The National Level

7 Canada

8 In Khawaja, the applicant challenged the constitutionality of his indictment under the Terrorism Section, Part II.1 of the Criminal Code and according to s. 52 of the Constitution Act, 1982 and s. 2 of the Charter of Rights and Freedoms, 1982 (Charter).13 In its ruling, the Court explicitly placed the Anti-Terrorism Act within the international context of international terrorism and noted that “ . . . there is a developing context, both domestically and internationally, in which any consideration and evaluation of the legislation in question must be undertaken.”14 It identified, in the analysis of legislative intent, that according to Anne McLellan, then Minister of Justice and Attorney General of Canada, “criminal sanction may not be enough”15 to deter terrorist suicide bombing. Moreover, in its reasoning, the Court compared domestic with international law, namely criminal law, humanitarian law, and the law of crimes against humanity, when addressing the difference between motive for a crime, which is non-justiciable under all these laws, and intent (mens rea) which is a crucial element of crime.16 Yet, at the end of the day, the Court shied away from qualifying the legislation as a matter of protecting national security: “. . . we believe that this characterization has the potential to go too far and would have implications that far outstrip legislative intent.”17 To the contrary, it cloaked Khawaja in the safe context of domestic criminal law and consequently produced a judgment focusing on “the freedom-protected aspects of the lives of those on whom any shadow of suspicion may fall, with or without justification.”18 It is not a ruling on terrorism and national security, and national security concerns do not make it to a Charter s. 1 test.

9 Unlike in Khawaja, the Court in Charkaoui did tackle the constitutionality of the security certificate in terms of national security. The Court grappled with the question of “How Do Security Considerations Affect the [Charter] Section 7 Analysis?”19 It recognized that:[m]ore particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. . . . Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.20

10 Nevertheless, the consideration of national security did not lead the Court to a different type of reasoning. Similar to Khawaja, the Supreme Court of Canada implicitly recognised the international nature of terrorism, at least the conflict of law framework governing terrorism, and re-iterated the state’s duty to comply with its international agreements. Equally, as in Khawaja, it refrained from contemplating particular conflict of law issues, namely the interface between domestic criminal law and international criminal law and armed conflict. The only reference to the law of war21 is of secondary significance and indirect.22

11 In Khawaja, the applicant was a Canadian citizen, a fact that would exclude the application of the law of war and trigger jurisdiction under domestic law. In Charkaoui, however, one appellant, Adil Charkaoui, was a permanent resident, while the two co-appellants, Hassan Almrei and Mohamed Harkat, were foreign nationals at the time who had been recognized as Convention refugees.23 The appeal, which was based on immigration law, dealt with the detention of foreign nationals and the differential treatment of citizens and non-citizens.24 The Court, however, did not entertain the possibility of raising the question in the context of the law of war. Had it identified terrorism as an act of armed conflict, such an interpretation might have been required to determine whether the non-citizens in this case had been enemies of Canada and, as such, whether they had been civilian or combatant enemies. Thus, like Khawaja, Charkaoui also referred the issue back to Parliament, as a matter for legislation. This approach is re-iterated in the two relevant and significant recent cases of Hape and Khadr. In the latter, the Court reaffirmed its opinion in R. v. Hape25: “The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law, do not extend to participation in processes that violate Canada’s international human rights obligations.”26

12 Clearly, neither the Canadian Parliament (Anti-Terrorism Act) nor the Courts are yet ready to pigeon-hole terrorism as a matter also pertaining to the law of armed conflict. At the other end of the spectrum are the American judicial decision in Hamdan and the legislation of the MCA, and the German complaint in Rumsfeld & Tenet, both representing an approach different from the Canadian examples.

The United States

13 In Hamdan, a Yemeni national alleged to have been an al-Qaeda member, who was apprehended in Afghanistan and detained at Guantánamo Bay, challenged the legality of his treatment by the US as per the law of armed conflict. Since the US was engaged in an armed conflict in Afghanistan, and in spite of the US position that persons apprehended during that activity had been “unlawful combatants”27 and were therefore not entitled to the protection of the law of armed conflict, the case has clearly been pigeon-holed as pertaining to the law of armed conflict.28 It accords also with the characterization of 9/11 by the UN Security Council (SC) Resolution 1368 (2001), based on the UN Charter Ch. 7, which authorized the NATO operations in Afghanistan on the grounds that Afghanistan was a state host to terrorists.29 The UN has thus lent credibility to the US claim against the exclusivity of international criminal law as the legal framework to address acts of terrorism.

14 Applying the law of armed conflict to terrorism does not obviate human rights laws and the protection of the individual. In Hamdan, the US Supreme Court (USSC) found international law to be judicially cognizable in US courts by way of reference in an Act of Congress.30 The Court determined that the law of armed conflict, including the 1949 Geneva Conventions (and therefore also Common Article 331 providing for the protection of the individual civil person and the corresponding duty of the armed forces) was applicable to the treatment of detainees. It found, inter alia, that the relevant military commission established by the President was unlawful and lacked power to proceed since it was incompatible with the standards of Common Article 3.

15 As in the Canadian cases, this implied that the legislation pertaining to the military commissions must be amended. Indeed, the Executive responded to the Hamdan judgment by instructing the Defence Department leadership to comply with Common Article 3 provisions.32 The administration’s revision of the MCA reaffirmed the disputed characterization of the non-state combatant as unlawful combatant by expanding it, retroactively eliminated the right of habeas corpus for alien enemy combatants (a violation of the legal principle against ex post facto criminalization) and limited the ability of individuals to seek protection under the Common Article 3 in certain proceedings.33 Practically,[m]any of the enumerated crimes are composites of rules drawn from the law of international armed conflict and the law of non-international armed conflict. While these two bodies of law have converged to a degree, significant differences remain. . . . [B]ecause the US views the conflict with Al-Qaeda as a non-international armed conflict, many of the enumerated crimes would not qualify as war crimes as traditionally understood given the narrower scope of rules applicable in such conflicts under common Article 3 of the Geneva Conventions. . . . Certainly, international law provides no privilege to kill in a noninternational armed conflict; however, this simply means that the person could be held criminally responsible under ordinary domestic law, not the law of armed conflict.34

16 At the same time, the MCA recognized the constitutional judicial power of the USSC and the US lower federal courts as extending to the treaties of the US. Moreover, the MCA criminalized certain serious violations of common Article 3, thus incorporating the Article in domestic law with regard to “an armed conflict not of an international character.”35 However, it omitted reference to the Hamdan judgment’s requirement of “judicial guarantees which are recognized as indispensable by civilized peoples.”36 In retrospect, Hamdan led directly to Boumediene where the USSC found that the Guantanámo detainees’ constitutional entitlement to meaningful habeas corpus review by federal civilian judges had been violated. It also calls on the other branches of government to produce a “workable” concept of terrorism while acknowledging that such task may in the future fall within the purview of the judiciary:Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. . . . The political branches, . . . can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. . . . It bears repeating that our opinion does not address the content of law that governs petitioners’ detention.37

Germany

17 The Rumsfeld & Tenet complaint, filed in Germany38 on behalf of nine Iraqi citizens incarcerated in Abu Ghraib, Iraq, and one Saudi national held in Guantánamo Bay, Cuba, and in the name of a long list of international interests and interesees, alleged torture and war crimes in the said prisons. It also raised questions regarding the impact of the revised (2006) MCA on Germany’s duties of comity and “complementarity” in international law,39 as well as the culpability of lawyers when in the service of their government.40 The complaint, which is still pending, was filed under Germany’s 2002 Code of Crimes against International Law (CCAIL) adopted consequent to Germany’s adherence to the treaty establishing the International Criminal Court (ICC). The complaint brands the issue as a matter of human rights law in general, particularly international criminal law (which has a nexus to humanitarian law [jus in bello]). Investigation of the complaint was denied on several grounds, including the inappropriate exercise of Germany’s extra-territorial jurisdiction, lack of evidence, potential encouragement of future frivolous complaints, and a vague reference to comity.41 The complainants appealed in November 2007; a decision is still pending. The complaint has largely been dealt with by the German federal prosecutor as a matter of German criminal law. It is too early to determine where the case fits on the spectrum of levels of governance regarding the selection of types of law.

18 Nevertheless, it is reasonable to expect that issues concerning the correspondence of domestic and international law, as well as international criminal law and the law of armed conflict pertaining to the definitions of war versus terrorism, will unfold as it proceeds.

Israel

19 The Barak Decision should be placed somewhere along the legal spectrum closer to the American and German extreme rather than the Canadian side. It goes farther than the American examples in an attempt to reconcile the existing tension between domestic and international law, and among the various types of international laws, and seeks to clear the cloud shrouding the politics, and legal lacuna, surrounding terrorism. Unlike the Canadian cases, the HCJ dares to address the intricacies of the new situation head on. In fact, it has no other option available.

20 The Barak Decision came in response to an application by two Israeli human rights organizations submitting that the Israeli policy of targeted killing was patently illegal, contrary to international law, the law of the State of Israel, and the fundamental principles of human morality.42 In the context of this paper, the Barak Decision stands out in its explicit two-prong approach: the Court asked itself which law applied to the case, and considered the legal applicability of a new third status of international personality (in addition to civilian and combatant). Having addressed these issues, it then interpreted and applied the extant legal provisions. For instance, it considered the test of proportionality, judicial review, justiciability, etc.

21 Unlike the Canadian, and more similar to the American and German, cases there was no disagreement as to the armed conflict contextual nature of this case. Mainly, the applicants maintained that the governing law was that of non-international armed conflict (to the exclusion of the law of international conflict) and the law of foreign occupation. The latter gave rise to the duty of the occupant to police and enforce the law within the territory occupied in accordance with the Fourth Geneva Convention on the protection of civilian population and its two additional protocols of 1977.43 While recognizing the conduct addressed by the policy of targeted killing as terrorism, the appropriate counter-terrorism policy must fall under international criminal law and Israeli national emergency legislation. In the alternative the international law of armed conflict recognized only two international personalities — combatants and civilians.44

22 The applicants’ submission led the Court to question whether there existed a third category of “unlawful combatants” and within it to adopt a position with regard to the yet international legally incomplete definition of “hostile act.”45 The Court then turned to the application of this position and asked whether terror organizations and their member fighters were combatants entitled to rights under the law of armed conflict. Were they civilians who directly participated in the armed conflict or, rather, neither combatants nor civilians? “What, then, is the status of these terrorists?”46 It determined that the status of an individual person as an “unlawful combatant”47 was a matter pertaining not only to national criminal law but equally to the international law of international armed conflicts.Civilians who are unlawful combatants are a legitimate object for attack, and hence are not enjoying the rights of civilians who are not unlawful combatants, provided they are participating concurrently and directly in the hostile acts. As we saw, they are also not enjoying the rights of combatants. For instance, the law of prisoners of war does not apply to them.48

23 Similar to the other national courts reviewed, the HCJ refrained from rendering judgment on this question:We will not adopt a position in the question whether it is desirable to recognise this third category. The question before us is not of normative law but of extant law. In our opinion, regarding everything in the matter of the extant law we do not have sufficient data to enable us to recognise the existence of this third category. This, according to the extant state of the international law, whether conventional or customary [ref. to Cassese]. It is difficult for us to see how it would be possible to recognise a third category in the interpretive framework of The Hague and Geneva Conventions. . . . Nevertheless, a new reality sometimes requires new interpretation. Rules developed at the backdrop of a reality that had now changed will now have to receive a dynamic interpretation which will adapt them, in the framework of agreed rules of interpretation, to the new reality [references to previous HCJ decisions]. In the spirit of this interpretation, we shall now approach the laws of international customary law dealing with the status of civilians who are also unlawful combatants.49

24 The essence of the judgment in the Barak Decision boils down to the unanimous judicial conclusion that, under customary international law, as much as it was inappropriate to determine a prioiri that every targeted killing was forbidden, it was equally inappropriate to determine that every targeted killing was permitted. While the laws applying to such policy were determined by customary international law, the legality of each single attack in the execution of the policy must be determined according to rules on a case by case basis.50 Although criticized for its evasiveness and for dangerously throwing out of balance the international legal distinction between combatant and civilian51 and remembered for the unfortunate impractical requirement of the state to have “founded information”52 prior to classifying the status of a civilian caught in hostilities,53 the judgment will most likely become a reference point (to follow or distinguish) in future adjudications by both Israeli and other courts. It bravely breaks ground by tackling head-on the grey area wherein the distinction between civilian and combatant in the twenty-first century’s reality of armed conflict has become increasingly blurred. Its emphasis on, and test prescribed concerning, the independent judicial review in the ex post facto evaluation of any targeted killing, will most likely serve as a tentative model.

The International (European Regional) Level

25 Unlike the Canadian courts, yet similar to the other national court cases and the legislations reviewed above, the European Court of First Instance (CFI) Yusuf, Kadi, and Ayadi decisions appear to be “trapped” in an entanglement of international criminal law and the law of war. The decisions resulted from a petition by three EU residents who were listed on the UN Sanctions Committee list of targeted persons and its consequent incorporation within Community law. The list features as one of the tasks mandated to the Sanctions Committee established pursuant to UN Security Council Resolution 1267 (1999).54 The petitioners sought the annulment of their blacklisting by arguing that it infringed upon their rights to property, fair hearing, and effective judicial remedy. One applicant further argued that the EU lacked competence to adopt the listing regulation.55 The cases thus raised the issue of the powers of the Sanctions Committee and questioned the extent to which the EU member states, as UN member states, the EU, and the EU Courts, were bound to comply by UNSC resolutions.56 In Yusuf, Kadi, and Ayadi, the CFI found UNSC resolutions to be taking precedence over community law, including over fundamental rights as protected therein, and that the community and its courts were bound by UNSC resolutions. It rejected the argument that community law was autonomous from UNSC resolutions (i.e., UN Charter obligations). The Court equally found that the UNSC Resolution did not violate jus cogens.

26 Two significant observations concerning the convergence of levels of governance in legal matters of terrorism arise from this case. First, the Sanction Committee’s procedures, which have been criticized for lack of transparency and due process safeguards,57 were potentially frustrating certain member states’ compliance (e.g., regarding constitutional incompatibility). In this regard, the Canadian courts were probably wise to refrain from digging too deeply into international criminal law. Second, the UNSC Resolution 1368 (2001), which, based on UN Charter Ch. 7 authorized NATO operations in Afghanistan on the ground that Afghanistan had been hosting terrorists, impinged on the exclusivity of international criminal law in matters of terrorism. It opened the gates to treat terrorism also in the framework of the international law of armed conflict. In combining the rationale of both UNSC resolutions (regarding the Sanction Committee and Afghanistan, respectively), a new legal situation has emerged wherein the boundaries between international criminal law and the law of war were blurred. Consequently, if the UNSC commands legislative supremacy, adjustments are warranted at the level of members’ national legislations (including members of the EU). National courts will also be called on to take these matters into consideration.