Cross-Referencing: National Security Law (NSL), Ch. 14, pp.
542 et seq.
NB: THIS POST SHOULD BE REGARDED AS SUPERSEDED BY THE MORE FORMAL AND COMPLETE ANALYSIS FOUND HERE.
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
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
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
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.)
[FURTHER ADDENDUM (March 2010): Having spent some time on this issue since first writing this post, I now am of the view that the customary international criminal law concept of aiding and abetting could, in fact, be viewed as incorporated by reference in the CAHWC Act. This changes my analysis of possible culpability. I will amplify this changed position in a future posting.]
[FURTHER ADDENDUM (April 2010): A report on possible culpability that is much more through and comprehensive than this blog, and deals with aiding and abetting in customary international law, is now available here.]
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).
[Addendum (April 2010): As a clarification, this question of extraterritoriality should not be relevant to service tribunal proceedings, applying section 130 of the National Defence Act, in relation to proceedings against a CF member. It would be relevant in relation to regular Criminal Code proceedings against civilian officials, however.
On the mens rea reqirements for aiding and abetting under the Criminal Code, readers are referred to the April 2010 holding the Supreme Court of Canada in R. v. Briscoe, requiring a) intent and b) knowledge (whether that knowledge is actual or a product of willful blindness)]
Various Inchoate Offences
Actus reus (Action)
Mens rea (Mental
Agreement by two or more persons to commit a criminal
An intention to put their common
Acts taken to further the intent
Section 24 of the Criminal
Accessory after the fact
Receives, comforts or assists a person for the purpose of
Knowing that a person has been a party to the offence, per
Counsels (which includes procure, solicit or incite)
“Intent or conscious disregard of the substantial and unjustified risk
Aiding or Abetting, per section 21 of the Criminal Code
Aids, assists, encourages the criminal offence
Has the purpose of aiding a person to commit an offence,
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.
[Addendum (April 2010): My initial view must now be tempered per the observations in the March and April addenda relating to aiding and abetting in customary international law, cited above.]
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
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.
 R v. Helsdon, (2007) 84 OR (3d) 544 (On