IR lesson 7

Review

• International organizations- UN, IMF, WB, WTO

  • History of peacekeeping, platforms: Understand the historical context of peacekeeping operations led by these organizations, and explore their platforms for international cooperation.

  • Human rights versus sovereignty: Analyze the tension between upholding human rights and respecting the sovereignty of individual nations.

• International law- Public international law: Examine the body of rules and principles that govern the legal interactions between states and other international actors.

  • International Criminal law: Study the laws pertaining to individual criminal responsibility for international crimes such as genocide, war crimes, and crimes against humanity.

• Sovereignty in the South China Sea: Investigate the concept of sovereignty as it applies to territorial disputes and maritime rights in the South China Sea.

International Security

• Enduring question: Who or what should be ‘secure’ in the global system?- Dan note: why not ‘how’ does security happen?: Consider the different actors and entities that are prioritized for security in the global system, and explore the mechanisms through which security is achieved.

Natsec vs Securitization

• Security theory's position in North America and Europe.- North American:- IR: Examine the role of International Relations theory in shaping security perspectives in North America.
  - Security experts: Analyze the influence of security experts on policy decisions and public discourse in North America.
  - Political practice: Evaluate how security concerns are addressed and managed in North American political systems.

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  • European:- IR: Explore the role of International Relations theory in shaping security perspectives in Europe.

    • Security theory +: Consider the integration of additional theoretical frameworks beyond traditional security theory in European approaches.

    • Security experts: Analyze the influence of security experts on policy decisions and public discourse in Europe.

    • Political practice: Evaluate how security concerns are addressed and managed in European political systems.

Key Terminology

• National security- The preservation of the state and the existence of a military-type threat to its borders and sovereignty.: Define national security in terms of protecting the state from military threats to its borders and sovereignty.

• Human security- Individual level of security that focuses on non-state actors and emphasizes human pain and suffering.: Define human security as an individual-level concept that focuses on non-state actors and emphasizes the alleviation of human pain and suffering.

• Sovereignty- Successfully laying claim to the monopoly on the legitimate use of physical violence within a particular territory.: Define sovereignty as the ability to successfully assert control over the use of physical violence within a specific territory.

International Security - Centrality of Security

• Security is a very elusive and contested concept at the center of International Relations.

• Much can be done in the name of security, but there is no agreement about what it actually is.

International Law and Sovereignty

• Article 2 of the Charter of the United Nations (1945) asserts the right to member sovereignty.

• The Declaration of Principles of International Law (1970) reinforced this:- States shall refrain from the threat or use of force against the territorial integrity or political independence of any State.

  • States shall settle their international disputes by peaceful means.

  • Duty not to intervene in matters within the domestic jurisdiction of any State.

  • Duty of States to co-operate with one another.

  • The principle of equal rights and self-determination of peoples.

  • The principle of sovereign equality of States.

  • States shall fulfill in good faith the obligations assumed by them.

Traditional Approaches to Security

• Traditionally, security focused on conventional military threats to the continued existence of a state.

• States want the ability to govern their own land without interference, but what happens when external forces interfere?

• Traditional security takes us back to realism.

• Defensive realists say states seek security through stability.

• Offensive realists say the situation of anarchy results in uncertainty, meaning states seek security through the expansion of power.

• Are states the source of security or insecurity?: Discuss whether states are primarily responsible for promoting security or whether they contribute to insecurity.

Approaches to Security Studies

• Traditional

• Social constructivism

• Securitization approaches

• Peace studies

• Human security

• Gender security

• Critical security

• Historical Materialism

Key Terms: 'National' and 'Human' Security

• Traditional views emphasize the preservation of the state and a military threat to its borders, referred to as national security.

• More recent interpretations focus on non-state actors and human suffering, referred to as human security.

• The central debate is a levels of analysis issue.

Traditional Approaches (cont.)

• Conflict is not always in a state’s interest to ensure survival.

• Liberal democratic peace theory says that to go to war, a state must increase military spending, which decreases other economic budgets.

• Common practice is for parties to resolve the matter using diplomacy.

• Realist and liberal theories of security are not designed to incorporate other elements and actors, as their focus is built around the state and system level.

Moving Beyond the State

• Contemporary thinking asks whether other actors might also help or harm the security of the state.

• International relations has historically been a white, western centric discipline and sovereignty of western nation states has been imposed on the rest of the world

• The concept of ‘new wars’:- States are not the only actors on the world stage.

  • The goals of war are changing.

  • The focus upon military security and traditional ‘battles’ is becoming less common.

  • New wars have a variety of funding sources to include smuggling, diaspora donations, looting, kidnap, or ransom.

Contemporary Thinking on Security

• Contemporary thinking does not do away with the focus upon the state entirely but rather asks whether other actors might also help or harm security.

• It allows us to consider critiques asserting that International Relations has historically been a white, Western-centric discipline.

• State-based national security understandings became dominant.

• A greater focus upon civil wars and non-state actors as agents of insecurity in Africa rather than focusing on instances of state-on-state war across the continent.

New Wars

• Mary Kaldor coined the term 'new wars' in 1999 to describe types of warfare that are proliferating in the contemporary era that revolve around:- Violence between dynamic combinations of state and non-state networks

  • Fighting in the name of identity politics (such as religion) as opposed to ideology.

  • Attempts to achieve political, rather than physical, control of a population through fear and terror

  • Conflict financed through non-state means and channels, thus continuing violence.

• The conflicts engendered by Islamic State are a contemporary example that embody the criteria for new wars.- Islamic State is a non-state transnational terrorist group.

  • They seek to create a new type of state based upon religious identity centring on a new interpretation of Islam.

  • They sought and exercised political control over the sovereign territory of at least two nation-states.

  • They employed some of the same revenue streams discussed above by taxing people and businesses within its conquered territory.

Human Security

• Patrick Walkrach and several UN agencies are part of it.

Elements of Human Security

• The United Nations Human Development Report (UNHDR, 1994) lists universal threats to human security under seven categories.- Economic security – concerned with absolute poverty: Economic security focuses on addressing absolute poverty and ensuring basic economic well-being for individuals.

  • Food security: Food security involves guaranteeing access to sufficient, safe, and nutritious food for all people at all times.

  • Health security: Health security aims to protect individuals from diseases and ensure access to healthcare services.

  • Environmental security – threatened locally and globally: Environmental security addresses environmental threats such as pollution, climate change, and resource depletion that can impact human well-being.

  • Personal security – most important element of human security: Personal security is the protection of individuals from violence, crime, and other physical threats.

  • Community security – emphasizes support and identity gained from a group: Community security emphasizes the importance of social support networks and group identity in enhancing individuals' sense of security.

  • Political security – freedom from human rights abuses: Political security focuses on protecting individuals from human rights abuses, political repression, and state violence.

• Formulating security at a human level is significantly more expansive than traditional approaches.

Key Insights: Emerging Norms of Human Protection

• Bellamy (2017) outlines eight norms that have emerged within the global system, each of which shows evolution in the broader category of human security.- International humanitarian law: Normative standard of civilian protection via codified international law that regulates the conduct of soldiers in war and seeks to protect non-combatants (e.g., 1948 Genocide Convention, 1949 Geneva Conventions).

  • Protection of civilians: UN considers and acts on civilian protection, interpreting the UN Charter to override the will of states (e.g., Resolution 2165 authorizing humanitarian aid into Syria in 2014).

  • Addressing specific vulnerabilities: Identifying and mitigating harm to vulnerable groups (e.g., refugees granted asylum via UN High Commissioner).

  • Human rights: Mechanisms monitor and assess state performance (e.g., reports to name and shame states).

  • International criminal justice: The International Criminal Court tries individuals for serious crimes, providing a normative deterrent effect.

  • Humanitarian action: Peacekeeping and humanitarian missions coordinated by the UN, using force or peaceful means.

  • Regional initiatives: Peacekeeping and humanitarian efforts by regional organizations like the EU and AU, adding normative and operational momentum.

  • Responsibility to Protect: Since 2005, part of UN language, clarifying developments in civilian protection and reminding states of their responsibilities.

Protecting People

• Eight norms within the global system that have emerged and evolved:- International Humanitarian Law – written law that protects non-combatants in war.

  • Protection of Civilians – focused on ensuring the UN considers and acts on civilian protection, not just states.

  • Addressing specific vulnerabilities – identifies vulnerable groups and builds frameworks to mitigate harm to them.

  • Human Rights – mechanisms developed to monitor and assess how states perform in human rights categories.

  • International Criminal Justice – tries individuals for the most serious crimes.

  • Humanitarian Action – peacekeeping and humanitarian missions.

  • Regional Initiatives - regional peacekeeping and humanitarian missions.

  • Responsibility to Protect – part of working language to add and clarify developments in the ‘Protection of Civilians’.

Norms of Human Protection

• Practices of warfare- Lieber code - limit the conduct of soldiers

  • Emergence of the Red Cross

• Post WWII- Nuremberg trials

  • International court of justice (PCIJ before it)

  • International humanitarian law through treaties (Geneva conventions)

  • Established the idea of combatants and non- combatants

  • Is there a logical limit to the use of force in wartime?: Explore whether there are inherent boundaries to the acceptable use of force during armed conflicts.

Norms of Human Protection

• Nuremberg + Rwanda + Yugoslavia- Leads to international criminal court 1998, 2002

• 1999 UNSC resolution 1265- Willingness to consider appropriate measures in response to situations of armed conflict where civilians being harmed or humanitarian Aid is being obstructed

• UNSC focus on non-international armed conflict following Cold War- Gender, peace and security

• 2011 Libya intervention for human protection

Chapter VII: United Nations Charter

• Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression

• Article 39- The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Chapter VII

• Begins to be invoked after the end of the Cold War

• 1999 Sierra Leone, DRC

• 2000 - 1325 and 1820

• Efforts for UNSC to deal with gendered violence- Debates about victimization: Discuss the debates surrounding the portrayal of women as victims in conflict situations.

  • Debates about agency of women: Explore the debates regarding the role and agency of women in peace and security processes.

Human Rights

• Peer review increasingly utilized to assess human rights activities

• Human Rights Commission disbanded - State sovereignty used to Shield abusers

• Human Rights Council and Universal Periodic Review (Canada chastised for MMIW)

• More International mechanisms to Monitor and report on mass violence

• Special rapporteurs and secretary-general reports

• Is the UN primarily a media organization?: Question whether the United Nations functions primarily as a platform for disseminating information and shaping public opinion.

International Criminal Justice

• ICC and special tribunals

• Wide prosecutorial discretion

• Africa Union arguments to withdraw

• Who is more responsible for the corrosion of international Justice: Osama bin Laden or George W Bush?: Debate the respective roles of Osama bin Laden and George W. Bush in undermining international justice.

• Is there anything new about terrorism?: Question whether contemporary forms of terrorism represent novel phenomena or continuations of historical patterns.

• Why would more surveillance result in less terrorists?: Explore the relationship between increased surveillance and its potential impact on reducing terrorist activity.

Humanitarian Action

• Europe in the 1970s Helsinki Accords

• OSCE Organization for security and cooperation in Europe

• High Commissioner for National minorities

• Ongoing and continued Roma persecution

• Collapse of Schengen Area

• AU efforts to organize- Challenge the colonial legacies of the UN

  • Establish Regional peacekeeping initiatives in Darfur, Mali and CAR

2005 R2P - Three Pillars

• Responsibility of each state to use appropriate and necessary means to protect its own populations from genocide, war crimes, ethnic cleansing and crimes against humanity

• Commitment of the International Community to encourage and help States exercise this responsibility

• International responsibility to respond to the United Nations in a timely and decisive manner when National authorities are manifestly failing to protect their populations from 1.

R2P - Implementation

• Significant limits to what Outsiders can do without state cooperation

• Tamil population and Sri Lanka

• Human protection with finite global capacity

• Post Iraq privatization of security

• Human protection is politically sensitive

• At what point would it be acceptable for other countries to intervene in defense of Canada's indigenous peoples?: Consider the circumstances under which international intervention would be justifiable to protect the rights and well-being of indigenous peoples in Canada.

• Political will is not in a vacuum

• Action is always for someone and for some purpose

R2P Legacies

• ‘Responsibility to Protect’

• Canadian push by Lloyd Axworthy to move beyond nation state focus

• Challenging the security of the state by talking about the security of people

• Often the state is the threat to people's security

• Early enthusiasm, innovative

• Everyone agrees with

• China and Russia said they agreed that it's up to states to ensure their citizens’ rights

• So no agreement at all

Why?

• The problem of defining security- in/security

Securitization (essay approach)

• Securitization in a nutshell- Actor identifies existential threat, asks for emergency executive powers (FLQ)

  • Audience accepts the issue, moves outside the realm of normal politics (Constitution/charter doesn’t apply)

• This article examines the four types- Popular

  • Elite

  • Technocratic

  • Scientific

• ‘iterative’ – requiring back and forth between the leader and the audience

• Why do some things become apolitical?: Explore the reasons why certain issues are removed from political debate and treated as matters of consensus or technical expertise.

Copenhagen School

• Moving beyond types of threats (military, political, economic, ecological, etc) to how intense the threat is (Harper on racialism)

• The ‘securitizing move’ is either accepted or rejected by the audience (consider cannabis reasonable, meth not)

• The features of the threat either help or hurt securitization (think lone wolf Ottawa attacks)

• Who is speaking matters, what they say matters, what the public thinks matters (political process)

• The process can work in reverse (desecuritization)- Speaker proposes there is no threat, it can be managed, it is accepted

Built-In Critiques

• Leaders can be non-state: experts, academics, pundits, religious leaders.

• Degree of threat changes over time (temporal): war on drugs.

• It is not instant, it is issue-dependent, and social perception matters: homosexuals or communists as national security threats.

• Should Apple be able to actively monitor your phone contents to stop CSAM?: Debate the ethical and legal implications of allowing technology companies to monitor personal devices to combat child sexual abuse material.

Dramaturgical Analysis

• If the speech act is a performance, we need to understand what makes for successful performances

• Combination of actor – audience relationship (Rocky Horror)

• Can draw upon rules, emotion, logic, fear (minutemen, Trump)

• Popular, elite, technocratic and scientific

• All require different audiences, all have different responses

• Why is there a debate about global warming?: Investigate the factors contributing to the ongoing debate surrounding global warming, including scientific, political, and economic considerations.

Hansen and the Little Mermaid

• Pre-Disney little mermaid- She has to sacrifice her voice and she would die the next morning if he married someone else – can’t appeal to him without voice, dies.

• Central critique of securitization theory - the inability to speak

• Missing gender analysis and the role of gender in developing threats

• Highlight the lie at the center of securitization theory – securitization of silence happens all the time

• Leaders/actors securitize a referent object that is existentially threatened- State, environment, economy - voice helps decide what the objects are

• What voices should be excluded from the university discussion?: Consider the principles and criteria for determining which perspectives or viewpoints should be excluded from discussions within a university setting.

The Power of Creation

• Successful securitization depends on words and acceptance

• Patriarchy is integral to contemporary acceptance (last names) therefore there is a gender lie at the center of securitization

• Is society becoming more heteronormative or homosocial?: Analyze the trends and dynamics shaping societal norms related to sexuality and social interaction.

• The ‘existential’ character of the threat is framed in state terms- Social reproduction, unemployment, sexual violence, domestic violence all missing

• 700B/$7T and 2-3T raised for crisis of financial markets - not for poverty, AIDS, malaria, sanitation

• Threats to society vs threats in society

• What is the common collective good in Canada? (MMIW vs True Detective season 4 finale): Explore the concept of the common collective good in Canada and how it is reflected in discussions surrounding issues like Missing and Murdered Indigenous Women and Girls (MMIW).

International Security vs Social Security

• Collective survival justifies violating collective rules

• ‘sovereign exception’ or sovereignty = ability to decide when law itself can be suspended (monopoly of violence)

• Emergence of the concentration camp = demos/people to be protected

• Is democracy inherently genocidal?: Question whether democratic systems have inherent tendencies toward genocide or mass violence.

• Honour Killings in Pakistan/ Domestic violence/ MMIW- Killing individual women because of their ‘threat’ to society

• Dominant groups can dictate social threat as existential

• Judiciary and state social structures reinforce the legality

• What should be done when the state fails to protect groups within its borders?: Consider the appropriate responses and interventions when a state fails to protect vulnerable groups within its borders.

The Two Problems

• Security as silence- Women can’t report GBSV as risk being securitized

• The existential threat to women is a successful securitization

• International security- Successful securitization would require as sufficiently powerful group of states, but states consider these issues domestic/internal/social

• The problem stems from the linguistic character of bodies- Gender and sexual violence validates authorized forms of security

• Bodily politics are the blind spot of speech – why the ‘disappeared’ are so easily excluded (female infanticide consistent 2-4% of the population, or 100m )

• How do we deal with the threat of 'men'?: Examine the ways in which masculinity and gender dynamics contribute to social and political challenges.

Societal Security – How Are Identities Threatened?

• Securitization uses ‘fuzzy’ concepts

• Society isn’t included in the realist/traditional model

• Societal security = ‘ the cultural, linguistic and identity of survival of a particular social group’- Assumed foundation of threat to nationstate

• What is society?- Both objective (not other societies) and subjective (‘we- feeling’)

  • Danger of reducing threats to subjective (Nazi threat to Jews)

  • Is racism subjective or objective?: Debate whether racism is primarily a subjective phenomenon rooted in individual attitudes or an objective system of power and inequality.

• The problem is securitization- Speech act within a specific rhetorical structure - threat to the community - rendered effective or ineffective

The Problem of Identity

• Many societal subunits (EU)- Portugal and the efforts to reject EU

• Reification- Treating the subjective as objective - Does capitalism exist?: Question whether capitalism is a concrete, objective reality or a social construct subject to interpretation and change.

• Identities are rarely stable, they come from 1648 - which is itself a fiction

• Securitization ALWAYS reifies- Assumes a single actor, assumes a single outcome

• How useful is identity? How do we determine motivation (intent problem)?

• Can people change? Donald Trump?

Solution: Reject ‘Society’

• Psychological facts are not applicable to every individual- Reproduction of identities always succeeds and fails (iterative)

  • Norms are goals and achievements

• Group categories are not stable- They can certainly get ‘stuck’ = conservative/traditional/fundamentalist

  • Is conservative politics radical?: Question whether conservative political ideologies and movements can be considered radical in certain contexts.

Conclusion

• Traditionally, IR emphasised the security of the state when answering who, or what, should be secure in the global system.

• Repeated episodes of human suffering have highlighted to scholars and practitioners the need to take human suffering seriously.

• Security may still be about bombs and borders, but it can also be about bodies too.

Transnational Terrorism

• Enduring question: In what ways does terrorism expose the dark side of globalization?: Consider the ways in which terrorism exploits and is facilitated by the interconnectedness and vulnerabilities of globalization.

Key Terminology/Insights

• Transnational terrorism – activities and organisational forms of terror that reach beyond their point of origin (e.g. ISIS; al Qaeda).

• No common definition of terrorism in IR.

• The leaderless jihad – refers to transnational terrorist networks that are decentralised. Negotiations are more difficult because it is unclear if the person holds clout to influence other members.

• Counterterrorism – actions or strategies to eradicate, prevent, or limit the negative effect of terrorism.

What is Transnational Terrorism?

• Broadly understood as the use or threat of violence by non-state actors to influence social or political change.

• History of terrorist groups (Rapoport, 2002):- An ‘anarchist’ wave beginning in the 1880s

  • An ‘anticolonial’ wave beginning in the 1920s

  • A ‘new left’ wave beginning in the 1960s

  • A ‘religious’ wave beginning in 1979

• Argument for a fifth wave – a product of, and challenge to, key ideas associated with globalisation.

State of Exception and Terrorism

• Monopoly of violence- Contested?

  • Ever real?

• Violence is inherently contingent- Experienced rather than understood

• State of exception = threat to monopoly

• Acts of individuals = threat to monopoly

• Ability to claim sovereign status requires what?

• Colombia and FARC

International Crimes

• Fundamental issues of jurisdiction- Who should be responsible for a crime in international waters?

  • Who is responsible for what happens on Mars?

• Universal condemnation- Slavery, piracy, war crimes, genocide, hijacking sabotage of civil aircraft

• Positive steps to prevent as well as prosecute, turn over offenders for trial

• Should terrorism be included as universal crime?

• Who should adjudicate terrorist acts?

Current Law on Terrorism

• UN special Tribunal for Lebanon- Establish customary law ( versus treaty, human, criminal)

• Should it be transnational?

• 13 conventions or protocols exist prohibit specific acts of terrorism- Tokyo 1963 – onboard airline safety

  • 1970 – Hague convention (1968 - Israeli jet for Palestinian prisoners) – criminal offense

  • Obliged to extradite (norm of extradition)

  • Grounds for intervention if state doesn’t?

• Little consensus for prosecution = ineffectual- 50 arrested, 7 imprisoned, released went on to Munich massacre

• It is easier to criminalize terrorist financing than terrorism itself – why?

• Is terrorism an integral part of humanity?: Question whether terrorism is an inherent aspect of human behavior and social organization.

General Assembly

• 1997 International Convention on the Suppression of Terrorist Bombings (US signed, not ratified by 9/11)- Convention on jurisdiction intentional use of explosives in public places

• 1999 financing of terrorism

• Moving beyond state enforcement to international obligation

• State enforcement exhausted or ineffectual (like human rights)

• 2001 – terrorism serious threat, challenge to all states, condemns all acts

• SC agrees

• Is terrorism universally reviled?: Question whether terrorism is universally condemned across different cultures, societies, and political systems.

• Are states synonymous with peace?: Challenge the assumption that states are inherently peaceful actors in international relations.

Resolution Without Definition?

• Hundreds of terms

• Freedom fighter vs. terrorist (inherently liberal)

• ‘Unlawful threat or act of violence committed for political purposes by non-state actor’?

• No ability to draft treaty without definition

• Always going to run into exceptions (Mandela, Tibet)

• SCOC: term open to manipulation, conjecture, polemic

• Canada and anti-terror legislation, US patriot, UK terrorism

• Financing and facilitation of terrorism crimes (potential crimes?)

• SCOC refuses to define

• Can states be trusted to prosecute terrorism (victims as prosecutors?)

National Indicators

• Fragmentation and lack of domestic consensus- Domestic versus international terrorism

  • Different definitions for different legal purposes, (criminal, civil, administrative)

• Fundamental legal differences between states about what constitutes terrorism = no universal definition

• Even when states agree on a definition = not appropriate for international model

• Does the pursuit of a definition of terrorism symbolize the fantasy of resolving terrorism? Is there any aspect of humanity that has universal definition? I.e. murder versus wartime killing

UN SC 1373 (2001), 1566 (2004)

• Even when working definitions are established - still function under the framework of soft law- No desire to have one singular criminal definition

• Involves a) harming people, b) purpose to provoke a state of fear, c) also constitutes an offense under criminal law

• Do we agree with Chomsky’s definition?

Which Are Terrorism?

• What makes a legitimate nonconventional actors (revolutionaries) versus illegitimate nonconventional actors (terrorists)?

• Willful and calculated choice of innocents?

Apparently Banned List

• Georgian suicide bombings

• Black Bloc protests

• Somalian pirates

• Anti-Apartheid violence

• Anti-war violence

• Tibetan Riots

• Fight Club ending

• US in Nicaragua, East Timor, Laos

• FARC

• Watts riots

• Subcommandante Marcos/EZLN

• Guerillas

• Canadian Indigenous groups in Oka/Caledonia

• IRA

• Greenpeace actions

• Sandinista National Liberation Front

• Red Army Faction

• The Diggers

• Chiapas conflict

• Branch Davidians in Waco, Texas

• Occupy movement

• Standing Rock protests

• Pussy Riot protest

• Yellow Vest movement

• Hong Kong protests

• trucker protests in Ottawa

Elements of a Definition

• If terrorism was thought to seriously violate human rights - definition should include this- Terrorism infringes the right to life and security of person

  • Prohibition should extend to attacks on public or private property, with a likelihood to endanger people, utilities and public infrastructure

• Why isn’t terrorism criminal? Black Panthers?

• What’s the difference between terror and intimidation?

• Is there the likelihood to make terrorism too ubiquitous?

Exceptions

• Does the need for exceptions undermine the very purpose of law- Advocacy, protest, dissent, industrial action - ‘ not intended to cause death, serious bodily harm or serious risk to public health or safety’

• Air-traffic controllers- Disrupting traffic

  • Hospital strikes

• General strike

• What is the link between democracy and terrorism?: Explore the complex relationship between democratic governance and the emergence or suppression of terrorism.

Fundamental Tension Between Threats and Civil Liberties

• Three key Supreme Court rulings relating to civil liberties in Canada- Stinchcombe – crown has a duty to provide all evidence that could possibly be relevant to a case, regardless if they’re going to use it at trial

  • O’Connor – Judge can review records to ensure whether or not they are relevant

  • Garofoli –the accused should be allowed to view wiretap information used against them

• Three key dynamics in CSIS anti-terror cases- ‘tear-line’ between national security and criminal prosecution

  • Third party status for CSIS and firewall between CSIS and RCMP

  • Allow all-of-government public safety risks approach

Issues

• Toronto 18 – CSIS knew about terrorist training camp did not tell RCMP

• Response to Air India

• I2E in Canada unlike UK (joint) and US (entrapment)

• ‘Relevance’ turns ‘information’ into ‘evidence’

• Should non-questionable intelligence be used in criminal cases?: Consider the ethical and legal implications of using intelligence that cannot be questioned or verified in criminal proceedings.

How Do You Prosecute Terrorists?

• Zone A: CSIS intel holdings, irrelevant as evidence

• Zone B: Police info holdings, relevant as evidence

• The Relevance "Tear-Line"-

• The rules of evidence overlap with these zones in the manner portrayed

• Table 1: Topology of 12E- Initial Disclosure Standard

  • Evidentiary-Intelligence Shield (Public Interest Immunities)

What Are The Problems?

• Public safety risk – sideload information inhibits both actors

• Investigative efficiency – duplicate investigations, scarce resources, expensive

• Investigative timing and latent threats –- If a CSIS investigation produces evidence of a crime, it needs to be re-investigated by the RCMP

  • If they stop doing it by the time the RCMP investigates, nothing can be done

  • If actions took place overseas, it can’t be used in court

• De facto criminal immunity –- If CSIS has interfered in an RCMP investigation, it is a poison pill for prosecution

Scenario

• Bob is subject of CSIS investigation based on Jordanian metadata- Talking to a bomb maker from Hezbollah (terrorist entity under Canadian law)

• CSIS starts investigation – has reasonable grounds to proceed