Foreign Affairs Committee on Sept. 25th, 2023

[Rob Oliphant, Liberal, Don Valley West, ON]

Mr. Herman, thank you. Your paper was helpful. I've read it.

Mr. Chong referred to it as “enforcement”. I read it differently. I read it as “compliance” and the desire of companies and organizations to comply, and you are advocating for help for well-meaning companies and organizations that want to fall in line. Am I getting that correct?

[Lawrence Herman]

Absolutely. That's my point. For example, if there isn't clarity and general guidance on what sorts of things a company can do to ensure that they've done their diligence, then it's a problem. I don't think it's enough for the government to say that if you do thus and so, you run afoul of Canadian sanctions. What kinds of things can a company do to ensure it meets the conditions set out in the legislation? I'm not suggesting legal advice. I'm talking about policy guidance.

[Rob Oliphant, Liberal, Don Valley West, ON]

Yes, I think that's very important. I think enforcement is an issue, and that comes down to the way CBSA works, the way FINTRAC is working, etc. Your paper looked particularly at how the government can help sanctions be more effective by ensuring that companies and organizations know their responsibilities and can follow them. I think those are points well taken.

I want to move out of anecdotal evidence on that towards real evidence, because anecdotally from my side I'm aware of many companies that have approached me to ask if they can get advice. They have had advice. They've had directives from the government about what they can and can't do, usually reactive as opposed to proactive.

It seems to me that what you are suggesting is that the government move out of a reactive mode into a proactive mode to make sure we do that. Is that a correct understanding of what you're saying?

[The Chair, Liberal, Ali Ehsassi]

Please give a very brief response. You have 15 seconds remaining.

[Lawrence Herman]

Absolutely.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you.

He was fast.

[The Chair, Liberal, Ali Ehsassi]

Thank you.

We now go to Mr. Bergeron.

Mr. Bergeron, you have a minute and a half.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

Mr. Herman, you answered another of my questions when you answered a question from my colleague Ms. McPherson, so I'll be very brief, since I have very little time.

Why do you think the Canadian government is so reluctant to issue directives, when several of its allies do so on a regular basis?

[Lawrence Herman]

I think it's a matter of bureaucracy. Without direction from the government, bureaucrats are very reluctant to give what could be described as legal opinions. They have a certain reticence to go too far when they answer specific questions from private companies.

I think the solution isn't difficult: We could put forward a much more proactive approach on the part of bureaucrats or public servants if there were directives sent by the ministers responsible.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you very much, Mr. Herman.

[The Chair, Liberal, Ali Ehsassi]

Thank you, Mr. Bergeron.

The last question goes to Ms. McPherson.

You have a minute and a half.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you.

Thank you very much for your testimony today. I'll be very brief, because I have only a minute and a half.

When you spoke a little bit about what more Canada can do, one of the things I was interested in was the role civil society plays—NGOs and CSOs. In terms of the Tamil diaspora community, how can the government do a better job of listening to the community and responding to the requests, needs and information the diaspora community can bring to us?

[Katpana Nagendra]

I think one of the main ways to do that is to open the door to more organizations or to give them a seat at the table to provide more feedback on what's happening on the ground. However, I think what's even more important is what happens afterwards, giving us the opportunity to understand why a particular individual is not being sanctioned. I think that information is very critical to the work our team and our organizations do to say that there are maybe some gaps in the evidence in this particular crime, so we, as NGOs, and our legal team need to work a little bit harder to provide that evidence. Feedback is really important to making this a successful sanctions regime.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

We have heard that from a number of different groups. The Iranian community is a perfect example. They have said that there are folks who should be on the sanctions list who are not. Therefore, getting that mechanism for diaspora groups to interact with the government on who is missing from those sanction lists is a key piece of work for the government to undertake.

[Katpana Nagendra]

That's correct.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you.

[The Chair, Liberal, Ali Ehsassi]

Thank you, Ms. McPherson.

At this point, I will thank the two witnesses for their time and their wealth of experience and expertise. Thank you very much, Mr. Herman, and thank you very much, Ms. Nagendra. We're very grateful. You will be receiving a copy of the report when it is ultimately ready.

To the members, we have a second panel of witnesses who will be appearing before us. I will suspend the meeting for five minutes.

[The Chair, Liberal, Ali Ehsassi]

I call the meeting back to order.

We will now resume our study of Canada's sanctions regime. Allow me to welcome the witnesses who are appearing before us.

First, in person, we have here with us Professor Thomas Juneau from the University of Ottawa. He is a witness who has appeared before us previously and is well known as a media commentator, as well.

From the Canadian Red Cross, we have Ms. Catherine Gribbin, who is a senior legal adviser. Welcome, Ms. Gribbin.

From the International Committee of the Red Cross, we have two witnesses, Alain Dondainaz and Austin Shangraw, who serve as head of mission and legal adviser.

Finally, from People for Equality and Relief in Lanka, we have Archana Ravichandradeva.

Each witness will be provided five minutes. I understand that the Canadian Red Cross and the International Committee of the Red Cross want to do one five-minute opening remark, which is perfectly fine.

We will first go to Professor Juneau for his opening remarks for five minutes.

I would ask that all witnesses look over every once in a while. I will give you a sign when your five minutes are up.

Professor Juneau, the floor is yours.

[Dr. Thomas Juneau, Associate Professor, Public and International Affairs, University of Ottawa, As an Individual]

Thank you very much.

Thank you very much for the chance to speak with you today.

To begin, I want to specify that I'm not an expert on sanctions in the technical sense, but what I will do is share with you six lessons I've drawn from watching sanctions on Iran from Canada, from the U.S. and from allies for more than 15 years, first at the Department of National Defence and now at the University of Ottawa.

Lesson number one is that sanctions are easy to announce but hard to implement. I see that's an issue that was discussed before. Monitoring and enforcing sanctions is very labour-intensive, and Canada has a reputation among our friends, but also among rivals, for not enforcing sanctions well. Part of the reason is a lack of resources; part of the reason is a lack of political will.

While in many cases I share the intent of the government or opposition parties to impose more sanctions on Iran, Russia or others, whether through SEMA, Magnitsky or other tools, I do invite the committee to reflect on the reality that we already cannot fulfill our current commitments, let alone new ones. This irritates our allies, a point that I think we vastly underestimate, and it sends a message to the bad actors that we are not serious about penalizing them. This is a message they hear loud and clear.

The bottom line is that we need resources. There is just no way around that. The $76 million that was announced last fall as part of the package of sanctions on Iran was a positive first step, but keep in mind that it takes years to generate the necessary capabilities. You need to hire people; you need to give them security clearances in a context in which we already have massive backlogs; you need to train them for highly specialized positions and so on.

Lesson number two is that sanctions are easy to announce, again, but hard to stop. They take on a life of their own bureaucratically, politically, legally and socially. Sometimes the day comes when the cost on us—not on the target but on us—exceeds the benefits, but removing the sanctions can be very difficult. So as you reflect on the future of sanctions, I also urge you to think about processes to remove sanctions, when doing so is in our interest, to avoid tying the hands of future governments, even though sometimes that may be tempting.

Lesson number three is that sanctions, especially the sweeping kind, often have negative unintended consequences. In particular, as in the Iranian case, they can entrench authoritarianism and corruption. In Iran, the IRGC has been able to build a massive economic empire and therefore become more powerful as part of the regime's efforts to evade sanctions. So, yes, as intended, sanctions have hurt the regime, but they have also come with a major cost. At the very least, we need to think about this more transparently when we design sanctions.

Lesson number four is that for these first three reasons, in many cases I find that targeted sanctions can be much more effective than the sweeping or blunt kind. They are less resource-intensive—keep in mind point number one about our overstretched capacity—and they're also more surgical in their impact—keep in mind point number two about the blunt impact they may have. They can minimize broader unintended negative costs, including humanitarian suffering. That is why, in the case of Iran again, the idea of listing the IRGC as a terrorist entity under the Criminal Code—something that a number of people in opposition and civil society support—is appealing in principle and it's an idea that I don't disagree with in theory, but in practice it is not practical, for the first three reasons I have given.

Lesson number five is that public discourse on sanctions in Canada tends to focus very much on the foreign policy angle. In a way that's normal, and that's the focus of your work, but usually Canadian sanctions have little or no direct impact from a foreign policy perspective. Where sanctions do serve our interests much more and can actually have a positive outcome for us is more on the national security side. Again, in the case of Iran, we are not going to change Iranian foreign policy with our sanctions. Where we can make a difference is in the case of Iranian regime officials and their families, for example, parking financial assets in Canada or Iranian regime officials and affiliated thugs intimidating the Iranian-Canadian diaspora. That's a problem, but it is a national security problem, not a foreign policy problem. Here again, targeted sanctions, not the sweeping kind, can actually have a chance of success—full success probably not, but some success, yes.

My concluding point—and I will finish on this—is a plea for more transparency, something I also heard a bit about in the previous session. It is transparency regarding the objectives of sanctions, “What are we actually trying to do?”, but also their successes and failures: “What are they doing?” There is very little publicly available information in Canada on these questions, and that's a problem. This lack of transparency prevents a more informed public debate, which is a problem on its own, but it also makes the work of civil society, the media and academia more difficult as they try to hold the government to account on what sanctions are achieving and not achieving.

Thank you.

[The Chair, Liberal, Ali Ehsassi]

Thank you, Professor Juneau.

We will now go to the International Committee of the Red Cross and the Canadian Red Cross.

You have five minutes for your remarks.

[Alain Dondainaz, Head of Mission to Canada, International Committee of the Red Cross]

Thank you, Mr. Chair.

Thank you to the committee for the invitation to the International Committee of the Red Cross to share our views and experiences in relation to the intersection of sanctions and humanitarian action.

The ICRC is part of the broader Red Cross and Red Crescent Movement, comprising the ICRC, the International Federation of Red Cross and Red Crescent Societies, and national societies such as the Canadian Red Cross. Both the ICRC and the Canadian Red Cross provided written submissions to the committee for its study.

As mentioned before, I am joined today by my colleagues Austin Shangraw and Catherine Gribbin from the Canadian Red Cross. We appreciate the opportunity to appear today before the committee in representing the Red Cross and Red Crescent Movement.

As a neutral, independent and impartial humanitarian organization, the ICRC carries out humanitarian activities throughout the world to reach vulnerable populations affected by armed conflict and other situations of violence, including in contexts where sanctions apply.

Over the past years, the ICRC has noted an increase in sanctions and counterterrorism-related regulations in contexts where we operate. While we do not question the legitimacy of states and international organizations to employ such measures, we believe they must include safeguards to minimize any adverse impacts on the ability of impartial humanitarian organizations to respond to the needs of persons affected by armed conflict and other situations of violence, in accordance with humanitarian principles.

The ICRC has been engaging with states at the national, regional and multilateral level in an effort to ensure that sanctions are developed in line with their obligations under international humanitarian law and in a manner that does not impede principled humanitarian action. The ICRC believes that well-framed and standing humanitarian carve-outs for exclusively humanitarian activities undertaken by impartial humanitarian organizations in line with international law, including IHL, are the most appropriate way to comply with international law and facilitate humanitarian activities without undermining the objectives of sanctions regimes.

The adoption, at the end of last year, of the standing humanitarian carve-out across all UN sanctions regimes in United Nations Security Council Resolution 2664 demonstrates the acceptance of this approach for facilitating humanitarian activities. Since its adoption, the ICRC has been urging all states to fully implement UN Security Council Resolution 2664 and adopt appropriate domestic measures to give it full legal effect. The ICRC welcomes Canada's implementation a few months ago of the humanitarian carve-outs in Resolution 2664, along with the humanitarian carve-out in UN Security Council Resolution 2615 in the United Nations Act sanctions.

Sanctions can impact humanitarian organizations in various ways, often leading to operational delays or limitations on humanitarian activities. The ICRC has faced the following impacts from sanctions.

The first one is private sector de-risking and overcompliance. Humanitarian organizations rely upon private sector actors, such as suppliers and financial institutions, to carry out humanitarian activities. However, private sector actors have become increasingly hesitant to support humanitarian activities in certain contexts because of sanction risks, particularly in contexts where there are overlapping sanctions regimes. Even where there may be humanitarian carve-outs in sanctions in place, many private [Technical difficulty—Editor].

The second point is about the reduced number of suppliers. The ICRC has found that there is a decreasing number of suppliers willing to support humanitarian activities in contexts perceived to be a high sanctions risk. This de-risking from suppliers means that suppliers refuse to work in certain contexts.

The third point is that increased risks hinder impartial humanitarian action and funding. Impartial humanitarian organizations must engage with governmental entities and non-state armed groups to negotiate access and carry out their work providing aid based upon needs. When these entities are designated under sanctions, there are increased risks, whether legal, operational or duty of care to staff. Humanitarian personnel also risk possible prosecution for carrying out humanitarian activities. Relatedly, the increased risks may also restrict the ability of donors to fund impartial humanitarian organizations in certain contexts.

The ICRC has various recommendations to mitigate the impact of sanctions on humanitarian action and address the challenges I have highlighted. My colleagues and I look forward to discussing this in more detail in the Q and A. Humanitarian carve-outs are successful when there is clarity and certainty for humanitarian organizations, private sector actors, suppliers and banks and donors who want to support humanitarian action.

Thank you very much. We look forward to your questions.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much, Mr. Dondainaz.

Now we go to our final witness, who is here on behalf of the People for Equality and Relief in Lanka.

Ms. Ravichandradeva, welcome. You have five minutes for your opening remarks.

[Archana Ravichandradeva, Executive Director, People for Equality and Relief in Lanka]

Thank you, Mr. Chair.

Thank you, esteemed committee members, for this opportunity to address the issue of sanctions in Sri Lanka specifically. I would first like to begin by expressing the gratitude of PEARL for Canada's ongoing support and commitment to human rights and justice, and for its continued leadership in the fight for accountability in Sri Lanka.

My name is Archana Ravichandradeva, and I am the executive director of People for Equality and Relief in Lanka, PEARL. We are a non-profit organization led by human rights activists concerned about the situation in Sri Lanka. We bring together research, advocacy and activism to promote and protect the human rights of Tamil people in the northeast of the island.

Despite overwhelming evidence of the Sri Lankan government's committing war crimes, crimes against humanity and genocide of the Tamil people, especially in the final stages of the 26-year-long armed conflict, Sri Lanka has yet to deliver any justice or accountability. Today the human rights situation in Sri Lanka continues to worsen. Sinhalese-Buddhist nationalism, which we consider to be a root cause of the conflict, continues to drive irrational policies that cause harm to the Tamil community. Issues of militarization remain high in Tamil areas in the northeast, and Tamil politicians, activists and civil society advocating for justice and accountability continue to experience significant constraints on their advocacy.

The few domestic mechanisms that Sri Lanka has—for example, the Office on Missing Persons is often seen as one of its flagship mechanisms—lack independence and impartiality and have lost the trust of victim-survivors. It is in this context that international actions such as sanctions can have a profound impact, especially against bad actors who continue to hold deeply entrenched positions of power and authority within the Sri Lankan government.

Canada has been a strong advocate for the Tamil community by, for example, recognizing the Tamil genocide last year. Canadian sanctions that were implemented in January 2023 on former president Gotabaya Rajapaksa, former prime minister Mahinda Rajapaksa, Staff Sergeant Sunil Ratnayake and Lieutenant-Commander Chandana Prasad Hettiarachchi are some of the few, if not the only, individual actions of accountability against Sri Lankan leaders, which is of symbolic importance in a war that was supposed to be a war without witnesses. The sanctions are the only international individual accountability measures against the Rajapaksa brothers specifically, who orchestrated the violence. Many of the victim-survivors whom PEARL connects to in Sri Lanka almost regularly mention the sanctions as one of the few positive developments in an accountability landscape that often feels bleak and impossible.

However, we must recognize that current sanctions are just a starting point, and it's crucial to expand the list of individuals and entities subject to sanctions, including Magnitsky-style sanctions, to those responsible for the war crimes, crimes against humanity, genocide and other human rights abuses committed during the armed conflict. We also have to acknowledge that sanctions are not the be-all and end-all, and that they are likely to be unsuccessful in the absence of other measures. PEARL robustly advocates for sanctions to be supported by Canadian engagement in other areas, such as international justice efforts through universal jurisdiction, international courts, etc., to develop a multilateral approach to justice.

I'd also like to speak briefly about the process in which PEARL engages in advocacy in Canada and about how the system can be made better for other advocacy organizations as it relates to sanctions. We began connecting with representatives and having meetings with Global Affairs Canada several years before the sanctions were confirmed—along with many other Tamil organizations. For example, there's often a lack of clarity about whether we focus sanctions advocacy under the Special Economic Measures Act or the Magnitsky act; about whether our advocacy with Global Affairs has been translated across other departments, including, for example, the Department of Justice; and about what kinds of information needs to be shared or gathered by advocacy organizations to support the efforts.

There is also a greater need to understand the difference between the sanctions regime on one side and the IRPA—which has its own internal mechanisms against allowing individuals accused of human rights violations into the country—on the other. During the process of our advocacy, there was also sometimes a lack of information about what the impact and implementation of these sanctions would be once they were implemented.

I want to take some time to talk, from the perspective of an advocacy organization, about the importance of greater cohesion and consistency in terms of applying the existing sanctions regime and how to work together, with more guidance and a policy framework. I think a witness before spoke about policy information for organizations and activists to engage in advocacy around sanctions and about how to make sanctions more effective in their implementation after the initial proclamation.

Thank you, Mr. Chair and committee members. I'm happy to answer any questions on this.

[The Chair, Liberal, Ali Ehsassi]

Thank you very much.

We now go to the members. For the first round, each member will be provided four minutes.

We start off with MP Epp.

[Dave Epp, Conservative, Chatham-Kent—Leamington, ON]

Thank you, Mr. Chair.

Thank you to the witnesses for their excellent testimony.

I'm going to begin with Dr. Juneau. Your testimony outlined a number of very specific recommendations. I appreciate that.

I'm going to get to an overarching question. We heard from the previous panel, and from you as well, the call for more resources. That's understandable. I'll admit that I'm somewhat hesitant to join that call until I have confidence that there is proper accountability and coordination within our own government regarding the effectiveness of a sanctions regime.

My basic question is, who is ultimately responsible? We hear calls for the CBSA to do this, or for Global Affairs, through their different channels, or for an OFAC-like organization within CRA. Who is ultimately responsible for the overall effectiveness of our sanctions regime? I hear “political will”; you mentioned that is also lacking. In order to bring that about, where do we point?