M
embers of ICJ Canada who occasionally wonder what the organization is up to might have considered going to Berlin this August to attend the ICJ’s biennial conference. ICJ members from five continents representing all of the major legal systems of the world except China (Taiwan was there) met to talk about “Counter-Terrorism Measures and Human Rights.” The discussion was livelier than the gravitas of the topic might suggest, ranging from tongue-in-cheek Australian judges (“we’re being outmanoeuvred by the wily Europeans”) to activists from Togo (“the real terrorists are multi-national corporations”) and from the curmudgeonly Lord William Goodheart (“we need some clear thinking on judicial appointments to the European Court”) to the high velocity re-energized Louise Arbour, U.N. High Commissioner for Human Rights (“every day we are moving closer to making international human rights a universally enforceable branch of international law”).

While terrorism itself is the most egregious denial of the human rights of its victims, the conference focussed on the ways in which counter-terrorism measures have or may overshoot their limited purpose.

There was general argument that adoption of a “war” paradigm (i.e., the “war on terror”) had produced a chilling effect on public discussion. Not so in Berlin, where the intellectual resources on hand were impressive. Those appalled by recent disclosures of torture in many countries, including the Middle East, could obtain some insight from the U.N. special rapporteur on Torture, Theo Van Boven. Others, galvanized by the recent events in Darfur, could chat if they wished with Professor Abdullah An Na’im of the Sudan, currently a visiting professor at the Emory School of Law in the United States. Those concerned about the evolving U.N. treaty on Forced Disappearances could talk to delegates from Argentina and Chile, who had firsthand experience of the subject. Ms. Hina Jilani, ICJ member and U.N. Special Representative on Human Rights Defenders, provided an Asian perspective. Speakers such as Mr. Mokhtar Trifi, of the Ligue Tunisienne pour la Défense des Droits de l’Homme , provided insights into terrorism in North Africa. Mr. Robert Goldman, recently named special U.N. Independent Expert on Human Rights and Terrorism, solicited views of ICJ members at the many social gatherings (including a visit to the Reichstag laid on by our hosts, the German Department of Foreign Affairs). The eclectic group included an ICJ member on the U.N. Human Rights Committee (Sir Nigel Rodney), retired judges (including Claire L’Heureux-Dubé), current judges (including Michèle Rivet), activists, scholars, lawyers, and a reporter from the Wall Street Journal (“governments are monopolizing the anti- terrorist discourse”). By the end of the session, almost everyone was on speaking terms with almost everyone else.

Delegates who wished to raise their international profile networked furiously in and out of the working sessions. For those looking for distraction, the bright lights of Berlin were on the doorstep.

For my part, the most moving address was from ICJ President Arthur Chaskalson, Chief Justice of the Constitutional Court of South Africa, who described growing up in southern Africa in an atmosphere of increasing repression, each carefully crafted legislative measure building on the failure of the last. He expressed particular concern about powers of indefinite detention, now widespread in Europe, as a curtain behind which aggressive security forces can work free of judicial or even administrative supervision. At some point, even in developed countries, counter-terrorism measures may become such that the citizens may feel safer but they will no longer feel as free as they would if the needs of “Counter-Terrorism” were kept in proper perspective.

There was general agreement that “terrorism” is a poorly defined concept, and this lack of definition can lead to what was called “function creep.” This occurs when a poorly targeted counter-terrorism measure adopted for a laudable purpose is so vague that it can be applied by the police or security forces for purposes outside the original scope contemplated by its framers. Such topics were discussed in a series of working groups, sometimes divided by subject matter (e.g. the response of international organizations to terrorism and counter-terrorism), sometimes by geography (e.g. sub-Sahara Africa), who then reported the outcome of their discussions to the plenary session. At the conclusion of the two-day conference, conducted in both French and English (with simultaneous translation), the delegates adopted a resolution on counter-terrorism measures, which is available at www.icjcanada.org under Documents or by e-mail or regular mail if requested.

It is a pity that more Canadian judges and lawyers were unable to attend the Berlin conference. The tremendous resources and clout of the ICJ were on full display. Regrettably, Canadians did not play a larger role, which they could and should have, with all due respect. The next ICJ biennial conference will likely be held in Hong Kong or other Southeast Asia location in the summer of 2006. •