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Wednesday, December 10, 2008

Civil liberties groups celebrate International Human Rights Day at the Supreme Court

The Universal Declaration of Human Rights is getting old. It turned 60 today, a birthday celebrated every year with International Human Rights Day.

I wrote recently that:

The Alberta Human Rights Commission (AHRC) is using the occasion to promote its own efforts to “foster equality, promote fairness, and encourage the creation of inclusive workplaces and communities.”

The AHRC is in damage control mode these days, largely due to Ezra Levant’s campaign to “denormalize” the work of these commissions across Canada. Former Western Standard publisher, Levant successfully defended a human rights complaint against the magazine for our decision in 2006 to re-print cartoon images of the Muslim prophet Mohamed. He continues to fight to remove Section 13 of the Canadian Human Rights Act, which prohibits so-called "hate speech" on the Internet.

But while the AHRC is up to no good, the B.C. Civil Liberties Association (BCCLA) is using International Human Rights Day to challenge the Canadian Forces’ practice of transferring detainees apprehended in Afghanistan into the custody of Afghan officials.

(We should put the BCCLA association in charge of Canada’s human rights commissions. While not perfect, the organization opposes Section 13 of the Canada Human Rights Act and intervened on behalf of the Western Standard when we faced our human rights complaint in 2006. Read the Western Standard interview with David Eby to get a better understanding of where these guys are coming from.)

The Supreme Court will hear an appeal today brought by Amnesty International and the BCCLA as part of the court challenge the two organizations launched in February 2007.

According to the BCCLA association, the appeal will address several issues:

How far do the human rights obligations of Canadian soldiers reach? Do they stop at the Canadian border? Or do those obligations extend to the actions of Canadian soldiers carrying out operations outside of Canada? Will Canadian courts step in and require Canadian troops abroad to obey the Charter, and through the Charter to comply with international human rights treaties ratified by Canada?

Amnesty International (AI) and the BCCLA turned to the courts out of concern that prisoners transferred into Afghan custody faced the risk of torture and other human rights violations, particularly at the hands of the country’s intelligence agency, the National Directorate for Security (NDS). According to AI and the BCCLA, the use of torture in Afghan prisons has been documented by the office of the UN High Commissioner for Human Rights, the US Department of State, the Afghan Independent Human Rights Commission and the Canadian government. The human rights groups want these prisoner transfers to stop until it is clear that transferred prisoners will not face a serious risk of being tortured.

In March 2008, Federal Court Justice Anne Mactavish ruled that the court challenge could not go ahead because the Charter did not apply to the actions of Canadian soldiers outside Canada. AI and the BCCLA explain that they are pursuing this appeal for two reasons:

First, with the exception of a temporary suspension of transfers between November 2007 and February 2008, Canadian soldiers have been handing an undisclosed number of prisoners over to Afghan authorities for close to three years. Credible reports have emerged indicating that some of these prisoners have suffered torture and abuse.

Despite May 2007 improvements to the agreement governing the transfer of prisoners between Canada and Afghanistan, allowing greater levels of prison monitoring by Canadian officials, the risk of torture remains high, particularly in those instances where the NDS is involved. AI and the BCCLA have argued that handing prisoners over in the face of a serious risk of torture constitutes a clear violation of Canada’s international human rights obligations as well as the Canadian Charter of Rights and Freedoms. The organizations are looking to the Federal Court of Appeal to recognize that Canadian courts have the power to bring this practice to an end.

Second, the precedent set in Justice Mactavish’s ruling is a worrying one for human rights protection.  Canadian officials operate outside of Canada in a wide variety of contexts including offensive military operations, peacekeeping operations, law enforcement activities and national security investigations. These officials operate pursuant to Canadian law, further to policies and decisions of Canadian parliament, Cabinet ministers and senior officials.  When their operations directly or indirectly cause or contribute to human rights violations it is vital that there be accountability. As Canada’s supreme law and primary instrument for the protection of human rights, the Charter cannot be interpreted so as to allow Canadian officials to commit serious human rights violations on the territory of another state which they could not perpetrate within Canada’s borders.

Courts in other countries are also grappling with the question of how far their reach should extend in ensuring that military personnel and other officials acting abroad live up to national and international human rights obligations. In the context of a growing number of joint military and security operations in a number of parts of the world, it is increasingly important that courts play that enforcement role.  When national courts shirk this responsibility there is often no other effective means of ensuring human rights oversight.  The Federal Court of Appeal has a valuable opportunity to demonstrate leadership in this area.

It is not clear to me how these two reasons address Justice Anne Mactavish’s ruling that the Charter does not apply to the actions of Canadian soldiers outside Canada, although the second point has some merit: if we are going to send soldiers around the world in increasing numbers for “offensive military operations, peacekeeping operations, law enforcement activities and national security investigations” maybe they should be bound by Canadian law.

While torture is a repugnant practice that should be condemned by the Canadian government, the rights and values embodied in the Canadian Charter seem hopelessly out of place in the arena of war.

Posted by Matthew Johnston on December 10, 2008 in Military | Permalink


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The "rights and values" of the Canadian Charter have no place in a foreign country and especially in the arena of war. The BCCLA and their supporters should take their arguments to the Islamists/enemy and try to convince them.

Posted by: Alain | 2008-12-10 12:56:12 PM

"The 'rights and values' of the Canadian Charter have no place in a foreign country...."

Right on Alain.

But to hell with foreigners, Canadians like the western grain farmers can't even get their human rights, like liberty, specifically spelled out in the United Nations Universal Declaration of Human Rights in 1947, that Canada signed and promised to follow.

But now Liberal leader Iggy, the internationally human rights advocate is riding (as we speak) to rescue farmers from the steel grip of the totalitarian Canadian Wheat Board that laughs at the individual rights of farmers.

I'm sure PM harper can now finally bring the required federal legislation to make the CWB a voluntary state sponsered enterprise and get it passed with no problem.

Oh man this is great news, Iggy not just a human rights advocate, but an internationally renown one.
What more could farmers ask for?

Posted by: Rocky Thompson | 2008-12-10 4:57:20 PM

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