Torture in Afghanistan v. The Criminal Code


Our John Geddes talks to those who study such stuff.

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.”


Torture in Afghanistan v. The Criminal Code

  1. Wow! Is this guy really suggesting that Canadian officials were "unbelievably careless or indfferent to the outcome"? Pleeease! I have a lot more confidence in the officials in DFAIT and elsewhere. Sure, with hindsight, things could have been done differently. But I find it hard to believe that they were careless or indifferent to the possibility of torture.

  2. Incredible that this should even be a discussion point when I havent seen a single war crime indictment created against anyone in Al Queda or the Taliban.

    Canadian War Cirminals would generally be considered and oxymoron.

    We move from the sublime to the ridiculous.

    • I take back my earlier statement. Comparing the actions of our public officials to terrorists is the absolute lowest standard. My bad – it never occurred to me that anyone would seriously use such groups as the yardstick for measuring our own conduct.

      • Where I agree with you is that they are seperate issues, but I dont think you would disagree that the standards are the same. In the sense that do you excuse the other side because they are supposed to be bad guys and therefore arent supposed to live up to standards?

        To be unable to distinguish is the issue. The others sides conduct doesnt excuse your own, however, you also need to decide equivalencies. The issues here are murkey at best, one of speed of compliance, not compliance with norms and standards. To even breach that topic begins to bring the whole regime in to disrepute when you contrast it with the lack prosecution or attempts at prosectution of the other side. It is a complete lack of perspective of what was done, what was being done and what the situation is.

        War Criminal is now the new racist. When everyone is a war criminal, nobody is. Goodness even the Red Cross is on Colvin's butt these days. So just what is the agenda here, recovering old ground that was settlled in 2007.

  3. "So just what is the agenda here, recovering old ground that was settlled in 2007"

    Couldn't agree more. Leave the dirt under the carpet…if there's any to be found.

    Just referencing the other side isn't helpful…we are trying to win a hearts and minds war, right. Having said that i don't think that holding our selves to impossible standards helps either…after a certain point it can become self flagellation. For me the real issue here is – outside of real negligence – did our officials participate in a cover-up?

  4. I haven't seen a lot of 'war criminal' charges being bandied about, and I agree we need to be careful about indulging in hysteria. That said, I think the crux of concern has a lot to do with the way this government initially handled Colvin's testimony. I couldn't help but notice that MacKay's legal scholarship instincts weren't aroused by Mulroney's input, for example. All they had to do was 'own' the situation. Not obfuscate, blame others, and engage in the predictable Harperite games. For those of us who are concerned about the nation's honour and values, that response did little but create a heck of a lot of suspicion.

    I think there's room for a middle ground of consensus here, where a majority of Canadians find torture unacceptable, but are willing to understand that an imperfect situation like Afghanistan might involve the occasional horrible misstep. It's how we address and learn from missteps that can form the basis of consensus, but that requires leadership that values accountability, and that doesn't see every concern and question as a threat.

  5. Not all conduct should or ought to be boiled down to a matter of criminal legality. It's the absolute lowest standard to set for our public officials. It's quite possible to act wrongly, dishonourably, or counterproductively — all without crossing the line into illegality.

  6. The Liberal MPs in the House are lucky to be covered by parliamentary privilege. In my opinion, Dosanjh today in QP came as close as it comes to charging the government with war crimes. This type of hysteria is precisely why it is so difficult to find a middle ground which draws an experience to make our monitoring systems more robust.

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