Thank you.
My colleague Clare Crummey and I co-wrote this section of the report, which finds that if the facts alleged against Omar are true, he can be tried in Canada under the anti-terrorism provisions of the Criminal Code.
The Criminal Code contains two definitions of terrorist activity, and satisfying either constitutes such activity. Both definitions have extraterritorial reach. Ms. Crummey will elaborate on their applicability to Omar.
Importantly, the definitions of terrorist activity exclude an act or omission that is committed during an armed conflict and that at the time and place of its commission is in accordance with the applicable international law. The definitions also exclude activities undertaken by military forces of the state in the exercise of their official duties. These two exclusions appear to apply to both definitions of terrorist activity. In other words, if Omar's activities were conducted during an armed conflict in accordance with international law or as a military force of a state, he can't be charged with terrorism under the Criminal Code.
However, we have found that this exclusion should not be a barrier. While the prosecution would likely concede that the situation in Afghanistan in June and July 2002 was one of armed conflict most likely of a non-international variety, it can argue that Omar's alleged activities were inconsistent with applicable international law and not conducted as part of the military force of a state. For instance, Omar's building and planting of improvised explosive devices may have killed or injured people taking no active part in hostilities, in violation of, first, the prohibition on murder in common article 3 to the Geneva conventions; second, the prohibition on attacking civilians in article 13.2 of additional protocol 2; and thirdly, the prohibition on indiscriminate attacks against civilians in article 51.4 of additional protocol 1. Such findings would depend to a large extent on whether the IEDs were victim-activated.
Moreover, according to the definition of military forces of a state in the Criminal Code, Omar's activities were not committed as part of the military force of Afghanistan. First, al-Qaeda is not organized by a state or in accordance with the laws of a state. Second, to the extent that Omar was under the control of the Taliban in June 2002, that regime fell in 2001 and no longer represented the legal or de facto state of Afghanistan.
Merci beaucoup. Ms. Crummey will continue.