Canadian government used witness intimidation and proroguing to cover up their complicity in war crimes

An inquiry into the actions of the Canadian military in Afghanistan was launched in February 2007 by commissioner Peter Tinsley, head of the Military Police Complaints Commission (MPCC), who has since complained about obstruction and interference by the government.  When Peter Tinsley announced that the MPCC intended to hold public hearings into the handling of Afghan detainees by Canadian forces Tinsley was quite clear that the principal reason for doing so was the government’s unwillingness to provide his people with access to the information they needed in the course of the investigations they had already tried to conduct.

Since that announcement the federal government made every effort to block those hearings and while Tinsley vowed to push ahead with them and even to widen their scope, the Canadian government halted the hearings just two hours after they began in Gatineau, Que.  Tinsley was forced to halt the hearings after the commission was hit with three government motions seeking an adjournment.

In December 2009, a year after effectively shutting down the Military Police Complaints Commission’s attempt at a public inquiry, Harper refused to extend the contract of Tinsley and opted against appointing someone to replace the outgoing MPCC chairman. Tinsley warned of a ‘chilling effect’ by the Harper government in their ongoing efforts to dodge accountability regarding the treatment of Afghan detainees.

In all 22 public servants were subpoenaed by the MPCC.  However, after the Department of Justice lawyers sent letters to them, all except Richard Colvin, a senior diplomat posted in Afghanistan from April 2006  to October 2007, declined to testify. Colvin’s lawyer Lori Bokenfohr asserts that the Department of Justice letters were threatening in tone and designed to deter the witnesses from testifying.

Starting in May 2006 Richard Colvin repeatedly raised concerns about the potential for torture of prisoners handed over by the Canadian military to Afghan police. He raised these concerns to senior officials at Foreign Affairs and National Defense.  As many as 79 different people in the Canadian government were contacted.

Senior members of the Conservative government including Defense Minister Peter MacKay and Prime Minister Stephen Harper have repeatedly denied any knowledge of warnings about the risk of prisoners being tortured.   Opposition MPs attest that there has been a cover-up.

In the spring of 2007 The Globe and Mail published “detailed accounts of torture and abuse in Afghan prisons.” That prompted opposition MPs to call on Harper’s government to order Canadian forces to stop turning prisoners over to Afghan authorities until the humane treatment of those prisoners could be assured. And that prompted Harper to question the patriotism of the opposition for even making the suggestion.

Colvin’s assertions have since been in the public domain since his 16-page affidavit was unsealed on October 14, 2009.  As a result of these revelations, a Commons committee was created to look into the allegations of torture. Colvin was subpoenaed and testified to the committee on November 18, 2009. He described his experience of repeatedly warning senior officials about the risk of torture. He was told to stop putting his assertions in writing and in some cases his reports were censored. He also named several senior people who had received his reports and knew about his allegations.

Government ministers responded immediately to Colvin’s testimony with an all-out attack on his credibility, claiming for example that his evidence (obtained from organizations such as the Red Cross) was just hearsay – because Colvin had not personally witnessed prisoners being tortured.

Reports from The Globe and Mail note that “Mr. Colvin wasn’t the only foreign service officer relaying criticisms about detainee transfers to Ottawa. A Sept. 11, 2006, memo from a Canadian NATO staffer alerted the government to the fact that the ICRC had singled out Canada’s practice of handing over prisoners to the Afghans on the battlefield, a practice it feared could result in human-rights monitors losing track of detainees.”

It was also revealed that in 2007, Canadian diplomats in Afghanistan were ordered to omit information regarding the treatment of detainees in reports sent to Ottawa. Sources told The Globe that the order, “issued soon after allegations of torture by Afghan authorities began appearing in public.

On Dec. 30, 2009, Conservative Minority Prime Minister Stephen Harper requested and allegedly received from Governor-General Michaëlle Jean an order proroguing Canada’s parliament until March 3. Harper did not meet with Michaelle Jean in person to request the prorogue of parliament, instead making the request via telephone.

The minority Conservative government’s principal, albeit unstated, reason for proroguing parliament for the second time in twelve calendar months was to prevent further parliamentary hearings into the Canadian government’s complicity in torture.

Key evidence

Testimony to the Commons committee – November 18, 2009
Colvin’s opening statement (20 minutes) and questions put to him by the committee members (1 hour 10 minutes) — audio plus transcript.

Affidavit to the MPCC – October 14, 2009
Colvins main allegations: the first significant evidence from him to become public — pdf document.

Articles

PMO issued instructions on denying abuse in ’07 – Toronto Star, November 22, 2009

Canada turned blind eye to Afghan abuses: diplomat – Reuters, November 20, 2009

Feds refuse legal funding to whistleblower diplomat – Canadian Press, October 26, 2009

Canadians warned early that Afghan detainees faced torture – Globe & Mail, October 14, 2009

Federal lawyers pressure diplomat at detainees probe: lawyer – Globe & Mail, October 13, 2009

Ottawa leaned on diplomat to stop Afghan testimony: lawyer – Globe and Mail, October 13, 2009

Canadian diplomat reported Afghan prisoner abuse in 2006 – Canwest, October 13, 2009

Tories try to block witnesses at military commission – Canada.com, October 13, 2009

Nuremberg Principles

U.N. International Law Commission 1950

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle Vl

The crimes hereinafter set out are punishable as crimes under; international law:

a. Crimes against peace:

i. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

ii. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

b. War crimes:

Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

c. Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.

The Rome statute of the International Criminal Court (1998)

Article 8 War crimes
Article 8 (2) (a) (ii)-1 War crime of torture

Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more
persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining
information or a confession, punishment, intimidation or coercion or for any reason
based on discrimination of any kind.
3. Such person or persons were protected under one or more of the Geneva Conventions of
1949.
4. The perpetrator was aware of the factual circumstances that established that protected
status.
5. The conduct took place in the context of and was associated with an international armed
conflict.
6. The perpetrator was aware of factual circumstances that established the existence of an
armed conflict.

Article 8 (2) (c) (i)-4 War crime of torture
Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more
persons.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based
on discrimination of any kind.
3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.
4. The perpetrator was aware of the factual circumstances that established this status.
5. The conduct took place in the context of and was associated with an armed conflict not of an international character.
6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

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