By Matt Eisenbrandt, Legal Director, Canadian Centre for International Justice
Last year, Roy Samathanam, a Tamil-Canadian, filed a complaint with the United Nations Human Rights Committee seeking to make Sri Lanka address the torture it inflicted on him. “I was illegally detained by the Sri Lankan government for three years even though I did nothing wrong,” Roy said. “I was brutally beaten, forced to witness the torture of others and endured repeated threats that my wife would be raped and my child killed, and now I want justice.” Working with the Canadian Centre for International Justice, Roy is asking the Committee to call on the Sri Lankan government to prosecute those responsible and compensate him.
Although Roy was already a Canadian citizen when he was tortured and Canada has been vocal in condemning Sri Lanka’s human rights record, Roy turned to the U.N. because he is essentially blocked from launching a case in this country. At the moment, if a torture survivor tries to file suit in Canada against the government that tortured him or her, the case will almost certainly be thrown out because the government and individual government officials will be immune under Canada’s State Immunity Act. As it stands now, this law is not only standing in the way of justice, it conflicts with Canada’s international obligations under the Convention against Torture.
As an advocate based in Canada working with torture survivors from all over the world, I hope this year will bring greater opportunities for survivors to have their day in court and that the Supreme Court of Canada will remedy the situation soon. On March 18, the Supreme Court will hear the case of Zahra Kazemi, the Iranian-Canadian photojournalist who was tortured to death in an Iranian prison in 2003. When Kazemi’s son, faced with a complete lack of accountability in Iran, turned to a Quebec court, his claims against Iran and three Iranian officials were dismissed under the State Immunity Act. Now, the Supreme Court will have the final say in whether or not the Kazemi lawsuit can advance or if foreign governments will continue to be shielded by immunity even when they commit torture and murder.
Unfortunately, international and regional tribunals have recently upheld the immunity of governments in torture and war crimes cases. In January, the European Court of Human Rights upheld the UK’s application of immunity favoring Saudi Arabia and several of its officials who were accused of torture. In 2012, the International Court of Justice granted immunity to Germany in cases seeking redress for World War II era atrocities. In one notable exception, an appeals court in the United States has held that immunity cannot be applied to human rights violations on the level of torture and crimes against humanity. The Supreme Court of Canada should follow this lead. If it does not, it will be imperative for Parliament to legislatively change the State Immunity Act to clearly state that Canadian courts cannot grant immunity when foreign governments are accused of atrocity crimes.
In a geopolitical climate dominated by national self-interest, the path to justice is fraught with rocky passages and hidden turns. In some years there is one step forward and five steps back; in better years, two back and three forward. I hope that in Canada and elsewhere tribunals will soon clear the path to justice for Roy Samathanam, the family of Zahra Kazemi and all survivors of torture.