Irwin Cotler

[Committees of the House, March 12th, 2009]

Mr. Speaker, during the recent question period, the Minister of Foreign Affairs was asked how the Canadian government could continue to stand by while everything it has always held to be true about this case, such as the fairness of the process and the support of the United States government, had utterly eroded. His response was steadfast, if not original. He repeated three times that the government's position remained unchanged. It was referenced again today. He said:

Mr. Khadr was and is still charged with very serious crimes...The American authorities will be reviewing his case. Clearly, the wisest course of action is to wait for those authorities to make their decision.

It is a position that has been repeated today. There is no room at this point for equivocation on this issue. Either the Conservative government must appreciate that rights have been denied through the Guantanamo system of detention and military commissions, which can never be restored and redeemed in that regard, as both the United States Supreme Court and our own Canadian Supreme Court have declared and affirmed, or it stands alone in the international community while abandoning its own citizen.

It appears that the Khadr case is characterized by a growing set of facts and conclusions of law that the Conservative government would prefer to ignore. It had best be stated boldly at this point that whether or not Mr. Khadr is charged with a serious crime, he is still a Canadian citizen entitled to due process of law and entitled to that due process here in Canada. He is being denied it. Whether or not he was recruited into a recognized army, Mr. Khadr was still a child soldier when he was captured and is entitled to protection under international humanitarian law. Whether or not our government realizes it, and this is the important point, the era of acquiescing in arbitrary detention, prisoner mistreatment, human rights abuse and denial of the rule of law has come to a close.

All these facts are important. While repatriating Khadr was always the responsible thing to do, it is now also the political thing to do. Our government may prefer to abdicate responsibility and take its cues from its neighbour, but few cues would be more overt than the executive order authorizing the closure of Guantanamo Bay and the termination of these proceedings. The tarnish of Guantanamo makes justice in Canada the only reasonable option from all perspectives. Indeed, while our government continues to drag its feet on this issue, European governments have been discussing the possibility of accepting detainees who have absolutely no connection to their countries as a show of support and solidarity with America.

The Conservative government's vehemence on the Khadr case to this point has turned what is a fundamental issue of human rights and the rule of law into what it should never be, namely, a partisan and political issue. It has turned an issue of justice into an issue of politics, yet with President Obama's commitment to the rule of law, the Prime Minister can still think politically and do the right thing. It is time that he did.

Finally, I would make one particular reference. We in the House should respect the positions of Parliament. Apart from everything else I have referred to with regard to the findings of fact that became known while the present government has been in power and the conclusions of law in terms of the decisions of both the American Supreme Court and the Canadian Supreme Court, the untenable Military Commissions Act was passed in 2006, after we were no longer in power.

I make no apologies for our own position. The former prime minister has stated that perhaps we should have acted differently. However, we were then concerned with what was known at the time: the due process issues. All these other matters--an American Supreme Court decision, a Canadian Supreme Court decision, an untenable U.S. Military Commissions Act, and facts with regard to brutality in detention--became known after 2006.

However, I do not want to make this into a partisan thing. Our whole point here is that the government has tried to make it into a partisan thing. I am seeking to speak to it as a matter of fundamental justice. However, if one were to speak of it in political terms, then the government should do that which would dovetail with what the Obama administration has been doing, namely, a fundamental commitment to the rule of law.

When the president decided, as his first executive order, to close down Guantanamo Bay within a year, to ban the use of torture, to invert the whole process with regard to the relationship between security and rights and with regard to the struggle against terrorism and the like, that not only gave us the opportunity but gave us the responsibility at that point to do what is right in terms of repatriating Omar Khadr to Canada and having him face justice here.

This would comport with what this debate is about, which is the decision of the Subcommittee on International Human Rights, in which I participated, which stated, in terms of its recommendations resulting from findings of fact and rule of law as we appreciate it, that the Government of Canada should demand the immediate termination of military commission proceedings against Omar Khadr.

We did not have to wait until the government did something, regrettably, because the Obama administration, realizing the untenability of the military commission, moved to suspend it.

We expressed our objection to the position stated by the United States, that it reserves the right to detain Omar Khadr as an “enemy combatant” notwithstanding an acquittal or the possible termination of proceedings. This was an astonishing position taken by the previous American administration, which should have been cause enough, at the time, without anything else, for the government of the day to demand his repatriation to Canada.

We recommended that the Government of Canada demand Omar Khadr's release from U.S. custody at Guantanamo Bay into the custody of Canadian law enforcement officials as soon as practical.

Now, in light of everything that has happened, in light of the commendable action taken by the Obama administration, it is not not only practical, it is right. It is even the political thing to do. It would even help our relationships with the United States, as well as serve the rule of law.

The subcommittee recommendation also called on the director of public prosecution to investigate and, if warranted, prosecute Omar Khadr for offences under Canadian law.

As a Canadian citizen, as a child soldier, this is where he deserves to face justice, this is where justice can best be served and this is where the Government of Canada can serve the rule of law in all its configurations, respect an American supreme court decision, respect a Canadian Supreme Court decision, respect what the Obama administration has done, respect the rule of law, respect a parliamentary decision taken by the subcommittee which has brought the debate before this House, respect the will of the Canadian people ,and respect the ends of justice to which this entire debate seeks to serve.

[Committees of the House, March 12th, 2009]

Mr. Speaker, for six years now Canadian citizen Omar Khadr, defined as a child under the terms of the United Nations Convention on the Rights of the Child, has languished in Guantanamo Bay. Indeed, the Khadr case constitutes a case study of ongoing violations of international humanitarian law in general and the fundamental principles of the rule of law in particular, including arbitrary and illegal detention, denial of procedural due process in no presumption of innocence, denial of the right to counsel, denial of the right to trial within a reasonable period of time before a fair and impartial tribunal, coerced interrogation, and cruel and unusual punishment in detention. I could go on.

Moreover, as leaders of the bar associations in Canada, in the United Kingdom, in France and elsewhere pointed out a year ago, the United States Military Commissions Act of 2006, enacted after we were no longer in government and which the present government had to address and deal with, wrongly subjected individuals to trial by military commission on the sole basis of their status as aliens, criminalized conduct retroactively, permitted military commissions to consider coerced statements, denied defence counsel access to evidence that might be essential to a proper defence, et cetera.

In a shocking assault on the rule of law, and this again took place while the present government was in power, the United States authorities at the time even stated that they may continue to detain Omar Khadr even should he be acquitted under the standing violations already set.

Yet none of this moved the government to act--not the violations, not the military commissions, not this outrageous statement to which I just referred, not the fact that Omar Khadr remained the only citizen of a western state still detained in Guantanamo after all other countries had repatriated their nationals.

On a personal matter, I would like to make a statement for the record, because reference has been made to the member for Mount Royal's position. I first wrote six years ago, in the National Journal of Constitutional Law, a critique of “the prosecution by the U.S. of the war in Afghanistan and its unprecedented initiatives, including the proposal for extraordinary military tribunals and the legal limbo of security detainees”, stating that, “Canada has become implicated in this legal limbo respecting security detainees”.

At the time, I discussed the case with the minister of foreign affairs, Bill Graham, to whom reference has been made and who was responsible for the file. He said on behalf of the government that we were continuing to press the United States to ensure that Khadr's rights would be protected. That was the government's position while I was in cabinet.

However, that was a very different position then from everything that occurred thereafter. There was no Military Commissions Act yet at the time. There were no military commission tribunals. All other western countries had not yet repatriated their nationals. We did not know the full disclosure of all the violations that had taken place of international humanitarian law and the rule of law. All this became known and all this took place under the watch of the current government. The current government has to now wear it and bear the responsibility.

This is the most important point. An important and welcome development occurred when on just the second full day of his presidency, President Obama issued an executive order to ban torture and to close Guantanamo Bay within a year. This decision, demonstrating the commitment of the Obama government to the rule of law as an overriding priority for the incoming administration, had important implications for Canada-U.S. relations in addition to the important substantive and symbolic value with respect to the overall rule of law in the Khadr case.

Indeed, it should have altered the entire Canadian government's calculus with respect to the case of Omar Khadr, who remained the only western national imprisoned at Guantanamo Bay. Unfortunately, the government did not appreciate this fact. Indeed, the government continued to cling to the incomprehensible incantation that pressing for Mr. Khadr's repatriation was “premature”. All these things I have referred to took place when we were no longer in government.

The Conservative government continued to say that it was “premature” even after the U.S. Supreme Court ruled that detainees like Mr. Khadr were denied their due process rights, even after the Canadian Supreme Court held that the Guantanamo process violated international law, even after evidence of coercive interrogation and brutality in detention emerged, and even after it became clear that the incoming American administration would shut down the facility. Even in the face of all these clear and compelling findings of fact and conclusions of law, the Conservative government still failed to act and has the gall to come before the House to try to lay it on the previous administration.

What a shame. The Conservatives should bear the responsibility, because all these things have taken place while you have been in government, and you have the responsibility to act for the Canadian people.

The Conservative government still continues to wait, while President Obama has preferred to act. During a recent question period, Foreign Affairs Minister Lawrence Cannon was asked how the Canadian government could--

[Carmelita Sideco, March 3rd, 2009]

Mr. Speaker, the people of my riding, Mount Royal, and the Filipino community in Quebec and Canada were deeply saddened to learn of the recent death of Filipino humanitarian leader Carmelita Sideco.

Carmelita made an enormous contribution to the Filipino community as the first female president and ongoing leader of FAMAS, the Filipino Nurses Association and of the Federation of Philippine Canadian Association of Quebec, to name a few.

Indeed, her leadership and engagement went beyond the Filipino community, involved as she was in a myriad of intercultural, university, artistic and political organizations and projects, all of which benefited from her seemingly endless generosity, courage and energy.

She was one of the great and beloved pillars, not only of the Filipino community but of the larger community of Quebeckers and Canadians. She personified the best of Filipino values of commitment, compassion, community service and selfless giving of herself for the well-being of others.

She will be sorely missed by all who knew her, by my family and myself and all those whose lives she touched for so many years.

[Inter-parliamentary Coalition for Combating Antisemitism, February 27th, 2009]

Mr. Speaker, last week, 10 members of this House joined 125 parliamentarians from more than 40 countries to participate in the inaugural conference of the Inter-parliamentary Coalition for Combating Antisemitism.

This interparliamentary conference, hosted by the U.K. government under the inspiring leadership of MP John Mann, heard chilling testimony about the new, escalating, global, virulent and even lethal anti-Semitism.

The parliamentarians adopted a landmark document, the London Declaration on Combating Antisemitism, which expressed alarm at the resurgence of this oldest and most enduring of hatreds, including that of state-backed anti-Semitism in general and genocidal anti-Semitism in particular, and resolved to act through an action plan to combat this old-new hatred of Jews and a hatred of Israel as a Jewish collectivity.

As we have learned only too well, while it may begin with Jews, it does not end with Jews. This conference not only sounded the alarm, but issued a clarion call to act in the name of our common humanity and shared future.

[Human Rights, February 13th, 2009]

Mr. Speaker, the systematic and systemic abuse of the Baha'i minority in Iran unfortunately manifested itself again this week as seven members of the Friends of a Free Iran group, already being held for almost a year in the notorious Evin Prison, were charged on Wednesday with spying for Israel, insulting Islam, and spreading propaganda against the state.

These trumped-up charges also carry the threat of capital punishment, with Iran already being among the world leaders in carrying out the death penalty.

What action will the government take to protect this persecuted Baha'i minority and the persecuted prisoners in Iran?

[Black History Month, February 6th, 2009]

Mr. Speaker, I rise to commemorate and celebrate Black History Month in Canada, a time when we recall the long march of African Canadians for freedom, the struggle for human dignity and liberty, and the singular contribution and legacy of African Canadians to the building of a plural Canadian identity and a diverse Canadian mosaic.

Included in the thematic character of this Black History Month are the historic and courageous contribution of the No. 2 Construction Battalion of Canada in the building of roads, railways, bridges and defences in the first great war in 1916; the important and inspirational contribution of black athletes to the Canadian Olympic and Paralympic Games; and the preservation of African Canadians' enduring contribution through telling the black narrative in museums of black history as part of intergenerational continuity.

In remembering and reaffirming the historic contribution of the black Canadian community in the building of Canada and Canadian identity, we affirm and celebrate the building of a plural Canadian community and culture, one in which, in the words of Martin Luther King, people will be not be judged by the colour of their skin but by the content of their character.

[Business of Supply, February 5th, 2009]

Madam Speaker, that in fact was reflected throughout my remarks. The point that I was trying to make is that when we make representations to the United States, these representations have to be on a multi-layered approach to both parties in Congress, to non-governmental organizations, to the public sector and the like.

The second thing is that when we make this approach, we have to underpin it with the rule of law principle. That is the commitment that underpins everything President Obama does. Unless we speak that shared language and unless we speak with respect to those shared values, we will not connect in a way that we would wish in order for our advocacy to be effective.

We should enlarge our approach with respect to invoking the rule of law principle to other dimensions of our bilateral relationship, so that President Obama will see that he has in Canada a partner with respect to the pursuit of justice as a whole, of which the matter of free trade is one important component but not the whole of the pursuit of justice.

When we are seen to be pursuing justice in concert with President Obama, the U.S. administration and Congress, we will succeed better on this issue. We will succeed as well on the other issues that I referred to in my remarks.

[Business of Supply, February 5th, 2009]

Madam Speaker, I rise in support of the motion, “That, in view of the growing protectionism in the United States...this House calls upon the government to intervene forthwith and persistently with the United States administration and the Congress in order to protect Canadian jobs, and urge the United States to protect its international agreements, including the Canada-United States Free Trade Agreement, the North American Free Trade Agreement and the World Trade Organization”.

I am reminded by my colleague of the words of President Obama two days ago, when he said:

I think it would be a mistake though, at a time when worldwide trade is declining, for us to start sending a message that somehow we're just looking after ourselves and not concerned with world trade. I think we need to make sure that any provisions that are in there are not going to trigger a trade war.

This is not the first time that the protectionist impulse has found expression in the United States, a protectionist impulse that is not unrelated to the economic crisis besetting the United States if not the global economic meltdown as a whole. In the months following the great stock market crash of 1929, and amidst the fear and uncertainty of that period, protectionist forces in the United States pushed for legislation that would shelter local industries and jobs. The result was, as we recall, the Smoot-Hawley act, which hiked tariffs to all-time highs on some 70 agricultural products and 900 manufactured items.

Economists are divided on whether the law, which touched off retaliatory measures from both Europe and Canada, turned a deep recession into a protracted depression. However, on one thing they do agree: these protectionist measures took a bad situation and made it worse. For example, between 1929 and 1934 world trade declined 66%. Much of that weakening can be blamed squarely on the Smoot-Hawley act.

Let us fast-forward to the 1980s, when the Government of Canada sought at the time to improve access to the United States markets to improve productivity and employment, encourage foreign direct investment, strengthen the competitiveness of Canadian firms in global markets and ensure the steady improvement of living standards for Canadians as a whole. Accordingly, in May of 1986, the Canadian and U.S. governments began to negotiate a free trade agreement. By October 19, 1987, this 20-chapter agreement was finalized. It came into effect on January 1, 1989.

This agreement included a schedule for the elimination of all tariffs on trade between Canada and the U.S. by January 1, 1998. Admittedly, the implementation of this agreement generated employment losses in some sectors and gains in others. However, on the whole, the economies of both countries became more integrated. Exports flowed to the United States, and in turn there was more U.S. investment in Canada and the like.

This brings me to NAFTA, the second of the three great trade agreements. In January of 1994, Canada, the U.S. and Mexico launched the North American Free Trade Agreement. Many of the same issues raised in the Canada-United States Free Trade Agreement surfaced again with regard to NAFTA and found expression in the discussions and debate in this House. Canadian businesses wanted Mexico to open up for them, while organized labour and workers feared that Canadian businesses would relocate to Mexico to take advantage of lower labour costs and lower environmental standards.

At the same time, Canadian nationalists wanted assurances that Canadian sovereignty would be respected and that Canada could protect its culture, water, resources, and standards on health, safety, labour and social programs. Some provinces were also worried about the potential impact of NAFTA on specific regional industries, whether it was British Columbia's softwood lumber or Ontario's car manufacturing.

On the whole, I think one can say that the agreement did bring economic growth and rising standards of living for the citizens of all three countries, and that it established a strong foundation for future growth, however imperfect and inadequate some of the dimensions of that agreement may appear to be.

This brings me to the third of the final agreements, the WTO agreement. The WTO serves as an international organization representing 153 member states and 95% of total world trade. Its mandate is to supervise and liberalize international trade.

It operates under a spectrum of rules, which Canada and the U.S. contributed to, and we have a rule of law trade relation system.

What the three agreements, these three path-breaking developments, really have in common and which should underpin now our multilayered representation to the United States and Canada with respect to this protectionist impulse, are the following.

First, these are not just agreements on free trade, those which I have cited and referred to, but in fact they have ushered in a global culture of free trade.

Second, they reflect the highly integrated nature of both the American and Canadian economies and the harm that protectionism would have on our industry, commerce and the economy of both countries. However, what must be appreciated is how unique the bilateral trade relationship is. I will quote certain data:

The cross-border flow of goods and services added up to almost $700 billion in 2008. The United States absorbs roughly four-fifths of Canada's exports, and supplies nearly two-thirds of its imports. The Canadian market, in return, takes up more than one-fifth of U. S. exports and provides one-sixth of its imports. Canada is a larger market for U. S. goods and services than all 27 countries of the European Union combined.

The third principle is the importance of the rule of law underpinning the culture of free trade to which President Obama has referenced on more than one occasion.

Finally, the fourth principle is the internationalization of free trade, that free trade is not just a bilateral norm or even a regional norm, but it has become an international norm underpinned by a whole framework of international law.

The American president may be said to be a rule of law president. We saw this when among his first executive orders was an order to ban torture, to order the closing of Guantanamo and to ensure that the struggle against terror would be anchored in the rule of law.

We saw this when, during the electoral campaign and then again in his inaugural address, the President spoke of the rule of law underpinning American foreign policy, international relations, United Nations multilateralism and the promotion of human security. We see this also in his eschewing of protectionism, which could trigger, as he put it, a trade war instead of global free trade.

Therefore, I want to recommend that the rule of law not only underpin our bilateral relationships in the matter of free trade, but the entire Canada-U.S. relationship in the matter of international law, foreign policy and diplomacy as a whole in two respects, and I will close with these examples.

First, President Obama has spoken of the importance of and, indeed, his commitment to the prevention of genocide. As we meet, we are confronted with two instances on genocide in the 21st century, the state sanctioned incitement to genocide in Ahmadinejad, Iran, and the genocide by attrition in Darfur.

These remind us of the two great lessons of the last 60 years since the genocide convention was adopted on December 9, 194: first, that the Holocaust and the genocide that followed in the Balkans, Rwanda and Darfur occurred not because of any machinery of death but because of the state sanctioned incitement to genocide; and second, was that these mass atrocities occurred because of indifference and inaction on the part of the international community.

Therefore, we should convey our willingness to work with President Obama, first, to invoke the rule of law principle and to invoke the remedies under the genocide convention to hold Ahmadinejad, Iran to account. In other words, the genocide convention and its obligations are not just a policy option. They are international legal obligations. As joint state parties to the genocide convention, we should work in order to combat the crime that has already been committed under the genocide convention, namely the direct and public incitement to genocide.

The second is with regard to Darfur. We should work together with the American president to combat the genocide by attrition in Darfur and invoke the responsibility to protect principle under the rubric of the rule of law.

[Situation in Sri Lanka, February 4th, 2009]

Mr. Speaker, as the hon. member appreciates, the responsibility to protect, a doctrine which Canada had a singular involvement in developing and articulating, invites intervention only if the state is unwilling or unable to do anything about human rights violations in its midst, or in fact is the author of such human rights violations. Of course, for that responsibility to protect intervention to be authorized, it requires a United Nations Security Council resolution and that has been difficult to obtain.

It would appear at this moment that what is needed would be an emergency United Nations Security Council resolution to put an end to the hostilities, to call for a ceasefire. We were able to do that with United Nations Security Council resolution 1680 with respect to the hostilities in Gaza. There is no reason that we should not be able to have the United Nations Security Council convene and put an end to the hostilities here.

[Situation in Sri Lanka, February 4th, 2009]

Mr. Speaker, I want to share my colleague's skepticism, if I may put it that way and I hope I am not unduly attributing an attitude to her, with respect to the United Nations. If we look at the role of the United Nations with regard to Sri Lanka, regrettably the United Nations has not been sufficiently engaged.

If we look at the work of the United Nations Human Rights Council, which succeeded the somewhat discredited predecessor, the United Nations human rights commission, it has yet to even take up the question of the conflict in Sri Lanka. In all the emergency sessions that have taken place, and there have been 10 emergency sessions, not one session has been devoted to Sri Lanka. In the 25 resolutions that have been passed since the advent of the UN Human Rights Council itself in 2006, not one resolution has been passed with respect to Sri Lanka.

Therefore, I understand the skepticism and that is why I began by limiting my remarks to the appointment of a UN special envoy for Sri Lanka, with an appropriate authority with respect to the investigation, monitoring and protecting against human rights abuses in the conflict area, that would report back not only to the United Nations General Assembly and the like but hopefully will spearhead a further engagement by the United Nations at the General Assembly level, and in particular at the level of the United Nations Human Rights Council.