United Nations International Day in Support of Victims of Torture
(Year 2004)

On Wednesday June 23, 2004, CCVT commemorated the United Nations International Day in Support of Victims of Torture by presenting a panel discussion on the Absolute Prohibition of Torture in the Face of Security Concerns. Facilitated by Dr. Lisa Anderman, Psychiatrist and CCVT Board member, our guest panelists were: Audrey Jamal, Executive Director, Canadian Arab Federation,  Ron Levi, Assistant Professor of Criminology, University of Toronto, Ron Poulton, Lawyer, Toronto, and Prof. Mariana Valverde, Institute of Criminology, University of Toronto.

Dr. Anderman began by thanking the audience of approximately 60 people (clients, staff, community members) and saying a few words about CCVT. In December 1997, the United Nations General Assembly voted to commemorate June 26th as the UN International Day in Support of Victims of Torture, and CCVT has held An Evening of Solidarity with Survivors of Torture annually since 1998. These evenings have consisted of a cultural event commemorating the spirit of survivors and have included speeches, music, dance and a chance to experience community cohesion. Last year for the first time, in addition to the evening reception, a panel discussion was added at Metro Hall in the morning on the theme of war, terrorism and torture which was a big success and well attended, and which contributes to CCVT’s mandate of public education around these important issues.

Over 50 years ago the United Nations recognized the need to call an end to the widespread use of torture. In article 5 of the Declaration of human Rights it is stated that “no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.” In 1966, it was restated in article 7 of the International Covenant on Civil and Political Rights that “freedom from torture is regarded as one of the basic human rights.” In 1984, the General Assembly of the UN adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, and in 1987, enacted the International Convention Against Torture.

Despite these international declarations and conventions, torture remains a major problem in many parts of the world. For example, since its inception, the CCVT has helped over 14,000 clients who have experienced torture from 136 countries around the world.

As a psychiatrist and clinician working in the area of psychological trauma and cross-cultural psychiatry, I am more familiar with the clinical literature than the legal or political spheres. However, as this quote from Metin Basolgu, a psychiatrist at the Institute of Psychiatry in London, UK, who edited an excellent volume on Torture and Its Consequences points out, in the treatment of victims of torture, these may be inseparable: He asks: “Why study torture? Study of torture and care of tortured individuals is not merele a humanitarian concern; it is also an effective political statement against the most abhorrent form of human rights violation. Such political statements are essential in preserving hard earned human rights in democratic societies. Torture is thus not a problem confined to a remote dictatorship or a totalitarian regime but one that concerns the very moral fabric of the democratic societies in which we live.”

The times in which we live have changed a great deal in recent years, particularly since September 11, 2001 when security issues previously taken for granted or thought to belong to “other regions” of the world were suddenly thrust onto the front pages of our consciousness.

Dr. Anderman then introduced the four panelists. Audrey Jamal is the executive director of the Canadian Arab Federation, a national umbrella organization representing Canadians of Arab origin. In this role, Audrey works to mitigate the erosion of human rights and civil liberties that is taking place in post 9/11 Canada. She provides analysis and lectures to community, government and media. Audrey holds a B.A. in women’s studies and an M.A. in Conflict Analysis and Management. In 2002, she won the governor general’s Gold Medal for a paper entitled “Arab-Canadians: The ‘other’ within”, an action research project that identified a strategy for Canadian Arab community development. Audrey sits on the Board of Directors of the Ontario Council of Agencies Serving Immigrants and on the Steering Committee for the National Anti-Discrimination Council of Canada.

Ron Levi is an Assistant Professor of Criminology at the University of Toronto, and a graduate of the law schools at McGill University and the University of Toronto. While in graduate school, Ron wrote his doctoral theses on the legal issues raised by community crime prevention efforts. More recently, Ron has turned his attention to international criminal law, and his most recent work focuses on the rebirth of this area of law through international criminal tribunals and the International Criminal Court.

Ron Poulton has worked as a refugee lawyer for UNHCR in Hong Kong, and as a UN human rights investigator in Cambodia, as well as a legal advisor to UN peacekeeping in Tajikistan. He has testified before the Inter-American Commission on Human Rights investigating Canada’s treatment of non-citizens, and before a Parliamentary committee on immigration. He has acted as counsel in a number of immigration and constitutional cases before the federal court and court of appeal and has appeared in the Supreme Court of Canada. He has taught classes at University of Toronto and University of Ottawa and presently teaches an immigration course at Seneca. He is a practicing private practice lawyer advocating for the rights of non-citizens in the firm of Mamann and Associates.

Mariana Valverde is a Professor of Criminology at the University of Toronto and specializes in the sociology of law. In the 1970’s and 1980’s she worked in latin American solidarity networks, often as a translator for Spanish-speaking refugee claimants who had been victims of torture, and she has also been active in feminist and other social movements.

Audrey Jamal

The Canadian Arab Federation has been thrust into the discussion around civil liberties and most recently into the discussion around torture in the past couple of years in light of the post 9/11 world that we’re finding our self in that has changed things dramatically for members of the Arab and Muslim and indeed of all racialised and immigrant communities in Canada.

Prior to September 11 our work focused around a lot of immigrant settlement, issues of racial discrimination and trying to mitigate some of the stereotypes that some people hold of Arabs in Canada. After Sept 11 we immediately saw the criminalization in many capacities of Arabs and Muslims in Canada. It started out with things like attacks on the streets, comments in schools, systemic discrimination in the workplace. But as the months progressed, we saw the intensification of a security agenda adopted by our Canadian government in the form of Bill C36. It’s a piece of legislation that’s now commonly referred to as Canada’s Anti-Terrorism Act; it’s been around since around about December 2001. I often describe it as entrenching the backlash that we see against our communities. Where we were just seeing these small instances on the streets and in communities, and they did have an impact, when this legislation was passed it served to formalize the backlash against our communities.

It has this trickle down effect where our legislators, our media, where people in other Canadian institutions have a broad sweeping piece of legislation that has the ability to conduct things like preventative arrests, investigative hearings and has also become a broad network of security and intelligence sharing with Canadian and international officials. Mr. Maher Arar’s case is significant because it shows the systemic problem of this kind of security legislation. CAF achieved intervenor status into the Arar inquiry, and we have a broad concern in ensuring that this doesn't happen to any other Canadian or anybody else in light of the new sweeping security measures that have been adopted in Canada.

Ron Poulton

I’m going to talk to you about the rights of non citizens in relation to the prohibition against torture and what our courts have done with that and where we stand today.

Where we stand today is that there is no absolute prohibition against torture for non-citizens in the immigration processes, that’s thanks to a Supreme Court of Canada decision a number of years ago that came shortly after the 9/11 disaster. The Court was asked point blank to deal with this issue in the context of non-citizens. The court was asked to declare that the absolute prohibition against torture is part of our domestic protections for people facing removal and when arguments were made to the court, which were done in May 2001, there was little doubt in anyone’s mind that that is exactly what the court was going to order; that under Section 7 of the Charter there would be an absolute prohibition against return to torture for anybody.

That case (Suresh Case) raised some very complex issues of balancing national security, in that case someone the government alleged was a terrorist against this ultimate harm of torture. Before the Court issued its reasons for the decision, 9/11 happened, and everything changed. The decision came out in January 2002 and in reading it you can see that when they drafted the decision the court was prepared virtually up to the last sentence to say that there was an absolute prohibition and then it blinked, and they couldn’t do it. So they left open the possibility of returning someone to face torture in what they called “extraordinary circumstances.” What are extraordinary circumstances are left to be defined but the government of Canada is working actively to try and find those circumstances, whether they have to invent them or not.

The purpose is to cleanse the country of unwanted people, whether they be criminals, whether they be persons labeled terrorists, security threats, or otherwise, but, there is an active effort going on to get rid of these people and try and avoid those extraordinary circumstances provisions the court has worked in.

So how are they doing that? In lots of different ways. People who are labeled terrorists usually come from areas of conflict and are usually opponents to regimes in various forms or other , so what the government tries to do is either wait until there’s a bit of a calming period in a turmoil, for example, Sri Lanka’s case, or tries to say that the situation is extraordinary. So in the courts right now, every day, we’re battling over that definition. Sri Lanka is the best example because that’s the case Suresh is based upon. The situation is a lot more stable that it was when Suresh was argued and the government is waiting for the stability to become a little more entrenched and they’re going to try to move Suresh again probably, which we all fear.

To experiment with that, they try with people who are, as they call, lesser fish than Suresh is, someone who wasn’t as high profile in the political organization, to see how the courts are dealing with that, to see how strongly they feel about prohibitions against torture. And as they test those waters, they’re getting a little more confident in returning someone to face that possibility. So, entrenched in the immigration act and processes there are protections against sending people back to torture (PRAA process which looks at whether there is a possibility of someone facing torture, Charter protections that have come through Suresh, etc), but with those in mind there is a diminished power of all those protections, and that diminished power of the protections comes, from my view of things, from the powerlessness of the people who are seeking those protections. I think the best definition of torture I’ve ever seen came from someone from the CCVT: (quote from an article in the Globe And Mail):

“The ultimate purpose of torture, however, is always the same. It is not the extraction of information, which is notoriously unreliable under such circumstances. It is, rather, the destruction of one’s voice and identity, the transformation of a human into an object (thus the hood over the face), like the Orwellian deconstruction of thousands of former lives into “collateral damage,” or the “rendering” of individuals to another country for so-called interrogation.”

What we have for a non-citizen right off the bat is somebody who starts off in an imbalance of power vis-à-vis the government and state; they don’t have as much money, they’re not as entrenched in society. So they’re looked at a little bit differently. I don’t think any Canadian criminal court would agree that a police officer can torture a detainee - that’s just not possible. But the Federal Court of Canada has agreed that a non citizen can be returned to face torture. Now, they agreed on that in 1998, in first a number of cases that went up to the court when the new terrorism provisions in the immigration act were implemented, and one federal court judge said in response to the argument that there was a prohibition against torture was that the terrorist made his terrorist bed and he has to sleep in that terrorist bed. Then Suresh came to the federal court. And the federal court judge basically said the same thing. Saying that “I just don’t see that there’s a serious issue to stop this removal. This principle that there’s a prohibition against torture in my view is not so entrenched within the constitution.”

The fact that we have protections today exists in my view because of one judge. A judge from the Ontario court had the courage in 1999 to say in Suresh - the same case - we walked across the street after we lost in the federal court, went to an Ontario Court Judge who sits every day seeing police abuse, seeing real rights being entrenched for accused who understood the constitution, who wasn’t in the government’s court. The federal court is the government’s court. Interestingly that’s why they're letting them police the antiterrorism legislation. The Ontario Court is not, it is far more independent, far more used to saying to the government “ you’re wrong about this and I don’t accept this kind of behaviour.” An Ontario Court Judge, Mr. Justice Lane said in Suresh that the Charter of Rights, constitutional rights, are due not just of the good. They’re are also owing to people we say are bad. An obvious principle, a great principle, brand new, for non-immigrants. Brand new.

From that, we went to the Supreme Court of Canada and finally won the case. But there’s a constant battle in the courts over the protection of rights for non-citizens and even though Suresh has some limitations to it and even though it did protect Suresh from removal, there has been from that day a whittling and an erosion still, of that principle. Partly because of a decision in 1992 by the Supreme Court of Canada in a case called Chiarelli. In that case it was a case of a long-term permanent resident convicted of organized criminality, so a big bad guy. The court took the opportunity to say in that case that the constitutional rights that we talked about in Singh, which is a refugee case, are really the same rights we’re talking about here for a non-citizen. The basis for the rights foundation for non citizens is that they’re non-citizens, that’s where we start our examination of their rights. So right away, you're a lesser person than you would have been. There’s a diminished view of the person and their rights. There’s a recognition that they’re more powerless, therefore we can get away with more. So that is an on-going struggle that we see today. It’s an ongoing struggle in the courts and it’s an issue we have to be constantly diligent on and strong advocates against.

Ron Levi

I just want to pick up on some of the points made by Lisa, Audrey and Ron. What I want to talk about today are really three of the core tensions or ideas or struggles between how you can have, at least as pointed out in the formal documents, strong prohibitions against torture, and you can have in the light of terror, and in the light of security concerns over terror, three frictions that then come about. I want to bring these out, and maybe we can have a conversation about them as we go on today.

The first is this recognition that’s happening in US law journals mostly, that torture, according to these commentators, is going to happen, and it is going to happen, if not routinely, at the very least, in moments where security officials think they’re in face of another situation of mass destruction, or of a 9-11 type of situation. In line of that kind of statement, this suggestion that yes, it’s going to happen whether we have prohibitions against it or not, the idea has been to create what are now being called “torture warrants.” The idea of a torture warrant, according to the commentators, what they want to do with this is to limit the number of times and the circumstances in which it will happen. To be fair to the commentators - what they’re not trying to say is we ought to torture more people to information out of them, but in fact we should take the fact that we think it’s going to happen, if police officers and security forces have their way regardless, and we should have some kind of monitoring, oversight, bringing to light of the process.

So this is the kind of the debate that’s happening in US law journals that’s mostly being pushed by Harvard Law Professor Alan Dershowitz, and with some support from others and some resistance from other high-profile professors. What I kind of want to bring out today is, well, we can have a debate, and I think I’d like to, over whether or not having something like oversight over practices that may or may not happen regardless, is a good idea; but I think it also brings into light a next problem, which I think is what we’re seeing in the newspapers yesterday, and over the Abu Ghraib tortures. It’s that once you start saying, “Well, we’re going to have a torture warrant,” what does that mean for every kind of interrogation practice that isn’t as bad as one for which you’d need a warrant? What you start getting is kind of a jurisprudence of violence, right? You start getting pushing, you don’t want to have to get a warrant, because maybe a judge won’t give it to you, so what do you do? You push them a little further, you see just how far this will go, situations in which you don’t need warrants, and so what you start having, I think, is a kind of legalized brutality for everything that is outside the narrow definition of, however we decide to define it, of torture in individual cases.

This idea from the Abu Ghraib tortures - if you look at the memo that has been circulating, even though it says confidential, and no foreign distribution on it, if you look at the memo that was supposedly, and now confirmed, written by department of justice officials in the US to justify - the idea was, the use of torture in both Abu Ghraib and in Guantanamo, what you find is exactly this; you find a redefinition of what is and isn’t torture, that then allows individual cases to say, well hold on, torture is this very high standard. And that is the thrust of that memo, without having to read it, is exactly that, the creation of a very high standard for what torture is, over and above what we’ve often thought of from blanket readings of the texts of the laws themselves. If you do that, if you increase the scope of what is torture, if you raise the standard, then you say, well, hold on, anything below that is justifiable. And so I think, if you tie that together with the idea of torture warrants, the idea of creating laws about torture often has the unfortunate other effect of saying anything below that must be okay, must be fine.

So, that is, I think, part of it. And I think the third part that I want to bring out, before turning to international criminal law, for a minute, is this idea that torture is something we don’t do. And if you just look at the newspaper, and I think this is picking up on Ron’s points, if you look at the paper yesterday, well yes, perhaps it’s not what we do, precisely because we have other people do it at times for us. And so this is a practice that is now being called extraordinary rendition in the US, and this is the practice of, (a quote from US officials), “the temptation is to have folks in other hands because they, the other hands, have different standards, someone might be able to get information we can’t from detainees.” Now we find out yesterday that the former head of CSIS has confirmed that CSIS has involvement with foreign agencies that are in fact known to torture detainees.

I was reading the Ahani Case, which I think Ron was involved in, a recent decision of the UN Human Rights Committee, two weeks ago… the point I want to bring out of the Ahani Case, is that when it went to the Supreme Court of Canada (before the UN Decision), and when the Supreme Court of Canada decided whether or not, its position was quite clear. It was that the decision to send Ahani, to extradite Ahani, to send Ahani back, was in fact a foreign relations decision, and one not reviewable, not in the expertise of law and legal officials, right? This was a decision for foreign affairs, it was a political decision.

So what you have, is when torture happens elsewhere, we’re now told, that’s not a legal question for us, that it’s a political question, for example, for executive officials. So again, torture falls outside of what we can do with the law.

I’ll come back to international criminal law in the questions, but I think what is happening at the same time, is the undercutting of any kind of powerful jurisdiction for the International Criminal Court, and this is happening in a couple of ways. The international Criminal Court can hear cases of torture, either as a war crime, or a crime against humanity. At the same time, US support for the court, especially since the Bush administration, has failed.

What you have is two things happening. The first is non-surrender agreements between the US and about 90 other States now, which agreed not to in fact turn over US citizens to the ICC, and so you have an undercutting of the ICC’s jurisdiction, not just for the US, but also for the general credibility of the International Criminal Court. I think I want to stress that, right, if the US is our major power-broker, if it’s just the new Rome, and it’s out there saying our nationals aren’t going to be subject to the jurisdiction of the ICC, that does something to the legitimacy/authority of the ICC to do its work.

The second thing that’s going on is that the International Criminal Court itself is limited in it’s jurisdiction to only prosecute cases and situations where the state itself, so again if it’s a US national for instance, where the US would be unwilling and unable to go on and do the investigation themselves. So, for instance, in the Abu Ghraib inquiry, even if the US were subject to the jurisdiction of the court, the fact that there is an investigation would likely block any type of ICC prosecution. So I just want to leave all those comments out there, and we’ll return to all that, I’m sure, during the questions.

Mariana Valverde

Okay, first of all I just wanted to open my remarks by expressing my solidarity with victims of torture, past and present, those who survived, perhaps to make refugee claims in Canada or other places, and those who didn’t. Now, even though I’m an academic, I’m not here to give you detailed information because I don’t do research in this area particularly.

I thought it might not be wholly inappropriate, before we turn to a discussion of the more crucial or important policy and legal questions, before we turn to that, to just spend a few minutes on a reflection, a more philosophical reflection, if you will, about what is it that we really want when we fight against, and we denounce, torture and other human rights violations? There’s a lot of people, and I think it’s a particularly Canadian trait, to find people who are very devoted to work like what Ron and Audrey are doing and other people are doing, and yet for people to be very reticent to ever think more positively about, well, we’re not just against torture we’re for some things. But what are we for? Canadians are very bad, in my experience, at saying what we’re for, so I just thought five minutes on what we’re for might be useful before we talk about how to support the work you’re doing to try to get an absolute prohibition on torture.

Now, you know, people who have been victimized either individually or collectively as a people face a choice (and this is a simplistic way of putting it), but in general, I think you can either turn and pursue revenge, which we often see unfortunately in the context of ordinary Canadian criminal justice, in which people who have suffered some kind of victimization are all too prone to say, “bring back hanging, capital punishment,” and so on. There’s a sort of, I don’t even want to call it an ethics, but an ethics of revenge, if you will. And when that happens, of course, you have to sympathize with the fact that when one is victimized, one often has feelings that you know revenge would be a sweet pleasure.

On the other hand, anybody who knows anything about history knows what terrible things can go on to happen when people take up the standpoint of revenge. One of the things that I’ve been impressed with over the years, in the small amount of work that I’ve done as a volunteer, as a translator and so on, in human rights issues, one of the things I’ve been really impressed by is how many people I have seen, both individuals who actually suffered torture and other things, but also peoples, who refused to go with the easy path of revenge, who made a decision to pursue justice, rather than revenge.

Shortly after the Sandinista revolution in Nicaragua, I had the opportunity to travel there a few times as a translator for several Canadian groups that were going to see what was going on, and certainly not just me but every Canadian that went there at that time was so impressed by the way in which people who had been as victimized, certainly one of the global examples of horrible abuse and torture, and yet people refused to take up this standpoint of revenge, and they said, no, we’re going to abolish capital punishment, they never executed anybody, and they tried to sort of work on a different ethic. And I think the same thing we can see happening in post-Apartheid South Africa, where we really could have had one of the worst bloodbaths of history, and yet it didn’t happen.

So, one of the things I’d like us to think about is why is it that the Canadian media is so concerned only with the bloodbaths going on around the world, why is there so little time spent analyzing the situations in which the bloodbaths didn’t happen, because some people had the courage to say, well, justice is not revenge, justice is something else. And in thinking about justice, I think there are some philosophical sources that are helpful, and I think they are helpful not just intellectually, they are helpful at the sort of emotional, ethical level at which, again, Canadians are not often very good at, but which is important if you’re dealing with horrible situations.

One of the things that I think philosophers generally agree about justice, is that justice is not something you can actually have. Nobody can claim to own justice, to have, it. The idea that there is somebody up there called the Minister of Justice is ridiculous, you might as well say, there’s a Minister of Wisdom. Well, excuse me, but like, no! Justice is not something you can have, justice is something you can aspire to, but you can’t actually have it. I think we can learn a lot, those of us who have not been personally victimized, except in perhaps smaller ways, can learn a lot from those people who continue to pursue justice, even as against the temptations of revenge that a certain kind of right-wing populism is always putting in our view.

And when we think about justice, I think it is always important to remember the link between interpersonal, ethical relations of justice, the sort of thing that I saw in Nicaragua, when we would go to all of these meetings with the mothers of very young men and women who had been tortured to death by the security forces. These mothers, in their personal relations with us, with other people, with people who had been implicated in the regime, showed that kind of practice of justice, in a way that was just so completely impressive. They always said that for them, that kind of personal ethical practice of justice was linked to, and supported by, a political regime that at least tried to promote justice in a more structural way, in a collective way. So, structural relations of justice are always important, and they’re always linked to personal, ethical relations of justice. And in thinking about the link between our personal ethical search for justice, and the ever-receding search for global international relations, structural relations of justice, or relations of structural justice.

One philosopher that I have always found inspiring, and I just want to end by quoting from him, is Walter Benjamin. For those of you who don’t know his name, Walter Benjamin was a very eccentric German intellectual who in the 1930s had to flee Germany. He was a very odd sort of communist, a non-Marxist communist, he was a Jew, so on both counts he had to get out. He went to France, and when the Nazis occupied France he left for Spain, and he died under somewhat mysterious circumstances right on the border between France and Spain.

Walter Benjamin thought a great deal about justice, and about the idea that justice starts with our ethical duty to those who went before us, particularly to those who were victims of injustice. I think Walter Benjamin could be the philosopher for victims of torture. He had this to say about our duty to the past, our duty to those who went before us, as a sort of practice of justice. I quote: “To articulate the past historically (and historically he doesn’t mean academic history, he means ordinary people, people who have come to Canada as refugees, for example, thinking about their history, and thinking about what to do with that history) does not mean to recognize it the way it really was (so it’s not just a matter of accuracy in reporting), it means to seize hold of a memory as it flashes up at a moment of danger (so the past has to be made alive by us every day, and we’re failing in our duty to the past if we don’t do that work of remembering, that work of memory, which I think is crucial to justice), only that historian (and again he means the conscious activist, not the academic historian) will have the gift of fanning the spark of hope in the past, who is firmly convinced that even the dead will not be safe from the enemy if he wins.”

I really like that idea that hope is not just in the future, which is how we think of hope - hope is what lies ahead. He thinks, well, you have to have hope in the past, in order to have a just future. “Only that historian will have the gift of fanning the spark of hope in the past, who is firmly convinced that even the dead will not be safe from the enemy if he wins”. And then, unfortunately, he ends on a sad note, which is perhaps suitable to our own time, and he says “and this enemy (the enemy from whom even the dead will not be safe) has not ceased to be victorious”. Thank you.