Foreign Affairs Committee on Nov. 14th, 2016

[Jared Genser]

Yes. Your Special Economic Measures Act and your United Nations Act basically look at Canada imposing, as I've read it...and again, this is plain language, as I'm not a Canadian barred lawyer. The focus is on country situations that are of immense concern to Canada. One set of reasons that Canada can be concerned is that the United Nations has already imposed sanctions. That is one set of authorizations. A second set of authorizations is based on this very broad language about imminent threats to international security and peace.

My observation was that the current act, as written, doesn't account for situations in which the Security Council hasn't acted—in fact, there have been vetos issued by the council, for example, on Syria—but where, at least based on my reading of the statements coming from your Prime Minister or your foreign minister, current and past, there have been immense concerns from Canada. It was not clear to me, from reading the language in the current law in Canada, why you would have a higher threshold for engagement on economic sanctions than the Security Council has for engaging on sanctions when the council acts as a body.

What I said narrowly was that one place where Canada may want the authority to be able to impose economic sanctions is in situations of imminent or actual mass atrocity crimes. They're situations that are on the Security Council's agenda, and Canada would have otherwise imposed sanctions but for the fact that a veto-wielding member of the council, like China or Russia, vetoed actions to take those kinds of measures.

[The Chair, Liberal, Bob Nault]

Thank you, Mr. Fragiskatos.

You have the floor, Ms. Laverdière.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you very much, Mr. Chair.

I would like to thank the two witnesses for their presentations.

Mr. Genser, I am very interested in your comment about United Nations sanctions. We know that these sanctions are often blocked by a lack of consensus on the Security Council. That said, I am very interested in your view on mass atrocities and genocide.

Given the current constraints as regards consensus on the Security Council, do you think the UN's basis for action is sufficient? If not, should it also be reviewed?

[Jared Genser]

There's a substantial gap between the commitments of the international community and their implementation and practice. I previously published a book, The Responsibility to Protect, on the obligation of all states to prevent mass atrocity crimes, so I didn't choose those four sets of crimes that I mentioned in my proposed language by accident. These are the four sets of crimes captured in the “responsibility to protect” adopted unanimously by the UN World Summit in 2005.

I'm actually in the process right now of finishing a law review article that will be the first assessment of the way in which the Security Council has embraced the concept of the responsibility to protect and has engaged on it.

Interestingly, since the adoption of the responsibility to protect in 2005, and a lot of concern that countries went along, like China or Russia or others, despite their lack of interest in these kinds of concepts.... What my review has found, looking at the council's engagement in the last 11 years, is that there have been well over 150 to some 200 mentions of the responsibility to protect or the failure to protect in Security Council resolutions and presidential statements. In fact, it's become very much a norm that has been embraced by the Security Council as a major motivator of action, plus, of course, in the most substantial of ways in which the council can engage under its chapter 7 authority, which would include potentially economic sanctions or even the use of force.

Obviously, the endemic realities of the UN charter, going back to the founding of the United Nations and the P5 veto, has thwarted action in those areas on the most complex and divisive of political disputes among the P5. We've seen that the council previously was able to engage on Libya, for example, where specific sanctions were put in place by consensus within the council, or by a lack of no votes against such actions. On Syria, there's been an inability to obtain a consensus.

I think my overall point is that just because the council is not capable of reaching a consensus, in my view that shouldn't be Canada's measure. Again, I'm an outsider, so you'll forgive me for just looking at the subject of the hearing you're having, which was what I think about these laws based on my read of them.

With that very humble caveat, I would say that Canada shouldn't launch to tie itself to imposing economic sanctions to only situations in which the council can reach a consensus, or where there's this very strong language—dramatically higher than I think the council would require—that relates to imminent threats and major international crises, which may not actually encompass a mass atrocity situation, which would be primarily internal by orientation.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you very much.

I would like to go back to Canadian law.

You talked about amending the Freezing Assets of Corrupt Foreign Officials Act in order to provide more flexibility as regards human rights abuses. I know that your presentations are very brief, but I would like you to give us a quick overview of this, reminding us of the amendments to this act that you suggest.

[Jared Genser]

Regarding FACFOA, Canada took an important step forward in adopting the law just a few years ago. My only observation, again from the outside in, is that it's a little strange, as I read it as an outsider, to say that you can only take actions to freeze the funds of corrupt foreign government or former government officials or their families in cases where the government in question has specifically asked the Government of Canada to impose such actions. To me, you see many corrupt governments all over the world, particularly authoritarian governments, in which endemic corruption drives their actions and where foreign leaders particularly enjoy travelling abroad because of the challenges of enjoying life in such countries, and where they need to be held to account because, frankly, the people aren't capable of doing that themselves.

It would seem to me that having the authorities and exercising the authorities are two very different things. I understand that politically it will be challenging for any government to decide that it's going to impose sanctions against foreign corrupt officials or their family members because there is a question of the sufficiency of the evidence you can gather. But it does seem to me in the most egregious cases...and one can look not only to a case like the Maldives but to other countries like Malaysia, for example, right now, where the prime minister himself acknowledged that he received something around $650-plus million in his personal bank account from Saudi Arabia, from unknown persons, and then he returned, he says, all but about $50 million of it.

This is what he said publicly, yet in such a circumstance, unless he were to ask the Government of Canada to look at the question of sanctions, Canada wouldn't have those authorities. From my perspective, in very egregious circumstances where you're talking about grand corruption on the largest of scales, it might be useful if Canada were to have the authorities within FACFOA to take unilateral action without a government request.

I'm not suggesting Canada should be the world's policeman on corruption and go off looking at every country in the world and all of the possible corruption. I'm talking about egregious outlier cases where the international community has condemned governments for being particularly engaged in this kind of grand-scale corruption.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Mr. Kramer, you also mentioned a study that pointed out that approximately 3% of sanctions have the desired effect.

In our meetings, we have often heard that sanctions are intended to change behaviour, but that they can also serve other purposes. Sometimes it is simply a way of sending a message.

In this study that reports a 3% success rate, is success defined only in terms of a change of behaviour? We know there have been changes in the way sanctions are applied. When was the study done?

Thank you.

[David Kramer]

First, just to clarify, I believe the study I referred to by Gary Hufbauer, who was then at the Institute for International Economics, now called the Peterson Institute, was done in 2009. Mr. Genser may have more facts on this than I do. I apologize, I don't have the study in front of me.

However, it said 34%, not 3%, had success.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Okay.

[David Kramer]

The definition of success can vary depending on what the objectives are in a certain situation. Pressure applied on the apartheid regime in South Africa through the Sullivan principles and other sanctions is one example. The international sanctions that were done on Iran to pressure it to come to the negotiating table would be another example that could be cited. I will grant you it's hard to prove, but I do think that the sanctions Canada, the United States, and the EU imposed on Russia did keep Russia from going further into Ukraine. I also want to acknowledge that the Ukrainians' ability to defend their territory against further Russian aggression played as much if not more of a role in limiting Russia's advance.

It depends on how one defines success. It depends on what the objectives are and sometimes it is to prevent a bad situation from getting worse, perhaps, rather than undoing the bad situation entirely.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Thank you.

[The Chair, Liberal, Bob Nault]

Thank you, Ms. Laverdière.

We'll go to Mr. Levitt, please.

[Michael Levitt, Liberal, York Centre, ON]

Good afternoon, and thank you for your testimony here today.

I want to follow up on MP Laverdière's question by digging down a little deeper into the implications of expanding the scope of SEMA from beyond its “grave breach of international peace and security”, as it now exists, into what is more of, let's say, a global Magnitsky-type framework. In particular, if we were to amend SEMA to include human rights violations, how would we be looking at defining them?

Is there an agreed international definition or some yardstick for gross human rights violations? What range of abuses might be captured? Are there concerns around thresholds being either too high or too low, and as you just mentioned, around basically setting up Canada to have calls for us to be looking to prosecute all over the world based on whether it would be in the public interest or that of other countries?

Tell us what success looks like. How do we define this in a way that is going to have some teeth to achieve the results we're looking for, which is constraining, and to a certain extent, punishing gross human rights violators? Also, how do we not wind up again with this theory of unintended consequences, where we're opening ourselves up to be constantly deflecting requests from all over the place to implement and act on these laws?

That's for whichever one of you wants to start. You can both have a go.

[Jared Genser]

Given that I was proposing some specific changes or suggestions for specific changes, let me take the first crack at it.

I was talking about two separate things. The first relates to SEMA and your existing authorities that you have there, which are either engaging through the UN, when the UN puts the sanctions, or engaging with this much higher threshold of language, such as “imminent threat” or “major conflict”, etc.

When it comes to defining the four sets of “mass atrocity” crimes, as I said, I chose them intentionally on the basis of the fact that there is an international consensus on the responsibility to protect. Canada actually played a leading role in advocating for its adoption in 2005. These are all crimes that are defined in our international law in a broad range of respects. There's a consensus view on what they are and how to define them.

My view is that adding to the possibility—again, the authority—for Canada to be able to sanction governments that are engaging in imminent or actual mass atrocity crimes is to me a pretty high threshold for acting. It's not something for which you could say willy-nilly that it is this government, that government, and many other governments. It's a very narrow set of governments in the world.

[Michael Levitt, Liberal, York Centre, ON]

What I'm speaking more about is applying this to individuals, though, gross human rights abusers as individuals, not in terms of the nation-states and all of that. How are we going to effectively define and set thresholds for applying this to corruption and human rights abuses by individuals?

[Jared Genser]

I think it will be in the same way you debate every kind of issue you face. “Gross human rights abuses” is a generic term. It doesn't have a precise legal definition. Again we're talking about engaging in such activities as extrajudicial killing or torture or other very serious offences that 98% of offences are not going to fall under. When governments are deciding how to impose sanctions, the Magnitsky act, as it was adopted, has that kind of language in it, and it will potentially be the global Magnitsky act when the United States has a similar set of definitions.

Ultimately any government has to decide how it's going to focus its limited resources and prioritize action in various contexts. No government in the world is going to be able to consistently apply all of these standards to every government in the world simultaneously and to go after every human rights abuser. However, the idea is that Canada, which, in my view, like the United States and like a number of other western states, has substantial moral authority as a democracy and as a country that stands for freedom and for human rights, should be able to say that there are certain sets of actions that fall outside of the acceptability norm of international conduct, and that those relate to both governments and individuals.

If you are engaging in extrajudicial killing, for example—and the kinds of people I'm thinking about are people who are beginning a faction of the Lord's Resistance Army or engaging in the mass use of child soldiers. I'm not talking about some average guy on the street who gets into a fight with his neighbour and kills him by accident. That would clearly fall outside of the threshold of what I'm talking about.

I'm talking about crimes that can be identified, I believe, by international human rights organizations, by governments, by international institutions like the UN, and by regional organizations. When you see these kinds of egregious situations unfold, you look at targeting those who are most responsible for them, not targeting everybody who did anything wrong but targeting those who are most symbolic of the abuses, so that you can stand in solidarity with the victims under these kinds of circumstances and make sure that the people who take assets, which they almost always try to store in U.S. dollars, Canadian dollars, or euros abroad, cannot easily put this money in places that are safe from international scrutiny.

[Michael Levitt, Liberal, York Centre, ON]

Mr. Kramer.

[David Kramer]

I very much agree with what Mr. Genser said. If you look at the Ukraine-related sanctions, the United States and, I believe, Canada and the European Union have put individuals on the sanctions list for contributing to or being a part of Russia's invasion of Ukraine, of the illegal annexation of Crimea. In a few cases, members of the Russian parliament have been put on the sanctions list because they have played a key role.

Take the illegal annexation of Crimea. That is not the murder of an individual and it's not mass torture, but it is the violation of one of the foundations of the nation-state concepts of sovereignty and territorial integrity, and Russia is the first country in Europe since the end of World War II to forcibly annex territory from another country. I do agree that action required a response both on a larger level involving certain entities and sectors and on an individual level.

I would take it one step further. The European Union has sanctioned Dmitry Kiselev, who is the head of RT, the scurrilous propaganda network of Russia. He has been put on there not because he's a journalist. He's not a journalist. He's a propagandizing, hate-mongering individual who helps create a climate in which the murder of Boris Nemtsov is allowed, in which he talks about reducing the United States to radioactive ash.

I would say you should do what we used to call The Washington Post test. If you would not want to have your picture taken with somebody and have that picture splashed on the front page of The Washington Post, that person's probably somebody you should look at for sanctions. That's not to say that all bad folks should be on the list; we have limited resources to enforce and implement these sanctions. However, going after some to send signals that the kinds of activities they've engaged in are sanctionable, I think, is extremely important.

[Michael Levitt, Liberal, York Centre, ON]

I have just a quick follow-up on another point.

You talked at the beginning about the unity of sanctions and about being able to work with like-minded allies to hold individuals to account in this kind of international atmosphere, in which we're seeing a decrease in the efficacy of the Security Council to bring in sanctions given the divides there, and the International Criminal Court with countries dropping out. What do you think is the implication as we're moving to president-elect Trump and what's going to be a new foreign policy for the U.S., which has been one of the major proponents of this kind of individualized approach to sanctions? What do you think are the implications both for the U.S. and for other like-minded allies that may be moving in this direction? What sort of signal do you think this is sending that we should maybe be looking at ahead of time now here in Canada as we review these sanctions?

[David Kramer]

I'll be very direct. I'm a Republican who was critical of Donald Trump when he was campaigning. I did not support his candidacy. I am deeply worried what could happen to the sanctions regime on Russia. I was told before coming in to appear before you that he and Vladimir Putin have spoken by phone today. They have talked about a possible meeting even before Trump's inauguration on January 20. I worry deeply that Trump's interest in returning to business as normal with Russia will lead to the undoing of the U.S. sanctions on Russia, which will then lead the EU to fail to renew its sanctions, and possibly have an impact on your country as well.

I find that deeply troubling, so I can't sit here and tell you, “Don't worry, everything's going to stay as is.” I worry we are in for a new kind of order that may not be terribly orderly.

[The Chair, Liberal, Bob Nault]

I think we might just leave it there.

Colleagues, on your behalf I want to thank both our witnesses, Mr. Genser and Mr. Kramer, for a very good and honest discussion about the whole issue of sanctions.

As you may have noticed, the committee is grappling with the whole process of, if you're going to include gross human rights violations, how you would do that from a processing point of view as a state. It's a legitimate question that we've been asking just about every witness. To be honest, it's not one we have had a very good answer to yet, simply because it is one that I think other states are also grappling with equally. We have to find an answer to that question if this committee is to recommend that to the government, because no legislation is worth anything if it can't be implemented in an effective manner.

We want to thank you very much for your presentations, and if there's any information you think the committee should receive, please feel free to send it on to us as we're looking for all and good sources of information on this matter.

[David Kramer]

Thank you very much.

[Jared Genser]

Thank you.

[The Chair, Liberal, Bob Nault]

We'll take a two-minute break—and I mean two minutes—so we can get hooked up to our next witness. Thank you.

[The Chair, Liberal, Bob Nault]

Colleagues, we're back in committee. I just wanted to introduce to you our next witness. His name is Andrei Sannikov. He's a Belarusian politician and activist. Mr. Sannikov was the deputy foreign minister of Belarus between 1995 and 1996, a position from which he resigned in protest. He is a co-founder of the civil action group, Charter 97, and was a candidate in the Belarus 2010 presidential election. In 2011, Mr. Sannikov was sentenced to five years' imprisonment on charges of organizing mass disturbances and he was released and pardoned in 2012.

I thought for the record it would be important for us to know who Mr. Sannikov is. I want to welcome him to the committee and turn the floor over to Mr. Sannikov for his presentation. Then we'll get right into questions if that's convenient and good for everyone.

Mr. Sannikov.