About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Friday
Nov272009

Bill C-35: An Act to deter terrorism, and to amend the State Immunity Act

 

Cross-Referencing: National Security Law (NSL) Ch. 7.

In June 2009, the government introduced Bill C-35 in the House of Commons. If enacted, this law project would create a civil cause of action for terrorism (linked to the concept of terrorism offences in the
Criminal Code).  It also eliminates state immunity against such lawsuits for state-supporters of terrorism.  The latter are relieved of the protections of the State Immunity Act, once they are listed as terrorism supporters by the Governor in Council.

 

The Library of Parliament has prepared an excellent summary
of this bill
, and some of the commentary (and criticism) it has elicited.

For my part, I support this bill. First, I have no objection to the idea of
terrorists and their state sponsors being amenable to the civil jurisdiction of
Canadian courts. Indeed, there is a certain symmetry in emphatically extending
civil jurisdiction over terrorists. After all, since 2001, both territorial and
extraterritorial terrorism activities are cognizable as crimes in Canada.  Yes, I believe the new law would be
largely symbolic – much like the Alien Tort Claims Act in the United States. 
It seems unlikely it would be employed that often, and even less
frequently would damages be collected. However, I see no difficulty with
symbolism. And, at any rate, there have been cases under the ATCA that go well
beyond symbolism. The fact is that terrorists do occasionally wash ashore in
Canada, and I am not at all troubled by the prospect that they might be served
with a statement of claim soon after.

Second, I believe that the new bill is constitutional from a
division of powers perspective, in exactly the same manner as the civil
remedies in the federal Competition Act are constitutional.  On this point,
I take great comfort, for example, in the Supreme Court’s holding in General Motors of Canada Ltd. v. City
National Leasing
.

 

Last, I believe it would be possible to employ this law in a manner consistent with public
international law.

It is important to be clear on this point.  On its face, this bill is inconsistent with public international
law in so far as it lifts state immunity for state supporters of
terrorism.  State immunity is not some peculiarly Canadian concept codified in the State Immunity Act. On the contrary, the latter implements Canada’s public international law obligations. If the State Immunity Act falls out of alignment with public international law, we have a problem.  First, we
risk a Congo v. Belgium-style savaging in the International Court of Justice.

 

Second, we may attract countermeasures from other states. We
open the door to lawsuits against, say, Iran in Canada, and Iran takes steps
against some Canadian interest in Iran. 
Iran might be inclined to take such steps anyway, but a violation of
state immunity rules by Canada opens the door to a potentially viable claim by
Iran that its actions constitute bona
fide
countermeasures in public international law.

 

 

 

There is an earnestly help view out there that state
immunity rules do not apply to state support for terrorism (or torture, crimes
against humanity, war crimes, or genocide).  That argument usually urges that because the prohibitions on
these acts are jus cogens, there simply can’t be state immunity in relation to
the civil suits they might prompt. 
This is a logical and quite attractive line of thinking.  It is not, however, correct.  My views on this point are found in
Craig Forcese, “De-Immunizing Torture: Reconciling Human Rights and State
Immunity,” (2007) 52 McGill Law
Journal
pp.127-169.

 

Nothing has happened since that article to change my mind
(although, I’d be happy to be proved wrong on this point). Put simply, there is
simply no sufficiently widespread and consistent state practice with opinio juris establishing such acts as
exceptions to state immunity. I wish there were, and indeed bill C-35 might
someday count the column of such state practice.  But at present, it just doesn’t exist.

 

 

 

Meanwhile, there is quite a bit of international law that
closes the door to such an exception. Belgium
v. Congo
couldn’t be more hostile to the notion that really awful behaviour
is exempted from state immunity. Admittedly, that case involved the ratione personae species of state
immunity and not ratione materiae.  Still, no support for a jus cogens exception to state immunity
in relation to the latter can be found in (admittedly puzzling) decisions such
as the House of Lords holding in Jones v.
Saudi Arabia
.  Nor can a few
outlier Greek and Italian cases with different holdings be considered
decisive.  First, they turned on
rather peculiar and distinguishable facts (not least, German actions on Italian and Greek soil in
World War II).  Second, Germany has taken Italy before the International Court of Justice because of these cases, and Italy may well
take a bruising.

 

Perhaps most damning, the very recent UN Convention on the Jurisdictional Immunities of States and their
Property
(not yet in force) recognizes no exception to state immunity for
terrorism, or any of the other jus cogens
candidates.  I agree fully that
it boggles the mind that commercial activity by states is exempted from state
immunity, while terrorism, torture etc., is not. But there are historical
reasons for that, and it is what it is.

 

 

 

All of this brings me back to my observation that it should
be possible to apply bill C-35 in a manner that complies with public
international law.  Here, the
Governor in Council listing process is absolutely critical.  I know that there is a constituency out
there that dislikes this listing discretion – they want the matter handed to
the judiciary plain and simple, without a prior listing by the executive.  I understand that preoccupation – parts
of hell may freeze over before Foreign Affairs agrees to list a state
with any degree of enthusiasm.  But
then, heel dragging on listing could itself be amenable to judicial review
(albeit on a very tender standard of review).  And, to give Foreign Affairs some credit, there just might
be good diplomatic reasons not to list a given state.

 

But most importantly, having the executive stand as the
gatekeeper opens the door to a background strategy that would keep our actual
use of this law compliant with public international law. Here’s how I think it
would have to work: a state sponsor of terrorism is (beyond any shadow of a
doubt) violating its international obligations.  Even if that state has never signed an anti-terrorism treaty
in its history, there are enough UN Security Council resolutions issued under
Chapter VII of the UN Charter that now make anti-terrorism a firm international
obligation of every state in the international community.

 

 

Having violated its international obligations, that state
now faces the prospect of legitimate countermeasures.  On this point, I simply reproduce my argument for how best
to engineer lifting state immunity for state torturers, set out in the McGill Law Review article cited above
(with footnotes removed):

 

 

 

 

…countermeasures are permissible so long as proportional
to the original breach, limited in time until the target state again conforms
to its obligations, and do not themselves violate certain listed, core
principles of international law. While diplomatic and consular immunity are
included among the latter, state immunity is not. Certain procedural
requirements concerning notice must also be met.  Specifically, the state imposing countermeasures must “[c]
all
on the responsible State … to fulfil its obligations [that are being breached]”
and must “[n]otify the responsible State of any decision to take
countermeasures and offer to negotiate”.

 

 

It follows that Canada would be
free to relax state immunity rules in response to a violation of the
prohibition on torture [or, as in bill C-35, terrorism] by another state for so
long as those violations persist. 
Opening the door to lawsuits seeking compensation for acts of torture
would be a step clearly directed at deterring the violation, and more than
proportional to the offence.  Civil
liability is, after all, largely about compensation for injury done.  

 

 

Of course, in order to comply
with rules on countermeasures, Canada would have to call upon the violating
state to meet its obligations, and then give notice of its intent to introduce
the countermeasure.  A blanket
waiver of rules of state immunity for torture [or terrorism] in Canada’s State Immunity Act would not satisfy
these requirements.  However, Canada
could adopt an approach analogous to the US FISA rules allowing litigation against
state sponsors of terrorism. 
this FISA exception to immunity is triggered only where the state is designated
as a terrorism supporter by the US government.  Put another way, the abrogation of state immunity is
dependent on executive branch approval. 
Likewise, Canadian rules allowing lawsuits against states for torture
could condition the removal of state immunity on certification from the
Canadian government.   

 

 

 

 Hence
the need for the listing process anticipated by bill C-35, plus a lot of
background action by the government prior to any listing to make sure the listing complies with the
countermeasure pre-requisites discussed above (e.g., the notice requirement, etc.).   (On the last point, it may also be the case that even for a lawsuit in
progress, state immunity would have to be restored if a state suddenly began
complying with its anti-terrorism obligations but that is a debate for another
day).

 

 So
my response to those who object to the government listing process is: be
careful what you wish for. A law that puts Canada in non-compliance with public
international law is just a trainwreck waiting to happen. Better to have the
listing process, with all the concerns about executive branch gatekeeping, than
no law at all.

Thursday
Mar052009

Intelligence sharing agreements examined from a civil rights perspective

I am completing for publication an article based on a paper I delivered last Fall.  That paper concerned international intelligence sharing arrangments, with a focus on their human and civil rights implications.  The revised chapter shifts the focus of this paper more squarely on privacy issues.  I have, however, posted the fuller October version on SSRN.

Tuesday
Feb172009

The Charter and Guantanamo: More Federal Court jurisprudence on the reach of the Charter of Rights and Freedoms

Cross-referencing: National Security Law (NSL), Ch. 2, p.32.

 

In its February 2009 Slahi decision, the Federal Court offered yet another assessment of the Supreme Court's jurisprudence on the Charter of Rights and Freedoms' extraterritorial reach.  Put simply, Justice Blanchard concluded that on facts otherwise analgous to those at issue in the Supreme Court's Khadr decision, the Charter did not reach the conduct of Canadian officials conducting interrogations at Guantanamo Bay.  (At issue in Slahi, as in Khadr, was whether Canadian participation in interrogations made information held by Canada from those interrogations disclosable under Charter section 7 for use in American proceedings; in Slahi, in a habeas petition before US federal court.)  The key distinguishing fact for Justice Blanchard was the nationality of the applicants.  In Khadr, Khadr was a Canadian citizen.  In Slahi, the two applicants were foreign nationals, albeit ones who had lived in Canada. 

 

 In rejecting the application of section 7, Justice Blanchard held that: "for section 7 Charter rights to apply, the circumstances must connect the claimant with Canada, whether it be by virtue of their presence in Canada, a criminal trial in Canada, or Canadian citizenship."

 

Justice Blanchard's decision is a careful parsing of the Supreme Court jurisprudence on the issue, and is considerably more persuasive than, for example, the recent Federal Court of Appeal decision on Afghan detainees.  But with respect, Justice Blanchard, like the Federal Court of Appeal, is preoccupied with citizenship, to an extent that sits uncomfortably with the doctrine that the Supreme Court (in my view) has developed in Hape and Khadr.  That doctrine (as I read it) does not depend on whether the victim of the said Charter breach was a Canadian or not to ground the extraterritorial reach of the Charter.  Yes, the facts in those cases did involve Canadians.  But the doctrinal discussions did not emphasis that link of nationality.  Instead, the test for extraterritoriality hinges on whether that done to the alleged victim was consistent with Canada's international obligations.  The Charter follows the flag to the extent that Canada's international human rights obligations follows that flag, irrespective of the nationality of the victim.

 

Any other approach to this question risks peverse results.  For example, under the Federal Court's current reasoning, a Canadian official who commits an extraterritorial execution overseas is not touched by the Charter, so long as the person so executed was a foreigner.  This rationale would come uncomfortably close to one of the Bush administration's positions on the reach of US anti-torture obligations.  At one point, that administration took the view that US obligations in international law not to engage in cruel, inhuman and degrading treatment did not extend to the treatment of foreign nationals overseas, because the US constitution did not reach those foreigners.  That position is one of several that should now be regarded as lying on the wrong side of history.  It would disappointing if Canada were to stumble onto this now discredited approach in its own jurisprudence.