Ottawa terrorism arrests: Likely legal issues

National Security Law, ch. 7.

The arrests in Ottawa (currently numbering four) this week on terrorism charges will almost certainly produce another lengthy and potentially complex trial. 

Intelligence and Evidence

As in the Khawaja matter (that is, the only other terrorism prosecution stemming from an Ottawa arrest), the alleged plot at issue in this case spans states, and concerns conduct in Canada and abroad.  In the result, it seems inevitable that the thorny issues of intelligence and evidence at issue in Khawaja (and especially in the protracted Federal Court Canada Evidence Act proceedings it sparked) will arise this time around as well.  But by the time the matter goes to trial, the legal terrain may be dramatically different: we should have a ruling from the Supreme Court of Canada on whether the Canada Evidence Act, assigning exclusive jurisdiction to adjudicate national security confidentiality to the Federal Court, is constitutional, or whether instead it unduly encroaches on the competence of the provincial superior courts trying the terrorism case in the first place.

The evidence and intelligence conundrum may also raise now commonplace concerns about the provenance and reliability of intelligence shared by allied agencies -- some of the impugned conduct in these cases allegedly took place in Afghanistan and/or Pakistan and it may be that the information supporting the allegations comes from security services with doubtful records on issues like torture.  None of this information would be admissible in Canadian court for constitutional and statutory reasons, as discussed in National Security Law, chapter 15.

The Armed Conflict Exception

The more unique issue in the current case may stem from the armed conflict "exception" to the definition of terrorist activity in the Criminal Code.  Specifically,"terrorist activity" in the Code -- ultimately the predicate of all the terrorism crimes likely at issue in this case -- excludes from its ambit "an act or omission that is committed during an armed conflict and that,
at the time and in the place of its commission, is in accordance with
customary international law or conventional international law
applicable to the conflict".  The armed conflict exemption is discussed in National Security Law at page 273.  This provision was raised in Khawaja, but without any real effect on the facts (see paras. 109 et seq).

In the present case, the reporting to date suggests that the accused planned domestic acts of violence.  There has also been reporting, however, suggesting that the accused may have been (or been on the cusp) of providing support of some sort to elements in Afghanistan.  If so, and some or all of the charges in this case are tied to these acts, the armed conflict exception might be much more clearly in play than it was in Khawaja (where the plot was, at best, loosely tied to Afghanistan).

So would support provided to, say, Al Qaeda in Afghanistan constitute "an act or omission that is committed during an armed conflict and that,
at the time and in the place of its commission, is in accordance with
customary international law or conventional international law
applicable to the conflict".  

In this case, there are two obvious issues: first, can conduct in Canada supplying support to a combatant in Afghanistan be considered "an act or omission that is committed during an armed conflict"?  Elsewhere, including in National Security Law, I have argued that "armed conflict" in relation to the campaign against terrorism should be confined to active theatres of actual armed conflict -- e.g., in Afghanistan and its immediate vicinity.  In essence, this was also the position taken by the Ontario Superior Court of Justice in Khawaja.  On the other hand, the United States has taken a very expansive view on the scope of armed conflict in relation to Al Qaeda -- basically, the armed conflict extends to wherever Al Qaeda is and to whoever supports it.  I think this is a perverse position, but it is one that would suit the defence in this case -- it would mean that conduct in support of Al Qaeda's Afghan activities directed from Canada is still part of an "armed conflict". 

Next, even so,
the second issue is whether that conduct "at the time and in the place of its commission, is in accordance with
customary international law or conventional international law
applicable to the conflict".  The latter expression is, in essence, an invocation of the laws of war, and in particular international humanitarian law, whether in its treaty or customary international law form.  Addressing this second issue requires more information on the nature of the alleged conduct at issue in this case.  But on assumption that it involves material or financial support of some sort, the issue then becomes whether these acts are consistent with international humanitarian law.

On this issue, the Khawaja decision almost shoots from the hip: support to Al Qaeda in Afghanistan must be terrorism, because Al Qaeda does terrorism.  I think this is the right conclusion, although doctrinally, I would get there is a different manner.  Ultimately, much turns on the meaning to be attributed to "in accordance with" in the armed conflict exemption.  A narrow reading of this -- say requiring that the impugned conduct actually be a war crime -- might (emphasis on "might") exonerate the accused.  It is not a war crime to finance, for example, an unprivileged belligerent (that is, an entity not privileged by the laws of war to use violence in the conflict -- Al Qaeda is indisputably an unprivileged belligerent in Afghanistan).  Indeed, the US approach in its military commissions system notwithstanding, it is not a war crime to be an unprivileged belligerent. (An important additional point, however: it is a war crime to target civilians and engage in "terrorism", a concept recognized in international humanitarian law. Aiding and abetting this war crime would itself be cognizable as an offence in customary international war crime law).

Even if the act in question does not rise to the level of a war crime, it is still not in keeping with international humanitarian law -- even if not an actual war crime -- for a civilian -- that is, a person who is not a member of an armed force or a handful of other, usually closely related entities -- to take up arms.  In the result, if the expression "in accordance with" means more than "commit a war crime" and requires compliance with the broader rules found in international humanitarian law, the defence's position would be very weak.

Personally, I think that "in accordance with" means what it says -- do your acts comply with international humanitarian law?  If that is the question, then the answer should be: providing support to Al Qaeda -- an unprivileged belligerent -- that contributes to that belligerency is not "in accordance with customary international law or conventional international law
applicable to the conflict."

It will be interesting to see if and how this issue will develop in this case.