http://www.globalresearch.ca/criminalizing-criticism-of-israel-in-canada/5376306

Criminalizing Criticism of Israel in Canada

Bill C-13, A “Digital Trojan Horse for the Surveillance State”

By Michael Keefer

Global Research, April 02, 2014

Region: Canada

The international campaign calling for boycott, divestment, and sanctions (BDS) against Israel, as a peaceful means of persuading that state to abandon its systematic violations of international law and its policies of apartheid dispossession, colonization, and blockade in the occupied Palestinian territories, has recently enjoyed a burgeoning number of successes.1

In early February 2014, The Economist noted that BDS “is turning mainstream,”2 and former Israeli Knesset Speaker Avraham Burg wrote in Haaretz that the “BDS movement is gaining momentum and is approaching the turning point […. at which] sanctions against Israel will become a fait accompli.”3

Israeli Prime Minister Benjamin Netanyahu made a point of indicating that he and his allies would respond vigorously to this trend. Some of the reports about a cabinet meeting where “tactics” were discussed revealed more about internecine divisions than about the substance of the meeting: “Netanyahu convenes strategy meeting to fight boycotts”—but he deliberately excluded some senior ministers:

“Left Ministers Kept Out of Secret Cabinet BDS Session.”4

Yet although Israeli media indicated “that ‘the discussion was held in secret’, with an imposed ‘media blackout’,” one source that reported this fact was able to give a fairly precise sense of what went on behind closed doors:

Ideas apparently discussed by senior ministers included lawsuits “in European and North American courts against [pro-BDS] organizations” and “legal action against financial institutions that boycott settlements … [and complicit] Israeli companies”. There is also the possibility of “encouraging anti-boycott legislation in friendly capitals around the world, such as Washington, Ottawa and Canberra”, and “activat[ing] the pro-Israel lobby in the U.S.” for such a purpose.5

This kind of “lawfare,” as it is sometimes called, is nothing new (nor, one can add, is the notion, also discussed at this meeting, of bolstering surveillance of pro-BDS organizations by military intelligence, the Shin Bet Security Service, and the Mossad). It’s also evident that the pro-Israel lobby has been active in mobilizing politicians in the “friendly capitals” of Washington, Ottawa, and Canberra for many years.

Recent fruits of that labour have included, in Canberra, threats made in June 2013 by Julie Bishop, a senior member of Julia Gillard’s incoming Australian government, that “supporters of an academic boycott of Israel” would have their “access to public research funds summarily cut off.”6 In Washington, a bipartisan “Protect Academic Freedom Act” that would deny federal funding “to colleges and universities that participate in a boycott of Israeli academic institutions or scholars”7 has been brought before Congress.

But what of Canada, whose Prime Minister is Mr. Netanyahu’s most faithful friend?8

This essay will argue that revisions to the Canadian Criminal Code proposed by the Harper government contain wording that is designed to enable lawfare prosecutions of human rights activists in precisely the manner desired by Mr. Netanyahu and his associates.

1. Bill C-13 and its deceptions

Bill C-13, the Protecting Canadians from Online Crime Act, received first reading in the House of Commons in November 2013. In a web page devoted to “Myths and Facts” about this bill, the Department of Justice rejects the “myth” that “Bill C-13 is an omnibus crime bill that deals with more than cyberbullying.”

Bill C-13 is not an omnibus crime bill. It combines a proposed new offence of non-consensual distribution of intimate images to address cyberbullying with judicially-authorized tools to help police and prosecutors investigate not only the proposed new offence, but other existing offences that are committed via the Internet or that involve electronic evidence. [….] The Bill does not contain the former Bill C-30?s controversial amendments relating to warrantless access to subscriber information and telecommunication infrastructure modification.9

However, Dr. Michael Geist, the Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, has observed that Bill C-13 does indeed retain provisions that permit an increased warrantless access to personal information, far beyond what is envisioned by the current Criminal Code.10 Criminal lawyer Michael Spratt has denounced the bill as a “digital Trojan horse for the surveillance state”:

most of C-13 has little to do with protecting victims [of cyber-bullying]. This bill would recklessly expand the surveillance powers of the state. It sacrifices personal privacy. It limits or eliminates judicial oversight. It is inconsistent with recent Supreme Court jurisprudence. It’s a dangerous bill.11

The Department of Justice’s claim that “Bill C-13 is not an omnibus crime bill” is transparently false. As another critic, Terry Wilson, has remarked, despite being promoted “as legislation to prevent online bullying, the bill actually has very little to do with bullies and has sections ranging from stealing cable, hacking, surveillance, to terrorism (cyberbullying accounts for 2 out of the 50 pages in the bill) […]. The bill even includes ‘hate legislation’….”12

In this latter respect Bill C-13 incorporates, once again, a Trojan horse. The bill adds wording to the Hate Propaganda sections of the Criminal Code that seems, on the face of it, to do no more than to bring these sections into conformity with other parallel texts—with several important documents of international law, and with a sentencing provision later in the Criminal Code where the same wording already appears. But a second intention is also arguably at work in this part of Bill C-13, for there is good reason to believe that the new wording is intended, while deceptively avoiding any public debate over the matter, to make it possible to prosecute human rights discourse and advocacy relating to the oppressive treatment of Palestinians by the state of Israel as hate speech or incitement of hatred.

This view of the intention underlying Bill C-13 is supported by Prime Minister Harper’s speech to the Israeli Knesset on January 20, 2014 (which will be discussed below). It can draw support as well from the fact that an identical change to the wording of the French penal code made in 2003 by the so-called Lellouche Law has permitted the conviction of some twenty French human rights activists for incitement of racial hatred.13

The results in France have been paradoxical. France is, like Canada, a High Contracting Party of the Fourth Geneva Convention of 1949—whose first article states that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”14 The people convicted for incitement of racial hatred under the Lellouche Law are participants in a movement that has been consistent in its firm rejection of antisemitism and all other forms of racism.15 This movement advocates a peaceful exertion of economic pressure with the aim of persuading the Israeli state to end its multiple and systematic violations of international law, including in particular the Fourth Geneva Convention, which Israel has been repeatedly been condemned for flouting by UN committees and reports, as well as by independent agencies such as Human Rights Watch and Amnesty International. The facts of the matter are thus unambiguous: in enforcing the Lellouche Law, and redefining human rights activists as people guilty of hate crimes, the French state has simultaneously been violating its prior solemn commitment “to respect and to ensure respect for” the Fourth Geneva Convention “in all circumstances.”

One of the aims of Bill C-13 appears to be to place Canada in a similar situation of openly violating one of the central instruments of international law.

2. Alterations to the meaning of Sections 318 and 319 of the Criminal Code

Section 12 of Bill C-13 proposes several small additions within that part of the Criminal Code (Sections 318-321.1) that carries the subtitle “Hate Propaganda.” Section 12 reads as follows:

12. Subsection 318.(4) of the Act is replaced by the following:

(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental and physical disability.16

(The emphasis here indicates the wording being added to the current Criminal Code by Bill B-13.)

These proposed additions within Section 318 of the Criminal Code, which is concerned with the crime of “Advocating genocide,” also have an impact on the meaning and application of Section 319, which is concerned with the crimes of “Public incitement of hatred” and “Wilful promotion of hatred,” and in which—as Subsection 319.(7) states—“’identifiable group’ has the same meaning as in section 318”. The relevant clauses in Section 319 read as follows:

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.17

The most noteworthy addition to the concept of “identifiable group” is that of the category of national origin, which has no evident connection to the ostensible purpose of Bill C-13, but may be understood as linked to another agenda that was forcefully enunciated by Prime Minister Stephen Harper in his January 20, 2014 speech to the Israeli Knesset—namely, that of re-defining criticism of the policies and behaviour of the nation-state of Israel in relation to its Palestinian citizens and to the inhabitants of the Occupied Palestinian Territories as hate propaganda.

As a February 2014 report in the leading Israeli newspaper Haaretz indicated, the hate-crime convictions in France several months previously of twelve human rights activists, supporters of the international campaign advocating boycott, divestment and sanctions (BDS) against Israel, were secured under the Lellouche Law, which “extended the definition of discrimination beyond the expected parameters of race, religion and sexual orientation to include members of national groups.”18

3. The Lellouche Law: another Trojan horse?

Whether intentionally or not, the Lellouche Law has functioned as a kind of Trojan horse. Dr. Jean-Yves Camus has remarked that this law, “passed on 3 February 2003, in the wake of an unprecedented wave of anti-Semitic violence, allows judges to impose harsher sanctions upon perpetrators of racist violence, than those they would normally receive in the case of a similar act of violence not motivated by racism.”19 As the Haaretz report on the criminalization of BDS activism in France indicates, the law’s ostensible purpose, at a time when the openly antisemitic, anti-immigrant and neofascist Front National of Jean-Marie LePen had been attracting increased support, in southern France especially, was “to strengthen French republican values and counter sectarian tendencies”:

The law was passed in 2003, shortly after unprecedented gains by the far right National Front party in the presidential election.

The measure was designed to respond to a social climate of not only mounting anti-Semitism, but also anti-Arab discrimination and xenophobia.20

The “Outline of motives” that prefaced the Lellouche Law when it was presented to the Assemblée Nationale in November 2002 was explicit in its repeated statements that the additions to the Penal Code proposed by this law were primarily intended to target openly racist violence:

“violences ouvertement racistes,” “actes de violence intentionellement racistes,” “violences à caractère raciste,” “agressions à caractère raciste.”21

Although this text specified that racist violence could be “moral” as well as physical,22 the two recent examples it offered to the deputies of the Assemblée Nationale were the “openly racist murder” of a young Frenchman of Moroccan origin in northern France in October 2002, and racist aggression directed against young students of a private Jewish school in the 13th arrondissement of Paris in early November.23 Noting that existing French laws already targeted racial discrimination, the incitement of hatred or violence, and Holocaust revisionism, the prefatory outline defined the purpose of this law as being to significantly enhance the penalties imposed in cases where attacks on people or property are racist in character—as when racism is involved in acts of torture and barbarism, violence resulting unintentionally in death, and acts leading to mutilation or permanent disability, as well as acts involving damage to or the destruction of property.24

Despite this explicit statement of intention, the Lellouche Law has been applied in another manner altogether—on the pretext that in eight of its nine articles it includes the category of “nation” in the definition of groups that can be understood as victimized. As the Haaretz report indicates, this law “has been invoked repeatedly against anti-Israel activists. France has seen 10 trials against BDS supporters based on Lellouche.”25

Pascal Markowitz, head of the BDS legal task force of the Conseil Représentatif des Institutions Juives de France (CRIF), is frank in his assessment of the Lellouche Law’s instrumental value. He is quoted by Haaretz as saying that “the law is ‘the most effective legislation on BDS today.’ ‘We had only one acquittal, so the statistics are looking good,’ he said.”26 But other political figures in France have taken a different view of the matter:

“These convictions are unconscionable,” Nicole Kiil-Nielsen, a French member of the European Parliament, said at a special session on the case in Strasbourg in 2011. “Governments are doing nothing to end Israel’s illegal occupation [of the Palestinian territories] and the French court is wrongfully denying citizens from acting through BDS.”27

It’s important to understand what is meant, in the present context, by a “Trojan horse.” In every version of the ancient story, from Homer to Virgil,28 the essential point is the same. The hollow wooden horse was a duplicitous stratagem used by the Greek army that had for ten years been besieging Troy; it succeeded because the horse was deceptively dual-purpose in nature. Pretending to abandon their siege, the Greeks left this huge artefact behind: its plausible overt function was as an offering to the gods, which the Trojans were persuaded to drag into their city in celebration of their supposed victory. But it also had a second concealed function—as a treacherous means of getting a body of armed Greeks inside the walls of Troy, so that they could open the city gates at night when the rest of their army returned.

The Lellouche Law has served as a Trojan horse because when it was passed it seemed an appropriate and plausible means of dealing with an increase in racially motivated violence in France that coincided with an upsurge in support for a frankly racist far-right political party. But the law has since been used for a quite different purpose: that of criminalizing the discourse of human rights activists who speak out in support of respecting and ensuring respect for international humanitarian law.

4. The insertion of “national” into Sections 318 and 319: just “housecleaning”?

According to a report by Paul McLeod of the Halifax Chronicle-Herald, the addition of the word “national” to Sections 318 and 319 of the Criminal Code is explained by the Department of Justice as being “designed to match the wording of a protocol from the Council of Europe, a human rights organization.”29 The reference is to the Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, adopted in Strasbourg in January 2003. In Chapter I, Article 2.1 of this text the word “national” occurs in a definition of the groups understood to be victimized by “racist and xenophobic material.”30

McLeod indicates that some legal experts have proposed that the change is “likely a mere housecleaning amendment to bring the Criminal Code in line with the wording of other statutes.”31 The word “national” does indeed occur in similar contexts in the UN International Covenant on Civil and Political Rights, Article 20, and in Article 2 of the UN Convention on Genocide. Moreover, Bill C-13 brings Sections 318 and 319 of the Criminal Code into conformity with the sentencing provision in Section 718, which already includes all the groups (national origin, age, sex, and mental and physical disability) that were not included in Section 318.(4) but have now been added.

A “housecleaning” explanation of the changes is thus entirely plausible.

However, the housecleaning has not actually been very thorough. In its current form, Section 318 of the Criminal Code, which defines the appropriate punishment for the crime of advocating or promoting genocide, is a somewhat peculiar text—for its subsection 2, while clearly derived from Article 2 of the UN Convention on Genocide, omits clauses (b), (d), and (e) of that article’s definition.32

David MacDonald and Graham Hudson have remarked that when Parliament ratified the Convention on Genocide in 1952, it excluded some of the clauses of Article 2 from Canada’s Criminal Code, on the grounds that matters such as the forcible removal of children are not relevant to this country. (Given the existence of Canada’s system of church-run residential schools, into whose custody native children were forcibly transferred, it seems obvious that the last clause of the Convention’s Article 2 was excluded in bad faith.) MacDonald and Hudson note as well that when in 2000 Parliament adopted the Crimes Against Humanity and War Crimes Act, it thereby made the 1998 Rome Statute of the International Criminal Court (which includes the Convention on Genocide’s full definition of genocide) a part of Canadian statutory law.33 Section 318 of the Criminal Code is thus anomalous in its current form, in that its definition of the crime of genocide excludes clauses which are nonetheless part of Canadian statutory law because of their incorporation into the Crimes Against Humanity and War Crimes Act.

In a thorough housecleaning of this part of the Criminal Code, the inclusion of the three omitted clauses from Article 2 of the Convention on Genocide would have been an obvious step to take.

I mention this not because it tells with any force against a “housecleaning” explanation of Bill C-13’s insertion of the word “national” into Sections 318 and 319 of the Criminal Code: as noted above, that explanation remains wholly plausible. But what this example does suggest is that the framers of Bill C-13 may not have been single-mindedly focused on housecleaning.

Prime Minister Harper’s January 20, 2014 address to the Israeli Knesset leads us toward a second explanation of the purpose of Bill C-13?s insertion of the word “national” into the definition of groups that can be victimized by hate propaganda. In suggesting that this speech reveals with some clarity the thinking that underlies this addition to the text of the Criminal Code, I do not mean to imply that the primary and overt explanation of the change as a “housecleaning” matter is displaced by this second underlying intention—for that is not how Trojan horses work.

A Trojan horse is by its nature duplicitous, but that duplicity can only be successful to the degree that the horse’s overt and primary purpose remains plausible.

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