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(As published in The Globe and Mail)
The announcement recently that the government of Quebec would seek guidance from the province’s highest court regarding the eligibility of certain judges is but the latest salvo in a drawn-out saga between Quebec and Ottawa regarding judicial appointments. Much like the Marc Nadon episode that saw the first-ever rejection of a Supreme Court appointment in Canadian history, this latest act was both foreseeable and avoidable, and reflective of a larger problem in how the Conservative government approaches the judiciary in general and, in particular, the uniqueness of Quebec.
As a brief overview – and at the risk of over-simplification – it should be recalled that Quebec and the rest of Canada have different legal systems. Namely, Quebec uses the civil law while the rest of Canada operates under the common law. To ensure Quebec’s legal system and its societal values are represented at the Supreme Court, three of its nine seats are allotted to judges from the province. Similarly, the Constitution ensures that judges appointed by the federal government to Quebec courts have the requisite Quebec experience.
When Justice Minister Peter MacKay appointed Federal Court of Appeal judge Marc Nadon to the Supreme Court, a legal challenge resulted in his being found ineligible owing, in part, to the need to ensure Quebec’s interests were protected at the Supreme Court. While another judge was appointed in his stead to the Supreme Court, the government then quietly announced the appointment of Federal Court judge Robert Mainville to the Quebec Court of Appeal, leading to speculation that he too might be appointed to the Supreme Court when a Quebec vacancy arises this fall. The moving of a judge from Federal Court to Quebec Court to Supreme Court might appear to comply with the Nadon decision, but it raises important questions about the judicial appointment process and whether judges should be moved like chess pieces to seemingly do indirectly that which the Supreme Court proclaimed could not be done directly.
Accordingly, the Quebec reference case announced recently asks whether Justice Mainville is eligible for appointment to the Quebec Court of Appeal, delaying his swearing-in and raising the question of whether he would be eligible for a later elevation to the Supreme Court for one of the three Quebec seats if this is indeed the government’s plan.
These are important – if technical – legal questions, but they should have not have to come before the courts as part of the judicial appointments process. Asking the courts to pronounce upon them could have been avoided by having a principled and effective appointments process in place and, specifically, by emphasizing the need for open and co-operative federalism when it comes to judicial appointments.
Put another way, would Quebec question the appointment of a judge to its courts had it been meaningfully consulted? Would Justice Nadon have been appointed to the Supreme Court if Ottawa had listened to Quebec’s justice minister, who has noted that Justice Nadon did not figure on his short list at the time? Would any of these appointments have occurred if Ottawa had carefully considered why Quebec is protected in a particular way under the Constitution when it comes to judicial appointments?
None of this is to cast aspersions on Justices Nadon or Mainville, both of whom have served with distinction and will continue to do so. However, Quebec’s unique juridical role is too often overlooked by Ottawa – as are other legal traditions present in this country, including Aboriginal legal traditions.
As well, beyond simply listening to Quebec and engaging in constructive dialogue – a minimal but necessary requirement – what is needed is for the government to put in place a revamped appointments process. Indeed, its most recent appointment of Justice Clément Gascon earlier this summer was done without involvement by a judicial advisory selection panel, and without Parliamentary oversight – the first time in nearly a decade that MPs were excluded from the process.
Yet, while oversight and transparency must be elements of any process, I would propose that the Conservative government adopt a more representative and inclusive approach similar to that which I employed as minister of justice, in consultation with Parliament. That approach could include a more broadly representative and inclusive judicial advisory selection panel, where no political party has a majority (as the government now gives itself), parliamentarians as a whole are in the minority, and the provincial attorney general and provincial bar are represented, along with the Canadian Bar Association and the Canadian Judicial Conference; a protocol of consultation published by the minister of justice, setting out whom the minister intends to consult and with whom the advisory panel will meet; a public announcement by the minister of the criteria by which each candidate will be evaluated; and a final hearing at which the minister of justice – and not only the nominee – answers questions from parliamentarians, notably regarding how the nominee meets the established criteria.
The need for a principled, representative, inclusive, transparent and accountable judicial appointments process – including sufficient and timely provincial consultation – should be clear. Unfortunately, the current Conservative government has yet to establish such a process, to the detriment of Quebec and the judiciary as a whole. One hopes it will finally do so in time to fill the anticipated Supreme Court vacancy for Quebec this fall.
(As published in Huffington Post)
The notion that truth is the first casualty of war has found expression in the ongoing fog of the current Israel-Hamas conflict — where truth is obscured or masked by oft-repeated clichés such as “cycle of violence,” false moral equivalences, or unconscionable allegations of Israeli “genocide.” If we want to prevent further tragedies in this conflict — let alone frame the basis for its resolution — then we have to go behind the daily headlines that cloud if not corrupt understanding, probe the real root causes of conflict, and finally travel the road not yet taken to its just resolution.
While the deliberate — and indiscriminate — bombardment of Israeli civilians, and the threat of abductions and mass killings from the terror tunnels, have been the trigger for this latest war, there is a longer and underlying proximate cause: the Hamas Terrorist War of Attrition against Israel since 2000.
Simply put, from 2000 to 2004, Hamas suicide bombers murdered over 1,000 Israelis — wounding some 3,000 — in a horrific and sustained terrorist assault that was defeated in part by the Israeli “Operation Defensive Shield” in 2002, and in part by the building of a security barrier, which dramatically reduced penetration by Hamas suicide bombers.
In 2005, with the Hamas terrorist onslaught defeated, Israel moved to unilaterally disengage from Gaza. Accordingly, Israel withdrew all its soldiers and citizens, uprooted all its settlements and synagogues, but left behind 3,000 operating greenhouses and related agricultural assets, the whole as the basis for industrial and agricultural growth and development in Gaza.
How did Hamas respond? They destroyed the greenhouses, brutalized the Fatah opposition, effectively instituted a theocratic dictatorship in 2007, repressed its own people, and began the launching of more than 14,000 rockets and missiles targeting Israeli population centres. In effect, then, Hamas squandered the opportunity offered by Israel to live in peace, to utilize the industrial and agricultural assets, to engage in state-building; rather, Hamas preferred to divert resources for the building of a terrorist infrastructure that would punish its own people while threatening Israel.
In effect, then, this is the third Israel-Hamas war since the 2005 disengagement, with each prior truce or ceasefire only providing a basis and incipient trigger for the next war. In this latest conflagration, Hamas has repeatedly repudiated, yet again, a series of ceasefires arrangements and “humanitarian” pauses — while launching more than 3,000 rockets and missiles in the last month alone.
But while these unceasing terror attacks — and ongoing threats — have once again forced Israel to take action in self-defense and to target the terrorist infrastructure in Gaza, this ongoing proximate trigger does not tell the whole story. Rather, it is a symptom, or proxy, for the root cause — the unwillingness of Hamas to recognize Israel’s existence within any boundaries. And more: the public call in the Hamas Charter — and in its declarations — for the destruction of Israel and the killing of Jews wherever they may be.
Let there be no mistake about it, Hamas is a unique — and evil — manifestation of genocidal anti-Semitism. These are not words that I use lightly or easily, but there are no other words to describe the toxic convergence of the advocacy by Hamas of the most horrific of crimes — namely genocide — anchored in the most enduring of hatreds — namely antisemitism — with state-orchestrated terrorism as the instrumentality to pursue these goals.
UN Secretary General Ban Ki-moon said that one must seek the “root cause” of the Israel-Hamas conflict so as to enable us to resolve it. However politically incorrect it may be to say so, this culture of hatred — this genocidal anti-Semitism — is the root cause and has fuelled the ongoing Hamas terrorist war of attrition.
Accordingly, what is so necessary now is not another ceasefire or humanitarian pause, but a ceasefire that is enduring and comprehensive, that will put an end to the Hamas Terrorist War of Attrition that has targeted Israel’s population and engulfed its own, and that will be protective of both Israeli and Palestinian civilians, as President Obama and other leaders have called for.
Such a ceasefire will hopefully be the basis for an Israeli-Palestinian peace, anchored in two states for two peoples living side by side in peace and security. This will require traveling on the road not yet taken — an agreed upon, and guaranteed, set of international, legal, diplomatic, political, security, economic, and humanitarian undertakings and initiatives as follows:
1. A comprehensive — and enduring — ceasefire framework not only to halt but to end hostilities must be put in place. For such a ceasefire to endure, the casus belli that triggered these latest hostilities — that has underpinned the Hamas War of Attrition — must be addressed and redressed. Simply put, Hamas must cease and desist from its policy and practice of targeting Israeli civilians and terrorizing Israeli civilian populations.
2. The ceasefire must be accompanied by massive humanitarian and medical relief, the delivery of some of which has thus far been hindered by Hamas itself, as with Hamas’ refusal to allow Gazans to avail themselves of an Israeli field hospital. Clearly, after the tragic death and destruction, there must be mandated and comprehensive international humanitarian assistance.
3. Hamas, Islamic Jihad, and other terrorist militias must be disarmed, as called for by EU Foreign Ministers, as a sine qua non for the cessation of hostilities.
4. The Hamas military infrastructure — and related military and terrorist assets — rockets, missiles, launchers, mortars, munitions, and the like must be dismantled.
5. There must be a complete closure — and destruction — of the Hamas terror tunnels, the standing instrument of terror and incipient mass murder. Indeed, captured Hamas battle plans reveal that Hamas was planning a mass terror attack during the Jewish New Year that would have threatened the lives of thousands. Even during the latest ceasefire, Hamas continued to threaten to deploy these terror tunnels.
6. An end must be put to the Hamas capacity to manufacture rockets and other military assets. Simply put, there must be a supervised monitoring of the importation of building materials — like cement and steel — that have been used for the manufacture of weapons and tunnels, rather than the building of hospitals, schools, and mosques for which they were intended.
7. The prohibition of the transfer or smuggling of weapons, like those advanced missiles from Iran, which both Hamas and Iran have boasted about, and with which Iran has threatened to re-supply Hamas in recent days. As senior Iranian official Mohsen Rezaei said this week “Palestinian resistance missiles are the blessing of Iran’s transfer of technology.”
8. A robust international stabilization and protection force — with the necessary mandate, mission, and numbers — should be deployed to ensure that the ceasefire is respected; that Hamas and other terrorist militias are disarmed; that the military terrorist infrastructure is dismantled; that the terror tunnels are closed and destroyed — the whole to protect against the targeting of Israeli civilians and the use of Palestinian civilians as human shields. Indeed, while Israel has been forced to use weapons to protect civilians, Hamas has been using its captive civilian population to protect its weapons.
9. This international protection force must also be empowered to secure a total interdiction of the transfer, import, or smuggling of weapons into Gaza — which is what triggered the blockade of Gaza in the first place after Hamas assumed power in 2007.
10. An international framework — one of the most important initiatives of the road not yet travelled — will be necessary to secure and maintain the demilitarization of Gaza, while supervising the entry of people and goods into Gaza.
11. The deployment of this international protection force — and the demilitarization of Gaza — can provide a basis for the reciprocal opening of border-crossings, the commensurate easing of the blockades, and the development of a Gaza sea port. Indeed, the movement of people, goods, commerce, trade, development, and evolving economic prosperity were precisely what was contemplated — and was clearly possible — when Israel withdrew from Gaza in 2005. There was then no occupation, no blockade, no Israeli presence — only the potential for Gaza to freely develop and help usher in a nascent peace with Israel and self-determination for its people.
12. In particular, the dismantling of Hamas’ extensive military and terrorist infrastructure — which is embedded amongst Gaza’s civilian population — and the demilitarization of Gaza can ultimately lead to a “Marshall Plan” for Gaza with the ultimate goal of securing economic growth, development, and a sustainable peace.
13. With order restored, an international governing authority — possibly led by the PA, but including European, American, Canadian, and Egyptian representation — should be the mandated trusteeship authority for Gaza. This can serve as a state-building authority that can be the basis for the emergence of a peaceful, rights-protecting, Rule of Law Gaza that can ultimately travel the road not yet taken to a peaceful and democratic Palestinian State.
14. The direct financing of Hamas which was put to military and terrorist purposes must end. The internationally mandated authority should ensure that banks in China, Turkey, and Qatar do not continue to finance Hamas, and that governments such as Qatar and Iran do not finance Hamas’ war crimes.
15. A crucial point oft ignored: Palestinian society in Gaza must be freed from the cynical and oppressive culture of hate and incitement. This not only constitutes a standing threat to Israel, but undermines the development of authentic Palestinian self-determination, as in the cruel deployment of Palestinian child labour in the terror tunnels. No peaceful solution will be possible if massive resources continue to be poured into state-controlled media, mosques, refugee camps, training camps, and educational systems that serve the sole purpose of demonizing Israel and the Jewish people, and inciting to war against them.
Indeed, Hamas’ militant rejectionism of Israel’s right to exist — its public call for Israel’s destruction and the killing of Jews wherever they may be — have threatened the safety and security not only of Israelis but of Palestinians too. Regrettably, the Gazan people’s desire — and right — to live in peace and security cannot be realized so long as Hamas continues to hold its own people hostage, and to pursue a strategy of terror and incitement. Indeed, this war in Gaza is not only one of self-defense for the Israeli people, but should lead to the securing of the legitimate aspirations of the Palestinian people, who deserve better than to be held hostage by a terrorist regime.
These initiatives, undertakings, and objectives are the road not yet taken. Admittedly, all this may be difficult to secure. But the time has come — indeed it is long past time — to realize that if we want to protect the lives of both Israelis and Palestinians, these initiatives and undertakings must become the road we travel now.
(As published in National Post)
No one should be surprised that the UN Human Rights Council (UNHRC) voted to launch an inquiry into alleged Israeli war crimes in “Occupied Palestinian Territory,” as close to 40% of all UN Special Sessions have ended with a condemnation of Israel. But much like the Queen of Hearts in Alice in Wonderland, the UNHRC is taking a “sentence first – verdict afterwards” approach to dealing with Israel, because the resolution – which focuses primarily on purported Israeli criminality – establishes a commission of inquiry, while presupposing Israeli guilt.
If this inquiry is anything like the previous ones – such as the Goldstone Commission following the 2009 war between Hamas and Israel – it will marginalize, if not sanitize, any war crimes committed by Hamas. This is unfortunate, since the impunity enjoyed by Hamas in international forums has only encouraged it to continue its flagrant violations of international humanitarian and criminal law.
Hamas deliberately – and indiscriminately – bombards Israeli cities, towns and villages with rockets and missiles. As even the Palestinian representative to the UN put it, “each and every” rocket launched by Hamas at Israeli civilians is “a crime against humanity.” Israelis have largely been secured by the country’s Iron Dome defence system, but these assaults are nevertheless intended to terrorize an entire civilian population, and they have significant psychological consequences.
Moreover, Hamas uses Palestinian civilians as human shields. The terrorist organization even boasts about such tactics, which are employed in an effort to immunize itself against an Israeli response, or worse, to deliberately incur civilian casualties.
Hamas also fires rockets, stores weapons and embeds combatants in Gaza’s civilian infrastructure – including building an underground city of terror tunnels that it uses to launch assaults on Israeli civilians. As a result, Israeli counter-strikes often result in large numbers of casualties. As UN Secretary General Ban Ki Moon – who is not known for being pro-Israel – recently put it, “We condemn the use of civilian sites – schools, hospitals and other civilian facilities – for military purposes.”
Hamas has also been known to misappropriate international humanitarian symbols and religious institutions for terrorist purposes. It stores weapons in UN facilities, transports combatants in ambulances and fires rockets from mosques, schools and hospitals.
Hamas also recruits children as combatants and terrorists, while indoctrinating youngsters to hate and kill Jews. Such actions are a cruel and dehumanizing violation of recognized children’s rights. In addition, the threatened abduction and illegal hostage-taking of Israeli youth – facilitated by the terror tunnels – is in standing violation of the Convention on the Rights of the Child.
Finally, Hamas engages in state-sanctioned incitement to hate and genocide by publicly calling for the destruction of Israel and the killing of Jews wherever they may be – calls anchored in the anti-Semitic Hamas charter, which blames Jews for all the evils of humankind.
Taken together, Hamas’ actions clearly constitute crimes against humanity – the ultimate in international criminality. These acts must be prosecuted and punished to the fullest extent of the law.
The recent UN resolution ignores the fundamental distinction between a terrorist organization that’s committed to maximizing civilian casualties, and a democratic government
None of this is intended to suggest that Israel is somehow above the law, or that it should not be held responsible for any violations of human rights or international humanitarian norms. The problem is that Israel is systematically denied equality before the law in the international arena. Human rights standards should be applied to Israel, but must be equally applied to all others, without the exculpatory immunity that major human rights violators, such as Hamas, currently enjoy.
Unacceptably, the recent UN resolution ignores the fundamental distinction between a terrorist organization, such as Hamas, that’s committed to maximizing civilian casualties, and a democratic government that seeks to minimize Palestinian casualties, while taking necessary measures to defend its own citizens, in accordance with international law.
Regrettably, this prejudicial and pernicious UN decision – let alone the prospective one-sided commission of inquiry – will only encourage Hamas criminality, with Israeli and Palestinian civilians themselves as the tragic victims.
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