(Ottawa) Senior federal officials say Parliament will need to amend the Criminal Code so Canadian aid workers can work in Afghanistan without fear of criminal charges.
“Without addressing these impediments in the Criminal Code, there is no way for us to untie the hands that are now providing some of this humanitarian aid,” said Marie-Louise Hannan, Director General for South Asia on Monday evening. South at Global Affairs Canada, testifying before the Senate Human Rights Committee in Ottawa.
Humanitarian organizations claim that Global Affairs Canada told them that buying goods in Afghanistan or hiring residents there would involve paying taxes to the Taliban, which could be considered a “contribution to a terrorist group” under Canada’s Terrorism Act.
This advice was given despite a cascade of humanitarian crises in Afghanistan, from a collapsing health system to soaring child malnutrition rates.
A House of Commons committee flagged the issue last June, noting that other Western countries had changed their laws or granted exemptions to aid agencies as early as fall 2021.
Mme Hannan said officials from three ministries were well aware of the problem. “For the past year, we have been mandated to look into this question and we have tried to find the fastest way to answer it,” she told senators Monday evening.
An outdated law
A senior official at the Ministry of Justice explained that the current outdated law lacks the flexibility that has allowed, for example, the UK or Australia to provide exemptions.
“From a technical perspective, the legislation at issue here was passed in 2001 and has not been substantially changed since then,” said Robert Brookfield, director general and senior general counsel in the Policy Section. of criminal law at the Ministry of Justice.
Constitutional scholars have argued that the existing laws are contradictory, but that they would not literally throw aid workers in jail – that they would likely violate the Canadian Charter of Rights and Freedoms.
But some believe a court should eventually rule on this, most likely after an aid worker has been formally charged with a criminal offence.
A Taliban government
According to Me Brookfield, this is because of the separation between the executive and the judiciary: the police, prosecutors and courts act independently of the government, which can change laws by a vote in Parliament, but cannot change how these laws are then enforced. “The Canadian government does not have the power [après coup] to reinterpret the law as he sees fit,” recalled Mr.e Brookfield.
He also pushed back against lawyers’ arguments that the Taliban cannot be considered a “terrorist organization” since they form the Afghan government. Me Brookfield recalled that Hamas and Hezbollah ruled over parts of the Middle East while some of their factions were considered terrorist entities.
Sébastien Aubertin-Giguère, acting assistant deputy minister at the Ministry of Public Security, said the problem must be handled with sensitivity. “We need to balance humanitarian need with the integrity of the terrorist financing provisions in the Code. [criminel] “, he estimated Monday evening.
Mr. Aubertin-Giguère also could not say whether the government would take action before the House of Commons adjourned for its six-week holiday recess.
A deputy minister, senior civil servants and several representatives of humanitarian organizations testified Monday evening, while three ministers refused to appear.
Public Security Minister Marco Mendicino, Justice Minister David Lametti and International Development Minister Harjit Sajjan and their parliamentary secretaries have all said they have other engagements already scheduled for the evenings of 5 and 12 december.
Critical situation
Canadian NGOs working in Afghanistan told the Senate committee of the growing desperation in that country, which is driving some residents to join terrorist groups.
Ottawa has increased aid provided by UN agencies, but World Vision Canada policy officer Martin Fischer stressed that this aid could not be provided by Canadian organizations.
His colleagues had to cease their activities when the Taliban took power 15 months ago, after years of building ties and contacts in the country. Therefore, World Vision Canada did not insist that Canadians make donations.
“Afghanistan is one of the few places where, when we make appeals, there is a tremendous outpouring of solidarity and compassion,” Mr. Fischer said. Not being able to do this, as the situation deteriorates further and further, is not only frustrating: it is heartbreaking. »
Me Asma Faizi, director of the NGO Afghan Women’s Organization Refugee and Immigrant Services, runs an orphanage in Kabul, but she has stopped paying her rent for fear of being prosecuted for terrorism. “The owner is a generous person, who could throw us out on the street,” she told the committee.
“I see no reason [qui] could justify the starvation of children, and right now they are freezing to death homeless. »
The United Nations has sounded the alarm, as a harsh winter sets in in Afghanistan, and millions of people do not have access to sufficient food or water.
The UN classifies half of the Afghan population as critically food insecure, including six million people officially at risk of starvation.