Where the talk of torture could lead - Macleans.ca

Where the talk of torture could lead

Could Canadians actually be charged with war crimes?


Richard Colvin had barely finished delivering his incendiary testimony about torture in Afghanistan to a House committee last week before fierce debate broke out. For politicians and the public, the issue was whether the diplomat is a courageous whistleblower or an unreliable rogue. But among international law experts, the argument is about the ultimate outcome if his allegations—about federal officials ignoring clear warnings that detainees transferred by Canadian troops to Afghan authorities were being tortured—hold up. Is there a serious prospect of Canadian military or civilian officials being investigated and even charged as war criminals?

A few outspoken law professors quickly concluded that Colvin’s revelations formed a solid basis for a war crimes case. But others told Maclean’s that dramatic outcome is extremely unlikely. The experts are sparring over a relatively untested federal law. International law on war crimes went through a period of rapid reform in the 1990s, largely in the wake of atrocities committed in the violent breakup of the former Yugoslavia. Prompted by the creation of the International Criminal Court, Canada passed a new Crimes Against Humanity and War Crimes Act on Oct. 23, 2000. The first person convicted under the act, Désiré Munyaneza, a Rwandan who led a band of murderers in that country’s 1994 genocide, was sentenced last month in a Montreal court to life in prison.

The possibility that the same law meant to bring the likes of Munyaneza to justice could be applied to Canadians involved in Afghan detainee transfers is sobering. Recognizing that even raising the possibility is controversial, some lawyers who have been hashing over the issue in private declined to be interviewed on the record. Yet several prominent academic experts said it could and should happen. “We must hope that the will to investigate and prosecute is present,” said Michael Byers, a University of British Columbia law professor and former federal NDP candidate in Vancouver.

Payam Akhavan, a former United Nations war crimes prosecutor, now a law professor at McGill University in Montreal, argues Canada’s war crimes act applies, even though nobody alleges that any Canadian tortured a detainee. Akhavan points to the section of the act that says civilian officials or military commanders are criminally liable if they fail “to exercise control properly over a person under their effective authority and control, and as a result the person commits an offence,” and if they fail to take “as soon as practicable, all necessary and reasonable measures within their power” to prevent those under them from commiting war crimes like torture.

But skeptics doubt that clause could be  interpreted to mean that Canadian troops or bureaucrats can be held responsible for torture meted out by, say, Afghanistan’s notorious National Directorate of Security. “A prosecutor would have to go through all sorts of contortions to show that an Afghan prison official was under the effective control of a Canadian military commander,” says Craig Forcese, who teaches national security law at the University of Ottawa. (His view is of particular interest, since he was singled out by lawyers sympathetic to Colvin as an expert whose opinion on this issue would be well worth hearing.)

Forcese said those arguing that charges under the act could be laid fail to realize Canadian officials would only have committed a war crime if they truly intended that detainees be tortured. “Negligence, stupid policy, turning a blind eye—none of that, in my view, rises to the level of conspiracy or being an accessory,” he said. “I know that people are talking about it, but I’m not persuaded. They’re using this murky concept of ‘complicity.’ It’s really hard to nail that down in law.”

However, that doesn’t mean Forcese sees Canadian officials as being safe from investigation and prosecution. He points out that a lesser charge of criminal negligence could be laid even if there is no evidence Canadians intended for torture to occur. “Everything else in the Criminal Code requires that you actually wanted the outcome,” he said. “Criminal negligence means that you’re just unbelievably careless or indifferent to the outcome.” For any official who might have “washed his hands” concerning the possibility of torture in Afghanistan, Forcese said, it’s the possibility of a negligence charge being laid that “would keep me up at night.”

For now, the controversy Colvin has stirred up remains a matter for politics, not prosecution. The House committee on Afghanistan was slated to hear high-profile witnesses try to refute Colvin’s story this week, including retired chief of defence staff Gen. Rick Hillier, and David Mulroney, Canada’s current ambassador to China and former deputy minister in charge of the federal Afghan task force. What the committee uncovers will likely determine if war crimes charges remain a serious debating point. Opposition parties and human rights groups like Amnesty International and the B.C. Civil Liberties Association are signalling their limited expectations on that front: they’re calling for the Conservative government to launch not a criminal investigation, but an independent inquiry.


Where the talk of torture could lead

  1. I was listening to Blatchford from the G&M, you might want to take a look at what she had to say.

  2. PLease move on, no one want to know this dirty war any more.
    Can we go on the HST? Just let the soliders carry all the glory from the battlefield and proud of them.

  3. No good can come from pushing this issue farther. In its attempt to embarass the govt, the opposition is embarassing the whole country, while demoralizing and discrediting our armed forces.

    If they continue they risk damaging Canada's international reputation all because of the unverifiable claims of the enemy.

    It seems that the Liberals are just not capable of looking at the "big picture". They have tunnel vision on one goal, and one goal alone regardless of who gets trampled along the way. And that is to return to the government side of the house.

  4. Funny how the lefties are so quick to condemn our side for any perceived slight but are quiet when terrorists murder teenage girls that want an education, cut the hands off people that exercise their democratic right to vote, Drag american prisoners around until their heads come off and video tape it. Good thing they live in a country where some are willing to die to protect their right to protest.

  5. Who are you people?

    • Read up on Somalia Inquiry lefty

  6. Leave the issue alone, Iggy is making the liberals look even worse.You can tell their hearts are not in it, they are sending out their 3rd and 4th stringers.

  7. The war on terror is a farce made up by the rokerfellers, Canada is no longer its own sovern nation we are part of the north american union, please please please look all these names and phrases up, we are dangerously close to a new world order and I hope people wake up cause its aready too late, and what I mean by that is we are going to fight together to stay alive

    • If New World Order means no more bleeding heart leftys destroying our economy and letting criminals out of jail I'm all for it.

  8. it is utterly repulsive the way some people in this country are so eager to punish the people putting themselves on the line for us everyday for crimes there is no evidence to say ever happened. it is amazing how the US is right now arranging to have actual war criminals, terrorists, brought to trial in america, giving them rights that they have no right to have, but we are chomping at the bit to charge our troops with war crimes for doing what they had to do to protect this country. way to undermine our soldiers folks. good job.

    • i agree wholeheartedly Mel. Anyone…..including parliamentarians should be held to account under the OSA. It is called aiding and abetting the enemy. By discussing these sensitive issues in the public realm they are undermining the ability of our soldiers to do carry out their mission effectively and alowing those who would do us harm gleefully take note of our weakkneed bleeding hearts in order to gain an upper hand. Time enough to navel gaze once the troops are home and out of harms way.

      • why stop at pulling the troops out?! persue the lefties in court and charge them with aiding and abbetting the enemy under the OSA. mmmmmmm wonder if any crowns council would want to take that one on pro bono.

  9. mel – I think you should read a few more papers and read a few more comments after the articles. I have read quite a number in the last weeks. No one blames our troops. This is an issue of our government making a conscious decision to ignore an international law. (I would speculate that this policy may also have put the troops in danger, because without proper monitoring of the detainees, the ones that were not identified as Taliban but actually were, could possibly be quickly released from the Afghan prisons, through bribery or other ways, and fight again with the added knowledge of Canadian detainment procedures.) The issue is also one of government transparency and accountability to the Canadian people about the difficult decisions it has to make. It is about lies, character assassination and misinformation. It is about Canada's moral standing – practicing exactly that what our soldiers are fighting (and far too often paying with their lives) for.

  10. It seems as if the government has been very busily engaged in covering something up and it does no good to the country to let them get away with it without at least investigating. Whether you care about the treatment of detainees or not, any government must be required to account to the people.

    No discredit falls to the soldiers and no one is saying it does. Nice attempt at misdirection trolls.

  11. For once it'd be nice if the truth, justice, and honor was upheld by the government so they titles they have actually meant something other than, I'm a better conman than the other guy.

  12. For once it'd be nice if the truth, justice, and honor was upheld by the government so the titles they have actually meant something other than, I'm a better conman than the other guy.