A striking aspect of the verdict, however, although it was given little attention in the media coverage, was the rationale given by Justice Douglas Rutherford for rejecting Khawaja’s defence. That defence was that Khawaja thought the detonator was for use in fighting the NATO occupation of Afghanistan — for example in triggering the improvised explosive devices commonly used by the Afghan resistance. This activity, the defence argued, fell outside the definition of “terrorist activity” in the legislation, which excepts “an act or omission that is committed during an armed conflict. . . in accordance with customary international law or conventional international law applicable to the conflict.”
Judge endorses Canada’s war in Afghanistan
The Ontario Superior Court judge acknowledged “an abundance of evidence that Momin Khawaja’s central objective was to play a role in the fighting in Afghanistan….” But in ruling that any such role would be “terrorist activity”, he explicitly underwrote the excuse given by successive Liberal and Conservative governments for Canada’s Afghan war.
The judge adopted the justification given for the initial imperialist attack on Afghanistan: “In response to the attack on the twin towers in New York on 9/11, the U.S.A. and the U.K. sent troops and equipment into Afghanistan with the objective of capturing Bin Laden, destroying al Qa’eda and removing the Taliban regime.” (paragraph 114 of the judgment) Then, citing a series of United Nations Security Council resolutions subsequently endorsing the assault on Afghanistan and authorizing continued occupation and fighting by the NATO-led International Assistance Security Force [ISAF], the judge declared that he took “judicial notice as well, that Canada, along with other North Atlantic Treaty Organization countries, has contributed personnel and resources to the ISAF and that to date some 100 of Canada’s armed forces personnel have been killed in fighting with insurgent forces opposing the initial American and British and subsequent United Nations intervention in support of a reconstructed and democratic Afghanistan.” (paragraph 124)
(By “judicial notice”, the Judge was referring to the legal doctrine that courts, without hearing evidence on the matter, are entitled, as the Judge says, to “resort to certain notorious facts . . . which I think are beyond dispute among reasonable people.”)
And he concluded:
“. . . it seems to me beyond debate that, subject to the applicability of the exclusionary ‘armed conflict’ clause, those who support and participate in the insurgent armed hostilities against the civilian population, the government, and government and coalition forces attempting to reconstruct and maintain peace, order and security in Afghanistan, are, by definition, engaging in terrorist activity. Seen through the lens of a court of Canada, a Member State of the United Nations, I do not think it can be viewed otherwise. News reports of insurgent attacks in Afghanistan are characterized daily in the news as ‘terrorist’ and not surprisingly since, subject to the armed conflict clause, they meet the definition of terrorist activity in the Criminal Code. It seems self-evident that the armed insurgency in Afghanistan is
- intended in whole or in part to intimidate the population or that segment of it that supports the legitimate government and those assisting it in its reconstruction and establishing of peace and order with regard to their security, and intended to compel the population, the government, NATO, the United Nations and all those agencies supporting the reconstruction and democratization efforts to refrain and desist, and
- that consequential death and destruction is caused and reported throughout the world on a daily basis.” (paragraph 125)
Largely on that basis, the judge held that the “armed conflict” exception in the Anti-Terrorism Act had no application to the case. He quoted his ruling in a motion on the defence argument during the trial:
“The exception shields those who do acts while engaged in an armed conflict that would otherwise fit the definition of terrorist activity from prosecution as terrorists as long as the acts are within the internationally recognized principles governing warfare. Momin Khawaja was not so engaged.”
In other words, Canadian troops could not be convicted of “terrorist activity” while fighting in Afghanistan. But Afghan insurgents fighting in self-defence and to expel occupying armies — or those assisting the insurgents — could be so charged and convicted....
The Khawaja verdict makes clear that the “terrorist” label can be slapped on any armed resistance to Canadian and NATO troops in Afghanistan or elsewhere. It ominously echoes the reasoning of the Bush Administration in another case involving a young Canadian Muslim — Omar Khadr, the Canadian child soldier who has been imprisoned and tortured by the U.S. military in Guantánamo since 2001, and is now charged with killing a U.S. soldier in Afghanistan during a U.S. attack on his family’s residence that killed his father. There is now eyewitness evidence that Khadr did not shoot the soldier in question. And there is a mounting movement in Canada demanding the return to this country of this last remaining citizen of a Western power being held in Guantánamo.
However, even if Khadr is returned to Canada what is his likely fate? He may not be prosecuted for murder. But following the judge’s reasoning in Khawaja’s case, is it excluded that Khadr, as a non-military “enemy combatant” in Afghanistan, could be considered a “terrorist” in Canadian law and subject to the extreme penalties in the Anti-Terrorism Act?
[ 04 November 2008: Message edited by: M. Spector ]