The National Post
By Victor D. Comras
-Victor D. Comras is a retired U.S. diplomat who served as a UN monitor overseeing the implementation of Security Council measures against terrorism financing
Sept. 11 has become a special time of memory and reflection. Who can forget the terrible events of that day when terrorists irrevocably stole our security and peace of mind? For many families, the losses were personal — losses that have seared our hearts and diminished us all. Today, at Ground Zero, and at many other places around the world, people will mark these events and mourn all victims of terrorism. My own heart will join those attending the special 9/11 memorial service at the Beechwood Cemetery in Ottawa, which is sponsored by the families of Canadian soldiers felled in battle in Afghanistan and by Canadian 9/11 victims. I have gotten to know the families of some of the 24 Canadians who perished on 9/11, and to know their personal pain. We should all greatly appreciate the very special efforts they are making to protect others from suffering a similar tragedy.
Six years ago, together with other Canadian terror victims, lawyers and counterterrorism professionals, these families established C-CAT — the Canadian Coalition Against Terror. From its inception, this organization has engaged in a difficult and ambitious campaign to convince Canada’s Parliament to pass legislation that would allow Canadian terror victims to hold accountable those who sponsor and provide material support for terrorism. The bill it has sponsored would make it possible for victims of terrorism and their families to bring civil lawsuits against those responsible. It would create a special cause of action for breach of the anti-terrorism provisions in the Criminal Code and it would remove the immunity laws that continue to protect state sponsors of terrorism.
Last year I was invited by the Senate Committee on Legal and Constitutional Affairs to testify as an expert witness on this bill. I strongly supported this initiative, which, in my view, was superior to American victims of terrorism legislation enacted by the U.S. Congress several years ago. I explained also the enormous difficulties encountered when relying solely on criminal prosecutions to inhibit the financing of terrorism, and argued in favour of the C-CAT-promoted legislation which would permit civil suits against those who provide the wherewithal for terrorist attacks. I was particularly pleased to learn that Prime Minister Stephen Harper’s government has now introduced a similar bill in the House of Commons. Like the Senate version, the government’s bill takes aim at those who provide critical financial support for terrorism — those responsible for funding terrorist organizations such as those that scarred the world with the likes of 9/11, Mumbai and the Air India bombing.
Financing is the soft underbelly of terrorism, and the financiers of terrorism greatly fear transparency and financial loss. They are particularly susceptible to deterrence through risk of exposure. This deterrence can best be achieved through civil suits which allow for a much more flexible standard of evidence, making it easier to hold them accountable for their actions while providing fair recourse and possible compensation for their victims. In many cases the interdiction of even small sums of money as a result of civil forfeiture can prevent a deadly terrorist incident. And even if collection by the plaintiffs proves impossible in any given case, the deterrence objectives of the bill would still be fulfilled by exposing terror sponsors to public scrutiny. This, in turn, would significantly impede their ability to use Canadian financial institutions for their purposes.
While the government’s version of the bill is quite similar to the Senate measure promoted by C-CAT, it differs in a few key respects. Unlike the Senate version, immunity from suit would only be lifted after the government had designated the particular country as a state sponsor of terrorism. This was the route chosen by the United States back in 1996. But, that legislation failed to adequately evaluate the difficulties, and international economic and political constraints, that would be associated with officially designating countries that support terrorism. The result was a truncated list of terrorism-supporting countries which now includes only Iran, Syria, Sudan and Cuba. And, last year’s premature removal of North Korea from that list underscored the law’s diplomatic and political frailties. While international diplomatic and political realities make such designations highly unrealistic, that is no reason to give these countries, and their support for terrorist groups, a free ride, or to bar the victims of such terrorism from holding them accountable.
The House of Commons committee that will be charged with reviewing the bill would do well to revisit the Senate’s “made in Canada” version, which seeks to avoid the pitfalls of the American model. Rather than designating terrorist-supporting countries it would establish a list of countries where democracy and the rule of law prevails. Such countries would continue to benefit from traditional sovereign immunity with regard to official government functions. In such cases one might fairly presume that the courts in these countries would be open to appropriate legal solutions, alleviating the need for such action in Canada. But, this is certainly not the case for most non-democratic countries and terrorism-supporting countries, where there is no legal recourse for action against those who sponsor terrorism.
While Canadians lower their heads today in memory of those lost to terrorism and those who gave their lives to prevent such tragedies, they have every reason to stand proud as citizens of a country which has distinguished itself in the fight against a brutal global threat. Canada is now poised also to take a leading role in using its democratic legal framework as an effective bulwark against terrorism. Let us hope that broad multi-partisan support for this new counterterrorism legislation will push it through to speedy passage.