Public Safety Minister Marco Mendicino speaks during a news conference after a media technical briefing on the tabling of legislation to alter terrorism provisions of the Criminal Code that have blocked Canadian humanitarian aid from reaching Afghanistan, in Ottawa, on March 9.Spencer Colby/The Canadian Press
Allan Rock is a member of the World Refugee and Migration Council, and a former minister of justice and attorney-general of Canada. Warda Shazadi Meighen is an immigration and refugee law partner at Landings LLP in Toronto and an adjunct professor of refugee law at the University of Toronto Faculty of Law.
For many Afghans, the past 18 months have been agonizing. On Aug. 15, 2021, Afghanistan’s capital was captured by the Taliban, following the withdrawal of U.S. troops. Harrowing images of desperate individuals clinging to airplanes remain vivid in our collective memories. Though the media spotlight has moved on, many of those who tried to flee remain trapped under the rule of a brutal and barbarous regime.
The Taliban has proven profoundly unfit to run a national government. It has banned women’s participation in schools and the work force, driven its population to the brink of starvation and refused to engage in good faith with the international community. As a result, the Afghan people face the very real risk of a humanitarian catastrophe with about two-thirds of the country’s population expected to need humanitarian assistance in 2023. An estimated four million pregnant and lactating women and children are at risk of acute malnutrition this year.
Despite this dire picture, many Canadian non-governmental organizations have been unable to provide humanitarian assistance in Afghanistan without running the risk of criminal prosecution here at home. The difficulty arises because the Taliban is listed by our government as a terrorist organization. Section 83.03(b) of the Criminal Code makes it a criminal offence to directly or indirectly provide assistance to such a group. Understandably, Canadian organizations do not want to risk facing criminal prosecution. As a result, their humanitarian work in Afghanistan has ground to a halt.
Furthermore, the ban is absolute since Canada is one of the few donor countries which has not provided for reasonable exceptions to address urgent needs. For their parts, the United Nations Security Council, United States, the United Kingdom, EU and Australia long ago concluded that there must be reasonable and narrow exemptions from their anti-terrorism financing laws.
Here in Canada, the interparty Special Committee on Afghanistan heard from many who implored the government to enact a legislative carve-out for humanitarian assistance in the current absolute ban.
As a stopgap, Canadian organizations have been filtering assistance through international organizations, such as UNICEF and the World Food Program (WFP). But that makeshift arrangement does not provide a long-term solution.
In short, the blanket prohibition in our Criminal Code against providing humanitarian assistance in countries such as Afghanistan where terrorist groups form the government has long needed to be modified. Last week, the government acted to address this need by tabling in Parliament Bill C-41. If enacted, the legislation would amend the Criminal Code to permit the Minister of Public Safety to authorize eligible persons and entities to engage in certain humanitarian activities, such as providing aid for food, shelter and immigration services, including resettlement and safe passage. The provision would apply not just in Afghanistan but also in any country where a listed terrorist group is in charge.
These changes are essential. According to the WFP, millions of Afghans including “young children, families and communities … stand at the precipice of inhumane hunger and destitution.” More than a year ago, the WFP reported that nine million Afghans were a “step away from famine,” while UNICEF estimated that one million children were “at risk of perishing this year from acute malnutrition.”
The proposed amendments strike a careful balance between allowing Canadians to engage in legitimate humanitarian action on the one hand, and prohibiting activities that may indirectly benefit the Taliban on the other. Given the need for caution, the amendments include important safeguards: Those seeking to provide assistance will require authorization by the Minister of Public Safety, upon referral either by Global Affairs Canada or Immigration, Refugee Citizenship Canada. And before granting such an authorization, the Minister of Public Safety must undertake a security review, an assessment of alternative means available to a grantee, and a cost-benefit analysis of the grant. Any such authorization can be revoked at any point and would be subject to periodic review and judicial oversight.
While some details will no doubt be refined after closer examination by committee, Bill C-41 is an important step in the right direction, adjusting Canada’s approach in such cases so that it finally matches what our key allies are doing. An amendment to the Criminal Code allowing for such humanitarian exceptions is long overdue. Canada can join its allies and allow aid to be responsibly provided without compromising our security interests. The challenge now will be to adopt the amendments as quickly as possible, so that desperate Afghans can rapidly get the aid and immigration assistance they so urgently need.