Crimes Against Humanity and War Crimes Program
- Have changes in governance structure resulted in a more cohesive, efficiently coordinated program that has produced benefits for partners?
- Have policy changes resulted in a more cohesive, efficiently coordinated program that has produced benefits for partners?
- How effective is the Program in overall management and service delivery?
- How effective is the Program in establishing and maintaining partnerships with those managing other border initiatives?
- How effective is the Program in establishing and maintaining partnerships with other federal departments and international partners?
- How effective is war crimes training provided to program staff?
- To what extent have program partners used performance data to manage the Program and guide policy?
3.2.1. Changes in Governance Structure
Interviews with program staff and staff of other departments, the survey of program staff and the case studies provide evidence that changes in governance and structure, including the establishment of a higher level War Crimes Steering Committee and of the PCOC (with a revised sub-committee structure) as well as significant clarifications in departmental roles and responsibilities have resulted in a more cohesive program. The same sources report that there were very significant improvements in program coordination (mainly through coordinated priority setting and joint assignment of cases to specific remedies) during the evaluation period.
Responding to questions about governance structures, interviewees and respondents to the online survey made reference to a range of organizational or structural changes in the Program in the period since the last evaluation. These changes were also confirmed in program documents including Annual Reports, minutes of the PCOC, interdepartmental memoranda of understanding and case-related documents reviewed for the case studies. The key changes are:
- Establishment of the War Crimes Steering Committee to deal with issues relating to policy and allocation of resources across participating departments;
- Establishment of the PCOC; and
- Clarifications of the role of participating departments, particularly further clarification in 2004 of the respective roles of the RCMP and DOJ War Crimes Units in investigation and case preparation.
The majority of program departmental staff interviewed reported that changes in the governance structure had resulted in a more cohesive and more efficiently coordinated program. In particular they pointed to:
- Clearer policy guidance from the ADM level War Crimes Steering Committee including guidance on resource allocation and priority to be placed on different remedies;
- Much clearer definition of roles and responsibilities and improved collaboration, in particular between the War Crimes sections of the DOJ and the RCMP. This was cited by a number of interviewees as a very significant improvement on the working relationship described in the 2001 evaluation; and
- Improved clarity and effectiveness in the work of the file review sub-committee of PCOC.
Most interviewees from other (non-program) federal departments who were very familiar with the governance structure reported that roles and responsibilities seemed to be well defined.
As the survey was directed at program staff with an operational focus, it did not include direct questions on governance and policy. However, this group was asked to rate the clarity of role definitions and the effectiveness of program communications both among program departments and with international partners: all factors which can reasonably be related to the changes noted above.
Two thirds of survey respondents rated the clarity of departmental roles and the effectiveness of interdepartmental communications positively. Without comparing this result to an earlier survey, it is impossible to know if this is an improvement over the situation before the noted changes in governance were made. At the same time, the 2001 evaluation pointed to the need to make significant improvements in the clarity of role definitions and in interdepartmental coordination and communications.
The case studies show that remedies like revocation of citizenship and deportation sometimes encountered significant problems in the coordination of the investigative phase, including strained relations between RCMP investigators and DOJ War Crimes Section staff assigned to the case. These resulted from unclear role definitions subsequently clarified in the RCMP/DOJ Guiding Principles Document of 5 November 2004. Coordination improved significantly after 2004, with the DOJ and CIC units proceeding in close cooperation and the RCMP War Crimes Section providing effective support through DOJ.
The remedy of inquiry and removal from Canada under the IRPA was also illustrative of the changing quality of program coordination and roles definitions. It was characterized by much clearer understanding of roles and responsibilities and better communications among the program departments involved.
Regular PCOC meetings also played an important role in coordinating these cases. As an example, staff attended a PCOC meeting to discuss an appropriate remedy once it became clear that extradition was a possibility. Case three also highlights the improvement in coordination resulting from changes in the Program governance and structure (operation of PCOC file review sub-committee and roles clarification among program departments).
Interviewees for the country studies compared the governance arrangements and structure of the Program with those of Australia, the Netherlands and the USA. In all three cases, they pointed to the integration of the four Canadian departments into a single program as evidence of a higher level of coordination in comparison to their own jurisdiction. This observation does not point directly to changes in governance and structure in the Program, but it does support the principle of achieving integration through a common program with central governance and coordinating mechanisms.
3.2.2. Changes in Policy
The document review, interviews, staff survey and indirectly the country studies provide considerable evidence that the three policy changes relating to the policy development role of PCOC, resource allocation decisions undertaken by the War Crimes Steering Committee and refinements to file review criteria and processes have contributed to improving the cohesiveness and effective coordination of the Program.
Three important policy changes during the evaluation period gave new direction to operational priority setting, influenced resource allocation decisions, had an impact on the ongoing inventory of cases, and influenced the choice of remedies and the priority given to cases. The three changes noted included:
- The increased role in policy development undertaken by the PCOC through the work of sub-committee on file review;
- Decisions on resource allocation taken by the War Crimes Steering Committee which emphasized the priority given to modern war crimes cases and to immigration remedies (2007) without excluding either World War II cases or prosecutions; and
- The PCOC File Review Policy Adjustment (2006) dealing specifically with files in, or being added to, the RCMP/DOJ inventory.
The file review policy adjustment replaced the older two-stage process with its different criteria for each stage, by combining them in a single screening process. Under the new policy, in order for an allegation to remain in the RCMP/DOJ inventory (under investigation for potential criminal prosecution), it must meet the following criteria:
- The allegation must disclose personal involvement or command responsibility on the part of the person alleged to be involved;
- The evidence pertaining to the allegation must be corroborated; and
- The necessary evidence must be available in a reasonably uncomplicated and rapid fashion.
However, a file may be added to the inventory if not all three criteria are met, provided that:
- The allegation pertains to a Canadian citizen living in Canada or to a person present in Canada who cannot be removed for practical or legal reasons; or
- Policy reasons such as the national or public interest, or over-arching reasons related to the interests of the War Crimes Program, international impunity or the search for justice exist.
The majority of interviewees from program departments agreed that these policy changes had clarified overall program priorities without prejudicing remedies such as prosecution. They pointed to the changed file review criteria and single-stage file review process as an important operational output of policy change.
Some interviewees from other departments highlighted the adjusted file review criteria and the renewed policy emphasis on modern war crimes and immigration remedies as examples of changes contributing to an improved program focus and, potentially, to improved program efficiency.
External stakeholders in Canada and internationally pointed out that it remains important that the remedy of investigation and criminal prosecution is visibly present in the Canadian Program if Canada is to make an effective contribution to a global effort to combat impunity. In the view of the evaluation team, this last point is met by the fifth file review criteria allowing for cases to be assigned or maintained in the RCMP/DOJ inventory for policy reasons relating to international impunity.
Survey respondents generally gave a positive assessment to the adequacy of program policies and case assessment criteria.
|Respondent rating of the adequacy of Program elements||Somewhat or Very Adequate||Somewhat or Very Inadequate|
|Adequacy of departmental and agency policies||86%||15%|
|Adequacy of criteria for case assessment||73%||27%|
There was no discernible pattern in the comments made by those respondents who felt that one or more of these dimensions of the Program were inadequate. A few did point to what they see as a need for even more stringent file review criteria to avoid pursuing cases with little prospect for criminal conviction or removal.
3.2.3. Program Management and Service Delivery
The evaluation period has been characterized by improvements in policy development and analysis, improved screening of cases through strengthened criteria and more explicit priority setting, and improved interdepartmental coordination. There is, however, a clear need for training of new staff regarding departmental roles and responsibilities and a need to invest in converting the Modern War Crimes System (MWCS) database onto a platform which can be updated by CBSA.
This question concerns the effectiveness of the Program in supporting service delivery and management, in particular with regard to case analysis and case screening, more specifically:
- Contextual and case-specific research;
- Contextual and case-specific intelligence gathering;
- Information sharing in the context of crimes against humanity and war crimes;
- Information sharing on specific cases;
- Case screening and priority setting (including the choice of remedies); and
- Interdepartmental communications.
A majority of departmental staff taking part in interviews pointed to improvements in the file review criteria (as detailed above) and to more effective operation of the file review sub-committee of the PCOC as factors contributing to improved screening of cases. Some attributed this to better understanding of departmental roles and responsibilities based on formal agreements and memoranda of understanding. Most interviewees from program departments also pointed to improvements in interdepartmental communications during the evaluation period.
Most departmental staff also indicated that the Program was effective in research and intelligence gathering, as well as sharing information on program context and on specific cases, with one important exception relating to the MWCS.
MWCS is an electronic database designed to assist CBSA and CIC officers in the investigation of modern war crimes and crimes against humanity. It contains open source data compiled by program researchers as well as operations memoranda, screening tools, legislation, legal opinions and jurisprudence. Unfortunately, MWCS originated on a CIC electronic platform prior to the creation of CBSA. When the War Crimes Section of CIC was transferred to CBSA, the database remained on a CIC platform and was not transferred to CBSA. This means that CBSA, as the main user of MWCS, cannot input new information into the system or update it as the platform used by the agency is not compatible with the one used by CIC. Only CIC has the right and capability to update MWCS.
Program staff at CBSA point to resource constraints and the priority given to other systems projects as the reason for the delay in resolving systems issues restricting the updating of MWCS material.
Survey respondents were positive with regard to the adequacy of gathering and sharing intelligence on the context and history of war crimes (see Table 4). They were somewhat less positive regarding gathering and sharing case-specific intelligence, but more than two thirds still rated this aspect of the Program somewhat or very adequate.
|Respondent rating of the adequacy of Program elements||Somewhat or Very Adequate||Somewhat or Very Inadequate|
|Gathering intelligence on the context and history of war crimes||81%||19%|
|Sharing intelligence on the context and history of war crimes||82%||18%|
|Gathering intelligence on allegations against specific individuals||72%||28%|
|Sharing intelligence on allegations against specific individuals||68%||32%|
The first point in Table 5 indicates that 35% of respondents identify issues in the availability of background information generally. Though the question did not specifically ask about information accessible through MWCS, when combined with interview results, it appears to relate to problems in updating the MWCS. A few interviewees in regional offices of CBSA and in posts abroad raised the issue of the need to update MWCS material as an important factor limiting the availability of background information.
|Extent Respondents Agree or Disagree With:||Agree||Disagree|
|Background information on events connected with war crimes is accessible and sufficient||65%||35%|
|Information to substantiate individual allegations is available||61%||39%|
In commenting on the apparent problem of access to case-specific information and intelligence sharing, a few respondents from CBSA regional offices noted difficulties in accessing secret data in electronic databases at headquarters. Similarly, a few RCMP staff reported difficulties in securing case-specific data from CBSA/CIC electronic files. The evaluation team followed up on this observation in interviews with CBSA and RCMP headquarters staff, who pointed to a recently signed Memorandum of Understanding on access as an effective response to the situation. This was confirmed in a few interviews with investigative staff in both departments.
The five case studies present a more positive picture of the availability of general and case-specific information than the survey of departmental staff.
The case on revocation of citizenship did point to problems in gathering and sharing general and case-specific information. Significantly, those problems occurred in the first phase of the case, prior to 2003. The study points to a significant improvement in the availability of contextual and case-specific data from 2004 to 2008. This improvement in information sharing is attributed to clarification of the respective roles of RCMP and DOJ investigators in 2004.
The remaining case studies all reported no important barriers to information sharing across the four departments. The case study of denial of refugee status provided an example of excellent communications among the DOJ, the War Crimes Section of CBSA headquarters and CBSA regional offices.
Survey respondents and a few interviewees in program departments did call for further refinement in the understanding of departmental roles (with one-third of survey respondents calling for improved clarity). Follow-up analysis of the open-ended responses to the survey questions and selected key informant interviews strongly points to fairly rapid staff turnover rates and some delays in training of new staff in regional offices in Canada and in posts abroad as the most probable cause of this reported problem. In a program as complex as this one involving staff from four departments, there is a need to frequently update and educate staff on departmental roles and responsibilities.
3.2.4. Partnership — Other Border Management Initiatives
Despite some differences of opinion on the necessity of integrating program activities with border management initiatives relating to organized crime and terrorism, there are concrete examples of integration especially (but not exclusively) at regional offices and posts abroad. While the evaluation issue is worded in terms of partnerships with other border management initiatives, the Program has in fact pursued a relationship much closer than partnership by being integrated into organizational units and activities aimed at addressing organized crime and counter-terrorism. Operationally, this provides the benefit to regional and overseas staff of having a single source of information on war crimes, organized crime and counter-terrorism.
The relevant border management initiatives identified in the documents reviewed and during key informant interviews are those dealing with organized crime and counter-terrorism. Interviewees differed in their awareness and support of the Program's integration into border management initiatives relating to organized crime and counter-terrorism. Generally speaking, CBSA, CIC and RCMP staff were more likely to claim a strong rationale for integration and partnership than the staff of the DOJ War Crimes Section. Perhaps because they are less involved than the other departments and agencies in specific border initiatives, some DOJ staff felt that:
- Those involved in crimes against humanity and war crimes may have a criminal background prior to the conflicts which led to accusations against them, but do not generally pursue these activities in Canada; and,
- There seems to be relatively little overlap between those people in Canada suspected of war crimes and persons or networks engaged in organized crime or terrorism.
It is important not to carry this distinction too far. Virtually all interviewees in the four program departments saw a strong need for integrating program operations within the broad range of Canadian border security and immigration integrity management systems. Since organized crime and counter-terrorism measures have been integrated into this wider system, it seems logical that measures for dealing with those involved in crimes against humanity and war crimes should be integrated as well. Through this integration, regional and overseas staff are able to access a single source of information on war crimes, organized crime and counter-terrorism.
Interviewees with specific knowledge of areas of partnership and integration with other border management initiatives pointed to CBSA's integration of program activities with those relating to organized crime, counter-terrorism, and strategic export control under its National Security Division as one example of effective partnership. They also noted the integration of functions relating to war crimes, organized crime and counter-terrorism at a regional level within Canada, with support to the regions provided by the RCMP and DOJ, and regional integration by CBSA.
The country studies provided one interesting example of an overlap between war crimes and organized crime. The Netherlands' International Criminal Offences Act provides for jurisdiction over war crimes, including arms trafficking, when a person is resident in the Netherlands. This definition of arms trafficking as a war crime provides an example of a direct legal link from organized crime to war crimes in one jurisdiction.
 File Review Policy Adjustment Proposal: 2006. P.3.
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