Prime Minister Stephen Harper continues to align Canadian foreign policy with that of the U.S. If the newly minted President Obama continues with unlawful policies like extraordinary rendition, preventive imprisonment, and torture at Bagram Air Force Base in Afghanistan and elsewhere in the rendition archipelago, then Harper will follow him down the seemingly inexorable slide toward Canada’s further undermining of international human rights law.
Both domestic and international law are being degraded – at least if the recent report by the International Commission of Jurists, “Assessing Damage, Urging Action [.pdf],” is anything to go by. It carefully documents the extent to which the attempt to fight a misguided “war on terror” has resulted in the deliberate and systematic destruction of international humanitarian and human rights law with terrible consequences for domestic law as well. For so-called democratic countries, this is the road to tyranny.
Such political and legal corruption is our responsibility and cannot be blamed on any of the usual suspects. It originates in the strategies, tactics, and choices of American, Canadian, British, Australian, and European governments. The quantity and variety of attempts to avoid or transform long-established and effective criminal justice laws and principles, as well as to hide human rights violations, constitutes a systematic assault on the very idea of human rights.
The reasons offered for this assault are clear enough. The new terrorism is supposed to constitute a unique threat that existing law, both domestic and international, is inadequate to counter. Requiring state officials to adhere to these, it is claimed, forces them to fight at a disadvantage against a ruthless and determined enemy not similarly bound by moral principle.
This is a disastrous attitude, as the ICJ report makes clear. For example, intelligence-gathering is continually empowered at the expense of legal safeguards, judicial oversight, and public accountability. Judicial oversight is necessary to ensure that only those who are genuinely involved in violence are detained and possibly punished. But if materials are withheld from judges on grounds of secrecy and national security; or if judges are not allowed to independently consider the evidence concerning a given individual, then crucial protections for each citizen are abolished. If candidates lack access to a lawyer or to the information that is used against them, then they have no opportunity to demonstrate their innocence. They are then imprisoned and have their rights violated in a number of ways, up to and including torture and execution.
Furthermore, ambiguous and vague laws have been formulated that undermine the principle of legal certainty. This is the idea that persons must be able to determine whether or not a given action is criminal. Given that people generally want to avoid punishment for crimes, it is important that we know which actions are permissible and which are not. But the ICJ report criticizes Canada, among other states, for the formulation of laws like the 2001 Anti-Terrorist Act, which punishes “facilitation,” an ill-defined and ambiguous term. The report specifically notes the deterrent effect such ambiguity has had on humanitarian groups and charities who work in conflict zones, since the provision of food, shelter, and other needed resources to communities might in some circumstances be construed as facilitating the acts of a local faction.
Other common practices include preventive detention, the practice of imprisoning suspects for indefinite periods for fear that they might participate in political violence; information-sharing between countries without regard for a government’s human rights record and without the provision of adequate political and legal safeguards governing the use of the shared information; extraordinary rendition, a practice used by the United States to extraterritorially kidnap a citizen of another state (with or without that state’s compliance) and remove them to a country where they are subject to torture and other cruel, inhuman, and degrading treatment; the establishment by the United States of a network of secret prison camps where suspects can be treated without any legal or other public oversight; the use of immigration law to deport suspects, without any appeal, as a means of avoiding the domestic court process; the issuing of control orders to restrict the movements of individuals who have not been charged and in most cases never will be charged with a crime; denial of legal representation and denial of access to the information used against the suspect; and complicity and/or direct participation in torture. Since these measures target specific ethnic and religious groups – mainly Muslims – these measures contribute to increased racial and religious discrimination in Canada and elsewhere.
This is the degradation of our most basic and cherished political and legal principles. We are courting constitutional suicide. We must take this report seriously and support its emphasis on reestablishing and buttressing domestic criminal law institutions and international human rights. We must repudiate the idea that non-state violence can be overcome through military means, i.e., the “war on terror.” Rather, this violence must be resolved through careful attention to issues of justice both domestic and international. Anything else will only enhance the terrifying downward legal spiral identified in this important report.
