Terrorism and the Legal System

[Long in the tooth]

Our enemies will succeed by waging war between the seams in our legal system, not our operational capabilities.

This is exactly the case with those well known patriots, the Khadrs.  Although captured after a fire fight in which an American soldier was killed, his lawyers are skillfully playing the system.  They're claiming he should be protected both by the Geneva conventions as well as safeguards built into the US/Canadian legal systems.

Unless we close these gaps they will offer further opportunity for exploitation, turning our own judicial system against us.

 

[Kirkhill]

On the legal front you can add those that could have been conducting reconnaissance on the CN Tower, the Toronto Subway and the Pickering Power Plants - it isn't illegal to take some touristy videos.

You could also add Hamza in the UK. He is collecting UK welfare, a 10 room house and legal aid in the millions while railing against the Brits and urging insurgency.

 

[McG]

They're claiming he should be protected both by the Geneva conventions as well as safeguards built into the US/Canadian legal systems.

I tend to think he should be protected by atleast one (Geneva Convention or the US Leagal system's safeguards).

 

[pbi]

Your comments have reminded me of a situation  I encountered in Croatia in 1994. On Op HARMONY 04 I was the newly-arrived company commander for a sector that included the area south of the Zemunik Crossing down about as far as Pristeg. One day I was out meeting the various opposing force commanders. Opposite the Croat village of Prkos, I was met in the middle of the ZOS by the local Croat DB(Home Guard) battalion commander.

I walked up to him and greeted him in my best Serbo-Croat. He shook my hand and replied in perfect English" So, how's it going?"
I was a bit taken aback (being still very naive) and asked him where he had learned English. It turned out that he was a resident of Toronto, where he and his family had lived for 14 years, in the Danforth area. He had left Canada and come back to Croatia to serve the Fatherland.

What struck me about this was the fact that, if given the order, his troops would attack through the Canadian lines, perhaps killing or injuring Canadian soldiers in the process. After the fighting was over, he would be free to go back and enjoy life in Canada again. Meanwhile his family were safe and sound in Canada, enjoying all the benefits of life in our country.

As we all know, the following summer Croatia launched OPERATION STORM and did exactly that-attacked through the UN lines, incuding through the CANBAT area. Now, fortunately, there were no Canadian casualties (because CANBAT was ordered not to resist...) but the principle, in my mind, remains.

I have a philosophical objection to what this man did: having enjoyed the benefits of life in Canada, he then willingly placed himself in a situation in which, in the service of a foreign military, he could be instrumental in the killing or injuring of Canadian soldiers. IMHO he should have been deported, instantly. The issue to me is not mere service in a foreign force: thousands of Canadians have done that. It is serving when you know that foreign force may be used against Canadians. Cheers.

 

[McG]

Such service is subject to our Code of Sevice Discipline, is it not?

 

[Inch]

You're only subject to the Code of Service Discipline as a CF member, not if you're a Canadian citizen serving a foreign country.  It should fall under the Criminal Code of Canada though as treason, but when was the last time someone was charged with that.

Good story pbi, certainly a perspective I've never even thought of.

Cheers

 

[McG]

Enemy spies are subject to the code, and civilians accompanying forces overseas are subject to the code.  I think treason through the Code of Service Discipline would make more sense, as it would provide for the individual being tried in theatre by a military court.

 

[pbi]

In fact, IIRC, we do have a piece of Federal legislation called the Foreign Enlistment Act. I heard this discussed during OP PARASOL, which was the CF support to the Kosovar Albanian refugees. The situation was that the KLA, through a proxy agency here in Canada, was trying to get at the Kosovar refugees in Borden and Trenton to recruit them for the KLA. There was some discussion that the recruiters could be charged under this act. Perhaps some of our better-informed posters here could confirm or deny this-maybe I am out to lunch on this one. Cheers.

 

[Inch]

http://www.dnd.ca/admfincs/subjects/qr_o/vol2/ch102_e.asp#102.01

That's the reference for who's subject to the Code of Service Discipline, according to the ref, this guy would not be subject to the code since he isn't serving in or with the Canadian Forces.

Cheers

 

[Inch]

Found the entry in the Criminal Code....

http://www.canlii.org/ca/sta/c-46/sec46.html

This is a much broader definition and by the looks of it, keeping in mind I'm not a lawyer (Whiskey where are you?),  that guy could have been charged with High Treason.

Cheers

 

[Acorn]

If they could pin a specific incident on the individual they could cover it under war crimes. The guy (CDN citizen, Serb) who was implicated in the Rechner hostage incident was tried in Canada, or at least indicted, was he not?

Acorn

 

[a_majoor]

Trying to close in on people like this through the legal system is almost impossible the way things currently run. Trying to deport known criminals takes years, and the last I heard, there were several thousand people with deportation orders who were "missing".

Since this is a military thread, the military solution would have to mirror some aspects of the American response to WW IV.

Something similar to the Patriot Act should be assembled and enforced to harness the resources of the Police and Intelligence communities to identify these actors. There should also be a means to designate people supporting foreign conflicts either from Canada or against deployed CF units and personell  as illegal combatants. Once identified, they and their communities in Canada can be targeted by vigorous HUMINT and CIMIC type operations to isolate them from the community and prevent their raising personnel, material or support from Canada; and (harsh as it sounds) target them outside the country, most likely using JTF 2 resources.

The Israeli military and intelligence communities work hard at finding and targeting the leaders of terrorist organizations. The jury is still out as to how effective this tactic is, but it probably slows the enemy down and disrupts their command and control, so it is worth persuing. If they want to work in the "seams" of our leagal system, we will have to find ways to caulk those seams.

 

[pbi]

If they want to work in the "seams" of our leagal system, we will have to find ways to caulk those seams.

I agree with this in principle, but our past efforts at dealing with "suspect communities" (WWI, WWII, Doukhobors) have usually been characterized by blundering and poorly executed overreaction. How would we do this without alienating an entire community? Remember the image that we like to have of Canada: a place where all ethnic and cultural groups feel comfortable, etc. etc. How much popular support would there be (not to mention the various constituencies that traditionally support the Liberals...) for targeting a particular community? How would you "sell" it? Cheers.

 

[Cloud Cover]

Something similar to the Patriot Act should be assembled and enforced to harness the resources of the Police and Intelligence communities to identify these actors.

We separated our police from intelligence agencies long ago to preclude the very outcome you desire.

There should also be a means to designate people supporting foreign conflicts either from Canada or against deployed CF units and personell   as illegal combatants. Once identified, they and their communities in Canada can be targeted by vigorous HUMINT and CIMIC type operations to isolate them from the community and prevent their raising personnel, material or support from Canada; and (harsh as it sounds) target them outside the country, most likely using JTF 2 resources.

Your right ... harsh, illegal in domestic law ... will never, ever happen.

The person PBI referred to is currently being prosecuted for corruption and organized crime charges in Croatia. Can't say anymore.

CC 46 (1) (b) and (c) and 46 (3)(a): engaging in hostilities against the Canadian Forces, acts preparatory thereto or forming an intention to do so. OObviously these are going to be driven pretty much by facts demonstrating fairly strong evidence and thus a strong case- it is the defences to such a charge that I am more interested in.

Lets stick with the example above:

It would seem that is is okay for Canadian citizens to fight other forces, including our allies, as long as the force under which those activities are taken are by military forces of a state in the exercise of their official duties, to the extent those duties are governed by other rules of international law. [i.e., not a terrorist: CCC 83.01 (1)]. But, if he was in the employ of a military force authorized by government at the time he is probably on solid legal ground from that perspective.

Could it be the Canadian citizen was mistaken as to the nationality of the uniformed military force whom he was either fighting, preparing to fight or forming an intention to fight? Not likely.

Has he mistakenly interpreted the law and as a result honestly believed our laws permitted his activities? No, he didnt'because if he exercised due diligence, he could have informed himself by making inquiries. Anyway,   there are no weasel words to these charges [i.e. knowingly, wilfully, recklessly etc.].

Was he drunk during his whole tour with the Croats, or in an automatic state? Not likely.

Is he fit to stand trial from a mental perspective? Who knows?

Assuming that such a person lived to be tried for such a crime [hint],   I think he/she would be convicted if the elements of the crime are all present. There appears to be virtually no defence.   Look at the sentence for the crime .. "shall be sentenced to imprisonment for life." I don't think there is any room for a reduced sentence because there is no sub classification of high treason.    One might argue the sentence violates the Charter, but even if it did I believe an appeals court would save the provision because to reduce a mandatory sentence for such a serious crime would bring the administration of justice in disrepute.

 

[Inch]

Great post Whiskey, so if I understand correctly, he can't be charged with treason under the CCC if he was acting within the international laws of armed conflict for another state. Seems a little off to me that someone could live in Canada, go to another country, fight against Canada then come back here after the hostilities with no ill effect on his status as a Canadian Citizen.

Cheers

 

[Boydfish]

I might be muddying the waters somewhat, but I seem to recall the Canadian government passing legislation after the Spanish Civil War that prohibited Canadians from enlisting in foriegn armies, or something to that effect.  Granted, it hasn't been enforced in any great way, but is that still on the books?  I'm just too lazy to actually do the research at this point.

 

[Cloud Cover]

Inch ... as far as I read things, a citizen can fight/prepare to fight/think about fighting any other nation but Canada, as long as the acts do not fall within the definition of terrorist activity. [therefore, they can serve in the military of another country.] But, that only clears them of high treason. I'm gonna pm brneil on this when I have a chance, as I think I am missing something here. There may be another statute in play besides the criminal code, such as a treaty. Cheers.
[ps - i see the power is back on in your neck of the woods!!]

 

[a_majoor]

Our past attempts to deal with suspect communities wasn't a shining example of how to do things, mostly because the authorities were using "blanket" coverage, and treating all members as suspect. The separation of Police and Intelligence powers is a good thing under normal circumstances, but with the proper safeguards is an essential means of identifying these actors.  In the Croatian example, once it is determined that Canadian citizens are operating against Canadian Forces or their allies, the proper legislation is invoked, an "inter agency group" is assembled and begins working the target audience. The legislation should contain provisions for when to stand down the inter agency group as well.

The real key isn't to go after everyone in the Croat-Canadian community (in the above example), but rather identify those individuals who are working against our interests and limit their ability to operate in Canada. If the community is turned against you, it will be hard to raise money or recruit people in that community. I would guess that fundraising for foreign wars might also be against the criminal code, or at least you could prosecute the fundraisers for fraud if they are claiming to raise money for charities.

The remark about targeting these people outside Canada isn't meant to be flippant, if someone is bearing arms against you, then the ROEs provide your means of protection. Since a conventional military force isn't set up to go hunting for specific individuals, detailing snipers or special forces operators would seem to be a reasonable alternative. It would also have a demoralizing impact on fellow travellers back in Canada when news of their death or incapacitation gets back.

 

[Inch]

Inch ... as far as I read things, a citizen can fight/prepare to fight/think about fighting any other nation but Canada, as long as the acts do not fall within the definition of terrorist activity. [therefore, they can serve in the military of another country.] But, that only clears them of high treason. I'm gonna pm brneil on this when I have a chance, as I think I am missing something here. There may be another statute in play besides the criminal code, such as a treaty. Cheers.
[ps - i see the power is back on in your neck of the woods!!]

Ah ok, seen.

I was one of the lucky ones that didn't lose my power, there's still guys without power. 

 

[ArmyRick]

My mother works in the legal system and I also lots of family members who serve in different police forces in Canada. So IMO, let me say, THE LEGAL SYSTEM IN CANADA IS A JOKE !!!
Seriously we cater and worry about not upsetting or being "inhumane" to suspects, accused or convicted people in our country. I mean they allowed inmates to vote last election, wich is b*llsh&t.
Victims rights, phewwwy, what ever !
I will be even more frank. It is the bloody liberal piss poor attitude that appuals me on any sort of means of forcing people to conduct themselves within the boundaries of the law.
Canada once used to have a brutal corrections system. Maybe its time we swung more to the right again?
I don't doubt for a second that there are terrorist or international criminals hiding in the "liberal utopia" called Canada.
When I retire from the CF in the future (5 years or 25 years, I don't know yet) I aim to become a political activist lobby agaisnt the left wing bullsg*t in our country wich has eroded the greatness of it.