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War Crimes and Related Law (Canada)
(February 2008)

Chapter 14 - "Terrorism"

  1. Overview
  2. "Terrorist Activity"
    (a) Overview
    (b) Mental Element
    Case Note Re: R v Khawaja
    (c) Actus Reus
    (d) Exceptions
  3. "Terrorism" and "International Crimes" Compared
    (a) Overview
    (b) International Crimes and State Action
    (c) Terrorism and State Action
    . The Issue
    . Military Activities Otherwise Governed by International Law
    . Legal War Activities
    (d) Summary
    (e) Comment
Appendix: Definition of "Terrorist Activity"

________________________________________


1. Overview

In December 2001, in political response to the 9/11 attacks in the United States, Canada passed into law the "Anti-Terrorism Act" (ATA). This was done in a matter of a few months after the American attacks despite the fact that Canada suffered an attack of similar magnitude (for our population) back in 1985 with the Air India bombing, an event that was prosecuted unaggressively under conventional criminal law.

It is a theme of this chapter that the circumstances of the generation of Canada's "terror" laws have led to the creation a legal regime which is largely redundant in light of Canada's already substantial legal investment in international criminal law under the Rome Statute regime. Further, if initial legal rulings are any indicator, the whole "terrorism" law enterprise may be seriously constitutionally flawed [see the Khawaja case note in s.2 below].

The Anti-Terrorism Act implemented a number of outstanding international treaties regarding such things as air hijacking, special criminal treatment for attacks against "internationally protected persons" (IPPs), political kidnappings, maritime piracy and "terrorist bombings". I will not explore these several offences treaty-based offences in this summary chapter.

The ATA also created an entirely new category of crime, that of "terrorist activity" (see s.2 below), which is the foundational definition for a wide range of main and ancillary offences. Like international crimes, these new "terrorist" offences are ones of "universal jurisdiction" (ie. they can be prosecuted here even if they occured outside of Canada).

The Act also involves numerous amendments to existing criminal and criminal-related statutes, including the Official Secrets Act, Evidence Act, Canadian Human Rights Act, Immigration Act, Proceeds of Crime (Money Laundering Act), the Canadian Security Intelligence Service Act - and a range of others. As is the case with "international crimes", it is primarily these amendments that have seen actual use in "terror-related" government response (rather than actual prosecutions) - and that have been subject to much criticism by civil libertarians.

It is beyond the scope of the present program to fully explore these amendments. This chapter only considers the ATA for its interface and contrast with the law of "international crimes" which is the main topic of this program.

Themes explored include the extent to which the two areas of law can be viewed as defined by the distinction between "state" (ie. international crimes) and "non-state" ("terror" crimes) actors.

Another theme is whether the laws governing "terrorist activity" and those governing "international crimes" overlap such that the same acts could constitute offences under both sets of law).


2. "Terrorist Activity"

(a) Overview

The definition of "terrorist activity" (see Appendix at end of chapter) is broad and somewhat complex. It involves:
  • conventional mens rea requirements regarding acts and omissions constituting the actus reus, plus additional mens rea elements of motive (essentially "political intimidation");

  • actus reus of acts or omissions causing or "likely to result in" physical injury, or health or safety risk (essentially "bodily harm or risk thereof").
Expressly exempted from the definition are:
  • acts or omissions committed during "armed conflicts" if they are "in accordance with customary international law or conventional international law applicable to the conflict" ("legal war activities");

  • "official" military activities, if "governed by other rules of international law" ("military activities otherwise governed by international law").
(b) Mental Element

The "conventional" mens rea (mental element) of a crime includes the intention to do the act or omission which is the actus reus of the crime (eg. murder requires intent to kill). However an intention to do or omit to do a thing which has, as a "natural consequence", the commission of the actus reus will also generally satisfy the mental element requirement (eg. intent to pull the trigger while pointing a loaded gun at someone).

In some crimes, other mental elements may also be required - or in some cases substituted. For instance, one element of the "supervisory" offences covered in Ch.6 is that the "superior" knew, or should have known, of the circumstances which led to the commission of a main war crime by their subordinates (and then failed to stop it).

The main additional mental element in terror cases is that of "motive", which has two elements - a "strategic" and "tactical". These are that the crime be committed, in whole or part:
  • for a "political, religious or ideological purpose" objective or cause ("strategic purpose"), AND

  • with an intent to intimidate the public or a segment thereof, with regards to its security, including its economic security;

    OR

  • with an intent to compel any person, government or organization to do or not to do anything ("tactical purpose").
The "conventional" mental elements are the intention (as described above) to cause the actual acts or omissions which constitute the actus reus (immediately below) of the crime.
Case Note: R v Khawaja

At the present time, the most procedurally advanced of the few terrorism cases in Canada is R v Khawaja [2006] OJ #4245 (QL) (Ont Sup Ct). At the date of writing [February 2008] a preliminary application to test the constitutionality of aspects of the legislation - in particular the key definition of "terrorist activity" - had been heard and determined by the Ontario Superior Court. Rutherford J of that court held that the requirement in that definition that the conduct be engaged in "in whole or in part for a political, religious or ideological objective or cause" [s.83.01(1)(b)(i)(A)] violated s.2(a), (b) and (d) [religion, thought, belief, opinion, expression and association], and was not saved by s.1, of the Charter.

That aspect of the decision alone was welcomed by civil libertarians - however the court's constitutional remedy puzzled many, being the simply excision (ie. elimination) of that phrase from the legislation. While that sounds fair enough the provision was actually a limiting one on much broader offence provisions contained in the Anti-Terrorism Act - the net result being that the legislation as a whole mushroomed in reach to encompass all prohibited activity, regardless of 'political, relgious or ideological' motive.

As the decision resulted from a preliminary application it cannot be appealed to the Ontario Court of Appeal yet, as such appeals are limited to "final orders". As well, an application to appeal that preliminary ruling to the Supreme Court of Canada was refused on procedural grounds. Therefore it appears that the case will have to be tried - and if necessary, appealed to the Court of Appeal - before Rutherford J's order can be subject to appellate review.
. (c) Actus Reus

The "actus reus" (acts or omissions) of a "terrorist activity" are the causation of any of the following:
  1. death or serious bodily harm, or risk thereof ["harm or risk of harm"];

  2. substantial property damage, IF likely to result in (1) above ["property damage resulting in harm or risk of harm"]; OR

  3. serious interference with or disruption of essential services, facilities or systems, EXCEPT as a result of "advocacy, protest, dissent or stoppage or work" NOT intended to result in (1) above ["non-expressive interference with essential infrastructure"].
(d) Exceptions

As noted above, expressly exempted from the definition of "terrorist activity" are:
  • acts or omissions committed during "armed conflicts" if they are "in accordance with customary international law or conventional international law applicable to the conflict" ("legal war activities");

  • "official" military activities, if "governed by other rules of international law" ("military activities otherwise governed by international law").
The purpose and impact of these categorical exceptions are explored more in s.3 and 4 below.

Note as well from sub-section (c) above that 'interference with essential infrastructure' is not a terrorist offence if done as a result of expressive activities: ie. "advocacy, protest, dissent or stoppage or work".


3. "Terrorism" and "International Crimes" Compared

(a) Overview

Clearly both international crimes and "terror" crimes share a core element of violence, particularly mass violence. What then - if anything - distinguishes them?

The obvious first candidate for this is that "international crimes" are offences by states or their agents, while "terror" crimes tend to be committed by non-state actors.

This distinction maps the historical development of the two fields in law, with "international crimes" (ie. war crimes, crimes against humanity and genocide) growing from the military conflicts of the World Wars, primarily through the Geneva Conventions. "Terror" crimes, on the other hand - while occuring throughout history as human behaviour - have more recently come into legal being, especially bolstered by the 9-11 attacks in the United States.

(b) International Crimes and State Action

Does this state/non-state distinction hold up on examination? First I consider the extent to which the CAHWCA regime necessarily entails state action. As the classical immediate agent of violence by a state is the military, this issue may be redefined as: whether Canada's CAHWCA offences are necessarily tied to military action.

Of the three main CAHWCA offences of: genocide, crimes against humanity and war crimes, only "war crimes" even partly presupposes a military context (as noted above in the discussion of the term "armed conflict"). This it does in the several occasions where it excuses or mitigates offences on the basis of 'military necessity' (essentially imposing "least drastic means" diligence requirements on military violence).

Both "genocide", being essentially the attempt to destroy of an identifiable "group", and "crime against humanity" being non-combatant-directed mass violence - quite comfortably map the political, racial, ethnic or religious crimes which characterize modern "terrorism" without any requirement of state action. In fact, the absence of the motive mental element element (as is required in "terrorist activity") suggests a greater potential for use of the CAHWCA provisions against such acts.

In sum, there appears to be only a minimal requirement of state action amongst the international crimes.

(c) Terrorism and State Action

. The Issue

The next issue is the extent - if any - to which military violence is incompatible with the legal definition of "terrorist activity"? As discussed in s.2(d) above, there are two categorical exceptions to "terrorist activity", one of which is expressly military in nature and the other involving "armed conflict". I explore them each in turn.

. Military Activities Otherwise Governed by International Law

The first categorical exception noted is for official "military activities otherwise governed by international law".

An initial point to make here is that the phrase "otherwise governed by" does not mean "legal". The best understanding of this phrase is that it means "coming under the jurisdiction" of pre-existing international law.

That said, the exception comes close (but not quite all the way) to exempting all government activity from meeting the definition of "terrorist activity". Immediately apparent "exceptions to the exception" include:
  • non-military (but still state) activities [eg. harm or risk of harm caused by administrative decision to cause "interference with essential infrastructure" (such as cutting off water or electricity) directed at a portion of the state's population (such as a racial minority)];

  • "aggressive war" (as such), being an offence not yet governed by international law (see Ch.13, s.4: "The Crime of Aggression: Aggression as State Terrorism").
. Legal War Activities

The second categorical exception to the definition of "terrorist activity" discussed in s.2(d) above is what I call "legal war", or - more properly - an:
... act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict.
Here the phrase "in accordance with ... law" is a comfortable fit with the simple term: "legal".

Otherwise, but for the more expansive phrase "armed conflict" (which can include militia or other conflicts) this exception fits the definition of conventional (ie. military) "war" quite happily. Interestingly, the phrase "armed conflict" is the same used in the definition of "war crimes" (Ch.5, s.4: "Main Offences: War Crimes") under the CAHWCA.

Thus it appears that this exception (at least) to the definition of "terrorism" does intend to establish a clear bright line between "illegal war activities" on the one hand (which can constitute "terrorist activity") - and "legal war activities" on the other hand (which must be entirely considered under the "war crimes" regime established under international criminal law). It is noteworthy that this delineation does NOT rely on the state/non-state distinction.

(d) Summary

The proposed state/non-state distinction between the law of "international crimes" and "terrorist activity" is largely valid. That said, the definitions of "international crime" under Canada's Crimes Against Humanity and War Crimes Act [CAHWCA] encompass most of the acts and omissions that are covered by the definition of "terrorist activity" - and may actually be more encompassing as they do not require a political, religious or ideological motive.

On the other hand, "terrorism" law DOES bar its own application to state action when the individual state actions are part of a "legal" war or otherwise governed by international law, in which case (in Canada at least) the activities are criminally "regulated" by international "war crimes" law.

But Canadian "terrorism" law is still applicable to:
  • state action which is not military in nature; or

  • state military action which in itself constitutes "the crime of aggression" (ie. illegal war as such - and perhaps the first "act of war" commencing it, but distinct from the individual acts WITHIN any subsequent armed conflict, which are governed by international "war crimes" law ).
But for these exceptions (which are probably drafting oversights in any event) the law of "terrorism" is essentially old-fashioned sedition coupled with universal jurisdiction.

(e) Comment

In sum, the law of "terrorism" in Canada is largely redundant as re-criminalizing a sub-set of pre-existing international crimes law. Further, the "motive" requirement [should it persist: see the Case Note Re: R v Khawaja in s.2 above] of the "terrorist activity" offences renders prosecution of such offences even more onerous than international crimes prosecutions.

This redundancy in Canadian law is legally surprising - though not politically so in light of the generation of these laws: driven by American political hysteria following the 9-11 attacks. The Americans on the other hand, having thoroughly repudiated (before 9-11) the international crimes regime established under the Rome Statute of the ICC, perceive no such legal redundancy.

Further, given the openly-acknowledged reasons for the American ICC repudiation (ie. fear of their own prosecution under international crimes law), it is understandable that they would prefer to create a narrower realm of crime more suited to their own ideological distinction between their "just" violence and other's "unjust" violence. It is revealing in this respect that the two areas of law cannot be coherently distinguished on the basis of any abstract features, but must must rely on express categorical exemptions for state violence.

However, discerning when isolated acts of "terrorism" by a small political or religious group convert into the "righteous struggle" of a "revolutionary army" is not a coherent endeavour. Once a revolution is "successful" in the sense of international recognition (which regularly occurs despite the illegality of the rise to power) then a "revolutionary front" or a "people's army" quite seamlessly converts to a nation's military.

The cynical adage: "today's terrorist is tomorrow's statesman", quite aptly point up the logical and legal limits of "terrorism" laws. Were it left to law alone, "terrorism" law would likely wither over time as an unnecessary legal species in favour of more encompassing and internationally-favoured "international crimes" law.
________________________________________

Appendix: Definition of "Terrorist Activity"

Criminal Code s.83.01(1):

"terrorist activity" means

(a) an act or omission that is committed in or outside
Canada and that, if committed in Canada, is one of the
following offences:

(i) the offences referred to in subsection 7(2) that
implement the Convention for the Suppression of
Unlawful Seizure of Aircraft, signed at The Hague
on December 16, 1970,

(ii) the offences referred to in subsection 7(2) that
implement the Convention for the Suppression of
Unlawful Acts against the Safety of Civil
Aviation, signed at Montreal on September 23,
1971,

(iii) the offences referred to in subsection 7(3) that
implement the Convention on the Prevention and
Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents,
adopted by the General Assembly of the United
Nations on December 14, 1973,

(iv) the offences referred to in subsection 7(3.1) that
implement the International Convention against the
Taking of Hostages, adopted by the General
Assembly of the United Nations on December 17,
1979,

(v) the offences referred to in subsection 7(3.4) or
(3.6) that implement the Convention on the
Physical Protection of Nuclear Material, done at
Vienna and New York on March 3, 1980,

(vi) the offences referred to in subsection 7(2) that
implement the Protocol for the Suppression of
Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to the
Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, signed at
Montreal on February 24, 1988,

(vii) the offences referred to in subsection 7(2.1) that
implement the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation, done at Rome on March 10, 1988,

(viii) the offences referred to in subsection 7(2.1) or
(2.2) that implement the Protocol for the
Suppression of Unlawful Acts against the Safety of
Fixed Platforms Located on the Continental Shelf,
done at Rome on March 10, 1988,

(ix) the offences referred to in subsection 7(3.72)
that implement the International Convention for
the Suppression of Terrorist Bombings, adopted by
the General Assembly of the United Nations on
December 15, 1997, and

(x) the offences referred to in subsection 7(3.73)
that implement the International Convention for
the Suppression of the Financing of Terrorism,
adopted by the General Assembly of the United
Nations on December 9, 1999, or

(b) an act or omission, in or outside Canada

(i) that is committed

(A) in whole or in part for a political, religious
or ideological purpose, objective or cause,
[Author: see the Case Note Re R v Khawaja in s.2
above] and

(B) in whole or in part with the intention of
intimidating the public, or a segment of the
public, with regard to its security, including
its economic security, or compelling a person,
a government or a domestic or an international
organization to do or to refrain from doing
any act, whether the public or the person,
government or organization is inside or
outside Canada, and

(ii) that intentionally

(A) causes death or serious bodily harm to a
person by the use of violence,

(B) endangers a person's life,

(C) causes a serious risk to the health or safety
of the public or any segment of the public,

(D) causes substantial property damage, whether to
public or private property, if causing such
damage is likely to result in the conduct or
harm referred to in any of clauses (A) to (C),
or

(E) causes serious interference with or serious
disruption of an essential service, facility
or system, whether public or private, other
than as a result of advocacy, protest, dissent
or stoppage of work that is not intended to
result in the conduct or harm referred to in
any of clauses (A) to (C),

and includes a conspiracy, attempt or threat to commit
any such act or omission, or being an accessory after
the fact or counselling in relation to any such act or
omission, but, for greater certainty, does not include
an act or omission that is committed during an armed
conflict and that, at the time and in the place of its
commission, is in accordance with customary
international law or conventional international law
applicable to the conflict, or the activities
undertaken by military forces of a state in the
exercise of their official duties, to the extent that
those activities are governed by other rules of
international law.
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