War crimes charges laid against a Canadian

Not the big news, but still pretty big news

The big news of December 16 was, of course, the resignation of the Minister of Finance, Chrystia Freeland, who took a knife to whatever was left of Justin Trudeau’s leadership, just as he had taken a knife to Freeland the Friday previous by forcing her out of the Finance and Deputy Prime Minister positions with a faux offer. Who says politics is not a blood sport.

Another piece of news on this day, caught to its credit by the CBC, was that a Canadian citizen, Ahmed Eldidi, has now been charged with war crimes. ^[1] The charges include murder, mutilation, torture and outrages upon personal dignity. The war crimes indictment supplants elements of earlier charges laid in July, when Eldidi and his son were apprehended, according to the RCMP, “in the advanced stages of planning a serous, violent attack.” The RCMP has not identified the target of the planned attack but it has been speculated that the pair’s terrorism plot was to be directed against Jewish Canadians. The earlier arrest sheet included charges involving participation in a terrorist group, facilitating terrorist activity and, for the elder Eldidi alone, aggravated assault.” ^[2]

Aggravated assault has now become the much more serious and consequential war crimes charges. They relate to a horrendous ISIS propaganda video posted online in June 2015 (available for a time on the dark web). The penalty for war crimes is life imprisonment without parole for 25 years.

Eldidi, an Egyptian native, slipped into Canada in 2018 without the authorities being aware of this video or his connections to ISIS. He was granted Canadian citizenship in May 2024, just two months before the initial charges against him were laid. This is all being investigated by the House of Commons Public Safety Committee, and internally by IRCC. It won’t be a good news story, when all the facts are assembled.

But war crimes charges. Wow. The big news here is just how rare it is for Canada to lay them, despite the fact that we have been a leading proponent of international law mechanisms to support war crimes prosecutions.

Some history. Canada passed its “Crimes Against Humanity and War Crimes Act “in 2000, and in doing so became the first state to incorporate new international legislation, the Rome Statute of the International Criminal Court (ICC), into domestic law. The Canadian legislation not only recognizes the standing and jurisdiction of the ICC, but allows for war crimes charges to be laid against persons in Canada even if the crimes occurred outside the country. ^[3]

In the 24-year history of the legislation, preceding the indictment against Eldidi, only one other case of war crimes has been laid and successfully prosecuted. This involved a Rwandan immigrant to Canada named Desire Munyaneza, who was charged in 2005 with two counts of genocide, two counts of crimes against humanity, and three counts of war crimes committed during the Rwandan genocide in 1994. Four years later Munyaneza was convicted on all counts and sentenced to life imprisonment, which is the statutory penalty for war crimes. ^[4]

War crimes charges can relate, as defined by the Rome Statute, to an international armed conflict or to what is described as “an armed conflict not of an international character.” The original rationale for this distinction was to ensure that war crimes encompassed both war outbreaks between states and internal conflicts such as civil wars. Violence by terrorist groups broadened the scope but are incorporated under “armed conflicts not of an international character.”

War crimes committed by terrorist groups apply four categories that originally stem from the Geneva Convention of 1949, when committed against “persons taking no active part in the hostilities:”

“Violence to life and person” (murder, mutilation, cruel treatment and torture)

“Committing outrages upon personal dignity, in particular humiliating and degrading treatment”

“Taking of hostages”

“The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.”^[5]

International law, in other words, treats terrorist acts of violence as a recognizable and punishable form of war crime.

The Eldidi case will be unique in the annals of Canadian law. It will be the first time that such charges have been laid in a Canadian court against a person with alleged ties to a terrorist group.

The rarity of war crimes charges and the uniqueness of the Eldidi case will inevitably mean a lengthy trial process and challenges around evidence. Eldidi’s defence lawyer told the CBC that the ISIS terror video “forms the basis” for the war crimes charges.^[6] But I suspect the Crown will need to amass more evidence, beyond the video, for a crime that now dates back a decade and allegedly took place in ISIS -controlled territory in Iraq. Some of the evidence may involve sensitive intelligence from Canadian or allied sources, which always adds a complicated twist to trial proceedings.

Because the war crimes charges emerged out of a terrorist investigation by the RCMP, the otherwise moribund government “War Crimes program,” jointly managed by DOJ, the RCMP, CBSA and IRCC, did not have to originate the investigation or charges. Take that as a blessing. In any case, the multi-agency program is mostly focused on removals and revocation of citizenship for those alleged to have committed war crimes, not on prosecutions, something for which it has been criticised. ^[7] The program operates with minimal resources, an antique and frozen budget, zero public scrutiny, and has not been formally reviewed since 2016. Its tentative step into investigating war crimes conducted in Ukraine, based on an RCMP effort to collect information voluntarily from Ukrainians who have fled the war and come to Canada, has produced no tangible results (please someone correct me if I am wrong on this). ^[8] The same seems true for an earlier investigation launched into war crimes by ISIS against the Yazidi population of Kurdistan.

Perhaps the Eldidi prosecution will help re-energize this sleepy effort. That would also be big news.

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^[1] Thomas Daigle, CBC News, “Alleged Toronto ISIS attack plotter now faces war crimes charges,” December 16, 2024, https://www.cbc.ca/news/canada/toronto/isis-eldidi-toronto-attack-war-crimes-1.7411669

^[2] RCMP, “Father and Son arrested for terrorism offences,” July 31, 2024, https://www.rcmp-grc.gc.ca/en/news/2024/father-and-son-arrested-terrorism-offences#

^[3] Crimes Against Humanity and War Crimes Act, https://lois.justice.gc.ca/eng/acts/C-45.9/

^[4] Supreme Court of Canada, Case summary, https://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=35993. The SCC denied his leave to appeal.

^[5] Rome Statute of the International Criminal Court, article 8, part “c”, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf

^[6] Thomas Daigle, CBC News, “Alleged Toronto ISIS attack plotter now faces war crimes charges,” December 16, 2024, https://www.cbc.ca/news/canada/toronto/isis-eldidi-toronto-attack-war-crimes-1.7411669

^[7] Amnesty International (Canada), “End Impunity Through Universal Jurisdiction,” 2020, https://www.amnesty.org/en/documents/amr20/2287/2020/en/#:~:text=In%20this%20latest%20'No%20Safe,improving%20the%20protection%20of%20and

^[8] RCMP, “A Statement by the partners of Canada’s war crimes program on the conflict in Ukraine,” April 7, 2022, https://www.rcmp-grc.gc.ca/en/news/2022/a-statement-the-partners-canadas-war-crimes-program-the-conflict-ukraine; the RCMP information collection form can be found here: https://ukraine.rcmp.ca/responseForm?lang=en