the way forward is the rule of law EP Nieto, 28 June 2016, Ottawa
The murky world of North American/Al Qaeda interactions.
When the above photograph was taken of Prime Minister Pierre Trudeau and his sons at the Canada Day celebrations in 1983, Reagan and the CIA had solicited the assistance of the CSIS to assist one of the founding members of Al Qaeda, Abdullah Azzam, to travel across Canada to visit Mosques, where he told stories of the bravery of the Mujahedin, to recruit Canadian Muslims to fight in the American-led secret war to oust the Soviets from Afghanistan. Azzam's travels in Canada were facilitated by CSIS operatives and RCMP escorts.
The Right Honourable Justin Trudeau PC MP Prime Minister of Canada Ottawa
... the way forward is the rule of law
John Ridsdel and Robert Hall, two Canadian citizens, were taken hostage, subjected to humiliating treatment, had sentences passed upon them, and were executed without due process and judgement by a regularly constituted court of law, affording them those necessary and sundry judicial guarantees which are indispensable to the rule of law and the orderly conduct of human affairs.
The leadership and members of a radical Islamic insurgency group that has been engaged in active hostilities against the Government of the Philippines for the past 45 years, Abu Sayyaf, kidnapped Messrs Ridsdel and Hall with violence, imprisoned them, held them for ransom, and when the ransom was not forthcoming, carried out their extrajudicial executions in a most gruesome fashion.
Mr Prime Minister, your expressions of heartfelt condolence for the families of Messrs Hall and Ridsdel, on behalf of the Government of Canada are altogether fitting and proper. And yet, the extension of solace to the survivors, who have suffered a devastating and terrible loss, does not confer justice for the victims.
Justice for the victims and their survivors, in fact, all Canadians, will exist only when properly executed and enforced arrest warrants are issued for those (even if the warrants are for person or persons unknown, initially) who conspired to deprive two Canadian citizens of their liberty and life contrary to the rule of law. And, those persons so accused are then indicted, interdicted, and made to stand trial for the crimes they have committed. Justice, the rule of law, for the victims and their families demands nothing less.
And, this is the crux, the decisive and the most important issue; how does Prime Minister Justin Trudeau and the Trudeau Administration that actually exercises state power, respond to the brutal murder of two of its citizens on foreign soil.
The alternatives are evident unequivocally.
For instance, the leader of the opposition upon learning of John Ridsdel's murder, made the following statement: " ... incidents like this should remind all of us that the threat of terrorism remains very real, we must stand with our allies in solidarity against terrorism, which remains the greatest threat that the world faces today."
In a phrase; no, it is not.
The greatest threat the world faces today is the revenge-seeking race-and-chase pursuit of an ill-defined terrorism on an elusive battlefield, by those who profess a belief in the rule of law. Those who profess a belief in the rule of law ought to pursue crimes against humanity in the courts of law, where the scales of justice reign over the sword, the bomb, and the bullet.
How did we arrive at this juncture?
In those heady days after 9/11 2001, the governments with which I was most associated at that time, the Bush Administration in the United States and the Blair Government in the UK, were trying to devise a response to the attacks on the United States. There began to emerge a regime within the intelligence, security and policing apparatus on both sides of the Atlantic that sought to establish the human and material wherewithal to fight a war against terrorism.
My argument was that to do so would require decades before the new laws enacted and the bureaucracies established to administer an anti-terror campaign would have been tested as to their administrative abilities to do so and the legal soundness of the enactments to reside as settled law, decades. And, that our two great nations were already steeped in legal traditions which permit the interdiction of anyone who commits crimes within our sovereign territories or against our citizens anywhere on this planet. And, in addition we (the US and the UK) were both signatories to conventions, articles, and protocols which permit, if not encourage, super-national involvement when crimes are committed against our common humanity. The most observed of which is when any group engaged in military operations systematically attacks civilians (non-combatants).
Furthermore, in fact and in law, violations of human rights, within those states that have incorporated the Common Law into their legal systems, are not limited to those acting under the color of authority (states and government officials), as the American courts confirmed in a case not involving US citizens or the foreign government of a citizen who committed a human rights violation (Filartiga v Pena-Irala (2d Cir 1980)). In the present circumstance, in relation to Abu Sayyaf, this case warrants critical and particular scrutiny.
Therefore, everything from a legal basis, the point of view of the rule of law, was in place to investigate, charge, indict, interdict and bring to trial those who attacked civilians within the United States (committed crimes within the United States) and to pursue anyone associated with those attacks, the conspirators, no matter where they were domiciled or under whose jurisdiction they may have sought refuge. There is no place of refuge on this planet from crimes committed against humanity; from crimes involving the systematic and repeated attacks on civilians (non-combatants).
A case in fact: Slobodan Milosevic.
In essence, the facts of the case are these: Milosevic was Commander-in-Chief of the armed forces, and those forces under his command attacked villages, including Srebrenica, where some 8000 Bosniak males, most of whom were civilians, were slaughtered by combatants. In addition, in excess of 25,000 females and the elderly from the same village were rounded up with brutality, abused and forcibly transferred. Many other villages were attacked similarly in a process that came to be known as ethnic cleansing. Moreover, combatants under the control of Milosevic knowingly and repeatedly attacked civilians systematically. Those attacks upon civilians by combatants contravene the rules of war, and as such, those repeated attacks constituted crimes against humanity.
Therefore, war crimes charges were filed against Milosevic and an indictment, interdiction and his delivery to the Hague to stand trial was duly executed and enforced.
Before discussing the specific legal foundations as they address the murders of Messrs Ridsdel and Hall by the insurgent group Abu Sayyaf, there is one aspect of the conventions, articles and protocols of the laws and the rules of war that is often not given the weight that it deserves, to wit:
The conventions, articles and protocols, the laws and rules of war, state that combatants may neither attack civilians nor hide amongst civilians, while engaged in military operations. Although, there is recognition that some civilian casualties may be inevitable in war, nonetheless the deliberate or systematic attack on civilians contravenes the laws and rules meant to protect humanity, by offering protection to civilian populations (non-combatants) from either being used as targets of military campaigns or as human shields behind which combatants hide to carry out military operations.
The conventions, articles and protocols concerning the laws and rules of war are clear in the understanding that those whose military activities are not constrained by the laws and rules of war in the conduct of their military operations, cannot claim protection under those same conventions, articles and protocols. In other terms, those who violate the conventions, cannot claim protection under the conventions.
Mr Prime Minister, in the specific case of the commanders and other members of the group, Abu Sayyaf, who carried out the extrajudicial executions of two Canadian citizens, Messrs Ridsdel and Hall; Common Article 3 to the Geneva Convention of 12 August 1949, and additionally the language within Protocol II, forms the basis by which, under which and through which the Government of Canada can charge, indict, interdict and put on trial those who kidnapped, held hostage, and murdered two Canadian citizens, who as citizens carry certain responsibilities to the state, and as such fall under the protection of the Government of Canada.
There are two legal status requirements necessary for situations to be classified as non-international armed conflicts, and thereby render Article 3 applicable law, namely:
- the hostilities must be of a minimum threshold level of intensity, such that the government is obliged to use military force against the insurgents, instead of mere police forces, and
- that the non-governmental groups (rebels) involved in the conflict must possess organized armed force that is under a certain command structure and have the capacity to sustain military operations.
It is clear that in regards to the Abu Sayyaf rebel group the provisions of Common Article 3 apply, and therefore in all circumstances, the rebels are under obligation to adhere to the requirement that all persons with whom they come into contact that are taking no part in the hostilities are to be treated humanely.
And as such, Common Article 3 states that, at any time and in any place whatsoever, with respect to persons taking no active part in the hostilities, or who have laid down their arms, or those by cause placed hors de combat, the following acts are prohibited:
- violence to life and person, in particular murder, mutilation, cruel treatment and torture;
- the taking of hostages;
- outrages upon dignity, in particular humiliating and degrading treatment; and
- the passing of sentences and the carrying out of executions without due process and judgement by a regularly constituted court of law, affording those necessary and sundry judicial guarantees which are indispensable to the rule of law and the orderly conduct of human affairs.
Mr Prime Minister, it is clear that the rebel group, Abu Sayyaf, contravened the most basic tenets of humanity, the human rights of Messrs Ridsdel and Hall, and that their conduct in attacking persons taking no part in the hostilities, who are in all circumstances to be treated humanely, constitute crimes against humanity.
The question remains how shall the Government of Canada, the Trudeau administration, respond to the extrajudicial imprisonment and murder of two of its citizens.
There are two principal alternatives. But let there be no doubt that the use of force is inevitable, the choice is what kind of force we employ, how we apply it and what we achieve by its use.
Prime Minister Trudeau, you may, as suggested by the leader of the opposition, stand with our allies in solidarity against terrorism, and join the chorus of those leaders who tell us how they are going to defeat those who disrupt the peace and make those who indiscriminately attack civilians pay, by unleashing the shock and awe of unrelenting military might.
On the other hand, Prime Minister Trudeau, if you believe in the rule of law, you can under the existing provisions of international humanitarian law, as it reflects the common law that is the basis of the Canadian legal system; investigate, indict, interdict and bring those who kidnapped, imprisoned and executed Messrs Ridsdel and Hall to trial.
The latter approach, Mr Prime Minister, is how Canada ought to address crimes committed against its citizens, crimes that disrupt the peace and security, and crimes against our common humanity.
The bastions of democracy must unceasingly employ legal means to combat attacks on civilian populations, attacks that constitute crimes against humanity.
And, looking to the world that we are creating, the legacy we leave as to how we approach breaches of the peace; poses a fundamental question: Do we want a world where might is right, or one in which the rule of law reigns?
The rule of law is the way forward. It will take some time; but let us begin.