Wednesday, November 25, 2009

Harper's "plausible deniability" Won't Work in His War Crimes Trial

The spineless Stephen Harper finally showed up yesterday to join in the assault on Richard Colvin's creditability. But his new spin is rather interesting. Since he can no longer claim that he did not see the reports, since evidence indicates that he not only saw them but directed the way they were to be presented; he is now indicating that he simply dismissed them from the get go.

A rather odd choice of lie from an obviously desperate man. This could be a first for Canada. A Prime Minister charged with war crimes. Because the simple fact is that he can not simply make this go away, because if we don't launch a full inquiry, the international courts will. This means that our own soldiers could also face charges under the Geneva Convention.

Is this how the Reformers support the troops? They should be ashamed.

Errol Mendes, a visiting professional at the International Criminal Court at The Hague, wrote a great op-ed piece for the Toronto Star. We need to listen to him because this is very serious.

Ignorance is no defence when the subject is torture
Law puts onus on leaders to make every effort to learn about and prevent war crimes
Errol P. Mendes Professor of constitutional
international law at the University of Ottawa
November 25, 2009

One of the greatest obstacles to the rule of law in the realm of domestic or international humanitarian law is the undemocratic but all too frequent use of what is termed "plausible deniability."

We have seen it all too often with domestic scandals involving the abuse of power by government officials and politicians.

However, since the horrors of World War II and the Nuremberg Tribunals, international humanitarian law has taken steps to remove the pillars of plausible deniability for military and civilian leaders regarding involvement either directly or indirectly in war crimes.

In the context of an international or non-international conflict, the transfer of detainees where there is a substantial risk of torture is a most serious war crime under the Geneva Conventions and the Canadian Crimes Against Humanity and War Crimes Act, which is part of the Criminal Code of Canada. The act was also designed to implement the Rome Statute of the International Criminal Court, which codifies much of the Geneva Conventions provisions on war crimes and goes even further than them in certain areas.

Canada is not only a state party to the court, it is universally recognized as being one of the court's main architects and had the honour of seeing a Canadian, Philippe Kirsch, serve as its first president.

The involvement of Canada and NATO allies in the conflict in Afghanistan has been regarded as a non-international conflict, but one still covered by the Geneva Conventions of 1949 and, in particular, Common Article 3, which prohibits torture or complicity in it. This prohibition is also emphasized in the Convention Against Torture, which also legally binds Canada.

Given these formidable legal prohibitions, domestic and international, against any form of complicity in torture and, in particular, transferring detainees to the substantial risk of torture, is a form of plausible deniability still possible?

Could this take the form of a defence minister and a chief of defence staff asserting that, for a period of one year, they had no credible evidence of Canadian-held detainees being transferred to torture or that they had not read credible reports from very senior officials in the field during that time?

These reports detailed not only the substantial risk of torture to transferred detainees, but based it on other credible sources from the UN, the U.S. state department, NATO allies, including their intelligence agencies, and the most credible international human rights organizations in the world.

The answer, therefore, to the legitimacy of the defence that the military and civilian command did not know the facts is emphatically in the negative.

It is worth noting that the jurisprudence of international criminal tribunals reveals that actual knowledge can be gleaned not only from direct evidence, but also from circumstantial evidence, for example by the widespread nature, severity or notoriety of the alleged war crimes.

The jurisprudence from the International Criminal Tribunal for the Former Yugoslavia and, most importantly, a recent decision from the International Criminal Court itself, has ruled that even if it is established that military and civilian commanders did not have actual knowledge, that is no defence to a charge of complicity in a war crime.

The standard that has been established is that persons in command must take all reasonable steps to acquire such knowledge and then to take all further necessary and reasonable steps to prevent the continuation of the war crime or to punish the perpetrators.

If credible reports from a senior officer in the field began to arrive in May of 2006, and if they detailed the substantial risk of torture to hundreds of detainees transferred to notorious Afghan authorities – who were well known by all of Canada's major allies for indulging in torture – would it be possible to not do anything until more than a year later?

Is 18 months a reasonable period for thinking about developing a new transfer agreement with greater monitoring and tracking of detainees who have been transferred? And do we need to take into consideration the fact that this seems to have happened only after a national newspaper published graphic details about Canadian-transferred detainees who were tortured?

It is almost certain that such a long delay, during which hundreds more may have been tortured, would not come anywhere close to the standard of taking all necessary and reasonable steps to prevent the continuation of the war crime.

It is more likely that only stopping the transfers and the immediate insistence for detailed monitoring and tracking of present and future detainees would meet the standards of command responsibility.

In such a situation, it is likely that command responsibility for transferring detainees into an environment where they would face a substantial risk of torture could well be a violation not only of the Canadian Criminal Code, but also a potential breach of the Rome Statute of the International Criminal Court.

However, under the jurisdictional provisions of that court, it is a judicial forum of last resort. State parties under whose jurisdiction alleged serious international crimes are alleged to have been committed have a legal duty to commence an independent investigation and/or prosecution.

Only after the failure to take such jurisdiction can the prosecutor of the court start an independent prosecution. This means that if the above conditions of command responsibility for the transfer of detainees at substantial risk of torture are to be satisfied, Canada has a legal duty under the Rome Statute and possibility under the Canadian Criminal Code to start a judicial inquiry.

Is this what the courage of Richard Colvin has triggered?

(Errol Mendes was a visiting professional at the International Criminal Court at The Hague this year. His book Peace and Justice at the International Criminal Court, A Court of Last Resort will be published early next year.)

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