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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Thursday
Nov132008

Whither the 1267 Committee?

 

Cross-referencing: National Security Law (NSL), Ch. 6, pp. 244 et seq.

 

The 1267 Committee of the United Nations Security Council (now billed "the Al-Qaida and Taliban Sanctions Committee") administers the (mostly) financial sanctions regime against Al Qaeda and Taliban and their affiliates.  It has been roundly condemned for being light on due process.  See the discussion at NSL p.245. 

 

Sooner or later this suspect system was bound to run aground the domestic legal systems of implementing states.  In September 2008, it hit the wall in Europe, long a hotbed of unhappiness with the 1267 process. 

 

In the joined cases of Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the EU and Commission of the EC, the European Court of Justice declined to give primacy to the United Nations Security Council's powers under Chapter VII of the UN Charter.  While it agreed it was not competent to review the Security Council itself, it was competent to assess whether the EU regulation implementing the sanctioning regime complied with concepts of fundamental rights protected by the European "Community legal order".  The short answer was "no", because of the absence of any real due process in the manner in which the EU regulation imposed the sanctions (after all, the list employed by the EU is handed down by the 1267 committee, where due process is scarce).

 

The Europeans will now have to a) either cobble together a system that may diverge in form and results from the one at the UN level because it does require due process before sanctions are imposed or b) convince the Security Council to either modify or abandon its scheme.  (For a discussion of the implications for Europe, see the ASIL insight on this case).

 

If option b) is not forthcoming, I would suspect that it's only a matter of time before similar challenges arise under the constitutional law of other countries, including Canada.  (As noted in NSL, p.260, the Libman Hussein case came close to being that challenge, but was settled).

Thursday
Nov132008

Moving towards Interactive Assessment of Anti-terrorism Law?

Some of us have been very critical of the "three year" review of Canada's Anti-terrorism Act, completed (belatedly) in 2007.  See for example the piece authored by Kent Roach on this issue, and my subsequent discussion.

 

In my piece, I praise what I describe as the more promising experience of the United Kingdom and Australia of close parliamentary or independent assessment of terrorism laws, and urge the introduction in Canada of an "independent evaluator" of anti-terrorism laws, on the UK model.  It would appear that Australia is now moving closer to this UK-style system, in a bill that made its way through the Australian Senate in November 2008.

 

Canadian legislators looking for something useful to do in enhancing accountability in the national security area could do worse than take inspiration from this instrument.  (Although this inspiration should not distract the government or Parliament from implementing the Arar Commission's policy recommendations, gathering dust on shelves now for almost two years.) 

Thursday
Nov132008

Khawaja trial decision: the scope of the armed conflict exception

In Khawaja, the Ontario Superior Court of Justice returned (mostly) guilty verdicts in late October in Canada’s first terrorism trial of an adult since the enactment of the 2001 Anti-terrorism Act.  (The relevant provisions are found in Canada's Criminal Code.)  Khawaja was convicted on most counts for working in concert with the members of a terrorist group in the United Kingdom, themselves convicted in 2007 under UK law.

 

At issue, in part, in the decision was Khawaja’s knowledge that the technical assistance he provided to this group was directed at planned terrorist attacks in the United Kingdom.  The defence urged that, to the contrary, Khawaja was committed to participating in acts of violence in Afghanistan.  Since Afghanistan is currently in a situation of “armed conflict”, Canadian anti-terrorism law was of no application.  (Query whether this defence doesn't open the door to treason charges, an antiquated crime but one still in the Criminal Code.  For a discussion of the application of treason in this context, see the report prepared on possible Canadian criminal prosecution of Omar Khadr, posted on this site).

 

Specifically, Canadian law, in its definition of “terrorist activity”, excludes, inter alia, "an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict". 

 

As noted in National Security Law,p.273, this Criminal Code exclusion differs from analogous provisions in international anti-terrorism treaties.  The latter generally confine the reach of the exclusion to "armed forces" who are "governed" by the law of armed conflict (in essence, international humanitarian law such as the Geneva Conventions and their customary international law equivalents).  The Criminal Code exclusion is, therefore, both narrower and broader than its international analogues.  It is broader in that it applies to combatants who may not also be "armed forces".  It is narrower in the sense that, to be entitled to the exception, one must act "in accordance" with the laws of war, and not simply be "governed" by them.

 

In Khawaja, the Superior Court of Justice ultimately arrived at a sensible application of the armed conflict exclusion in the Criminal Code: reduced to its essence, the Court concluded that whether or not the events in Afghanistan constitute an "armed conflict" (and on this point, there is no actual doubt in international law), Mr. Khawaja and his UK counterparts were not physically located in that armed conflict.  The exclusion could not, therefore, reach Khawaja.  To relieve Khawaja of his culpability under anti-terrorism law because he wished to make a contribution to an overseas armed conflict would unduly limit the reach of anti-terrorism law.  It would also have the effect of extending the reach of "armed conflict" to theatres well beyond those in which actual hostilies are occurring. 

 

Ironically, much of the justification for the Bush approach to the "war of terror" is grounded in a tacit or sometimes express belief that there exists a global state of armed conflict between the United States and Al Qaeda, one that extends beyond theatres of active combat such as Afghanistan.  (On this point, see the relatively nuanced position of U.S. Department of State legal advisor John Bellinger.)  The effect of such a doctrine is to limit the reach of general rules of international law otherwise applicable (such as international human rights law) in favour of (in the case of the Bush administration) a sometimes strained application of the laws of war.  The latter are significantly less protective of human life than is international human rights -- killing combatants is permissible in the laws of war.  In international human rights law, there is no such exception.

 

The much more desirable approach is to limit situations of armed conflict to the actual theatres of conflict.  On this point, however, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is somewhat ambiguous.  In Tadic, it described international humanitarian law as applying (in internal conflicts) to the "whole territory under the the control of a party [to the conflict], whether or not actual combat takes place there".  For international conflicts (between states), international humanitarian law applies to the "whole territory of the warring States".

 

Under this reasoning, if (and this is an "if"), because of its participation in the Afghan conflict (most plausibly an internal armed conflict at present), Canada itself can be considered a party, then under this reasoning, international humanitarian law attaches to events in Canada because, presumably, these shores are the territory of a party to the conflict. 

 

The results of this conclusion would, however, be perverse: in international law, Khawaja would be an unprivileged belligerent (that is, a civilian taking an active part in hostilities) and appropriately the target of a military style assault to quash his actions in support of the insurgency in Afghanistan.  Obviously, shooting at Khawaja would not be a desirable approach to dealing with his actions. This is not a place one would wish to take the armed conflict analysis, but it is (in international law) a quite plausible natural extention of declaring Khawaja to be a participant in an armed conflict.

 

In fact, though, even if Khawaja was operating in a situation of armed conflict, to be entitled to the Criminal Code exception, his acts would have to be in accordance with the laws governing that armed conflict.  At one level, one could envisage participation as an unprivileged belligerent as inherently in non-compliance with the laws of armed conflict (although, at one level, that steers the analysis close to the Bush administration approach).  

 

Perhaps more cogently, the bottom line is that the insurgency in Afghanistan pays no heed whatsoever to the laws of armed conflict -- civilians have been indiscriminately targeted.  In allying himself with this sort of insurgency, therefore, it can be plausibly argued that Khawaja would not act in keeping with international humanitarian law.  The Ontario Superior Court's decision has some discussion that steers close to this sort of approach, although it gets there along a different route.  It is also an argument advanced in the aforementioned analysis of the Khadr case.

 

(It must also be acknowledged that excessive resort to aerial bombardment in Afghanistan has meant that civilians are also killed in shocking numbers by allied forces.  These forces are lawful combatants -- being members of armed forces that subject themselves to the laws of war.  The rules are, therefore, slightly different.  One assumes that these casualties are unintended, and therefore compliance with international humanitarian law turns on whether these (unfortunately termed) 'collateral' casualties are proportionate to a legitimate attack on a target of military advantage.  Yes, there is an asymmetrical law in asymmetrical war).

 

All of this is to say that the Ontario Superior Court was correct in dismissing the armed conflict exception and its application to Khawaja.  While the legal issues are not clear cut, the policy implications of an alternative finding would be highly undesirable.