The Insecurity of Human Rights
Joint Annual Meeting of the Law and Society Association and the Canadian Law and Society Association
Montreal, May 29, 2008
Alex Neve
Secretary General, Amnesty International Canada
Here is perhaps one of the saddest ironies of our time. World governments are talking about security at every turn; spending billions of dollars to boost security; launching wars to defend security. Yet in many ways insecurity seems only to deepen and intensify. How can that be? One key part of the answer, certainly the aspect I intend to focus on this afternoon is that in the world’s mad-cap dash for greater security, human rights – in many respects the surest guarantee of true security – are being left behind.
Let me begin by reminding us what is at stake.
The interrogator told me to take off my jacket, shoes and socks. He told me to lie on the floor with my stomach down, my head on the floor, my hands behind my back and my legs up. They lashed the soles of my feet and it felt like they were pouring lava on me. I flipped because of the pain and they ordered me to lie back on my stomach. One person stood on my head, the other on my back, and they took turns beating my feet and kicking me with their wooden-soled shoes. They questioned me while they beat me. They would occasionally pour cold water on my feet and legs, and then ask me to stand and jog on the spot before lying on my stomach for more beating. I think that was to ensure I could still feel the pain from the beating. The torture continued until I told them what they wanted to hear — I lied and told them I knew Osama Bin Laden.
These harrowing words are, sadly, nothing new to anyone who spends time following the ongoing sorry state of human rights in our world. They are ugly, disturbing words that could describe the vicious scourge of torture in jail cells in any one of a multitude of countries. What is relatively new though – for me, a Canadian human rights activist – is that there is a deeply troubling Canadian link to the horrors described in these words.
These are the words of Abdullah Almalki, a Canadian citizen, who was arrested upon arrival for a family visit in Syria in May 2002. He remained imprisoned for 22 months; was never charged or brought to justice in a legitimate court proceeding. He was held in abysmal prison conditions. And he was subjected to severe, lengthy, frequent and very painful torture. Abdullah Almalki is but one of 4 Canadians - all of whom were of some degree of interest, sometimes peripheral, in the course of Canadian national security investigations - who were arrested in Syria, held in the same detention centre, and beaten and whipped by the same Syrian torturers between late 2001 and early 2004. In all of their cases there is credible evidence that supports the conclusion that there was some degree of complicity on the part of Canadian law enforcement or security agencies in their fate.
Today I am going to talk about the “insecurity of human rights” with a particular focus on Canada – not perhaps a country that would usually come under the spotlight in the course of exploring such a theme. I’m going to be talking about insecurity, ironically, at a time when world governments, including Canada, have been devoting considerable money, political will and attention to beefing up security. But, doing so in ways that most unfortunately have at best given human rights imperatives only passing thought; and at worst have done so in ways that quite blatantly and cavalierly undermine and violate a wide range of fundamental, universal human rights. In doing so, I will argue, Canada and other governments have done no favour either to the cause of security or the cause of human rights.
I am going to focus on Canada, but my comments arise in a wider global context. Which is where I want to start – with some reflections about the wider global context, as we can’t properly situate and understand developments in Canada without a global perspective.
And I’ll begin with perhaps the obvious: security. We hear a great deal about security concerns in this post September 11th world of ours. Security. Insecurity. Homeland security. Internal security. Terrorism. Counter-terrorism. Anti-terrorism. It’s on all the agendas: municipal, domestic, regional, international. Politicians, policy-makers, journalists, ordinary women, men and youth. Everyone is worried about security. Talking about security. Demanding security. Laws have been enacted; government departments like Homeland Security in the United States and Public Safety in Canada have been established or reorganized; wars are being waged; treaties have been negotiated; and bilateral deals concluded between governments that would make for the most improbable of bedfellows. All in the name of security.
And there is no doubt about it, this world of ours is in need of security. But as I begin I want us to remember that “security” is not and cannot just be about more bomb-checks, no-fly lists, police screens and military battalions. Our only concern about security cannot, of course, be suicide bombings in western urban centres or attacks that target westerners or western interests – as horrible, cruel and completely unacceptable as those attacks are and may be. We have to be concerned far beyond those fears and possibilities. For September 11th 2001 was not a wake up to insecurity for the vast majority of people on this planet. Security is precisely what millions upon millions of women, young people and men who live lives of fear and hunger, of violence and illness, of racism and poverty crave. Reslient, remarkable, courageous individuals but who face the battering of war, famine, terrorism, AIDS, torture and so many other ugly social ills, day in and day out.
* In Darfur and neighbouring Chad, where I’ve just completed a 2 week Amnesty International fact-finding mission, in those 2 countries alone close to 3 million people are still afraid to return to the homes from which they were chased in the midst of a frenzy of mass rape, killings and pillage.
* In the Middle East where the vicious cycle of occupation, human rights abuses, suicide bombings and retaliation has left so much hatred, death and injury in its wake and ripped apart a heartwrenching, endless number of families. In Gaza, Tel Aviv, Iraq, south Lebanon.
* In China, where an economic boom may mean more televisions and cars for a burgeoning middle class and more contracts for foreign companies, but where political dissidents languish in jail and the crackdown on ethnic minorities in places like Tibet and Xinjiang and on spiritual groups like Falun Gong continues to claim an ever-expanding human toll.
* In Haiti – where decades of extreme, relentless poverty, devastating political violence and corruption and a legacy of international neglect and ineptitude have laid the country bear and left generations to grow up in the face of hopelessness and despair.
* And in both Canada and the United States, where we are only just now slowly waking up to a shocking and untold human rights tragedy – the decades of marginalization, discrimination and violence that have claimed the lives of untold numbers of Native women and girls.
Our world does most certainly need security. So just what is it that stands in the way of making that happen? We know the suffering, the inequity. We know the despicable chasm between the global “haves” and the global “have-nots”. What stands in the way? There are of course many answers to that question: some simple, some complex, some cultural, some political, some costly, some relatively cost-free. Some rooted in history. Some very contemporary. One very critical piece of the puzzle, though, and the theme that will run through my remarks this afternoon, is the ongoing, inexcusable failure of this world of ours to recognize that at the heart, the very heart of so many of these unforgivable wrongs – lies human rights.
There has been considerable debate and discussion about security and human rights over the past 6 ½ years: within the corridors of power at the UN and national capitals, within police and military forces, opinion leaders and media commentators, and of course the general public, everywhere: in schools, refugee camps, workplaces, at home, with friends. Much of the debate however has been putting human rights on the defensive: we are told that human rights stand in the way of achieving real security and that to be truly secure, truly safe, we may have to give up a bit on all those sacred human rights. We are told that human rights have become a problem and that those of us who are concerned about human rights have to make the case as to why human rights still matter. The assumption is somehow that security and human rights have a zero-sum relationship: add a bit on one side, have to take away on the other.
So how should we approach and understand the relationship between the two? Security. Human rights. What of the short, but ever so important word that lies in between? Security and human rights? Or human rights? Versus human rights? Over human rights? Through human rights? Rarely have conjunctions and prepositions had such significant meaning.
I want to turn the security and human rights debate upside down and approach it from the other side. Our world is absolutely not insecure because we are awash in human rights, because we’ve gone too far in protecting and upholding fundamental freedoms, because we’ve been too preoccupied with ensuring global justice. Quite the opposite. If anything, we are insecure because of the longstanding failure I’ve just described – the refusal, unwillingness and neglect, the fault of all nations and all peoples – to truly, truly commit to what the human rights vision entails. And we’re not going to become more secure by creating an even greater distance from those human rights ideals.
It is always a dangerous proposition to begin anywhere in history when looking back and charting where human rights have come from. I’ll take that dangerous step though and suggest that we go back 60+ years – to 1945. Sixty-two years ago the Charter of the United Nations was finalized. A rather significant milestone in the creation of the universal human rights order. The world was just beginning to emerge from the unspeakable global horror of WWII, was reeling with the growing understanding of the deep evil of the Holocaust and was struggling to conceive of a way to heal the hatreds that had torn the world asunder for six blood-filled years.
The answer, assembled leaders knew, did not lie in bigger armies, more divisions between peoples or blindly allowing inequities to fester. The answer, they knew, had to lie in bringing the world together, into global community. And right there, at that telling moment in history, and in the first lines of this new global body’s bold Charter: human rights: We the people of the United Nations, determined to reaffirm faith in fundamental human rights….
And those leaders came back to human rights three years later when in 1948 they wrote and proclaimed our world’s beautiful human rights testament – the UDHR, which opens with the equally powerful affirmation that: recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. This was not a naïve time in the history of humankind. It was a desperate, fearful, terribly insecure and uncertain time. But leaders had the clarity of vision to know that the solution had to be rooted in rights, in justice, in equality.
This first crucial universal human rights document was adopted at a time when the world was painfully aware of the depths of depravity to which human beings can descend, and the extent to which it is overwhelmingly civilians who are the primary victims of the violence and insecurity that results. When governments established the global human rights order they knew that they are often forced to confront horrifying events and take decisive action. They agreed however that their actions must always proceed within a binding human rights framework, which would bar them from violating fundamental rights directly and also require them to take steps to protect their citizens from human rights abuses that others might commit. In taking this step, governments were not somehow selling security short. Rather, they expressly noted that it is “disregard and contempt for human rights” that have “resulted in barbarous acts.” Security would come by embracing and committing to human rights like never before.
As the international human rights system developed, more detailed and comprehensive treaties continued to grapple with these fundamentally intertwined imperatives to protect human rights and ensure security. Some rights were therefore drafted in terms that recognize an inherent balancing which takes into account the need to safeguard national security, public order or the protection of the rights of other people, such as the freedoms of expression, peaceful assembly and association. Other rights are not open to balancing, but can be suspended temporarily if necessary “in time of public emergency which threatens the life of the nation.” This includes the protection against arbitrary arrest, or rights associated with fair trials. Finally, a number of human rights are specifically identified as being of such importance as to never be subject to restriction or derogation, such as the right to life, the protection against torture and cruel treatment, the prohibition of slavery and freedom of religion.
Despite the careful crafting of treaties, declarations and resolutions that recognize and accommodate the responsibility of governments to act to ensure the security of their citizens and the obligation of governments to intervene to protect individuals from human rights abuses at the hands of others, governments around the world have consistently used arguments about security as an excuse for violating the full range of universally protected human rights. Throughout more than four decades of investigating human rights violations around the world, and long before the events of September 11, 2001 brought the issue to the forefront of global debate, Amnesty International has highlighted this concern in countries on every continent.
Faced with widespread armed opposition or sporadic violent protests; with sweeping peaceful opposition or limited underground dissent, governments have used “security” as an excuse for mass arrests of ethnic or religious minorities, for the torture of political opponents, and for launching military action that results in huge numbers of civilian deaths. Invariably the abuses have served only to create further resentment, grievance, opposition, violence and insecurity. In the end, neither human rights nor security have been advanced.
Today’s manifestations of putting security ahead of human rights vary widely. With North American and Western European governments this includes: Guantanamo Bay, extraordinary rendition, clandestine detention, torture and ill-treatment. And other governments now follow those examples. Amnesty has documented a pattern of rendition now in and among Somalia, Kenya and Ethiopia, where dozens now languish in incommunicado detention. In Egypt, a civilian court dismisses charges against individuals accused of membership in the Muslim Brotherhood so by presidential decree the government moves to try them in front of military courts instead.
But the repercussions go much further. Governments, everywhere, have become quite adept at using the language of security and counter-terrorism to repackage and disguise what are sometimes longstanding struggles or patterns of repression. The intensified crackdown against the Uighur people in China’s western Xinjiang district. The crude use of security rhetoric by Robert Mugabe in Zimbabwe. The ravages of the so-called seguridad democratica, democratic security policies of the Uribe government in Colombia. The use of Malaysia’s Internal Security Act to go after internet bloggers who are critical of the government. In the prevailing global climate, call a new law “public order and security”, bestow a police agency with the title “anti-terrorism squad” and the likelihood of international concern, let alone opprobrium, diminishes considerably.
But whenever we give up on the notion of an unwavering, commitment to fundamental human rights – globally defined, globally applied and globally enjoyed – we cave in to terror, give up on justice and ultimately agree to a world divided, unequal and full of violence. We have to put basic universal human rights principles firmly into the centre of understanding what security truly means. It is from this perspective that I come to the heart of what I am touching on this afternoon: a consideration of Canada’s approach to security, and the degree to which human rights have prevailed, or not, in those initiatives.
As with any country this is of concern because we want to ensure that laws, policies and practices adopted in the name of security, do not cause or facilitate human rights violations. This is of vital importance in ensuring the protection of the basic rights of individuals, be they Canadian citizens or not, who may be impacted by these laws. It is also of real importance because human rights shortcomings or failings in one area can so easily begin to seep into other areas. An erosion of a commitment to human rights in the counter-terrorism area is certainly going to do no favour to ongoing struggles to bolster human rights protection more widely: be it the rights of Indigenous peoples, refugees, women, or racial minorities – all still serious human rights challenges in Canada.
But while this is about Canada, it is crucially important to remember that this is not just about Canada. There is global resonance to what Canada does well, and what Canada does poorly. Canada must set a model for other nations to follow. Canada is frequently recognized and often lauded on the world stage for its commitment to the protection of fundamental human rights, at home and abroad. We were there at the outset, helping to draft the UDHR. We’ve made important contributions in areas like peacekeeping, international justice, banning landmines, protecting child soldiers, and more. Our international record is not without blemishes. But it is undeniably commendable. It is all the more critical therefore to ensure that Canada’s laws and practices demonstrate clearly that security can and must be pursued in a manner wholly consistent with international human rights obligations.
There are seven areas of Canadian law and practice in the area of security and counter-terrorism that I am going to review through a human rights lens. First, the possibility of what I’m going to call a Canadian rendition program. Second, complicity in international renditions. Third, silence about Guantanamo Bay. Fourth, deporting individuals to torture. Fifth, complicity in torture in Afghanistan. Sixth, unfair immigration security laws. And seventh, a quick word about secrecy.
Let me begin with the concern that lies behind the words I opened with – Abdullah Almalki’s experience of torture in Syria. The issue: has there been a Canadian edition of extraordinary rendition? Four brief stories.
On September 26, 2002 Canadian citizen Maher Arar was pulled aside by an immigration officer while transiting through JFK Airport in New York City. Over the coming 12 months he was imprisoned in the United States, then briefly in Jordan and finally in Syria, the land of his birth: lost in a nightmare of lawlessness, torture and abuse. Never told of the specific allegations against him, he endured extensive interrogations in the United States and Syria, none of which were carried out in the presence of legal counsel. Never given a chance to confront his accusers, or refute the allegations, he was severely tortured in Syria and held in abysmal prison conditions without access to natural or artificial light for months on end. To bring the agonizing torture and mistreatment to an end, he confessed to anything that his Syrian captors demanded of him.
On November 12, 2001 Canadian Ahmad El Maati was arrested upon arrival at the airport in Damascus, Syria, country of his mother’s citizenship and to where he was traveling to join his new wife. He was held in incommunicado detention, his arrest never acknowledged by Syrian authorities, his whereabouts never disclosed to his family. He was subjected to brutal torture and extensive interrogation in Syria until January 25, 2002 at which point in time he was secretly transferred to Egypt, land of his father’s citizenship. He remained in detention in Egypt, where the torture continued, in fact intensified. His Egyptian jailors refused to release him, despite a number of court orders requiring his release, until he was finally freed on January 11, 2004.
On May 3, 2002 Canadian Abdullah Almalki was arrested upon arrival at the airport in Damascus, Syria. Having heard that his grandmother was ill, he was returning to Syria for the first time since his family had emigrated to Canada 15 years earlier. He remained in prison until March 10, 2004. He was tortured extensively. He was interrogated relentlessly. He was never allowed legal representation or consular assistance.
On December 11, 2003 Muayyed Nureddin, a Canadian citizen of Iraqi descent, was arrested when he sought to cross the border between Iraq and Syria, en route back to Canada after a visit with his family in northern Iraq. He was imprisoned until January 13, 2004, given no consular or legal assistance, and like the others before him was interrogated and subjected to torture.
Throughout their time in detention and then increasingly following their return to Canada, all of these men have been haunted by the very disturbing likelihood that Canadian officials – directly or indirectly, actively or passively, officially or unofficially – had a hand in what had happened to them.
The human rights concerns that arise in all of these cases are serious and wide-ranging, including the rights to be protected from torture, not to be arbitrarily arrested and detained, to have a fair trial, to be free from discrimination and not be treated unequally due to religion, ethnicity or national origin, to be held in humane prison conditions, to have consular access, and to have privacy. And having suffered serious human rights violations these men have understandably looked for justice, for there to be a remedy for what they have been through. But justice has not been easy to find. The prospect of turning to the courts of Jordan, Syria or Egypt for accountability and redress is illusory. The Canadian government takes the position that they cannot use the Canadian courts to sue those foreign governments because Canada’s State Immunity Act shields other governments from civil suits (even for harm as egregious and universally criminal as torture). And it certainly hasn’t been straightforward pursuing accountability for the role played by Canadian or US officials either.
There has been some progress. For Maher Arar it has been substantial. A 2 ½ year public inquiry into the role of Canadian officials in his case wrapped up at the end of 2006. It was a lengthy and often excruciating process for Mr. Arar. But it resulted in a powerful report. Condemnation of a wide range of Canadian police, security and diplomatic practices and actions. Vindication and exoneration for Mr. Arar. An official government apology and compensation. But, as is so unfortunately often the case with good reports from public inquiries, more than a year later the bulk of the recommendations remain unimplemented.
And there is Mr. Arar’s ongoing struggle for answers and accountability south of the border, in the United States. An apology and $10 million compensation in Canada, but the US government at present refuses to even remove Mr. Arar from its no-fly list. US government lawyers have successfully argued that he should not be allowed to bring a civil suit in US courts against government officials because of the state secrets involved in the case. The appeal of that decision was heard back in early November and a decision is pending.
And last fall, at a joint hearing of two Sub-Committees, of the House of Representatives’ Foreign Affairs and Judiciary Committees, Congressman after Congressman apologized to Mr. Arar, who was testifying by video link from Canada. That was followed by an admission from Secretary of State Rice, appearing a few days later before the House Foreign Affairs Committee that Mr. Arar’s case had not been properly handled, at least as far as the sort of contact and communication there should have been with the Canadian government. She conceded that the handling of the case had been “far from perfect”. Congressional apologies. Administration acknowledgement of shortcomings. Does this mark the beginning of an opening – for Mr. Arar; or more widely with respect to the U.S. practice of extraordinary rendition? Only time and politics will tell.
But all of that is just Mr. Arar, one of the four men. The report from the public inquiry into the Arar affair gave us a glimpse of what went so terribly wrong in one case. But what if it isn’t just about one case. What if what went wrong wasn’t an aberration but rather, part of a pattern, common practice or policy? That is why it is so crucial to understand the 3 other cases.
It took a considerable amount of pressure. There were repeated calls from Amnesty International and other concerned groups, leading newspaper editorials, various politicians, eminent Canadians, the UN Human Rights Committee and then ultimately from Justice Dennis O’Connor in the final report from the public inquiry into the Arar case. All called on the Canadian government to launch a process of independent review of the other cases. In December 2006 some 2 ½ years after the men had returned to Canada, the government did so, and appointed former SCC Justice Frank Iacobucci to head it up.
But, Commissioner Iacobucci was given Terms of Reference that require virtually all of his work, whether it involves national security secrets or not, to be held behind closed doors – excluding not only the public, but the 3 men who are at the very heart of the process. Far more restrictive than the Arar Inquiry; and excessive secrecy is not what is needed here. And so it has been. The inquiry opened in April 2007 and since that time has held only 4 days of its sessions in public, none of which involved hearing evidence from witnesses. Secrecy doesn’t afford justice to these three men and it certainly does not help build public confidence. As such, whether this inquiry will help clarify the important questions that are stake or simply further shroud the truth very much remains an open question.
What is at play in these cases? Is it just some inexplicable twist of fate that four Canadians, of varying degrees of interest in Canadian national security investigations, found themselves in Syrian jail cells? Sadly, it is virtually certain that this goes far beyond mere fate and coincidence. We have to consider that we have possibly been dealing with what we might call: extraordinary rendition, the Canadian edition.
Not as dramatic perhaps as the US model of extraordinary rendition that captures the headlines and now the stuff of Hollywood movies. But some commonality, perhaps. Individuals against whom allegations of some sort of involvement in, support for or knowledge of terrorist activities have been made, being arrested, detained or simply abducted. Dealt with outside existing legal frameworks, denied due process and other essential human rights protections. They ultimately end up being furtively sent to or picked up in countries with abysmal human rights records, where they are subjected to extensive interrogation frequently marked by torture and cruel treatment. The inevitable conclusion in such cases is that officials in one country may have turned to other regimes to commit torture on their behalf. The range of countries involved – both those from which individuals have been bundled off and those to which they have been bundled away is becoming dizzying: Syria, Egypt, Sweden, Gambia, Bosnia, Italy, Jordan, Morocco, Yemen, the United States, Canada and more.
Maher Arar’s case is of course a very clear example of the U.S. model of extraordinary rendition. Stopped by U.S. officials while transiting through New York’s John F. Kennedy Airport on his way home to Canada. Rather than allow him to return to Canada or even deport him back to Canada, after nearly two weeks of detention in the United States, he was taken out of his prison cell in the middle of the night and flown halfway around the world on a private jet, leading to one year of detention without charge or trial in Syria, where he was subjected to extensive interrogations, severe torture and inhumane prison conditions.
But, taken together these four cases raise yet-unanswered questions as to whether Canadian law enforcement and security agencies may have conducted their own version of extraordinary renditions, rendition-lite if you will. No dramatic flights on CIA spy planes in the middle of the night. This is Canada after all, we’re much more modest than that. In all four of these cases there are allegations of contact between Canadian officials and Syrian and Egyptian authorities before and/or during the detention. The allegations raise the prospect that Canadian officials may have provided information that directly led to their arrests and may have even done so with the expectation that it would result in their arrests. It also appears that information provided by Canadian sources likely served as the basis for the interrogation sessions in Syria and Egypt during which these individuals were subjected to torture. There are further concerns that information coming out of these interrogations was then transferred back to Canada, with further information or follow-up in turn again coming from Canada. The information obtained in these torture sessions may have been also used by Canadian officials in the course of ongoing investigations of these four men and of other individuals.
All of this leads to the worrying possibility that Canadian officials may have intentionally or with wilful blindness turned to Syrian and Egyptian security agencies to take action in these cases rather than doing so within Canada’s own legal framework, despite the well-documented practice of torture and arbitrary detention in similar cases in both countries. Extraordinary rendition, the Canadian edition – no spy planes and abductions in the middle of the night; but some well-timed phone calls, active information sharing – all to the same end: no accountability, no rule of law, just very serious human rights violations.
The second concern I would like to touch on is related to the first. Central to the US model of extraordinary rendition has been a network of secret CIA operated planes, which ferry suspects around the world, to detention centres where torture is an inevitability. Over the past few years more attention has been paid to the flights themselves and critical questions about the knowledge other governments have of these planes and the support they have offered by way of landing and refueling permission.
In Europe, combined with the allegations of secret detention centres in central or eastern Europe, the concerns mounted rapidly as details came out about hundreds of landings in numerous European countries. Knowingly, willfully blind or unwittingly – were European governments complicit in extraordinary rendition by virtue of having helped the flights along the way? But In Europe concern has led to action – powerful reports coming out of the Council of Europe investigation led by Swiss Senator Dick Marty, the hearings conducted by the European Parliament. A number of national level investigations and reviews as well.
But what about Canada? During the latter half of 2005 reports started to emerge that there had been landings of these planes at a range of Canadian airstrips – in at least 2 Canadian provinces, as well as in Canada’s northern reaches. At first the number was a handful, then grew to 55, now there is talk of 74. As in Europe the government has been asked to explain, investigate and respond. But the response has been tepid at best. There has been internal review of some description. The review has determined that normal operating procedures were met with respect to the flights in questions – leaving the impression that the review has merely checked to ensure that flights logs had been properly filed and that safety checks were in order. We and others have asked whether the government investigated to determine whether any of these flights may have been involved in activities that breach international human rights legal obligations? But we are told that the details of how the review was conducted and the criteria involved will not be publicly disclosed. A secret? Whether Canada seeks to adhere to international legal standards?
The third concern, staying with the issue of rendition and secret detention centres, is Guantanamo Bay, which is in some ways the crown jewel in that whole murky international network of lawlessness. I don’t intend to go into the details of what is wrong with Guantanamo Bay. The record, for over 6 years now, speaks for itself.
But what is the Canadian connection here? First and foremost there is a Canadian being held in Guantanamo Bay. Omar Khadr was fifteen years old when he was apprehended in 2002 following a firefight in Afghanistan. He stands accused of throwing a grenade that killed a US soldier. He was held in Afghanistan for a few months and then transferred to Guantanamo Bay, where he has been held for over 5 years now. During that time he has been allowed very little consular assistance, limited access to lawyers, has not been treated according to international legal standards governing juvenile prisoners or child soldiers, and is now one of the few who will face the flawed military commission proceedings. And what of Canada? Strong protestations – akin for instance to the clear objections we heard from virtually any other government who has nationals held at Guantanamo, many of whom were subsequently released? Not at all.
What we hear is silence. Instead what we know is that Canadian security officers went into Guantanamo and interviewed him – not to provide consular help, but rather to gather security information. It took a Canadian federal court order to put an end to that. And then last week, a powerful unanimous decision from the Supreme Court of Canada has ordered the Canadian government to turn over to Khadr’s legal team all materials gleaned from those interviews; at least all materials that are not subject to national security confidentiality. The basis for that conclusion, the court ruled, was that the legal regime under which Omar Khadr was held at the time of those interviews was clearly violative of international legal standards. As evidence the Supreme Court of Canada looks no further than the US Supreme Court’s rulings in Rasul, in 2004 and Hamdan, in 2006. Nine judges of the Supreme Court of Canada are willing to state the obvious when it comes to Guantánamo Bay. But neither the current, nor previous Canadian government has that same courage or sense of principle.
Omar Khadr’s military commission began, was adjourned, then overturned and has now been reinstated on appeal. As various preliminary motions and challenges conclude, the likelihood of his proceedings officially beginning draws nearer. All at the same time as recent explosive evidentiary revelations which cast a whole new light on the events at the heart of the case, raising serious questions if not doubts about the evidence that has been marshaled against Khadr.
And all the while the international voices protesting Guantanamo mount – virtually every European nation has spoken out, as have numerous other governments around the world, the past and current UN Secretaries General have spoken out, as have numbers of UN human rights. But still Canada’s public utterances remain shamefully mute – be it with respect to Omar Khadr in particular or Guantanamo in general.
Let me move on to a fourth, very serious issue – deportation to torture. International law is crystal clear: not only is torture absolutely and unequivocally prohibited, it is equally absolutely forbidden to send someone to a country where they are likely to face torture. Challenges to the fundamentally important ban on torture, have of course become one of the most contentious aspects of the security and human rights debate. A little bit of torture, we are told, might actually help enhance security. Proponents have included such notables as Harvard Professor Alan Dershowitz, who has proposed the idea of court-ordered torture warrants.
Loosening the prohibition on torture is very worrying for at least three reasons. First, practicality. The proposition that torture works is, quite simply, fallacious. Individuals will finger anyone, confess to anything, to bring torture to an end. Good information and intelligence that is likely to bolster security doesn’t come through the crude brutality of a torture chamber. Second, the slippery slope. Once you allow some torture it quite simply never ends. If the suspected terrorist can be tortured, what about someone who knows where he is hiding? His brother? Someone who shares his political views? Goes to the same mosque? Someone who goes to the same mosque as the brother of someone who knows where he’s hiding? The reality is that once you allow torture it knows no end. Lines do not get drawn and the ugly tentacles of torture reach out and claim more and more victims.
But third, it is the principled position to take. Torture is absolutely banned, quite simply because it must be. Because torture, by its very nature, destroys the basic sense of physical and mental integrity that lies at the heart of human dignity, at the foundation of the very notion of fundamental human rights. This must hold even when societies are faced with threats such as terrorism. To respond to terrorism with the terror of torture does not take us to a better, more secure world. It simply fuels the horrifying cycles of violence and revenge which spark acts of terrorism and even lead to wars. We remain trapped in a world which meets violence with violence. A world which creates more victims, more resentment, more fear.
Canadian law and practice however continues to maintain and accept that it is permissible to deport individuals, who are alleged to pose a threat to national security, to countries where they are likely to be tortured. The Supreme Court of Canada upheld that position in the 2002 Suresh case, dealing with an individual who was alleged to be a fundraiser for Sri Lanka’s Tamil Tigers. The Court did eloquently recognize that international law is clear – no deportations, of anyone, to torture – but in applying that international norm domestically, through the lens of the Canadian Charter of Rights, kept open an unspecified window of “extraordinary circumstances” that might justify sending someone off to face torture.
Canada and a growing number of other countries also try to get around on the inconvenience of the ban on deporting to torture by seeking promises from the governments concerned that they won’t torture. We know that US authorities apparently asked Syria for such assurances before sending Maher Arar off on his nightmare. European governments do this all the time. The logic goes something like this. Torture is illegal. It is banned in international law, banned in our own constitution. We constantly deny that it happens in our prisons. However, we promise not to do what we say we don’t do anyway and which we are already legally bound not to do – and this time you can believe us. Would you put confidence in that promise?
Torture is not the answer to insecurity. Canadian law and practice needs to confirm that torture and deportation to torture are always banned. The UN has repeatedly called on Canada to do so: the UN Committee against Torture in 2000 and again in 2005, the UN Human Rights Committee in 1999 and 2005. But Canada has not yet acted on these recommendations. Deporting someone facing allegations of support for terrorism to the waiting arms of a torturer does not further justice. The answer must instead lie in justice and accountability: arrests, charges, fair criminal proceedings.
The fifth issue, again involving concerns about torture, arises on the battlefield in Afghanistan. Canadian forces have had an active presence in Afghanistan since the early months of the military operation there in 2002. Over the past 3 years our presence has been renewed and become quite substantial, with some 2500 Canadian troops in the country. Throughout Canada’s involvement in Afghanistan there has been the thorny issue of what to do with prisoners captured during military operations. Early on Canadian officials decided they would not develop any capacity to keep prisoners in custody, and would instead hand detainees over to US troops. This became more and more problematic though as reports emerged about US detention practices, in Afghanistan, including clear indications that prisoners apprehended in Afghanistan were ending up in Guantanamo Bay. Those concerns continue. Today there are still some 600 individuals held without charge, without access to any fair legal process at the US base at Bagram in Afghanistan.
Canada kept handing over, even after there were indications that some of those transferred by Canadian forces had in fact ended up in Guantanamo Bay. No assurances sought or obtained that the death penalty would not be imposed, no guarantees of independent monitoring of torture concerns, no promises that legal process and access to lawyers would prevail. Canadian officials knew this was a problem, but years went on and still nothing was done to develop our own capacity to detain prisoners.
Then, in December 2005, a new approach. No more transfers into US custody. Prisoners would now be handed over to Afghan officials and transferred into Afghan prisons. That despite the fact that torture is brutal and widespread in Afghan jails – so says the US State Department, the UN High Commissioner for Human Rights, Amnesty International, Human Rights Watch, the Afghan Independent Human Rights Commission, even Canada’s own very secretive international Foreign Affairs human right assessments. Torture in detention in Afghanistan is rampant. But we are told that written promises from Afghan officials that the transferred prisoners won’t be tortured, coupled with plans to send monitors into prisons with some regularity to check up on prisoners makes it all okay and should keep these prisoners safe from torture. But it is not okay. This is just like the deportation concerns I highlighted earlier. Non-binding promises not to do something that you have already legally promised not to do are not particularly reliable. And monitors may be able to uncover some torture after it has occurred, but will be powerless to head it off before it occurs, given its secretive, insidious and often brutally quick nature.
We have repeatedly pressed for a new approach. We have suggested that one possibility would be for a joint NATO/Afghan detention system – which would, yes, make sure that battlefield prisoners are protected from torture but would also, more widely, serve as a valuable venue for training and capacity building and thus make a sorely needed contribution to reform of Afghanistan’s penal system. No interest in that however. Instead, transfers continue and we have found ourselves in the very unusual position of turning to the courts to stop this practice. Our lawsuit seeking a court order that prisoner transfers in Afghanistan cease was launched in February 2007. But just 2 months ago a Federal Court judge, who had in earlier procedural rulings highlighted a litany of concerns with respect to Canada’s approach to handling prisoners in Afghanistan, dismissed our application, ruling that the Canadian Charter of Rights does not in any way govern the actions of Canadian soldiers outside Canada. They are subject to international law and they are subject to Afghan law. But Canadian soldiers, deployed pursuant to a decision of the Canadian parliament, operating under a variety of Canadian laws and regulations, paid by Canadian taxpayers, do not have to obey the Charter once they leave Canada. We are, obviously, appealing. And the recent strong decision from the Supreme Court of Canada in Omar Khadr’s case certainly bolsters our appeal, as the Court was very clear in concluding that the Charter does apply to situations outside of Canada in which Canadian officials are somehow implicated in activities that violate Canada’s international legal obligations.
The sixth area of concern is the Canadian immigration security certificate process. Security certificates are used to detain and deport non-citizens – be they permanent residents, refugees, refugee claimants or others – whom government officials believe pose a threat to national security in Canada. They have a very limited opportunity to challenge both the detention and the decision to issue a security certificate. But they are not allowed to see the bulk of the evidence, are not permitted to cross-examine key witnesses, and they and their legal counsel are excluded from the court-room during decisive portions of the proceedings. Hardly a meaningful opportunity to defend. And at that, the reviewing judge need not satisfy him or herself that the immigration decision is beyond a reasonable doubt correct, nor even that it is correct on a balance of probabilities – only that the decision was a reasonable one.
All this in cases, 5 of which are active in Canada at the moment, where the individuals involved ultimately face deportation to countries where they will almost certainly be tortured. International human rights bodies have urged Canada to amend the process to bring it into line with international fair trial standards. The UN Human Rights Committee and the UN Working Group on Arbitrary Detention both pressed Canada on this in 2005. Finally in February 2007 in a landmark Supreme Court of Canada ruling, the system was struck down as unfair and the government was given a year to revamp the process. Well a year later we have that new system. It hasn’t changed very much. A Special Advocate has been introduced into the process, an individual who would be empowered to look out for the rights and interests of the person subject to the security certificate. The downfall, and a significant one, is that once the Special Advocate has been allowed into the process and seen the evidentiary record against the individual he or she must curtail all contact with the individual. Not clear that this takes us really any further than before. Looks like the issue will be heading back to the courts.
And that leads into the final point I wanted to highlight. Secrecy; which is an issue, a challenge that arises with respect to many of these issues. The excessive secrecy of the inquiry into the cases of the 3 other Canadians detained in Syria. The secrecy that masks the identity of prisoners picked up by Canadian troops in Afghanistan. The secrecy that has long been the hallmark of the immigration security certificate system.
It is hard work protecting human rights in the face of secrecy. It is difficult to feel confident that the rule of law and due process are being upheld in the face of secrecy. One of the very significant concerns about how secrecy plays out is that is not limited to serious security considerations, the sorts of highly sensitive revelations that would for example compromise the identify of confidential sources or make public information that could be used to advantage by terrorists or other criminal elements. Secrecy does cover national security. It does cover national defence. But is also extends to information that, if revealed, might be “injurious to international relations”. International human rights law certainly does not recognize “international relations” as a ground for restricting fair trials. An individual’s right to due process cannot be violated because of concerns that some other government might be embarrassed or a diplomatic relationship strained or even ruptured.
This is not just theoretical. Occasionally we get a glimpse of how these restrictions are applied. In the context of the Public Inquiry into Maher Arar’s case, for example, there were times when we saw documents which the government released at different times and which had been differently redacted. One example: one key document, a government memo describing the first visit that Maher Arar had with a Canadian embassy representative during his time in prison in Syria, blacks out the words: “his answers were dictated to him in Arabic by the guards” – key evidence that corroborates Maher’s own description of what had happened. But – at an early stage in the hearing at least – someone with the power to decide what gets disclosed and what does not felt this might embarrass the Syrians, thus damage international relations and therefore had to be held back. Due process cannot be held hostage to those sorts of vagaries and absurdities. Secrecy laws and practices very much need to be reformed.
Extraordinary rendition, deporting to torture, flawed immigration security procedures, failure to look into the possible illegality of CIA planes, battlefield transfers of prisoners in Afghanistan, seemingly equivocal positions with respect to Guantanamo Bay and overly restrictive approaches to secrecy in court proceedings. All examples of ways in which Canadian law and practice has failed to ensure scrupulous regard for important international human rights obligations. Shortcomings which, in many instances, have been drawn to Canada’s attention – sometimes repeatedly – by expert UN level human rights bodies.
Does this mean that Canada joins the ranks of the world’s worst when it comes to human rights? Clearly not. But that’s not the point. As I said at the outset, it is crucial that Canada go the extra mile when it comes to protecting human rights in a counter-terrorism context because: (1) the victims deserve it; (2) failure to do so risks wider erosion of Canada’s human rights record; and (3) the world so very much needs Canada’s leadership on this front.
So what is needed? Let me very briefly suggest four areas, broadly framed, that should become Canada’s focus.
First, obviously, the shortcomings in the various issues I have described need to be addressed. Along the way I outlined some of the remedial steps that are needed. We must get to the bottom of the extraordinary rendition cases and that means that the current inquiry being conducted by Commissioner Frank Iacobucci must open up to a great degree of public access. Amendments to Canadian law to absolutely prohibit deportation to torture and to reform the immigration security certificate process. A real investigation into CIA plane landings in Canada. Concrete steps to ensure that prisoners taken into Canadian custody in Afghanistan can be and are treated in accordance with international law. A demand that Omar Khadr be repatriated to face justice in Canada. Amendments to rein in the wide-sweeping net of Canada’s secrecy laws.
Second, beyond these specific concerns – it would be splendid to see and hear an articulation of a Canadian security agenda truly grounded in a human rights framework. We need vision. Not bland acceptance of the “new normal” of inevitable restrictions that come with post September 11th insecurity. What is needed is a clearly stated and coherent policy that refuses to adopt or implement any counter-terrorism initiative that fails to conform to international human rights requirements. That ambitiously seeks to model for the world the human rights path to security. And which is backed up by meaningful oversight and review mechanisms with the mandates, independence and resources to make sure that human rights truly are not sold short in the name of security.
Third, Canada’s voice needs to be heard on the world stage. Robustly and consistently. Bilaterally and multilaterally. A voice that always speaks for human rights when security issues are on the table. That says to a government such as the United States that Guantanamo Bay must be closed, or to China that the crackdown against the Uighur people must come to an end. A voice that presses human rights when security related treaties, resolutions or other initiatives are being debated within intergovernmental bodies, or when decisions are being made about the nature of multinational military interventions, in countries such as Afghanistan.
And lastly, of course we need to see Canada deepen its overall commitment to human rights beyond the security front, to press the world community to remedy the long, painful decades of global human rights neglect that are at the heart of the widespread insecurity experienced on a daily basis by the overwhelming majority of citizens of this planet. Here’s a handful of suggestions:
Let me end by coming back to the theme - the challenge of safeguarding human rights in the era of fighting terror. Human rights have faced a double assault over the past 6 years. Clearly, the cold, cruel logic of terrorism is a vicious and very public attack on basic rights. But so too, the sweeping logic of counter-terrorism challenges rights in what can be a more insidious, invisible fashion. The answer has to lie in rejecting assumptions that human rights must be sacrificed in the name of security - and embracing instead the simple truth that the two are wholly and inescapably compatible. Security that is not grounded in human rights will always be precarious, and human rights will remain tenuous if security is not assured. Canada can lead the way. That I know to be true.