How to hold rights abusers to account
Magnitsky Law’s passage should only be the beginning, says Sukanya Pillay
The Magnitsky Law alone should not be the last word on justice. Parliament should amend the State Immunity Act to allow civil lawsuits against foreign officials for torture. Doing so would tell the world that Canada is sincere about recognizing the “sacrifice” of victims and protecting activists.
Last month, Canada passed the Justice for Victims of Foreign Corrupt Officials Act (Sergei Magnitsky Law), an act to end impunity of foreign officials for gross human rights violations and financial corruption.
The act enables Canada to sanction individual foreign officials who have engaged in extrajudicial killings, torture, and corruption or collusion.
Although it appears to focus on Russian officials, Canada has pledged to apply it globally: recently Canada passed sanctions against 30 Russians, 17 Venezuelans and three South Sudanese.
The act requires Canadian and foreign financial institutions operating in Canada to determine “on a rolling basis” whether they have assets belonging to listed foreign officials, and to report the details to the government.
The act also requires every person in Canada to disclose their beliefs to the RCMP or CSIS, about any financial holdings or dealings of a listed foreign official.
Before listing, the Governor in Council must be “satisfied on reliable and appropriate evidence” to list, but this is not a bright-line threshold.
Foreign officials who believe they are wrongly identified can appeal to the foreign affairs minister, but it is currently unclear whether they will be provided with reasons for either the initial listing or the appeal decision.
The act seems to revolve in a political orbit. Will all victims or representatives have access or influence with the Governor in Council? How will Canada ensure the act is applied consistently with respect to perpetrators and victims seeking justice?
Are we defining justice through economic sanctions as a practical alternative to a judicial finding of guilt?
By sanctioning individuals, the Magnitsky Act wisely avoids the mistakes of targeting an entire population for the actions of a few. But even individual sanctions can harm innocents as full due process norms are absent.
Under the UN 1263 terrorist listing regime, Canadian Abousfian Abdelrazik was wrongly listed, with severe consequences that included having his assets frozen, and a travel ban that saw him stranded overseas, separated from his children and cruelly treated by local authorities.
At present, a number of Canadian children are mistakenly named on No-Fly lists.
Human rights lawyer Paul Champ, who represented Abdelrazik and advises the “No-Fly List Kids” group says, “the goals of the Magnitsky Law are important when there is so much impunity for serious human rights abuses around the world. But real accountability comes from the rule of law and due process free of political factors.”
Are sanctions and travels bans enough to ensure accountability or justice for victims and their families?
In 2003, Canadian photojournalist Zahra Kazemi was photographing protesters outside Tehran’s notorious Evin prison, an action protected by international human rights law.
However, Iranian officials ordered her arrest and detention. Kazemi was beaten, sexually abused, tortured and died. An Iranian trial acquitted the one accused.
Kazemi’s Canadian son Stephen Hashemi sought justice for his mother in Canada. He brought a civil lawsuit for her torture and death in Iran against three Iranian officials: the Iranian head of state, the chief public prosecutor of Tehran and the deputy chief of intelligence of Evin prison.
The case went to the Supreme Court of Canada in 2014. A majority of six judges ruled that the State Immunity Act (SIA) barred the suit.
Although the SIA permits some exceptions (like breach of commercial contract) to sue foreign officials, the court held that “torture” was not such an exception.
The court also noted that Parliament had amended the SIA in 2012 to include an express exception to sue foreign states for terrorist acts, but had not introduced a torture exception.
Justice Rosalie Abella dissented. She would have allowed the lawsuits against the two foreign officials, the prosecutor and deputy chief of intelligence. She further noted that immunity under the SIA was only for “official government acts” and torture, which is absolutely prohibited as a peremptory norm of international law, could never be an “official act” attaching immunity.
A foreign perpetrator who is not captured by the Magnitsky Act in Canada, would enjoy impunity vis-à-vis a Canadian victim.
Canada is right to pursue justice for victims of gross human rights violations.
It is time to close the circle and amend the State Immunity Act to allow civil suits for torture, and provide access to justice directly to victims.