Canadian Court Hears Kazemi Lawsuit Against Iran

By Cindy Chan, Epoch Times
December 2, 2009 8:28 pm Last Updated: December 3, 2009 1:31 am

Stephan Hashemi sits with a portrait of his mother, Zahra Kazemi, at a protest outside the Iranian embassy on July 16, 2004 in Ottawa. Ms. Kazemi, a Canadian photojournalist of Iranian descent, died from torture a year earlier after she was arrested for taking pictures of demonstrators outside Tehran's Evin prison. (Patrick Doyle/Getty Images)
Stephan Hashemi sits with a portrait of his mother, Zahra Kazemi, at a protest outside the Iranian embassy on July 16, 2004 in Ottawa. Ms. Kazemi, a Canadian photojournalist of Iranian descent, died from torture a year earlier after she was arrested for taking pictures of demonstrators outside Tehran's Evin prison. (Patrick Doyle/Getty Images)
It has been more than six years since Iranian-Canadian photojournalist Zahra Kazemi was tortured to death by Iranian authorities after being arrested for taking pictures of protesters outside a Tehran prison in July 2003.

Her son Stephan Hashemi’s efforts to seek justice for his mother reached a milestone on Dec. 2 when the lawsuit he launched in Quebec against the government of Iran and three Iranian officials began its court hearing in Montreal.

“Thinking about those who don’t have this chance, especially in Iran and in other countries, so many victims of this kind and we never hear about them, so it’s a responsibility that I have,” said Mr. Hashemi.

“From the beginning it was clear to me that my mother was more a symbol. She was a symbol of the oppression that is going on in Iran. She was a symbol of the lack of justice, and a great symbol for the attitude of the government toward its citizens—not only the Canadian government, any government.”

Mr. Hashemi said what he originally wanted was to have the Canadian government take the government of Iran to the International Court of Justice, the principal judicial organ of the United Nations, based in The Hague, Netherlands.

“For three years, I tried very hard, but the Government of Canada wasn’t ready to take any kind of action of this nature,” he said.

Iran has conducted a number of trials but to date no one has been found responsible for Ms. Kazemi’s death.

Iranian journalists light candles for Iranian-Canadian photojournalist Zahra Kazemi (picture), who died while under arrest in Tehran, during a one-day strike marking 'Journalist Day' on Aug. 8, 2003. The strike was to protest the Iranian government's crackdown against journalists and to condemn Ms. Kazemi's killing. (Behrouz Mehri/AFP/Getty Images)
Iranian journalists light candles for Iranian-Canadian photojournalist Zahra Kazemi (picture), who died while under arrest in Tehran, during a one-day strike marking 'Journalist Day' on Aug. 8, 2003. The strike was to protest the Iranian government's crackdown against journalists and to condemn Ms. Kazemi's killing. (Behrouz Mehri/AFP/Getty Images)
Noting that as a civilian the maximum period of time he had to launch legal proceedings was three years, Mr. Hashemi launched a $17-million civil lawsuit in 2006.

Whether the case can actually go forward so that all the facts can be heard and the case can be determined on its merits hinges on pivotal arguments about a Canadian law that governs the ability of Canadian torture victims to sue their foreign torturers in Canadian courts.

Under Canada’s State Immunity Act (SIA), foreign officials and states can be sued for breach of contract and other commercial issues in a civil court. However, they cannot be sued for torture, genocide, or war crimes.

The government of Iran has already responded by arguing that they have immunity under the SIA and can’t be sued, said Jayne Stoyles, executive director of Canadian Centre for International Justice (CCIJ).

CCIJ and Amnistie Internationale Canada Francophone are interveners in the case to support Mr. Hashemi’s right to sue.

Their lawyers are arguing that Iran should not be allowed to manipulate the SIA in such a manner. Such an interpretation of the SIA violates the Charter of Rights and Freedoms and is incompatible with the Canadian Bill of Rights, they say. Moreover, it offends the principles of justice.

“For many people, for the son of Zahra Kazemi, for example, it’s not about money or the compensation. It’s about the recognition of what happened, getting at the truth, having an acknowledgement, and having a court of law saying that what happened was wrong and was contrary to international law,” said Ms. Stoyles.

New Bill Seeks Victims' Right To Sue Torturers

MP Irwin Cotler speaks at a press conference on Parliament Hill in Ottawa on Nov. 26, 2009, to announce the tabling of a new bill seeking to allow Canadian victims to launch civil lawsuits against their foreign torturers in Canadian courts. (Matthew Little/The Epoch Times)
MP Irwin Cotler speaks at a press conference on Parliament Hill in Ottawa on Nov. 26, 2009, to announce the tabling of a new bill seeking to allow Canadian victims to launch civil lawsuits against their foreign torturers in Canadian courts. (Matthew Little/The Epoch Times)
The hearing, which is expected to last five days, began within a week of Liberal MP Irwin Cotler’s private member’s bill tabled in Parliament Nov. 26 seeking to create an exception in the SIA to remove immunity for torture, genocide, war crimes, and crimes against humanity committed by foreign states.

The SIA is meant to protect state officials when they carry out official duties, but “violations of human rights, torture, crimes against humanity, these are not really proper acts of state,” said David Matas, a Winnipeg-based international human rights lawyer and member of the Order of Canada.

“When officials engage in these acts, they are acting outside the scope of their duties that are set by international law, and the State Immunity Act which presently exists has been interpreted so narrowly that it has not been possible to sue either the state or individuals for these sorts of violations.”

Two previous torture-related civil cases that were sought in Canada failed on that basis, both in Ontario courts. Iranian-Canadian Houshang Bouzari sued the Iranian government in 2000 and Syrian-Canadian Maher Arar sued both Syria and Jordan in 2003.

The Bouzari ruling prompted submissions to the United Nations Committee Against Torture for its 2005 review of Canada’s compliance with the Convention Against Torture.

“The United Nations committee did request that Canada bring its civil laws in line so that torture victims would be able to sue the perpetrators from foreign countries,” said Mark Arnold, co-counsel with Mr. Matas for Mr. Bouzari’s lawsuit.

Mr. Cotler’s proposed amendment aims to allow victims “with a real and substantial connection to Canada to pursue civil remedies against those who caused them harm.”

Mr. Arnold said this would include Canadian citizens as well as refugees and landed immigrants in Canada.

The bill has support from MPs from all four parties represented in Parliament.

MP Paul Dewar and Jayne Stoyle, executive director of Canadian Centre for International Justice, look on as MP Irwin Cotler speaks at a press conference on Nov. 26, 2009, to announce his proposed bill to remove immunity for foreign states and officials charged with torture and other heinous international crimes. (Matthew Little/The Epoch Times)
MP Paul Dewar and Jayne Stoyle, executive director of Canadian Centre for International Justice, look on as MP Irwin Cotler speaks at a press conference on Nov. 26, 2009, to announce his proposed bill to remove immunity for foreign states and officials charged with torture and other heinous international crimes. (Matthew Little/The Epoch Times)
Mr. Cotler is the Liberal Party’s Special Counsel on Human Rights and International Justice. His bill is seconded by Conservative MP Scott Reid, Chair of the Subcommittee on International Human Rights; NDP Foreign Affairs Critic MP Paul Dewar; and Bloc Québécois Foreign Affairs Critic MP Francine Lalonde.

This new bill to remove immunity in civil court will complement what Canadian law already provides at the criminal level, said Ms. Stoyles.

“Criminal law makes it very clear that foreign governments and individual officials can be tried for torture, genocide, and other serious atrocities, and in that law it is very clear there is no immunity.”

The problem is that funding is very limited in Canada to bring forward criminal prosecutions, so the opportunity for victims to bring their own cases forward with their own resources is very important, she said.

“Also it serves as a deterrent to other would-be-victimizers, or the continuation of victimization, so if the perpetrators know they’re going to pay consequences, they’re much less likely to commit these violations,” said Mr. Matas.

Ms. Stoyles agreed. For example, she said some observers believe that if Mr. Bouzari’s case had been successful, it might have deterred some of the recent violence around the election in Iran and the continuing human rights abuses.

“Some of the people who are at least allegedly implicated in that were the same people who were the subject of those trials,” she said.

‘Honouring my mother’

While seeking justice is a way of coming to terms with the victimization, Ms. Stoyles noted that significant resources, support, and emotional and psychological capacity are needed to launch a lawsuit and to collect and go through all the evidence.

For Mr. Hashemi, behind all his efforts is his wish to honour his mother.

“She was also an artist and photojournalist, so she left a great legacy behind her . . . which I could also preserve, paying tribute to my mother, honouring my mother, obtaining justice for my mother,” he said.

As a photojournalist, Ms. Kazemi had documented conditions in many places around the world including the Ivory Coast, Mexico, Costa Rica, Haiti, and the Middle East.

Mr. Hashemi has organized exhibitions of his mother’s work.

“Justice is very abstract, so what I really came about [doing] was to honour my mother. And to honour was also to show her work.”

This is also a way to bring attention to the case and to the corruption and human rights abuses of the government of Iran, he said.