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.”

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