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TechnoratiHis tormentors were the Afghan police, he said, but the Canadian soldiers who visited him between beatings had surely heard his screams."Of the news reports last week, this is the most damning. For it suggests that Canadian soldiers have not only transferred detainees into a known risk of torture, but actively participated in the interrogations the alleged torture was intended to aid.
Torture - the deliberate inflicting of severe pain on a fellow human being - is a heinous crime.
It is categorically prohibited under the laws of war, international human rights law and international criminal law.
Common Article 3 of the Geneva Conventions, a provision that applies to "non-international armed conflicts" such as that in Afghanistan today, forbids "cruel treatment and torture" at "any time and in any place whatsoever."
The United Nations Convention against Torture stipulates that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
And the Rome Statute of the International Criminal Court, which Canada ratified in June 2000, specifies that "cruel treatment and torture" constitute war crimes.
A war crime is also committed whenever someone knowingly facilitates cruel treatment or torture, including by "providing the means for its commission."
As a result, any Canadian soldier who transfers a detainee into a known risk of torture could be prosecuted in the International Criminal Court. Or, because torture and complicity in torture give rise to "universal jurisdiction," they could be prosecuted in the domestic courts of any country, anywhere.
The same applies to anyone "up the chain of command" who orders a transfer into a known risk of torture, either specifically or as a matter of policy.
Last Wednesday, William Schabas and I sent a letter to the prosecutor of the International Criminal Court asking him to open a preliminary examination of Gordon O'Connor, the Canadian minister of national defence, and Gen. Rick Hillier, the Canadian chief of the defence staff.
Professor Schabas, who teaches at the University of Galway in Ireland, is Canada's foremost expert on international criminal law and a recipient of the Order of Canada.
We wrote our letter because of a growing body of evidence that suggests Canada's political and military leadership has been playing fast and loose with torture.
For more than a year, O'Connor and Hillier refused to renegotiate a defence transfer arrangement that provided almost no protections for the rights of Afghan detainees or the obligations of Canadian soldiers - notwithstanding the fact that at least three other NATO countries had much better arrangements in place.
O'Connor misled the House of Commons on the role played by the International Committee of the Red Cross in overseeing detainees and has been confused - at best - about the activities and capabilities of the Afghan Independent Human Rights Commission.
Now, in the face of credible reports of torture, O'Connor and Hillier have refused to order an immediate halt to any further transfers of detainees.
The refusal to stop the transfer of detainees is staggering. It suggests a complete disdain for one of civilization's most fundamental rules.
It is this possibility of a policy of war crimes, crafted by two of Canada's most senior officials, that we believe will attract the attention of the prosecutor of the International Criminal Court.
There are many war crimes committed in this world, sometimes in numbers that dwarf the alleged incidents involving transferred detainees.
But usually war crimes are committed by individual soldiers who are disobeying their orders - and not, as is alleged here, actually following them.
And while the International Criminal Court would usually defer to Canada's justice system, it will not do so if Canada "is unwilling or unable genuinely to carry out the investigation or prosecution."
In this instance, it seems doubtful that the Canadian government will investigate and prosecute itself.
The prohibition on transferring to torture matters enormously. It protects our soldiers, since their opponents will fight to the death rather than surrender if they have reason to believe they might end up being tortured. It facilitates the mission, for protecting human rights is a key factor in winning hearts and minds. And it upholds Canada's hard-fought reputation as a civilized, law-abiding nation that strives to do good on the world stage.
It is not for me to decide whether Canada's defence minister and chief of the defence staff are war criminals. But the news reports and the applicable rules of international law certainly suggest that possibility. That, in itself, makes me furious beyond belief.
Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He is the author of War Law: Understanding International Law and Armed Conflict. His next book, Intent for a Nation, will be published in June.
© 2007 The Toronto Star
17 Comments so far
Show AllI apologize, but I am going to come off as a bit of a jack ass on this, some of the arguements posted above are nothing but a propoganda reversal from one side to the other. The foolishness of some of the diatribe being posted astounds me. Afghanistan may not be a winable war, I will concede that I doubt it will be won, and that I doubt the intelligence of joining that war in the first place, but I respect our blue barettes, I support the soldiers fighting in afgahnistan. Some command decisions have been poorly made yes. Our defence minister has screwed up majorly, yes. But what did you expect? war is no cake walk, things are going to go wrong. In reality, the union of socialist soviet republics(USSR) could not subdue the Afgahns then this 'Coalition of the willing' has just as little a chance of succeeding. Using the first nations as a fall back arguement for imperialist advances is also a red herring and an iligitimate arguement, forgive my spelling. This is my country, and you know what, maybe we are no better than the select few americans who have shamed their nation, but I'm still proud to count my self as a canadian, and that will never change. If some take this as foolishly patriotic, it's not, I hate Stephan Harper, I don't know what he's like as a person, but I hate his politics and I hate his party, but the fact that his part screwed up does not make me look on my country in shame, it makes me proud to know that when one party has screwed up we can fix it by not re-electing them, that's what democracy is. What shames me is the lack of voter turn out, and the publics apathy, not the idiodic war policy of a defence minister who should not have been voted in, in the first place.
C'mon Maz. You know that what goes on in Afghanistan is really nobodies business but there own. It sounds like your friends who escaped the Taleban had quite a bit of money. Lucky guess? I am sure the majority of Afghanees are tired of foreigners mucking about.
Taleban will fall apart without new members. Now that we have invaded I am sure membership is on the rise.
It's not about oil, its about preemptive striking ability.
adamwestfakey@yahoo.ca
Sadly, our PM has his head so far up GW's ass that he can't see that most Canadians do not support "our mission" in Afghanistan.
Fortunately, his popularity has plummetted recently and he's no longer itching for the election that would toss him out of power.
Yes, Canada has much to be ashamed of in it's brief history but hopefully we are all learning from our mistakes and striving not
to repeat them.
We're all people, people. Mostly ignorant, greedy and arrogant but hopefully trying to improve.
Maz you say that Canada is not imperialist and then mention "its constant support for Israel". That's a pretty imperialist policy by itself. And clearly the comments here illustrate that a lot of us are NOT influenced by one article - personally I found the article a bit mild in its criticism of Canadian imperialism.
I think it is is sweet that you think Canada is doing an okay thing in Afghanistan because it was sanctioned by the UN. That implies that the UN has no imperialist tendancies, when it clearly does - the permanent security council is made up of 5 of the 7 strongest imperial powers of the past 100 years (unless you think maybe the USA isn't imperialist either).
But then if you don't think Canada's shameful involvement in the Haitian crisis was imperialism then we are signing from different songbooks anyway.
As for the Taliban naturally we are opposed to them. What some of us are opposing here is the kind of imperialist meddling in Afghanistan that led to the rise of the Taliban in the first place. Canada was happy to support the Northern Alliance and they are not exactly selling girl scout cookie themselves - they torture, rape and murder their way around the countryside, and yet they are deemd worthy of our support.
Lie down with dogs and you get up with fleas.
To Maz, I think you brought up a good point about the general reaction of the readers to one article about some abuses allegedly committed by the Canadians serving in Afghanistan. I am against torture in any shape or form and I have always thought of Canada as a good country in many ways. As I posted earlier, I spent many summers in a small town near North Bay, Ontario. Laguna Beach was the name of this no frills vacation spot.
But back to my point. Perhaps so many readers are reacting to this article in the way you described is because finally, we can find another country which is a role model in so many ways (for me, at least) that we are willing to shift the focus away from the USA, if only for a moment. Anyway, that's my take on it. Whether it's true or not I have no idea. I am only putting forth my thoughts about this matter.
By no means am I a supporter of torture in any state or fashion, but to state Canada as being no better than the U.S or being an imperialist state is simply ludicrous. Sure Canada has its issues that I'm deeply ashamed of such as the seal hunt and its constant support for Israel. However, the fact is, Canada is in Afghanistan based on a U.N authorized coalition. They are there LEGALLY ladies and gentlemen. My best friend and his family escaped from Taliban led Afghanistan, you guys have no idea the constant torment and torture his dad went through under the Taliban rule. Canada is there to protect the Afghan people from this torture and torment they were put through under the Taliban. Canada does not personally benefit from being in Afghanistan unlike the Americans who benefit from Iraqi oil. For people who read articles by common dreams, I'm frankly quite shocked how easily you guys were influenced by one story.
Umm, Mr. White; too delicious an outcome to dream, but I certainly do wish that all the governmental bodies who have been involved in further implicating us in Afghanistan were to be disappeared only to reappear at the Hague to be tried and convicted. We did sign the ICC and as such, we may well find ourselves divested of certain neo-cons and faux liberals very soon, to say nothing of Americanite sounding generals! Say this dream may happen and we might soon regain some semblance of social democracy as we once almost knew it!
It is not for me to decide whether Canada's defence minister and chief of the defence staff are war criminals.
It will be the Afghanis who will decide whether ANY Canadian-military occupiers are war criminals as they did decide for the Macedonian , British and Russian occupiers.
The ultimate in poetic justice would be for Hiller and O'Connor to be captured by the Taliban and be forced among other things to listen to recordings of their pleadings and above boastings or pleadings by other Canadian soldiers for mercy.
Well done Michael Byers and William Schabas...it is possible that the Canadian media will not be able to ignore this news item. I am convinced that the Canadian public have not much stomach for the Afghan war but almost certainly no wish to be complicit in torture. Politicians are motivated largely by the lust for power which means they have to get votes so if the story is not squashed we can hope for a self correction before the next election. The conservatives and especially Harper are avid followers of Bush and the megabillionaires and corporations but Canada is still a sort of democracy so they will be more careful as the next election approaches. So things could change!!
andrewr, quod erat demonstrandum
additional unsavory involvements and a brief history.
Humanitarianism, peacekeeping, and other myths dominionpaper.ca/features/2004/07/21/canada_emp.html
On the front lines:
Canada participated in what was called the International Control Commission (ICC), along with Poland and India. ICC teams travelled in Vietnam and determined whether ceasefires were being violated. Canada used its presence on the ICC not only to help whitewash what the US was doing and deny the facts, but also to spy on the Vietnamese, providing intelligence to the US on what the effects of its weapons were on the population and more.
On supporting "higher education"
Chile is an interesting historical example. On the University of Toronto campus there is a building called the Munk Centre. Its namesake, Peter Munk, had a remarkable view of the events in Chile.
At a shareholders meeting in Toronto on May 9, 1996, Peter Munk, Chairman of Barrick Gold corporation, praised General Augusto Pinochet for "transforming Chile from a wealth-destroying socialist state to a capital-friendly model that is being copied around the world." Regarding Pinochet's human rights record, Munk said, "they can put people in jail, I have no comment on that, I think that may be true...I think [the end justifies the means] because it brought wealth to an enormous number of people. If you ask somebody who is in jail, he'll say no. But that's the wonderful thing about our world; we can have the freedom to disagree.
as Powder Monkey ...
andrewr. Thanks for the info. I was totally unaware of the facts you just stated. As a child, my family would go to Northern Ontario for a few weeks in July every year. I loved the wilderness and the people seemed very nice and friendly. So, as a result I have been blinded to some of Canada's more, shall we say, compromises, in older to keep Washington happy.
"I expected more from the Canadian People"
That is mainly to do with the well-spun myth internationally and in Canada itself that it is a non-aggressive, non-imperialist power. People often speak of how they used to be proud of Canada as a peacekeeping nation. This is a total myth - the army was always used as a tool of the imperialists. Witness them taking arms on the side of the Greek junta in Cyprus in 1974, their support for the US in Somalia and Haiti and now their participation in bush's War for Terror in Afghanistan. The propoaganda machine at CBC is happy to maintain and propagate this myth with repeated stories about how Canadian troops are building roads and primary schools. In reality they are there so US troops could rotate out into Iraq, and to protect oil pipeline interests.
A long history of, like the US government, ripping land off from the First Nations and then signing land deals that they repeatedly and without exception broke sure helps make good proactice for imperialism elsewhere.
And it is a very good sign of what the current government thinks of any involvement in UN peacekeeping: When a Canadian colonel with the UN was purposely killed by the Israeli army Stephen Harper described the Israeli action as a measured response.
It seems that the Western "democracies" are willingly conspirators in acts against humanity.
As enemies of all humanity, it seems difficult for us to see how any western government can legally govern.
It sure sounds as if the Canadians have been learning a few things about torture from the USA. Canada is a signatory to the International Criminal Court and stuffs gonna happen. I hope the Canadian people aren't as silent on this issue as are so many of us in the USA.
Everything the neo cons touch turns rotten and the present government in Ottawa has been infected with the neo con disease. Charges and sentences will come up and occur, not like here in our country. Thankfully, the conservative movement in Canada has had a short life and will be stamped out before it takes the grip it has taken here at home.
Here, it's a widespread disease, in a way like mad cow disease, where the prions take usually twenty years to begin showing their negative effects, the neo con movement fits this timeline pretty well. We certainly do have a large number of Mad Cows in D.C. these days. And as any farmer knows, these animals have to be "put down."
I dont understand why canada would think its any better than the US or the Uk or any other English speaking country. Our population is smaller--and so is our influence.
But we can still meddle--in Haiti for example.
And then there is the annual seal slaughter--largest wildlife massacre on the planet.
Of course its a minority of people doing it--but still. Lots of things within the Canadian border to be ashamed of.
In Canada we used to be known as peacekeepers. We used to be proud of our 'Blue Berets'. Why do we have to be combative? Who stands to gain from this?
Even Don Cherry started to cry at Easter when more of our boys were killed in Afghanistan.
I guess Canadians and Americans are more similiar than us Canucks would have the world believe.
I think I will move to Northern California where there is some real peacefull people.
adamwestfakey@yahoo.ca