by Jonathan Horowitz
Source: Just Security Website
Date: June 13, 2017
After September 11, the United States and other countries heavily relied on diplomatic assurances as counterterrorism tools to legally justify transferring people to other states where they were likely to be tortured. These assurances were based on the state receiving a detainee promising that it would treat the transferred person in accordance with certain human rights standards. Sometimes, but not often, a receiving state would also commit to allowing the sending state to check-in on the detainee every now and again. This was often referred to as “post-transfer detainee monitoring.”
Today, this issue has taken a back seat to Trump’s embrace of direct torture. But it’s important to keep a close eye on if, when, and how the Trump administration uses diplomatic assurances. This is especially true because unlike U.S. torture practices, diplomatic assurances haven’t come anywhere close to receiving the same degree of scrutiny and disapproval.
In April, a pitched battled emerged among states, U.N. agencies and human rights groups during a public discussion hosted by the U.N. Committee against Torture on whether governments should be allowed to ever use diplomatic assurances and, if so, under what conditions. Prior to the event, Canada, Denmark, the United Kingdom, and the United States submitted a joint statement supporting the use of diplomatic assurances, pointing out that states have used assurances to promote respect for the prohibition against torture. They emphatically disagreed with an assertion that the Committee had made that diplomatic assurances were inherently “contrary” to the principle of non-refoulement, which is the legal term that bars a state from transferring someone to the control of another state where there are substantial grounds for believing there’s a real risk the person will be tortured. At the Committee’s public session numerous other states chimed in to add support to this position.
Source: International Civil Liberties Monitoring Group (ICLMG)
Date: April 12, 2017
The Honourable Ralph Goodale
Minister of Public Safety
269 Laurier Avenue West
Ottawa, Ontario K1A 0P8
January 30, 2017
Dear Minister Goodale,
We are writing to you about the urgent need for Canada to revise the Ministerial Directives on torture issued by the previous government to conform to the unconditional ban on torture in international law.
Doing so now would send an important signal to Canadians and to the international community that Canada will under no circumstances use information from a foreign country that was likely obtained under torture, or share information that could likely lead to an individual being tortured.
As you know, in 2011 the government introduced a ministerial directive that allows, under exceptional circumstances, for information garnered under torture by a foreign country to be transmitted to and used by Canadian security agencies. The same directive also provided guidelines for instances when Canadian agencies could share information with countries that are know to engage in human rights abuses, even if doing so would likely result in torture.
One year ago, you committed to reviewing these directives. We hope that, after consideration, you are now prepared to make revisions that will ensure compliance with Canada's binding international obligation to oppose torture in all instances, without exception. Doing so would be consistent with recent steps taken by the government to strengthen Canada's efforts to combat and eradicate torture by initiating steps towards accession to the UN's Optional Protocol to the Convention against Torture.
A decade ago, the public inquiry into the case of Maher Arar clearly documented that irresponsible sharing of intelligence information from and to Canada can and does result in torture. Notably Commissioner Dennis O'Connor made an explicit recommendation that intelligence information should never be shared by Canadian agencies if it is likely to lead to torture. The Ministerial Directives explicitly run counter to those recommendations. Notably the 2008 report from the Iacobucci Commission that examined the cases of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin similarly documented the grave risk of sharing intelligence without regard for the risk of torture.
Beyond these important national level findings and recommendations we also draw your attention to the fact that the UN's pre-eminent body responsible for overseeing the obligation of states to end torture, the UN's Committee against Torture, has also raised concern. In its 2012 review of Canada's record, the Committee called on Canada to amend the Ministerial Directives to ensure conformity with international obligations.
The international context makes Canada's actions all the more urgent. This week, the New York Times reported the United States administration is considering a review of its use of CIA black sites. The same day, US President Donald Trump told ABC News that he is open to the return of torture during interrogations, saying he believes "torture works." Both these revelations raise troubling questions about the very real risk that intelligence sharing between our two countries may again become tainted by concerns about torture.
We believe that Canadians deserve clarity, and that the best way to do so would be to revise the Ministerial Directives so as to fully conform with international law and to pass legislation that creates a clear prohibition on sharing information likely to be derived from, or at risk of leading to, torture.
Amnesty International Canada
British Columbia Civil Liberties Association
Canadian Civil Liberties Association
Canadian Muslim Lawyer Association
International Civil Liberties Monitoring Group
Ligue des droits et libertés
National Council of Canadian Muslims
Link to the open letter
by Tim McSorley
Date: December 10, 2016
Saturday, December 10, is Human Rights Day. It’s also the anniversary of an ongoing stain on Canada’s human rights record.
Fourteen years ago, Mohamed Harkat, an Algerian refugee to Canada, was arrested outside his home under a government security certificate on allegations of having ties to terrorism. Despite never being charged, and never being shown the evidence against him, Harkat has faced solitary confinement, the strictest bail conditions in Canadian history and lives under the constant threat of deportation to Algeria — where he would certainly be imprisoned and likely tortured.
We like to believe that Canada stands above torture. And while the practice is banned in Canada, our international human rights obligations means that we must oppose torture everywhere. That includes never deporting someone to a situation where they could face torture.
Sadly, Canada has a history of complicity in sending Canadians to torture abroad: The U.S. government whisked Maher Arar away to Jordan, and then Syria, where he was tortured. Canadian officials were complicit in his rendition and turned a blind eye to his torture. In 2007, after the two year O’Connor Inquiry, he received an official apology from the Canadian government, plus a $10.5 million settlement and $1 million in legal fees.
While no apology or settlement can undo the horrors of torture, other Canadians haven’t even received that much. A follow-up to the O’Connor Inquiry, the Iacobucci Inquiry, found that Canadian agents and officials played an indirect role in the arrest and torture of three other Canadians: Ahmad El Maati in Egypt, and Abdullah Almalki and Muayyed Nureddin in Syria. This included problematic sharing of information with foreign spy agencies, providing insufficient consular support, and officials ignoring allegations of torture.
The inquiry ended in 2008, and yet no compensation or redress has been offered. This, despite a 2009 majority vote in the House — including Justin Trudeau and Liberal MPs — in favour of a Public Safety Committee report calling for an apology, redress and full adoption of the recommendations of the O’Connor Inquiry, including the creation of an integrated and independent review body for national security.
Sadly, we’ve seen the opposite of redress: The former Conservative government and the current Liberal government have fought hard against a $100 million lawsuit brought by the three men for redress for the abuse they faced. In fact, the Liberals have doubled down, arguing in court that a 2014 law brought in by the Conservatives to protect intelligence sources should apply retroactively, in a bid to stop key testimony.
When the prime minister says Canada is “back” and promises to fight for equality and human rights, a fundamental first step should be apologizing, providing redress and eliminating all complicity in torture.
We have a golden opportunity to make things right: The government is currently holding public, country-wide consultations on our national security framework. Prime Minister Trudeau and Public Safety Minister Ralph Goodale could help set the tone for what is to come by stating right away that they will take some fundamental steps:
* Ensuring no person is deported if there is a risk of torture, starting with the end of deportation proceedings against Mr. Harkat.
* Committing to redress and apologies for all victims of torture in which Canada is complicit, starting with Mr. El Maati, Mr. Almalki and Mr. Nureddin.
* Withdrawing ministerial directives – still on the books – which allow Canada to accept intelligence that may have been garnered under torture, in violation of our international commitments.
* Eliminating the security certificate system, which allows for detention without charges or access to the evidence being used to bring the certificate.
* Repealing the Anti-Terrorism Act of 2015 (Bill C-51), which brought in a tangled mess of laws that open the door wide for the types of violations that led to the torture of Mr. Arar, Mr. El Maati, Mr. Almalki and Mr. Nurredin.
Wouldn’t it be wonderful if, on Human Rights Day 2017, we could finally say that Canada has cut all ties to torture?
Tim McSorley is the national coordinator of the International Civil Liberties Monitoring Group.
Today, December 10th, is International Human Rights Day. It is also the 14th anniversary of Mohamed Harkat's arrest on a security certificate.
At yesterday's press conference in Ottawa Amnesty International Canada secretary-general Alex Neve teamed up with International Civil Liberties Monitor Group national coordinator Tim McSorley and activists Sophie Harkat and Chantal Sunaram to mark International Human Rights Day, as well as the 14th anniversary of the security certificate-driven arrest of Mohamed Harkat.
by Gerald Caplan
Source: The Globe and Mail
Date: November 24, 2016
Gerald Caplan is an Africa scholar, a former NDP national director and a regular panelist on CBC’s Power & Politics
Canada ratified the United Nations Convention against Torture in 1987, yet a good number of Canadians have been tortured with the complicity of public officials. To be more precise: Torture – physical, psychological or both – has been inflicted by our prisons and our security and intelligence services on many Canadians – a disproportionate number of them indigenous or people with a Middle Eastern background – as well as on foreign citizens.
When examples of such incidents are exposed, Canadians are outraged. But only rarely are they revealed.
For example, as we’ve been shocked to learn recently, solitary confinement in our prisons seems to be as Canadian as maple syrup, even though the United Nations says solitary lasting more than 15 days amounts to torture. The Toronto Star recently reported that over the course of five months last year, more than 1,600 inmates suffered solitary confinement at two Ontario jails. Many were indigenous people.
The Globe and Mail has written extensively about Adam Capay, the young indigenous man kept in solitary for more than 1,500 days – more than four years. Ontario government officials knew but did nothing until they were publicly exposed. The Ontario Human Rights Commission says there is an “alarming and systemic overuse of segregation” in Ontario jails.
No one has been held accountable.
Nor must we forget that during Canada’s participation in the war in Afghanistan, Afghan prisoners were often turned over by Canadian troops to U.S. and Afghan authorities. It was widely known that torture would be the fate of most of them. Despite pressure, Canadian governments, including this one, have refused to hold an inquiry.
No one has been held accountable.
Then there are those mystifying “security certificates,” a troubling tool that allows Ottawa to deport non-citizens it deems a threat to national security. The following Muslim men have been arrested under security certificates: Hassan Almrei, Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah and Mohamed Zeki Mahjoub. None was charged, but all were imprisoned for between four and seven years as they awaited deportation. All but one suffered solitary.
No one has been held accountable.
Many will have seen the deeply disturbing documentary The Torture Files by Terence McKenna that ran over three nights on CBC-TV in September. It names both the victims and at least two of the Canadian officials complicit in their torture in Syria. The victims are men of Middle Eastern heritage but with no links to any form of terrorism. They include the following individuals: Abousfian Abdelrazik, Ahmad Abou-Elmaati, Abdullah Almalki, Maher Arar, Arwad al-Boushi and Muayyed Nureddin. We can add Omar Khadr, who was psychologically tortured at Guantanamo Bay by both U.S. and Canadian officials.
The Canadians who were instrumental in the suffering of the other men were also named in two separate federal inquiries. One was Franco Pillarella, then Canada’s ambassador to Syria. False information was given to U.S. officials about Mr. Arar, a Canadian citizen, by Canadian officials, even though he was innocent of any crime. The Americans duly passed him on to Syria – to be tortured like all the others. Mr. Arar was jailed in what he described as a “grave” – six feet long, three feet wide, seven feet high – for 10 months. It was like being buried alive. He was also tortured repeatedly.
Incredibly, as is well documented, Mr. Pillarella actually co-operated with the Syrian torturers, supplying them with questions to be asked of three Canadians. He kept being appointed to new diplomatic posts until he resigned.
A second Canadian is featured in the McKenna documentary, a Mountie named Michel Cabana. Mr. Cabana passed on false information that led to Mr. Almalki being detained when he visited Damascus. His cell was described by Amnesty International as being similar to Arar’s. He was “subjected to a vicious cycle of torture. He was beaten with an electric cable, strung up to the bars of a window and lashed with leather belts.”
Two commissions of inquiry concluded that Mr. Almalki, Mr. Elmaati, Mr. Nureddin and Mr. Arar were all wrongfully targeted by the Canadian Security Intelligence Service and the RCMP.
Cabana was promoted to RCMP assistant commissioner, a position he holds to this day.
U.S. President Barack Obama banned the CIA’s widely used torture techniques in 2009, but president-elect Donald Trump, who embraces the use of torture with much enthusiasm, could easily reverse that order. In Canada, the previous government had told CSIS that it could use information derived through torture. The Liberal opposition was outraged.
As well, the Conservative government’s anti-terrorist Bill C-51 was interpreted as opening the door to CSIS to use torture in its work, even though information thus acquired is notoriously unreliable. The Liberals were outraged.
Yet the new, Liberal government is still “assessing” the issue, even though Canada has agreed to sign the UN’s optional protocol to the Convention against Torture allowing for the inspection of detention centres, where torture often takes place in secrecy.
A number of heroic Canadians have dedicated themselves to ending the use of torture by Canada. They include, among others, Matthew Behrens, Monia Mazigh, Amar Wala, Barbara Jackman, Roch Tassé and his International Civil Liberties Monitoring Group.
Why should their efforts be needed at all? Torture is both immoral and useless as a tool to fight terrorism. It outrages Canadians. How can our governments condone it for even one more day?
Copyright 2016 The Globe and Mail Inc. All Rights Reserved.
by Debra Black
Source: The Toronto Star
Date: August 2, 2016
Former security-certificate detainee ruled a threat for alleged Al Qaeda ties is battling deportation in the latest chapter of a 14-year saga.
PHOTO: Mohamed Harkat is pictured at his home in Ottawa. The native-born Algerian, who fled that nation amid political upheaval, arrived in Canada in 1995. He was imprisoned for 42 months in 2002 on suspicion of ties to terrorism.
Mohamed Harkat — an Algerian who says he was wrongly accused of being an Al Qaeda sleeper agent — hopes he can finally win his freedom and the right to stay in Canada.
“What the government is doing is wrong, and it’s not fair,” Harkat said in an exclusive interview with the Star. “And they got the wrong guy.”
Harkat, who came to Canada in 1995 and claimed refugee status, has been fighting deportation since his arrest on a national security certificate in December 2002.
He still dreams of one day becoming a Canadian citizen, even though his life in Canada has been very different from what he’d expected.
“I thought one day I would have children, a house, a family . . . everything is destroyed. When I met Sophie, we had a plan to buy a house and have children.”
The 47-year-old Harkat says he’s innocent and will face torture and persecution in his native Algeria if he is deported.
Canada Border Services Agency did not comment on the specifics of the case, but confirmed that Harkat is under a removal order, following a Federal Court decision upheld by the Supreme Court of Canada.
Esme Bailey, a senior media spokesperson for CBSA, added that the removal order “can only be enforced once due process under the Immigration and Refugee Protection Act has taken place.”
A February 2016 CBSA document — marked top secret — states that, “should Mr. Harkat be allowed to remain in Canada, it can be presumed that, given the opportunity, he would work toward the ends espoused by the Bin Laden Network.” It recommends his removal from Canada.
His lawyer, Barbara Jackman, plans to argue, in a formal petition to the public safety minister, that Harkat will face torture and persecution if sent back. She also plans to argue he is not a threat to Canada and should be allowed to stay on humanitarian grounds. In early September, she will seek an exemption from deportation.
Canadian law does not allow deportation to a country where torture will occur unless there are exceptional circumstances.
“You send him back with the public profile he’s got, and it’s asking for him to be further detained and tortured,” Jackman said. “I can’t see anything exceptional about Harkat’s case that would require he be deported to torture.”
by Matthew Behrens
Date: May 24, 2016
In a major setback to a Liberal government still refusing to repeal the repressive Bill C-51, the Federal Court has found unreasonable the secret trial security certificate against the long-suffering Mahmoud Jaballah, almost 20 years to the day that the Egyptian refugee and his family arrived in Canada seeking asylum from the Mubarak dictatorship. While the written decision for this finding has yet to be released, this hopefully brings to a close an 18-year legal fight that helped spur an international campaign of condemnation against Canada's use of secret trials, indefinite detention, deportation to torture, and the patently illegal practices conducted by Canada's spy agency, CSIS.
Jaballah, who was jailed without charge and tortured on many occasions in Egypt (as was his wife, Husnah, who was twice detained and tortured in front of him), was originally arrested in 1999 under the much-criticized security certificate, alleging he was a threat to national security. The problem he faced? He was not allowed to see the secret case against him in a process that allowed as evidence anything not normally admissible in a court of law. CSIS had originally approached him to spy on his community, and he refused. The response of CSIS was clear: co-operate or you will be jailed and deported to torture.
by Jason Leopold
Source: VICE News
Date: May 10, 2016
Foreign nations that took custody of more than 1,000 detainees held captive by the US military between 2010 and 2011 provided assurances to the United States that they would not torture any of them — even though reports later surfaced alleging that some of those detainees were tortured after being turned over.
A heavily redacted 10-page report [pdf at the end of this story] examining detainee transfers and the reliance on diplomatic assurances, declassified this week by the Department of Defense Inspector General in response to a Freedom of Information Act (FOIA) request filed by VICE News three years ago, says Defense (DOD) did not have a strict policy that "specifically addressed how detainees will be treated once transferred to another country."
"DOD should promulgate policies or directives that include an express statement that the DOD may not transfer any person to a foreign entity where it is more likely than not that the person will be tortured," said the February 28, 2012 report prepared by the deputy inspector general for intelligence.
Two years after the Inspector General (IG) made the recommendation, the DOD adopted such a policy, barring the transfer of detainees to foreign countries if US authorities determined "that it is more likely than not that the detainee would be subjected to torture."
According to the report, the US transferred 1,064 detainees who were held by the DOD in Afghanistan, Iraq, and Guantanamo between August 2010 and August 2011 (a number that, with the exception of Guantanamo, was previously undisclosed.) The breakdown was: 802 detainees from Afghanistan, 259 detainees from Iraq, and three detainees from Guantanamo who were sent to Germany and Algeria, the latter of which has a poor human rights record. The US also held three people who were captured off the coast of Somalia and were believed to be pirates.
An earlier report issued by the IG in December 2010 said the US had transferred 4,781 detainees. After it released the detainees, the US received diplomatic assurances from the foreign governments that the men would not be tortured. But the US has not determined whether the foreign governments are living up to their promises.
by Victoria Parsons
Source: The Bureau of Investigative Journalism
Date: April 18, 2016
Six men accused of having links to al Qaeda cannot be deported to Algeria because there is a “real risk” they would be tortured, UK judges ruled today in what marks a major defeat for the Home Office.
Judges at the Special Immigration Appeals Commission (Siac) ruled against Home Secretary Theresa May and found in favour of the six men who have been fighting deportation orders for 10 years.
The Home Office argued they were a national security risk to Britain, but the Siac judges agreed with the men that their human rights would be at risk if returned to Algeria.
“It is not inconceivable that these Appellants, if returned to Algeria, would be subject to ill-treatment infringing Article 3 [prohibition of torture under the European Convention on Human Rights]. There is a real risk of such a breach,” they ruled today.
The six men are living under strict bail and curfew conditions at various locations in England. The men cannot be identified for legal reasons and the Home Secretary now has 10 days to appeal today’s decision.
It is highly unusual for the Home Office to lose such appeals in Siac, which often hears evidence in secret.
The ruling was announced by the UK’s Independent Reviewer of Terrorism Legislation on Twitter this morning.
Click on the photo of Mohamed to see all items related to him. JUNE 2017: Mohamed Harkat once again faces deportation to his native Algeria after the Supreme Court of Canada declared the federal government’s security certificate regime constitutional.
This fight is not over. The Justice for Mohamed Harkat Committee will re-double its efforts to see that justice is done for Mohamed Harkat and that the odious security certificate system of injustice is abolished once and for all.
Here is the contact information for Sophie Harkat.
Email Sophie: [email]
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Our Legal Team:
Barbara Jackman, Lead Public Counsel for Mohamed Harkat
Jackman, Nazami & Associates
Barristers and Solicitors
596 St. Clair Avenue West
Tel.: (416) 653-9964
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Christian Legeais, spokesperson and bilingual media contact: