“Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror.”
Kofi Annan, then Secretary General, United Nations, December 10, 2005
The prohibition against torture in Canadian and international law is absolute. It is considered a peremptory norm of international law from which there can be no derogation, even in times of emergency. The absolute prohibition against torture is found in Canada’s constitutional obligations, in the International Covenant on Civil and Political Rights, in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in international humanitarian law including the 1949 Geneva Conventions and the 1977 Additional Protocols, and the Rome Statute of the International Criminal Court.
A component of the absolute prohibition against torture is the principle of non-refoulement. This principle prohibits the return, transfer, extradition or deportation of an individual to a State where that individual faces the risk of torture, cruel, inhuman or degrading treatment. The principle of non-refoulement is a legal obligation binding upon Canada in our domestic law and in international refugee law, in international human rights law, and in international humanitarian law.
CCLA is concerned that Canada has acted in the name of national security in ways that contravene – and threaten to erode — the absolute prohibition against torture and the principle of non-refoulement:
allegations that Afghan detainees were transferred by Canadian officials to the Afghan National Directorate of Security where the detainees were subsequently tortured, raise questions about Canada’s complicity in torture. CCLA is currently monitoring the Military Police Complaints Commission hearings which resumed in April 2010, and has called for an independent Public Inquiry into the transfer of Afghan detainees;
allegations of transferring individuals to another State where the individual is tortured raise questions about complicity in torture. These questions arise in the case of Benamar Benatta, who was transferred by Canada on September 12, 2001, to the US where he was detained for five years; the UN Working Group on Arbitrary Detention found that the conditions of his detention in the US amounted to “torture”. A US Court dismissed subsequent charges against Mr. Benatta, finding that the intelligence linking him to possible terrorist activity was a “ruse” and a “sham”. After 5 years of US detention, Mr. Benatta returned to Canada where he obtained refugee status. He is now seeking damages for Canada’s actions in his alleged illegal transfer and subsequent torture in the US. CCLA continues to monitor this case;
allegations that Canada requested the detention of a Canadian citizen and refugee by the Sudanese government also raise questions about what Canada knew or ought to have known about the subsequent torture of the individual. These issues are currently before the Federal Court in the case of Abfousian Abdelrazik who is suing for damages resulting from his prolonged detentions and torture in Sudan and Canada’s alleged role in both. He claims that Canada should have known that Sudan has a documented record of abuse and torture of detainees. In June 2009, the Federal Court held that Mr. Abdelrazik’s right to return to Canada under the Charter had been breached by the government’s refusal to issue him an emergency passport, after his passport expired while he was in Sudanese detention; in that case, the Court further held there was no reason to challenge Mr. Abdelrazik’s claim that he was tortured, but found there was no evidence that Canada knew he was being tortured while detained in Sudan. Mr. Abdelrazik has not been convicted of any crime in Canada or in any other country. CCLA is continuing to monitor this case;
Canada provided information to the US about Maher Arar without screening the reliability of this information. Maher Arar was detained in the US and then ‘removed’ to Syria where he was tortured. When he returned to Canada, government officials downplayed his torture and leaked misleading and damaging information about him. The O’Connor Commission of Inquiry found there was no evidence to link Maher Arar to any offence or security threat to Canada. CCLA is seeking intervener status, along with other Canadian civil liberties groups, in Mr. Arar’s action against the US government currently before the US Supreme Court;
Canada participated in questioning Omar Khadr, a minor and a Canadian citizen, during his detention by Americans, despite knowledge that Omar Khadr was being subjected to the ‘frequent flyer program’ – a method of sleep deprivation. The Supreme Court of Canada in January 2010 found that Canada had breached Mr. Khadr’s Charter rights by interrogating him while he was being ‘mistreated’, and sharing this information with the US which may have contributed to his ongoing detention and which may be used in upcoming US proceedings. CCLA intervened in the Omar Khadr case before the Supreme Court of Canada, and continues to monitor his status in the US as a detainee at Guantanamo Bay slated for a hearing before the US Military Commissions;
Accountability is the safeguard against impunity, and part of Canada’s legal obligations to uphold the absolute prohibition against torture. CCLA calls upon Canada to:
hold an impartial public inquiry into the transfer of Afghan Detainees
seek the repatriation of Omar Khadr, as an appropriate remedy, following the Supreme Court of Canada 2010 decision that his Charter rights were violated
follow-through with the December 2010 Standing Committee on Public Safety and National Security House of Commons vote to publicly apologize to and compensate Messrs. Abdullah Almalki, Muayyed Nureddin, and Ahamad El Maati;
implement all the recommendations of the 2006 Maher Arar Commission of Inquiry
This morning in Geneva, CCLA addressed State Delegations at a pre-session of the Universal Periodic Review (“UPR”), organized by the organization UPR-Info. CCLA’s intervention was to update States on our concerns about Canada’s ongoing human rights record, in anticipation of Canada’s Second Universal Periodic Review. Canada, like all member States of the United Nations, participates in the Universal Periodic Review process, in which States make recommendations to each other on steps to further adherence to international law commitments, and the State Under Review (in this case, Canada) has the option to “accept” or “reject” recommendations, and to undertake “voluntary commitments”. The purpose of the 2nd UPR of Canada incorporates examining progress on Canada’s commitments made during the first UPR in 2009.
Nathalie Des Rosiers, CCLA General Counsel and Executive Director, addressed the State delegations this morning on behalf of CCLA. She was part of a delegation of Canadian NGOs who took the floor during the Pre-Session this morning.
Later in the day, CCLA participated in a “working lunch” at the Canadian Permanent Mission to the UN, with other Canadian NGOs.
UN Special Rapporteur Says it’s Time for Accountability and Truth on Extraordinary Renditions & Torture
MARCH 6, 2013 – Yesterday before the UN Human Rights Council in Geneva, Mr. Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, presented his report setting out framework principles to hold public officials accountable for gross or systemic human rights violations committed in the context of state counter-terrorism initiatives.
CCLA commends the Special Rapporteur for calling for accountability for those who may have committed international crimes in the name of counter-terrorism, and for calling for the declassification of information that will reveal the truth behind the alleged rendition and torture of individuals and those responsible. Only through observance of international legal standards, including lawful detention, lawful surveillance, and lawful interrogation can terrorist threats be averted, and those guilty of terrorist acts be prosecuted and punished.
“Where laws are broken, and international crimes committed, where process is abused, and where individuals are tortured, we must seek accountability” said Nathalie Des Rosiers, General Counsel for CCLA. “To do nothing contaminates our legal system and our society — and contributes to cultures of illegalities.”
“International crimes committed in the name of counter-terrorism do not keep us safe,” she continued, “impunity actually threatens peace and security.”
Geneva, March 5, 2013 – Today before the UN Human Rights Council in Geneva, Mr. Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, presented his report setting out framework principles to hold public officials accountable for gross or systemic human rights violations committed in the context of state counter-terrorism initiatives. Further, the Special Rapporteur seeks proper investigations into, and accountability for, alleged secret renditions, detentions, interrogation and torture of terrorist suspects by the United States and by the United Kingdom. The Report also refers to the Special Rapporteur’s participation in a 2012 fall conference of the Canadian Civil Liberties Association, and points to Canada’s Arar Inquiry as a model for accountability inquiries into the actions of government officials in counter-terror initiatives.
A central issue to the Report is accountability for the internationally wrongful acts of Bush Administration officials post 9-11, including alleged secret detentions, renditions, and torture of terrorist suspects. The complicity of officials of third States which operated “black sites”, to which individuals were ‘transferred’, detained, and interrogated or tortured, is also raised.
Mr. Emmerson in his report notes that although there has been public acknowledgement of CIA involvement in secret detention programs abroad, and the use of “waterboarding” on “high value detainees”, no US officials have been held accountable for these actions. The report notes that President Obama upon taking office unequivocally confirmed the view of the international community that “waterboarding” amounts to torture. The decision by US Attorney General Eric Holder not to prosecute any official who had acted in good faith in pursuance with the advice provided to the Bush Administration by the Office of Legal Counsel, in the view of the Special Rapporteur “comes close to an assertion of the “superior orders” defence, despite its prohibition under customary law and relevant international treaties.”
In order to uphold the right to the truth that is integral to accountability proceedings in international human rights law, the Special Rapporteur calls for the release of vital information – “subject only to such redactions as strictly necessary to safeguard legitimate national security interests” or the safety of particular individuals. Mr. Emmerson has called for the release of a report of a comprehensive investigation into the CIA’s secret detention and interrogation program, that took place in 2009 by the US Senate Select Committee on Intelligence, and was chaired by Senator Dianne Feinstein. The Special Rapporteur has also called for the release of a United Kingdom interim report of the Gibson Inquiry; wherein Privy Council members investigated whether and to what extent the UK government and its security and intelligence agencies knew or were involved in improper treatment or rendition of detainees held by other countries in counter-terrorism operations outside the United Kingdom. Finally the Special Rapporteur calls upon the Governments of Lithuania, Morocco, Poland, Romania and Thailand to urgently open or re-open effective independent judicial or quasi-judicial inquiries into whether secret CIA “black sites” were established on their territories, to identify the involvement of any public officials, to publish the findings, and to hold any public officials accountable.
The Special Rapporteur holds up as an accountability model, Canada’s Arar Inquiry, presided over by Justice Dennis O’Connor, into the actions of Canadian public officials regarding the rendition and torture of Maher Arar. He notes at paragraph 43 of his report: “…Justice O’Connor made a series of important recommendations about the need for an integrated intelligence oversight and accoutnaiblity mechanism in Canada. He also concluded that the success of the inquiry in getting at the facts was a direct consequence of his powers to compel production of evidence and the attendance of witnesses, and to assess the competing interests of national security and public accountability for himself.”
In May 2012, CCLA highlighted the importance of the Arar Inquiry and the findings and recommendations of Justice O’Connor regarding integrated oversight mechanisms of national security agencies, in our report to the UN Committee Against Torture in its review of Canada’s State Report, which you can read here.
The UN Special Rapporteur on the promotion and protection of human righst and fundamental freedoms while countering terrorism, Ben Emmerson, will today present his report on the UN 1267 Sanctions Regime to the UN General Assembly, in New York.
In his report, the Special Rapporteur has raised an alarm over the due process failures inherent to the Al Qaeda sanctions regime — such as the lack of any international domestic judicial review process for listed individuals; the failure of the UN 1267 Sanctions Committee to consider the evidence underlying proposals to list individuals, and the Security Council’s lack of due process mechanisms despite its quasi-legislative and quasi-judicial functions under the sanctions regime.
The Special Rapporteur has also called for amendments to the mandate of the UN 1267 Ombudsperson’s office, to incorporate minimal international standards of due process into her office; in particular, Mr. Emmerson recommends that the Ombudsperson should “be empowered to receive and determine petitions from designated individuals or entities, for their removal from the list, and for the authorization of humanitarian exemptions.” In his view, “the Ombudsperson should be renamed the Office of the Independent Designations Adjudicator (IDA)”, and Mr. Emmerson calls upon States to be obligated “to disclose information to the IDA on conditions of confidentiality”.
The Special Rapporteur has also stressed that “information plausibly believed to be obtained through torture, should be excluded”, and in his report, he expresses concern that the Ombudsperson at present does not necessarily exclude information which may have been procured through torture.
To read a copy of the Special Rapporteur’s report released today and being presented to the UN General Assembly, click here
The Canadian Civil Liberties Association agrees with the recommendations made by the Special Rapporteur. CCLA has repeatedly expressed our concerns over the due process failures inherent in the UN 1267 Listing process. To read CCLA’s Statement on UN 1267, click here
On Friday, October 19th, 2012, nearly 100 attendees gathered at the University of Toronto Faculty of Law for a one day symposium entitled “The Social Cost of National Security: Assessing the Impact of Global Counter-Terror Initiatives on Canadian Society”. The conference was a partnership between the Canadian Civil Liberties Association and the Canadian Arab Institute — for whom this was their inaugural event — and was hosted by the International Human Rights Program at the University of Toronto.
The keynote address was given by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Ben Emmerson, Q.C. The Special Rapporteur emphasized the importance of observing international human rights standards in the implementation of counter-terrorism measures. Ensuring redress for victims of terrorism is important, however protecting the rights of victims does not legitimize violating the rights of others, and in fact only serves to increase the likelihood of retaliation and violence. The protection of the rule of law and human rights are crucial methods in challenging the spread of terrorism. A video of the keynote address can be found below.
>> Click here to read the live blog from the conference
>> Click here to read more about the conference, including a list of speakers and panels
>> Click here to listen to Ben Emmerson speak on CBC’s As it Happens
Mr. Emmerson’s keynote was a fitting start to the day’s panel discussions around the social impacts of counter-terrorism measures. Anil Kapoor, Yavar Hameed and Nathalie Des Rosiers began the first panel discussion by assessing the impacts of counter-terrorism legislation over the past ten years on security, immigration, and privacy, and the dangers surrounding complicity in torture and the use of secret evidence. Barbara Perry, Roch Tassé and Balpreet Singh examined the targeting of specific groups and individuals in the aftermath of 9/11, the role of the media and politicians in spreading Islamophobia and racialised images, and how targeting of specific groups has put a chill on freedom of expression and political dissent.
The afternoon discussions continued with an examination of key institutions and their role in national security, including Canada’s human rights commissions, national security agencies such as CSIS and the Canadian Border Services Agency, and the media. Charles Théroux, Pearl Eliadis and Sukanya Pillay examined how anti-terrorism legislation can lead to unfair discrimination and marginalization of minority communities; the potential “importing” of discriminatory practices under the umbrella of anti-terror initiatives; and the role that human rights institutions, such as the Canadian human rights commissions, could play in promoting social and systemic change.
Carmen Cheung, Reem Bahdi and Craig Forcese continued the discussion on oversight and accountability of national security agencies, looking at the how well the recommendations of the O’Connor Commission of Inquiry have been implemented, the implications of increased information sharing between Canada and the US, and the need to take a critical yet nuanced approach to government oversight mechanisms. The last panel of the day examined the role of the media in thinking about terrorism and counter-terrorism initiatives, and we were joined by Tony Burman, Rick Salutin and Naheed Mustafa. Each of these speakers has a range of experience working with national and international media, and the panel highlighted the important role that the media can play in bridging gaps between communities and bringing light to individual stories, the changing landscape of media in the face of cutbacks and new technologies, and the dangers of perpetuating stereotypes in the news.
Post-9/11 security measures have had a profound impact on individuals and society as a whole. Concerningly, these measures have at times resulted in secret evidence, the use or sharing of information procured from torture, arbitrary and indefinite detentions, racial profiling, and denial of due process and fair trial rights – measures that violate Canada’s Charter of Rights and Freedoms, and Canada’s international legal obligations. This conference gave participants the opportunity to pause and critically reflect on what has happened, but was also a time to re-energize our efforts and keep moving forward in the fight to ensure that fundamental civil liberties and human rights are protected.
The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Ben Emmerson Q.C., was brought to Toronto by the Canadian Civil Liberties Association on Friday October 19th, 2012, where he gave the keynote address and attended CCLA’s conference on the ‘social costs’ of national security.
The Special Rapporteur also gave several media interviews, including this one regarding the illegalities and dangers of any US return to the use of waterboarding. It is the position of the Special Rapporteur that waterboarding constitutes torture, which is illegal in international law as is the use of any information procured from waterboarding. To read the interview, click here.
Mr. Emmerson gave the Keynote Address at CCLA’s Conference “The Social Cost of National Security: Assessing the Impact of Global Counter-Terrorism on Canadian Society”, held in partnership with the Canadian Arab Institute, and hosted by the International Human Rights Program at the University of Toronto.
>> Click here to read the live blog from the conference
>> Click here to read more about the conference, including a list of speakers and panels
>> Click here to listen to Ben Emmerson speak on CBC’s As it Happens
CCLA is concerned by news reports that Fatemeh Derakhshandeh Tosarvandan, 41, and her 16-year old son Hessam, may be deported to Iran even though Ms. Tosarvandan may face death by stoning. CCLA argues that such a deportation would offend Canadian and international law.
International law is clear. Canada has ratified the UN Convention Against Torture, which in Article 3 prohibits Canada from sending a person to a country where there are “”substantial grounds for believing that he would be in danger of being subjected to torture.” This is known as the principle of non-refoulement. The absolute prohibition against torture is a peremptory norm of international, and applies jus cogens binding all States.
CCLA further notes that section 7 of Canada’s Charter of Rights and Freedoms would prevent deportation to the risk of torture, which would contravene the principles of fundamental justice, and cannot be justified in a free and democratic society.
Recent news stories suggest that former Public Safety Minister Stockwell Day, under cross-examination, has indicated that information procured from torture may have been relied upon in issuing a Security Certificate against Mohamed Mahjoub.
This is extremely concerning as it contravenes Canada’s international legal commitments to uphold the absolute prohibition against torture. In Canada, our Charter of Rights and Freedoms in section 7 protects the life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In another case dealing with security certificates (Charkaoui 1) , the Supreme Court of Canada stated that the national security context cannot be used to “erode the essence of the section 7 protection”, which is to provide “meaningful and substantial protection” and due process — it is the position of CCLA that depriving a person of liberty by relying upon information procured from torture — which is both illegal and immoral — cannot be reconciled with the principles of fundamental justice.
>> To read more on CCLA’s position on Security Certificates click here.
>> To read more on Security Certificates see CCLA’s summary of the case of Hassan Almrei, whose security certificate was vacated by the Federal Court of Canada — this summary also highlights key findings of the Supreme Court of Canada with respect to security certificates as set out in the Charkaoui cases.
There have been recent media stories about CSIS considering use of information either procured from torture, or transferring information to a country where it could be used to torture a detainee.
CCLA’s position is clear: Canada cannot be complicit in torture. Torture is illegal in Canadian law and in international law:
1) This means that no evidence procured through torture can ever be used as evidence in a Canadian courtroom, or to deprive a person of his or her liberty.
2) Canada cannot pass on information to a foreign country, knowing that it may result in the torture of a detainee. Four Canadian-Arab men – Maher Arar, Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nurredin – were detained and tortured abroad due to direct or indirect faulty sharing of information by Canadian officials with foreign agencies. Two Federal Commissions of Inquiry have made detailed and specific recommendations (O’Connor Commission) and specific comments (Iacobucci Commission): CCLA believes the information-sharing recommendations and comments of the O’Connor and Iacobucci Commissions must be followed to ensure that Canada is not complicit in the torture of detainees held abroad.
3) Finally, the Minister of Public Safety has repeated that Canada will not ‘dither’, and that information procured from torture may be relied upon to “prevent a mass terror event”. CCLA believes that Canada must not encourage foreign countries to torture. Canadian police always act upon tips of mass threat – for example an anonymous phone call of a bomb threat will result in police first evacuating the public space, searching for a bomb, and — if a bomb exists — deactivating and disposing of the bomb in a safe manner. CCLA believes that the comments of the Minister of Public Safety – which conflate the need to act to prevent a mass terror attack, with a supposed need for torture information — is a harmful syllogism that undermines respect for the law and undermines respect for human life and human dignity – which respect is at the heart of the absolute legal prohibition against torture.
The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens.
To view all articles of the Summer Series, click here.
Every year, thousands of Canadians are arrested around the world. Some are guilty, others are not. Some are treated fairly, but many are not, for various reasons. Whether it is because there is prejudice against foreigners, a weak justice system, corruption, a mistaken application of the law, or a failure to apply international standards, some people are abused, wrongfully accused, subject to torture or imprisoned in abusive conditions. Subsequently, these Canadians will be judged more or less impartially or plead guilty in more or less coercive circumstance. Later, their country of imprisonment may decide to accept that they be transferred to a Canadian prison to complete their sentence. At that point, they become completely at the mercy of the Minister of Public Security. All Canadians can apply to complete their sentence in a Canadian prison and, if the country where they are detained agrees, they may request the transfer. Most countries engage in transfer of prisoners because this enables the country of citizenship to support the rehabilitation of its nationals in a context where they will return to their country of citizenship at the end of their sentence anyway. In Canada, the Harper government has expanded the discretion of the Minister to deny such transfers. This increased the politicization of such transfer decisions.
This is certainly the case in the context of Omar Khadr. The guilty plea entered by Khadr before a military court and after already eight years in Guantanamo prison provided for an additional year in prison in Guantanamo and that the remainder 7 years could be in a Canadian prison. Omar Khadr who was 15 at the time of his participation in combat in Afghanistan has been imprisoned at Guantanamo since 2002, the only citizen of a Western country to still be there. The Canadian courts who have had to review his case concluded that the Canadian intelligence services violated his rights during interrogations, and he was not treated in accordance with international conventions, including the Convention on the rights of the Child. The Americans agreed to the transfer of Mr. Khadr to a Canadian jail nine months ago. Minister Toews still refuses to accept the transfer request and weighs the political costs of such a decision. The National Post invites people to vote on the question: who wants the return of Omar Khadr? People express themselves: they do not like the Khadr family, are afraid of terrorists, want murderers punished more severely. A decision that should be taken on the basis of legislative criteria is converted into a popular plebiscite.
All Canadians should be concerned about the way this case has been handled. The Khadr case dramatically exposes the inconsistencies of our politics: we sign international agreements such as the Convention against Torture or the Convention on the Rights of the Child and ignore their application in concrete cases. We claim to want impartial justice, free from politics, but when the courts rule in the Khadr case, the Minister refuses to comply or to acknowledge the implications of the judicial pronouncements. Detention conditions at Guantanamo violate international conventions of human rights, and Canada still does not care.
The rights of all Canadians are weakened by indifference and intransigence of the Minister in the Khadr case. The Minister is dragging his feet and refuses to promptly approve a transfer in the case of a prisoner in a context of multiple violations of human rights recognized by Canadian courts. When there are rights violations or abusive conditions of detention, the Minister should act promptly. Approving a transfer is not a “favour” to Mr. Khadr, it is the application of the same law for all Canadians. The process is designed to ensure that the Canadian correctional service is involved in the rehabilitation of persons who, in any case, will be returning to Canada when they finish their sentences. Public safety is best served by this involvement of the correctional service. The obstinacy of the Minister does not help anyone here: Canadians are not better protected by Khadr’s detention in Guantanamo instead of in Canada, the Americans who may want to do other plea bargains with other prisoners do want Canada to honour the deal. What the obstinacy of the Minister is doing is weakening the rule of law and every Canadian’s right to believe that he or she will be treated according to law at all times.