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Speech in Senate Chamber: Study on Economic and Political Developments in the Republic of Turkey-Second Report of Foreign Affairs and International Trade Committee—Motion in Amendment Adopted—Debate Continued

 Study on Economic and Political Developments in the Republic of Turkey Second Report of Foreign Affairs and International Trade Committee—Motion in Amendment Adopted—Debate Continued

 On the Order: 

Resuming debate on the motion of the Honourable Senator Fortin-Duplessis, seconded by the Honourable Senator Unger, for the adoption of the second report of the Standing Senate Committee on Foreign Affairs and International Trade entitled: Building Bridges: Canada-Turkey Relations and Beyond, tabled in the Senate on November 28, 2013;

And on the motion in amendment of the Honourable Senator Andreychuk, seconded by the Honourable Senator Plett, that the motion to adopt the report be amended to read as follows:

That the second report of the Standing Senate Committee on Foreign Affairs and International Trade entitled: Building Bridges: Canada-Turkey Relations and Beyond, presented in the Senate on November 28, 2013, be adopted and that, pursuant to rule 12-24(1), the Senate request a complete and detailed response from the government, with the Minister of Foreign Affairs being identified as minister responsible for responding to the report, in consultation with the Minister of International Trade.


The Hon. the Speaker
pro tempore:
On the main motion.

Senator Cools:
Honourable senators, I rise to speak to the main motion as amended of the second report of the Standing Committee on Foreign Affairs and International Trade Study on Economic and Political Developments in the Republic of Turkey, to request the government's response. This Foreign Affairs and International Trade Committee report, entitled Building Bridges: Canada-Turkey Relations and Beyond, is a credit to the Senate. Its forward-looking approach is fitting to the times.

Honourable senators, some years back, many legislative assemblies worldwide adopted resolutions that the 1915 Armenian tragedy be recognized as genocide. This Senate adopted such resolution on June 13, 2002. Then, many employed the term "genocide" as though it were a term of memorial and memorializing and a term of recognition, remembrance and commemoration. Remembrance Day in Canada is a solemn day. On the eleventh day of the eleventh month at the eleventh hour, as led by our Governor General, every person stops. We pause, united in a collective and national moment of silence. We bow our heads in prayers of remembrance. Lest we forget.

Honourable senators, national days of remembrance engage the whole country in the sacred and divine state and act of prayer, in remembrance and commemoration of their war dead. All nations and peoples share in these collective and national rituals, actually national rites of passage. Most nations hold memorial and remembrance services yearly, on designated days, appointed for the public and collective grieving for their war dead, regardless of the side of the war they had fought. In these rites, all remember and uphold the sacrifice of the many who served and the many who fell in that monstrous robbery of human life that we call war.

Honourable senators, the term "genocide" is an important term of recent birth. It is a legal term, created for and directed towards criminal prosecution in courts of competent jurisdiction. It is not a term of commemoration, remembrance or recognition, nor a term of national sorrow. It is a legal characterization. Genocide, as a legal and formal determination, cannot be decided absent competent legal and judicial process, nor can it be decided except in courts of competent jurisdiction. The term "genocide" is a definitive criminating appellation. It is not an alternate word for "remembrance." The term "genocide" aims to criminalize and punish. It invades national sovereignty. The selective labelling of some, but not all, countries for selected ancient violent acts is unjust and will foster its own new injustices. We must always remember that the human capacity for injustice is boundless.

Honourable senators, the jurisdiction to make genocide judgments is a large and precarious question. We should recall the huge and still unresolved legal controversies about the jurisdiction of the post-World War II trials by the Nuremberg Military Tribunal, by the war victors over the war vanquished. The victors tried the vanquished. These trials, executions and imprisonments at the time were thought to be more humane than the savage act of summary execution in the old military battlefield practice, that was the old custom. The noted juridical aspect of these military trials was that they proceeded by the copious tons of documented evidence captured from the archives, offices and possession of the Nazis, of the vanquished enemy. The judgment of genocide is reserved to the competent courts, constituted with the competent jurisdiction.

Honourable senators, the term "genocide" could very easily be applied to the centuries-long slavery of black peoples, to the Boer War, to King Leopold's treatment of the Black peoples of the Belgian Congo, and to the biblical, Joshua-led, Israelite slaughter and expulsion of the Canaanites, to capture Canaan as the Promised Land for the Hebrews. History abounds in human cruelty. It is one thing for someone to use the word "genocide" as a metaphor. It is quite another for a parliamentary assembly to adopt resolutions that have the international effect of pointing an accusatory finger at a sovereign nation for ancient war events that well antedate the term and legal regime that we call genocide. Retrospectivity in law and legal application has always been condemned. It is well-established principle and practice that selective application of criminal law to the selected some and not all is unjust. This is true for individuals and nations.

The retroactive and retrospective application of laws to eras and events that well antedate those laws is unfair, unjust and unwise. This principle, in European legal canon, is stated as Nullum crimen sine lege, nulla poena sine lege praevia. This means, "No crime without law and no penalty without previous law."

Honourable senators, a glance at human history and the human condition quickly reveals a sorry, sad tale of what Robert Burns named "man's inhumanity to man." The selective criminative application of new legal regimes to ancient war episodes of man's inhumanity to man is to be discouraged and condemned. Selective application should be equally opposed if it is done to meet political exigencies. It is a maxim of law that courts, judges and judicial processes should not be made to serve political ends. Judicial process used for political purposes is unjust and a glaring example of man's inhumanity to man. Judicial process as weapons in the arsenals of political warfare is heresy to justice. It is not objective or impartial, as the blindfolded Goddess of Justice, Themis, demands by her tightly held and perfectly balanced scales of justice. Judicial process should not be deployed for politics and political goals.

Honourable senators, all humans have a duty to study human history in its cruelty and to form judgements. We should probe and understand man's inhumanity to man so as to avoid repetition. The term "genocide," as a legal and blunt instrument, is new to human experience. It is a needed concept that compels us to face the dark and cruel sides of human beings and the pathologies that lurk therein, readily unleashed in certain conditions, with the most black-hearted and barbarous results. What the Nazis did was black-hearted. I submit that the abuse, misuse and ill-use of the legal criminative construct "genocide" and its judicial weapons also unleash their own inhumane and brutal opportunities for man's inhumanity to man to prosper. This new legal framework of genocide as international law was codified in 1948 in the UN Convention on the Prevention and Punishment of the Crime of Genocide. This was entered into force on January 12, 1951.

Honourable senators, on June 13, 2002, the Senate adopted a resolution that the Armenian tragedy be recognized as genocide. This was moved and seconded by the good Liberal senators — and I remember very well — Senator Shirley Maheu and Senator Raymond Setlakwe, who is himself of Armenian descent. These good senators worked here to persuade senators, not easily convinced, to adopt this resolution despite stout opposition in the Senate Liberal caucus from the then capable Liberal Government Leader Senator Sharon Carstairs and me. This motion languished for a while. This changed when Liberal senators became convinced that this resolution was supported by the Prime Minister's Office. I shall read the resolution as adopted that day, June 13, 2002:

That this House calls upon the Government of Canada:

(a) to recognize the genocide of the Armenians and to condemn any attempt to deny or distort a historical truth as being anything less than genocide, a crime against humanity, and

(b) to designate April 24th of every year hereafter throughout Canada as a day of remembrance of the 1.5 million Armenians who fell victim to the first genocide of the twentieth century.

This resolution was adopted, though it was never referred to or studied in a Senate committee. No witnesses were heard and no evidence was received or tested.

Honourable senators, I recently heard that Eddie Goldenberg, the senior policy adviser to Liberal Prime Minister Jean Chrétien, wrote about this in his 2006 book, The Way it Works: Inside Ottawa. I shall record Mr. Goldenberg's words in part, at pages 94 to 96:

... I was having lunch in the Parliamentary Restaurant with Senator Raymond Setlakwe. He... was an unconditional Chrétien loyalist, a member of what the prime minister liked to call his Roman Guard.... During the course of a wide-ranging, cheerful chat, he mentioned to me that the Senate might soon debate a motion condemning the Armenian genocide of 1915, and asked me what I thought.... I told him candidly that I had never given any thought whatsoever to the matter.

... I betrayed my own bias about the usefulness of the Canadian Senate. "I would have thought the Senate has more pressing matters to address than something that happened in another part of the world almost a century ago. I really don't care what the Senate does about it. As far as I'm concerned, if you want to waste your time on that type of resolution, go right ahead."... It didn't cross my mind that he was seeking my considered views as the senior policy adviser to the prime minister of Canada....; I had no idea that he was of Armenian descent.

A few days later, I was the most surprised person in the world to learn that I had made an important decision. The word was out that I had reversed a long-standing position of the government (of which I was completely unaware), and that the PMO apparently no longer objected if the Senate was to proceed with the resolution on the Armenian genocide. I got frantic calls from Sharon Carstairs, the leader of the government in the Senate, and Lloyd Axworthy, the minister of foreign affairs, telling me that I might have caused a major problem in relations between Canada and Turkey by what I thought was an off-handed comment to my lunch companion, and certainly not a decision. I relearned an important lesson, which is that anything said by a member of the PMO is easily misinterpreted as instructions or orders when they are merely questions, thoughts, ideas, or personal views, or even just a matter of passing unsolicited representations on to someone else.

Honourable senators, his words are a disturbing revelation. These were good senators. You would have to know some of these fine people. They were good, hard-working, sincere senators. These words are disturbing in their revelation. They jolt the sensibilities. They stun the consciousness. They cast doubt on the validity of the resolution, which, by its unintended grief, is already doubted.

I mused to myself. The title of the book is The Way It Works: Inside Ottawa. His words evoke a surreal sense that something was very wrong in all this. Is this "the way it works inside Ottawa"?

Honourable senators, Prime Minister Jean Chrétien and his government did not take the Senate resolution view. He did not accept the motion. He did not believe that such foreign policy would be good for Canada's foreign relations. All of these lessons, and all that I have learned, confirm that it is time for the Government of Canada to review and repeal this now-doubted policy. It was well-intentioned and well-meaning, but is now doubted. Were the government to review and repeal it, I would consider that — and I think the world would consider it — a wise act that would avoid future conflict and pain.

Honourable senators, I would like to call your attention to the recent judgment by the European Court of Human Rights on December 17, 2013, in the case of Perinçek v. Switzerland. At a 2005 conference in Switzerland, a Turkish national, one Dogu Perinçek, leader of the Workers Party, made certain statements — to wit, that the tragedy Armenians endured cannot be characterized as genocide. He was charged and convicted in the Swiss courts.

About his conviction by the Swiss court, the European Court of Human Rights found that Switzerland had violated the freedom of expression Article 10 of the European Convention on Human Rights, and that Dogu Perinçek had not abused his own rights by Article 17 of that same convention. The court's press release of that same day said:

The limit beyond which comments may engage Article 17 lay in the question whether the aim of the speech was to incite hatred or violence. The rejection of the legal characterisation as "genocide" of the 1915 events was not such as to incite hatred against the Armenian people.

The Hon. the Speaker pro tempore: Does the Honourable Senator Cools wish to ask for more time?

Senator Cools: Absolutely.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to grant more time to Senator Cools?

Hon. Joseph A. Day: I wish a point of direction before I give my consent. I understand we are on item number 2, and we have already voted on the motion in amendment. The motion in amendment at line 4 adopts the report, so the report has already been adopted.

The Hon. the Speaker pro tempore: No, no. There was a motion to amend the main motion, and it was adopted. Now we are on the debate on that amended main motion, and the text of that main motion there is the text you have in front of you.

Is it clear?

Senator Day: No, it's not clear.

As I understand the motion in amendment, the wording that appears here and the fourth line of that second paragraph is that the report be adopted. We have already voted on the report.

The Hon. the Speaker pro tempore: No, we amended the text. Only the text of the main motion was amended by an amending motion, and we have adopted that amendment.

Now we are discussing the main motion, which is entitled what you just read, so I can read it again if you want for everybody to be very clear.

Senator Day: Thank you, Your Honour. Perhaps I am misreading the particular document.

The Hon. the Speaker pro tempore: Is more time granted? Five more minutes is granted to Senator Cools.

Senator Cools: Honourable senators, the European Court of Human Rights also found that the Armenian tragedy is a legitimate subject of debate and discussion, and was clear that there is no consensus regarding the legal characterization of the events in question. Agreeing with Dogu Perinçek, the court took the view that the notion "genocide" was a precisely defined legal concept, requiring a high threshold of proof. The criminalization of opinions on historical facts has always been discouraged. The United Nations Human Rights Committee has expressed concerns about such criminalization. The European Court distinguished the case of Perinçek from those cases concerning the negation of the crimes of the Holocaust.

Honourable senators, back in 2002, I was concerned about the fairness of the politics of stockpiling such resolutions from worldwide legislative assemblies, and the heavy local political activity to this end. I was dubious about the conclusion the motion sought. Assemblies are free to form opinions, but the problem here was beyond opinions. The problem here was the harsh judgment, with its reach into international law, to mete out to one selected country a measure of guilt for ancient events that predate the law and legal framework of the sins for which the guilt was assigned.

This is not proper, fair, just, or consistent with our common law. Most assemblies are partisan and driven by politics, not always suited to selective judgment of and guilt assignment to some countries and not others. This well-intended Senate resolution that hurt Canada-Turkey relations was part of a worldwide resolution campaign. It was driven by local politics at the riding levels and by fine Armenian-Canadians, whom I respect and who believed they were doing right. It is time for the Government of Canada to review and repeal this foreign policy. We would be flabbergasted, dismayed, angered and disturbed if the Turkish Assembly or any assembly in the world were to adopt a resolution that Canada's treatment of Native peoples was genocide, which large numbers of Canadians believe. However, there is a difference between holding a belief and moving in a legal direction.

Robert Burns articulates it best in his poem, Man Was Made To Mourn. He said:

Man's inhumanity to man
Makes countless thousands mourn!

All of us who go to the Remembrance Day ceremony every year can't get through it most of the time without breaking into tears. It is larger than all of us.

War, one of the four horsemen of the apocalypse, is a grim reaper and a robber of all that is living. Colleagues, there is no limit to man's inhumanity to man; but we do not have to create more. Honourable senators, I would like to quote the famous 17th century poet John Donne from his Devotions upon Emergent Occasions that we hear often. It says, in part:

No man is an island entire of itself; every man is a piece of the continent, a part of the main; ... any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bells tolls; it tolls for thee.

I thank honourable senators. Senator Andreychuk, you were not here but I thanked you profoundly, and I thanked your committee and Senator Downe. I also said that you are a credit to the Senate, to your province and to the country.

This committee has done a very contemporaneous, needed and relevant piece of work, and I believe the government needs it.

I thank you all for listening. We should always keep up the war against injustice; but human beings can be frightening creatures. Bear that in mind. Whatever it is that unleashes black-heartedness, we should try to keep it locked up in a den somewhere, as much as we can.

The Hon. the Speaker pro tempore: Are honourable senators ready for the question?

Hon. Roméo Antonius Dallaire: I wish to continue the debate, not to delay unnecessarily the report. I will speak to it on Thursday. The nature of the report and the subject that we have been raising brings to the fore how we have been working at the whole realm of crimes against humanity and genocide and trying to come to grips with that. This evening, the Under Secretary-General of the UN will be speaking at 6:30 p.m. in Room 256-S about the prevention of genocide to the genocide prevention group.

I am standing here in the midst of the twentieth anniversary of a genocide. In the debate, I have a responsibility to intervene, if so slightly, to reinforce the position that we should hold, from my background, for this significant report.

I beg that I be permitted to speak Thursday for the rest of my time and, hopefully, bring the debate to conclusion

(On motion of Senator Dallaire, debate adjourned.)


The remainder of this day's Senate Debates are available here