June 26 is International Day in Support of Victims of Torture -- a day that requires reckoning.
Today we recognize the human beings who fall prey to torturers. Yearly, torturers show increasing ingenuity finding ways to inflict maximum pain and maximum suffering -- with or without visible scars. A torture victim may never completely recover the "wholeness" of their lives -- but they benefit from support in rehabilitation, redress and compensation, as they seek to repair and rebuild life. Too many, like Canadian Zahra Kazemi, die abroad at the hands of their torturers.
Legal redress is particularly important. It re-empowers the victim or their family -- it allows them in some part to reclaim their dignity, confront their torturer or the torturing regime, and receive some justice. Torture degrades and dehumanizes the victim. Torture also dehumanizes the torturer and the society which permits torture. Redress is an important component morally and legally, in the fight against torture and impunity.
Canada and other international states signed laws like the UN Convention Against Torture, because they recognized that within each human being there lay a fundamental dignity that is not conferred by any State -- i.e. the right not to be tortured is each human being's birthright. No state had a right to violate that inherent dignity. This is the beauty of contemporary international law -- it recognizes that regulating state-to-state behaviour is not the end of the story: It is equally crucial to recognize the rights of human beings, and regulate how states may treat individuals.
And so, torture chambers were supposed to be relegated to the past. Torture was never again to be a justifiable tool of the state. No individual no matter how reviled, and no crisis no matter how grave, could ever again justify the state's use of torture.
So, how is Canada doing when it comes to torture?
The good news -- torture is criminalized in Canada, and the Government consistently repeats that Canada takes its international human rights commitments seriously. To its credit, Canada held two federal inquiries into the torture of four Arab-Canadian men held abroad -- Maher Arar; and Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyad Nurredin -- men who were kept in dank small chambers and subjected to horrific treatment -- and the findings of those inquiries revealed that Canadian officials, through errors and mistakes in sharing information with foreign agencies known to torture, contributed to torture.
In Maher Arar's case Canada apologized and provided compensation -- important components in satisfying our commitment toward redress and rehabilitation. However, there has been no official apology or compensation as yet in the case of the other three men, and they are currently suing in Federal Court.
Canada has yet to hold a full thorough public inquiry into allegations that we -- however unintentionally -- transferred Afghan detainees to the risk of torture in Afghanistan. A public inquiry is necessary if indeed we handed over human beings to be tortured, and to identify and rectify our systemic gaps that may have allowed such injustice and error.
Ministerial Directives suggest a 180-degree departure from the legal prohibition against information procured from torture. Now, it seems the Government is willing to "share" information received from foreign agencies procured through torture. This is particularly concerning given our legal commitments to prohibit torture and the fruits of torture.
We should heed past lessons from our two Federal Inquiries, and even consider the findings of FBI interrogators and Senator John McCain -- himself tortured as a prisoner of war -- who argue that legal interrogation techniques provide the most reliable information, and have been the most useful in the U.S. counter-terrorism effort.
Canadian courts have ruled that victims of torture in Canada cannot bring civil actions against foreign states in Canadian courts. Is there any proper justification today to argue that state immunity bar suits against foreign States for torture? Laws have upheld injustice in the past -- such as apartheid, gender discrimination, colonialism -- but we evolved. When it comes to torture we arguably have the benefit of hindsight and even foresight -- so why continue to uphold laws that deprive victims of redress?
We already know that the mantra of "equality among nations" doesn't prevent suing for commercial wrongs (i.e. when money is owed), or even terrorist acts, or even torture committed by a foreign agent within Canada. Allowing civil suits in Canada would not result in floodgates of litigation because we would follow all the rules of finding the appropriate forum -- including existence of evidence and location and willingness of participating witnesses.
So why prevent a victim who has proof of torture -- particularly one who is connected to Canada through citizenship and is unable to sue in the courts of the torturing State -- to sue here? Especially when international legal experts argue that UNCAT demands that civil redress be provided to victims. The lack of legally enforceable redress rights does not help victims and does not help to end impunity.
Canada itself does not torture and speaks out against torture -- this is good. But we may be missing the mark with some of our actions and omissions to support victims and condemn torture wherever we find it.
Looking at our world today, is it still axiomatic that torture is not a justifiable tool of the State?