Repatriation order for men in Syria raises questions about Canada’s consular obligations

I’m on the more cautious side on repatriation and the likelihood of rehabilitation, particularly with respect to adults:

Former diplomats say Canada should have moved to repatriate four men from northeastern Syria without a court order, avoiding another decision from the federal bench that casts more doubt on the country’s obligations to its citizens held for wrongdoing in foreign countries.

A day after the government came to an agreement to repatriate 19 women and children, the Federal Court ruled on Jan. 20 that four men held in detention camps for suspected ISIS members in northeastern Syria must be repatriated, too, noting that their living conditions are “even more dire than those of the women and children who Canada has just agreed to repatriate.”

The government has yet to indicate whether it will appeal the case. Prime Minister Justin Trudeau (Papineau, Que.) said on Jan. 23 that the government is looking at the situation “carefully” and is “making sure we’re defending Canadians’ safety and security.”

Former Canadian diplomat Daniel Livermore, who was director general of security and intelligence in Canada’s foreign service, said the Federal Court ruling will force Global Affairs to change its consular policy unless it is appealed.

“The tradition in consular service, the way it has been delivered … it doesn’t matter who you are and what you’ve done, you get consular service irrespective of background,” said Livermore, who authored Detained: Islamic Fundamentalist Extremism and the War on Terror in Canada. “Now, that didn’t happen with these people, and it didn’t happen because of their background.”

Livermore noted that there is little sympathy to provide any kind of assistance for those who are linked with allegedly going abroad to join a terrorist organization.

“I think the court case is really going to force the hands of Global Affairs to come up with something a lot better, and hopefully it is something that is anchored in a more sensible policy than they’ve pursued so far,” he said.

He added that in an “ideal world,” the case shouldn’t have even come to court and the repatriation should have taken place long ago.

In its policy framework to “evaluate the provision of extraordinary assistance,” the government notes that it has “no positive obligation under domestic or international law to provide consular assistance, including repatriation.”

The framework was unearthed as part of the Federal Court case.

The policy notes that Global Affairs “may” provide consular assistance to Canadians abroad with their request and consent, and pursuant to the government’s “royal prerogative on international relations.” The Federal Court ruled that the royal prerogative isn’t “exempt from constitutional scrutiny.”

Livermore said Canadian courts, in successive cases, have undermined the government’s claim of not having to provide consular assistance, including the most recent January decision. He said the notion was also disputed in 2010 when the Supreme Court of Canada ruled on Omar Khadr’s case. The top court ruled it could order the government to ask the United States to repatriate Khadr from detention in Guantanamo Bay, but chose not to. Livermore also cited the case of Abousfian Abdelrazik, who the Federal Court ordered be repatriated from Sudan in 2009.

“[The three cases show] a nice little pattern, which undermines the royal prerogative argument and limits it very substantially,” he said.

He said the consular policy is a “residue” of Canada’s post-9/11 policies.

“A lot of our policies were changed without thinking them through,” he said. “A lot of the security agencies at the centre, at the [Privy Council Office], began to exercise powers that they don’t legitimately have a right to claim. Now we’re starting to untangle all this stuff … so presumably Global Affairs will have to work on that a bit and it will be interesting to see how it will come up with it.”

Livermore said one solution for future consular cases is to remove the RCMP and the Canadian Security Intelligence Service (CSIS) from the co-management of the situation, suggesting that could be done by invoking the individual’s rights under the Privacy Act.

Under the government’s framework, CSIS and the RCMP will determine the “potential threat” an individual poses to public safety and national security, which includes “the individual’s involvement in, or association with, terrorist activity, and whether the risk of their return to Canada can be sufficiently mitigated in transit and upon arrival.”

Unlike other countries, Canada has made little progress to repatriate its citizens who have been held in Kurdish-controlled camps in the Autonomous Administration of North and East Syria (AANES).

The government has cited safety concerns for its inability to travel to the camps to assess the consular cases. Under its framework, it notes that one of the guiding principles is that government officials “must not be put in harm’s way.” Other countries’ diplomats, as well as academics, journalists, and civil society advocates, have gone to the AANES camps.

Patricia Fortier, who served as Global Affairs Canada’s assistant deputy minister responsible for security, consular, and emergency management prior to her retirement in 2016, said the duty-of-care issue is a “very live issue.”

“There is no question that it is more top of mind now than it was in the past,” she said. “No one wants to order an officer into a place where they might not come back or they might be injured.”

She said the recent Federal Court decision continues a “long string” of cases involving the post-9/11 context and return to Canada.

“In each of those, everyone predicted that it would change things and it didn’t,” she said.

She said that the repatriation of the women and children had to come, but the question of the men is a more difficult one for potential public safety reasons.

“It’s going to be a really difficult security question,” she said, noting the situation is unlike many other consular cases as the Kurds who have control over the camps want to offload all the detainees.

“It is an odd situation,” she said, noting that it is unlikely that a similar case will have to be dealt with in the future.

Fortier said the situation will likely be resolved by Global Affairs and the security agencies, with the possible input of the defence department, before winding up on Trudeau’s desk.

She also noted the concern of the Yazidi population in Canada. In 2016, the House of Commons passed a motion that recognized that ISIS was committing genocide against Yazidi people. CBC News reported that survivors of the genocide who have resettled in Canada feel “heartbroken and betrayed.”

She said it is not always possible for the government to have a positive obligation to provide consular assistance, noting that could require Canada to repatriate a Canadian abroad who simply runs out of money.

Former diplomat Gar Pardy, who was the director general of the consular affairs bureau in the foreign service, said he doubted that the government would be interested in using the Federal Court’s decision as a foundation to change its consular policy.

He said that is why he thinks the government will appeal the decision.

Regardless of how the court process ends, Pardy said the government should be repatriating its citizens in northeastern Syria.

“The Canadian government should join what other governments have done,” he said, noting that many of Canada’s allies have repatriated their citizens who were in Syria. “Why the Canadian government has not followed this path—it just doesn’t seem to make any sense.”

The NDP and Green Party have called on the government to move forward on repatriation.

Source: Repatriation order for men in Syria raises questions about Canada’s consular obligations

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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