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

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.

Wednesday
Nov122008

New rounds of updates pending

After several months of developments in the legal issues surrounding national security in Canada, I will be completing a round of on-line updates to National Security Law: Canadian Practice in International Perspective on this blog.  These entries will be completed over the next several weeks in November and December 2008.

Friday
Mar142008

Denial of Passports on National Security Grounds Unconstitutional

 

Cross-referencing: National Security Law (NSL), Ch. 3, pp.518 et seq.


In a decision released in March 2008, the Federal Court has held the government's current passport order, authorizing the denial or revocation of a passport on national security grounds, unconstitutional.  This provision was added during the recent litigation over issuance of a passport to one of the Khadr brothers.  In the March decision, Justice Noël held that the provision violate section 6 of the Charter -- the mobility right -- and is not upheld under section 1 as "prescribed by law" and demonstrably justified in a free and democratic society.  (The government actions also violated procedural fairness obligations in administrative law).

The section 6 conclusion is not surprising, given the essential nature of passports for international travel.  Nor is the Court's emphatic (and welcome) conclusion that the exercise of a royal prerogative power (of which the issuance of a passport remains one) is subject to judicial scrutiny.  The Court's section 1 analysis is, however, an interesting departure from the standard Oakes-style test.  Rather, the Court simple considered the provision to fail on the "prescribed by law" pre-requisite to the application of section 1. 

In measuring whether the provision is "prescribed by law", the Court concludes that to be so prescribed, the law must be sufficiently clear.  It turns then to the jurisprudence on unconstitutional vagueness/overbreath (developed in connection with section 7 of the Charter) to assess this clarity.  The reference to passport denials "necessary" on "national security" grounds is inherently ambiguous and lacks the certainty the Court considers necessary to make the measure "prescribed by law".  It is not, therefore, sustainable on section 1 grounds.

This approach to section 1 might have interesting ramifications.  The Canadian statute book -- not least section 38 of the Canada Evidence Act  and the security certificate process under the Immigration and Refugee Protection Act -- invoke "national security" to limit disclosure of information.  If these sections counter a substantive constitutional right, the Court's reasoning suggests that the reference to national security alone will not preserve the sections on section 1 grounds.

In relation to the passport order, the declaration of invalidity was suspended for six months to allow a redrafting.  If the government follows that course rather than an outright appeal, it will have to provide precision as to what it has in mind when it invokes "necessary" to "national security".  The better approach may be to recraft the passport order to add clarity.  To this end, the government might wish to look to the admirable precision of section 4A (and section 8A) of the New Zealand Passports Act:

4A Refusal to issue passport on grounds of national security

(1) The Minister may refuse to issue a New Zealand passport to a person if the Minister believes on reasonable grounds that—

(a) the person is a danger to the security of New Zealand because the person intends to engage in, or facilitate,—

(i) a terrorist act within the meaning of section 5 of the Terrorism Suppression Act 2002; or

(ii) the proliferation of weapons of mass destruction; or

(iii) any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand, carried out for purposes of commercial or economic gain; and

(b) the danger to the security of New Zealand cannot be effectively averted by other means; and

(c) the refusal to issue a passport will prevent or effectively impede the ability of the person to carry out the intended action.

 

 

 

(2) If the Minister refuses to issue a passport under this section,—

 

(a) the Minister must notify the person in writing of the refusal, and the reasons for it; and

 

(b) the person is not entitled to obtain a New Zealand passport during the 12-month period starting with the date of the notice, unless the Minister's decision under this section is revoked by the Minister or by a court.

 

 

 

(3) The Minister may, at any time before the expiry of the 12-month period referred to in subsection (2)(b), apply to a Judge of the High Court for an order to extend for a further period not exceeding 12 months the period during which the person is not entitled to obtain a New Zealand passport.

 

 

 

(4) The Judge must make the order applied for if satisfied that—

 

(a) the information presented in support of the application is credible, having regard to its source or sources; and

 

(b) the information reasonably supports a finding that paragraphs (a), (b) and (c) of subsection (1) still apply in relation to the person concerned.