By Danny Eisen
“The removal of state immunity under the Justice for Victims of Terrorism Act is markedly different from other types of censure or sanction.”
The Harper government’s decision to list Iran as a state sponsor of terrorism and close its embassy in Tehran continues to generate debate.
The listing was made under the newly minted provisions of the Justice for Victims of Terrorism Act. As explained by Foreign Minister John Baird: “I don’t know how you’d call a state, a ‘state sponsor of terrorism’ and then leave men and women on the ground there.”
Nevertheless the listing has been disparaged by some detractors as being “only symbolic” in nature. But the critique misses its mark.
International legitimacy for a government is hardly just of “symbolic” value. It has far reaching implications affecting the stature, privileges, and rights of any sovereign entity.
And if properly administered, the taint of illegitimacy can be the active ingredient in isolating totalitarian regimes, reframing their relations with the international community, and setting the stage for any punitive actions that may justifiably be taken against them.
Legitimacy, though, is usually bandied about as a rhetorical label. It is subject to opinions and gradations, with no easy mechanism of designation. But Canada, in listing Iran as a state sponsor of terrorism, has not offered an “opinion”.
By listing Iran under the JVTA, Iran’s state immunity has been lifted, making it subject to lawsuits by Canadian terror victims. Immunity of this sort is a privilege accorded only to states, and Canada’s revocation of immunity in essence declares the Islamic Republic a non-state entity for the purpose of this legislation.
This is hardly “just symbolic”. State immunity is a hallmark characteristic of sovereign entities, and its removal is markedly different from other types of censure or sanction. Rather than imposing a penalty on a state, the listing withdraws legitimacy from a state. Rather than being a sanction for a specific behavior, the behavior is considered so egregious that it generates a redefinition of the legal nature of the state itself.
And in this case, rightly so. Iran is the preeminent state sponsor of international terrorism and proudly boasts of a nine digit budget line for the support of terrorist groups across the globe. Its endorsement of terrorism as a theologically mandated tactic of choice has made the sponsorship of terrorist entities part of its essential character, structure, and mandate.
Listing Iran then is not just a change in policy. It is a groundbreaking change in the legal status of Iran and the legal norms of Canada which may have considerable impact the norms of customary international law with regards to terrorism and state immunity.
Additionally, though perhaps unintended, the listing also confronts Iran on a central tenet of its Khomeinist creed, by making the Islamic Republic accountable under the “laws of man”, so detested by the Ayatollah and his protégés.
This very concept of accountability in an “infidel court” governed by man-made statutes, then, is not only a vehicle for legal redress for victims and an effective deterrent to terror sponsorship, but a principled attack on what the prime minister recently described as the “truly malevolent ideology” of the regime.
Critics therefore should be more circumspect before dismissing the listing of Iran as nothing more than political theatrics. By framing a response to Iranian excesses in the framework of a domestic law, Canada has provided the world with a clear legal category to define what places a given state beyond the pale of even ordinary totalitarian regimes.
The listing has drawn an unambiguous line in the diplomatic sand, providing a retort to the central question of the Iran debate: “Is Iran different? Is the Islamic Republic being unjustly held to a standard that is different than other states?”.
Canada has answered with an unequivocal: “Yes, Iran is different”, not only by virtue of its record of appalling brutality and subterfuge, but by virtue of what it is– a sui generis entity committed, in the words of Ayatollah Khomeini, to a “war of ideology… that does not recognize borders or geography” destined to “smash the existing models in the world”.
Canada’s recent actions have come at a critical juncture. Negotiations with Iran continue to falter; the Iranian currency continues to fall; protests in Iran continue to grow; and the international community is poised to enact more severe sanctions against the regime.
There could not be a better time for Canada to signal a beleaguered opposition in Iran that their fight is legitimate, the regime is illicit, and that the Canadian legal system is poised to exact some level of accountability for the Islamic Republic’s crimes even if the international courts will not.
What remains to be determined is whether other countries will heed its warning before Iran celebrates the fall of the last grain of sand to the bottom of its nuclear hourglass.
Danny Eisen is a cofounder of the Canadian Coalition Against Terror, which led the eight-year campaign for the passage of the Justice for Victims of Terrorism Act.
First published in Embassy Magazine