Case: R v Finta [1994] 1 SCR 701
Outcome: referred to
The applicant relied on the Canadian decision of R v Finta [1994] 1 SCR 701 as authority for the proposition that the defence predated the Rome Statute and was available. The applicant submitted that the limited defence of superior orders which existed before the entry into force of the Rome Statute, required the consideration of the nature of the orders, whatever the crime and did not draw a distinction between orders to commit genocide, or crimes against humanity as distinct from other international crimes such as war crimes, as Art 33 of the Rome Statute does. 34 The applicant submitted that, in accordance with Art 22 and Art 24 of the Rome Statute and in order not to give Art 33 a detrimental retrospective effect, any other defence that was available prior to the coming into force of the Rome Statute must be considered. Art 24 would preserve any defence which was available prior to the coming into force of the Rome Statute which was consistent with Art 15 of the International Covenant on Civil and Political Rights which provides that no one will be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed. 35 Specifically, the applicant submitted that once the Tribunal "determined to make a finding" under Art 7 rather than Art 8, it was obliged to consider whether Art 24 would preserve the defence acknowledged in R v Finta . He submitted that under the 1948 United Nations General Assembly, Art 11, no one was to be "held guilty" of any penal offence on account of any act or omission which did not constitute a penal offence under national or international law at the time it was committed. 36 At the hearing an issue was raised about the effect of the applicant's failure to make a submission in the proceeding before the Tribunal about whether the defence of superior orders existed before the Rome Statute came into force. Specifically, the issue was whether jurisdictional error can be established when a Tribunal fails to address a matter that was not raised before it or, as a matter of discretion, whether the applicant is now precluded from raising it. 41 The respondent noted that the Art 33 of the Rome Statute departed from provisions made in previous instruments where "superior orders" were not recognised as a defence, but rather a matter to be pleaded in mitigation of punishment. The respondent submitted that the applicant had not established that prior to the entry into force of the Rome Statute, there existed a defence of superior orders to a charge of crimes against humanity. The respondent submitted that the decision in Finta concerned what may be viewed as a complementary defence of compulsion or duress. The respondent submitted the applicant did not seek to bring himself within the duress defence in Art 31(1)(d). The respondent submitted that even if Finta did stand for the proposition that the defence of superior orders was available, that decision alone would "not go so far as to crystallise customary international law on the point". The respondent submitted that it was not necessary to discern a clear rule of customary international law with regard to the defence of superior orders for the purpose of determining the application of the defence in Art 33 to crimes against humanity, pursuant to Article 1F(a) of the Refugees Convention. 42 The respondent submitted that as the existence of a defence under customary international law had not been raised before the Tribunal, it had been under no obligation to consider it. It was not a matter squarely raised on the material before the Tribunal. 43 In relation to the question of whether the Tribunal erred in failing to consider the definition in Art 7(2)(e) of the Rome Statute, there is no inconsistency between the content of Art 30(2) and the definition of torture in Art 7(2)(e) and the latter does not raise any additional consideration which should be addressed when considering whether the crime of torture had been committed. The definition refers to the "intentional infliction of severe pain or suffering whether physical or mental". Clearly, Art 30(2)(a), which refers to the intent to engage in conduct, encompasses the conduct of "inflicting" pain or suffering and Art 30(2)(b), which refers to the intent to cause a consequence, picks up the consequences of "severe pain or suffering". It was open to the Tribunal to determine whether the applicant had intended to commit the crime defined in Art 7(2)(e) by reference to the test concerning the mental element articulated in Art 30(2)(a). It did so. Ground 1(a) is not made out.