Subcommittee on International Human Rights Committee on March 10th, 2011

[Dr. François Larocque]

I've written on this topic. I would direct members to the bibliography I provided at the end of the documents I circulated. Under “Book and Book Chapters”, the third entry is “Civil remedies for terrorism”. It's a chapter I wrote precisely on the previous incarnation of terrorism bills, where I spoke strongly against a procedure whereby states would be designated.

I believe it's a politicization of the judicial process. I believe it's unprincipled and should not be adopted as an approach. This is what the United States has done. The U.S. has entered into a very awkward game of designating states and then undesignating them, and using that as a political carrot, so to speak. Recently, for instance, the U.S. government de-designated Libya. I think the Americans regret that right now. This was done months ago before current events had exploded.

This is a cautionary tale of why designating states is the wrong approach, either for terrorism, torture, crimes against humanity or war crimes. These crimes are wrong and are prohibited by the highest norms of international law, no matter who commits them.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Grossman.

[David Grossman]

In response I'll add very quickly two practical points and one theoretical one.

First, from a practical perspective, there's a heavy obligation on the federal government, if we adopt this modus operandi of continually adding countries to the list, of keeping track of everything. As things move forward, there's the obligation if Canada in good faith and well meaning wants to remain fair, to ensure that the list is always current.

The second point that flows from that is that Canada then becomes far more actively engaged in this operation of bringing foreign states to justice than Bill C-483 discusses.

As I mentioned, Bill C-483 puts the burden on private litigants to litigate their disputes. The federal government would be involved in making sure that there's this exception to state immunity, but after that, it does not need to take a position. It does not need to say that it follows foreign state A or it does not follow foreign state A. It is up to litigants to do it.

By pressuring the government to maintain a list of perpetrators, that is really asking the government to have a much more active role that may or may not be appropriate for it as it feels at the time.

Finally, as a principled point, I have no trouble saying that all state torturers, all states that commit genocide, all states that commit crimes against humanity, all states that commit war crimes should be caught by a bill that creates an exception to state immunity, because we have faith in our justice system to mete out frivolous and abusive claims. We have faith in our justice system to do this.

I have no question that to the extent a state is unjustly accused, we will not see on the merits that state have repercussions lobbied against it. On the other hand, if we do not adopt this position, there is a very significant risk that in principle this bill would fall short of what it seeks to do, which is to take a large bite out of the impunity foreign states have with respect to these crimes.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

We have witnesses on a variety of issues before this committee, and impunity is something that keeps coming up in the horrific things that are done.

I agree with both of our speakers, and I have talked to the other critics in justice regarding naming states and they are all in agreement that this is something we should not do.

I really appreciate your support for the NDP here today; I'm just teasing you both. The reality is it's a very significant situation and this committee is taking it very seriously.

I thank you for your testimony.

[The Chair, Conservative, Scott Reid]

Thank you very much, Mr. Marston. We'll turn now to Mr. Hiebert.

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

Thank you both for being here. It's very interesting testimony. I have limited time, so I'll get straight to the point.

Which countries currently allow what Bill C-483 proposes?

[Dr. François Larocque]

First of all, I should preface my remarks by saying that most countries on Earth don't have a state immunity act. To the extent that countries apply customary international law and follow the normative hierarchy of peremptory norms and norms of international law, in theory all countries that don't have a state immunity act can follow what Bill C-483 proposes to do.

As to what courts so far have found states to be non-immune with regard to the crimes that are targeted by this bill, outside the United States, Italy and Greece, none.

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

Which countries are you telling me have a state immunity act, like the one we have, with the amendments being proposed?

[Dr. François Larocque]

The minority of states on the planet, and ironically, they have common-law traditions, have legislation in place for a state immunity act. So the answer to your question would be that the United States is the only one with a state immunity act with legislated exceptions. But again, going to Mr. Marston's question, it is only for designated states.

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

Your answer leads to my second question. Without a treaty, then, are we not limited to customary international law, which requires a state to voluntarily submit itself to judgments from another country? In that context, how likely would a foreign state--let's say, Iran--be willing to submit itself to a judgment from a Canadian court?

Mr. Grossman, you're welcome to reply as well.

[Dr. François Larocque]

Do you want to answer first, and I'll follow up?

[David Grossman]

Certainly.

With respect to the issue of whether without a treaty we require states to subject themselves to our jurisdiction, the simple answer is that in many respects, we've already accepted that this is not the case. As I stated, the idea of absolute immunity does not exist in Canadian law. We are simply engaged in a process of line drawing here. So to take the perspective that all foreign states must necessarily submit to Canadian jurisdiction or else our courts have nothing to say about them is, with respect, a position that has already been ruled out by the current State Immunity Act.

With respect to what happens in the private sphere in the context of issues such as genocide, crimes against humanity, torture, and war crimes, again, we don't have a perfectly clear answer. As I stated, we are presently litigating the Kazemi case. There are various specific points in the Kazemi instance that make it very clear that we have a possibility of exercising jurisdiction over Iran, absent consent from Iran in that case.

More generally, I'll simply add to that the fact that consent to jurisdiction is not necessarily the point of departure when it comes to these crimes or the object of these lawsuits. Whether a given foreign state is going to openly subject itself to the courts of this country is a question that's going to be dealt with on a case-by-case basis. What I think Bill C-483 does head on is tell foreign states that we will not accept their impunity in deliberately turning their backs to our justice system. We will not accept their statement that they are not at all subject to our courts in these contexts. Whether or not that foreign state, in its domestic law or in its domestic interactions, takes a position of refusing to submit to our courts, we, as the Canadian people and as the Canadian government, will be taking the position that when it comes to these serious crimes, we do not accept an answer of impunity. I think that's the principled stand Bill C-483 takes.

[Dr. François Larocque]

I would only add, to be brief, that I understood your question to be largely about enforcement. Enforcement is tricky, even in commercial cases. Even in normal, ordinary cases, it's always a challenge. That being said, enforcement need not be a matter of consent. Iran, for instance, would not necessarily have to consent to the enforcement of a judgment against Iran. We could just go ahead and execute a judgment, for example, targeting non-diplomatic assets held by Iran in Canada. The reality is that countries have investments everywhere, and these would be fair game, so to speak.

[The Chair, Conservative, Scott Reid]

That uses up the available time for that round of questions. That actually brings to the end our questions for the witnesses.

We thank you very much for attending. We are now going to deal with a couple of motions. You're welcome to stay, or you're welcome to leave, but we do thank both of you very much for being here with us.

Perhaps this is also a good chance, Mr. Silva, for me to vacate the chair and for you to take it, if you're willing to do that.

[The Vice-Chair, Liberal, Mario Silva]

We have two motions before the committee. I will take them in the order they were introduced. We'll deal with Professor Cotler's motion first, and then with Mr. Marston's motion second.

Has everybody had a chance to look at Professor Cotler's motion? Is there any discussion?

Go ahead, Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

It's not that I have any concern about the motion. It just strikes me that we passed a committee report and it went to Parliament, so why is it that we need to do this?

[The Vice-Chair, Liberal, Mario Silva]

I believe there was a request of the committee at that time. There were some issues dealing with the—

[A voice]

[Inaudible--Editor]

[The Vice-Chair, Liberal, Mario Silva]

Exactly.

Maybe Professor Cotler could respond to that.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Marston is right. We have the report and it dealt with the fourfold Iranian threat. The situation in Iran has worsened considerably following the publication of our report, specifically in the matter of human rights violations.

That's why we had the special hearing and witness testimony. I was asked to summarize the concerns and recommendations coming out of our hearing with respect to just the human rights situation in Iran.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you.

[The Vice-Chair, Liberal, Mario Silva]

Is there any debate? Do I see unanimous consent to support the motion?

(Motion agreed to) [See Minutes of Proceedings]

[The Chair, Conservative, Scott Reid]

Now we'll go to Mr. Marston's motion. Has everybody had a chance to look at it?

[The Vice-Chair, Liberal, Mario Silva]

Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I understood that Mr. Cotler was giving some thought to an amendment to this, but I haven't heard back from him. I don't know whether he was able to do that or not.