ICTJ in the News

December 17, 2003

Breaking News

The Globe and Mail

By Paul Knox

If I find Osama bin Laden rooting around in my back yard over the Christmas holidays, and I pick up a shovel and beat him to death, should I be charged with murder?

Obviously. Sure, it looks to me like he sent planes into the Twin Towers and the Pentagon, killing nearly 3,000 people. Sure, a lot of people would like to see him bludgeoned to a pulp. But I don't get to do him myself. It's just as wrong for me to club a mass murderer to death on my own as it would be to poison Mother Teresa.

Leaving aside the question of capital punishment, Mr. bin Laden has-or ought to have-the right to a fair and open trial. That means clear rules, honest judges, the lawyer of his choice, the chance to present a coherent defence and the right of appeal. So ingrained are these principles in the Western world, and fortunately in a growing number of countries outside it, that even a monster such as Saddam Hussein inspires a debate about due process.

To many-particularly for the Iraqis who saw their relatives murdered under Mr. Hussein-the discussion must seem surreal. I put the question to Ian Martin, a former secretary-general of Amnesty International and now the vice-president of the International Center for Transitional Justice in New York: Why be humane to the essence of inhumanity? His reply wasn't surprising, but it bears repeating. "The way you show how you are different," he said, "is precisely by according people the rights that they refused to accord." And by extension, the worse the atrocities, the greater the moral power that flows from applying the rule of law.

Now, if Mr. Hussein's rights are worth all this discussion by the tall foreheads of the West, let's consider those of Abdullah Almalki, Arwad Al-Bouchi, Ahmad Abou El-Maati and Hassan Almrei-minor collateral casualties in the battle that was unleashed by Mr. bin Laden and joined by Mr. Bush.

Mr. Almalki and Mr. Al-Bouchi are the Canadians languishing in jail in Syria-a country famous for its torture methods. Little is known of Mr. Al-Bouchi's case, but the Syrians know that Mr. Almalki was the object of an RCMP terrorism investigation. Mr. El-Maati, who has also been questioned by the RCMP, would be in Syria too, except he was handed over some time ago to Egypt. His crime so far appears to be that he has spent time in the company of the imam of a mosque in the Toronto suburb of Scarborough. The imam has attracted the attention of the Canadian Security Intelligence Service, although he hasn't been arrested or charged.

Mr. Almrei is a different case. A successful refugee claimant, he's in jail in Toronto because a certificate signed by two federal cabinet ministers says he's a threat to national security. He may be deported to Syria, the country of his birth, after being publicly branded by Canadian authorities as a possible terrorist.

He admits to lying about a bunch of things, including procuring a phony passport and spending time in training camps in Afghanistan in the early 1990s. But he says he has never used the weapons skills he acquired there, and does not sympathize with the al-Qaeda terror network. Nevertheless, CSIS is worried about him for other reasons, such as the pictures of Muslim warriors found on his computer.

Heinous stuff? Possibly. But hold on: Procuring phony passports is a criminal offence. You deal with it not by locking people up indefinitely, but by charging them, convicting them and passing sentence. As far as computer pictures goes, if we're jailing people for that one, let's make room for half the country.

And as for weapons training, there's an important principle at stake: You punish people not for what they ruminate about or fantasize about, but for what they do. Otherwise, we're sliding down the slope of thought crimes-right down into the vast swamp inhabited by people like Osama and Saddam. And you also don't send people home to places where they use torture to extract "confessions," or intimidate political opponents, or just for sport on a slow day.

If we never had disagreements we wouldn't need laws. If we were all manifestly saints, we wouldn't need the concept of human rights. And just as I shouldn't be able to take Mr. bin Laden's fate into my own hands, neither should Syria be able to deal arbitrarily with Messrs. Almalki, Al-Bouchi and El-Maati, or Canada with Mr. Almrei.

The rights we claim for ourselves have no meaning unless we extend them to others. Either they're universal, or they aren't rights at all-just the law of the jungle by a more genteel name.