RSS FeedAre there inalienable rights in Canada?
We in Canada like to think of ourselves as free. We also like to think we have rights. The police can’t throw us in jail for our political views. And if they do throw us in jail for any reason, the police must let us call a lawyer. A part of Canada’s constitution, the Canadian Charter of Rights and Freedoms guarantees our rights and freedoms. But the constitutional rights and freedoms such as freedom of expression, a right against arbitrary detention or imprisonment, and even our right to life, liberty and security, are not absolute. The Charter leaves loopholes for the federal Parliament, provincial legislatures, or even judges to limit or take away any rights or freedoms. There are no inalienable rights in Canada.
A legal right is a claim to a benefit. The law sets legal rights, and the courts will enforce them if no one else will. When you sign a contract to lease an apartment in exchange for rent, your tenant has a right to use the apartment, and you have a right to some of the tenant’s money. Your right is always someone else’s duty, which is either to give up the benefit you claim or to let you claim the benefit freely. You can also have rights against the government. For example, habeas corpus is a right to see a judge if the police arrest you. Freedoms are like rights but they are more about enjoying benefits you already have, such as speech or movement. Still, the flip side of every freedom is someone’s duty to respect it. For example, if you have a freedom of religion, the government may not ban your faith.
But rights and freedoms in our relations with the government are tricky because the government is a sovereign. It means that within its geographic borders the government writes the law. What good is a right if the government can scrap it? That’s where a constitution comes into play. It’s a superlaw that tells the government what laws it can and cannot write. And it’s very difficult for the government to change the constitution. The Canadian Charter is the part of our constitution that orders the government to respect certain human rights. If a provincial or the federal legislature passes a law infringing on our Charter right, the courts can strike that law from the books. It will have no force and effect. That way the Charter protects us from the government.
Even democracies need this protection to stop majorities from oppressing minorities. For example, our legal tradition has very good reasons for protecting some rights of the criminally accused. Only a minority of the total population will ever need these rights. Whether justified or baseless, a fear of crime can bring a party that wants to do away with these rights to power. In theory, our Charter will always stop the Parliament from touching the rights of the criminally accused. Before the Charter, the Parliament could throw out the presumption of innocence or the law against self-incrimination. A constitution can also protect racial, gender, or other minorities from discrimination. We can be sure of our human rights only when they are safe from the majority and the government it elects.
The Charter promises us this safety, but it doesn’t really deliver. There are several loopholes in the Charter that let the federal parliament, provincial legislatures, or the courts take away rights. First, the notwithstanding clause in s. 33 empowers legislatures to suspend fundamental freedoms (s. 2) and legal (ss. 7-14) and equality (s. 15) rights. Perhaps for fear of the ballot box, legislatures tried it for real only very few times. But if the government can suspend the rights, they are not inalienable.
Second, the most obvious limitation on all rights and freedoms in the Charter is in s. 1. It basically says that sometimes the Charter will not protect our rights. Suppose the Parliament passes a law that bans newspapers in a certain language. If the government can justify this law as reasonable “in a free and democratic society,” it can get away with it under s. 1. Who decides what’s reasonable and what’s free and democratic? Ultimately, it’s the nine people on the Supreme Court of Canada. Sometimes a s. 1 justification is a very hard task, but a right or freedom is guaranteed only if it’s legally certain, not if it’s probable or very likely. So the government can strip anyone of any Charter right with the consent of the Supreme Court.
Third, the courts decide what each right and freedom in Canada actually means. For example, s. 7 allows the government to deprive anyone of “the right to life, liberty, and security of the person” only in accordance with “the principles of fundamental justice.” The Supreme Court decides what these principles are. Next, the Charter often defines rights using the principle of “reasonableness,” which is really a code word for letting the courts fill in the details. See, for example, the right against “unreasonable search” (s. 8), the right to be tried within a “reasonable time” (s. 11(b)), etc. When the police breach our Charter rights to obtain evidence against us in a criminal investigation, we have a right to have it excluded from our trial—but only if “the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)). Again, the courts decide what that means by applying factors laid down by the Supreme Court.
Finally, if the government breaches your Charter rights, the courts decide what compensation you get if any. It is little comfort to you and little deterrent to the government if the courts merely declare government action unconstitutional. Denied or insufficient remedies gut Charter rights and freedoms. As the recent case of Omar Khadr has shown, the Supreme Court can deny a meaningful remedy even for breaches of the most basic rights such as a right to fundamental justice in s. 7. Most Canadians don’t seem to like Omar Khadr or his family, so the majority is clearly not on his side. The Supreme Court didn’t say that it let the government off the legal hook because of the views of the majority of Canadians. But these views possibly encouraged the government when it violated Khadr’s Charter rights or denied him the requested remedy. What is the value of rights that depend on politics?
One can argue that these cases are extreme and that limits on our Charter rights are fine because we trust our government. After all we elect it. But consider this. First, majorities elect the government, and how certain are you what the majority will be like 20 years from now? Are you going to be in that majority? Do you want to entrust your most basic human rights to a majority? Second, even election rights in the Charter are not inalienable. Mix a national emergency with the right people on the Supreme Court (appointed by the Prime Minister; no Parliament’s consent required), and the words “reasonable,” “free,” and “democratic” in section 1 of the Canadian Charter can have a very different meaning.
The word “inalienable” expresses the idea of rights that the law can never let anyone take. An inalienable right is yours by the fact of your membership in the human species. No government or person gave you this right, so they can never take it away. It is yours by birth. It recognizes your inherent value as a human being regardless of who you are, what you did, or what you think. Very few rights can be inalienable but those that can are truly fundamental: a right to a fair trial, freedom of speech, habeas corpus. The US Declaration of Independence speaks of “Life, Liberty, and the pursuit of Happiness” as inalienable rights. The Universal Declaration of Human Rights recognizes “the inherent dignity and of the equal and inalienable rights of all members of the human family.”
Our Charter does not have the word “inalienable,” neither in letter nor in spirit. It uses other words. But social conditions change, and what’s not “reasonable,” “free,” or “democratic” today can become such in the future. There is a fully legal path to breaches of any rights in Canada. It doesn’t necessarily mean it’s possible politically, socially, or economically, but legally our rights are uncertain. A constitution that fails to protect minorities from the majority’s changing moods does not guarantee rights. The loopholes in the Charter show that we have rights and freedoms only as long as the government and the Supreme Court let us. Rights and freedoms in Canada do not inherently belong to us as human beings but are revocable gifts from the government and the courts. And if we can’t change our Charter, we must at least hold our government to account especially strictly when it comes to human rights.
Pay Equity: Did the Ignatieff Liberals Vote Against “a basic human right”?
Yesterday, Michael Ignatieff stated that pay equity is “a basic human right” and blasted the Conservatives who “[...] very clearly used their 2009 budget to impose their ideological opposition to pay equity for Canadian women.” I have to agree with Ignatieff on both counts.
Last year, I wrote a research paper for my Poverty Law class at Robson Hall (“Canadian Pay Equity Regimes in Context: Evaluating the effectiveness of pay equity dispute resolution mechanisms and remedies”) in which I compared the pay equity regimes of every jurisdiction in Canada. In particular, I was interested in access to effective remedies for women being paid less than men for work of equal value. In general, pay equity legislation only protects public sector workers, not workers in the private sector (although Ontario and Quebec also extend pay equity protection to some private sector employees). Most provinces and the federal government employ a legislative regime in which women may file a pay equity complaint either through a human rights commission or a dedicated pay equity commission.
The only exceptions to this type of legislative framework are the three western provinces: British Columbia, Alberta, and Saskatchewan. Saskatchewan and British Columbia have both adopted equity frameworks – essentially government policies that require public sector employers to implement some form of pay equity through the collective bargaining process. Alberta is the only jurisdiction in Canada that has no pay equity protections whatsoever. Alberta, like British Columbia, does require that workers receive the same pay for “the same or substantially similar work” (the wording of the legislation in British Columbia is “similar or substantially similar work”). However, this does not constitute pay equity, as such. Pay equity requires equal pay for work of equal value, even if the specific job classes are substantially different. In other words, pay equity looks at the value of the work being performed, not the similarity of job descriptions.
The budgetary measure to which Ignatieff is referring in his statement is a provision of Federal Budget 2009, which promises to eliminate the role of the Canadian Human Rights Commission and Canadian Human Rights Tribunal in the federal pay equity regime. Instead, the government promises to integrate pay equity more closely with the collective bargaining process in order to “ensure that the employer and bargaining agents are jointly responsible and accountable for negotiating salaries that are fair and equitable to all employees.” Ostensibly, the government’s rationale is that the current system is “a lengthy, costly and adversarial process”; however, as Ignatieff indicated in his statement, there is reason to believe that the Conservatives’ real motivation is an ideological opposition to pay equity as such.
It is first of all worth pointing out that the government’s characterization of the current complaint-based regime is not altogether inaccurate. In fact, many of the early pay equity cases involving large public sector employers took years or even decades to resolve (see e.g. Bell Canada v. C.E.P., [1998] F.C.J. No. 1609 (Fed. C.A.), rev’g (1998), 143 F.T.R. 81 (Fed. Ct. TD), leave to appeal to S.C.C. refused, 27063 (July 8, 1999)). However, it would be wrong to conclude that a complaint-based mechanism for pay equity can’t work in practice, as I argued in my paper:
One of the lessons thus far has been that many of the delays in the current regimes relate to difficulty in understanding and implementing the complex technical requirements of job comparison. This issue can and should be addressed in a number of different ways. First, the highly technical and specialized nature of pay equity befits a specialized administrative apparatus including a binding tribunal that is institutionally separate from other human rights and labour bodies. The Pay Equity Office, Commission, and Tribunal model championed in Ontario and Québec is promising in that it recognizes and affirms the sui generis nature of pay equity within the corpus of human rights and labour laws. Decision makers within that apparatus will therefore be better equipped to apply the technical requirements of pay equity in a more expedient manner. The second (and related) point is that pay equity commissions should be sufficiently staffed and resourced so as to better assist non-unionized workers in bringing a complaint against their employer.
In any event, even if we were to conclude that a complaint-based model in unworkable, the collective bargaining alternative is even worse. Again, quoting from my paper:
The most glaring gap in pay equity law is the jurisdictional gap. While most jurisdictions in this country have implemented some form of pay equity legislation, scores of Canadian women enjoy no pay equity protection at law. This includes those provinces in which internal government policy affords only remote administrative law challenges to women in segregated jobs. Female workers in Alberta have no legal recourse to obtain a remedy for violations of their human rights in respect of equal pay for work of equal value.
The complete lack of legal protection for workers in these jurisdictions does not sit well with the characterization of pay equity as a human right. Indeed, the complete omission of any protection for pay equity in Alberta undermines the universality of human rights. Yet even among jurisdictions that have enacted legally-enforceable pay equity laws, the scope of the legislation has generally been limited to the public sector. Ontario and Québec stand alone in providing any pay equity protection to women in the private sector. Again, this limitation in scope to is a curious departure from the characterization of equal pay for work of equal value as a human right rather than as a policy decision.
The ultimate shortcoming of current pay equity regimes is not the principle of equal pay for work of equal value, but the lack of access to effective and timely remedies. While the complaint-based tribunal system suffers from many glaring flaws, the relegation of pay equity away from tribunals and into the collective bargaining process represents a major retrenchment of women’s legal right to a pay equity remedy. In this sense, I would argue that Ignatieff’s position against the measures outlined in Budget 2009 is the correct one. I would go even further, though, by establishing a dedicated pay equity commission and extending the legislation to cover federally-regulated private sector workers.
My one and only criticism of Ignatieff here is that the Liberals voted in favour of Budget 2009! Clearly, voting in favour of a federal budget does not imply endorsement or consent to each and every line of the budget. For example, the NDP’s support of a ways and means motion in September does not imply that party’s support for every line of the motion, so much as their desire for trade-offs in respect of employment insurance. For every vote in the House of Commons, politicians must engage in a cost-benefit analysis to determine whether the good parts of a bill outweigh the bad parts. A great deal of horse trading goes on between all of the political parties, and this is not necessarily a bad thing.
However, a major point of contrast between the NDP and the Liberals is that the NDP has consistently maintained the position that human rights are non-negotiable. That is, while the New Democrats will make policy concessions within the legitimate set of options available to government, they will not endorse any bill that undermines fundamental human rights. This explains, for example, the difference between how the New Democrats and Liberals have voted on same-sex marriage legislation in the past (the New Democrats voted unanimously for same-sex marriage, save for one MP who was ousted from the party in consequence; several Liberal MPs voted against same-sex marriage).
To the extent that equal pay for work of equal value is a human right (and Michael Ignatieff seems to think that it is), doesn’t it follow that the Liberals voted in favour of against, in Ignatieff’s words, “a basic human right”? If so, what does this say about the Liberals’ attitude in respect of the universality of human rights? It seems to me that the undermining basic human rights appears to be a deal-breaker for New Democrats, whereas the Liberals are willing to vote in against human rights where it suits their purposes.
On the other hand, maybe I’m just grumpy from studying too much for my exams. In any event, Ignatieff’s change of heart on the federal pay equity regime is a welcome change.
Indefeasibility of title? Not that indefeasible in Kenya?
First posted on Commercial Law International on Oct 15, 2009.
By Charles Wanguhu
The caveat emptor rule dictates that an individual seeking to purchase land should ensure that he is dealing with the rightful owner. Therefore upon inspection of the register kept at the ministry of lands, an individual seeking to ensure the ownership of land would request the registrar for an official confirmation of search, the advantage of the official search is that it is given priority registration over all other transactions for a period of 14 days from the issue of the search.
However in the Mau forest in Kenya the government aims to evict thousands of families who are said to be on forest land. This is despite the fact that some of the settlers have valid title for the property which was a result of excision of forest land by the previous administration. A similar operation in 2005 resulted in thousands of people being displaced and claims of human rights violations by the evicting forces.
The new administration however views the issuance of the titles as void as in their view they were illegally obtained from the former administration. However, under the Principle of Indefeasibility the title of an innocent Purchaser cannot be set aside, even by the claims of a previous rightful owner. This is so, because the Register of Titles is conclusive evidence of the Purchaser’s rightful ownership of the land.
In the case of Maathai & 2 others v City Council of Nairobi & 2 other 1994 a case in which the Nobela laureate Waangari Maathai sought to stop the sale of a piece of land by the city council the court in its deliberations held that:
Registration of Titles Act Cap 201 of the laws of Kenya which provides inter alia, that the certificate of Title issued by the Registrar to a purchaser of land upon a transfer shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the indefeasible owner thereof …. and the title to that proprietor shall not be subject to challenge.”
The Kenyan government while well intentioned in conservation of forests has opened a pandoras box and thereby creating uncertainty in dealings in land. By ignoring the indefeasibility of first registration land transactions have become a gamble. A commission of inquiry into illegal/irregular allocation of public land revealed that a number of foreign embassy and consulates are actually built on former public land. It would be interesting to see whether the government would take similar measures against these missions as they are attempting to do with the families in the Mau forest.
An AFRICOG report available here looks at some of the recommendations of the Commission of inquiry and looks at the possibility or impossibility in implementing the recommendations.
AG Ont. Chris Bentley Speaks on Human Rights
The Attorney-General of Ontario, Hon. Chris Bentley, spoke to students at the University of Toronto on the issue of human rights.
Min. Bentley did a podcast interview with us previously on a similar subject. Human rights tribunals are likely to become a hot issue in the next provincial election, given that Tim Hudak has suggested he will campaign on having them scrapped.
Min. Bentley cites the Dresden case, and explains how human rights are the foundation of our society, even for those citizens we have neglected and abandoned abroad.
Video of his talk at UofT below, with an intro from Omar Alghabra:
The Case of Derek Twyman: A Punishment of Unusual Cruelty
From time to time we read or hear about sentences for startling amounts of time to be served by those convicted of serious crimes south of the border. Hundreds of years in prison or multiple life sentences are examples of some of the extreme punishments ordered by U.S. judges in cases where society is expected to agree that the crime committed is simply so heinous that the offender should never be free again.
Could burglary be such a crime?
Derek Twyman was 14-years-old when he and his family moved from the province of Ontario to the state of North Carolina. His father, Donald, had plans to start a furniture business there, and the family was going to build a future for themselves in the south. Unfortunately, shortly after moving to the U.S., Derek fell in with the wrong crowd and got caught up in a lifestyle that included a tendency to participate in acts of juvenile delinquency.
In 1989 he was on parole when he was picked up by the police in connection with a series of break-and-enters of homes belonging to affluent residents in North Carolina. Derek plead guilty to the offences he was accused of, but was shown little mercy by Judge Thomas W. Ross, who sentenced him to four consecutive 40-year sentences in prison – an astonishing total of 160 years behind bars for non-violent property offences. His projected release date is the year 2055, when he will be approximately 90-years-old.
The law that provided for such an excessive sentence was the misnamed Fair Sentencing Act, which was replaced in 1994 by the Structured Sentencing Act in an attempt to restore credibility and appropriateness to sentencing. Under the new law, someone who is facing the same groups of charges that Derek did in 1989 would only serve a maximum of 7 ½ years upon conviction, as opposed to the unthinkable century and a half given to Derek.
Putting aside for a moment the well-founded allegations that the original sentence constitutes cruel and unusual punishment, many would think that the new law would at least apply retroactively in order to halt the continuation of unjust sentences set down under the old law. Unfortunately, the Structured Sentencing Act does not apply to offences committed before October 1994, undeterred by the fact that a comparison between the old and new legislation clearly depicts a gross disproportionality between the sentences that raises serious constitutional concerns.
And given that Canada is the only country to which Derek holds citizenship, where might the political forces of Ottawa enter into this mess? Nowhere it seems. Despite Canada being a signatory to the International Prisoner Transfer Program with the U.S., Derek says that to date the Canadian government has not yet attempted to help him in any way, instead choosing to ignore such inhumane treatment of a Canadian citizen imprisoned abroad. If one looks to the requirements a prisoner must meet in order to be considered for a transfer, he is a perfect candidate with the exception of one thing: restitution.
The presiding judge who sentenced Derek to prison also ordered that he pay over $60,000 in restitution to the affluent residents whose homes he was convicted of burglarizing, even though insurance policies likely covered most (if not all) of the losses. The restitution order states that this amount must be paid before Derek can even be considered for deportation to Canada. Apparently it wasn’t considered at sentencing that the convicted person going to prison for 160 years eliminates any realistic possibility of the restitution ever being paid.
Nor did it appear to dawn on the court that by the time Derek is eligible for his next parole review (on merely the second of the four 40-year sentences) the total cost of incarcerating him will be approximately $675,000. In the unlikely event that the intended recipients of the restitution were not covered by insurance, and actually needed it as compensation, the potential fulfillment of that opportunity was most definitely quashed in the most ironic of ways.
Even through the desperate arguments that the prison sentence and accompanying restitution were attempts at promoting deterrence, this entire fiasco reeks of a typical “tough on crime” attitude gone terribly wrong. Word of this travesty is spreading, but at the present time Derek’s liberty is the price being paid for the complete and ignominious failure that was the Fair Sentencing Act.
Derek hasn’t lost hope though. Having now spent over 19 years behind bars for this crime, he still manages to keep his spirit up and remains confident that people will take notice of this injustice. No human being should have to endure the kind of wrongful treatment that he has been subjected to. Now is the time for all of us to add our voices to the growing call for Derek Twyman’s long overdue release.
To help Derek gain the justice and freedom he deserves, please take a moment to sign this online petition:
www.petitiononline.com/dtwyman
Housing discrimination
Landlords trample on tenants’ human rights
(post sponsored by advicescene.com)
Mau Mau to sue the British Government
First Posted on Commercial Law International on June 24, 2009.
Concentration Camps
By Charles Wanguhu
The above move by the Kenyan freedom fighters to sue the British government has elicited some very interesting responses from some readers of the times online paper:
This is all about money and bashing the UK. Africa does not want to take responsibility for its current problems
Also if this happened in the 50’s so why have they waited till now?
Lawyers and Money again: A poisonous mix. Why after so long drag up these horrors. The Mau Mau allegedly used to drink the blood of the white farmers they killed. The British allegedly tortured Mau Mau. What good can come of this knowledge now? Time to put these things back in the box of history
While the above sentiments may be of a few it may be worth placing their arguments in a context. Firstly during the emergency in Kenya loads of kikuyu men were rounded up and accused of being Mau Mau based on accusations by guards who were collaboratoring with the british. We can therefore not claim that all those held in prison camps tortured and killed were indeed Mau Mau fighters.
Secondly what is more at stake is the recognition by the UK government that it was official colonial policy to run concentration camps and that it was sanctioned at the top.
In the article :
Professor Anderson states that is doubtful the lawsuit in its current form — targeting the state rather than those surviving individuals who allegedly carried out the abuse — will succeed.
“There can be no doubt that torture was used by British Forces . . . but the question remains ‘who is responsible?’,” he said.
Whoever this notion is flawed in that when a criminal offence occurs it is not the role of the victim to seek evidence against the offender and then bring in criminal charges against them. When a state decides to open up institutions of incarceration it is the states responsibility to ensure that the inmates are treated in a humane way and not subjected to torture. In this instance the British colonial state failed in their duty and they should therefore be brought to account for their inaction when it was clear what is happening. The Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya by Caroline Elkins is an account of the atrocities carried out on the Kikuyu population in Kenya and is worth a read for any individual prior to defending the british actions.
The Mau Mau atrocities cannot be denied and were definitely atrocious. It is however pretentious to claim that they were on a similar scale as the colonial state with their better equipped and organised forces. In addition the fact that they used Machetes and not guns is akin to declaring that the British killings were undertaken in a humane way.
The question is should it be placed in history and forgotten about? Well while seeming to take a leaf from its predecessors the Kenyan Government extra judicially killed up to 400 Kikuyu young men accusing them of being Mungiki (a group not too dissimilar to the Mau Mau if not claiming their inspiration from the Mau Mau) should we forget about them as well.
While it is in the interest of majority of British people to be forward looking, the victims of atrocities still seek justice. History appears to be relative as the World Cup win in 1966 is considered fresh enough to be brought up at every opportunity but atrocities committed six years earlier than the win are too far to be worth remembering.
The issue is not so much monetary compensation but recognition that it was official British Gvt policy to carry out such atrocities and that indeed the victims of these actions were in some instances innocent people who happened to be members of the wrong ethnic community at the time.
Shell & The Elephant In The Room
First posted on Commercial Law International on June 9, 2009.
By Charles Wanguhu
A report by the Economist Intelligence Unit indicates that protecting a firm’s reputation is the most important and difficult task facing corporations. With the development of global media and communication channels, managing reputational damage is seen as crucial with events undertaken in even the remotest areas affecting the international brand of a corporation.
For Shell the stark reality of reputational damage is all too clear. After years and years of denial and expressing its innocence of the Ogoni affair (it still maintains its innocence), Shell has decided to settle a case brought against it out of court for a sum of 15.5 Million US $. The lawsuit had accused the company of colluding with Nigeria’s former military regime over the execution of Ken Saro-Wiwa and other peaceful anti-oil protesters.
Like Nike before it Shell remains in many minds as the poster child of a lack of corporate responsibility especially in big multinationals. The Saro Wiwa case is largely sited not only in commercial classrooms but across NGO conferences worldwide. Multinationals are viewed as bulldozing their way with the help of corrupt and dictatorial regimes to fulfill their interests with complete disregard to vulnerable communities.
The perception of Shell as the irresponsible corporate persists despite the fact that it has invested millions in engaging communities in areas that it works in and has increasingly taken on human rights in its business models and stakeholder engagement strategies.
In response to the case filed Malcolm Brinded, Shell’s executive director for exploration and production, was quoted,
“While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for Ogoni people, which is important for peace and stability in the region.”
The settlement could be seen as a magnanimous move by Shell in some quarters with some already hailing the move as groundbreaking in terms of holding corporations accountable. However when looked at broadly the settlement will be seen as a coup for Shells PR team: instead of having weeks, months or even years of a contested trial where Shells actions or lack of thereof would be once again stirred up in everyone’s mind globally, a quick settlement offers a quick escape route.
All in all $15.5Million may well be considered a bargain when factoring in legal costs, reputation risks and lost revenue. There could well have been some champagne popped at Shell HQs but am sure downstairs in the legal department the wait is on with baited breath to see whether the floodgates have been open.
Finci v. Bosnia at the European Court of Human Rights
The author expresses her own opinions and does not necessarily reflect those of MRG as an organization.
The European Court of Human Rights, up until Wednesday June 3 2009 at 9:15am, had never heard a case on its merits under the new Protocol 12 provision. Protocol 12 provides a stand alone prohibition on differential treatment leading to discrimination.
Prior to the hearing that I attended at the Grand Chamber in Strasbourg, discrimination under the European Convention on Human Rights was dealt with only if the Court found that the discrimination fell within the ambit of another Convention provision. This meant that discrimination was always addressed within the context of another right already guaranteed. At times however, when the Court found an existing violation under a separate provision, discrimination issues were often left by the wayside.
Times have changed. Seated in the front row of the circular-shaped courtroom stacked with seventeen appointed judges from seventeen of the Council of Europe member states, I watched it happen. The case, Sejdić and Finci v. Bosnia and Herzegovina (no. 27996/06 and 34836/0), deals with two prominent members of Bosnian Herzegovinan (BiH) political society. One of Roma origin and one of Jewish faith, these two men are both prohibited by the Constitution of BiH from running for the highest levels of political office because of their ethnic and religious heritage. The BiH Constitution provides that only members of the “constituent peoples” (Serbs, Croats and Bosniacs) are eligible for these political positions. This exclusionary provision was included as a means of creating a legislative power-share arrangement amongst the warring factions following the ruthless ethnic conflict of the late 1990s.
But as counsel for the claimants argued, the time had come for the Constitution of BiH to live up to its international obligations under the Convention. As a legal intern for Minority Rights Group International (MRG), a London based NGO advocating for minority and aboriginal rights around the world, I was able to get directly involved in the issues presented to the Grand Chamber. MRG helped represent Mr. Finci, along with Clive Baldwin (formerly of MRG now at Human Rights Watch) and Sheri Rosenberg of Cardozo Law School in New York.
The arguments were simple, the politics are not. The exclusion of minority groups from running for certain levels of office in BiH is direct and obvious ethnic/religious discrimination; the most nefarious and troubling type. There exists no legitimate justification for this type of discrimination according to the case law, except in the most extreme of circumstances. The BiH government lawyers presented a tangled mess of justifications ranging from political instability to the outright powerlessness of the government to enact amendments to their own Constitution (despite having done so just one month prior).
It remains to be seen if the Court makes good use of Protocol 12 and orders the government of BiH to strike the exclusionary clause. For the sake of equality, democracy and the rule of law in the troubled state – we hope it does.
STAND Down on Darfur, You’re Making it Worse
Liu Guijin, China’s special envoy to Darfur, is currently in Doha meeting with representatives from Britain, France, Russia, United States and the European Union in a 5-day conference on how to deal with the situation in western Sudan.
U.N. backed negotiations between the rebels and the government are also continuing in Doha, and the rebels have released government prisoners in a gesture of good faith. Meanwhile, the government is making advances in Darfur, capturing several towns.
But the key to these recent gains are that the main rebel group, the Justice and Equality Movement (JEM), indicated that they withdrew to avoid further civilian casualties.
It’s the civilian casualties that have created so much concern from the international community, and estimates range from under 9,000 from Sudanese government sources, to 400,000 by some NGOs.
The discrepancy is explained by Sudan as exaggerations by the media and some western NGOs, a stance that has been given greater validity by other more neutral organizations. The vast majority of people dying in Darfur are from the humanitarian situation, not directly from the conflict. Thierry Durand, director of operations for Doctors Without Borders, said,
The magnitude of violence in Darfur has been huge, but it’s not genocide. The situation on the ground has not been an emergency since 2004. The real problem is the dependency in the camps. But the whole thing has become over-politicized.
Canada has it’s own NGO lobby on the Darfur issue, one of the largest in the world. STAND Canada started right here at my University of Western Ontario in 2005, after things had considerably improved in Darfur, by students with surprisingly little background in African history and conflicts, or humanitarian and civil rights issues. They claim to be the “leading organization in Canada for youth led anti-genocide advocacy and activism.”
And according to at least some, activists like STAND and other like-minded western NGOs with inadequate background are making the situation exponentially worse.
A Race to a Politicized Conflict
Emily Wax highlighted some of the problems with well-intentioned but misled activists in a 2006 Washington Post article, one of the most poignant pieces explaining the misconceptions about the Darfur conflict:
- Nearly everyone is Muslim
- Everyone is black
- It’s all about politics
- This conflict is international
- The “genocide” label made it worse
Some activists have unfortunately used the linguistic differences between the Khartoum government and the Fur people as a slur against Baggara (pastoralist) Arabs (from which the Janjaweed come from) in the former murdering black Africans, out of some supposed racial-based animosity between the two, leading to these charges of genocide that would demand Western intervention (presumably militarily).
The reality is quite different.
Abdalla Adam Khater, a resident of Darfur who lost 100 extended family members in 2003, said,
This isn’t like the Nazis or Bosnia or Rwanda. This isn’t about hatred. It’s more about power, money and land.
The Darfur region was one of the earliest in Sub-Saharan African to be introduced to Islam, from the Zaghawa diaspora of the descendants of Uqba ibn Nafi in the 7th c. CE, and more formally through the Tunjur people in the 14th c.
The Nile was ruled by the Christian Nobotia and Makuria kingdoms, until they gradually adopted the Arabic language and the Muslim religion through trade during the 12-15th c. When the Sudan had their anti-colonial Islamic Mahdist revolt against the British during the 19th c., it was largely based out of Darfur, and not the Nile, by uniting both the Baggara and the Fur.
This complex history still plays itself out in the modern conflict.
The Tunjur still inhabit Darfur and speak the Arabic language (and are thus “Arab”), and are just as victimized as others in Darfur despite the linguistic affinities with the Baggara and others. The Justice for Equality Movement (JEM), one of the main rebel groups in Darfur, is Islamic fundamentalist in orientation.
The political origins of the conflict can be traced as far back as 1999, when a man named Hasan Al-Turabi, whose father was a Sudanese judge and legal expert, found himself in a confrontation with Sudanese President Omar Al-Bashir.
Turabi himself studied law, earning a PhD from Sorbonne in Paris, and introduced sweeping reforms that included more rights for women, greater political participation, and most importantly, a coalition that sought to include as many of Africa’s largest country’s 597 tribes and over 400 different languages and dialects as possible.
One of the problems was that the Sudanese South felt alienated by the largely Muslim-dominated government, which led to a civil war for over 20 years. Although the South is largely animist, western groups and NGOs attempted to portray it as a Muslim-Christian clash (only about 5% of Sudan’s population follow these forms of Christianity), and proselytizing groups did arm (and convert) people in the South.
The other problem in this interim period was Turabi’s open immigration policy, an anomaly in the Middle East. He saw a vision for Sudan as a refuge for all those facing political persecution, a political openess that has never been seen anywhere in the region, and will probably never be seen any time soon.
This open approach to political rights did have its disadvantages, as individuals like Osama bin Ladin also found their way to the Sudan. But Sudan was far from a “haven” for terrorists, and after some Egyptian nationalists participated in a failed assassination of their President they were expelled from the country.
The 9/11 Commission Report reviewed the negotiations and tensions that arose between Sudan and other countries during this time,
In late 1995, when Bin Ladin was still in Sudan, the State Department and the CIA learned that Sudanese officials were discussing with the Saudi government the possibility of expelling Bin Ladin. U.S. Ambassador Timothy Carney encouraged the Sudanese to pursue this course.The Saudis, however, did not want Bin Ladin, giving as their reason their revocation of his citizenship.
But these policy tensions led to cracks internally in the Sudanese government when in 1999 Turabi proposed and amendment that would further democratize Sudan, but would reduce the power of Omar Al-Bashir from President to Prime Minister.
Bashir retaliated by placing Turabi on house arrest and disbanding his coalition, which included significant representation from Darfur. Turabi’s followers in Darfur, frustrated by their lack of political participation and representation, picked up arms and helped found JEM, starting yet another civil war.
Bashir’s government, still compelled to fill barracks in the South to enforce a shaky truce, resorted to desperate measures by enlisting the support of pro-government militias from among the Arabic-speaking Baggara. These untrained non-conscript civilian forces, backed sporadically by a thinly-spread military, did engage in the killing and raping of civilians, which led to accusations of war crimes and genocide.
The Most Aggravated Crime Against Humanity
On Sept. 9, 2004, U.S. Secretary of State Colin Powell stood before the Senate Foreign Relations Committee and said that a genocide was occurring in Sudan, specifically invoking Article VIII of the 1948 Genocide Convention, which essentially would give rise to an armed intervention in Sudan (the US is no longer a signatory to the ICC),
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3.
Just a year and a half earlier, Powell presented a case for invasion to the United Nations that Iraq unequivocally had weapons of mass destruction that it was hiding from the world.
Unlike his statements in Iraq, Powell’s position on Darfur has not received as much scrutiny. Perhaps the most controversial and contentious position by groups like STAND are their accusations of genocide in the Sudan, one that does not include the very complex political background behind the situation in Darfur.
The Darfur Commission decided in 2005 after a thorough inquiry that there was insufficient evidence for genocide in Darfur because there was no state plan or policy to kill or target an ethnic, national, racial or religious group. What NGOs like stand fail to recognize is that all of these groupings can be found on both sides of the conflict.
Charges of genocide require dolus specialis, or a special intent, according to Article 6 of the Rome Statute. And even if some Janjaweed could be identified as perceiving ethnic differences between the two, there was no proof of motive on behalf of the government that would give rise to the mens rea requirement for what is reserved as the “most aggravated crime against humanity.”
What the International Criminal Court (ICC) was able to conclude was that the Darfur situation did consist of war crimes and crimes against humanity. A specific warrant was issued for Bashir on,
• five counts of crimes against humanity: murder – Article 7(1)(a);
extermination – Article 7(1)(b); forcible transfer – Article 7(1)(d); torture -
Article 7(1)(f); and rape – Article 7(1)(g);• two counts of war crimes: intentionally directing attacks against a
civilian population as such or against individual civilians not taking part in
hostilities -Article 8(2)(e)(i); and pillaging – Article 8(2)(e)(v).
While government complicity in Janjaweed activity, and the extent of the activities meeting these definitions are not under dispute, the political prudence of using the ICC to resolve this situation is.
Immediately after the warrant was issued, Bashir expelled 10 of the major humanitarian organizations in the region. But Bashir had justifiable paranoia about some of these NGOs, as just weeks earlier he had expelled a Texan-based charity, Thirst No More (TNM), run by an Iraqi war veteran. They describe their mission:
With a history of proven success in distributing bottled water with the “Pure” message of salvation along with other unique products – we’ve become your resource for evangelism and missions. Thirst No MoreTM is a faith based ministry, dedicated to honoring and glorifying Christ.
TNM was supposed to be drilling wells in Darfur. Not a single well was built, but plenty of Bibles were discovered in violation of Sudan’s 2006 Organization of Humanitarian and Voluntary Work Act.
In addition to the prosyletizing, there was the arming of JEM and Darfur rebels by foreign powers, some pointing to France via Chad, the same country that armed the Hutu in Rwanda. It’s in this backdrop of that key nations in the region have resisted the ICC charge,
The African Union (AU), the Arab League, the Organisation of the Islamic Conference, and an influential UN bloc of developing nations known as the Group of 77 and China have all backed Sudan’s calls for the ICC prosecution to be dropped, with some officials arguing that it smacks of “white man’s justice”.
They say an attempt to arrest Bashir could destabilise Sudan and endanger international aid and peacekeeping missions…
Sudanese officials say they cannot be held responsible if the UN or foreign organisations become the focus of “public outrage” over an indictment.
Justice Radhabinod Pal of India issued similar anti-colonialist misgivings in his dissent before the International Military Tribunal for the Far East, which was banned from publication until 1952.
“Those bearing the greatest responsibility” (a term coined during the Special Court for Sierra Leone), or founding the conflicts in the first place, are unlikely to be held accountable, despite this statement by the Prosecutor in a 2003 report, Paper on some policy issues before the Office of the Prosecutor,
One important area of investigation will involve financial links with crimes. The investigation of financial transactions, for example for the purchase of arms used in murder, may well provide evidence proving the commission of atrocities…
Such prosecutions will be a key deterrent to the commission of future crimes, if they can curb the source of funding.
So although victims of terrorism may be able to sue terrorists according to a new Bill the Conservatives intend to introduce this week, the victims of state terror or atrocities committed by states using weapons sold to them by Western entities are unlikely to see similar relief.
Canada’s Role in the Conflict
Of course well-intentioned people want to make a difference in the world, and do genuinely care about people dying and suffering around the world. But the best way to prevent these conflicts from happening may be in an entirely unexpected way, through combating climate change.
The socio-economic background to the Darfur crisis that is also often ignored is the displacement of the Baggara from their pastoralist lands into the agricultural holdings of Darfur due to desertification. The Sahara dessert is expanding, primarily due to carbon emissions from the United States and Canada.
The Darfur crisis is just one of many conflicts in the 21st c. that will erupt over food and water due to climate change that will primarily affect the developing world, who are the most vulnerable to these changes. Activists tend to be selective about the causes they take up.
Jan Egeland, head of UN Office for the Coordination of Humanitarian Affairs, has proclaimed that the situations in Congo and Uganda have each exceeded Darfur as humanitarian crises, but the world has not paid it equal attention, even though he noted there is even more of an opportunity to save lives in these other situations. Not even the “leading organization in Canada for youth led anti-genocide advocacy and activism” took note.
Canada also played a much more direct role in creating the backdrop to the conflict when it pulled out Talisman Energy from the Sudan, due to pressure from church groups interested in destabilizing the government further out of their interests to strengthen the (potentially Christian) rebels. Instead, Canada could have used its role and influence over the Sudanese government to observe human rights standards.
This weekend a Canadian envoy could be heading to Doha, with the whole world looking to us for a peaceful solution.
Criticisms by STAND activists about normalized relations with the Sudanese government are easily countered by pointing out that during the Darfur situation Sudan obtained 87 per cent of its arms from Russia, not the Chinese who replaced Canadian commercial interests in the country.
The shift in attitude is best encompassed by the contrast between policies espoused on Darfur by George W. Bush and Bill Clinton at a talk in Toronto on May 29 that I attended with Garry Wise.
Bush disclosed that his reasons for not sending an armed intervention to Darfur was that NGOs more intimately aware of the region and its issues strongly urged him not to invade, given the backdrop of Afghanistan and Iraq.
In an apt mid-20th c. African rendition of Macbeth by Des McAnuff I saw at the Stratford Festival yesterday, Lady Macbeth exclaims this sentiment quite well in Act V Scene I,
Here’s the smell of the blood still; all the perfumes [or oil] of Arabia will not sweeten this little hand. Oh, oh, oh!
Clinton, on the other hand, more acutely captured the notion that although African Union peacekeepers were limited in their capabilities, only countries understanding the local faith and cultures in the conflict should even attempt to mediate it.
Bush still insisted that his (faith-based) NGOs were the solution to all the problems in the world.
The Post-Bush Doctrine
The notion of sovereignty often appears far more disposable when dealing specifically with developing nations, especially in recent years. Yasuki Nesiah highlights this problem in From Berlin to Bonn to Baghdad: A Space for Infinite Justice,
Ian Williams has warned that “we should not let” George W. Bush’s “misappropriation of humanitarian intervention alienate the concept from its natural owners, the left.”[5] Lamenting the Bush-Blair duet regarding the humanitarian goals that guided their policies in the second Gulf War, proponents of humanitarian internationalism are anxiously seeking to formulate universal principles to distinguish illegitimate from legitimate intervention, conquest from protection, and militarism from humanitarianism.
…Michael Ignatieff anguishes that “almost everyone who tries . . . has a bad conscience; no one is quite sure whether our engagement makes things better or worse.”[26]
A more effective approach to dealing with Darfur is encapsulated with a shift from “Save Darfur” to “Empower Darfur.” Richard Haass, currently with the Council on Foreign Relations, said in Sovereignty: Existing Rights, Evolving Responsibilities,
Sovereignty has been a source of stability for more than two centuries. It has fostered world order by establishing legal protections against external intervention and by offering a diplomatic foundation for the negotiation of international treaties, the formation of international organizations, and the development of international law. It has also provided a stable framework within which representative government and market economies could emerge in many nations. At the beginning of the twenty-first century,
sovereignty remains an essential foundation for peace, democracy, and prosperity.At the same time, sovereignty is being challenged from both within and without. Weak states struggle to exercise legitimate authority within their territories. Globalization makes it harder for all nations to control their frontiers. Governments trade freedom of action for the benefits of multilateral cooperation. And outlaw regimes jeopardize their sovereign status by pursuing reckless policies fraught with danger for their citizens and the international community. We need to adjust our thinking and our actions to these new realities.
The only two other previous cases referred to the ICC before Sudan was with Congo and Uganda, both referred by a non-signatory state for an internal conflict, a situation not envisioned by the drafters of the Rome Statute. These states were struggling with maintaining the civil order, and sought the help of the international community.
Justice Louis Moreno-Ocampo, former ICC Prosecutor for the ICC signaled the role of the court in creating peace in Uganda, a conflict peripherally related to that of Sudan. Others criticized that the ICC was ignoring abuses by the Ugandan government.
The arrest warrants were an important part of the reason why the Lord’s Resistance Army (LRA) came to the negotiating table with the government. In the Fifth Session of the Assembly of State Parties, Moreno-Ocampo said,
This case shows how arrest warrants issued by the Court can contribute to the prevention of atrocious crimes. The Court’s intervention has galvanized the activities of the states concerned. Uganda and the DRC, parties to the Rome Statute and legally bound to execute the arrest warrants, have expressed their willingness to do so. The Sudan, a non‐State Party, has voluntarily agreed to enforce the warrants. Thanks to the unity of purpose of these states, the LRA has been forced to flee its safe haven in southern Sudan and has moved its headquarters to the DRC border.
As a consequence, crimes allegedly committed by the LRA in Northern Uganda have drastically decreased. People are leaving the camps for displaced persons and the night commuter shelters which protected tens of thousands of children are now in the process of closing. The loss of their safe haven led the LRA commanders to engage in negotiations, resulting in a cessation of hostilities agreement in August 2006.
But when U.N. peacekeepers in February 2006 attempted to enforce the warrants and arrest LRA leaders in the Congo they failed, and several were killed.
And when Uganda’s security minister, Amama Mbabazi, asked for the ICC to withdraw the charges because they were in the way to reaching a peace deal, the international community retaliated.
Justice Richard Goldstone,former chief prosecutor for the Bosnia and Rwanda, said,
It would be fatally damaging to the credibility of the international court if [Ugandan President] Museveni was allowed to get away with granting amnesty. I just don’t accept that Museveni has any right to use the international criminal court like this.
If you have a system of international justice you’ve got to follow through on it. If in some cases that’s going to make peace negotiations difficult that may be the price that has to be paid. The international community must keep a firm line and say are we going to have a better world because of the international court or not.
The LRA currently indicate that no peace is possible until the ICC warrants are dropped.
Similar critiques that war crimes by rebels in Darfur are not equally investigated are also being raised.
Similar concerns of peace being stonewalled are being raised now with the talks between JEM and Bashir. Although Turabi has called for Bashir to turn himself in, he has stated he will never surrender.
Discharging the Secrets of Infected Minds
Resolving this dilemma might be possible by better clarifying when a country’s sovereignty can be infringed upon. The relationship between human rights and state immunity was summarized by Lee M. Caplan in The American Journal of International Law:
- state immunity arises not out of the fundamental right of statehood but, rather out of the concession of a forum state’s right of adjudicatory jurisdiction; and
- foreign states are not entitled to immunity under customary international law as to most, if not all, activity that constitutes human rights offenses.
Sudan is not a signatory to the Rome Statute, but strangely was referred to the ICC by states that are not signatories either, or states directly involved in arming the respective parties. Despite the absence of any concession for adjudicatory jurisdiction, the ICC may still have a role, given the nature of the alleged crimes.
International lawyer Heny Schermers said,
Under international law we are most often confronted with the idea that sovereignty of a State means that the State has unlimited power and is subjected to only those rules of international law which it has expressly accepted. Neither other states nor the United Nations have any right to intervene in matters which are essentially within the domestic jurisdiction of a State. This aspect of sovereignty has been seriously weakened during the second half of the twentieth century.
…the world community takes over sovereignty of territories where national governments completely fail and that therefore national sovereignty has disappeared in those territories. The world community by now has sufficient means to step in with the help of existing States and has therefore the obligation to rule those territories where the governments fail.
But where the international community, or even those states attempting to intervene, has expressly contributed to the failing of a government, such intervention hardly seems warranted.
Even worse, it could easily backfire.
One of the unintended but easily plausible outcome of this situation is an independent Darfur could be an impoverished and unstable state that really is a haven for terrorists, both anti-American and rabidly Israeli, despite support the latter has extended to rebel groups.
Calls to further weaken Sudan with no-fly zones, sanctions, or even armed troops should be firmly rejected as a tactic that has been tried and failed elsewhere, and at huge expense of lives.
To move beyond the failed Bush doctrine, countries would be held accountable and encouraged to observe human rights using the principle of complementarity. If a country genuinely tries war crimes internally, there is no admissibility of a situation to the ICC according to Article 17. Instead of undermining weak states, peacekeepers could be used in cooperation and coordination of the new realities of a changing world.
Sudan’s Deputy U.N. Ambassador Omar Bashir Manis appeared willing to cooperate with the international community during Security Council meeting 5459 on June 14, 2006,
…we should point out that the Sudanese Government responded positively to resolution 1593 (2005) and has begun the process of consulting with the Prosecutor and his assistants, including through visits by them to the Sudan. We believe that that communication and cooperation has had a number of positive results, some of which we would like to highlight.
The Prosecutor quickly came to an understanding of the situation. He was briefed on the history of the Sudanese judiciary, its independence and its capacity, along with related judicial organs, with regard to establishing the rule of law. The Prosecutor has understood the reasons for the deterioration of the situation in Darfur and the security vacuum which led to attacks on police stations and the ensuing events, including tribal confrontations and conflict among political factions and elements, which led to an escalation of the situation and the consequent widespread violations, of which everyone is aware.
Our police and prosecutors are prosecuting the perpetrators of those crimes. The Prosecutor learned about a great many cases that have been decided and about charges and allegations that have been followed up since a special prosecutor was appointed to look into those cases in Darfur. Special courts have been established and have handed down many criminal sentences, including execution and life imprisonment. The Prosecutor also had the opportunity to better understand how best to deal with security and tribal problems and disputes.
…There have been meetings with many officials from provinces in Darfur with a view to understanding the general situation and to seeking their views on how to prosecute the accused, and on how to establish the rule of law and mend the social fabric.
There is no doubt that a political settlement is the best possible solution and is the key to achieving stability, justice and peace in Darfur…
Mending the social fabric through efforts aimed at reconciliation, amnesty and the satisfactory resolution of problems among the various Darfur tribes is necessary and of fundamental importance if peace is to be established in Darfur. That is an effort that we hope will enjoy the support and encouragement of the African Union and the international community, including the Security Council, in keeping with paragraph 5 of resolution 1593 (2005).
The Government of the Sudan will continue its efforts to establish the rule of law and justice through the courts and other mechanisms set up in Darfur, to put an end to impunity and to hold accountable all those convicted of violations of human rights and international humanitarian law…
We therefore believe that the current political, security and social conditions in Darfur call for the Security Council’s support for efforts towards an internal dialogue in Darfur with a view to achieving peaceful coexistence. That, in line with all that I have said, is the easiest way to establish the rule of law and lasting peace.
[emphasis added]
The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General on Jan. 25, 2004 agreed that the best way to resolve the Darfur situation would have been the legal process internally,
568. The normal and ideal response to atrocities is to bring the alleged perpetrators to justice in the courts of the State where the crimes were perpetrated, or of the State of nationality of the alleged perpetrators. There may indeed be instances where a domestic system operates in an effective manner and is able to deal appropriately with atrocities committed within its jurisdiction.
But due to the erosion of the rule of law due to civil wars, other nations that have deliberately sought to weaken the country, and impunity of the executive, the Report also noted that this was impossible in Sudan,
586. The Sudanese justice system is unable and unwilling to address the situation in Darfur. This system has been significantly weakened during the last decade. Restrictive laws that grant broad powers to the executive particularly undermined the effectiveness of the judiciary.
[emphasis added]
A Sudanese solution would seek to restore political coalitions that kept the country together, and rebuild a Sudanese judicial system that would try offenders of war crimes.
This approach has been validated by the international human rights community. In 2006 the Human Rights Council of the General Assembly stated,
…the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings,
[emphasis added]
Instead, we have been dealing with an approach to developing nations that would weaken and destabilize them even further.
Lady Macbeth’s physician speaks of the type of guilt that sullies the situations created by the Bush doctrine to this day,
Foul whisp’rings are abroad; unnatural deeds
Do breed unnatural troubles; infected minds
To their deaf pillows will discharge their secrets.
George Friedman, in his book The Next 100 Years: A Forecast for the 21st Century, discloses America’s “unnatural secret” to a primarily American audience: the “War on Terror” makes absolutely no strategic or military sense. It’s impossible to win.
But, he retorts, America does not have to win as long as it can keep predominantly Muslim countries fighting each other. There are some NGOs, including those involved in Darfur, who take a strategic position not substantially different from this as well.
If the ICC is used to help strengthen countries to be willing and able to address humanitarian issues, encourage accountability for their actions, and enforce the rule of law through a domestic judiciary wherever possible, it will have much more buy-in and credibility from the developing world and unstable regions.
But if it is used to target failing states that have been habitually undermined and weakened, especially by directly aiding rebel groups within a country, it will be seen as nothing more than a tool of neo-colonialism as charged by Bashir and envisioned many years ago by Justice Pal.
Yet here’s a spot.
Omar Khadr Video Round-up
Early yesterday morning, the Canadian government, in compliance with court orders, released a video of Omar Khadr’s interrogation by Canadian Security and Intelligence Service agents at Guantanamo Bay, Cuba. The video, which is the first ever seen of CSIS agents in action, is already making waves internationally. Within hours of the release, front-page headlines were sparked everywhere from The New York Times to the BBC to Al Jazeera.
I can only hope that all of this international coverage will bring more pressure to bear on the Canadian government to step up and do something to protect this young man from the torture he faces in Guantanamo Bay. Canada must request Omar Khadr’s repatriation so that he can face trial in this country.
Below I have collected a number of videos relating to Omar Khadr:
The Interrogation Video
“Before the rage, the resignation and the tears, came the trust. Teenaged prisoner Omar Khadr seemed sure that his countrymen from Canada had come to Cuba to help him and spoke freely when they asked questions. On the second day, the reality almost visibly dawned on his face.
… Much of the material released shows Mr. Khadr — who is wearing an orange uniform — sobbing and repeatedly saying, in a moan, “Help me, help me.”
Here is a short segment of the 8-minute interrogation video that has been released to the public so far. The full 7-hour video of the interrogation is scheduled for later release by the Canadian government. The audio quality is quite poor, but if you click the link to view the video at YouTube, you will find captions of the exchange.
There is no evidence of torture on the videotape, but it is reported that:
“Documents made public last week show that Mr. Khadr was subjected to weeks of sleep deprivation by U.S. military officials before being interviewed by Canadian officials, and that the Canadians were aware of the sleep deprivation.” (The Globe and Mail)
Opposition Parties Demand Action
On May 26, 2008, the NDP MP from Windsor-Tecumseh, Joe Comartin, challenged the government to respect the findings of torture by the Supreme Courts of Canada and the United States and to demand Khadr’s return:
On June 13, 2008, the Liberal MP from Davenport, Mario Silva, questioned the government as to how much longer it would sit on its hands and do nothing to repatriate Khadr:
Romeo Dallaire Weighs In
Arguments at the Supreme Court of Canada
In May of this year, the Supreme Court ruled on the (il)legality of withholding disclosure from Khadr’s defence team. The SCC’s ruling in Khadr is what precipitated the release of the interrogation video above.
In Canada (Justice) v. Khadr, 2008 SCC 28, the court ruled that the Canadian Charter of Rights and Freedoms has some limited application outside the borders of this country. A thorough analysis of the judgment can be found at The Court, Osgoode Hall’s blawg.
Below is a video (unfortunately, quite short) of some of the arguments made before the Supreme Court in that case:
Law is Cool – Podcast #10
Show Notes
25:29 Total Running Time
0:16 Thomas Wisdom and Omar Ha-Redeye introduce themselves, with interviews from David Aylward and Hon. Chris Bentley.
1:14 Omar discusses the 7 Year Law Degree from Jordan Furlong, while Thomas mentions the importance of learning on the job.
2:25 Thomas shares his new smoking habit that he picked up during law school.
4:50 Omar introduces David Aylward, founder and director of COMCARE Emergency Response Alliance, on how to transition out of a typical legal career into other sectors.
5:22 David Aylward describes his educational, legal and political career in Congress and the U.S. House of Representatives.
6:37 David Aylward relates how the discipline of the legal education and the focus on the meaning of words helped him outside the law and creating a non-profit promoting agency interoperability.
7:52 David Aylward explains how in responding to any emergency there is a need for information exchange and a system that allows voice, data and video sharing.
9:31 Public agencies don’t look at the private or commercial sector enough for communications capability and have a higher degree of cultural resistance to sharing, but technically still have similar challenges.
12:02 David Aylward provides career advise on how to psychologically prepare on transitioning into non-traditional legal careers where the essence of the work isn’t the law.
14:42 There are lots of opportunities in North America, and anyone who has a law degree has lots of choices.
15:56 Thomas describes his trip to Florence, Italy and the 10 year delays in the tort system there.
16:28 Omar introduces Min. Chis Bentley, the Attorney-General of Ontario.
17:25 The Attorney-General of Ontario relates his experience teaching at the University of Western Ontario faculty of law.
18:02 Min. Bentley explains the access to justice issue, and changes his office have made to the criminal justice system such as the Justice on Target program.
21:02 Min. Bentley says we have a good human rights system and shares groundbreaking initiatives they have undertaken starting June 30, 2008 which will strengthen human rights in Ontario.
22:22 Min. Bentley explains why human rights are so important to our society, which values optimism and opportunity without barriers and discrimination.
24:52 Omar signs off.
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