Earlier this month, the Supreme Court of Canada began hearing an appeal from Mohammad Momin Khawaja, a former Ottawa software developer convicted of several terrorism-related offences. Khawaja's appeal is in part focused on contesting the definition of "terrorist activity" in the Criminal Code. He argues in particular that the so-called "motive clause" (which requires the activity to be "in whole or in part for a political, religious or ideological purpose, objective or cause") is unconstitutional.
Whatever the court's decision, defining "terrorism" and its related terms will continue to be controversial in Canada and across the globe. "Few words," Australian international law professor Ben Saul complains, "are plagued by so much indeterminacy, subjectivity and political disagreement as 'terrorism'."
This is due in large part to the fact that "terrorist" is not a merely descriptive term. Once a badge of honor (Robespierre called terror "an emanation of virtue"), today it represents a powerful and negative moral judgment with serious legal implications. The terrorist designation has consequently become highly politicized, as captured in the oft-quoted aphorism "one man's terrorist is another man's freedom fighter."
The worst abusers of the terrorist label may be governments that are not liberal democracies. "The most grievous damage," LSE professor Conor Gearty points out, "has been done in authoritarian states, already repressive by nature, for whom the Western language of "terrorism" has been a propaganda godsend, allowing them to present their domestic opponents in a guise that is bound to be anathema to influential world (that is, Western) opinion..." The Syrian regime, for instance, has tried to justify the bloody crackdown on its opposition by discrediting them as terrorists.
Yet even liberal democracies can allow realpolitik to dictate which individuals, organizations and foreign states are designated as terrorists.
The U.S. State Department's list of state sponsors of terrorism, currently limited to Cuba, Iran, Sudan and Syria, is instructive. Too often, political and diplomatic pressures -- unrelated to whether a country sponsors terrorism -- have become determinative. Jonathan Kay touches on one example in a recent National Post article describing Pakistan's long history of supporting terrorism, which Western governments have been loathe to acknowledge publicly due to the country's ostensible role as an ally in the war on terror. And in March, former U.S. Senators Bob Graham (D-FL) and Bob Kerrey (D-NE) issued affidavits in support of a decade-old lawsuit launched by 9/11 victims asserting that Saudi Arabia may have played a significant role in the September 11, 2001 terrorist attacks.
For its part, Canada will soon have two lists of its own (rather than UN-mandated) terrorist designations, one of which is due to be released for the first time by September. In accordance with the 2012 Justice for Victims of Terrorism Act, Cabinet must create a list of foreign states deemed to be supporters of terror.
States on this list would have their legal immunity lifted for the purpose of being sued in a Canadian court for their terrorist involvement. One can only hope that the forthcoming Canadian list of state sponsors of terror will not be afflicted by a prioritization of political considerations over an objective analysis of whether a particular country sponsors terrorism.
Canada's other list has existed since 2002, pursuant to provisions in the Anti-Terrorism Act, a bill that was speedily passed in the aftermath of the September 11 attacks. This list is comprised of non-state entities -- individuals, groups, trusts, partnerships, and unincorporated associations or organizations -- found to be associated with terrorism.
It may be time for Canada to update this list. The most blatant omission is Iran's Islamic Revolutionary Guard Corps (IRGC), and particularly its overseas branch called the Quds Force. But Ottawa should also pay close attention to groups like the Haqqani Network, related Taliban offshoots, and Boko Haram to determine whether they ought to be designated.
The Haqqani Network has close links with al Qaeda and the Taliban, as well as with the Pakistani intelligence service. In fact, the U.S. has apparently been reluctant to designate the Haqqani Network as a terrorist organization because the logical next step would be to designate Pakistan as a state sponsor of terror.
Other Taliban-related entities that ought to be studied by Canadian officials are the Quetta Shura, which is the Afghan Taliban leadership council, and the relatively new Mullah Dadullah Front, perceived by experts like Bill Roggio as the most dangerous Taliban group in the region.
Boko Haram should also be scrutinized. This organization seeks to destabilize the Nigerian government and create in its place an Islamic state ruled by sharia law. It targets churches and public schools, and in 2011 bombed the UN compound in the Nigeria capital of Abuja. Its leader, Abubakar Muhammad Shekau, reportedly released a video clip in January 2012 shortly after the group killed around 180 people, in which he said: "I enjoy killing anyone that God commands me to kill -- the way I enjoy killing chickens and rams."
Other groups in Somalia, Yemen, and Mali warrant investigation as well.
Although Ottawa will inevitably (and even understandably) take certain political considerations into account, its goal must be to take a principled stand -- fearlessly identifying individuals, groups, and states that engage in terrorist activity based on an objective definition of what that really means.
If the Supreme Court of Canada brings more clarity to that definition, then perhaps the Khawaja appeal will have benefitted us all.
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