Could Canadians be charged with war crimes?

With the government refusing to start a public inquiry and the International Criminal Court having launched a “preliminary” investigation into the Afghan detainee issue, law experts say there is a very real chance Canadian officials could be charged with war crimes.

Until last week, the government and senior officials had been saying they had no credible reports that people detained by the Canadian Forces and transferred to Afghan authorities were being tortured.

While Chief of Defence Staff Gen. Walter Natynczyk revealed on Dec. 9 that such torture had, in fact, occurred in the past, government ministers say they were not aware of the reports. Further, they have not acknowledged they heard the widespread reports that Afghan authorities were abusing detainees.

Last week’s charged Commons’ Afghanistan Committee meeting saw Defence Minister Peter MacKay, Foreign Minister Lawrence Cannon and former defence minister Gordon O’Connor testify on the issue. During the meeting, Liberal Defence critic Ujjal Dosanjh noted that in international law, the legal threshold for the war crime of transferring into torture hangs on circumstantial evidence.

“International law is very clear,” said Mr. Dosanjh, a lawyer and former attorney general of British Columbia. “You need circumstantial evidence; you don’t need actual knowledge of any specific allegations, or actual knowledge of torture. There was substantial knowledge of torture in Afghan jails. Every kid on the ground knew that. All of the reports, national or international, knew that.”

University of Ottawa law professor Errol Mendes says Mr. Dosanjh was correct. The government’s oft-repeated line that there was no documented physical evidence of torture of Canadian-transferred detainees is a “detour,” he said, which ignores the actual requirements of the law: circumstantial evidence that a risk of torture existed.

Having ratified the Geneva Convention, Canada incorporated its principles into domestic law through the Crimes Against Humanity and War Crimes Act. Under this domestic law, Mr. Mendes said, the RCMP could investigate government officials.

Mr. Mendes said that for the “honour and dignity of Canada,” the government should call a public inquiry. Once the facts are out in public, he said, the RCMP could decide whether to charge officials, or whether the political consequences—for example, if a minister were to resign—were sufficient.

He added that jurisprudence holds that the responsibility for such transfers rests with those who authorized the transfer.

“While the front line soldiers may have done the actual transfer, the culpability actually lies at the civilian command level: The ones who set the framework in place,” Mr. Mendes said.

However, if the government’s refusal to launch a Canadian investigation continues, he said, that could open it up to international judicial systems.

The International Criminal Court considers itself a court of last resort, abiding the principle of “complemenarity.” This means the ICC can only exercise its jurisdiction where the home country of the suspect in question is unable or unwilling to prosecute.

The ICC’s chief prosecutor, Luis Moreno Ocampo, is already conducting a “preliminary examination” into human rights abuses committed in Afghanistan by Taliban and ISAF forces alike.

And while the ICC has focused in recent years on prosecuting African despots, Mr. Ocampo said in a November interview with the Wall Street Journal that he will not back down from prosecuting Western governments that are not holding their officials accountable for their actions.

“I prosecute whoever is in my jurisdiction. I cannot allow that we are a court just for the Third World. If the First World commits crimes, they have to investigate. If they don’t, I shall investigate,” Mr. Ocampo said. “That’s the rule and we have one rule for everyone.”

Earlier this month, Mr. Ocampo received an update on Canada’s detainee debate from Michael Byers, who teaches international law and the laws of war at the University of British Columbia, and who has run for the federal NDP. The 16-page letter, written with the director of the Irish Centre for Human Rights, William Schabas, seeks to draw attention to Richard Colvin’s testimony.

Due to the failure of Canadian officials to impose a rigorous transfer agreement, Mr. Byers writes, officials “seem to have wilfully been placing detainees at well-documented risk of torture, cruel treatment and outrages upon personal dignity. If so, they would appear to have been committing war crimes…in circumstances that clearly fall within the Court’s jurisdiction.”

This is not Mr. Byers’ first foray into the detainee issue. In December 2006, Mr. Byers and Amnesty International Canada secretary-general Alex Neve appeared before the Commons’ Defence Committee, testifying that Canada’s detainee transfer agreement was insufficient and left the Canadian-transferred prisoners exposed to abuse.

The two said that if the government simply adopted a transfer agreement similar to that of the Dutch government, a potential scandal could be avoided.

“There are substantial grounds to believe that when Canadian Forces transfer a prisoner into Afghan custody, torture or ill treatment will occur,” Mr. Neve told the committee. “In doing so, Canada is in violation of its international human rights obligations.”

“So where do we go from here? That’s the big question,” Mr. Byers told the committee. “The Canada-Afghanistan arrangement should be renegotiated to include all the protections provided in the Netherlands-Afghanistan memorandum.”

The government ignored this advice, until May 2007. Mr. Byers said that due to reports from the US government, former UN high commissioner for human rights Louise Arbour and Richard Colvin, the government had a “general knowledge” of the risks of transferring detainees to Afghan authorities. These reports, he said, “should have set off very loud alarm bells in Ottawa.”

Mr. Byers said Canadian officials who oversaw the issue between December 2005—when the original agreement was signed—and May 2007—when a new one came into force—are open to prosecution because they didn’t act.

“For a significant period of time, [officials] knew there was a substantial risk of torture, they knew how to prevent it, and they chose for a substantial period of time not to take preventative measures.”

He said that this case is particularly serious because, rather than torture being abetted by a low-ranking soldier acting alone, complicity appears to go “all the way up the chain of command up to the defence minister and foreign minister.”

“That’s what distinguishes this from standard war crimes cases,” Mr. Byers said. “They’ve got the command responsibility, and that’s why I believe the ICC prosecutor will initiate a formal investigation.”

Mr. Byers speculated that Canadian officials are more likely to be investigated than American ones because Canada has ratified the ICC’s Rome Statutes and the United States has not.

“Here you have clear jurisdiction, a history of strong support for the court, and allegations of a governmental policy that goes up and down the chain of command, all the way to Cabinet ministers,” he said. “You couldn’t imagine a more compelling situation for the prosecutor.

“I know that it is difficult for Canadians to conceive of this possibility,” Mr. Byers concluded. “But it’s a very real possibility.”

Fearful of the damage an ICC investigation would inflict on Canada’s international reputation, Mr. Byers said he hopes the Harper government will launch a public inquiry. Such action, he said, may satisfy the ICC’s principle of “complemenarity” and could stop any ICC legal action in its tracks.

“We could completely close off the possibility [of Canadians being charged at the ICC] by engaging in domestic procedures,” he said.

spotted by RS

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