Saturday, May 1, 2010

Parliamentary Privilege and National Security in Canada

(We welcome IntLawGrrls guest/alumna Noemi Gal-Or back for this guest post. Noemi, in turn, extends her thanks for the invitation to contribute to the blog.)

That the French saying ‘à la guerre comme à la guerre’ doesn’t fit democracy ‘à la canadienne’ was made clear this week in the ruling by the Hon. Peter Milliken, Canada’s Speaker of the House of Commons, in the Afghan detainees case. Minister Milliken found that Parliament has the right to access uncensored documents on the case because

[t]he house has long understood the role of the Government as ‘defender of the realm’ and its heavy responsibilities in matters of security, national defence, and international relations. Similarly, the Government understands the House’s undoubted role as the ‘grand inquest of the nation’ and its need for complete and accurate information in order to fulfill its duty of holding the Government to account.

Accordingly, he ordered government to devise within two weeks a method of information sharing that also guarantees the protection of legitimate national security concerns.
The Afghan detainees case has been brewing for a long time. It concerns allegations that the Canadian Forces in Afghanistan have transferred individuals detained by them to the Afghan local authorities, knowing that detainees, including child-detainees, were facing the likelihood of torture. The Canadian government has been challenged with such allegations in the federal court by Amnesty International Canada and the British Columbia Civil Liberties Association. More disturbing to the government, however, were the allegations made by one of its employees, Richard Colvin of the Department of Foreign Affairs and International Trade, posted in Afghanistan from spring 2006 to early fall 2007. Mr. Colvin studiously communicated his related IHL concerns to his supervisors. The legal context is broad, including classic IHL documents as well as post-9/11 Afghanistan specific material and bilateral Canada-Afghanistan agreements concerning the transfer of the detainees.
A previous war-related Canadian scandal dates back to 1992-93 when, during the United Nations peacekeeping mission in Somalia, IHL violations by members of the Canadian Forces were followed by the Force’s withholding of information from the public as well as altering information. A full and open public inquiry was consequently established leading to the 1995 disbanding of the prestigious Canadian Airborne Regiment.
Unlike the Somalia debacle, the Afghan detainees affair has triggered a fierce and messy political struggle between opposition and government. While in the Somalia case, it was one organ within one ministry (Department of National Defence) that was found responsible for the system’s irregular performance, in the Afghan detainees case, the re-calibration of the entire system of government in matters national security is at stake. Mr. Milliken’s ruling, which represents the most recent chapter in the Afghan detainees saga, has been referred to as 'historic' in reminding Canada and its government that the essence of democracy hinges on the separation of powers.
While in itself, the Canadian Afghan detainees case is not a rarity in the international post 9/11 context of armed conflict, the Milliken ruling nevertheless is. It represents a fine, succinct, and explicit affirmation of the standard to which a democracy remains bound even in times of serious threat to national security. In its ‘simplicity’, the ruling serves as a lightning rod reminding that democratic resilience is tightly connected to jus in bello. Therefore, the Milliken ruling is relevant to the democracies fighting the GWOT in Afghanistan, but also to whenever and wherever they are engaged in armed conflict and preoccupied with matters concerning national security.

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