Thoughts on seeing a human rights tribunal in action

I have been reflecting on a little time spent at the British Columbia Human Rights tribunal on Monday, mostly spent listening to the testimony of Khurrum Awan, the young man largely responsible for starting the ball rolling on what became the Mohamed Elmasry/CIC complaint against Maclean's.

The hearing continued today. Andrew Coyne and Ezra Levant live blogged the event for those interested. Jay Currie has a good synopsis of their posts. It seems as if Awan and the Canadian Islamic Congress had an especially bad day. Under cross examination, Awan had to admit that he previously misrepresented the demands he had made on Maclean's, in regard to the article he wanted them to publish, and had sought substantial money (whether for personal gain or as some kind of charitable donation I don't know). I end this post with some preliminary thoughts on how the present farce of human rights "justice" might be remedied in future.
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Many people have complained about how the human rights tribunals operate. The litany of problems is probably now well known to any readers of this story and I will not attempt to repeat them all. I came out of the tribunal on Monday dwelling on two overriding issues:

1) that the truth of one's public statements is not a defense against the charge of exposing someone to hatred or contempt, or the mere likelihood thereof. This makes it nearly impossible to have a productive exchange of differences about the reality of the world that those accused of promoting hate or contempt may be trying to represent; thus, any decision the tribunal takes is profoundly political and has nothing about it of the disinterestedness we (used to) associate with the rule of law or that we would like to see in the human sciences more generally. (I'm not moved by postmodern arguments that disinterestedness is not really possible in any context.)

2) that the original and implicit (though not fully-stated) purpose of the human rights tribunals have been established by legislatures in a way that is just not productive of much that is worthwhile. As everyone knows, the Tribunal operates so as to publicly identify the "victims" of our society, and to impose sanctions on the victimizers. Does this punitive model, in the context of politicized decisions as to truth, do much to defer anyone's resentment (such deferral being the anthropological purpose of all culture, not least the law)? I doubt it. A quick and easy "judicial" scapegoating and a few thousand bucks won't go far in deferring the tensions of our resentful age, even among those with simple conceptions of justice. On the other hand, the politicization of justice pisses a lot of people off.

After witnessing Khurrum Awan give testimony on Monday, my first impression was that the problem represented by this young, basically polite, deferential, significantly Westernized (in appearance, but also I believe in much of his thought), though somewhat insecure young man, is perhaps not that which some writers focussed on various Islamist stragegies for subversive "lawfare" might suggest. The matter may be quite different with the official complainant, Mohammed Elmasry, the man with the p.r. problem who did not show up to the hearing. But whatever uses to which others may or may not be putting him, Khurrum Awan does not come across to me as someone particularly conscious of being engaged in "human rights" claims just in order to undermine Western self-confidence or culture. If I'm wrong and that's what he's doing, he is one of the more subtle players of the game.

No, it seems to me Awan is a little too sensitive and modestly Canadian - he is frankly just a little too much like me - to imagine as a hard-core Muslim Brotherhood type, not that I really know any hard-core MB types other than those I see on tv documentaries; and I'm sure even they display a certain, ahem, "diversity" in their humanity.

Despite his slight accent, Awan comes across as a typical product of the postmodern Canadian academy, i.e. someone immersed in a decidedly Western form of victimary thinking. I would go so far as to say, on first appearances, that this postmodern religion has become the primary cultural identity for his public persona. He is not some Islamic tough guy. He feels deeply that he and most Canadian Muslims have been victimized by Mark Steyn and Maclean's and he thinks it appropriate that there be laws of political correctness that give powers to bureaucrats to recognize and punish the victims of published articles.

To try to pull his somewhat disjointed testimony into a little story....

One day in 2006, Khurrum was reading Mark Steyn's article "The future belongs to Islam" and it freaked him out. After 9/11 he had become concerned with civil liberties for Muslims, feeling essentially that it was wrong that Muslims in general were being represented in the media and by certain government agencies as a potential threat to the West. All of a sudden the West had become hysterical about Islam and didn't appreciate that it was only some radical fringe that was causing the terrorist problem.

Thus Muslims in Canada were being victimized by the suggestion that there was some kind of war between the West and Islam in general. The possible reality that, whether most of us like it or not, some kind of war - not just isolated terrorism - does exist in this world, was not something Khurrum seems to have allowed.

After 9/11, Khurrum gave testimony to the Senate Committee on anti-terrorism laws; he became President of the Canadian Islamic Youth Congress, and he wrote a paper on Canada's processes of threat evaluation, arguing that thanks to Islamophobic media, the majority of Canadian Muslims were being misrepresented as somehow incompatible with a democratic society.

Then on the day he picked up the Steyn article, he came face to face with what he took to be the essence of this Western Islamophobia.

While various passages of Steyn's article were highlighed by Khurrum for the BC Human Rights Tribunal, in order to display its allegedly consistent hatefulness, the passage that apparently was the most outrageous to Khurrum and his friends was this:

On the Continent and elsewhere in the West, native populations are aging and fading and being supplanted remorselessly by a young Muslim demographic. Time for the obligatory "of courses": of course, not all Muslims are terrorists -- though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists -- though enough of them share their basic objectives (the wish to live under Islamic law in Europe and North America) to function wittingly or otherwise as the "good cop" end of an Islamic good cop/bad cop routine. But, at the very minimum, this fast-moving demographic transformation provides a huge comfort zone for the jihad to move around in. And in a more profound way it rationalizes what would otherwise be the nuttiness of the terrorists' demands. An IRA man blows up a pub in defiance of democratic reality -- because he knows that at the ballot box the Ulster Loyalists win the elections and the Irish Republicans lose. When a European jihadist blows something up, that's not in defiance of democratic reality but merely a portent of democratic reality to come. He's jumping the gun, but in every respect things are moving his way.

For Khurrum, it is simply unspeakable to suggest that any significant part of Islam in the West is at war with the West, and at the same time to suggest that Muslims who integrate themselves into democratic life are a threat because they will not respect an open democracy but use the vote to undermine Western culture. For Awan, reading Steyn, it's like the Muslims are damned if they do (vote) and damned if they don't (i.e. bomb).

Now I disagree with Steyn's suggestion in the offending passage that the jihadi (suicide) bomber is a portent of any sustainable reality to come, democratic, Islamic, or otherwise, since I think the postmodern jihadi isn't bombing on behalf of any kind of coherent vision, or in the name of any potentially realistic nation, empire, or state of the future. I believe today's jihadi suffers a deeply resentful and incoherent reaction to modernity (however much his resentment is rooted in or mediated by traditional Islamic ideas and values); and he suffers from a vague idealism promising some return to the medieval Caliphate and universal Sharia law, a return that would require so much destruction of the modern world (e.g. the scientific spirit), including the world's population, that I doubt most Muslims would want or allow it to happen. Still, that's not to say that widespread resentments can't first do horrific damage before their delusional basis is clear to enough people.

Anyway, as I see it, a larger point for some reflection on the role of the human rights tribunals is that while Steyn has gone some distance intellectually, neither Mark Steyn nor Khurrum Awan is deeply interested in figuring out ways to reveal to us what Muslims today, in a country like Canada, really believe. In other words, they are not deeply interested in talking about how we might stage tests or shape events in ways that would help us find out.

Steyn tries to straddle the fence in a few words by portraying a world in which radicals can be hidden by a mostly passive but not firmly antagonistic-to-jihad Muslim mainstream. Meanwhile, Khurrum comes to tribunal showing little sense that it might be appropriate (and I doubt it would be appropriate in the tribunal's eyes) that he counter Steyn by offering an account of Muslim or Islamic realities. Nor in any of the testimony I heard (or read about) did he suggest that he has previously made attempts either to study seriously for himself, or to portray to others, what Muslims today in the West or elsewhere really believe, when push comes to shove in contests between competing visions of the future. The impression he give is that in his advocacy work he has been studying how Islam and Muslims are portrayed by non-Muslims. And, in his implicit view, any truth in their/our portrayals is not a defense against a generally negative portrayal.

Like all of us, Khurrum Awan has his personal experience to go on; but no one's experience comprises anything but a tiny fraction of reality. We all rely on weighing and testing other people's representations of reality. At least we would so rely in a sane world where instead of trying to "criminalize" or otherwise ostracize representations we found objectionable, we would try to open ourselves to whatever truth they carried and/or reject them by superior evidence and reasoning.

Maclean's' lawyers made various objections to the tribunal, wondering what points of law Awan's testimony could speak to, objecting that as a resident of Ontario he should not have a say on the point they felt was most relevant to Section 7 of the British Columbia Human Rights Code: the subjective responses of Muslims in British Columbia to Steyn's article (many of BC's Muslims, by the way, are Ismailis and I wonder if they're not a little miffed at Mohammed Elmasry's claim in filing this complaint that he can speak for all Muslims in BC).

But these objections seemed to be of little interest to the tribunal who, it seems, want to hear any and all evidence of hurt feelings and offensiveness. Both Awan and the Tribunal implicitly take the young person's view that conflict is a product of not treating people with respect; and they shows few signs of delving into the realities for which we are being asked to have respect, as if the world were not a tragic battlefield of competing and sometimes incompatible understandings of what is sacred, of what we can or should respect.

What he and his friends demanded of Maclean's is that they be allowed to take editorial control of an issue in which their chosen author was allowed to counter Steyn. Khurrum does not portray himself as an intellectual with a strong sense of his own mind. He started the proceedings that led up to these human rights complaints because he had been offended by Steyn's articles, not because he was rebuffed in attempts to know and publish his own thoughts.

Anyway, to continue the story that unfolded with his testimony: Khurrum is just an ordinary Canadian guy who went to law school and one day was struck dumb by the Steyn article; he showed it to his non-Muslim boss at the Parkdale legal clinic for low income people in Toronto, and received from her a sympathetic response of shock and outrage. The boss immediately started talking to people and looking into whether this article could be considered criminal hate speech. Heh, that's Parkdale for you...

Long story short, Khurrum and his other friends from law school studied all the relevant Canadian laws and decided that their best response was 1) to demand that Maclean's publish their chosen author and make a cash donation; or 2) they would look into legal remedies. It turned out that the test for criminal hate speech is quite demanding, and so they settled on laying a series of human rights complaints, after asking for and getting the support of Mohammed Elmasry and the Canadian Islamic Congress to give them some kind of institutional legitimacy. (Many bloggers argue that, in turn, Elmasry is using the young lawyers as his own "sock puppets" in some kind of lawfare.)

At the BCHRT, Khurrum went on, despite the protests of Maclean's lawyers that this kind of testimony should be inadmissible, to tell of how much personal heat he and his fellow complainants took in response to their laying of human rights complaints. He spoke of attacks on religious belief, and accusations of terrorism coming from the blogosphere.

It soon became clear that the strategy of the CIC lawyer, Joseph Faisal, is to expose the BC Human Rights Tribunal to the resentments that Canadian bloggers have directed towards the sock puppets, as a way of proving Maclean's guilty by association, a strategy the Tribunal seems to be allowing in their procedural rulings, if my reading of the ongoing reporting from the Tribunal is correct.

In complaining about how much personal heat the complainants have taken, Awan made an explicit comparison to the experiences of Jews, Blacks, and aboriginals who have previously used the human rights tribunals. The alleged fact that previous complainants of "hate speech" received much less public criticism was proof of the "Islamophobia" that Maclean's has stoked.

Now leaving aside that most of the heat Khurrum has felt has come from the nascent Canadian blogosphere, a historical innovation of which we're all a little proud - and who knows how bloggers would respond to a 2008 version of the infamous BCHRT prosecutions of Doug Collins and the North Shore News for Judeophobia - here Khurrum Awan has a point, not that it should be used in defense of the tribunals' existence.

It is true that Canadians are only now waking up to the offensiveness of these human rights tribunals passing judgment on freedom of expression and other matters. It is true that Canadians were previously more willing to buy into a certain narrative of victimization, one founded (as are the human rights tribunals themselves) in the postmodern response to the Holocaust. And it is indeed the (unwelcome) fate of Muslims in Canada that it is partly in response to the actions of some of their co-religionists globally that the postmodern victimary ideology is under attack and crumbling.

If formerly (in the 1980s and 90s) Westerners were generally loathe to pass judgment that suggested one group or culture was better than another, the appearance of (suicide) bombers and radical mosques and Islamist organizations in Western cities (and of those who either applaud or refuse entirely to condemn jihadi violence), in what appears to be a desire to defeat a decadent modernity and return to the order of the Medieval Caliphate, forces us once again to make value judgments that certain kinds of culture are better than others.

What this show trial at the BC Human Rights Tribunal is ultimately about, it seems to me, is the sustainability of making claims on the founding revelation of the postmodern age. The ultimate sins, in response to which the post-Holocaust "human rights" world view exists, are "discrimination" and "dehumanization", words that sum up the memory of massed starved, naked, and dead corpses stripped of all distinguishing marks of individual identity save some implied stain of (Jewishness).

Indeed Khurrum Awan's testimony mentioned that Steyn's article created the distinctly unsettling impression of an apocalyptic world view in which a repeat of the Bosnian massacres, and genocide more generally, was felt to be a real possibility for Europe in future if relations between Muslims and aboriginal Europeans continue on their present course.

And while the Holocaust is the central symbolic tool in postmodern politics, it has one horrific and ultimately fatal feature: just as the Nazis destroyed the individuality of their victims, the use of the Holocaust in postmodern victimary thought destroys our ability seriously to distinguish empirical realities. Once we get in the habit of calling each other Nazis, what is there left to say, what reality is there to further qualify and divide up? One cannot seriously contest that the Jews really were completely innocent of anything that could have justified the Nazis' genocidal rage. It is one of those very rare moments in history where there is an absolute clarity about right and wrong, except for those caught up in the delusional fury of extreme resentment; and in the case of the terminally resentful, their ultimate error is only to pin the label of absolute victim and victimizer on the wrong people.

Now when most of us remember the absolute victimization of the Holocaust it comes in figures of state officials doing the evil of preparing and carrying out the "Final Solution". Now often these memories are of nothing much in particular save vague, half-formed images of the "banality of evil" as Hannah Arendt famously characterized the ordinary German bureaucrat. It was not the lone journalist or magazine that carried out, or instigated, the Holocaust; it was precisely the modern state in its full, almost forgettable, "glory" that did.

So it is impossible for a person like myself to sit in front of the British Columbia Human Rights Tribunal - where testimony is being given that a mere individual, Mark Steyn, gives off signs in his writing that could re-instigate the Nazi evil, signs of which the complainant is an indubitable victim - and not look at the tribunal "judges" and not to have momentary intuitions one might express as: "G-d, it's these bureaucrats appointed to the ultimate postmodern cause - "human rights" - it's these who are appointed to save us from neo-Nazis who may perhaps themselves be the neo-fascists."

After all the "neo-Nazi" in postmodern popular culture has come to have exactly the same scapegoat role that the "Jew" had in Nazi propaganda. In a world where empirical distinctions give way to a more pressing need to remember the horrific revelation of the Holocaust, the possibility of an absolute victimization of an entire population, it is easy to turn the symbolic tables and forego a larger reality.

Now in all seriousness, I know that such an "intuition" would fall apart under any kind of serious empirical examination. After all, these bureaucrats can only fine Maclean's or impose some kind of order telling them what or what not to publish, a ban that could lead in future to charges of contempt of court and imprisonment for anyone guilty of breaking such a ban. Furthermore, these bureaucrats can only pick and choose their victims as complaints are laid; they cannot go out and find an army to round them up (nor can they use the "entrapment" methods of the Canadian Human Rights Commission!). What's more one thinks of a certain sure-footed, methodical "genius" among the banal Nazi bureaucrats; and such was not the impression I gained from looking at the faces of the three members of the British Columbia Human Rights Tribunal sitting in judgment at the Maclean's hearing.

I am someone interested in the masks we wear and interested in seeing if people are or are not at home in the roles they have to perform in the professional world. I might reflect, for example, on the Christian idea of a person that has evolved from the classical Roman idea of a "persona" (i.e. the mask one wears in a religious ritual) such that a Christian is someone who has become well adjusted to following the post-ritual model that Jesus laid down for "sons" and daughters in homage to God the Father. When I see a successful Christian I tend to see someone so at home in his "mask" that there really isn't much sense of a struggle between the "mask", or Christian person, and its uncertain initiate/performer.

At the British Columbia Human Rights Tribunal, I had the impression of people wearing their masks with some discomfort, of people still in the early stages of their initiation into the halls of justice. One of the panelists in particular had the habit of making what to my mind appeared to be rather exaggerated facial expressions, in an attempt to show the appropriate emotions of seriousness, concern, empathy for Khurrum Awan, etc. One of the most telling points in the proceedings came when the cell phone of CIC lawyer Joseph Faisal rang loudly. He jumped to turn it off and apologized profusely that this was the "first time in 25 years that's happened". The Chairwoman of the tribunal replied "Make it the last!". The way she said this seemed to me awkward, theatrical, a somewhat exaggerated reaction to a feeling of "what do I say to this?", as if the appropriate way to assert authority in this situation were not, as it were, bred in the bone. An experienced judge, one might imagine, would have sufficient worldly wisdom to be inured to the nuisances of our now inescapably networked lives, such that a certain sardonic humility about human imperfections in attention that cannot be commanded away would enter into any warning.

So, I sensed quite a distance between the mask and the performer at the BCHRT, while I tend to imagine the Nazi - thanks to photos like these - as rather more at home in the banality of bureaucratic evil. There are bloggers effectively calling the human rights commissions and tribunals "fascists"; I would demur slightly: in doing this, bloggers start playing the "human rights" game where everyone is either a fascist or a genuine victim; this may be a useful ploy in beating the victimary world view at its own game, but it is also a sign of the thinking we need to move beyond.

To conclude, what I saw missing in the whole performance of "human rights" at the BC tribunal was a sufficient regard for details, for differentiations that might teach us something about the reality out there in the real world. Instead there is a great search for (false) moral equivalences.

What stood out for me was Khurrum Awan's sense of injustice that he had taken much more personal and Islamophobic heat for claiming victim status than have Jews, Blacks, or aboriginals. Khurrum has gone to university and studied like everyone else; so he has learned and adopted the unofficial postmodern Canadian secular religion - what some call Trudeaupia - and accordingly figures he is not being treated as one should.

Now it seems to me that there might be use for "tribunals" that could help us find a way out of the morass that our post-Holocaust "human rights" world view has put us in, with unelected bureaucrats being placed in a position - by our legislators who are all too keen to have unelected bodies where controversial and difficult matters can be referred, allowing politicians to avoid necessary and properly political discussions - to make orders about what can and cannot be published in Canada.

After all, what should rightly be done with people like Khurrum Awan, young people whose initiation into Western culture is well under way but not yet entirely complete, and who understandably thus feel shocked, personally threatened, by publications that paint members of their religion as a threat to Western civilization?

Surely in a civilized society, we need to open such matters to discussion in a search for better understanding of the realities alleged. Exactly so, say many pro-Maclean's bloggers: those who find Mark Steyn wrong or repugnant should have to engage him in public debate, and not try to silence him.

But then we have to remember that we have a whole generation of young and now middle-aged Canadians with a limited ability to think of society in anything other than victimary "Nazi-Jew" terms, terms that involve a flight from empirical distinctions and from a politics that would find ways to test reality rather than always seeking to pass "final" judgment on it.

Even though Awan is himself a Muslim, I can't imagine a serious and useful debate between him and Steyn on just what are the realities of the relationship between Muslims and Europeans, and just what is it that Muslims (or Europeans) really believe. For that matter, what do any of us really believe when put to the test of having to make important decisions about values and actions, when the difference between our idealized ends and real world means start to come in conflict once we begin to act?

My point is that in the postmodern world, where we collectively avoid taking any kinds of risky actions or decisions that might contravene the religion of "human rights" - that might create some imbalance, some asymmetry between people, some "victim" - very few of us have had a chance to know, by our actions in historical events, what we "really believe". For example, how many of Khurrum Awan's alleged "Islamophobes" in Canada would really carry through on their Islamophobia if one dark day the Canadian government recommended we separate from their hijabs the kind of polite and sincere young Muslim girls some of us talked to outside the Tribunal hearing room, all in the name of confronting Occidentophobia. Would people really come forward to enforce what such a government proposed? I don't know. How can I know? One can take an opinion poll, but that won't tell us how people will act in the heat of real-time events where competing moral imperatives become more evident.

But perhaps we will defer ever making such difficult decisions precisely by having the courage, like Mark Steyn, to talk about them. Would discussing - if one could discuss such matters without fear of being dragged to the Human Rights Tribunal -the possible events and demographic trends that might engender fears that might lead, one dark day, to a Canadian government that would propose strong actions for or against Islam, help lead many Canadians, Muslims and not, to new kinds of discussions about what should be common Canadian values, discussions that could allow us to define, relatively non-violently, and to apply relatively non-coercively, the new forms of reciprocity that will allow us to overcome the kind of nihilism and (poorly disguised, post-Holocaust) fear that often attends our expressions of "multiculturalism"?

We can imagine such a free and open discussion in Canada; yet it is impossible to imagine a world where our representative government has no role whatever in regulating the exercise of our shared freedom. So, to return to the problem of what an open and just society should do with someone, like Khurrum Awan, who has been deeply disturbed by what a national magazine with large circulation can publish about his people....

Perhaps his problem could be well handled if we had "human rights" tribunals whose only job was to make careful findings on statements of fact, on hotly disputed media claims; and then, without being definitive or unduly authoritative, they could pass non-binding moral judgments on who has been unfairly characterized. The tribunals would have no power to sanction anyone. They would only be listened to as long as they were interesting, as long as they could make a real contribution to the public debate, as long as they maintained intellectual and moral credibility and could thus help institutionalize certain understandings of reality, as long as they could find ways to test and signify new realities as they came into existence.

So, for example, Mark Steyn thinks the reality in Europe is xyz; and saying this sends shivers down the spine of Khurrum Awan. Well, instead of putting on an expensive trial with punitive intent, as if that's the only way to change minds and retrograde behaviours, why not, when cases merit it, put on a trial whose intent is simply discovery and better articulation of our shared reality? That would be productive because it is only when we all become more capable of articulating our shared national and global realities that we - the free and productive people who make a complex market-driven society work - will discover the forms of reciprocity suited to deferring the violence that both Mark Steyn and Khurrum Awan rightly fear.

It is wrong to impose on the private property of publishers and tell them what they can and cannot publish. But still, it may be right that someone like Khurrum Awan who can't fully take care of his own needs in public debate, have a chance at asking someone else to take up his case for him. Of course, if a state agency, this someone else would have to pick and choose complainants carefully; but the more careful, honest, and transparent the process, the more legitimacy it would have. In fact, it could only sustain itself by sustaining its legitimacy without recourse to the primitive ritual power to label "bad guys" that we presently give the "human rights" tribunals.

A party of truly disinterested judges sitting as a tribunal could help bring into public debate subjects and understandings that our politicians are presently scared to touch. Or, alternatively, such a tribunal could help (they would never have the final say in a democracy) to institutionalize understandings that are already well discussed in public, but to a point where resolution or action is not possible because no one really knows enough of the truth of what is being discussed.

We need ways to measure and signify the new realities of life in Canada in the 21st Century. If we don't have these, if we allow all our human sciences and "human rights" debates to get stuck in the mire of symbolic contests over the horrific legacy of the Holocaust, our culture will sink deeper into infantalization and primitive responses to perceived sleights. If we do develop new ways of measuring and signifying our shared reality, we can look forward to developing new forms of reciprocity that will keep Canada's future open.