Canada’s responses to the torture of citizens: Rights aberration or rights aspiration?
| Published date | 01 September 2016 |
| DOI | 10.1177/0020702016662795 |
| Date | 01 September 2016 |
| Author | Cynthia Banham |
| Subject Matter | Scholarly Essays |
Scholarly Essay
International Journal
2016, Vol. 71(3) 468–487
! The Author(s) 2016
Canada’s responses to
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the torture of citizens:
DOI: 10.1177/0020702016662795
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Rights aberration or
rights aspiration?
Cynthia Banham
Australian National University, Canberra
Abstract
Traditional analyses of Canada’s behaviour on international human rights tend to view it
through the prism of the state’s global identity as a good international citizen. Such
explanations are limited in helping us understand Canada’s inconsistent responses to
allegations that two citizens were tortured in the war on terror—Maher Arar and
Omar Khadr. This article uses Jutta Brunne´e and Stephen Toope’s interactional account,
which emphasizes the need for continuous shared practices of legality in order for
international human rights norms to exert influence, to analyze Canada’s responses
to the torture of citizens. It argues that to make sense of Canada’s behaviour, we
need to examine the role of different state and non-state actors in terms of whether
they were agitating for Canada’s compliance with the international prohibition against
torture. Civil society was critical in shaping the responses of the Canadian state to the
torture of citizens.
Keywords
Accountability, civil society, human rights, interactional account of international law,
rights of the child, torture, war on terror
To an outsider, Canada’s response to the torture of one of its citizens, Maher Arar,
in the war on terror, seemed to confirm the state’s global reputation as an exem-
plary defender of international human rights. Looking from the vantage point of
Australia, where successive governments maintained a decade-long position of
indifference toward allegations that two nationals detained in the war on terror
were tortured, successive Canadian governments’ behaviour in holding a public
Corresponding author:
Cynthia Banham, Australian National University (ANU) – Regulatory Institutions Network (RegNet School
of Regulation and Global Governance), Coombs Extension Building 8, Fellows Rd., Canberra, ACT 0200
Canberra 0200, Australia.
Email: cynthia.banham@anu.edu.au
Banham
469
judicial inquiry into Arar’s extraordinary rendition (the Arar Commission) and
implementing its recommendations fit neatly with this international image. The
inquiry was the first time any of the United States’ liberal allies subjected them-
selves to public scrutiny on the issue of the torture of citizens in the war on terror
and it remains the most thorough exercise of its kind.1 It was somewhat confound-
ing, then, to follow over the course of the post-11 September 2001 decade Canadian
governments’ responses to the case of Omar Khadr, a second citizen who alleged
torture, and a ‘‘child soldier’’ when captured.2 For ten years, different Canadian
governments failed to defend robustly the human rights of Khadr while he was
detained at Guantanamo Bay, or accept responsibility for him. This was puzzling
because not only had Canada ratified the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) and the UN Convention on the Rights of the Child (CRC), it was also
one of the first countries to ratify the Optional Protocol to the CRC on the
Involvement of Children in Armed Conflict (OP-CRC-AC).
How might such contrasting behaviour be explained? The more traditional
analyses of Canada’s behaviour on international human rights protection tend
to view it through the prism of the state’s complex relationship with the US.
According to this account, Canada has sought to differentiate itself from its
powerful neighbour to the south by carving out a distinctive global identity as
a ‘‘good international citizen.’’3 Canada’s actions (by which I mean the actions of
successive national governments) on Arar supported this narrative. Canada
risked upsetting the US by scrutinizing the extraordinary rendition by the US
of a Canadian citizen in the war on terror.4 Canada’s actions with respect to
Khadr were at odds with the ‘‘good international citizen’’ identity. It appeared to
accept the US’s treatment of Khadr, including his detention at Guantanamo Bay
without the protections of the Geneva Convention Relative to the Treatment of
Prisoners of War (Third Geneva Convention) and his trial by military commis-
sion, which permitted the use of evidence obtained by coercion, while refusing to
investigate his claims of torture. A traditional analysis would suggest Canada’s
behaviour on the Khadr case should be seen as an aberration given Canada’s
1.
Reg Whitaker, ‘‘Arar: The affair, the inquiry, the aftermath,’’ IRPP Policy Matters 9, no. 1 (2008):
1–43, 9.
2.
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children
in Armed Conflict, which the US and Canada have both signed and ratified, sets the minimum age
of military involvement at 18 years. See Christopher Dore, ‘‘What to do with Omar Khadr? Putting
a child soldier on trial: Questions of international law, juvenile justice, and moral culpability,’’
Marshall Law Review 41 (2007/2008): 1281–1320, 1292 for a discussion of the definitional issues
around the term ‘‘child soldier.’’
3.
Srdjan Vucetic, ‘‘Why did Canada sit out the Iraq War? One constructivist analysis,’’ Canadian
Foreign Policy 13, no. 1 (2006): 133–153, 142.
4.
Extraordinary rendition is the US practice of transferring non-US nationals, who had no access to a
legal proceeding to challenge that transfer, to a country where he or she was at risk of torture. See
Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New Global Detention System
(New York: New York University Press, 2011), 51.
470
International Journal 71(3)
otherwise strong international human rights record. Indeed, some international
relations scholars have suggested this.5
There is, however, an alternative way to view Canada’s inconsistent responses to
the torture overseas of its citizens that, I argue, offers a richer explanation for what
occurred. The interactional account of international law and international relations
posited by Canadian scholars Jutta Brunne´e and Stephen Toope instructs us to
approach this puzzle in terms of trying to understand when, and why, states
uphold their international human rights commitments.6 Their account focuses on
the interactions between a diverse array of domestic and international actors in
building and consolidating shared understandings in a particular country about
human rights norms, such as the prohibition on torture. They posit that continuous
‘‘communities of practice’’ among all actors—state and non-state—in a polity are
critical to states upholding their international human rights commitments. This inter-
actional account sheds much light on Canada’s divergent responses to the torture of
its two citizens in the war on terror by directing our focus toward an examination of
what different actors, including members of the Canadian Parliament and civil soci-
ety, as well as the executive government, were doing in relation to the cases. Such an
examination reveals that, in Arar’s case, domestic actors in particular conducted
robust interactions in favour of Canada upholding its commitments regarding the
prohibition against torture; while in Khadr’s case, for many years and with some
exceptions, such actors did not. The interactional account, although helpful for
understanding Canada’s different responses to the two cases, does not fully explain,
however, why the behaviour of the communities of practice that formed around Arar
and Khadr differed so radically. I argue this was also partly the result of political
opportunism, where actors were influenced by the popularity of the individual victim.
This article proceeds with a discussion of Canada’s global liberal internationalist
identity. I outline the interactional account of international law and suggest why
such ideas are more useful for making sense of Canada’s response to the torture of
citizens. I introduce Arar and Khadr and outline the executive’s response to their
predicaments. The focus then turns to what other actors were doing during the
relevant period, including members of Parliament and civil society, and I analyze
their behaviours through the prism of the interactional theory. I address the limi-
tations of this account for explaining why communities of practice formed so dif-
ferently around the two cases. The article concludes with some thoughts on the
broader lessons this analysis of Canada’s behaviour might hold.
Traditional explanations for Canada’s international behaviour
It is difficult to generalize about a country’s national identity. However, Canada
has a history of both representing itself as a nation that respects human rights and
5.
Alison Brysk, Global Good Samaritans: Human Rights as Foreign Policy (New York: New York
University Press, 2009), 83.
6.
Jutta Brunne´e and Stephen Toope, Legitimacy and Legality in International Law (Cambridge:
Cambridge University Press, 2010), 7, 118.
Banham
471
of being seen as such externally. Canada’s national and international identities, it is
said, are inextricably linked to its role in the world as a good global citizen and its
status as a peacekeeping, multilateral nation.7 Often-cited examples of Canada’s
liberal internationalist identity include its work forging an international treaty to
ban landmines (the UN Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer...
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