Subcommittee on International Human Rights Committee on March 31st, 2009

[Prof. Gregory Gordon]

I don't know that we could necessarily use the word “genocide”. I think there have been crimes against humanity. Genocide is the crime of crimes, and it requires the destruction of a people. Certainly, part of a people could be destroyed. I don't know if it has gone to that level, but I think there have been gross human rights violations. As for whether it has gone to the level of genocide vis-à-vis other ethnic minorities in Iran, I don't have enough evidence to say. If you see the kinds of gross human rights violations that are going on in Iran, you have to wonder whether it's heading toward that, or you have to wonder whether, if you were able to dig deeper, you might find evidence of it. I don't think we know the full picture. The beauty of these hearings is to help illuminate what is going on.

I do know this: incitement to genocide does not require a genocide to take place. I know that incitement to genocide is being committed. Of that there's no doubt. Professor Cotler asked me about the role of incitement to genocide or how deeply embedded it is in international law. The genocide convention is one of the most deeply embedded instruments of international law that we have. Incitement to genocide in article 3 has been there from the start, and we're seeing that happen, so we have to be extremely concerned.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

My last question deals with one of the elements of the crime. You were suggesting that Iran's relationship with Hezbollah and Hamas as clients was sufficient to fulfill the requirement of action, if I recall. Maybe you can elaborate on that. Is that not a potential weak spot in the argument, because it's more indirect than direct? Can you give me an example of a precedent in which that was a sufficient connection?

[Prof. Gregory Gordon]

That's an excellent question.

For purposes of crimes against humanity, there has to be a widespread or systematic attack against a civilian population. I submit that Iran's sponsorship of the funding and training of these terrorist organizations, and its directing of them, in many respects, constitute that kind of attack.

It is a good point. If you bring this charge, I think that's one of the issues that are certainly going to be litigated, and I talked about that quite openly in my article.

There is, however, precedent for the proposition that a sponsor country can have a relationship with a client organization or country that could be direct enough, even though it's indirect, for there to be liability for the sponsor. In my article I talk about the U.S.-Nicaragua case, for example. There is the case of the former Yugoslavia, or Serbia, and the Bosnian Serbs. There has been shown to be enough of a nexus between the sponsorship of the bigger country and the smaller organization for there to be liability for the bigger country.

Now, the ICJ decision in the genocide case that was brought by Bosnia against Serbia is not helpful in that regard. I think that's an area of the law that has probably taken a wrong turn based on that recent decision, but I still think there's enough out there. I don't think it's definitive. I still think that if you use the old test, the U.S.-Nicaragua test, a fair degree of control has to be exerted, which obviously makes it more difficult, but that's the test that the ICJ referred to recently.

The ICTY test in the Tadic case was a lot looser. The ICJ didn't use that test.

Where will the ICC go? I don't know. That's still open, and we'll see. Certainly they could take the lead of the ICJ, but I could equally see them going with the ICTY, and this is the kind of thing that would have to be litigated.

[The Chair, Conservative, Scott Reid]

Mr. Silva, you have the floor now.

[Mario Silva, Liberal, Davenport, ON]

Thank you, Mr. Chair.

I was just musing with my colleague. Professor Cotler was saying that unless we've taken international law, which I studied, members of the committee won't know exactly what you're talking about, whether it's the Nicaragua case or the Tadic case.

[Prof. Gregory Gordon]

I'm sorry about that.

[Mario Silva, Liberal, Davenport, ON]

Thank you very much for your presentation. It was extremely well informed, and we very much appreciate your being here.

Canada, as has been noted, has an obligation, under domestic and international law, as a signatory to the Rome Statute and the genocide convention, and of course, as the authors of the responsibility to protect concept, to single out these leaders who in fact dehumanize, incite genocide, and commit crimes against humanity. We need to bring this issue as soon as possible to the ICC. Under our universal jurisdiction, we need to act.

The reason he is able to get away with such hateful words is quite simple: the Supreme Leader of Iran allows it and shares those sentiments. In fact, it's not just Ahmadinejad who is a great concern, with his hate mongering that goes on, but also there is that institution of the Revolutionary Guards.

So we have to single out an individual who has been more vocal and hopefully show, as a warning to the rest of the leadership within that country, that they can't get away with it. But he is not alone, and we know that. This is a regime that is very brutal, that massacres its own people, that is, as you mentioned, persecuting the Bahá'ís, the Baluchis, and other religious minority groups, that has executed over 100,000 people since the revolution, that has in fact, contrary to conventions it has signed on the rights of the child, executed minors. People known to be gay have also been executed. So this is a brutal regime that, unfortunately, still gets some recognition from some world leaders and even from some western leaders through their financial dealings with certain countries. We, as a country, have a moral obligation, especially given the fact that we have both the responsibility to protect doctrine we've been standing behind and supporting and a commitment to the ICC, to do whatever we can.

So I agree with you, and I praise you for your leadership and also for the way you've set up the parameters for how we can go about doing that. That was more of a comment, but I'd certainly be quite grateful to hear anything else you could add.

[Prof. Gregory Gordon]

Thank you.

I appreciate that you brought up responsibility to protect. I didn't bring it up, and I think it's something that bears mentioning in this context. This is a perfect example of where R2P, responsibility to protect, comes into play. As I said, all the red flags are there, all the warning signs are there, and we're not living up to the R2P principles.

The other point you made that I think is very good is the fact that Ahmadinejad is not alone. I've been asked why we should prosecute him. Why focus on Ahmadinejad when you have all these other people, including the supreme leader, who make these statements? My response is that Ahmadinejad has been the most vocal. He has been the most visible.

One of the aspects of criminal law, whether it's domestic criminal law or international criminal law, is deterrence. You make the most effective statement if you prosecute Ahmadinejad as opposed to one of the others, because he is the one who is most associated with this. He is the one who has embraced it the most fervently. I think, if the world sees that the international community is not going to put up with this anymore, it will send the most powerful message out there possible.

I agree with you that he's the one we should be focusing on, despite the fact that we could find others, or maybe we could even charge it as a conspiracy. I think it's more effective to single him out. I really do. I think we'd get more bang for the buck.

[Mario Silva, Liberal, Davenport, ON]

Good. Thank you.

[The Chair, Conservative, Scott Reid]

Mr. Sweet, you'll complete our questioning.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Thank you, Mr. Chairman.

Thank you, Mr. Gordon.

I wanted to ask you whether specific--I don't know if I'd say forensic--evidence or substantive evidence of funds moving from Iran to Hamas, Hezbollah, and Islamic Jihad exists.

[Prof. Gregory Gordon]

I believe it does. I mean, statements have been made. If I had to prosecute this, I would go to admissions that have been made by the parties. I've seen evidence--admissions by Hamas leaders, for example--that they go to Iran for training. It makes it really easy when you have that kind of evidence out there. You don't have to follow a Byzantine money trail. These people have come out and admitted to their links and their sponsorship and all these things. So it's pretty compelling.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Thank you for that answer.

My next question is about the prosecution. I understand it's criminal, but is there the possibility of a tort aspect? You're saying that the key thing about this conviction.... Obviously, getting Ahmadinejad and actually being able to arrest him is highly unlikely. However, the case, with this kind of catastrophic behaviour, is compelling enough just in terms of public shame.

Is there some precedent here--i.e., that the money trail could be followed, that there could be some punitive aspect after a conviction?

[Prof. Gregory Gordon]

You know, it's interesting; you made me think of something that I didn't bring up. To be honest with you, I'm not quite sure how this works out in Canada. I know that in the United States we have the Alien Tort Claims Act. It would be interesting to think about whether or not a civil suit in tort, as you mention, could be filed under that. Lots of human rights cases have been brought in the form of Alien Tort Claims Act litigation.

Of course, because you're dealing with a state leader, you deal with issues of immunity, issues of immunity that you don't have to deal with at the ICC. If you look at the Rome Statute, there's not going to be an immunity. That's why Bashir has been indicted.

I don't know if Canada has something like that. If it does, and if you could get around the immunity, that could be another possibility. Symbolically, it would be another way of making a statement. You could have plaintiffs who would say that they were either victims of the terrorist violence inflicted by Hamas or Hezbollah, or people who would say--this would be an interesting Alien Tort Claims Act case in the United States--that they were the victims of incitement to genocide and that therefore they have an action from that.

So it's an excellent question. It actually has made me think about the fact that maybe that's yet another avenue that could be pursued. I'm less sanguine about the success of that one, especially given the immunity.

You know, it's a private litigation with plaintiffs. I'm less convinced that would be as effective a message as the other ones we've talked about. But it's certainly something you could add to the smorgasbord.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Yes. On the lack of effectiveness, you may be correct, but just demobilizing the machine would be one step, and just slowing down any action that may come from this regime.

I have two questions I want to make sure I get in.

First, you mentioned Hezbollah, Hamas, and Islamic Jihad. Are there other states complicit in the perpetuation of this threatening of genocide with Iran?

Second, you mentioned an interesting term--that because of this anesthetization, there's this ecosystem of hate developing. Do you see some evidence of that in the United States or in Canada?

[Prof. Gregory Gordon]

To answer the second part, I see it worldwide, absolutely. I think unfortunately anti-Semitism in the form of anti-Israeli sentiment is on the rise. As we head into these perilous economic times that we're in, hatred finds a wonderful forum, unfortunately, for spreading itself. We've seen throughout history that anti-Semitism is such a prominent vehicle for spreading hate. That could be the subject of an entire hearing we could do, separate from this.

While Ahmadinejad and Iran may be the most vocal and may be the most visible, I don't think they're the only ones. I think they're maybe the most dangerous in many respects, but certainly other countries, such as Syria, have played some role. But you don't see Assad getting out there and making these kinds of speeches at the UN and going to different fora and urging the kind of violence and destruction publicly that Ahmadinejad has. It may be done more locally, more privately.

I think there's certainly a lot of that sentiment in the Middle East. As I said, Iran has become a leader in the Middle East. There are certainly a lot of disputes. We just saw on the news that Mu'ammar Qadhafi denounced Saudi Arabia at a recent summit. There are a lot of tensions, I think, within the Muslim world. The one thing they have that they all seem to agree on is a hatred for Israel. That seems to bind them together.

So I think it's out there. It's just that Iran has become a leader in so many ways. They've become a leader in state sponsorship of terrorism and terrorist groups. They've become a leader in incitement to genocide, as we've been talking about. They're such a prominent human rights violator that again, when we talk about deterrents, showing the international community that this will not and should not be allowed to take place, it's good to focus on them.

I'm sorry, but as I was speaking to you about this I was thinking about the 1930s and Germany. Was Germany the only country in the world that espoused an anti-Semitic policy? No. But it was certainly the most prominent, and it ultimately became the most murderous. I don't know whether we can say that Iran of 2009 is the same thing as Germany relative to the 1930s, but with that leadership role it's taking, it's certainly having a terrible impact, so that's why I think it's important that we focus on Iran right now.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Thank you very much, Mr. Gordon.

Thank you, Mr. Chairman.

[The Chair, Conservative, Scott Reid]

Thank you, Mr. Sweet.

With the indulgence of the committee, I have a follow-up question.

Professor Gordon, you opened up an interesting line of thought, and I had actually been making some notes on this beforehand. The thought of anti-Zionist, anti-Israel sentiment as a binding agent in an otherwise fractious community is a thought you're making vis-à-vis international relations within the Muslim world. The thought occurred to me that there might be a domestic component to this, and so I'm posing this as a question, given that patriotism is the last refuge of the scoundrel. Perhaps in the right kind of environment, anti-Israel sentiment might be the last refuge of certain scoundrels. Is this in a sense a version of the Argentinian generals invading the Malvinas as a way of turning to something else when they've lost all domestic credibility?

It appears to us from our hearings that there is a rising sentiment--and not just among Azeris and Bahá'ís and other groups that are historically not treated well or persecuted, but among Persians themselves--of intense frustration as the population becomes more sophisticated and more knowledgeable of their current regime. Is it possible that this is not merely driven by an internal ideology but also is meant to distract attention and focus national attention away from the problems of the regime itself?

[Prof. Gregory Gordon]

That's a terrific question.

Yes, to answer your question succinctly, I do believe that plays some role. If you look at Iran in the 1990s up through the time that Ahmadinejad was elected...for example, before Ahmadinejad you had Mohammad Khatami as president. There was an attempt at reform. The way the Iranian government is set up, those attempts at reform can be squelched quite easily, and I think they were. I don't believe the election of Ahmadinejad in 2005 was free and fair; I think there was a lot of hanky-panky, if you will, and repression going on behind the scenes.

Because there is growing discontent with the regime, this is the perfect way to distract the population and say, look, here's what your problems are really all about; they are about Israel; they are about the plight of Palestinians and the sense of solidarity we have with them. That is a theme that we've seen throughout history, that a regime that is dictatorial and tyrannical, which the Iranian regime is, likes to find a scapegoat. It likes to find a whipping boy. And I think Israel has served that purpose quite well.

On the plight of the Palestinians, I would like to see peace in the Middle East. I would like to see the end of this problem of countries wanting to eliminate Israel. I'd like Israel to be able to live in harmony with the rest of the people of the Middle East. I hate to say it, but a lot of leaders in the Muslim world who are repressing their own people don't want to see that, for many reasons. One of the big ones is that they know it can help distract their own citizens and they can use it as an issue to distract the rest of the world from the terrible policies they are enacting, from the human rights violations they're committing. They don't want to see peace. They don't want to see it go away.

When I see Ahmadinejad leading the charge and being the most vocal in terms of this incitement, this hatred that he spews toward Israel, I absolutely have to believe that part of that is based on the fact that there are problems at home in Iran and this is a convenient way to try to distract the Iranian citizens from those problems.

I think it's an excellent question.

[The Chair, Conservative, Scott Reid]

Thank you very much for your testimony, Professor Gordon.

Thanks to all the members of the committee. We will see you on Thursday at 12:30.

The committee is adjourned.