RSS FeedInternational Law Conference Tackles Tough Contemporary Issues
By Daisy McCabe-Lokos of Windsor Law.
The Canadian Council on International Law held their 37th annual conference last weekend in Ottawa. The conference ran three days and showcased a range of panels discussing a variety of issues.
I was surprised to see that a significant portion of the attendees were students from law schools across Canada. This being my first chance to attend I am unsure whether this student turnout was unprecedented, however it seemed to indicate to me the increasing relevance of international legal issues in young law students’ educational experiences.
The conference not only gave us a chance to get a sense of the professional opportunities that exist in the international sphere, but it also gave us a snapshot of the developing fields of contemporary international law.
The panel that I found most enlightening was entitled “Law Applicable to Overseas Government Operations”.
It was chaired by John Currie - Associate Professor, Faculty of Law, University of Ottawa, and attended by Paul Champ - Raven, Cameron, Ballantyne and Yazbeck LLP; Oonagh Fitzgerald - Senior General Counsel, Department of National Defense/Canadian Forces Legal Advisor; Joanna Harrington - Associate Professor, Faculty of Law, University of Alberta; Major General Lewis Mackenzie (retired); and Christopher Waters - Assistant Professor, Faculty of Law, University of Windsor.
The panel discussed the applicability of law – national and international – to international government operations. Much of the focus was on the debatable “hierarchy” of law present during overseas military operations.
The panel touched on questions such as – do and should Canadian Charter values and obligations follow our armed forces on international operations? Should the Canadian military be more susceptible to civilian oversight?
Professor Waters explored the courts’ deference to the military regarding issues of possible misconduct. He discussed the reluctance of Canadian, American and British courts to rule on the actions of their militaries that might be seen as conflicting with Charter values or other obligations to respect international human rights.
Paul Champ gave us a practical example how some of these issues play out by discussing the Afghan detainee case. This case deals with individual’s allegations of torture after being transferred (in Afghanistan) from the custody of Canadian military officials to the custody of Afghan military officials - where the alleged torture occurred. The complications of legal jurisdiction and civilian oversight of military operations are evident under these circumstances.
Major General Lewis Mackenzie provided a completely refreshing albeit troubling perspective.
Having been involved in numerous peace keeping and military operations with the Canadian Military, General Mackenzie was able to enlighten us civilians on exactly how the international legal initiatives sometimes pan out on the ground.
He clearly articulated his frustration with the sometimes impractical and unreadable legal mandates provided by the United Nations during peacekeeping operations. He expressed his concern about the bureaucratic and sluggish nature of legal process and its negative impact on the progress of UN missions and the ultimate safety of non-combatant civilians.
Overall the panel was balanced and informative. There were contrasting viewpoints and a variation of experience among speakers. Many of the other panels held by the CCIL were similarly enjoyable and did not disappoint.
Follow-up: Reply Letter from Foreign Affairs Minister regarding Omar Khadr
On July 15, I posted a letter that I had written to Prime Minister Stephen Harper regarding Omar Khadr’s continued detention at Guantanamo Bay, Cuba.
The letter was signed by myself and 10 other law students.
On September 16, 2008, I received a reply letter from the Prime Minister’s Office indicating that the letter would be passed along to the Minister of Foreign Affairs who would “certainly be interested in [our] views” regarding Omar Khadr.
I looked upon that letter as a Prime Ministerial brush off. I thought it would be the end of the matter.
To the government’s credit, I today received a follow-up letter from The Honorable David Emerson, Minister of Foreign Affairs.
The entire text of the letter is reproduced below:
September 24, 2008.
Dear Mr. Gridin and Co-signatories:
The office of the Right Honourable Stephen Harper, Prime Minister, has forwarded to me on September 16, 2008, a copy of your letter (Folder: 664583) concerning the case of Mr. Omar Khadr, Canadian citizen detained at the U.S. military prison at Guantanamo Bay, Cuba.
I understand your concerns and I can assure you that the Government of Canada has an interest in Mr. Khadr’s case and in his treatment. Canadian observers have been present at his hearings before the Military Commission in Guantanamo Bay and the Court of Military Commission Review in Washington D.C. Furthermore, officials of Foreign Affairs and International Trade Canada have carried out several visits with Mr. Khadr and will continue to do so. The visits allow access to Mr. Khadr to assess his welfare and treatment, and to obtain information about his mental and physical condition.
Although Mr. Khadr is no longer a juvenile, he was 15 years old when he was alleged to have committed crimes in Afhanistan. Canada has sought to ensure that the treatment of Mr. Khadr is consistent with internationally recognized norms and standards for the treatment of juvenile offenders, and that his age at the time the alleged events occurred is considered in all parts of the process. Canada has also consistently sought to ensure that Mr. Khadr receives the benefits of due process, including access to Canadian counsel of his choice. The Canadian government has received unequivocal assurances from U.S. authorities that Mr. Khadr will not be subject to the death penalty, and indeed the charges against him were referred to the Military Commission on a non-capital basis.
In keeping with Canada’s long-standing policy, the Canadian government strongly believes that the fight against terrorism must be carried out in compliance with international law, including established standards of human rights and due process.
With respect to Mr. Khard’s repatriation to Canada, it is premature to discuss this issue since his case is still before the courts.
Thank you for taking the time to write and share your concerns.
Sincerely,
[sgd]
The Honourable David L. Emerson, P.C., M.P.
While I do appreciate the reply from Mr. Emerson, I do not accept that the government is doing enough.
Omar Khadr has been in detention for 6 years. The “several visits” during this period to check up on his well being are virtually meaningless. He has been the victim of serious psychological and possibly physical abuse at the hands of his captors.
The extreme isolation of growing up inside a military prison is unimaginable. Omar Khadr’s development from a child to an adult has been stifled, and at this point, it is unlikely that he will ever be a normal, adjusted individual.
The assurances of due process are also hollow. Omar Khadr is being tried by a kangaroo court, in proceedings that have been the subject of problems and numerous complaints. Most recently, a military prosecutor at the Guantanamo Bay tribunals resigned over “ethical qualms.”
Lt. Col. Darrel Vandeveld quit, allegedly after the government withheld exculpatory evidence from the defence.
The U.S. government denies this allegation. But internal documents obtained by the Associated Press indicate that Col Vandeveld declared to the tribunal that that “potentially exculpatory evidence has not been provided.”
He is the fourth prosecutor to quit.
In the Khadr case specifically, there have been claims that the government “manufactured evidence” against the accused.
The culture of secrecy and political implications of this case are reasons why ultimately, the military tribunal is not the appropriate forum to hear Omar Khadr’s case. Mr. Khadr needs to be repatriated to Canada immediately to face trial at home. This should be a trial subject to Canadian legal protocols and consistent with the values that we hold dear, including those enshrined in the Charter of Rights and Freedoms.
Law students across the country are organizing to put further pressure on the government on this issue. Stay tuned for more.
Review: Taxi to the Dark Side
This past week, I had the opportunity to check out the Oscar-winning detainee torture documentary Taxi to the Dark Side.
The film was written and directed by Alex Gibney, of Enron: The Smartest Guys in the Room and Who Killed the Electric Car? fame.
Taxi’s title refers to a young Afghan cab driver named Dilawar, whose plight was made public several years ago in a series of articles written by Tim Golden for the New York Times.
Shortly after picking up a fare in the eastern province of Khost, Dilawar was stopped by Afghan militiamen at a checkpoint. He and the three men he was chauffeuring were accused of being responsible for rocket attacks on an American army base in the region.
With nothing more than the word of the militiamen as evidence against them, the four were handed over to the American forces at Bagram detention center.
The men were questioned by poorly-trained interrogators that were given deliberately vague guidelines as to the kinds of techniques that they were allowed to employ.
Dilawar was handcuffed and chained to the ceiling of his small cell in a standing position, so that he could not fall asleep. The sleep deprivation was aimed at making him more pliable during interrogation.
The guards at Bagram believed they were explicitly authorized to use force to control detainees. It was thought that they were not allowed to strike the prisoners above the waist, but they were allowed to deliver strikes to pressure points in the legs in order to facilitate compliance. Guards were not impressed with Dilawar’s cries and pleas for help. They would take turns kneeing him in the thigh until they grew tired.
“He screamed out, ‘Allah! Allah! Allah!’ and my first reaction was that he was crying out to his god,” Specialist Jones said to investigators. “Everybody heard him cry out and thought it was funny.”
Other Third Platoon M.P.’s later came by the detention center and stopped at the isolation cells to see for themselves, Specialist Jones said.
It became a kind of running joke, and people kept showing up to give this detainee a common peroneal strike just to hear him scream out ‘Allah,’ ” he said. “It went on over a 24-hour period, and I would think that it was over 100 strikes.”
(Source: New York Times)
After five days of torture, Dilawar died. He was killed by heart failure due to “blunt force injuries to the lower extremities.” The army pathologist who examined him ruled his death a homicide.
the tissue in the young man’s legs “had basically been pulpified.”
“I’ve seen similar injuries in an individual run over by a bus,” added Lt. Col. Elizabeth Rouse, the coroner, and a major at that time.
(Source: New York Times)
When public scrutiny finally fell on the case several years after Dilawar’s death, the military was forced to lay charges. The toughest sentence imposed for the torture and murder of Dilawar was 5 months. Two of the soldiers responsible received sentences of two and three months, respectively. None of the other guards who were convicted in the Dilawar case received any jail time at all. Furthermore, to my knowledge, none of the officers giving the orders, let alone the administration officials who drafted the policies permitting detainee abuse, were ever prosecuted.
Since detainees were denied the fundamental right of habeas corpus, they had no way to challenge their detention. It was later discovered that the Afghan militia leader who turned the four men over to U.S. authorities had himself been launching rockets at the American base. He had been arresting and turning in innocent Afghan civilians to curry favour with the Americans.
Even more frightening, it was later discovered that Dilawar’s captors believed he was innocent from the start:
“Most of the interrogators had believed Mr. Dilawar was an innocent man who simply drove his taxi past the American base at the wrong time.”
(Source: New York Times)
The three occupants of Dilawar’s car were eventually released; it was of course too late for Dilawar.
He was one of the first prisoners to die in U.S. custody since the beginning of the War on Terror. He would not be the last.
While the taxi driver’s tragic tale sets the stage for the film, it is not the central focus. Dilawar becomes the anchor of a story that takes us all around the world from Bagram detention center in Afghanistan, to Abu Ghraib prison in Iraq, to Guantanamo Bay in Cuba, and finally all the way up the chain to the Oval Office in Washington.
Taxi to the Dark Side persuasively argues that the atrocities at Abu Ghraib and elsewhere were not the product of a “few bad apples.” Rather, the policies and attitudes that led to detainee abuse were implicitly and sometimes explicitly authorized at the highest levels of the Bush administration.
While the story has certainly been told before, Gibney has a talent for piecing it together succinctly and logically. That, coupled with the fact that the director managed to actually score interviews with Dilawar’s interrogators and abusers, makes this documentary an absolute standout.
I would highly recommend this film to anyone interested in the subjects of criminal law, the “war on terror,” war crimes and atrocities, and international law. While I think that any lay person with even cursory interest in the above subjects would find it disturbing, thought-provoking, and fascinating, the law student will appreciate it on a deeper level.
Trailer
Podcast Feeds
Awards
Partners
UofT- The Court
- UofC
- UofA
- sLaw
- LexMonitor
- blawg
- An error has occurred; the feed is probably down. Try again later.
- Blawg Review
- Progressive Bloggers