Subcommittee on International Human Rights Committee on April 30th, 2009

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

These are slow steps, but this is part of that process. Mr. Arnold, yes. I will continue to work in Mr. Godfrey's place for other constituents, like Ahmad Abou-Elmaati and Dean Peroff, another constituent of mine. I'm working with Mr. Peroff now, particularly on the rights of detained citizens.

There are two issues here. The sort of macro issue is about the responsibility of the Canadian government to protect our citizens. This is one subset of that. I am quite involved in several others. But this piece of legislation will also now inform me, because this is one part of our government's responsibility to ensure that citizenship is indivisible, that our government will protect us when we are out of the country, proactively by ensuring civil rights in the world but also reactively through methods of recourse such as this act.

I want to ask a little bit about other countries. I am very pleased that Ms. Stoyles said that we would sooner actually focus on the exemptions of the acts out of immunity, as opposed to the countries. So we can have a principled activity, as opposed to a political activity--where we name our favourites or those most likely to offend--because offenders can happen any day anywhere. The offences need to be focused on, not the offenders. I think that needs to be placed in legislation.

I'm thinking of perhaps Spain or the U.K. with Mr. Pinochet, or whether there are other countries that have taken their acts and put it in line with the convention and have done something that we can model. Is there any knowledge of that?

[Dr. François Larocque]

I can speak to that with pleasure.

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

You can use either French or English.

[Dr. François Larocque]

Merci. I'll start in English; I may switch to French.

First of all, it should be said that not every country on this planet has a state immunity act. In fact we are part of the minority. It is chiefly common-law-based countries, ironically, who have shied away historically from codification, who have state immunity acts: Canada, the U.S., the U.K. But some Commonwealth countries don't have a state immunity act, New Zealand being a chief example. They proceed and they deal with immunities on the strict basis of common law, customary norms being automatically incorporated as part of the common law. So that's how they do it. It's quite simple and straightforward, really.

Ironically, most civil law countries do not—for example, continental Europe. In fact none of them, to my knowledge, have state immunity legislation. France, Belgium, Italy, and Spain don't have state immunity laws. They do it as a basis of strict law, international law that they apply through their domestic courts. They don't have the conundrum of adjusting their national legislation to international norms. They just do it as a matter of law, quite simply.

An interesting case study I would like to bring to your attention is a litigation between Italy and Germany. I think the first case was in 2004. Actually it started way before that, but it was brought to the Corte Suprema di Cassazione, the Supreme Court of Italy, in 2004. It was called the Ferrini case, Ferrini v. Germany. Here was a man who was basically suing for war crimes and other atrocities, including torture, during World War II. He was deported to Germany, interned in camps, and forced to work. Here he is in the 21st century suing Germany, who incidentally, it should be pointed out, has been Italy's primary trading partner. They're great friends, and here Italian courts are entertaining a lawsuit against Germany for these atrocities that happened, and without the benefit of the state immunity legislation, strictly on the basis of customary international law. The Corte Suprema di Cassazione realized it in a judgment that has since been upheld 14 other times. So now there are 15 Italian judgments all recognizing that there is no immunity in international law for crimes against humanity and for these jus cogens offences, universal jurisdiction crimes. That's an important precedent to keep in mind.

Germany and Italy still to this day remain great friends. I went this morning to the website of the German foreign office, and there's a tab for every country of the European Union and the tab for Italy is all rosy. They maintain how their relationships are as strong as ever, despite their obviously having a disagreement on the extent of the immunity that should be given to those particular acts.

It's an interesting precedent to be borne in mind as not being fatal to foreign relations.

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

Do the 2004 proposed amendments from the University of Toronto's international human rights program cover it? Are you happy with them? Would you go further or less in the wording?

[Mark Arnold]

I participated in that conference. Actually Stephan was there; Mr. Bouzari was there as well. You'll recall William Sampson, who was a torture victim from Saudi Arabia, also attended that conference.

We were quite pleased with those proposed amendments at that time. Study has to still take place. There are many questions that have to be asked. You've asked many of those questions today. I'm pleased with those amendments, but I'm not the final arbiter of this.

[The Chair, Conservative, Scott Reid]

Thank you.

Our last questioner today will be Mr. Sweet.

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

Thank you, Mr. Chairman.

I hope the last questioner will be my colleague, Mr. Hiebert. He has one question left, and I don't think I'll take my whole seven minutes.

I don't mind being repetitive. Mr. Kazemi, Mr. Bouzari, there's no way we can comprehend the kind of pain you've gone through. You certainly not only have our warmest sympathies, but all our commitments that one day we can be of some help in seeking justice for you and finally having it done.

I am concerned, Mr. Chairman, because of the history of this case, that no one was called here from the Department of Justice. My colleague even had to ask the question of what arguments there have been to the contrary. It isn't fair that they would have to answer what the circumstances were, why we hadn't had any success. I think it's a significant diminishing of our ability to get to the facts, without having them here together.

That said, we'll work with what we have, in the most effective way we can.

Are you familiar with the Canadian Coalition Against Terror? I have had more exposure to their pursuit than your pursuit, but what would you say are the significant differences in the process they're seeking in redress for victims of terror, and in what you're seeking, redress, particularly for victims of torture?

[Dr. François Larocque]

I am familiar with the legislation that C-CAT had put forth through, I believe, Senator Tkachuk.

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

Yes.

[Dr. François Larocque]

It was reintroduced on Tuesday this week for first reading again.

What's really nice about the bill, and I think we have an example....

[Mark Arnold]

Is that Bill C-272?

[Dr. François Larocque]

I think it's been renumbered. I think it's now Bill S-233.

In any event, the preamble of this bill enunciates the principle that also animates our request. It essentially recognizes that these peremptory norms of international law are superior in the hierarchy to other inferior norms, such as state immunity. When a conflict occurs between these norms, the peremptory norms should trump the inferior norm of state immunity.

Then they go on, essentially codifying an amendment to the State Immunity Act for terrorism, on the basis that terrorism is a violation of peremptory norms of international law. It's the same principle, really, and that formula, that spirit, can also embody the bill we would be putting forward for torture, crimes against humanity, war crimes, genocide, terrorism, extrajudicial killing. These are the no-brainers at international law. These wrongful acts are vastly recognized as being illegal and against international public order.

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

In that case, could some amendments deal with the specific bill, if it proceeds post-haste, which would clearly bring into consideration all your concerns?

[Jayne Stoyles]

Certainly we looked at that piece of legislation and we have talked about whether it's a matter of adding these crimes, because they are on exactly the same level. The crimes of terrorism, of course, have been very much in the public eye since September 11 globally, and I think it's the reason these very specific attempts have moved more quickly. These other atrocities, obviously, are equally serious.

In a way it's a question for you. One of the questions we've had is whether that process, the attempt to provide a definition of terrorism, is so challenging it will create challenges in the legislation. It was one of the things we wondered, because I know that attempt to provide the definition internationally has been very challenging. We had wondered, do we keep it clear and separate and do a process that's specifically about another set of international crimes? Perhaps you could advise us.

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

Definitely. I would have to have that bill and your proposal side by side.

Mr. Arnold.

[Mark Arnold]

Are you trying to work out in your mind the difference between terrorism on the one hand and torture on the other?

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

No, not at all. I was trying to see if two efforts could be combined into one. We have years of history on this issue, and I'm certain you'll want to see some success. That was the only intention of my question.

Mr. Larocque, you made some interesting observations. How many years has the United States been using this legislation, this exemption from the state immunity act, whereby they change the players who are exempt?

[Dr. François Larocque]

The first amendment that allowed lawsuits against the state sponsors of terrorism was made in 1996, but not only for terrorism. The amendment also worked for torture and extrajudicial killing.

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

Since1996 there have been a couple of administrations. Do you have any concern that now with normalization, with this administration talking about normalizing relationships with Iran, something may change in that regard?

[Dr. François Larocque]

That list may get shorter and shorter, yes.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

I have to make a speech in the House in about five minutes. I must apologize for having to leave now, but I want to thank you all for being here.

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

I have a question related to the remarks made earlier.

Mr. Larocque, it was mentioned that you have two other ongoing cases dealing with the State Immunity Act. Can you tell us about those?

[Dr. François Larocque]

Not very much at this point, I am afraid.

I am trying on behalf of Amnesty International to seek leave to intervene in the Kazemi litigation in Quebec, and that is yet undetermined. The court has not yet decided our fate.

There is also similar and ongoing litigation in which I'm involved in Ontario as well, but I don't want to go too much into details.

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

I appreciate that.

You mentioned that only a few countries have state immunity acts and that the general rule is that most do not. Which ones do have state immunity acts?

Second--and this is my last question--considering that you are not calling for the elimination of the act, only an amendment to it, are you acknowledging that it does have a beneficial role to play?

There are two questions there.