Mr. Chairman, it is with a profound sense of sadness and pain that I rise to express my condolences to the American government and the American people, particularly to the families of the victims and their loved ones.
Words may ease the pain but they also dwarf the tragedy. As one who is a graduate of an American law school, who has taught and lived in the United States, who has family in the United States, and for whom many of my closest friends are Americans, this unspeakable tragedy was and is profoundly personal and familial, as it was profoundly human and neighbourly in a North American continental sense. In a word, we are all reminded that we are one human family and that this was an attack on that human family.
On the eve of the new millennium, various pundits and policy wonks at the time warned against millenarian cults that might use the fin de siècle for the commission of what they called apocalyptic acts of terrorism, but it took the transformative terrorist attacks on the United States of September 11, not those of the millenarian cults but of the transnational super-terrorists to bring us Apocalypse Now , and to bring us Apocalypse Now not as film but as unprecedented horror in prime time, and with the tragic loss of life and innocence not so much a case of life, or more specifically mass murder, imitating art but in fact mocking it.
Any counterterrorism law and policy, therefore, be it that of any prospective anti-terrorist coalition or that of member states of the international community like Canada and the United States, will have to factor into their response the following constituent features or faces of this transnational apocalyptic terrorism, most of which found expression in this macabre terrorist assault, including the increasing lethal face of terrorism.
In the last few years we have seen a lessening incidence of acts of terrorism but we have seen: an increasing lethality in the nature of terrorism, most dramatically expressed in this macabre act of September 11; the increasing targeting of civilians in public places; and the increasing incidence of suicide bomber terrorism, associated with or underpinned by religious fanaticism.
This was not the terrorist hijacking of planes for political ends, as bad as that would be. It was a terrorist hijacking of planes for the sheer purpose of mass murder, driven by a mass hatred.
There is more: the sophistication of transnational communication, transportation and financial networks; the potential use of weapons of mass destruction; the teaching of contempt and demonizing of the other as a kind of standing incitement to terrorism against the demonized target; the vulnerability of open and technologically sophisticated societies like the United States and Canada; the explosion of internal ethnic and religious wars abroad and their attending acts of terrorism which may implode elsewhere and at home; and the continuing presence of state sponsored terrorism. In a word, the profile of this new existential threat may be, as the U.S. state department report on global patterns of terrorism put it:
--the transnational super-terrorist who benefits from modern communication and transportation, has global sources of funding, is trained and anchored in transnational networks, enjoys base and sanctuary in rogue or pariah states, is knowledgeable about modern explosives and is more difficult to track down and apprehend than members of old established groups or those sponsored by state terrorism.
As Ward Elcock, the director of CSIS, put it in his submission to the special committee of the Senate on security and intelligence on June 24, 1998, “The global terrorist threat today compared to 10 years ago is more complex, more extreme, more sophisticated, more diffuse, and more transnational. If the world is now a global village, the threat exists in every neighborhood”.
What is perhaps the most important and oft ignored dynamic in the development of a counterterrorism law and policy such as that we would recommend is combating the increasing blurring of the moral and juridical divides that have often blunted or blurred any effective anti-terrorism law and policy in these past years. I am referring to the repetition of the moral and legal shibboleth that one person's terrorist is another person's freedom fighter, a moral relativism or false moral equivalence that effectively blurred the distinctions between legitimacy and illegitimacy or, more profoundly, the distinctions between good and evil.
Accordingly, the underlying basis for any counterterrorism law and policy is that this apocalyptic terrorism must be seen for what it is: not only the ultimate existential assault on human rights and human dignity in its slaughter of the innocents, but as an assault on democracies themselves and on the peace and security of humankind. The struggle against terrorism, therefore, must be seen as part of the larger struggle for the protection of democracy, for the protection of human rights and human dignity, for the protection of the human family.
The principles, then, that must guide us are: that one democracy's terrorist is another democracy's terrorist; that if terrorism is a global phenomenon, it requires a global response, as no country can fight terrorism alone nor should it be required to do so; and that if terrorism is indeed a war on democracies, then democracies must use all the democratic, diplomatic, juridical, financial and institutional means at their disposal in taking the war to the terrorists themselves, organized around a series of specific global and domestic initiatives as follows and which I would modestly recommend for consideration by the Prime Minister, if not that of the anti-terrorist coalition.
The initiatives are as follows. The first initiative, one that arises from the blurring of the moral and legal divides, as I indicated, is the need to build an international understanding of and support for a counterterrorism law and policy that is a priority on the larger human rights and democratic agenda, not just on the national security agenda. That must include not only the mobilizing of governments but the mobilizing also of parliaments as representatives of the public will. It would also include the mobilizing of civil society, which can give expression and advocacy to that public will.
Second, the legal arsenal to fight terrorism must be internationalized and institutionalized. For example, many countries have still not ratified the 13 issue specific international conventions to combat terrorism. Ratification has not only juridical importance in terms of countries implementing these international treaties as part of their domestic counterterrorism law and policy, but ratification sends an important psychological as well as juridical message that these countries have put themselves on the side of the democratic war against terrorism.
We can identify those that put themselves on the side of that war by whether they are in fact ratifying these international conventions against terrorism and implementing domestic legislation alongside them. That is a verifiable test of a counterterrorism law and policy that is juridical and prospectively effective.
Third, the international juridical initiatives for implementing and enforcing a counterterrorism law and policy need to be expanded and refined, particularly as acts of terrorism tend to involve more than one state. This includes not only the principle of extradite or prosecute as a corollary to the national and international commitment to deny base and sanctuary to terrorism and terrorists anywhere, but it also includes, for example, arrangements for mutual legal assistance treaties, MLATs as they are called, or the use of encryption, a process that allows where necessary lawful government access to data and communications in order to prevent or investigate acts of terrorism while at the same time protecting the privacy of legitimate communications.
Fourth, it is crucial that intelligence gathering be refined and that information on terrorism and terrorists be shared so that one may not only build the evidentiary links which both law enforcement and courts require, which information, I regret to say, is still not even shared among allies and fellow democracies themselves, but which shared information is not only important in an evidentiary sense, it can pre-empt and prevent the terrorist acts to begin with.
Fifth, states must take seriously the characterization of terrorist fundraising, as the 1996 Paris ministerial conference on anti-terrorist fundraising put it, as “the soft neuralgic point of democracies”, and therefore states must take the necessary steps to counteract through appropriate domestic and international means the financing of terrorists and terrorist organizations, the whole in implementation of the International Convention for the Suppression of the Financing of Terrorism.
Sixth, there is a need for democracies to adhere to, invoke and apply those foundational principles of international law as basis and justification for any counterterrorism law and policy. This includes, for example, the characterization of terrorism as a Nuremberg crime, not only as a violent act but as an international atrocity of the first order, akin to a crime against humanity.
It includes the characterization of terrorists as hostis humanis generis , the enemies of humankind, thereby underpinning what should be for all of us a zero tolerance policy respecting the combating of terrorism from whatever quarter and for whatever purpose.
Any military action must equally be anchored in foundational international humanitarian law principles respecting the use of force in armed conflict, the protection of civilians and the doctrines of necessity and proportionality in any responsive military action. Any domestic law and policy must ensure that the rule of law is not in the interests of a counterterrorism law and policy just as an effective counterterrorism law and policy is not blunted by its over-attention to technical detail.
Finally, every state must review its domestic legal regime with a view to filling in the domestic gaps in law and policy. For example, does the domestic legal regime here in Canada properly address the evolving and dynamic nature of this terrorist existential threat as I described above? Do we need special domestic laws or perhaps a countrywide counterterrorism law such as exists in the U.S. and U.K. but improved upon? Would such special laws possibly--