Missing Indictments in the Case of Maher Arar

Missing Indictments in the Case of Maher Arar

© CHRIS WATTIE/Reuters/Corbis

The Royal Canadian Mounted Police have laid a criminal charge against George Salloum, director of the Far Falestin prison in Damascus, Syria, where Maher Arar was tortured in 2002-03. At the same time, the Mounties issued an international Interpol ‘blue notice’ for Salloum’s arrest to enable his eventual extradition to Canada. The in absentia charge under the Canadian criminal code is consistent with Canada’s obligations under the International Convention Against Torture, which invokes the concept of universal jurisdiction for grave violations of human rights. (On that concept, see the statement given by Human Rights Watch before the UN General Assembly’s legal committee.)

Although the precedent-setting announcement should be welcomed, it has been a long time in coming. Maher Arar returned to Canada from his Syrian ordeal in October 2003 and filed a complaint with the RCMP in 2005. It has taken more than a decade to build a case against a person whose identity was known to several Canadians, as well as to other survivors of Syria’s most notorious penal institution. It seems odd, however, that the charge is only against Salloum, when others were involved in Arar’s incarceration in Syria, such as the head of Syrian Military Intelligence, General Hassan Khalil. Possibly General Khalil has passed from the scene. Perhaps the evidence against him is less clear-cut.

Syrian security authorities may have done the dirty work, but…the real architects of Maher Arar’s fate – the ones who made the arrangements to have him imprisoned in Syria – were in the United States government.

There is a further and even more obvious anomaly in the RCMP’s action; namely, the absence of any mention of the intellectual authors behind Maher Arar’s rendition, imprisonment and torture. Syrian security authorities may have done the dirty work, but they had at most a marginal interest in Arar, whose family emigrated from Syria to Canada when he was a teenager. Nor did they have national interests engaged with other Canadians who ended up in their prisons. The real architects of Maher Arar’s fate – the ones who made the arrangements to have him imprisoned in Syria – were in the United States government, in a decision-making process led by the U.S. Attorney General, John Ashcroft, a cabinet-level official in the George W. Bush administration.

It is now widely known that when Arar was detained in New York City while returning to Canada from Tunisia, his case was managed in Washington at the most senior levels of the Department of Justice and the Immigration and Naturalization Service. A small group of Bush administration political appointees overturned professional opinions and advice, and made the decision to ignore Arar’s plea for deportation to Canada (or even to Zurich, his point of embarkation to the United States). They wanted him in Syria, where it was known that he would be mistreated and tortured by Syrian security authorities in the American search for information on Islamic extremism.

There is no question about the decision or its results. The real question is whether there will be any future action against this small group of individuals, forcing them to face justice for violations of American and international law in an appropriate forum in the United States or elsewhere. Several organizations, led by New York’s Center for Constitutional Rights (CCR), which represented Maher Arar in his unsuccessful efforts to obtain redress in the American court system, have been pushing for action. The NGO community has already laid the basis for indictments against George W. Bush and most of the senior officers of his administration. Even long after the events in question, there are no signs that NGO pressure is on the wane. (See, for example, the petition filed in Canada on behalf of the CCR and the Canadian Centre for International Justice.)

Don’t expect the controversies triggered by the Bush ‘war on terror’ and Guantanamo Bay to fade any time soon.

How much further this will go is unknown. An important precedent was set by the detention of General Augusto Pinochet in London in 1998 under a warrant issued by a Spanish court. However, it is questionable whether any former senior American official will suffer a similar fate. Plainly put, Pinochet was not American and no one in that case was in a position to bring pressure to bear in favour of Pinochet’s freedom comparable to what the Americans would exert if one of their own were detained. While Interpol warrants have already been issued in some rendition cases, the most likely consequence of those actions is that the warrants will force hard decisions on those named. They will have to forego travel to countries in which the warrants might be enforced, or else they will run the risk of detention while outside the United States, with all of the subsequent potential for controversy.

The RCMP charge is a key step forward in securing justice in the Arar rendition. But possibly more than that, it is a reflection of decades of growth and evolution in international law, which now has such reach and credibility that states cannot easily exempt themselves from its provisions. In the short run, the charges against Salloum may not produce many results. Over the longer run, however, there is no mistaking the direction in which justice is moving, even if this movement is slow. Don’t expect the controversies triggered by the Bush ‘war on terror’ and Guantanamo Bay to fade any time soon. The American government may sense a political obligation to defend those who conducted this war, in the hope that memories fade. But a wide coalition of NGOs and international institutions is equally committed to ensuring that precedents set during the war on terror are not allowed to stand.

Daniel Livermore was a foreign service officer for more than thirty years prior to joining the Graduate School of Public and International Affairs at the University of Ottawa, where is currently a Senior Fellow and Adjunct Professor. His last assignment was as director general for security and intelligence in Foreign Affairs and International Trade Canada.

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