war criminals, WW2, Canada, prosecution, nazi, Germany, crimes against humanity, international law
A Commission of Inquiry on War Criminals, headed by Mr. Justice Jules Deschenes, was established by the Federal Government on 7 February 1985 to determine whether or not alleged Nazi war criminals were resident in Canada and to recommend legal measures to ensure that such war criminals are brought to justice. The Commission submitted a two part Report to the Governor General in Council on 30 December 1986. Part I has been published, and Part II, concerned with allegations against specific individuals is confidential. The Commission, bearing in mind the concern of the Canadian public about all atrocities related to the activities of Nazi Germany during World War II, adopted a broad interpretation of its mandate and reviewed allegations concerning both war crimes and crimes against humanity. War crimes and crimes against humanity are overlapping categories of offences. The distinctions and similarities of the categories will be discussed in more detail later in this article. In brief, war crimes are well established international offences committed in time of hostilities and, generally speaking, directed against enemy nationals. Crimes against humanity are a relatively new type of international crime involving state directed atrocities committed in war or peace and aimed at any distinctive group including a part of one's own population. In Part I of the Report Mr. Justice Desch~nes concluded that there were alleged Nazi war criminals resident in Canada and that existing legislation did not contain an appropriate vehicle for their prosecution. He recommended that the Criminal Code be amended so that war crimes would be offences under Canadian law whether or not Canada had participated in the specific war in which the crimes were committed and so that crimes against humanity wherever and whenever committed would be offences under Canadian law. Although Mr. Justice Desch~nes' mandate was confined to war crimes related to the activities of Nazi Germany during World War II, he considered it necessary to propose legislative changes directed at all war crimes and all crimes against humanity as "otherwise the legislation might be attacked as discriminatory and repugnant to the principles of fundamental justice prevailing in Canada and guaranteed under Section 7 of the Charter.'
W J. Fenrick, "The Prosecution of War Criminals in Canada" (1989) 12:2 Dal LJ 256.