Robert Fife & Janice Dickson The Globe and Mail June 15, 2022
Humanitarian and veterans’ groups trying to evacuate people who worked for Canada’s military and diplomatic mission in Afghanistan face major hurdles because Ottawa is strictly enforcing anti-terrorism law.
Non-governmental organizations (NGOs) say because the federal government is considering Afghanistan’s ruling Taliban a terrorist group, laws prohibiting financing of terrorism prevent them from making basic purchases in Afghanistan to get people out of the country.
Since the Taliban seized power last year, NGO rescue teams have had to carry canisters of gasoline in their jeeps when they enter Afghanistan because it would be illegal to pay gas taxes to the country’s government under the anti-terrorism law. Humanitarian and veterans’ groups say they also can no longer rent hotel rooms the day before their evacuation operations because room taxes would benefit the Taliban rulers.
The groups say their pick-up sorties for evacuees are now done on busy streets in Kabul or other Afghan cities, increasing the danger.
The Anti-terrorism Act, an amendment to the Criminal Code, makes it illegal for Canadian funds to end up in the hands of terrorists. The Taliban is on Canada’s terrorist watch list and outlawed by Ottawa, even though it now runs Afghanistan.
The Justice Department and federal security agencies are strictly enforcing the law, putting added pressure on humanitarian and veterans groups to comply as they try to get Afghans in danger of being captured by the Taliban to Pakistan and then to safety in Canada.
Brian Macdonald, the executive director of Aman Lara, a veterans’ group that has evacuated thousands of Afghans who worked for the Canadian military, said his organization has had to work around the terrorism laws.
“You don’t have to buy gas if you bring jerry cans of gas with you. If need a chocolate bar, bring it into Afghanistan. So there are ways of doing that without bringing any money into Afghanistan,” Mr. Macdonald said.
It hasn’t been easy, Mr. Macdonald said, although he would not discuss all the arrangements being made to get Afghans out without violating Canadian law.
“One thing we would do is get everyone in a hotel room the night before and then move to the vehicles when the time comes and move them across the border. Now it’s a lot harder to muster people on a street corner … so it makes our operations harder.”
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Mr. Macdonald said he and other organizations have been working with the government to understand the anti-terror law, which has no provisions for how to proceed when a terrorist organization governs a country.
He said relaxing the federal interpretation or going to Parliament to change the law could improve the chances of helping Canada achieve its goal of accepting 40,000 Afghans fairly quickly.
“There are all kinds of things we could do to help … fly them directly out of Afghanistan, which of course you can’t do without paying landing fees, which ultimately end up in the hands of the Taliban,” Mr. Macdonald said.
Tim Laidler, president of the board of the Veterans Transition Network, which is helping bring Afghans to third countries, said federal officials cited the anti-terrorism legislation among the reasons for rejecting a request his organization sent last August for funds to help with its evacuation efforts.
“The last thing any of us want is to be funding terrorists as veterans,” he said. “However, we’re more concerned about getting people who served with us safely out of the country.”
He added that “the benefit of saving people’s lives who stood up for us overseas” is greater than the concern that a small amount of money will end up with the Taliban.
If the government was not imposing this legislation, he said, it would be significantly easier for his organization. (The government later provided some funding to the group for related projects.)
David Taylor, communications director for Justice Minister David Lametti, expressed Ottawa’s gratitude for Canadian NGOs and veterans’ groups who have helped Afghans resettle in Canada over the past year.
“We are all focused on finding a solution that will allow our important work in Afghanistan to continue,” he said, noting the Justice Minister is reviewing a recent report from the House of Commons on Afghanistan.
The June 8 report recommended exempting Canadian aid groups from the anti-terrorism law or amending the legislation to “not unduly restrict legitimate humanitarian action that complies with international humanitarian principles and law.”
Mr. Taylor said the minister is also considering opinions from the legal community.
Sujit Choudhry, a constitutional lawyer in Toronto, is part of a group of four lawyers exploring legal avenues to help refugee claimants come to Canada. They wrote to Mr. Lametti last month, arguing that Ottawa is wrongly interpreting the anti-terrorism legislation.
“We came to the conclusion that there is really no firm legal basis for this position,” he said. “We think that the law is being interpreted incorrectly.”
The lawyers say that what constitutes a foreign government under the Criminal Code is determined by customary international law, and therefore the Taliban is the government, and taxes or fees paid to it would not violate anti-terrorism provisions.
Secondly, they believe the payment of regular taxes to governing authorities does not violate the anti-terrorism act because it is not financing a terrorist group.
Finally, the lawyers say the government’s interpretation of the act would mean that Afghan refugee claimants would also violate the act by going about their lives and paying taxes, and would be inadmissible to Canada under the Immigration and Refugee Protection Act.
“We’d like to try to provide a legal road map for how to navigate around what appears to be some type of roadblock that’s been created by this interpretation of the code that is wrong in law.”
“We quickly concluded that the interpretation of the anti-terrorism act is just absurd, and it’s deeply regrettable that, if this is what’s standing in the way of trying to expedite our efforts to extract individuals from Afghanistan, that’s very worrying and we hope that the government can change course as quickly as possible.”