When Hany el Batnigi, a Canadian citizen born in Gaza, returned to his birthplace in September of 2023 for the first time since he fled after the 1967 war, he never dreamed what would unfold. He went to sell his father’s property and visit relatives and ended up in grave danger.
As conditions became increasingly chaotic in Gaza after 7 October, the long-time Ottawa resident tried to contact Global Affairs Canada (GAC) to arrange safe passage out of a war zone but was unsuccessful. Buoyed by reports that a Canadian plane had been sent to Tel Aviv to bring home Israeli Canadians, he hoped that the same courtesy would be extended to Canadian citizens trapped in Gaza. He was sadly mistaken.
Despite his and his daughter in Canada’s attempt to seek assistance from their government, he, like hundreds of other Canadians of Palestinian origin, were abandoned and left to fend for themselves.
Hany is only alive today because he made it out on a fifth attempt to traverse the Rafah crossing after four perilous journeys — including one where an explosion knocked him to the ground and caused his ears to bleed.
His attempts to bring his close family members to Canada have been rebuffed because his income as a retired person is not considered sufficient to maintain them.
But he survived his misadventures to become a plaintiff in what is a groundbreaking case against the Canadian government, and a precedent setting one internationally.
Violated duty to prevent genocide
On 6 November, Hany himself served the statement of claim on a representative of the Department of Justice in Ottawa, filed on his behalf by the Coalition for Canadian Accountability in Gaza, which consists of lawyers from the Legal Centre for Palestine (LCP), the International Centre of Justice for Palestinians (ICJP) – Canada, Hameed Law and Dimitri Lascaris.
The second plaintiff in the case is Calgarian-Palestinian Tamer Jarada who lost 16 members of his family last October when an Israeli airstrike destroyed an entire block of residential apartment towers in Gaza City last October.
According to the lawyers, Tamer’s remaining family in Gaza “endure starvation and medical complications. While some were refused evacuation, members of Tamer’s family (including his sister and her children, his mother-in-law and sisters-in-law) successfully evacuated to Egypt. Tamer’s attempts to sponsor his relatives for safe haven in Canada under the Gaza Special Measures program have been unsuccessful due to administrative dysfunction and elevated security assessments and other limitations not imposed in similar programs for those fleeing conflicts in other regions.”
The Coalition for Canadian Accountability in Gaza (CCAG) is acting on behalf of the two Canadian citizens of Palestinian origin with deep ties to Gaza, who they say “have experienced unimaginable loss due to Israel’s year-long assault on the civilian population of Gaza. They continue to have family members trapped in Gaza amidst ongoing violence.”
The claim alleges that the government has neglected its preventative duties under the Genocide Convention, and of violating the Canadian Charter of Rights and Freedoms concerning Palestinian-Canadians. It relies on several instances of Canada's alleged complicity in genocide, including the suspension of funds to UNRWA, increased arms exports to Israel, procurement of arms from Israel's state-owned industry, maintenance of the Canada-Israel Strategic Partnership, and cooperation between the Canadian military and Israeli military.
As the lawyers state, “We emphasise the obligation of states to prevent genocide upon awareness of the risk, highlighting instances of genocidal intent by Israeli politicians and military figures.”
They are not seeking damages but rather, as written in the statement of claim, “As relief, the plaintiffs seek a declaration that Canada has a duty to take all measures within its power to prevent genocide, and that Canada has violated that duty.”
They also seek a declaration that “Canada’s acts and omissions have violated the plaintiffs’ Charter rights to security of the person and to equal protection and equal benefit of the law without discrimination.”
A meritorious case
Lawyer Dimitri Lascaris tells The New Arab that, while there are grounds to charge Israel with genocide, including the ruling by the ICJ last year, the case is not about proving genocide but rather about proving that Canada did nothing to stop it.
It’s the international law equivalent of Edmund Burke’s “The only thing necessary for the triumph of evil is for good men to do nothing.” In this case doing nothing to prevent genocide is criminally liable.
“We certainly feel that this case is meritorious,” Dimitri told The New Arab. “The judge should grant us the relief we are requesting.”
In fact, if the situation were not so “politically charged” he says, “the case would be a slam dunk.”
In spite of the ongoing horrors unleashed by the Israeli military in Gaza and the West Bank, he says, “I’m absolutely convinced that Israel is going to be defeated. Israel is destroying itself with its own actions. The problem is it’s going to kill a lot of people as its apartheid state is collapsing.” A big factor in its defeat, he says “is the avalanche of litigation against it.”
He cites a case brought against the Biden administration by the Center for Constitutional Rights in New York on behalf of plaintiffs — including leading Palestinian human rights organisations.
The lawsuit, filed in November 2023, claimed that Biden, Secretary of State, Antony Blinken, and Secretary of Defense, Lloyd Austin, were violating international and federal law for failing to prevent and being complicit in Israel’s genocide. It asked the court to enjoin the administration from supporting the assault on Gaza with weapons or other means.
Dimitri also points to a decision in February of this year by a Dutch court, ordering the government to stop the export of F-35 jet parts to Israel over concerns they were being used in violation of international law in Gaza.
'Double standards'
Last week a number of Canadian NGO’s, including Independent Jewish Voices, called for the Canadian government to end charitable status for Jewish organisations funding terror in the West Bank and supporting illegal settlements.
UN Special Rapporteur Francesca Albanese joined them for a press conference in Ottawa. The same issue is also cited in the Coalition for Canadian Accountability in Gaza statement of claim.
Dimitri and his colleagues point to Canadian double standards when it comes to calling out genocide.
“In contrast to its position in respect of other potential genocides including Daesh (the Islamic State group) against the Yazidis, Myanmar and the Rohingya and Russia and Ukraine, Canada’s response to the bombardment and invasion of Gaza has assisted Israel, the potential genocidal state, in its military campaign against the Palestinians and has failed to demonstrate even a modicum of meaningful support to those at risk of genocide,” they state.
An example of this, they note is “in the wake of Israel’s bombing campaign of Gaza, Canada dispatched military aircraft to evacuate approximately 1,300 Israeli-Canadians and permanent residents but failed to evacuate a single Palestinian-Canadian and/or permanent resident.”
Dimitri points out that Deputy Prime Minister Chrysta Freedland warned Canadians against fighting for Russia back in 2022, implying anyone fighting for the Russian side could be breaking international law.
In contrast, as noted in the Statement of Claim, as Hany el Batnigi was risking his life in an attempt to escape Israeli bombardment in Gaza, the Canadian government “continued to allow arms exports to Israel, and took no enforcement action to stop the illegal recruitment of volunteers for engagements with the Israeli military. Canada also actively engaged in military-to-military cooperation with Israel under the Canada-Israel Strategic Partnership and allowed Canadian charities to funnel money to the benefit of Israel’s Ministry of Defense.”
Dimitri told The New Arab that the Canadian government’s double standards are a byproduct of “anti-Palestinian racism.”
“This is a government,” he says, “that is intensely Zionist and in thrall to Israel. They don’t value Palestinian life. They do the bidding of the US government who want Canada to pursue a pro-Israel policy.”
He notes that the Canadian government is “in an uproar over alleged Indian government involvement in the assassination of Modi’s political enemies in Canada — but seem unconcerned about the plight of their own citizens who were trapped in Gaza.”
The government has until November 26 to respond to the lawsuit.
(Cover image: At the entrance to the building in Ottawa which houses the federal department of Justice. Hany second from the right, on his right is professor Faisal Bhabha and on his left is Yavar Hameed. Courtesy of Dimitri Lascaris)
Hadani Ditmars is the author of Dancing in the No Fly Zone and has been writing from and about the MENA since 1992. Her next book, Between Two Rivers, is a travelogue of ancient sites and modern culture in Iraq. www.hadaniditmars.com