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Testimony

Exploring the available economic levers to enhance respect for human rights

Testimony for Standing Senate Committee on Human Rights
15th June 2016

Thank you, Chair and Honourable Senators for inviting me here today. I commend this committee for turning its attention to the promotion of human rights abroad. Multiculturalism, which according to many national polls is one of the seminal elements of Canadian pride and identity, is rooted in a respect for all individuals, regardless of personal backgrounds. This is precisely what human rights violators are lacking: a respect  – or even a basic tolerance for – those who are different from them.  Ahmed Shaheed, the UN’s Special Rapporteur on human rights in Iran, recommends that every state “keep urging that steps be taken to strengthen the promotion and protection of human rights.”

At the same time, we must be aware of the hazards of engaging in the discourse of human rights when it comes to foreign states. Authoritarian governments love nothing more than to accuse liberal democratic countries of themselves being the human rights abusers and to threaten retaliatory action.

While I firmly reject equating Saudi human rights abuses against women, children and non-Sunnis with, for instance, modern-day Canadian treatment of indigenous peoples, where recent governments have made genuine efforts to rectify past wrongs, we nonetheless should approach the discussion of human rights with caution.  

One of the motivations behind this committee’s inquiry may have been the $15 billion LAV trade deal with Saudi Arabia. I join many Canadians in feeling a discomfort in exporting military assets to one of the worst human rights violators, but I feel compelled here to highlight the grayness and complexity of international politics. As reprehensible as Saudi Arabia is when it comes to human rights violations, we cannot ignore that it acts as a regional counterweight to an equally atrocious or even worse human rights violator: the Islamic Republic of Iran. To be clear, I am not defending Saudi Arabia. But as Iran gets stronger economically due to nuclear sanctions relief, even as it wrongly imprisons Canadians, sponsors terrorism, illegally tests ballistic missiles inscribed with death to Israel messages, financially and militarily props up the Assad regime in Syria, and brutally abuses the rights of various minorities, the West simply cannot abandon Saudi Arabia in that nasty neighborhood.

I understand that the Export and Import Permits Act is of particular interest to the committee. While human rights are not expressly mentioned in the act, they are a relevant consideration. Section 7 allows the minister, in deciding whether to issue a permit, to take into account whether the goods or technology are prejudicial to the peace, security or stability in any region or country. Certainly severe human rights violations could meet this criterion. And the Export Controls Handbook states that exports from Canada are not to be used to commit human rights violations.

If Parliament were to decide to make explicit reference to human rights in the Act itself, I have preliminarily identified a few places where this could happen:

- a new paragraph in section 3(1)
- section 7(1.01)(b)
- in the regulations under the Act
- in a very egregious case, section 4, which covers Area Control Lists, could be impacted by a human rights assessment

Besides amending the Act, we also must ask if the enforcement of existing export restrictions and other sanctions is adequate. In 2014, I wrote an article flagging a report by David Albright, a physicist who founded the Institute for Science and International Security (ISIS) in Washington, D.C. This report, written at the height of Canadian and international sanctions against Iran, noted “the widespread suspicion that Iran exploits Canada as a source of sanctioned goods.” Albright further asserted that “Canada's export control efforts and laws against sanctioned countries such as Iran are rudimentarily enforced at best; the country is ripe for exploitation by illicit procurement networks and agents seeking to take advantage of a lack of knowledge and seriousness by industry concerning these regulations.”

In April 2014, Lee Specialties Ltd. of Alberta pled guilty to charges and was fined $90,000 for unlawful exports of dual-use goods to Iran. This is one of only a handful of export compliance cases prosecuted by Canada. 

Albright recommended that authorities make examples of companies with fines higher than $90,000 and include significant incarceration in relevant laws as a penalty for these types of crimes.  In 2014, Lee Specialties had an estimated annual revenue of nearly $29,000,000.  The comparably low penalty is unlikely to deter other companies from similar wrongdoing.

In EIPA, under section 19, a person who contravenes the Act and is guilty of an offence punishable on summary conviction is liable to a fine up not exceeding $25,000 or to no more than 12 months in prison. An indictable offence leads to a fine at the discretion of the court or to a term of imprisonment not exceeding ten years.

It would be useful to review the number of prosecutions that have taken place under EIPA and the amount of fines levied, in order to determine whether effective enforcement is taking place.

Setting aside enforcement and getting back to the law itself, I would like to draw your attention to US policy on exports and human rights. In the context of the Export Administration Regulations, which is promulgated under the authority of the Export Administration Act, there is a section on crime control and detection. It begins with these words: “In support of U.S. foreign policy to promote the observance of human rights throughout the world, a license is required to export and reexport crime control and detection equipment, related technology and software…”

The regulations specifically state that “The judicious use of export controls is intended to deter the development of a consistent pattern of human rights abuses, distance the United States from such abuses and avoid contributing to civil disorder in a country or region.”

The other licensing consideration to note for this committee, as greater transparency and clearer standards in the Canadian decision-making process may be desirable, is that the Department of State annually compiles Country Reports on Human Rights Practices for submission to Congress. The factual information presented in these reports is a significant element in export licensing recommendations made by the Department of State.

I will also note the US International Religious Freedom Act of 1998 (IRFA), which calls on the President to take diplomatic or other appropriate action with respect to any country engaged in systematic, egregious violations of religious freedom accompanied by flagrant denials of the rights to life, liberty, or the security of persons. For such countries, IRFA provides that the Department of Commerce must restrict exports of items on the Commerce Control List for reasons of crime control or detection, and require export licenses for items that are being used, or are intended for use, to carry out particularly severe violations of religious freedom.

Looking beyond the Export and Import Permits Act, Canada has and could have in place other measures to enhance respect for human rights in other countries.  

Currently, sanctions under the Special Economic Measures Act can be imposed by Canada for two purposes: to implement an international resolution to take economic action against a foreign state and to respond to a grave breach of international peace and security that has resulted, or is likely to result, in a serious international crisis. SEMA has already been used to penalize the governments of Syria, Zimbabwe, and Burma for their human rights abuses. Nonetheless, it may be worthwhile to amend SEMA to include severe human rights abuses as explicit additional grounds for sanctions. I realize that the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) proposes such a change in SEMA.

As my colleague Mark Dubowitz recently suggested to you, under SEMA, Ottawa could impose human rights sanctions on the state organs responsible for institutionalized human rights abuses in a particular country, as well as the individuals who work for these state organs. In Iran, for instance, Canada should single out those institutions, such as prisons or military bases, at which abuses like torture and arbitrary detention occur, including Evin Prison, where Canadian Zahra Kazemi was held and tortured and ultimately killed, and where Concordia professor Homa Hoodfar is currently being detained without access to legal or consular services.

Both Canada and the United States should consider legislation targeting corruption in all state sponsors of terrorism. The link between the funds generated from corruption and the sponsorship of terrorism by these regimes is well documented. The Magnitsky Law is one mechanism that could be used to target corruption. That legislation authorizes sanctions not only against human rights violators but also against government officials and their associates responsible for or complicit in significant corruption.

Focusing on corruption is crucial because authoritarian leaders paint civil society groups as foreign agents, pass laws to regulate these groups, and cast themselves as defenders of traditional values against a decadent and deviant West. They have a more difficult time, however, using ideological, cultural, or nationalist arguments to justify thievery.

Lastly, to the extent that the safety and security of the person is a fundamental human right and is threatened by terrorist violence, the government’s ability to designate states as sponsors of terror and groups or individuals as listed entities, is also relevant. By designating a state as a sponsor of terror, its immunity in a Canadian court is lifted, and private citizens can use civil suits as economic levers to encourage a change in the state’s behaviour. And once an entity is listed under the Criminal Code, Canadians are prohibited from having any financial dealings with them.
Thank you again for the opportunity to appear before you today, and I look forward to your questions.