The globalized rule of law and national security: an ongoing quest for coherence.

• Author: Fitzgerald, Oonagh E.
• Position: The Impact of International Law on Canadian Law

INTRODUCTION: THE CHALLENGE TO BALANCE SECURITY AND LIBERTY.

Ever since the United States and its allies declared the "war on terror" jurists have acknowledged the difficulty that legislators, executives and courts face in trying to balance security and rights. In a decision of the Supreme Court of Canada delivered on January 11, 2002 the Court described the daunting challenge facing democratic governments in addressing national security:

The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to meet this challenge. On the other hand stands the need to ensure that those legal tools do not undermine the values that are fundamental to our democratic society--liberty, the rule of law, and the principles of fundamental justice--values that lie at the heart of the Canadian constitutional order and the international instruments Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament's challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments. (1) National security risks including terrorism are national, transnational, and international in scope, implicate a vast range of laws, and challenge rule of law at every level. This paper explores the relationship between international and domestic law dealing with matters of national security and argues that international and domestic law relating to national security is increasingly integrated and engages an ongoing need for coherence in developing the globalized rule of law as it pertains to national security.

First, this paper lays out the international law context for national security. Second, it briefly examines five aspects of the domestic law context for national security: terrorist financing law, criminal law, immigration law, intelligence law, and protection of sensitive information. Third, the paper examines the transnational law context for national security by considering the act of state doctrine, extradition, and joint international military operations. Fourth, the paper identifies some developing international, transnational, and domestic trends in relation to state immunity. The conclusion of the paper recaps the integration and harmonization of international and domestic standards in relation to national security law and acknowledges that the quest for coherence and balance of rights and security remains a work in progress.

In an increasingly interconnected world, problems that originate abroad can easily impact Canadians. This is particularly true for international terrorism ... Combating international terrorism requires cooperation between countries where problems start and those that are affected. (2) INTERNATIONAL LAW CONTEXT

Canada is party to thirteen conventions adopted by the international community that address specific terrorist acts, five of which are deposited at the UN. (3) These conventions address acts such as hostage taking, hijacking, terrorist bombings, as well as activities that support terrorism, such as terrorist financing.

The terrorist events of September 11, 2001 generated a swift response from the international community. On September 28, 2001 the United Nations Security Council adopted Resolution 1373 (2001) (4) requiring all UN member states to prevent and suppress the financing of terrorist acts; criminalize the willful provision or collection of funds to be used to finance terrorist acts; suppress the recruitment of terrorist groups; and deny safe haven to those who finance, plan, support or commit terrorist acts.

Concurrently the G-7 Finance Ministers and Central Bank Governors met and released an action plan to combat the financing of terrorism. In October 2001, the Financial Action Task Force (FATF), of which Canada is a member, also issued Special Recommendations on Terrorist Financing that its members should apply to combat terrorist financing. These recommendations contain provisions relating to the ratification of relevant UN instruments, criminalizing terrorist-related offences, the freezing and confiscation of terrorist assets, reporting on suspicious transactions linked to terrorism, providing assistance to other countries in terrorist financing investigations, ensuring that non-profit organizations are not misused to finance terrorism, imposing anti-money laundering requirements on alternative remittance systems, and strengthening customer identification measures in international and domestic wire transfers. (5)

The UN Security Council remained seized with the struggle against terrorism and issued other resolutions pertaining to national security. (6) UNSC Resolution 1624 (2005) dealt with border, travel and passenger security, prohibiting incitement to terrorism and exhorting states to deny safe haven to terrorists. At the same time this Resolution emphasized the importance of states respecting their obligations under international law, in particular international human rights law, refugee law, and humanitarian law:

Reaffirming also the imperative to combat terrorism in all its forms and manifestations by all means, in accordance with the Charter of the United Nations, and also stressing that States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law, refugee law, and humanitarian law (7) Two fundamental questions quickly emerged from the events of 911: 1) Was international terrorism military or criminal in nature? 2) Should the international community's response be military or criminal? This entailed a deep search into what domestic and international criminal law and the law of armed conflict could bring to bear on combating terrorism. By describing this as a threat to international peace and security and calling on all states to ensure they were in a position to suppress terrorism domestically and cooperate internationally in its suppression, the UN Security Council's response suggested the international community viewed terrorism as having a double nature as both military threat and criminal activity.

As the international war on terrorism dragged on, so did an unresolved debate about its nature: was it an armed conflict justified by the right of self defence or a criminal law enforcement operation on a global scale? If the counterterrorism measures are framed as acts of self defence then humanitarian law principles apply (Geneva Conventions etc.). If the measures are more in the nature of criminal interdiction, then international and domestic human rights law apply. (8) This uncomfortable dichotomy is most apparent in relation to decisions to capture and detain or kill suspected terrorists (e.g. detention of "unlawful combatants" at Guantanamo Bay, and use of drone strikes in Pakistan and Yemen, countries that are not viewed as being involved in an armed conflict). (9) Because there are circumstances of terrorism that fit both crime and armed conflict paradigms and situations that shift between the two; domestic, transnational and international law dealing with combating terrorism, armed conflict, humanitarian and human rights standards are increasingly entwined. (10)

DOMESTIC LAW CONTEXT

1. United Nations Suppression of Terrorism Regulations

   In 2001, Canada passed the United Nations Suppression of Terrorism Regulations (11) under the United Nations Act (12). The United Nations Act is the means by which Canada implements UNSC measures not involving use of armed force, decided under Art. 41 of the UN Charter:

   ARTICLE 41--The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. (13)

   These Regulations provide for a list of individuals or entities believed to be involved in or associated with terrorist activity. They make it an offence for anyone in Canada, or any Canadian outside Canada, to provide or collect funds if they know these would be for use by anyone on the list (schedule). The Regulations also make it an offence for anyone in Canada, or any Canadian outside Canada, to deal in any way with property if they know it is owned or controlled by anyone on the list. This includes any financial service or transaction relating to such property. It also includes making property available to anyone on the list.

2. Criminal law

   After the September 11, 2001 terrorist attack the government immediately undertook an evaluation of existing federal legislation and legislative proposals that were in development. It was assessed that current legislation had to be amended in order to combat terrorism and to address the particular requirements of UN SC Resolution 1373. On October 15, 2001 the Anti-Terrorism Act was introduced as Bill C-36, "An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities in order to combat terrorism." (14) The Anti-Terrorism Act added to or modified aspects of penal law, including new definitions of "terrorist activity" that incorporated offences defined in the numerous international Conventions on terrorism that Canada had ratified as well as principles of...