Will Canada apply its immigration policy fairly in the face of the Gaza conflict?

I find these arguments somewhat tiresome, not because they are not valid but rather because they need to also acknowledge the war crimes, genocidal aims, etc by Hamas. Equally tiresome are arguments by hardline supporters of the Israeli government not acknowledging their war crimes and tolerance of extremist settler groups:

One of the most sacrosanct foundations of democracies is that they are based on the rule of law, which mandates one set of laws enforceable on all individuals—including the government itself. The notion that the law simply does not apply to an individual, or groups of individuals, is more commonly associated with corrupt dictatorships than democracies. 

Yet, in 2024 in Canada, whether the rule of law is supreme is an open question. Canada has specific laws governing who is considered admissible to the country, proscribing Canadians from joining foreign militaries, and preventing illegal support for armed forces of another country by Canadian charities. Each one of those laws has been applied in regard to some groups, and consistently violated and disregarded with others. 

The American State Department recently issued an unexpected decision regarding Elor Azaria, a former sergeant in the Israeli Defense Forces (IDF) convicted of extrajudicially killing a Palestinian in the West Bank. The decision bars Azaria, as well as his immediate family members, from entering the United States. The statement declared, “We are designating Elor Azaria … pursuant to Section 7031(c) for his involvement in a gross violation of human rights … .” 

This decision marks a significant turning point for those implicated in war crimes in Gaza under U.S. jurisdiction, and it also raises a crucial question about the repercussions of the Gaza conflict on the enforcement of Canada’s laws. 

How will the Canada Revenue Agency (CRA) handle the Income Tax Act implications for charities that fund the IDF? The CRA recently revoked the Jewish National Fund’s charitable status for directing donations towards IDF infrastructure. This raises questions about other charities that have publicly raised funds for the IDF and illegal settlements. Similarly, how will the Royal Canadian Mounted Police address provisions of the Criminal Code and Crimes Against Humanity and War Crimes Act regarding Canadians who have joined the IDF?

Additionally, Section 34(1) of Canada’s Immigration and Refugee Protection Act (IRPA) bars entry to individuals involved in violence, terrorism, or membership in related organizations. Sections 35(1) and 35.1(1) further prohibit entry to anyone implicated in human or international rights violations, including war crimes, crimes against humanity, senior officials in governments guilty of gross human rights violations, and those under international sanctions. These provisions—mirroring the American laws that barred Azaria—were broadly designed by Parliament to safeguard national security. They granted discretionary power to Canada Border Services Agency (CBSA) officers and immigration officials, but also acknowledged the potential to inadvertently affect innocent and non-threatening individuals who are meant to be treated as exceptions. 

If applied universally, these principles could restrict figures in the vein of Nelson Mandela, or even historical members of the U.S. Democratic Party due to their support of slavery. However, in practice, the CBSA has often used these provisions selectively, particularly to unjustly target and deport refugees from Muslim countries, with decisions frequently influenced by the personal biases of individual officers. This same bias has also led to the oversight of individuals who should rightfully be captured by the law.

Despite well-documented instances of systemic violence against Muslims and other minorities by members of India’s Rashtriya Swayamsevak Sangh (RSS) and Bharatiya Janata Party (BJP), Canada has not taken a similar stance against them. The RSS, a right-wing Hindu nationalist group, and the BJP, India’s ruling party, have been linked to numerous violent acts, including riots and targeted attacks on religious minorities. From 2013 to 2023, Indian immigration to Canada increased by 326 per cent, with 18.6 per cent of recent immigrants coming from India. Yet, Canada has not pursued cases of inadmissibility against individuals from these groups, raising questions about the consistency and fairness of its immigration policies.

The ongoing Gaza conflict has led to investigations by the International Criminal Court into alleged war crimes by Israel, including the targeted killing of civilians, willful suffering, and the use of starvation as a warfare tactic—all human rights violations. Additionally, the International Court of Justice has declared that Israel’s occupation and settlement expansions in the Occupied Palestinian Territory are illegal, and that there is an imminent risk of genocide. Under Canada’s Immigration Act, involvement with groups linked to these illegal settlements or with the IDF, amidst allegations of war crimes or possible genocide, could make individuals inadmissible to Canada—a measure affecting a significant portion of Israel’s population.

Our laws must be consistently applied, holding individuals accountable for human rights violations, war crimes, genocide, and crimes against humanity, irrespective of their nationality, the geopolitical context of their actions, or the political stance of the government of the day. To ensure the proper application of the law and to enable the CBSA to effectively perform its duties, a suspension of visa exemptions for travellers from Israel is necessary.

As the U.S. has taken a step towards a consistent application of its immigration laws concerning human rights violations against Palestinians, it is crucial for Canada to critically examine its own legal enforcement, and ensure that it upholds fairness and impartiality in every instance. Our nation faces a difficult test with the Gaza crisis, challenging us to confront the systemic biases embedded within our governmental institutions. Our standing as a democratic nation founded on the rule of law demands nothing less.

Washim Ahmed is a refugee and human rights lawyer, and a co-founder of OWS Law. Taha Ghayyur is the executive director of Justice for All Canada, a non-profit human rights and advocacy organization dedicated to preventing genocide.

Source: Will Canada apply its immigration policy fairly in the face of the Gaza conflict?