of candidates nominated by former students, Aboriginal organizations, churches and government. The Assembly of First Nations shall be consulted in making the final decision.
The TRC will be assisted by an IRS Survivor Committee (the “IRSSC”). The IRSSC will be composed of representatives of various Aboriginal organizations and survivor groups, as selected by the federal government. The Committee will assist the TRC and provide advice on criteria for the processes, how the commemoration processes should be formulated, amongst other things. The IRSSC will consist of ten representatives from various Aboriginal organizations and survivor groups.
The mandate of the TRC is for a period of five years. Upon completion of its term, the TRC will publish a final report and submit recommendations to the parties to the Settlement Agreement. The final report will be published in Canada’s two official languages and in other Aboriginal languages as determined by the TRC.