Frontier Justice

by Andy Lamey

  These forms of sovereignty are obviously related. When a new state comes into being, as the Czech Republic and Slovakia did after the breakup of Czechoslovakia, and as Quebec sovereigntists hope Quebec might by seceding from Canada, recognition of the new state by other governments can influence its ability to take out international bank loans, which can be used to fund the police and army. That border control is also carried out by an institution with the resources of a state is only one of the reasons it is as effective as it is. A second consideration that makes border guards effective is that they are widely seen as exercising a justified form of authority. Just as people in countries under military occupation will withhold co-operation with the occupiers when they do not think their presence is legitimate, forms of social control are often more powerful the more widely they are regarded as valid and reasonable. In the case of border control, its legitimacy has something to do with the fact that it is done in the name of states. If airports and other entry points were policed by vigilantes and members of private clubs, no matter how overwhelming their numbers, they would lack this important kind of power. It is not quite right, therefore, to see interdependence sovereignty as completely detachable from the other two aspects of sovereignty that long preceded it.

  Nevertheless, the fact that the third aspect arose much later than the first two should give us hope. It should open us to the idea that the practice of sovereignty and human rights can be brought into better balance without eroding the goods that were created by the first two forms of sovereignty, goods having to do with efficiency, predictability, security and, at least some of the time, peace. Border control arrived late in the history of the state, and has undergone many changes since it began. It is not idle fancy to think that it might change again, in a manner that makes it less deadly for refugees. But just as the recognition states bestow on each other reinforces the overall state system, the fact that most industrialized states enforce their borders makes it less likely that any individual state will completely abolish border controls on its own. A framework for refugee rights that can be phased in, gradually spreading from one state to another without requiring early adopters to make themselves radically more open than their neighbours, is a framework that at least has a chance of coming into being. Because the portable-procedural model allows states to extend justice to refugees even as they police their borders, it is the framework more compatible with the evolving and enduring history of border control.

  This brings us to the final lesson of the history of sovereignty. It may be the most encouraging lesson of all. The refugee upheavals of the twentieth century did not mark the first time human rights came in conflict with national sovereignty. The same two principles came in conflict in the nineteenth century—only to see sovereignty give way to rights.

  This is borne out by the abolition of the transatlantic slave trade. In the nineteenth century, public opinion gradually turned against slavery. This was especially so in Britain, which outlawed the transportation of slaves on British vessels in 1807. Over the next dozen years, the United States and many European countries followed suit, while others signed treaties with Britain giving its warships the right to search and seize vessels suspected of carrying slaves.

  Two significant holdouts to this trend were Portugal and Brazil. Portugal’s colonies in Africa were major sources of slaves, while Brazilian agriculture was heavily dependent on slave labour. After years of trying to persuade Portugal to stop trading in slaves, Britain in 1839 unilaterally authorized its navy to seize suspected slave vessels sailing under the Portuguese flag and to release any slaves on board at the nearest British port. This was the case even though Portuguese law deemed trafficking in slaves perfectly legal everywhere south of the equator. Similarly, after decades of unsuccessful attempts to make Brazil stop its part in the slave trade, in 1850 Britain sent its warships into Brazilian waters. While under fire from Brazilian forts, the British vessels seized and burned a number of Brazilian ships suspected of carrying slaves, an intervention that ultimately proved decisive in finally ending the transatlantic slave trade.

  Stephen Krasner, a historian of sovereignty, has remarked of Britain’s aggressive actions in Brazil that “it is difficult to imagine a less ambiguous violation of the norm of non-intervention.” Britain’s efforts to stop the slave trade were not motivated by material interests. When those efforts began, British plantations in the Caribbean at the time were themselves dependent on slave labour. Rather, the British government’s actions were influenced by the pressure of groups that opposed slavery on religious and moral grounds. There was thus a conflict between the cause of abolition, which we would now describe in human rights terms, and the claims of Brazil and Portugal to do as they pleased as sovereign states. In the end, human rights won out.

  Closer to our own time, something similar happened in South Africa. By the 1980s its policy of racial apartheid had put it in a position like Brazil’s a century before: a pariah state with few international advocates willing to defend it. Unlike in the nineteenth century, however, this time the pressure to abolish a racist institution came from more than one foreign power, as governments in Africa, North America and Europe all subjected South Africa to a variety of sanctions. Eventually, in the face of both foreign and domestic pressure, apartheid came to an end. Once again a cause animated by human rights won out over a state’s claim to ultimate authority. In Krasner’s words, “This transition was an extraordinary accomplishment, and one that took place with little bloodshed. But it was not consistent with Westphalian or international sovereignty. The pressure on South Africa was a denial of the right of its rulers to establish a race-based regime within their country.”

  The image of British warships invading Brazilian waters captures something enduring about the history of sovereignty. As we all know, states have interfered in the affairs of other states many, many times since the Peace of Westphalia. This makes sovereignty a slightly curious principle of authority. On the one hand, international diplomats and the governments they represent constantly affirm the importance of domestic and international legal sovereignty, which both support the view that states should not meddle in the domestic affairs of other states. On the other hand, one of the primary activities of states in general and powerful states in particular has been to constantly intervene in other states’ internal affairs. This has happened so often that when a powerful state invades a smaller one, even when we are strongly opposed or recognize it as a clear wrongdoing, we are not so naïve as to be surprised that it is happening.

  Krasner captures this aspect of sovereignty with the term organized hypocrisy (a term that, as we saw, Matthew Gibney borrowed to describe Western states’ commitment to human rights). This memorable phrase is meant to capture the fact that the core notions of sovereignty relating to non-intervention are both widely affirmed and also routinely violated, sometimes by one and the same entity. “Rulers might consistently pledge their commitment to non-intervention,” Krasner writes, “but at the same time attempt to alter the domestic institutional structures of other states, and justify this practice by alternative norms such as human rights or opposition to capitalism.”

  The reference to a state’s violating another state’s sovereignty because of opposition to capitalism conjures up images of Soviet tanks rolling through the streets of Prague and Budapest. This example of organized hypocrisy is hardly inspiring. But there have also been cases when sovereignty has been violated in the name of effective and genuine human rights enforcement (however much it has also been violated in the name of fraudulent human rights actions). In our time, the international boycott of South Africa provides one such example, as does Britain’s role in the abolition of the transatlantic slave trade a century before. These cases are worth recalling not because they precisely parallel the conflict between sovereignty and human rights as it applies to refugees. Brazil, Portugal and South Africa were engaging in practices that were exceptions to the international norm. Britain, the Un
ited States and other countries had stopped trading in slaves and abolished segregation before they turned their attention to the south Atlantic slave trade and apartheid. In the case of refugees, by contrast, all Western states now employ measures that overemphasize border control at the expense of human rights.

  Nevertheless, the end of the transatlantic slave trade and apartheid are encouraging in that they show that sovereignty can be made to give way to human rights when enough people want it to. In neither case did the triumph of human rights come easily, as both involved decades of sustained pressure. But both episodes are encouraging nonetheless, the peaceful way human rights triumphed in South Africa especially so. Rather than an unmovable force, sovereignty is a principle that at times has been disregarded in the name of a greater good.

  This continues to be the case in our own time, when we hear calls for states to acknowledge a “responsibility to protect.” The phrase, which is commonly invoked in debates about genocide intervention, makes the authority of states conditional upon them upholding the rights of populations inside their borders. Reasonable people can disagree as to where and when any form of military intervention in justified. But the fact that there is even debate about the legitimacy of human rights interventions captures something about sovereignty in our time, something that was not true in the age of territorial kings. It is that sovereignty is no longer just a kind of authority, but also a kind of responsibility. It is a principle not merely of power, but also morality.

  In the modern world the state is not defined only by its part in an international order of organized hypocrisy. The liberal democratic state is also a central pillar of welfare and justice, arguably the central pillar, the growing importance of international institutions notwithstanding. A double wrong occurs when an institution of justice itself becomes an agent of injustice. The liberal state’s role as a dispenser of justice makes it not only reasonable, but necessary, to judge the state itself by the highest standards of morality. Only when liberal states exhibit the same respect for the rights of refugees as they do the rights of their own citizens will the expectation that the liberal state generates about itself be met.

  The lessons of sovereignty should make us far more optimistic than Hannah Arendt was about the long-term future of human rights. Arendt saw sovereignty as a monolithic force that consigned the idea of human rights to the realm of irrelevant abstraction. This pessimistic view, however, is not borne out by sovereignty’s history. Sovereignty has changed in the past in order to address felt human needs. The more the situation of refugees is seen as a problem, the greater the likelihood that the exercise of sovereignty, if not its very nature, may someday change to address their needs also.

  I have tried in this book to outline a way that this goal might be achieved in our lifetimes. But even if my particular proposal is wrong, the changing history of sovereignty should make us optimistic that some new arrangement can come into being that will reconcile sovereignty with the rights of human beings in general and refugees in particular. In a world of injustice, calls for human rights are like water dripping on a stone. One drop by itself explodes on the rock. But if water keeps falling long enough, eventually the stone will erode. An awareness that sovereignty has changed before and can change again should cause us to keep bringing water to this rock, until it too gives way.

  POSTSCRIPT: REFUGEES AND TERROR

  WHAT HAPPENS TO TERRORISTS who attempt to use Canada’s refugee system as a means of covertly entering North America? The accompanying chart is meant to shed empirical light on this question. It examines refugee claims in Canada by people associated with political extremism. All of the individuals made a refugee claim between 1985 and 2005. Once I began compiling their names, however, it became clear that whether someone is a terrorist is often difficult to determine. For this reason, the names on the list and the considerations behind their inclusion require some explanation.

  The purpose of the chart is to document the outcome of individuals who match the widespread image of Ahmed Ressam, namely, terrorists who have tried to use Canada’s refugee system to facilitate a terror operation. Given this purpose, the chart does not include three types of refugee claimants. The first are those, like the real Ressam, who were not affiliated with terrorism at the time of their arrival and only became extremists years later. Such cases should not be dismissed, but they represent a separate problem from a terrorist exploiting the asylum system as a means of travel. The second group I excluded were individuals associated with extremism who filed a refugee claim after living in Canada for over a year. (The four individuals, Tre Arrow, Bittor Tejedor Bilbao, Haig Gharakhanian and Mahmoud Mohammad Issa Mohammad, were all fighting deportation or extradition.)

  Refugee Claims in Canada by Political Extremists 1985—2005

  Finally, I did not count four people who disclosed their former affiliation with an extremist group at the time of their refugee claim, and subsequently lived for years in Canada without engaging in any sort of extremist activity. This category included two former members of the Irish National Liberation Army, Malachy McAllister and Francis Patrick (Paddy) Ward, who were both on the run from their former organization. It also included two supporters of Basque Homeland and Freedom, an armed separatist group in Spain. The two Basque nationalists, Gorka Perea Salazar and Eduardo Plagaro Perez de Arrilucea, had been convicted in Spain of setting fire to several bank machines. Like the former INLA members, they disclosed their prior association with an extremist group at the time of their refugee claim, and lived for years in Canada without engaging in any sort of extremist activity. For these reasons they were not regarded as active terrorism supporters at the time of their deportation.

  Deciding which categories to exclude was the easy part. The more difficult question was which particular individuals to include. What makes someone a terrorist? Once we get past people who set off bombs in public and other obvious cases, putting forward an uncontroversial definition becomes difficult, as reflected in the cliché that one person’s terrorist is another person’s freedom fighter. Rather than attempt to offer my own definition that finally settles the issue, I began by compiling cases of people who at some point had the terrorist label attached to them. My primary means of doing so was looking through newspaper databases and, to a lesser degree, government documents and think tank reports. All of the individuals on the list, therefore, have this much in common: they were at some point labelled a “terrorist” in the press.

  Scrolling through media coverage of accused terrorists proved to be an eye-opening experience. Particularly since September 11, there have been many cases of someone being identified as a terrorist only for the allegation to prove false. (Stories making the initial allegation also travel much farther than follow-up reports correcting the record.) In order to avoid this problem, I added as a second criterion that the person in question must have been subject to a legal decision that determined them to be involved with extremism during or before their refugee claim. Most of the legal decisions were convictions on terrorism charges, but I also counted security-related deportation orders or, in one case, the conditions of release from detention (Pirakalathan Ratnavel).

  Focusing on legal decisions, however, raises its own issues. The first is whether every conviction should be treated equally. This question is forcefully posed by the case of Mourad Ikhlef. Ikhlef arrived in Canada from Algeria in 1993 and successfully filed a refugee claim. While he lived in Montreal he was a political extremist close to Ressam and other convicted terrorists. Ressam testified during the trial of another co-conspirator that in 1999 he discussed with Ikhlef his plan to bomb the Los Angeles airport, and that Ikhlef helped him fix a circuit tester he was planning to use in his bomb. When a security certificate was issued against Ikhlef in 2001, it was an unsurprising outcome for one of Ressam the terrorist’s enablers.

  But was Ikhlef involved in terrorism back in 1993, when he filed his refugee claim? Most analysts have taken it for granted that he was, on the
basis of a 1993 terrorism conviction in Algeria. Ikhlef, however, was tried in Algeria’s so-called Special Courts, which the country’s military dictatorship established to combat “subversion” during the civil war. The Special Courts were widely condemned by groups such as Human Rights Watch for “fall[ing] far short of internationally recognized standards for a fair trial.” Sentences in the Special Courts overwhelmingly relied on evidence extracted through torture. Testimony was obtained from witnesses who were beaten by security agents until they could no longer stand, or from defendants who signed confessions after having their genitals destroyed. The most common sentence was death, which was handed down for “acts of terrorism” that included making a speech or distributing a leaflet.

  Ikhlef was sentenced to death in absentia by a Special Court in 1993, when the violations were at their worst and the courts amounted to chambers of “summary or arbitrary executions,” as Amnesty International termed them. These procedures cast Ikhlef’s original conviction into doubt. In addition, Ikhlef was deported to Algeria in 2003, by which time the Special Courts had been abolished. He was then retried on the original charges and acquitted. There is therefore no legal basis on which to connect him to terrorism during or before his 1993 refugee claim. For this reason I have left him off the list.

  A second issue raised by focusing on convictions is that doing so could leave out genuine terrorists who were clever enough to avoid being caught. I came across three cases that could potentially be construed this way. As the circumstances in each instance were different, I wound up deciding whether to include each one on a case-by-case basis.

  One that seemed to clearly involve a genuine extremist was Mohammed Dbouk. Dbouk fled Canada for Lebanon in 1999 while being wiretapped by CSIS. There is strong evidence from a variety of law enforcement agencies that Dbouk was a fundraiser for Hezbollah at the time he filed a refugee claim. In 2000 he was indicted in the United States on fundraising charges but never tried (because Lebanon does not extradite to the U.S.). Given how well documented his case is, Dbouk’s name cries out for inclusion on any list of refugee claimants connected to terrorism.