Khawaja Decision: Careful Calibration + Some International Law Murkiness

NSL, Ch. 7, pp. 261 et seq.

The Supreme Court’s decision in Khawaja last week confirms the banality of the once extraordinary. It comes as almost a denouement following the controversies of the last decade over Canada’s anti-terrorism criminal law. 

To summarize the Court’s key holdings:

1. There is nothing unconstitutional about the “motive” clause in the definition of terrorist activity in the Criminal CodeFor reasons I have expressed elsewhere, I believe that this is a reasonable conclusion.

2. There is no overbreadth in the prohibition on participation or contribution to the activities of a terrorist group because: 1) of a demanding mens rea requirement that this participation or contribution be specifically intended to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity and 2) the requirement that the contribution be of a sort that a reasonable person would view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity.

3. The armed conflict exception only applies where the conduct of the defendant was in compliance with international law (i.e., in accordance with international humanitarian law).  The Supreme Court’s holding is a reasonable construal of the statute, although it might have been helpful to add a little precision on the international law at issue.  For instance, in discussing events in Afghanistan, it cited portions of the Geneva Conventions applicable only to an international conflict (something that did not exist in Afghanistan after 2002 and thus during the time of Khawaja’s activities):

The violent jihadist ideology espoused by the appellant in his numerous communications is fundamentally incompatible with international law.  The Geneva Conventions prohibit acts aimed at spreading terror amongst civilian populations, which are considered war crimes.  The appellant, by contrast, did what he did in support of a group whose credo was to take arms against whoever supports non-Islamic regimes and that recognized that suicide attacks on civilians may sometimes be justified by the ends of jihad.

(at para. 102).  Geneva Convention IV does provide that “collective penalties and likewise all measures of intimidation or of terrorism are prohibited”.  But these provisions apply in an international conflict, and bind state parties to the Convention.  In other words, they are of no relevance to the question before the Supreme Court.

The better approach would have been to make at least an effort to ground this discussion in law actually applicable to non-international armed conflict.  For example, Additional Protocol II prohibits “acts of terrorism” against non-combatants and specifies that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”.  Or the Court could simply have noted that the Statute of Rome creating the International Criminal Court recognizes as a war crime “intentionally directing attacks against the civilian population” in an non-international armed conflict. 

Objecting to a failure to add precision to the loose invocation of the Geneva Conventions may be a formalistic critique by an egg-head academic. After all, whatever the nature of the conflict, there is solid reason to believe that Khawaja was in non-compliance.  However, loose invocation of inapplicable legal instruments by the country’s highest court is not something that can be taken lightly.  If the Geneva Conventions applied in full to the conflict in Afghanistan post-2002, then they applied equally to Canadian Forces engaged in, inter alia, detainee transfer. Would the Supreme Court also conclude that other Geneva principles applicable only to international conflicts, such as prisoner of war status and treatment, also existed in Afghanistan post-2002?  What is good for the goose is good for the gander.

4. Outside of those codified rules in the Criminal Code that go to sentencing, terrorist crimes are not governed by some extra-special, draconian sentencing principles that rigidly reject the concept of rehabilitation.  This position reverses the Ontario Court of Appeal’s much less nuanced approach to sentencing.

So to summarize the final word from the courts in the Khawaja saga: common sense clarity on the definition of terrorist activity; precision on the construal of at least some of the substantive crimes; a plausible conclusion arrived at in a formalistically doubtful manner on the armed conflict exception; and a rejection of absolutism on sentencing.