Canadian jurist blasts EU for not listing Hezbollah as terror entity

Cotler: It is the “EU’s obligation, not just a policy option, to put Hezbollah on the terrorist list.”

By YONAH JEREMY BOB
Hezbollah supporters (photo credit: Reuters/Khalil Hassan)
Hezbollah supporters
(photo credit: Reuters/Khalil Hassan)
Former Canadian justice minister Irwin Cotler told The Jerusalem Post that Israel’s lack of a full-time foreign minister could harm its ability to convince the international community to take terrorist threats like Iran and Hezbollah seriously, including using anti-terror laws against them.
Cotler spoke to a closed-session of the Knesset Foreign Affairs and Defense Committee earlier last week, partially to press Israel to wage a more articulate campaign regarding the international community’s legal obligations to implement anti-terror treaties, including listing Hezbollah as a terrorist entity.
The former Canadian justice minister said Israel must convince the world that taking action against the Islamic Republic, Hezbollah and other terrorist groups is part of their international obligations under anti-terror law, in accordance with several UN Security Council resolutions and multilateral treaties. Complying with these obligations could include confiscating terrorist assets, arresting their operatives or listing them as terrorist organizations.
“Action must be taken by the EU foreign ministers later this month on whether to add Hezbollah to the terror entity list – it is shocking that it has not happened yet,” Cotler said.
It is the “EU’s obligation, not just a policy option, to put Hezbollah on the terrorist list,” he said.
Cotler based this on a number of international legal principles. First, he cited the “human security principle.”
“Terror and transnational terror constitutes an assault on the security of democracies like Israel, Canada and the EU countries, as well as on the rights of each individual inhabitant to ‘life, liberty and security,’” he said.
“Anti-terror law is about protecting both states and individual liberties,” Cotler said. Further, it is “a paradox that the EU wins the Nobel Prize for peace, holds itself out as the human rights leader as a linchpin of its foreign policy, but has not put Hezbollah on its terrorist list – although combating such terror is a foundational principle of human rights.”
Next, Cotler talked about the “zero tolerance for terrorism principle.”
Under 13 anti-terror treaties and many UN Security Council resolutions, including Resolution 1377, all acts and methods of terror are “unequivocally condemned” and considered “unjustifiable regardless of motivation,” he said.
This principle exposes the “false symbolism” which many EU representatives use as a mantra – that “one person’s terrorist is another person’s freedom fighter,” he said.
Such mantras, Cotler said, “undermine a serious inquiry into combatting terror” and have the effect of “blunting clear counter-terror” international legal obligations imposed on all nations.
Cotler said the international community and even Israel must take greater notice of the depth and recent growth of Iran and Hezbollah’s operations in South America and Africa, noting that the operations were heavily documented in a recent report from Argentina and one from the US State Department.
In terms of making the campaign effective, he said: “Whenever there is no full-time foreign minister, or a prime minister acting as foreign minister, it will necessarily result – in any place – with less effective advocacy of a country’s principles and policies.”
Prime Minister Binyamin Netanyahu also holds the Foreign Ministry portfolio.
“The sooner Israel has a foreign minister the better,” he emphasized, since a major public relations and legal campaign such as he proposes “needs to be run by the foreign minister, and it is hard to subcontract that to other offices or the prime minister, who is sufficiently burdened without having to take on the Foreign Ministry as well.”
Cotler said that the campaign he envisions would need a “foreign minister engaged in comprehensive appreciation of international terrorist connects, a foreign minister who is involved on an ongoing basis with his counterparts – which a prime minister necessarily can’t do. Who else explains Israel’s point of view?” Part of the former justice minister’s campaign includes treating terrorism with “preventative actions” and not merely waiting until after a terrorist act is committed, as countries do in the law enforcement paradigm.
The Post asked Cotler on Wednesday if that meant he supported administrative detention, a policy in which suspected terrorists are sometimes held in custody for indefinite periods of time, with judicial review but without standard charges and a trial against them.
The government says the purpose of its administrative detention policy, which only a small number of democratic nations use and most are opposed to, is often preventative – to stop terrorists from carrying out attacks even when they cannot be formally charged, such as where charging them would require exposing an undercover field operative.
Cotler responded that it “all depends, the US is using it in Guantanomo [Bay detention camp], and I have written critically of the US use of it and Israel’s use of it – but the question is not whether to have it, it even exists in Canada.”
Rather, said Cotler, the main point is to make sure it is only used as an “exceptional remedy, that you need appropriate safeguards,” and to be clear about “when it is invoked, how it is invoked, what oversight there will be, including executive, judicial, parliamentary and civil society.”
Cotler explained: “When we [Canada] enacted anti-terror law and policies immediately after 9/11, we made provisions for such exceptions,” though administrative detention would not be “regular.”
“Prior to 9/11 we could use security certificates to authorize detention of people who were deemed a threat to national security... [with their status] reviewable every six months,” he said.
Cotler said that if administrative detention was used, it was important to “ensure disclosure of classified evidence to the counsel of the detainee.”
At the same time, he recognized Israel’s unique context, as what he called the democratic nation most targeted by the most terrorists in the world. Cotler then called on the international community to take notice of this context in judging Israel.
Next, Cotler was asked whether the use of concepts such as universal jurisdiction (where any country can prosecute any person on war crimes, even if the person is a non-citizen and the crimes were not committed in that country) to aggressively arrest and prosecute terrorists, could backfire into a new round of foreign cases against Israelis and IDF personnel.
Cotler said that he had personally helped “shepherd into Canadian law” principles of “universal jurisdiction for the commission of war crimes” and that the “fact that there is ‘lawfare,’ where this principle is abused, does not mean it is invalid.”
Rather, he said, it “just means that you need to combat abuse of that principle. Lawfair will prevail over lawfare... people abuse the speed limit, you don’t get rid of the speed limit,” and universal jurisdiction can still be used to fight “impunity.”
Cotler added that the anxiety about a backlash made no sense – “they are already doing it,” he said regarding the wave of foreign allegations of war crimes against Israelis in several countries.
He also said that when he “noted that it was subject to abuse, we [in Canada] put in a protective framework, so it would apply only under certain circumstances and with the attorney-general and justice minister’s approval.”