Irwin Cotler, MP

Canadian MP Steps Up War on Genocide Denial

http://www.newtimes.co.rw/news/index.php?i=15333&a=66122

By James Karuhanga, April 20, 2013:

A Canadian lawmaker has vowed to continue  to  fight Genocide denial and historical revisionism in part to prevent trivialisation of the tragedy that took place in Rwanda in 1994.

Prof. Irwin Cotler, also a former Canadian Justice Minister, is the man who successfully pushed for the enactment of the Canadian War Crimes and Crimes against Humanity Act to bring war criminals in Canada to justice. The legislation received Royal assent on June 29, 2000.

In a recent interview with The New Times, Prof. Irwin Cotler outlined three central challenges that must be addressed in relation to the 1994 Genocide against the Tutsi, including combating the rise of Genocide denial and historical revisionism, education, and ending the culture of impunity.

It is important, he added, to guard the authentic record of what happened, for Rwandans who must live with the painful legacy of the Genocide and for the entire world, which must see this as a serious warning on the dangers of incitement and indifference to atrocity.

On education, Professor Cotler stressed the need to encourage survivors to tell their stories and to inform the world of what happened – to bear witness to atrocity – so that “never again” will be the moral and legal injunction “by which we live”.

Inspiration to others

“Finally, we must continue to work towards ending the culture of impunity for those involved in genocide and other war crimes. We must mobilise the necessary political will and commit the needed resources for this purpose.”

Prof. Cotler also initiated the first-ever prosecution under the Canadian War Crimes and Crimes against humanity Act – the trial of suspected Genocidaire Désiré Munyaneza, now a convicted war criminal who was living in Toronto, Ontario, before being imprisoned in Canada, in October 2009.

Munyaneza, the first man to be arrested and convicted in Canada on charges of war crimes and crimes against humanity, for his role in the 1994 Genocide against the Tutsi, was sentenced to life in prison and without parole for 25 years – the lengthiest sentence possible under Canadian law.

“I was one of those who sought to warn decision-makers, including the Canadian Government (while a law professor) about the impending genocide in Rwanda – tragically, to no avail. Accordingly, when I was asked in 1999 when, after 30 years as a law professor and human rights lawyer,  why I was running for Parliament, I answered, in one word, ‘Rwanda,’” Prof. Cotler said via email.

“If such mass atrocity were to ever occur or if we were in a position to prevent it – I wanted to be part of the decision-making community and not on the outside looking in.”

13-year fight

Elected to parliament, in 1999, Cotler vowed to make sure that the failures that led to the 1994 Genocide would no longer go unanswered, especially by those in positions of responsibility and endowed with the public trust to do something about it.

“That has been my work in Parliament for the greater part of the last 13 years wherein the lessons of Rwanda have played an important role and where, for example, I chaired the Save Darfur Parliamentary Coalition and led the Canadian delegation to the Stockholm Conference on the Prevention of Genocide in 2004, where the lessons of Rwanda were a prominent part of my address.”

The Law Professor cites three important lessons to learn from the 1994 Genocide: the danger of state-sanctioned incitement to genocide; the dangers of indifference and inaction in the face of mass atrocity; and the danger of the culture of impunity that allows those who engage in genocide to go unpunished.

Consequently, he “sought to act on these lessons” through four initiatives.

The enactment of the War Crimes Act, followed by initiating the first-ever prosecution – Munyaneza’s trial – which started in 2003 when he became Attorney General.

This was followed by the case against Léon Mugesera, former Quebec resident who Canada’s Supreme Court found criminally responsible for incitement to Genocide and allowed his extradition last year.

Mugesera’s case went to Canada’s Supreme Court in 2005. Cotler made bringing war criminals to justice “a priority in our justice agenda” during his tenure and it was when he was Justice Minister and Attorney General (2003 to 2006) that Mugesera was prosecuted.

In 2008, Prof. Cotler introduced a motion – unanimously adopted by the Canadian Parliament – establishing April 7 as the National Day of Reflection on the Prevention of Genocide.

“The pursuit of justice – “and our responsibility” to victims of past genocides and war crimes – is to prevent other genocides from happening, to hold accountable those who took part in atrocities, and to care for those who were left to live with the wounds of these tragedies, he says.

“These are responsibilities that the entire world must share.”

Statement on Armenian Genocide

Mr. Speaker, this is a poignant time, a time to remember, to commemorate and to bear witness. I rise today on the anniversary of the Armenian genocide, which reminds us of the dangers of indifference and inaction in the face of incitement and mass atrocity.

This fact of history has been recognized by the House, documented by scholars and confirmed by the anguished testimony of survivors.

I have just come from meeting with the Armenian community here assembled. The present Turkish government and the people are not to blame for Ottoman injustice. We trust that the process of Turkish Armenian reconciliation will lead to both recognition of truth and healing between peoples.

As we say on occasions such as this, never again.

Debate on the Combating Terrorism Act, Bill S-7

Hon. Irwin Cotler (Mount Royal, Lib.):

Mr. Speaker, I am pleased to rise on the matter of Bill S-7, legislation that proposes a number of amendments to Canada’s anti-terrorism regime, including provisions respecting the re-enactment of preventive arrests and investigative hearings. As members will know, these provisions expired in 2007 and have, on numerous occasions, been the subject of my remarks in the House and in writings of mine over the years, dating back to the tabling of the original Anti-terrorism Act, Bill C-36 in 2001.

It perhaps goes without saying that this debate began in the period following the horrific events of 9/11, which was characterized at the time as a period when the whole world was changed. Back then the Liberal government of the day introduced provisions for preventive arrests and investigative hearings as components of the larger Anti-terrorism Act. Soon after Bill C-36 in the House in its original form was tabled, I rose in the House and expressed some 10 civil libertarian concerns with respect to that projected draft of the Anti-terrorism Act, including the provisions relating to preventive detention and investigative hearings. I elaborated on these matters in a series of articles and recommended that the provisions be sunsetted after three years, later extended to five years, pending comprehensive parliamentary review, and the government agreed. With that as well as the majority of my other concerns being addressed, some eight out of the ten, I ended up supporting the legislation.

Regrettably, by 2007, when the provisions were scheduled to sunset pending a parliamentary motion to extend them, the House and special Senate committees had not yet completed their studies of the Anti-terrorism Act due to repeated delays including the dissolution of Parliament in 2004 and 2006. Nevertheless, the Conservative government went ahead with proposing the extension of the provisions without taking the views of these parliamentary committees into account, leaving House members with little insight into the experience of the provisions in effect. The result was a highly politicized and partisan debate, rife with what I could only describe at the time as bumper-sticker slogans and smears instead of a debate on the merits of the policy, a policy with which reasonable people can and do reasonably disagree. Indeed, I regretted the references made by ministers of the Crown at the time that somehow our party was soft on terrorism for simply wanting to debate these provisions, especially considering that it was a Liberal government that introduced the Anti-terrorism Act in the first place.

With Bill S-7 now stipulating that preventive arrest and investigative hearings be once again subject to a five-year sunset clause, I offer my support today with the expectation that if enacted, parliamentary committees will be given the opportunity and resources necessary to undertake full review of the provisions in question during the next trial period and well in advance of any debate to extend it once again. Indeed, any decision made by Parliament that affects the security and rights of all Canadians must be reasoned, thoughtful, evidence-based and not rushed as a matter of political expediency.

The critical issue here is one of principled balance. We must, on the one hand, seek to combat terrorism and keep Canadians safe from terrorist threats and attacks, while at the same time protecting our individual freedoms as enshrined in the charter. These are not, however, mutually exclusive objectives. Indeed, an appropriate and effective anti-terrorism strategy must view security and rights not as concepts in conflict, not as a zero sum game, but as values that are inextricably linked.

Let me articulate a number of basic principles in this regard. First, terrorism itself must be seen as being, in effect, an assault on the security of a democracy like Canada and an assault on our fundamental rights such as the right to life, liberty and security of the person. Accordingly, anti-terrorism law and policy may be said to constitute the promotion and protection of the security of democracy and fundamental human rights in the most profound sense. At the same time, however, the implementation and enforcement of such anti-terrorism law must always comport with the rule of law, must always adhere to the principles of the charter. Torture, for example, must never be allowed to be used and must always comport as well with our international legal obligations.

The second and related principle is that we are not simply talking here about a domestic criminal justice model. We are talking about is an international criminal justice model. We are not talking, as the courts and others have said, of the ordinary criminal. We are talking about the transnational terrorist threat.

This brings me to a third principle, which the Supreme Court has itself enunciated, namely the contextual principle; that we cannot view these issues in the abstract but we must view them in terms of the realities as they have unfolded in this regard. Also, we must appreciate that Canadian anti-terrorism law is inextricably bound with the international criminal justice system and the invocation and application of international law treaties, the invocation of general principles of law recognized by the community of nations. For example, section 11(g) of the charter on this point says that retroactivity shall not avail when the crimes are those that run afoul of “the general principles of law recognized by the community of nations”. Therefore, in this regard, it recognizes that the international criminal justice model departs sometimes from the domestic model.

UN Security mandates must also be taken into account, bilateral and multilateral agreements and so forth. In particular, Security Council resolution 1373, enacted following 9/11, mandates that all states take “additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism”. These standards must be met by our anti-terrorism legislation, if for no other reason than that we cannot have the appropriate or factual understanding of the dynamics involved in our domestic counterterrorism measures if we view them in a vacuum, if we view them as abstracted from the global circumstances and precedents or if we view them, as the Supreme Court has said, out of context without resort to an appreciation of the contextual principle.

However, beyond the abstract in that regard, let us be clear. The threat of transnational terrorism is real and Canada is not unaffected by it, as the recent events, whether they be in Boston or the aborted terrorist attack now in Canada, indicate. Indeed, Canadians have been implicated in terrorist attacks abroad as recently as last month in Algeria, last year in Bulgaria and just two days ago with regard to an arrest in Bulgaria. This is precisely why Bill S-7 also makes it a crime to leave or attempt to leave Canada to participate in terrorist activities. Moreover, Canadians have been killed in terrorist attacks, tragically in the case of 9/11 but also thereafter.

Accordingly, our commitment to civil liberties must always be consistent with regard to the protection of human rights as a whole, and we must take the necessary concrete and decisive actions to prevent terrorist attacks. In the words of two former Supreme Court justices, the Hon. Frank Iacobucci and the Hon. Louise Arbour, who also spent several years as the UN Commissioner for Human Rights, the Constitution is not a suicide pact and “[t]he challenge for democracies in the battle against terrorism is not whether to respond, but rather how to do so”.

Preventive arrests and investigative hearings can be effective, limited and lawful counterterrorism measures. Indeed, the Supreme Court, in the matter of investigative hearings has held them to be constitutional, stating that they do not violate an individual’s charter rights against self-incrimination, as evidence derived from such hearings cannot be used against the person except in perjury prosecutions. Moreover, the provisions are not otherwise unknown in Canadian law, and similar provisions already exist in the Coroners Act and the Inquiries Act, and I can go on.

In the matter of preventive arrests, these too are not a new invocation of principle and policy. Preventive arrests are effectively the invocation of a peace bond process set forth in section 810 of the Criminal Code, which has been used to protect against criminal violence such as domestic violence, sexual violence and organized crime, and now extends them to suspected terrorist activities.

In addition, preventive arrests and investigative hearings as set forth in Bill S-7 seek to respect Canadians’ individual and collective rights through safeguards and principles of transparency. In this regard, it is important to appreciate that there are three safeguards in the bill, and I was involved with respect to the initiation of these safeguards. Reference has been made to the safeguards, and we must appreciate that there is an executive requirement for the consent of the Attorney General and therefore objective oversight in that regard. With parliamentary oversight and the requirements for annual reports from both federal ministers concerned and with Bill S-7, they must not only detail how often the provisions are used, but also make a case for why they should be extended.

Furthermore, there is judicial oversight with respect to investigative hearings, and in the event of an arrest, the individual must be brought before a judge, typically within 24 hours, contrasting with the situation that is in the United States or with the situation in the United Kingdom and the like.

Notwithstanding these safeguards, I understand why some members, maybe even from all parties, remain uncomfortable with the proposed measures. They are indeed extraordinary provisions, though extraordinary provisions to combat extraordinary threats.

I do not, however, share the view offered by some in the House that because the provisions, and we heard this again in debate, were seldom used, in effect they are somehow unnecessary now. In fact, their lack of use can equally demonstrate that they are not abused…

Mr. Charlie Angus (Timmins—James Bay, NDP):

Mr. Speaker, I listened with great interest to my hon. colleague. While I agreed with some of his analysis, I disagreed with other parts. I would like to question him on it.

I really felt that what the member said about terrorism being an assault on the fundamental democratic rights and freedoms of any society was completely accurate. Therefore, it is then equally incumbent upon us to ensure that in our response we do not give up fundamental basic rights.

I note he was concerned about the need for a sunset clause with the two very provocative amendments or positions that were brought forward under the Anti-terrorism Act following 9/11, which was arrest without charge and the special investigative hearings. Canadians were very concerned, and that is why they wanted a sunset clause.

He said that we needed it to be evidence-based, but it was not used. These were extraordinary powers.

We went through these hearings. The Liberal Party put zero amendments forward. My hon. colleague has an extraordinary background in issues of human rights and law. I am surprised, because I have heard members of the Liberal Party say that it is not a perfect bill, but they are willing to accept it.

When legislation is brought forth, it is incumbent upon all of us to ensure that all efforts are made to ensure the legal rights that Canadians have enjoyed for this century and more are not undermined.

Does he believe that we should go through an endless round of sunset clauses? If it is evidence-based and it was not used, why is this being brought back now?

Hon. Irwin Cotler:

Mr. Speaker, as I said, the fact that they had not been used does not mean that they may not yet be needed. In fact, it may demonstrate they were not abused. They may yet still need it.

In terms of the Supreme Court’s contextual principle, we must appreciate the contextual environment in which the transnational terrorist threat operates.

I would remind the hon. member, and I suspect he knows, that if one takes a comparative perspective here, we have a situation where, in the United States, simply by designating a suspected terrorist an enemy combatant, he or she can be indefinitely detained. Detention in the United Kingdom has been extended from 6 days to 18 days. We are talking about a requirement to bring a person before judge within 24 hours. As I said, there is an inventory of safeguards at the executive level, at the legislative level, at the judicial level and through other commissioners, such as the Privacy Commissioner and the like.

While this is an imperfect approach, nonetheless it was something that was supported after there was review of these provisions by parliamentary committees in the House and in the Senate. It is not as if we did not have any review or appreciation of these principles as well.

I do agree that we need to do more on these matter. For example, members in the House need to have more information in the matter of intelligence gathering, which my colleague from Lac-Saint-Louis recommended. Our government re-established a parliamentary committee to provide oversight with respect to intelligence gathering, and here, too, to invoke more principles of transparency in that regard.

Mr. Brian Masse (Windsor West, NDP):

Mr. Speaker, I want to ensure I understand from the comments by the member for Mount Royal that the Liberals are hoping to support this bill and are hoping that the Conservatives are going to then have some parliamentary reviews and oversight, as just mentioned. How likely does the member really believe that is, given the government has used closure on debate a record number of times? Currently, right now, the Conservatives are attacking their own leader.

It is a very naive approach to assume that the Conservatives will later on review this bill. How can the member believe that is going to be possible?

Hon. Irwin Cotler:

Mr. Speaker, I am saying that the approach is what I would call the principle of least injustice. In other words, bearing all the facts and circumstances that are known to us, for now these provisions can be helpful, may be necessary and a parliamentary review is mandated. I trust it will take place, and we may have a better appreciation at that time as to how to go forward.

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Statement on Rwanda

Mr. Speaker, last week I commemorated the 19th anniversary of the Rwandan genocide, which targeted the Tutsi population, and the Rwandan diaspora.

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