An international civil court to try governments that imprison; torture and murder people.

The world has an international criminal court that tries government officials and other people who commit acts of genocide, crimes against humanity, war crimes and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression.

The Court was established in 2002 as a permanent tribunal with the official seat of the Court being in The Hague, Netherlands; however, its proceedings may take place anywhere.

Unfortunately, at present, there is no civil international court that will try countries or government officials or other persons in authority in countries that condone false imprisonment, torture and murder of its citizens or other persons in those countries.

I know of no country in the world that permits its citizens to institute court action in their own country for injuries caused by officials and other war criminals of another country. For example, if you were tortured by the police in a rogue country such as Iran or Syria (just to name two) you would have to go to that country and file your claim there. That’s like telling the chicken that has had it leg chewed off by a fox that ventured into the chicken coop, that it has to go to the fox’s den to seek compensation for the loss of its leg.

Maureen Basnicki's world came crashing down on her on September 11, 2001 when her husband Ken was killed in New York City after two planes crashed into the Twin Towers of the World Trade Centre.

Now, some six years later, Basnicki wants the right to sue for damages in Canada, the terrorists and/or foreign states or organizations that support terrorists. Unfortunately, she cannot bring an action against these people, countries or organizations under Canadian law. The State Immunity Act of Canada prohibits taking sovereign states or individuals from abroad into court in Canada unless it's for business reasons only.

I mention business reasons because years ago, a Canadian business man was owed money by the Russian embassy in Canada and when it didn’t pay their debt to him, he sued them, he got judgment and then he had the sheriff seize one of Russia’s ships that was in port. He got his money.

Basnicki believes that the decision of the Canadian government is wrong. She feels she has been denied her civil rights to seek redress in a Canadian court. She said in part; “I don't want the most obvious crimes against humanity to be protected by state immunity.” She's worked over the past six years, along with the Canadian Coalition Against Terror, to get changes to the State Immunity Act. Now Basnicki is hoping a private member's bill, introduced in the Senate late last year, will be passed, amending the act to allow her and other victims of terrorism to sue here in Canada.

Basnicki isn't the only one who wants to see the State Immunity Act changed. Many others – including Ottawa-based Amnesty International Canada and human rights lawyers Lorne Waldman and Mark Arnold would like to see the act amended so that those who have experienced gross violations of human rights and torture are also allowed to have their day in court.

Alex Neve, secretary-general of Amnesty International Canada, believes the State Immunity Act is "an obstacle to survivors of serious human rights violations abroad and prohibits them from being able to seek redress and compensation, which is their right under both Canadian and international law.”

It certainly is the law in Canada and elsewhere for people who are wronged to seek redress of some sort in a court of law. The trouble is that the country the plaintiff lives in is not the forum in which the trial can be conducted when the defendant is another country. In other words, no nation can sue another nation and expect the trial to be held in a court of the plaintiff’s nation.

Says Neve: "When people experience torture or other grave human rights abuses it's not just a good thing or a nice thing they be allowed to pursue a remedy. It's a right itself."

That right is enshrined in international human rights law in the United Nations International Covenant on Civil and Political Rights and the U.N. Convention against Torture, Neve says. Canada is a signatory to both treaties, which may make the State Immunity Act problematic.

In a shrinking world, the pursuit of legal redress to human rights violations or abuses abroad is becoming increasingly important – a modern-day phenomenon that needs a place to be heard.

"When someone has experienced torture in Syria, in Iran, in Egypt or perhaps Ethiopia," Neve says, "it would be a good thing if they could pursue justice in the country it happened in. But with the state of justice in those countries that's an illusion."

The question remains however: Does the fact justice is an illusion in many countries mean a person should have nowhere to turn?

The international community – including Canada – has long recognized that all countries have a responsibility to ensure there is justice when it comes to human rights abuses such as torture and that there should be universal jurisdiction over those crimes. Yet the State Immunity Act of Canada precludes that when it says that a person residing in Canada cannot turn to Canadian courts to sue another foreign government except for commercial matters. It appears to create a civil exemption for torture, genocide, war crimes and crimes against humanity.

Further, one of the most controversial and politically charged issues in current human rights discourse is whether and to what extent states are bound by human rights obligations with respect to the conduct of their armed forces abroad in armed conflict, occupation, and peace operations with respect to compensating those who have been wronged by the activities of armed forces or government officials.

For example, in November 2007, human rights lawyer Lorne Waldman Waldman decided to put the State Immunity Act to the test, challenging it in the Ontario's Superior Court. He filed a lawsuit against the Ethiopian government and two Ethiopian officials for violating the human rights of Bashir Makhtal, a Canadian who has been detained in jail in Addis Ababa without being charged or being allowed to see a lawyer. Makhtal has been held incommunicado for over a year. He was sent from Kenya to Ethiopia via Somalia just over a year previsously. Waldman hopes the case will lead to changes in the State Immunity Act, and pressure the Canadian and Ethiopian governments to resolve Makhtal's case and perhaps return his freedom to him.

For Waldman, the bottom line is simple: Canadians who have been subjected to violations of human rights abroad – particularly in countries where there is no due process and no way of seeking legal redress – are being denied any opportunity to seek legal redress here, because of the State Immunity Act.

Canada isn't the only country that doesn't allow foreign countries to be sued at home. Britain doesn't allow for it, as Canadian-born William Sampson found out when he tried to sue Saudi Arabia for torture he experienced in jails there. His case was at first supported but then rejected by the British House of Lords.

Maher Arar – the Canadian sent to Syria, by the Americans and was kept in prison for a year and tortured – is a case in point. He was not allowed to seek redress in Syria, or in Canada or the United States, for those human rights violations that were committed against him.

If the courts turn Makhtal's case away, they will essentially be saying a Canadian citizen cannot use the courts as a vehicle to bring human rights violations in another country to an end. There may be no recourse but for Parliament to intervene and pass legislation that would not only allow Canadians to sue countries that support terrorism but also countries that violate human rights.

Some fear if the act is changed to allow cases like Makhtal's, it might trigger a bureaucratic and judicial nightmare as Ottawa tried to come to grips with how decisions would be enforced, how governments and or organizations might pay damages, and who would ultimately be responsible for enforcing any decisions from a Canadian court on international protagonists.

A legal challenge to the State Immunity Act has not worked in the past. Toronto human rights lawyer Mark Arnold represented Houshang Bouzari – a Toronto-area man imprisoned and tortured in Iran – in a series of legal challenges, including one in 2005. The Ontario Court of Appeal rejected the argument that liability for torture was an exemption under the act. And the Supreme Court of Canada refused to hear the appeal.

In a world where terrorism and human rights abuses and torture are becoming part of everyday life, the act must be changed. The United Nations Committee on Torture is in agreement, recommending Canada review its compliance with the Convention Against Torture so victims have a way to seek compensation in this country's civil courts. However, I have some concern that the defendant nations may feel that that they won’t get a fair hearing in another country that tries them. If anything will make the concept of one country trying another in a civil court in the plaintiff’s country fail, it is that proposal.

I think that the United Nations should step into the fray and not leave it up to the individual nations to sort out this problem. The trouble with getting the UN to get involved is compounded by the fact that often the member states have difficulty on agreeing with resolutions that don’t suit their own purposes.

The legal arguments that United Nations resolutions may be authoritative evidence of binding international law usually rest on characterizing them as (1) "authentic" interpretations of the UN Charter agreed by all the parties, (2) affirmations of recognized customary law, or (3) expressions of general principles of law accepted by states. These reasons fit into the three sources of international law contained in Article 38 of the Statute of the International Court of Justice. The Court itself has recognized the legal force of several UN declarations in some of its advisory opinions. But some caution is called for. Even a UN declaration adopted unanimously will have diminished authority as law if it is not observed by states particularly affected.

Weaker states, which constitute a majority in UN bodies, use their voting strength for lawmaking to improve their position vis-a-vis the more powerful states. However, these efforts are often limited by the realities of power and politics. It has come to be recognized that resolutions by majorities on economic matters are likely to remain ‘paper’ declarations without much effect unless genuinely accepted by states with the requisite willingness to carry them out.

All bodies in the UN system are governed by written instruments, ranging from the Charter and general treaties to the specific resolutions and decisions prescribing terms of reference. Each expresses the objectives to be achieved in varying degrees of generality. They may also indicate the means to be used and the limits on competence. In practice, interpretation is generally required in applying text to actual cases. But, unlike judicial interpretation, UN interpretation does not usually have an adjudicative character. The task faced by most UN bodies is practical and instrumental ---- that is, to prepare a plan of action or to recommend state behavior to achieve a goal.

In the end, the ‘law’ is determined by the subsequent conduct of the states and their views of the law.

I believe that the only way to solve the problem with respect to victims seeking compensation from rogue nations and/or terrorists etc., is for the United Nations to create an International Civil Tribunal that will hear the civil complaints of all those persons who have suffered at the hands of war criminals, terrorists and nations that commit human rights abuses on their own people or others.

The tribunal should have its official seat in The Hague which will also hear cases were the crimes are committed in Europe. I envision satellite tribunals in the Middle East, Africa, South America and Asia. Each court will be staffed with judges, prosecutors, investigators and advocates that will represent the victims and the defendants. The victims and defendants can choose their own advocates if they so wish. The procedures would be as follows:

First, a formal complaint would be filed with the satellite court closest to where the crime took place. For example, if the crime took place in one of the Central American countries, it would be heard in the tribunal in South America. If it occurred in Miramar, it would be heard in Asia. If it took place in Iran, it would be heard in the Middle East. If it took place in Libya, it would be heard in Africa. If it took place in Serbia, it would be heard in Europe.

Secondly, a committee of associate jurists in the pertinent satellite tribunal would review the complaint and if they are satisfied that it has merit, the complainant would be informed and the matter would be turned over to an investigator to investigate the complaint.

Thirdly, the advocate for the complainant would prepare the plaintiff’s claim in consultation with the victim. That advocate will also act for the complainant at the hearing. The complainant will not have to pay any monies towards the costs of investigation, preparation of the claim or the hearing but if an award is given, 15% of the award will be deducted to cover the costs incurred along with the costs of travel, hotel and meals for the complainant and witnesses when he or she is attending the hearing.

Fourthly, if an award is given, the tribunal will hold a subsequent settlement hearing in which the representative of the defendant and the tribunal will work out a payment plan.

Fifthly, if the defendant refuses to pay the award, steps will be taken by the tribunal to seize bank accounts and property, wherever situated.

And finally, the official tribunal will hear appeals of the defendants but to qualify for the right to appeal, the defendant must deposit the amount of the award with the Tribunal first.

Until something better is proposed, my proposal may be the only one that will work, at least for the time being. In any case, if the leaders can be held personally liable for the crimes committed by their underlings, this may considerably reduce the crimes committed on innocent victims in rogue nations.