’Elements of a war crime seem to be present’

According to UBC’s laws of war expert, Canadian officials may be in breach of the Geneva Convention
Michael Byers

Canadians should hang their heads in shame. Richard Colvin’s testimony about torture in Afghanistan is a searing indictment of government officials who either knew—or should have known—that Canada was transferring detainees to torture.

Between 2006 and 2007, Colvin, the second-highest-ranking Canadian diplomat in Kabul, sent 17 reports about torture to Ottawa. The reports, which were circulated widely within the departments of Foreign Affairs and National Defence, confirmed public warnings from international officials and journalists.

In March 2006, Louise Arbour, the then UN High Commissioner for Human Rights, reported that complaints of torture at the hands of Afghan officials were “common.”

In June 2006, the Afghanistan Independent Human Rights Commission estimated that “about one in three prisoners handed over by Canadians are beaten or even tortured in local jails.”

In March 2007, the U.S. State Department reported that unconfirmed reports of torture were “numerous” in Afghanistan.

In April 2007, the Globe and Mail reported on “a litany of gruesome stories and a clear pattern of abuse by the Afghan authorities who work closely with Canadian troops.”

Yet the Canadian Government did next to nothing. In April 2007, Prime Minister Stephen Harper said that “Canadian military officials don’t send individuals off to be tortured.”

Colvin’s testimony directly contradicts the Prime Minister’s statement. He reports that all the transferred detainees were tortured and that this was widely know in Kandahar, including among Canadian soldiers and diplomats.

Also in April 2007, then Defence Minister Gordon O’Connor told the House of Commons that the Red Cross would inform the Canadian government if it had any concern about the treatment of detainees. O’Connor later apologized, admitting the ICRC had always maintained its policy of reporting only to the Afghanistan government.

Colvin reports that the Red Cross tried unsuccessfully for three months to convey its concerns to the Canadian military about problems in the way Canada was reporting to the Red Cross when it transferred detainees to the Afghan authorities.

Colvin’s allegations have emerged because he was called to testify before the Military Police Complaints Commission, a body—established after the Somalia Inquiry—which has been investigating detainee transfers at the request of Amnesty International and the BC Civil Liberties Association. The government sought to block Colvin’s testimony before the MPCC, citing national security. The obstruction prompted the three opposition parties to call Colvin to testify before a Parliamentary committee, where his voice could finally be heard. Now, the Canadian Government is seeking to shoot the messenger by publicly besmirching one of Canada’s finest diplomats.

Colvin currently serves as an intelligence officer at the Canadian Embassy in Washington, D.C., a post reserved for the very best in the foreign service. And he’s been put in an unenviable position, his career and reputation on the line, and has chosen to tell the truth rather than fall in contempt of Parliament. In addition to slurring Colvin, the Canadian Government is seeking to obfuscate the facts by claiming that it acted decisively to improve the detainee transfer arrangement put in place by the previous, Liberal government. Nothing could be farther from the truth: it took more than a year of complaints, news reports, litigation and political pressure before a new transfer arrangement was finally adopted in May 2007.

The actual facts are still emerging, but all the elements of a war crime seem to be present. The prohibition of torture ranks with the prohibitions of genocide and slavery as one of the most fundamental rules of international law. Torture—and complicity in torture—is a “grave breach” of the 1949 Geneva Conventions. If Canadian officials allowed detainees to be transferred to Afghan custody despite an apparent risk of torture, and chose not to take reasonable steps to protect them, they are as guilty of a war crime as the torturers themselves. They could be prosecuted in Canada under the Crimes Against Humanity and War Crimes Act. Or they could be hauled before the International Criminal Court. Canada has ratified the ICC’s statute, giving it jurisdiction over Canadians who commit war crimes anywhere. However, the International Criminal Court will not intervene if Canadian officials are willing and able to investigate and prosecute. We must hope that the will to investigate and prosecute is present. For imagine the damage to Canada’s reputation and influence if a general, ambassador or cabinet minister was prosecuted for war crimes in The Hague.

As Colvin himself explained: “If we disregard our core principles and values, we also lose our moral authority abroad. If we are complicit in the torture of Afghans in Kandahar, how can we credibly promote human rights in Tehran or Beijing?”

Even more seriously, the government’s indifference to torture may have created greater risks for Canadian soldiers. Insurgents who believe they will be tortured will fight to the death rather than surrender, placing Canadian soldiers at increased danger of harm. As a result, it is possible that one or more soldiers might have been killed as a result of the Canadian Government’s actions. Again, as Colvin cogently explained: “In my judgment, some of our actions in Kandahar, including complicity in torture, turned local people against us. Instead of winning hearts and minds, we caused Kandaharis to fear the foreigners. Canada’s detainee practices alienated us from the population and strengthened the insurgency.”

It’s time for Canadians to rally behind this brave and principled diplomat. It’s time to insist that any war criminals be investigated and prosecuted, regardless of who they are.

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He has taught the laws of war at UBC, Duke University, Oxford University, the University of Cape Town and the University of Tel Aviv. Byers ran as an NDP candidate in the last federal election.