Canadian Jewish Political Affairs Committee
Statement by Irwin Cotler — Nuclear Terrorism Act

…We must view nuclear weapons for the use to which they could perhaps be dangerously put in support of these regimes’ genocidal intent. We must insist that they be kept out of the hands of those states that flagrantly disregard international law, threaten the peace and security of the international community, and threaten the rights of their citizens. Indeed, as has been observed, states that violate, and massively violate, the rights of their own citizens are most likely to violate the rights of others.
The prime example of this threat in the modern context is that of Khameini’s Iran. I use that term to distinguish it from the people and public of Iran who are otherwise the targets of mass domestic repression. In Khameini’s Iran the steady progression toward nuclear capabilities demonstrates the importance both of domestic criminal law enforcement, as we have been discussing, as well as multilateralism and international legal regimes.
Bill S-9 deals with the domestic problem. With regard to the Iranian nuclear threat, however, we must continue to engage internationally as well.
I have described the Iranian threat in terms of a fourfold threat: the nuclear threat, the incitement threat, the terrorism threat, and massive domestic repression. Let there be no mistake about it that Iran is in standing violation of international legal prohibitions respecting its nuclear weaponization program. Iran has already committed, as an all-party committee of the foreign affairs committee in this House determined, the crime of incitement to genocide prohibited under the genocide convention itself.
Iran has been characterized as a leading state sponsor of international terrorism, and indeed its terrorism in 2012 alone, spanning five continents and some 22 terrorist acts with Iranian footprints, has served to further affirm that proposition. Finally, as I mentioned, Iran is engaged in such massive domestic repression that the latter effectively constitute crimes against humanity against its own people.
This brings me to the particular issue of the manner in which Canada must address the whole question of nuclear proliferation with regard to Iran. Here the international context and our role in that context becomes particularly important.
I would like to suggest that Canada support the prospective P5-plus-1 negotiations with Iran, with whatever diplomatic strategy may develop in the context of those negotiations, and put forward the following requirements with respect to combatting nuclear proliferation in general, but in particular with regard to Iran’s nuclear weaponization program.
First, Iran must as a threshold requirement verifiably suspend its uranium enrichment program, allowing the international community to counter the Iranian strategy, the three Ds of delay, denial and deception, used by Iran to accelerate it nuclear weaponization program rather than, in fact, move toward disarmament.
Second, Iran must ship its supply of enriched uranium out of the country, where it can be reprocessed and then made available to Iran under appropriate inspection and monitoring for use in civil nuclear programs.
Third, Iran must verifiably close and dismantle its nuclear enrichment plant at Fordow, embedded in a mountain near Qom, which Iranians initially denied even existed but where a zone of impenetrability will soon develop unless that facility is in fact dismantled.
Fourth, Iran must suspend its heavy water production facilities at Arak. It is sometimes forgotten that an essential component for producing plutonium could also be water, which is a nuclear component that North Korea uses for its own nuclear weapons. Simply put, the path to nuclear weaponization need not be travelled by uranium enrichment alone. The suspension of uranium enrichment, however necessary, will not alone ensure that Iran is verifiably abandoning its nuclear weaponization program.
Fifth, Iran must allow the International Atomic Energy Agency inspectors immediate and unfettered access to any suspected nuclear site, as Iran is a signatory to the nuclear non-proliferation treaty. Iran is thereby bound by its obligations not to pursue nuclear weapons but also to open its nuclear sites and installations.
Sixth, Iranian authorities need to grant the IAEA access to the parts and military complex near Tehran, where it has been reported that Iran has conducted high explosives testing, possibly in conjunction with the development of a nuclear weapon.
Finally, Iran needs to allow the International Atomic Energy Agency to install devices on centrifuges to monitor Iran’s uranium enrichment levels.
These are the kinds of threshold approaches that Canada can assist in framing and thereby assist in combating proliferation. As I said, a foreign affairs committee of the House has determined that Iran engages in state sanctioned incitement to genocide. The convergence of the two makes the threat even more dangerous than it might otherwise be.
There are a number of remedies that Canada could engage in that it has not yet done, both to combat the nuclear proliferation dimension and genocidal incitement. In other words, there are juridical remedies that we have not sufficiently explored.
First, we could simply ask the United Nations Secretary General to refer this to the UN Security Council for deliberation and accountability as a matter that “threatens international peace and security”, which is under the jurisdiction of the UN Secretary General.
Second, any state party to the genocide convention, including Canada, could initiate tomorrow an interstate complaint against Iran, a state party to that genocide convention, before the International Court of Justice.
Third, Canada, or any other country, could ask the UN Security Council to refer the matter of Iran’s state sanctioned incitement to genocide, underpinned by its nuclear weaponization program, to the UN Security Council for purposes of inquiring into individual criminal liability. There are other remedies, but I will limit it in this regard.
Finally, before I conclude my remarks, I would like to return to one specific technicality relating to Bill S-9 and to link it to the problem of Iranian nuclear weaponization. As members of this place may know, despite making reference to the matter, the government has failed to take any action to list the Iranian Revolutionary Guard Corps as a terrorist organization under the Criminal Code. Simply put, the IRGC has emerged as the epicentre of the Iranian four-fold threat to which I referred, and has played a central role in Iran’s domestic repression, international terrorism, incitement to genocide and nuclear proliferation.
The United States has already labelled it a terrorist group, while the UN and the European Union have imposed various sanctions against the IRGC and its leaders. It is regrettable that Canada has yet to take the step of listing it as a terrorist entity here in the Criminal Code, a step that would combat the nuclear proliferation, genocidal incitement, as well as the international terrorism. Indeed, the IRGC, acting through Hezbollah and the terrorist proxies of Iran, was implicated in the attempted assassination of the Saudi ambassador in Washington, and in July’s terrorist attack targeting Israeli tourists in Bulgaria that resulted in seven deaths, as well as a series of international terrorist attacks during 2012.
Of course, the international juridical remedies I outlined must be pursued against the IRGC and its individual members and leaders. Indeed, I have long called for the listing of the IRGC as a terrorist organization, and I mention it now in relation to Bill S-9 to highlight one particular aspect of the bill that needs to be more closely studied at committee with related amendments as may be moved in this regard.
Another important feature of the bill is its military exclusionary clause, which would ensure that none of the newly created offences would apply to “activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law”.
My concern is that activities by or in relation to the IRGC could be argued to fall into this category insofar as the IRGC could be characterized as a military force of a state and not as a terrorist organization. Clearly, the actions of the IRGC can be demonstrated to be in violation of international law, thus precluding protection under this clause. Still, so long as they are not expressly designated as a terrorist organization under the Criminal Code, this legal loophole will still loom over our discussions.
Again, we must situate Bill S-9 within the larger context of nuclear proliferation and the Iranian nuclear threat in particular, and thereby scrutinize the bill to ensure that it could have the intended effect of preventing nuclear terror. Accordingly, I reaffirm my request for the government to list the IRGC as a terrorist organization. I further suggest that the effect of the military exclusionary clause be more closely considered in committee to ensure that Bill S-9 would not be precluded from achieving effective prevention…

Full statement available here.