Where the talk of torture could lead

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.