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

2023/02/02 Leave a comment

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

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Livermore, Welsh and Party: Ottawa shirking duty to help Canadians stuck abroad

2022/02/02 Leave a comment

The rhetoric versus the reality of consular assistance:

There is little that is more predictable than the soothing words spoken by Canadian governments when citizens are in difficulty in foreign countries. “We are fully aware;” “we are working to help;” and “we are doing everything to see them back safely in Canada” are among the familiar refrains.

For many Canadians in serious difficulty, the reality is different. Serious problems are not resolved quickly, communications and transportation are often difficult, legal problems are complex and even longer than in Canada to resolve, and frequently foreign governments do not see the problems of Canadians as warranting urgent action.

There are daily stories and reminders of such experiences and as recent ones demonstrate they are often matters of life and death. Since the 2015 election of the Trudeau government, there have been three deadly and tragic stories. In each, the actions—or lack thereof—by the government have contributed to the problems.

In 2016 two Canadians, John Ridsdel and Robert Hall, were executed in the southern Philippines when the government refused to initiate appropriate and available action to obtain their release from kidnappers. Two other Canadians, Michael Kovrig and Michael Spavor, between 2018 and 2021, spent more than 1,000 days in the prisons of China. Ottawa, once again, refused to initiate appropriate and legal action to see them freed and returned home. It was the action of the United States that led to their release.

Today, nearly 50 Canadian children, women, and men have spent over two years in “filthy, deeply degrading, life-threatening, and often inhuman conditions” in detention centres in northern Iraq and Syria, in the words of Human Rights Watch 2021 annual report. Again, the Canadian government has refused to take action to have these Canadians returned to Canada.

This, despite the willingness of the authorities administering the detainees to have the Canadians returned. As well, other governments, including the United States and allies in Europe and elsewhere, have made arrangements for the repatriation of their citizens from the same areas. The United Nations and the House Foreign Affairs Committee have urged Canada to “pursue all options possible” to repatriate its citizens with the UN placing Canada on a “list of shame” for its lack of action.

So far only a four-year-old child has returned to Canada, initially without her mother, but in the face of court action, the mother was issued a passport and returned home. Who made the arrangements for this child? Not Canadian authorities but a former American diplomat who went to the region and made the arrangements.

Some of these Canadians have now filed an application with the Federal Court seeking relief from the lack of action by the Canadian government. The case is yet to be heard but it is hoped the court will force the government to take the necessary action to have these Canadians returned home using the mobility and legal rights guaranteed by the Charter of Rights and Freedoms.

The government argues it is too dangerous for Canadian officials to go to the region to make the arrangements for the repatriations. This is fallacious—other governments go to the region; international humanitarian organizations operate in the area daily; and the authorities administering the regions are willing and able to assist. But the government maintains Canadian officials are without the ability to do so.

The government’s reasons for not helping are specious and are meant to disguise its complete unwillingness to help this specific group of Canadians. They are the reminders of the thousands of foreigners who rushed to the region in support of the early success of the Islamic State of Iraq and the Levant (IS/Daesh) in 2014. Countering military action by local governments supported by the United States and Russia put an end to IS in the region.

Thousands of the intervening foreign nationals were killed and thousands of other, and women and children, especially, were detained. For the most part, only the Canadians have been refused help by their government. In doing so, Ottawa conveniently ignores these persons are Canadians and are legally entitled to the support and assistance.

The government’s position finds some measure of public support and, importantly, both the RCMP and CSIS oppose the return of these detainees to Canada citing the impact on their responsibilities. Both organizations have a long history of opposing support for Canadians who have travelled to countries in conflict, some for legitimate reasons and others, like the detainees in Iraq and Syria, for misconstrued or illegal reasons. The RCMP and CSIS ignore the scope within our criminal justice systems for possible punishment in Canada.

Investigations by commissions of inquiry and various court applications provided ample examples of this opposition by the RCMP and CSIS. But tens of millions of dollars have been paid to the victims of this opposition and more is pending. For the small group of Canadians in Iraq and Syria it is now time for the government to accept its obligations and make the arrangements for their return to Canada.

Discretion must not be a cover for discrimination.

Dan Livermore is the former director general for security and intelligence. Michael Welsh and Gar Pardy are former directors general for consular services.  All three have served as ambassadors or high commissioners.   

Source: Ottawa shirking duty to help Canadians stuck abroad

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The Liberal government’s foreign policy cop out

2019/12/18 Leave a comment

The has been a continuing refrain over the last 20 to 30 years that Canada needs a  “muscular” foreign service and an infusion of funding to strengthen the foreign service. Yet no government, Liberal or Conservative, has done so given domestic priorities (including trade).

So while it is valid to make these arguments, it would be far better to be more focussed on specific areas where the current foreign service should focus on than pining for something that no government is likely to consider.

And of course, a major factor behind the success and public support for our immigration system is precisely due to it focussed on economic class immigrants, where self-interest comes most into play:

Every October, Canada invades Istanbul in a way that might seem downright crass to Canadian sensibilities. The city’s historic Beyoglu district, one of its richest and most liberal, home to hundreds of bars, restaurants, galleries, clubs and, at one time, the Canadian consulate, transforms into a red and white extravaganza, its cobblestoned alleyways adorned with posters announcing the yearly Canada Edu Days fair.

Now, if the fair feted Canada’s contributions to the world—multiculturalism, cooperation, tolerance—there would be no need for this column. Canada would be, finally, touting all those things that are increasingly, in a world infected by authoritarianism and self-interest, disappearing.

Instead, the fair does what Canada seems to do best in the world: poaching talent. As the name implies, Canada Edu Days is about studying in Canada. Every year, it pairs up Canadian colleges with thousands of young dreamers eyeing a way out of Turkey’s deteriorating economy and its socio-political morass.

That’s great; Canada needs talent, and Turkey’s remarkably talented youth are in desperate need of opportunities. But in and of itself, it’s also a feature of Canada’s failure to act responsibly at a historically critical moment: Rather than bringing what makes Canada great to the world when the world needs leadership, it is capitalizing on the chaos, siphoning off valuable human resources like a war profiteer.

This is the dark side of Canada’s pollyannaish self-image. We are great in large part because we have an immigration system that prioritizes talent over desperation. We can retreat at times of global uncertainty because we have valuable resources and a relatively small population.

But retreat should not be an option in a world where men like Donald Trump, Xi Jinping and Jair Bolsonaro are ascendant. Nor should waiting and hoping that these agents of self-interest will magically disappear and the world will go back to normal. Experts warn that is simply not going to happen. Canada should not be trying to save the world order as it was but helping to shape the world order as it will bewhen the dust finally does settle.

The Liberal government, like past governments, appears unwilling to take on that task.  If the Throne Speech was any indication, Canada’s role in the world will figure even less prominently than it has in the recent past. All the pretty words reinforced what has become the defining feature of the Liberal government on the world stage: It talks in the modernist voice about grand narratives—global peace and harmony, equality and justice—but fails to appreciate the postmodern reality of fragmentation and discord.

What we need is boldness. Canada’s foreign service is in shambles; it needs urgent reform and an infusion of funding. The Liberals may not have created the problem, but they have failed to address it and that failure has had consequences. As Jennifer Welsh, the Canada 150 research chair in Global Governance and Security and director of the Centre for International Peace and Security Studies at McGill University, told me in July, the Liberal government’s foreign policy has been “ineffective” in many cases because it lacks the “deep relationships” needed in a world where traditional alliances are unravelling.

“An operating principle of our foreign policy should be that we have to form relationships around particular issues with countries where we believe we have enough common ground to advance things together,” she said. “In the current environment, that is going to require not necessarily the usual suspects.”

Without a muscular foreign service, there is no developing those relationships. Foreign policy becomes what Daniel Livermore, senior fellow at the University of Ottawa’s Graduate School of Public and International Affairs, calls “government by PMO directive”.

“That was very much the case under Harper,” he says. ” The PMO decides something and then says to Global Affairs here’s what we’re going to do. There has been a lot more pushback from Global Affairs under Trudeau but it hasn’t been nearly strong enough.”

The problem, Livermore adds, is fundamental to the department. It lacks the “bench strength” to “offer an entirely different vision of how to do foreign policy.”

For a country like Canada, a middle power with limited heft in the world, knowledge is essential. Middle powers have to carefully pick and choose their moments and identify issues where they feel they can have a measurable impact. But instead of taking up the challenge, the Liberals have retreated into a defensive posture.

Canada should prioritize more engagement with the world at every level, from leadership to the grassroots. Here in Istanbul, it seemed a few years ago that something was about change after the Canadian consulate was shifted to a shiny new office tower in the Levent business district. It was an improvement from the dingy apartment Canada used occupy in Beyoglu, where one woman and her cat would greet visitors with listless stares. It felt as if the new consulate would be more active, more dynamic, more forward leaning.

But the early signs were there of a different kind of shift. Heavy security greeted visitors to the office tower. The C-suite feel also portended the growing Canadian dependence on trade-based diplomacy. Canada would engage with CEOs and business leaders from its perch high above Istanbul’s frenetic streets but at the expense of understanding the mood of the people.

Wouldn’t it be great if instead of a student recruitment fair, Istanbul was painted red red and white with posters announcing the opening of a Canadian cultural centre? Or a multiculturalism festival? Or an art exhibition? Wouldn’t it be great if Canada’s engagement with the world included talking to young people on the streets, the same young people who are now protesting in Hong Kong, Chile and Iraq?

That kind of engagement would mean beefing up our foreign service with people who can speak local languages, who are comfortable leaving the confines of our cozy diplomatic missions and getting their hands dirty. It would mean being bold.

Source: The Liberal government’s foreign policy cop out

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