RSS FeedA Legal Obligation to Assist Iran
Earlier today Iran began large-scale war games to simulate a response to attacks on its nuclear sites. But these games are hardly for fun, as the country intends to showcase its capability of defending against a strike from Israel.
Although in Canada we normally think of countries like Iran as the aggressor, the country is not without fear of Israel initiating military action against them. Israeli officials have not ruled out the possibility, and there is a history of attacking Iraq in 1981 and more recently, Syria in 2007.
In response to the strikes against Iraq, the United Nations Security Council issued Resolution 487, stating,
Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”,
1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;
2. Calls upon Israel to refrain in the future from any such acts or threats thereof;
3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;
4. Fully recognises the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;
5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;
6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;
7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution.
Iraq’s new government is seeking reparations from the 1981 attack. Sadr MP, Nasser al-Rubaie, recently stated,
According to the international law Iraq has the right to receive compensation from Israel. We have called for a legislation to be passed in the parliament to oblige the Iraqi government to follow up the issue.
But it’s the attack against Syria that really raised the interest of the international law community. The reason is that both attacks were justified by Israel as necessary measures of self-defence, which although questionable by international law, were given limited credence by the Bush doctrine.
The 2002 National Security Strategy of the United States of America (NSS) states,
A. Summary of National Security Strategy 2002
… the first duty of the United States Government remains
what it always has been: to protect the American people and American interests … this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD.To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that nonmilitary actions succeed. And no country should ever use preemption as a pretext for aggression.
The 2006 revision retains the ability to act preemptively. But there is one important distinction between the U.S. and Israel that differentiates these policies. The NSS is based on Article 51 of the U.N. Charter,
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The obvious distinction is that while the U.S. is a permanent member of the Security Council, Israel is not. Israel cannot legitimately claim to be acting in self-defence when attacking pre-emptively, especially in light of Article 2(4),
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Additionally, the effectiveness of either of these strikes are highly disputed by analysts, who are still frustrated by refusals by Israelis to provide information about them. After the Iraq invasion on the premise of WMDs, skepticism about pre-emptive strikes, especially after claims by Israeli military intelligence officer Shlomo Brom and Israeli MPs that Israel deliberately exaggerated reports about Iraqi capabilities in order to encourage an invasion.
The Nuremberg International Military Tribunal addressed the issue of pre-emptive strikes in United States v. Goering, 6 F.R.D. 69, 100-01 (1946). The court rejected the Nazi claim that they had to invade Norway to avoid an Allied invasion, because there was no such threat imminent.
Mark A. Drumbl of the Washington and Lee University – School of Law points out in Self-Defense, Preemption, Fear: Iraq, and Beyond that the military response by Austria-Hungary to the assassination by the Serbian terrorist organization Black Hand of the Crown Prince Ferdinand and his wife was uniformly condemned by the international community. It is also largely acknowledged as the primary cause of WWI.
Nicole Deller and John Burroughs explain in Jus ad Bellum: Law Regulating Resort to Force,
The right to anticipatory self-defense under customary law has never been unlimited. One generally recognized formulation dating from the mid-nineteenth century is that set forth in a letter from U.S. Secretary of State Daniel Webster to British Minister Lord Ashburton, that the necessity for action must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Since then, and especially since World War II, capabilities to launch devastating attacks with little advance warning have improved dramatically. Nonetheless, scholars have continued to affirm Webster’s restraints on legitimate self-defense, recognizing their value in inhibiting resort to war. A recent edition of a leading treatise states that self-defense may justify use of force under the following conditions: an attack is immediately threatened; there is an urgent necessity for defensive action; there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is needed to prevent the infringement. Oppenheim’s International Law, 9th ed., 412.
But it’s a paper by Amin Ghanbari Amirhandeh, an LLM student at the University of Tehran, that gives the greatest pause. He claims in Preemptive Attacks on Iran’s Nuclear Facilities?, that the Security Council would actually be required to assist Iran if attacked by Israel.
As Iran is a non-nuclear state, a military strike on a nuclear facility could still be considered a nuclear attack, given the resulting environmental damage. He states,
In resolution 984, the Security Council “takes note with appreciation of the statements made by each of the nuclear-weapon States (S119951261, S119951262, S119951263, S119951264, S/19951265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons”, and further “[w]elcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any nonnuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.
As the ICJ stressed in its historic opinion on legality of nuclear weapons
(1996), the Security Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognized “that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim”; and welcomed the fact that “The intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non- Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.Gesturing the concept of threat is enough for the Security Council in the present case, even if it is obvious that the five nuclear weapon states are
individually responsible for taking appropriate measures in order to assist Iran, to condemn any direct threat from Israel against Iranian nuclear installations.
Now that’s a consequence that would make Sarkozy’s description of an Israeli strike on Iran as an “absolute catastrophe” the understatement of the year.
Part II: Soldiering on? The invisible injuries of war
Guest Post by Krystalline Kraus | Reproduced from www.rabble.ca with permsision
Next week, on November 11, veterans will get only two minutes of recognition — if people stop to reflect at all — while the rest of the year their sacrifice is forgotten.
If Canada’s mission in Afghanistan does end in 2011, 35,000 men and women will have served in that theatre — 133 have been killed thus far — and the Canadian Forces’ (CF) low estimate is that as many as 2,000 could be returning home with an Operational Stress Injury (OSI) such as PTSD.
These soldiers will return home with, among other things, an OSI or plagued by survivor’s guilt and the pressure to do good by their dead friends; first they bury them and then they bury their own feelings. As the saying goes: Survivors die twice.
Massacre at Fort Hood
The problems the U.S. military would prefer to hide violently surged to the public’s attention when Major Nidal Malik Hasan, a 39-year-old U.S. Army psychiatrist, allegedly opened fire yesterday afternoon at Fort Hood, Texas. He is accused of killing 13 people and wounding 30.
A New York Times article features an interview with Hasan’s cousin, who states that he expressed deep concern about being sent to Iraq or Afghanistan; the cousin also notes that Hasan’s job was to counsel returning soldiers suffering with PTSD which gave him an intimate window into the horrors of war. This made him fearful of deploying to either theatre. His cousin also claims he was having second thoughts about his military career a few years ago after other soldiers harassed him for being a Muslim.
Jameel Jaffer of ACLU is a Canadian!
Today’s Toronto Star profiled a Canadian lawyer who has taken on the Bush Administration through the ACLU, and was key in helping discover the torture memos.
Jameel Jaffer, only 39 years old, was born in London, Ontario, before graduating from Williams College, Cambridge University, and Harvard Law School and serving as a law clerk to Hon. Amalya L. Kearse, United States Court of Appeals for the Second Circuit, and the Rt. Hon. Beverley McLachlin, Chief Justice of Canada.
What makes Jaffer unique is that he was co-lead counsel for ACLU v. Department of Defense, which released thousands of documents about prisoner abuse in Iraq, Afghanistan, and Guantánamo Bay.
He was also lead counsel in Doe v. Ashcroft, which challenged National Security Letters (NSLs) under the PATRIOT Act, and counsel in MCA, et al. v. Ashcroft and Mueller, challenging the “chill” in donations to mosques as a result of the PATRIOT Act.
Jaffer might just be the Canadian who has done the most for civil rights in the U.S. during this crucial time, and should probably be better recognized and celebrated in his home country.
Here’s a clip from him via the ACLU:
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.
Black Liquor Sparks New Trade Feud and Old Controversies
Is Canada listening to calls to assert our national interests?
On Thursday, Canada joined the EU, Brazil and Chile in demanding the withdrawal of tax credits in the U.S. for black liquor.
The credits are estimated at $4-8 billion, passed in 2007, and intended for energy alternatives in paper mills and cogeneration facilities. Paper manufacturers have started mixing F-T diesel with a kraft process byproduct known as black liquor to meet the definition of the tax credit, which Canada claims is hurting Canadian jobs.
Although President Obama wants to terminate the rebate on Oct. 1, Canada and the other countries are threatening action through the World Trade Organization (WTO).
In light of a global recession caused by what some consider fiscal mismanagement and overzealous deregulation in the U.S., Canada’s controversial and convoluted trade relationship with the U.S. warrants greater scrutiny.
Government’s Case Against Resisters Faulty
The Harper government attempts to justify deporting U.S. Iraq War resisters with a familiar, but untrue, narrative.
They say that unlike during the Vietnam War, U.S. soldiers are volunteers and are not considered refugees by the United Nations. They say refugee applications are evaluated fairly on their own merits, and there is no need to create a separate program for U.S. Iraq War resisters.
All these statements are false.
First, not all Vietnam War resisters were conscripts, and many Iraq War resisters are redeployed against their will. Vietnam War resisters included draft dodgers who fled before induction, those who accepted their draft notice and were inducted, and those who voluntarily joined the military services. After a brief political struggle in 1969 concerning those who came to Canada after induction, Canada welcomed both groups without distinction.
Although current war resisters volunteered and some completed their service, many found themselves involuntarily redeployed to Iraq. Programs of stop-loss and individual ready-reserve recall soldiers after they have been discharged. Many soldiers, such as Jeremy Hinzman, have had their applications for conscientious objector status denied.
Section 167 of the United Nations High Commission for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status states that “a deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of . . . political opinion.”
After being deported, war resister Robin Long was sentenced to 15 months in prison, the harshest punishment so far for resisting the Iraq war, partly because of his political statements about the war. Multiple Federal Court of Canada decisions have granted stays of removal on the grounds that U.S. war resisters who have spoken out against the war would suffer differential punishment.
Section 171 of the UNHCR Handbook states that “where the type of military action, with whom an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could . . . in itself be regarded as persecution.”
This is precisely the position in which Iraq War resisters find themselves, refusing – as did Canada under Prime Minister Jean Chretien – to participate in a war condemned by the international community.
Second, while war resisters who have applied for refugee status may be treated the same as every other applicant, the government’s blanket opposition to war resisters as revealed in public comments by Immigration Minister Jason Kenney – who labeled them “bogus refugee claimants” – led the Canadian Council for Refugees to rebuke the minister because such a statement gives “the strong appearance of political interference” and “threatens claimants’ right to an unbiased decision.”
And to date, where U.S. war resisters have attempted to access the humanitarian and compassionate grounds application process, instead of their claims being decided fairly, the majority of these individuals have received negative decisions that are almost identical, word for word.
The final argument of the government is that they do not believe in creating a program to allow war resisters to apply for permanent residence. But the majority of Canadians do, and Parliament passed a motion to that effect last June, and again on Monday. Rather than listen to Parliament, the government has been deporting war resisters to punishment in the U.S., justifying government actions with a series of false arguments.
It is time for the Conservatives to stop making false claims and to start respecting the will of Parliament. Iraq War resisters should be allowed to apply for permanent resident status and remain in Canada.
POSTED BY: Paul Copeland is a co-founder of the Law Union of Ontario, a previous co-president of the Association in Defence of the Wrongly Convicted and Life Bencher (director) of the Law Society of Upper Canada., London
POSTED ON: April 1, 2009
EDITORS NOTE: As published in The London Free Press on April 1, 2009, reproduced here with the author’s permission
The Fight for Iraq War Resisters to Remain in Canada is a Two-Front War
The following article was sent to us by the author, Krystalline Kraus, for republication. Originally posted here.
The political front
On June 3, 2008, Canadian Parliament voted in favour of allowing Iraq war resisters to seek permanent residence status in Canada.
This non-binding motion called for the creation of a special government program to, “allow conscientious objectors and their families … who have refused or left military service related to a war not sanctioned by the United Nations to apply for permanent resident status.”
One hundred and thirty-seven MPs from the Liberal party, the NDP and the Bloc Québécois voted in favour of the motion, while 110 Conservative MPs voted against.
While the motion was passed by a majority in Parliament, the minority Conservative government under Stephen Harper has yet to enact it; this despite constant lobbying
from the War Resister Support Campaign (WRSC), immigration rights groups and anti-war activists.
The judicial front
Even though Canadian Parliament had passed the June 3, 2008, it is non-binding. Therefore the Canadian immigration system, through the Immigrant and Refugee Board
(IRB), has been issuing deportation orders to those resisters who have applied for refugee status.
These deportation orders are being contested in the Canadian judicial system as the Federal Court considers a series of IRB decisions and defendant appeals.
Canada’s immigration process includes both an Humanitarian and Compassionate (H + C) application and a Pre-Risk Removal Assessment (PRRA), to determine the impact of a deportation on the individual or if they would face undue hardship if returned to their home country.
Legal challenges
There are a number of different resisters challenging their negative H + C and PRRA decisions, requesting an appeal or a new refugee application from the IRB.
One such case includes a Federal court judge’s acceptance to review the deportation order of resister Jeremy Hinzman. This allows Hinzman and his wife and children to remain in Canada until the appeal of their negative PRRA is heard.
Despite an IRB ruling stating that Hinzman would face no undue hardship if returned to the United States to face a military trial for desertion, the Justice Mosley of the Federal Court ruled that, “[b]ased on the evidence and submissions before me, I am satisfied that the applicants would suffer irreparable harm if a stay were not granted pending determination of their leave application.”
Lawyers for the resisters and the WRSC both assert that any soldier deported back to the US to stand trial would face undue hardship. They cite an emerging trend of prosecution in U.S. court marshal proceedings that considers speaking out publicly against the U.S. government and the Iraq war grounds for increased punishment.
This risk of harsher punishment – including prosecution with charges equal to a civilian felony conviction, prison sentences, denial of veteran benefits for themselves and their family and the military humiliation of receiving a dishonourable discharge – is at the heart of Hinzman’s immigration case currently before the courts.
War refugees
In recent days, Minister of Citizenship, Immigration and Multiculturalism Jason Kenney (replacing Diane Finley) has been catching heat for public statements made to the Toronto Sun concerning US war resisters, spoken from his position as the minister directly in charge of immigration.
Commenting after resister Kimberly Rivera received a negative IRB decision on January 7, 2009, he referred to Iraq war resisters as, “bogus refugee claimants” in a later interview on Parliament Hill.
He went on to state, “I don’t appreciate people adding to the backlog and clogging up the system whose claims are being rejected consistently 100 per cent of the time.”
Minister Kenney also responded to an article written by John Hogan in the Toronto Sun where Hogan questioned the independence of the IRB in light of the Conservative governments consistent negative stance towards US war resisters. In a response to this article, he wrote that, “war resistance is futile” and re-affirmed the IRB’S independence.
Critics of the minority Conservative government claim that Minister Kenney’s comments prejudice any immigration hearings for war resisters.
Lee Zaslofsky, an organizer with the War Resister Support Campaign (WRCS), criticized Minister Kenney’s comments as political interference on the supposedly independent IRB tribunal.
“Everyone, including war resisters, has the right to expect their applications will be dealt with in a fair and impartial manner,” he wrote in a statement.
“Minister Kenney’s comments show the Harper government has a blanket policy of opposition against war resisters, which makes it nearly impossible for them to be treated on a ‘case-by-case basis’ as our government has been leading Canadians to believe.”
Criticism of Minister Kenney’s remarks were also laid down through an open letter by Elizabeth McWeeney, President of the Canadian Council of Refugees.
In the letter writ on January 8, 2009, she stated her concern surrounding Minister Kenney’s comments which she called, “highly inappropriate” since they “give the strong appearance of political interference.”
She was referring to the fact that the IRB re-appointments are made by Cabinet and IRB members might fear for their tenure if they do not toe a certain political line.
She wrote, “highly publicized cases such as the war resisters are always challenging for the IRB which must live up to its obligations to make fair, impartial and politically unmotivated determinations, based on jurisprudence and the evidence before it.”
Any political assertions otherwise, especially spoken from the minister responsible for immigration affairs, threatens the independence of the IRB and the right of war resisters to a fair immigration assessment.
McWeeny also refuted the Minister’s assumptions around the burden that war resisters supposedly place on the Canadian immigration system.
She was “shocked” that Minister Kenney would attribute the systematic delays in the refugee claim process to the war resisters, slamming the Minister for the lack of credibility to his argument since the number of war resister claims was “miniscule”.
Instead, she cited that the backlog was in fact a consequence of the Conservative government to appoint IRB members.
This slams shut the door on any Conservative government intentions to utilize a divide and conquer strategy between refugees.
The open letter ends with the Canadian Council of Refugees affirming its support for Iraq war resisters, “these are individuals who deserve our admiration for following their consciences and refusing to participate in wrongdoing, at significant cost to themselves.”
Critical juncture
This is a critical juncture for Iraq war resisters in Canada – with a series of deportation orders scheduled to start at the end of the month.
We as a society must weight their struggle using both our hands. Carefully determine the possible outcomes to their fight to remain in Canada. Carefully determine the value of life and the cost of protecting it.
Jail time in a U.S. prison for refusing to kill or a new home in Canada for refusing to kill.
The cost of laying down one’s guns and refusing to fight is soon to be determined legally in our courts and morally in the hearts of Canadians across the country.
The price: freedom or deportation.
Saddam Hussein’s Dysfunctional House of War
House of Saddam. Although I only caught a few episodes, here are my preliminary thoughts on the series.
Accurate Information in the Fog of War
Alex Homes, one of the researchers for the series, shares the difficulty in finding accurate information on Saddam’s life.
Sally and I started by reading all the biographies that had been written over the years. The first thing that struck us was how the accounts of Saddam changed over time. Fuad Matar’s biography, written in 1981 and containing extensive face to face interviews with Saddam, could not be more different that those written by Western journalists after the 1991 invasion of Kuwait. Finding incontrovertible facts was going to be a problem.
The context in which this series is written is essentially crucial, as the American electorate still struggles with a highly controversial conflict that they are still uncertain over why they are there. The infamous 2003 USA Today poll indicated that 70% believed Saddam was behind 9-11.
What We Won’t Hear Much Of
Biographical entries that will likely be glossed over or omitted from the series include how the CIA helped put Saddam in power in the first place, and helped him create lists of names for his mass graves,
In 1959, there was a failed assassination attempt on Qasim. The failed assassin was none other than a young Saddam Hussein. In 1963, a CIA-organized coup did successfully assassinate Qasim and Saddam’s Ba’ath Party came to power for the first time. Saddam returned from exile in Egypt and took up the key post as head of Iraq’s secret service. The CIA then provided the new pliant, Iraqi regime with the names of thousands of communists, and other leftist activists and organizers. Thousands of these supporters of Qasim and his policies were soon dead in a rampage of mass murder carried out by the CIA’s close friends in Iraq.
They will probably also overlook that the American administration helped arm Saddam with WMDs, and disregard the remarks by (Canadian born) U.S. ambassador April Glaspie, the State Department, and Assistant Secretary of State John Kelly over the Kuwaiti invasion.
America’s complicity in Saddam’s crimes will clearly be ignored, and of course the entire Iran-contra affair probably won’t even get a peep.
These inner corners of American politics, and how this knowledge affected the psyche and perspectives of Saddam, will be deliberately omitted.
As a reult, the series will eventually go down in history as a well-designed propaganda piece for an illegal war that destabilized the world for decades.
Rae: Canada Has Its Own Voice on the International Scene
Hon. Bob Rae spoke this morning at the University of Western Ontario Law School on A Changing World: New Directions for Canadian Foreign Policy. What follows are notes (not a transcript) from his talk.
Law Students and Public Policy
Rae said that Canadian foreign policy as an issue that is a significant one in the politics of the country. As soon to be lawyers, the issue of Canada’s role in the world is a critical concern to all of us, and one that has tremendous opportunities as law students.
There is no clearer area of public policy where the ideological contrast between parties can be demonstrated. Western has produced some of the great legal minds of our time. Justice Rand, a former Dean of the school, made considerable contributions to the foreign policy of this country.
What is Canada’s Role?
Rae asked whether Is Canada’s role in the world is to essentially ally itself with the U.S. in terms of American foreign policy and position in the world. Or is Canada’s voice in the world one of greater independence – one in which we look to Canada’ expressing strong support for multilateralism, international law, and support for multilateral institutions in relation to trade relationships.
It seems over the past 50 years there has been an implicit debate in the country over these issues, and that Harper has now made this debate explicit. His view in the world is quite simple: Canada is a country whose values and interests are tied up with the U.S., who is our most important trade partner. Our primary role is therefore to be an ally and supporter of the U.S. Other areas of foreign policy are all subordinate to that. That is the key relationship, the driving force between Canada’s role in the world.
This is a view that puts a great deal of emphasis on military power, and expects that Canada has to play a much stronger role in the military side of the equation. It downplays Canada’s traditional role at UN in supporting international institutions. Our efforts against land mines and in support of the International Criminal Court are examples of this.
War in Iraq
Rae pointed to two speeches of by Howard Hampton and Stephen Harper at time of Iraq war. His point was made by a choice made by Chretien at the time – Canada was not willing to participate in invasion of Iraq. Harper saying yes we will. Interesting enough, the words he used were borrowed from President of Australia.
Canada’s decision not to participate in the Iraq war was a defining moment, and was based on two major factors:
- The existence of WMDs
- An imminent threat
The Canadian government did not believe Saddam had WMDs, or that the evidence supporting assertion was in any way adequate. The U.S. relying on secret information, but the information provided from Hans Blix could not justify assertion.
If Canada didn’t have that information, it would still have to establish some other idea as to why it is justified as act of outside invasion. Canada’s position was clear – but the U.S. and U.K. was emphatically on the other side that whether or not there were WMDs, the risk justified invasion.
It took courage for Chretien and Graham to explain to Canadians why we were not joining our two closest allies. Now people say it’s a no-brainer – because we look at it retrospectively at the mess it created. It was controversial at time, and the criticism came mostly from Harper, who bought Bush/Blair doctrine. Harper insisted that was where Canada’s interests lay, where our values should take us.
Economic Relations
When it comes to trade relations it was Mulroney, following Royal Commission Report, that took the great leap towards negotitiations on free trade that eventually became NAFTA. Mulroney believed that if we could get from out underneath the U.S. trade umbrella and trade harrassment it would be a great deal for Canada. We would benefit from coming firmly within an America economic framework, and at the same time free ourselves from trade harassment.
By way of contrast, many people believe our long term protection is not in bliateral protection but with many countries that include the Americans. The history of our free trade is well-known, and we are going to experience its full effects in the next major while.
And we have not been able to free ourselves from trade harassment. The U.S. Senate is based on states where less than 20 percent of population control 50 percent of Senate, and is therefore dominated by agriculture and natural resource interests. The U.S likes to portray itself as supportive of free trade, but it actually relies far less on free trade than any of its trading partners.
This is just another example of where our decisions to make a special deal has actually proved short sighted.
A Foreign Policy that is Our Own Voice
Whether it is on the economic or political side, do we want to have a foreign policy where we find our own voice, or do we see ourselves as essentially being the junior partners in the American enterprise?
In recent days that choice has become very clear and sharp, and a clear example of that is the case of Omar Khadr, a Canadian citizen. He grew up in Afghanistan and was eventually captured and charged in the efforts to kill an American soldier, and has since been incarcerated in Guanatanamo Bay for that last few years.
We have to try to understand what this issue means for Canada. It’s not just about the politics of do we like what he did or was accused of doing. There are two major issues:
- What do we do with child soldiers?
- What do we do with Canadians in these situations?
There have been enormous procedural delays in his trial, with the head of the military tribunal recently being replaced. There have been two recent Supreme Court cases in the U.S. critical of Guantanamo, and how it is being administered by the American government.
They stated that the law of habeas corpus does apply, and that it is not simply possible to incarcerate people without letting them know what htey have been charged with. These are fundamental principles of our justice system. The second case is worth reading simply to review the very basics of habeas corpus and its role in the legal system.
Canada is a signatory to the international treaty aimed at rehabilitating child soldiers. It’s fundamental to get these people out to rehabilitate them to let them continue on with their lives.
Sri Lanka has an issue with this on the rebel side, where people can be recruited as young as 12 and sent into battle by the age of 14 or 15. If you capture them, what do you do? Do you treat them as a soldier, as a child, or as a child soldier?
There are protocols that have to be followed. The U.S. military tribunal has said we are not interested in this, and it does not pertain to the treatment of Omar Khadr.
The Question for Canada
The question for Canada is that we’ve gone along for a long time to see what kind of justice people like Omar Khadr can get. We said, let’s hold judgment until we see what kind of treatment he gets.
And frankly, we’ve seen quite enough.
Senator Obama and McCain have both said they would close Guantanamo, and find another method to try people that are there.
We can also look at the issue of members of the Uighur community of Xinjiang in Western China, which has long issues with the extent of which it is being ruled and human rights issues. How do we respond as a country when dealing with the possibility of courts where we disagree with their approach to a legal system?
In the case of Guantanamo, it puts us in a ridiculous position where the only person thinking Omar Khadr should stay in the U.S. and would get a fair trial in the U.S. is Stephen Harper.
Again, even McCain says it should be closed. This is an absurd position for Canada to be in.
Differing with America is not Anti-Americanism
Mr. Rae also distinguished the mission in Afghanistan from that in Iraq. The U.N. agreed to the mission. contrary to Iraq. We believed we were going there to help set up a new government and support them.
The Liberals would like to change the focus to reflect this interest, away from military activities to training the Afghan army and politically helping the government create a more stable arrangement. The 2011 withdrawal date was what was initially agreed upon by parliament, and when all countries said the mission would come to an end.
These are the principles we should try to apply: that we intervene when we believe it is lawful to do so, and when it is justified by international law.
Canada is not a superpower. It is not an empire, and we do not have imperial ambitions. All we want to do is participate in a stable international world order.
That is why we’ve been such strong supporters of the U.N. The Universal Declaration of Human Rights was drafted by a Canadian after all.
Our interests as a small country, a relatively small power, are different from that of our neighbours. It means we will agree and disagree from time to time. It does not mean we are anti-American, it just means we have different interests.
Get Involved as Law Students
There are many ways you can be involved and engaged in this world.
Your generation has more opportunity to see more, to do more, to be more engaged than any generation in hum history.
Try to make a difference. Find out what gives you passion, and take those ideals and interests wherever you may go.
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