The Globe and Mail: New hope for the victims of torture

New hope for the victims of torture
A new UN ruling means Canada must rewrite its laws to
allow torture victims to sue their torturers, says
human-rights lawyer DAVID MATASs


By DAVID MATAS
The Globe and Mail - Thursday, May 26, 2005 Page A21

At the United Nations, breakthroughs are hard to
achieve but, just last week, the UN Committee against
Torture reached a pioneering conclusion, a conclusion
of global significance.
The context and the cause was Canada. Houshang
Bouzari, an Iranian-born businessman, was abducted and
tortured while on a trip to Iran in 1993 after he ran
afoul of the son of the country's president. Mr.
Bouzari became a Canadian permanent resident in 1998
and a citizen in 2001. He sued Iran in Canadian courts
in 2000 for compensation for his torture, but without
success.
The courts held that Canada's State Immunity Act was a
bar to Mr. Bouzari's lawsuit. The act, which provides
that states are not subject to other state's
jurisdictions, has certain exceptions, but liability
for torture is not one of them, the courts ruled.
But Canada is a signatory to the UN Convention against
Torture. The Convention obligates signatories to
provide victims of torture with a right to
compensation. In his lawsuit, Mr. Bouzari argued that
this obligation meant Canadian courts had a duty to
give him a right to compensation against Iran.
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The Canadian courts disagreed, holding that the duty
to compensate for torture set out in the Convention
applied only to torture inflicted in Canada, not to
torture inflicted abroad.
Now all that is changed.
Last Friday, the UN Committee against Torture released
its latest comments and conclusions about Canada's
compliance with the Convention against Torture.
The committee was well aware of what had happened to
Mr. Bouzari, and stated its concern at "the absence of
effective measures to provide civil compensation to
victims of torture in all cases." It recommended that
"the state party (i.e., Canada) should review its
position under Article 14 of the Convention to ensure
the provision of compensation through its civil
jurisdiction to all victims of torture." (Article 14
sets out the right to compensation for torture.)
Note the reference to "all cases" and "all victims of
torture." It is plain that what the committee had in
mind, especially in light of the Bouzari case, was
victims of torture inflicted abroad.
This is the first time in the history of this UN
committee that this point of view has been expressed,
not just about Canada but about any country. It is not
just a statement about what Canada should do. It is a
statement about what all countries should do, about
what the Convention against Torture means. And what it
means is that the obligation to provide a right to
compensation for torture does not just refer to
torture inflicted at home -- it applies to torture
anywhere. As a result, an individual such as Mr.
Bouzari should be able to successfully obtain a
judgment against a state such as Iran (and then have
such a court order executed against Iranian property
in Canada).
By its conclusions, the committee has made clear that
state immunity is no bar to such a proceeding. The
duty to provide a right to compensation trumps state
immunity. Canada cannot allow Iran to get away from a
lawsuit for torture by claiming sovereign immunity.
Individual torture victims in Canada can petition the
Committee against Torture and ask it to find Canada in
violation of the Convention against Torture when
Canada fails to provide a remedy for torture inflicted
abroad. Given that the committee has just written in
its conclusions about the Canadian situation, there is
little doubt what the committee's answer to such a
question would be.
Now that the Canadian courts have ruled that our State
Immunity Act does not allow for compensation for
foreign torture, Canada must change the act to allow
an exception for compensation for foreign torture.
Otherwise, Canada would be violating a human-rights
treaty it has promised to uphold.
Every other country that is party to the Convention
against Torture must do the same. Every country that
has signed and ratified the Convention against Torture
must allow victims of torture to seek redress for
torture inflicted abroad.
All of this could have a profound effect on other
cases of compensation for torture, including that of
Maher Arar, as well as that of Zahra Kazemi, the
murdered Canadian photojournalist, whose estate might
now be able to sue Iran.
Canadian foreign policy is based on promotion of
respect for human rights. Canada cannot, at one and
the same time, ask other states to combat torture and
ignore the committee's conclusion that Canada must
ensure the provision of compensation to "all victims
of torture," wherever they may have been tortured.
David Matas, a Winnipeg lawyer, represented Houshang
Bouzari in his lawsuit against Iran.