Subcommittee on International Human Rights Committee on Nov. 22nd, 2016

[William Wiley]

The short answer is yes. This is what we're trying to do in northern Iraq at the present time.

I would also add that at the present time we don't support Iraqi prosecutorial authorities. There are two reasons for that.

One is that prosecutions in Iraq at the present time, whether under the authority of the central government or the Kurdistan regional government, are pursued through deeply flawed terrorism legislation, which in our opinion doesn't offer sufficient due process guarantees to the accused.

Secondarily, of course, Iraq has the death penalty. Our donors—indeed, it's my position as well—won't support prosecution in capital cases in Iraq or anywhere else. In establishing this court in northern Iraq, we have to get implementing legislation through the Kurdistan regional parliament, and that gives us the opportunity to ensure that the death penalty won't be applied by this specialized chamber.

I will return to Syria in the new year to have a look at the possibility or the potential for criminal justice accountability in one of the areas of Syria where the confrontation line is relatively stable. I'm not overly hopeful that the prospects are that good. I think it's premature at the present time. Obviously in Syria we can't get international advisers in there and so forth. It's simply too dangerous for the average lawyer or analyst and whatnot. Also, obviously the death penalty is being applied by these ad hoc courts, which is a second problem.

So yes, it's simply premature. I see no realistic prospect for the application of criminal justice in or on Syrian territory to the necessary standards at the present time.

I want to add a final point. International criminal justice for core international crimes is highly symbolic. It's very important that trials are fair and are seen to be fair. Otherwise, we lose the symbolic benefit of the exercise.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Is there a role for Canada to play, other than providing funding, to help you in your mission and to increase accountability within that region?

[William Wiley]

Absolutely. One of our better partners.... Is it Global Affairs Canada now? I've lived abroad for many years, and I apologize, I'm not always up to date on the latest name changes. Global Affairs Canada is one of our better partners, in fact as good as any, on a par with the United Kingdom and the European Union in particular, insofar as they assist us on the political and diplomatic level, in places like Baghdad, bringing us together with other interested states to raise money and so on and so forth.

That assistance is there. More generally, to go back to the theme pursued by your colleague, it's very hard, as a private organization, to bring states together. We can do it informally to a certain degree, but with the cleavages that exist within any given state, as a result of just different structures and whatnot, you can imagine, when you try to bring states together, how very difficult it is. Where we can get states together, or where they come together, and Global Affairs Canada's been very helpful here, things happen very quickly, frankly.

[The Chair, Liberal, Michael Levitt]

Thank you very much.

MP Anderson.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Thank you, Mr. Chair.

I would like to thank our guest for being here with us today.

You mentioned, sir, that you collected evidence for asylum screening. I'm just wondering how extensive that is. Do you know if Canada has used that screening for its purposes?

[William Wiley]

The Syrian regime names database was set up, or we started the process of setting that up, about two years ago. It's always been funded by Germany, and it's run outside of our headquarters. It was initially run in Sofia, Bulgaria. For security reasons I won't say where it is now, but it remains in continental Europe. It employs Syrian refugees in this task. Effectively, we're pulling names from the digitalized regime documentation and putting them into a stand-alone database with hyperlinks to the source documents. It's a very inexpensive, simple platform, and a great many immigration authorities are using it.

In a public forum such as this—I apologize profusely—it would be remiss of me to indicate which countries are drawing on this, but suffice it to say that it's available to any liberal democratic state that needs it.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Okay.

Mr. Miller touched on this a bit earlier, but previous witnesses have suggested that rather than going after the lower-level perpetrators, they need to be brought to justice in their own area. From your experience, do you think it's realistic to expect that we're going to be able to establish functional justice and court systems in these areas post conflict that will be able to hold people to account? Witnesses have said they think that's the way to bring some sense of peace to these areas and to settle these disputes between what were previously neighbours. Is it a realistic expectation to think that we can do that in the future?

[William Wiley]

To be honest, it's not going to be easy. I worked as a legal adviser quite a few years ago in Baghdad during the trial of Saddam and the other senior Baathist officials. To put it in layman's terms, from a due process point of view the whole thing was a God-awful mess, and for myriad reasons.

We think that through this initiative in northern Iraq, for various reasons, we can have trials that will meet western due process standards. In Syria, even with the war over, if there is a transition to a liberal democratic form of governance, it will really take some time. There will be a great deal of residual violence, amongst other things. I think criminal justice related specifically to Syria will probably have to happen outside of Syria, at least if it's to meet necessary due process standards. However, with transitional justice mechanisms in truth telling and truth seeking, I think experience shows that these mechanisms can be set up on Syrian territory.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

I just have a question, then. We've had some folks come and suggest that a safe zone should be set up in the Mount Sinjar region, the Nineveh plains, or whatever to protect some of the ethnic minorities. Do you think that would be a useful idea to you in terms of setting up the structures you need to get some of the results you want? Is it a good idea, in your perspective, or does it matter to you? Would it make a difference?

[William Wiley]

It doesn't make any difference to us. From a criminal investigative point of view, we already operate in that area with the support of the Kurdistan regional forces. It's pretty safe in there compared with Syria or further south, in Mosul. It's like Parliament Hill.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

It's safe most of the time.

[William Wiley]

Indeed.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

I'm not sure how much more time I have, but I want to take a couple of minutes to talk about some of the risks that your investigators and contributors take while investigating. They're doing some heroic work here. What are some of the dangers they face as they're trying to do their work?

[William Wiley]

Generally in Iraq we don't have too many problems, because we operate forward to the confrontation line, but ultimately always north and west of that line.

In Syria it's a very different matter. There are three principal risks to the investigators on the ground at the present time. One, more broadly, is indirect fire, aerial attack. One of our investigators was wounded in Hama six weeks ago, not too badly, during an aerial attack, with no relationship to his work as such.

The second threat we have is the entities opposed to our work, so initially the regime. We had a team in greater Damascus, all of whom were captured about four years ago, so we didn't, in fact, reinforce failure there. We don't have a regular presence there any longer. The regime has ceased to be a threat. The threat over the last three years has really been posed by radical jihadists: Jabhat al-Nusra and, since early 2014, Islamic State. Some of our investigators were arrested by the Nusra Front and Islamic State. They were released, in the end, because we have very good security protocols to protect them against this eventuality—encryption of their equipment, of course, and cover stories, if you will. But they are vulnerable to denunciations, and they have to be careful.

The final area—this has always been the most dangerous—is the document extraction in the north because of the highly fluid nature of the confrontation lines and both the regime and radical jihadists being hostile to our work for various reasons. It is in moving that material to international borders and then over the borders and onward to the west that we've had the most people either wounded or, in one case, killed, because it takes them out of their normal area of operations.

We haven't had anyone hurt in this way in a couple of years, principally because we transferred responsibility for the planning of these operations out of the field and into headquarters. We found that our Syrian colleagues had more of a fatalistic attitude to, let's say, their future than I did. They were sort of leaving it in God's hands. What we have them doing now is proper movement plans and so forth. I knock on wood here, but that's solved that problem.

[David Anderson, Conservative, Cypress Hills—Grasslands, SK]

Thank you.

[The Chair, Liberal, Michael Levitt]

Thank you very much.

We're going to move to a short question from MP Tabbara before we wrap up.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Thank you, Mr. Chair. I'll be very quick with my question here.

Sometimes when atrocities have happened around the world, or a tragedy, news outlets are quick to call them terrorist acts when sometimes they in fact are criminal acts. You were quoted in an August 2016 BBC article as preferring that, in domestic courts, Daesh fighters be tried as criminals and not as terrorists. Can you explain why?

[William Wiley]

We don't do advocacy, as I said, but of course we're happy to push positions occasionally privately with partners. We've been encouraging domestic prosecutors to accept as much assistance as we can give them to undertake some of their Daesh prosecutions, pursuant to, if you will, normal criminal law as opposed to terrorism law. Returning Daesh fighters in Europe, for example, are, in every case that I'm aware of, being prosecuted pursuant to terrorism law.

This is, in our opinion, counterproductive from a counter-messaging point of view. Think about the stereotypical disaffected young man—perhaps not in every case ethnically Muslim, but the majority—who are vulnerable to IS online recruitment propaganda. Labelling IS fighters who are prosecuted as “terrorists” is counterproductive, we believe, because young men will say, well, George Bush is a terrorist, or Tony Blair. You follow what I'm saying here.

If we can have, through criminal justice processes, some, although not all...because it's very easy to prosecute pursuant to terrorism law. If we can occasionally have some of these men prosecuted pursuant to normal criminal law for murder, theft, rape, and other normal criminal offences, if you will, or offences other than terrorism, we can send the signal to those would-be joiners that they're looking at joining a criminal syndicate: they're not on their way to becoming soldiers of the caliphate or fighters for the prophet and so forth. The objective is really a counter-messaging, countering violent extremism.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Thank you.

[The Chair, Liberal, Michael Levitt]

Thank you very much, Dr. Wiley. We greatly appreciate your being available to provide testimony before the committee this afternoon. As you can imagine, this is an issue that not just this committee but all parliamentarians here in Canada feel exceptionally strongly about. Again, our Parliament is taking action on multiple fronts in terms of the plight of specifically Yazidis but also other religious minorities in Syria and Iraq.

I thank you again for being here with us today.

[William Wiley]

It was my pleasure. Thank you for your ongoing work in this area. It means a lot to those of us in the field, especially the Syrians and the Iraqis.

Thank you.

[The Chair, Liberal, Michael Levitt]

Before we adjourn, some members of the subcommittee have raised an issue that I want to bring before the committee to get some consensus on. There are two particular hot spots that we've reviewed over the last number of months, since this committee has been formed, and there have been flare-ups in those hot spots of late. It's something that we can seek to address maybe at the next meeting. I know have another meeting tomorrow. In particular, it's the Rohingya, and also Aleppo.

We studied the Rohingya last session, but since October 9 there has been a recurrence and an increase in violence in Myanmar, particularly targeting the Rohingya. The issue has come up about us possibly issuing a shorter joint statement on the nature of this flare-up and our feelings about it. Certainly, if we're interested in doing that and being heard on that, that's something we can discuss at the next meeting.

With regard to Aleppo, we issued our joint statement on Aleppo after our emergency hearing probably three weeks ago, but I think it's clear that there has been an escalation this past weekend that seems to be continuing, with a clear deterioration in terms of the catastrophic actions that are taking place. Maybe we can get some feedback from the analysts at the next session, but if there is a feeling that this might be a positive route to go, we can address that.

With that, we shall adjourn.