Michael Byers / Toronto Star – 2007-05-01 23:22:36

http://www.thestar.com/opinion/article/208200

OTTAWA (April 29, 2007) — “His 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.

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