Cross-Referencing: National Security Law (NSL), Ch. 10, pp. 542 et seq.
There has been substantial attention directed in the last week to parliamentary testimony by a Foreign Affairs official on who knew what and when about the possible torture of Afghan detainees transferred by Canadian Forces to Afghan prisons. Much remains to be resolved about the facts in this case (not least contradictions between the official's testimony and that of Canadian generals this week), and the dust has not yet settled. But even at this juncture, there is a subtext of commentary on the possible criminal culpability of Canadian Forces personnel, and perhaps those in the civilian chain of command in Ottawa, for these transfers. All of the discussion I have seen so far raises “war crimes”, whether in the context of the Crimes Against Humanity and War Crimes Act or the International Criminal Court, or “torture”, within the meaning of section 269.1 of the Criminal Code.
I’m not persuaded by what I’ve seen so far on these two issues (at least insofar as Canadian law is concerned). I thought I’d memorialize my doubts, perhaps enticing a correction from those who know this area better than I do.
In preface, let me repeat observations made in NSL: the prisoner transfer “arrangement” between Canada and Afghanistan that existed before revisions in 2007 was inadequate. The absence of independent follow-up after transfers was an obvious flaw, one not present in the transfer agreements concluded by other NATO countries. This was a critique advanced by others – such as Amir Attaran – well before me, and I believe he and others were correct and insightful to do so.
The more recent 2007 arrangement is much more robust, although like others, I persist in the view that no arrangement can really guard against torture where such acts are pervasive. I remain among those who think that Canadian investment in properly run prisons (run by NATO or under close NATO supervision) should have been part of our involvement at the outset. People I respect tell me that’s naïve. It’s hard for me to believe, however, that the downside of such an investment would be worse that the torture controversy that has since swirled around the Afghan deployment. Nor do I agree with the “sovereignty” complaint; that such a prison would unduly infringe Afghan sovereignty. The 2007 “arrangement” does sovereignty infringement in a big way – a NATO run prison would simply be more of the same.
This is all water under the bridge. The question of the day is now criminal culpability. That issue raises a number of sub-questions. In dealing with these, I shall assume the worst-case description described in the parliamentary testimony; namely, that Canadian soldiers and officials knew that prisoners they were transferring were being tortured. I do so for the purpose of the discussion below, without prejudging what may become known about the facts in the future.
First, could a Canadian Forces (CF) soldier doing the transferring (or their superior who ordered the transfer) be culpable under the Crimes Against Humanity and War Crimes Act (CAHWC Act). Torture is a war crime. This is true whether we assume the conflict in Afghanistan is a non-international or international conflict. It is the former and has been at for some time, in my view. But either way, torture is precluded by Geneva Convention III (for international conflicts) and Common Article III and Additional Protocol II (for non-international conflicts) and by customary international law.
But I’m not aware of any credible allegations of Canadian soldiers doing the torturing. We’re in the realm of transfer to torture. Transfer to torture is dealt with in international law; not least in the UN Convention Against Torture, Art. 3. And I think there are reasons to believe that that treaty’s bar on removal to torture could apply to Canadian conduct within Afghanistan. See NSL, pp. 542-3. But Article 3 is not a source of individual criminal culpability (as opposed to state responsibility).
If this were an international conflict, governed by Geneva Conventions III and IV, there would be concrete rules in international humanitarian law on prisoner transfers – not least, the sending state must be satisfied that the receiving state will abide by the Conventions in terms of prisoner treatment.
But this isn’t an international conflict, so we have no codified rules on prisoner transfer of any particular note. That said, s.6 of the CAHWC Act makes it clear that one can be culpable of a war crime when one “conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to” that war crime; e.g., torture. So an obvious limitation on prisoner transfers, even in a non-international conflict, is “don’t transfer in a manner that amounts to conspiring, attempting, being an accessory or counseling” torture. If you do, then there is a possibility of criminal culpability, both individually and through command responsibility.
Which brings us to the specifics of the Afghan detainee issue. I don’t see how, even if all allegations made last week prove absolutely true, you reach any of these “inchoate” offences of conspiracy, attempting, being an accessory or counseling. As I suggest in the table below, all of these things require an actus reus and mens rea aimed at producing the criminal conduct (the torturing). As such, they just don’t fit what, as suggested in the testimony, was a careless, indifferent, wrong-headed, and foreseeably inadequate policy, but not one intended to produce torture.
As for command responsibility, s.7 does use the words “criminally negligent” to describe a failure of supervision by a superior officer. But that language can’t be read in isolation. It refers to criminal negligence in terms of supervising the person under the superior’s authority who actually commits the actual war crime. So you still need someone within the CF chain of command committing the underlying war crime. Per the discussion above, that doesn't exist on the present facts. Command responsibility based on an argument that CF officers had effective control over the Afghan prison guards who did the torturing seems a total non-starter.
(As an addendum, the concept of aiding and abetting applied in international criminal law appears to be less demanding of the mens rea requirement that is the case for the inchoate offences listed in the CAHWC Act. There, knowledge may suffice, without a more specific intent to assist in the perpetration of the crime aided and abetted. See the discussion in Joseph Rickhof, "Complicity in International Criminal Law and Canadian Refugee Law," (2006), 4 Journal of International Criminal Justice 702 at 707. Aiding and abetting is not, however, mentioned in the CAHWC Act. Moreover, this international jurisprudence was developed by the ad hoc tribunals for the former Yugoslavia and that for Rwanda. I note that the concept of aiding and abetting in the Rome Statute, creating the international criminal court, specifies that the aiding and abetting must be for "the purpose of facilitating the commission of the crime", which seems to impose a test that precludes mere transfer with knowledge of torture from being cognizable as aiding and abetting. If I am wrong on this, I certainly welcome a correction.)
Section 269.1 of the Criminal Code makes torture a crime, whether it occurs within Canada or abroad. Once again, we are not discussing here torture committed by the Canadian Forces. So could a CF soldier still be culpable under the Criminal Code for torture committed by an Afghan official? Like the CAHWC Act, the Criminal Code includes inchoate offences, most notably those in section 21 et seq. The one of greatest note here is “aiding and abetting”. As the chart below suggests, aiding and abetting comes closest to “transferring to torture” from an actus reus perspective. But the mens rea (in Canadian law) appears to require more than recklessness – it requires more specific intent to actually contribute to the criminal offence. (And this ignores the mind-bending issue of whether s.21 itself has extraterritorial reach when tied to section 269.1, or instead is confined to aiding and abetting that occurs in Canada).
(SEE LINK FOR CHART)
I readily concede that in my quick musings on this question I may be missing something. But until corrected, I’m left with the view that the war crimes and torture culpability discussions I’ve heard to date skate quickly over “complicity” to criminal culpability, without unpacking what “complicity” really means. That complicity has to fit the round peg of Canadian criminal law, and to date the facts don’t fit that round peg.
So does that mean the criminal law has no place here? No, of course not. Here’s what I would be most concerned about if I was in the CF or government.
Under s.130 of the National Defence Act, the Criminal Code travels with the CF, and applies to their conduct abroad. So criminal culpability remains to be measured against all of the offences in that tome. The most obvious is criminal negligence:
219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(Note that a CF soldier was recently prosecuted for criminal negligence in relation to the discharge of a weapon that killed a fellow soldier in Afghanistan). Everything hinges on the facts of the Afghan transfer issue and whether it transgresses the standard of “wanton or reckless disregard”. As noted, the dust hasn’t settled on that yet, but criminal negligence may be a likely candidate. A wanton and reckless transfer would be causally linked to the ultimate bodily harm, and presumably cognizable as criminal negligence.
An interesting subsidiary question is whether the prisoner transfer arrangement applicable at the time insulates those doing the transferring from any claim that they were acting wantonly or recklessly. Would it matter that the arrangement was inferior to others applied by other Alliance forces? Could its actual existence be used as evidence of actual knowledge of risk, which was then recklessly disregarded through continued transfers even once the inadequacies of the arrangement became clear?
A further question concerns those in the civilian chain of command who may have issued the instructions that culminated in the transfer to torture. Could culpability extend to these people? Well, if we assume that instructions were issued in Ottawa that transgress the criminal negligence threshold, at least part of the conduct that might be construed as criminal negligence took place in Canada. In these circumstances, it seems plausible that a Canadian court would have jurisdiction per the Supreme Court’s reasoning in Libman v. The Queen.
All of this leads to my view that Canadian criminal law could be in play in the Afghan detainee controversy, just not the criminal law I hear most discussed to date. To repeat – I think we need more facts to make a clear-headed judgment on this issue. And getting to those facts must be an absolute priority.
 See, e.g., R. v. Alcantara,  ABQB 524 at para. 31 et seq.
 R. v. Ancio,  1 SCR 225.
 R. v. Hamilton,  SCC 47 at para. 29.
 R v. Helsdon, (2007) 84 OR (3d) 544 (On CA).