International Criminal Court launches Afghan detainee torture investigation of Harper government

Members of Canada’s JTF2 unit escort three detainees across the tarmac at the airport in Kandahar, Afghanistan, on Jan. 21, 2002.

For all of you who may have missed perhaps the biggest news story in modern Canadian history, made public just before the Christmas holiday, the International Criminal Court has launched a preliminary investigation into Canadian complicity in the Afghan torture issue.  For the good of Canada’s  international reputation Canada needs to either be cleared or the guilty parties must be appropriately prosecuted.

The ICC is, according to their website:

“The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes.”

In other words the ICC has launched an investigation because the Canadian government of Stephen Harper has been accused of the gravest crimes – war crimes.  If the ICC wasn’t confident that a grave crime has been committed, by the current members of the Canadian government, no investigation would have been launched.

The Harper 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, 2009 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.

Defence Minister Peter MacKay, Foreign Minister Lawrence Cannon and former defence minister Gordon O’Connor testified on the issue during a Special Committee on Afghanistan. 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 stated that the government’s oft-repeated line that there was no documented physical evidence of torture of Canadian-transferred detainees is a “detour,” which ignores the actual requirements of the law: circumstantial evidence that a risk of torture existed.

Having ratified the Geneva Convention, Canada incorporated the Geneva Convention’s 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 ICC said in a November interview with the Wall Street Journal that the ICC will not back down from prosecuting Western governments that are not holding their officials accountable for their actions.

The ICC’s chief prosecutor Luis Moreno Ocampo stated: “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.  That’s the rule and we have one rule for everyone.”

Because the Canadian government refused to launch an inquiry the ICC has launched an official investigation into the Harper government’s complicity in the Afghan torture issue.  The ICC is investigating the Harper government for war crimes.

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