Foreign Affairs Committee on Dec. 7th, 2016

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you very much, gentlemen, for coming and for providing your very compelling testimony today.

Professor Cotler, I have two parts of a question for you, and this is to give us a bit of background on how we should approach this very challenging subject.

We've heard testimony that sanctions in the United Kingdom, even those that were put in place to comply with the United Nations Security Council, were being overturned due to a lack of due process. We know that although there are not any trials happening in Canada, there are still suits that are filed here.

Do you think there's a possibility of our having some sanctions challenged and overturned in Canada?

[Irwin Cotler]

I think whenever you have legislation that is either overbroad or unclear, then you run the risk of both a challenge and then the uncertainty of what a court might do. That's why I said that the issue of due process needs to be built into any sanctions legislation that we might seek to adopt.

Effectively, what I think we should be considering, as a parliamentary committee and then as a Parliament, is amending SEMA in three ways. Those three ways would address what is now a level of generality in SEMA itself, a lack of specificity as to what can trigger a sanctions regime. Again, when I say “trigger a sanctions regime”, I'm not saying that the government then is compelled to enact that regime; it means it's empowered to do so where, in its judgment, it believes it is appropriate.

Now let me just give you three examples. The first thing is that we amend SEMA to sanction internationally recognized gross human rights violations. In other words, this would include responsibility for or complicity in—and I'll just borrow from my own legislation, but it's part of a template in that regard—“extrajudicial killings, torture or other gross violations of internationally recognized human rights committed against individuals in any foreign country”. That's one. It's specific as to the human rights violations and it's included in the legislation, in SEMA, which now has it.

Second, we should amend SEMA so as to protect those individuals, like Magnitsky, those brave human rights defenders, be they in Russia or in Iran or in Turkey or wherever, who seek to expose illegal activity carried out by government officials, as Magnitsky did, or who seek to obtain, exercise, defend, or promote internationally recognized human rights and freedoms as Raif Badawi did in Saudi Arabia. That's the second thing.

Then the third thing—and this I link up here with Garry Kasparov—is that one of the worst horrors that we continue to experience is the ongoing war crimes and crimes against humanity daily in Syria. This has been going on now for five and a half years, since the scorched earth policy of Assad's regime began in March 2011, and it has continued, tragically, with impunity. I would like to also see SEMA amended to include both the preventing, if possible, and the sanctioning of mass atrocity crimes: war crimes, crimes against humanity, and ethnic cleansing and genocide. I know this is one of the recommendations made before you by one of the witnesses, Jared Genser. I would associate myself with that, because I think the responsibility to protect should also be written into this legislation.

[Raj Saini, Liberal, Kitchener Centre, ON]

I want to raise another point with you, something you mentioned in your testimony when you talked about redress, and I want to talk about the concept of judicial review.

I'm sure you know that the United Nations appointed an ombudsperson, Kimberly Prost, to deal with the UN sanctions against the al Qaeda operatives. Do you feel that would merit something in our own domestic legislation to in some ways make sure that the legislation has teeth, but also to create a transparency and more legitimacy in the sanctions if they are ever applied? Do you think that's a concept we should look at?

[Irwin Cotler]

I think that if the legislation is crafted carefully, specifically both in its identification of the criminality to be sanctioned and in its identification of the remedies available from a due process point of view, then I think we can leave it to our governmental authorities and our Parliament and courts to address and redress any problems that may arise.

I read Kimberly Prost's submissions before you. I knew her well. We worked together in the Department of Justice when I was minister. I understand the reasons with respect to the ombudsperson and her particular situation and concern. I'm not sure it would be something that would be necessarily warranted in Canadian legislation, but it is something that can be explored.

[The Vice-Chair, Conservative, Dean Allison]

Thank you.

We don't have a whole lot of time left but, Mr. Sidhu, we have you on the list. Why don't you ask a couple of questions before we have to wrap up?

[Jati Sidhu, Liberal, Mission—Matsqui—Fraser Canyon, BC]

Thank you, Mr. Chair.

Thank you both for your testimony today. Let me start by thanking you, Mr. Cotler, for your service to this country. You were an MP for 11 years and a minister for a few years.

Since the landscape south of the border is changing and we are going to have a new president in January, I'm pretty sure the relations with Russia are going to change. With your political background, what impact will this have on Canada, if any?

[Irwin Cotler]

It's hard to speculate, because one of the things about President-elect Trump is that he is unpredictable, particularly in matters relating to foreign policy.

With respect to the United States, given their system and the separation of powers, it is possible for Congress to do as they have done in 2012, which was to pass justice for Sergei Magnitsky legislation and have a documented list of those who cannot enter the U.S., who cannot launder their assets in the U.S., and the like. Similarly, the Global Magnitsky Human Rights Accountability Act has now passed Congress and will go to the Senate. The legislation can be adopted without the president, though clearly the president will have a role afterwards with respect to the bilateral relationships with the countries the violators come from.

I think global legislation makes it more effective, and one is not subject to the notion that you've singled out a particular country. This is not a matter of going against countries; it's a matter of going against human rights violators. It's a matter of supporting those countries in supporting the rule of law and justice and supporting the people of those countries, because you're going against the violators who have been enjoying impunity because of a culture of corruption or criminality.

In regard to President-elect Trump, first, I think we can be independent as a Parliament, as a government, and as a country, and enact our own global justice accountability legislation.

Second, I think that may send a signal to other countries in Europe to maybe do the same, and the European Parliament has already endorsed that approach.

Third, it could support the congressional action taken in the U.S., and that may buttress what President Trump might then decide to do in that regard. Let's look at it the other way round: Canada influencing others, rather than our being influenced by Trump.

[The Vice-Chair, Conservative, Dean Allison]

Do you have a final thought?

[Garry Kasparov]

As you can guess, I was quite worried about Trump's consistency in praising Putin, because that was probably the only consistent line in his entire campaign, but we know this consistency could be short-lived, and I wouldn't make any predictions about U.S. foreign policy before we see who is nominated to be Secretary of State. Most of the names on the list are known for their quite hard stand against Russia, such as Ambassador Bolton, Governor Romney, and Senator Corker. Any of them, or even General Petraeus, will signal that Trump's relations with Putin may not develop the way Putin expected.

But again, with President-elect Trump I would be very cautious in saying anything before we see the nomination announced and then being approved by the Senate. I also see some names on the list that are making me much less comfortable.

[The Vice-Chair, Conservative, Dean Allison]

Thank you.

Mr. Cotler, Mr. Kasparov, thank you very much. As usual, we could have had you for two or three hours, but we appreciate the short time we did have.

[Garry Kasparov]

I would like to submit this testimony.

[The Vice-Chair, Conservative, Dean Allison]

Absolutely.

[Garry Kasparov]

Thank you very much.

[The Vice-Chair, Conservative, Dean Allison]

That would be great. As we tell all our witnesses, if there's anything after the fact that you would like to submit to the committee, by all means do so. We'd love to see that. Thank you very much.

To the committee, thank you as well, and with that the meeting is adjourned.