Then, in December 2005, a new approach. No more transfers into US custody. Prisoners would now be handed over to Afghan officials and transferred into Afghan prisons. That despite the fact that torture is brutal and widespread in Afghan jails – so says the US State Department, the UN High Commissioner for Human Rights, Amnesty International, Human Rights Watch, the Afghan Independent Human Rights Commission, even Canada’s own very secretive international Foreign Affairs human right assessments. Torture in detention in Afghanistan is rampant. But we are told that written promises from Afghan officials that the transferred prisoners won’t be tortured, coupled with plans to send monitors into prisons with some regularity to check up on prisoners makes it all okay and should keep these prisoners safe from torture. But it is not okay. This is just like the deportation concerns I highlighted earlier. Non-binding promises not to do something that you have already legally promised not to do are not particularly reliable. And monitors may be able to uncover some torture after it has occurred, but will be powerless to head it off before it occurs, given its secretive, insidious and often brutally quick nature.


We have repeatedly pressed for a new approach. We have suggested that one possibility would be for a joint NATO/Afghan detention system – which would, yes, make sure that battlefield prisoners are protected from torture but would also, more widely, serve as a valuable venue for training and capacity building and thus make a sorely needed contribution to reform of Afghanistan’s penal system. No interest in that however. Instead, transfers continue and we have found ourselves in the very unusual position of turning to the courts to stop this practice. Our lawsuit seeking a court order that prisoner transfers in Afghanistan cease was launched in February 2007. But just 2 months ago a Federal Court judge, who had in earlier procedural rulings highlighted a litany of concerns with respect to Canada’s approach to handling prisoners in Afghanistan, dismissed our application, ruling that the Canadian Charter of Rights does not in any way govern the actions of Canadian soldiers outside Canada. They are subject to international law and they are subject to Afghan law. But Canadian soldiers, deployed pursuant to a decision of the Canadian parliament, operating under a variety of Canadian laws and regulations, paid by Canadian taxpayers, do not have to obey the Charter once they leave Canada. We are, obviously, appealing. And the recent strong decision from the Supreme Court of Canada in Omar Khadr’s case certainly bolsters our appeal, as the Court was very clear in concluding that the Charter does apply to situations outside of Canada in which Canadian officials are somehow implicated in activities that violate Canada’s international legal obligations.


The sixth area of concern is the Canadian immigration security certificate process. Security certificates are used to detain and deport non-citizens – be they permanent residents, refugees, refugee claimants or others – whom government officials believe pose a threat to national security in Canada. They have a very limited opportunity to challenge both the detention and the decision to issue a security certificate. But they are not allowed to see the bulk of the evidence, are not permitted to cross-examine key witnesses, and they and their legal counsel are excluded from the court-room during decisive portions of the proceedings. Hardly a meaningful opportunity to defend. And at that, the reviewing judge need not satisfy him or herself that the immigration decision is beyond a reasonable doubt correct, nor even that it is correct on a balance of probabilities – only that the decision was a reasonable one. #p#分页标题#e#


All this in cases, 5 of which are active in Canada at the moment, where the individuals involved ultimately face deportation to countries where they will almost certainly be tortured. International human rights bodies have urged Canada to amend the process to bring it into line with international fair trial standards. The UN Human Rights Committee and the UN Working Group on Arbitrary Detention both pressed Canada on this in 2005. Finally in February 2007 in a landmark Supreme Court of Canada ruling, the system was struck down as unfair and the government was given a year to revamp the process. Well a year later we have that new system. It hasn’t changed very much. A Special Advocate has been introduced into the process, an individual who would be empowered to look out for the rights and interests of the person subject to the security certificate. The downfall, and a significant one, is that once the Special Advocate has been allowed into the process and seen the evidentiary record against the individual he or she must curtail all contact with the individual. Not clear that this takes us really any further than before. Looks like the issue will be heading back to the courts.


And that leads into the final point I wanted to highlight. Secrecy; which is an issue, a challenge that arises with respect to many of these issues. The excessive secrecy of the inquiry into the cases of the 3 other Canadians detained in Syria. The secrecy that masks the identity of prisoners picked up by Canadian troops in Afghanistan. The secrecy that has long been the hallmark of the immigration security certificate system.


It is hard work protecting human rights in the face of secrecy. It is difficult to feel confident that the rule of law and due process are being upheld in the face of secrecy. One of the very significant concerns about how secrecy plays out is that is not limited to serious security considerations, the sorts of highly sensitive revelations that would for example compromise the identify of confidential sources or make public information that could be used to advantage by terrorists or other criminal elements. Secrecy does cover national security. It does cover national defence. But is also extends to information that, if revealed, might be “injurious to international relations”. International human rights law certainly does not recognize “international relations” as a ground for restricting fair trials. An individual’s right to due process cannot be violated because of concerns that some other government might be embarrassed or a diplomatic relationship strained or even ruptured.


This is not just theoretical. Occasionally we get a glimpse of how these restrictions are applied. In the context of the Public Inquiry into Maher Arar’s case, for example, there were times when we saw documents which the government released at different times and which had been differently redacted. One example: one key document, a government memo describing the first visit that Maher Arar had with a Canadian embassy representative during his time in prison in Syria, blacks out the words: “his answers were dictated to him in Arabic by the guards” – key evidence that corroborates Maher’s own description of what had happened. But – at an early stage in the hearing at least – someone with the power to decide what gets disclosed and what does not felt this might embarrass the Syrians, thus damage international relations and therefore had to be held back. Due process cannot be held hostage to those sorts of vagaries and absurdities. Secrecy laws and practices very much need to be reformed. #p#分页标题#e#


Extraordinary rendition, deporting to torture, flawed immigration security procedures, failure to look into the possible illegality of CIA planes, battlefield transfers of prisoners in Afghanistan, seemingly equivocal positions with respect to Guantanamo Bay and overly restrictive approaches to secrecy in court proceedings. All examples of ways in which Canadian law and practice has failed to ensure scrupulous regard for important international human rights obligations. Shortcomings which, in many instances, have been drawn to Canada’s attention – sometimes repeatedly – by expert UN level human rights bodies.


Does this mean that Canada joins the ranks of the world’s worst when it comes to human rights? Clearly not. But that’s not the point. As I said at the outset, it is crucial that Canada go the extra mile when it comes to protecting human rights in a counter-terrorism context because: (1) the victims deserve it; (2) failure to do so risks wider erosion of Canada’s human rights record; and (3) the world so very much needs Canada’s leadership on this front.


So what is needed? Let me very briefly suggest four areas, broadly framed, that should become Canada’s focus.


First, obviously, the shortcomings in the various issues I have described need to be addressed. Along the way I outlined some of the remedial steps that are needed. We must get to the bottom of the extraordinary rendition cases and that means that the current inquiry being conducted by Commissioner Frank Iacobucci must open up to a great degree of public access. Amendments to Canadian law to absolutely prohibit deportation to torture and to reform the immigration security certificate process. A real investigation into CIA plane landings in Canada. Concrete steps to ensure that prisoners taken into Canadian custody in Afghanistan can be and are treated in accordance with international law. A demand that Omar Khadr be repatriated to face justice in Canada. Amendments to rein in the wide-sweeping net of Canada’s secrecy laws.


Second, beyond these specific concerns – it would be splendid to see and hear an articulation of a Canadian security agenda truly grounded in a human rights framework. We need vision. Not bland acceptance of the “new normal” of inevitable restrictions that come with post September 11th insecurity. What is needed is a clearly stated and coherent policy that refuses to adopt or implement any counter-terrorism initiative that fails to conform to international human rights requirements. That ambitiously seeks to model for the world the human rights path to security. And which is backed up by meaningful oversight and review mechanisms with the mandates, independence and resources to make sure that human rights truly are not sold short in the name of security.


Third, Canada’s voice needs to be heard on the world stage. Robustly and consistently. Bilaterally and multilaterally. A voice that always speaks for human rights when security issues are on the table. That says to a government such as the United States that Guantanamo Bay must be closed, or to China that the crackdown against the Uighur people must come to an end. A voice that presses human rights when security related treaties, resolutions or other initiatives are being debated within intergovernmental bodies, or when decisions are being made about the nature of multinational military interventions, in countries such as Afghanistan. #p#分页标题#e#


And lastly, of course we need to see Canada deepen its overall commitment to human rights beyond the security front, to press the world community to remedy the long, painful decades of global human rights neglect that are at the heart of the widespread insecurity experienced on a daily basis by the overwhelming majority of citizens of this planet. Here’s a handful of suggestions:


Championing the ongoing tough, tough nut of reforming the UN human rights system, which stands at a make or break crossroads with the establishment of a new UN Human Rights Council which is already once again staggering under the polarized politicking that has hampered UN human rights efforts in the past;
Working with other states to bring in an effective system to regulate the world’s unbridled arms trade; and let me add a wonderful footnote there -- just this morning, in Dublin, 110 countries (including Canada but unfortunately not the United States) have agreed the wording for a new treaty that, once adopted and in force, will move to ban the dastardly, insidious cluster munitions that cause so much civilian death and injury around the world.
Strengthening the International Criminal Court and other laws and mechanisms for delivering international justice;
More work to boost women’s equality;
Greater effort to curtail the discrimination against Indigenous peoples, refugees, racial and religious minorities and other disenfranchised groups; and
Taking decisive steps to deliver the Millennium Development Goals and make real progress in tackling AIDS, poverty and barriers to education.


Let me end by coming back to the theme - the challenge of safeguarding human rights in the era of fighting terror. Human rights have faced a double assault over the past 6 years. Clearly, the cold, cruel logic of terrorism is a vicious and very public attack on basic rights. But so too, the sweeping logic of counter-terrorism challenges rights in what can be a more insidious, invisible fashion. The answer has to lie in rejecting assumptions that human rights must be sacrificed in the name of security - and embracing instead the simple truth that the two are wholly and inescapably compatible. Security that is not grounded in human rights will always be precarious, and human rights will remain tenuous if security is not assured. Canada can lead the way. That I know to be true.