legal report-detainee transfers

Faculty of Law Common Law Section

Foreign Policy Practicum 2010

C A N A D A' S D E T A I N E E

T R A N S F E R S I N

A F G H A N I S T A N An Overview of Potential Legal Implications for Canadian Officials

Brief Submitted to the House of Commons Special

Committee on the Canadian Mission in Afghanistan

April 2010

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Members of the 2010 Foreign Policy Practicum and authors of this report

(in alphabetical order)

Kristen Ali Pierre-Alexandre Henri

Michael Hook Sarah Kromkamp

Meredith MacDonald

With the supervisory support of

Craig Forcese Associate Professor

Faculty of Law University of Ottawa

57 Louis Pasteur Ottawa, ON K1N 6N5

Tel: 613-561-5800 ext 2524 Fax: 613-562-5124

About the uOttawa Faculty of Law Common Law Section

Foreign Policy Practicum

In this independent study project supervised by law school faculty members, a team of LL.B. candidates completes a comprehensive review of a topic in Canadian foreign policy, with a focus on international legal

issues. The finished product is a detailed policy brief, submitted and presented to governmental and non-governmental groups.

Copies of this report are posted at http://www.cforcese.ca/

The views expressed in this brief are those of the Foreign Policy

Practicum Members and not of the University of Ottawa

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EXECUTIVE SUMMARY Canada’s military involvement in Afghanistan began in 2002. During this time, Canadian Forces have had the authority to detain individuals and transfer them to Afghan authorities. In 2005, concerns were raised regarding acts of torture being committed by Afghan authorities in Afghan prisons. Two technical arrangements were concluded, in 2005 and again in 2007, between the Governments of Canada and Afghanistan with the goal of ensuring that Canadian Forces did not transfer detainees where a serious risk of torture existed. Beginning in 2006, and more recently in 2009, concerns were raised alleging that Canadian Forces continued to transfer detainees despite having knowledge of the risk of torture. In response to these concerns, a group of law students from the University of Ottawa compiled the following report regarding the potential liability that Canadian officials (military and civilian) could face if the allegations are true. This report discusses four potential areas of liability: liability under International Law, liability under the Crimes Against Humanity and War Crimes Act, liability under the Canadian Criminal Code, and finally liability under the National Defence Act. The findings of this report are as follows. First, the conflict in Afghanistan, at the time of the alleged acts, was a non-international armed conflict. Under Customary International Humanitarian Law (CIHL) applicable in a non-international armed conflict, individual criminal liability could arise for aiding and abetting in the war crime of torture – based on the allegations made, it is assumed that Afghan authorities tortured detainees. The offence of aiding and abetting arises when an individual lends practical assistance that substantially effects the commission of the act of torture by the physical perpetrator knowing that such an act of torture would or could occur. If Canadian officials knew that their acts would or could potentially result in detainees being tortured, then liability for aiding and abetting in torture may arise. Canadian Forces members who transferred detainees may, under some circumstances, invoke the defence of superior orders. Secondly, liability may also be incurred through Crimes Against Humanity and War Crimes Act. While the underlying offence may be established, the inchoate forms of liability in the Act (attempting to commit an offence, conspiracy to commit an offence, counselling in relation to an offence, and being an accessory after the fact to an offence) are likely not met as the mens rea or actus reus cannot be established. Liability could arise based on the CIHL of aiding and abetting. Although not specified in the Act, it can be applicable if ss. 4(4) and 6(4) are interpreted in light of developments in CIHL regarding accessory liability. If aiding and abetting in CIHL is applicable, liability could arise through command responsibility in ss. 5 and 7 of the Act. Command responsibility may apply to commanders if they are not found liable of aiding and abetting but their subordinates are. Third, the Canadian Criminal Code applies to Canadian Forces for acts committed outside of Canada pursuant to s.130 of the National Defence Act. It is unlikely that Canadian officials would incur secondary liability for the offences of torture, assault, and uttering threats committed by Afghan officials, as they would not have the requisite mens rea for aiding and abetting in Canadian domestic law, counselling, accessory after the fact, attempts, or conspiracy. Canadian officials could, however, incur liability for criminal negligence causing bodily harm under s. 221. Under this provision, Canadian officials may be liable if the act of transferring detainees and continuing to transfer detainees after allegations were received, or their omissions to fulfill duties imposed by law, showed a wanton or reckless disregard for the lives or safety of the detainees and demonstrated a marked and substantial departure from the standard of a reasonable person. Under s. 215, Canadian officials could be liable for failing to provide the necessities of life since, arguably, by transferring detainees they failed to protect them from harm and endangered their lives and health. This provision requires a marked departure from the standard of an ordinary person in the circumstances.

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Finally, under the National Defence Act the only members of the Canadian Forces who could face potential liability are those who received credible allegations of abuse and failed to act upon them. They could be liable under s. 124 for negligent performance of a military duty for violating the duty of commanders to report as per Article 4.11 of the Queen's Regulations and Orders. Additionally, commanders have a duty to prevent, suppress, and report breaches of the Laws of Armed Conflict, which is contained in the Canadian Forces Law of Armed Conflict Doctrine. Commanding Officers must also take effective measures to correct the situation or request the return of the detainees; this duty is contained in the CDS Guidance to Commanding Officers. Canadian Forces members may also be liable under s.129 for prejudicing good order and discipline. Lastly, Canadian Forces members may be liable under s.130 for breaches of the Criminal Code, as discussed above.

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RÉSUMÉ EXÉCUTIF

L’implication militaire du Canada en Afghanistan a débuté en 2002. Les Forces canadiennes ont, depuis ce temps, l’autorité de détenir des individus et de les transférer aux autorités afghanes. En 2005, des inquiétudes concernant des actes de torture commis par les autorités afghanes dans les prisons afghanes furent soulevées. Deux accords techniques furent conclus, en 2005 et en 2007, entre le Gouvernement du Canada et l’Afghanistan afin d’assurer que les Forces canadiennes ne transfèrent pas de détenus dans les cas où un risque sérieux de torture existe. Depuis 2006, et plus récemment en 2009, des préoccupations ont été soulevées à l’effet que les Forces canadiennes ont continué à transférer des détenus malgré le fait qu’elles avaient connaissance des risques de torture. En réponse à ces préoccupations, un groupe d’étudiants en droit de l’Université d’Ottawa a rédigé le présent rapport concernant la responsabilité criminelle à laquelle des fonctionnaires canadiens (tant militaires que civils) pourraient potentiellement faire face si les allégations s’avéraient véridiques. Ce rapport aborde quatre cas possibles de responsabilité : responsabilité en vertu du droit international, responsabilité en vertu de la Loi sur les

crimes contre l’humanité et les crimes de guerre, responsabilité sous le Code criminel canadien, et, finalement, responsabilité en vertu de la Loi sur la défense nationale. Les conclusions du présent rapport sont les suivantes. Premièrement, le conflit en Afghanistan, au moment des faits allégués, constituait un conflit armé non-international. En vertu du droit coutumier humanitaire international applicable dans ce type de conflit, la responsabilité criminelle individuelle pourrait survenir pour complicité (« aiding and abetting ») dans le crime de guerre de torture – en se basant sur les allégations faites, il est présumé que les autorités afghanes ont commis des actes de torture. La complicité survient lorsqu’un individu apporte une aide concrète qui a un effet substantiel sur la commission de l’acte de torture par l’auteur physique du crime, tout en sachant qu’un tel acte de torture surviendrait ou pouvait survenir. Si des fonctionnaires canadiens savaient que leurs actions auraient ou pouvaient avoir pour résultat la torture de détenus par les autorités afghanes, une responsabilité pour complicité dans le crime de torture pourrait alors être encourue. Les membres des Forces canadiennes qui ont effectué les transferts de détenus pourraient, dans certaines circonstances, invoquer la défense d’ordre hiérarchique. Deuxièmement, une responsabilité pourrait également survenir en vertu de la Loi sur les crimes contre

l’humanité et les crimes de guerre. Même si l’infraction sous-jacente de torture peut être établie, les types de responsabilités imparfaites prévus à la Loi (tenter de commettre l’infraction, comploter afin de commettre l’infraction, conseiller de commettre l’infraction et complicité après le fait) ne sont pas présentes puisque les éléments de l’actus reus et de la mens rea ne peuvent être établis. Une responsabilité pourrait cependant être encourue sur la base du droit coutumier humanitaire international concernant la complicité (« aiding and abetting »). Même si l’infraction de complicité n’est pas spécifiée dans la Loi, elle pourrait être applicable si les articles 4(4) et 6(4) sont interprétés à la lumière des développements relatifs la responsabilité accessoire. Si l’infraction de complicité est applicable, une responsabilité pourrait survenir en vertu de la responsabilité du commandement prévue aux articles 5 et 6 de la Loi. La responsabilité du commandement pourrait s’appliquer aux officiers commandants si ces derniers ne sont pas coupables de complicité, mais que leurs subordonnés le soient. Troisièmement, le Code criminel canadien s’applique aux Forces canadiennes pour les actes commis à l’extérieur du Canada en vertu de l’article 130 de la Loi sur la défense nationale. Il est peu probable que des fonctionnaires canadiens encourent une responsabilité secondaire pour les infractions de torture, voies de fait et proférer des menaces commises par les autorités afghanes, car ils n’auraient pas la mens rea

requise pour complicité (« aiding and abetting ») en droit canadien, conseil, complicité après le fait, tentative ou complot. Des fonctionnaires canadiens pourraient cependant encourir une responsabilité pour

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négligence criminelle causant des lésions corporelles prévue à l’article 221. En vertu de cette disposition, des fonctionnaires canadiens pourraient être responsables si le fait de transférer des détenus ou de continuer à transférer des détenus suite à la réception des allégations de torture, ou leurs omissions d’accomplir des devoirs imposés par la loi, démontrait une insouciance déréglée ou téméraire à l’égard de la vie ou de la sécurité des détenus et que cette insouciance constituait une dérogation marquée et substantielle par rapport à la norme d’une personne raisonnable. En vertu de l’article 215, des fonctionnaires canadiens pourraient aussi être responsables pour leur défaut de fournir les choses nécessaires à l’existence puisqu’en transférant les détenues, ils ont fait défaut de les protéger contre le danger et ils ont exposé la vie et la santé des détenus à certains risques graves. Cette disposition requiert un écart marqué par rapport à la norme de la personne ordinaire placée dans des circonstances similaires. Finalement, en vertu de la Loi sur la défense nationale, les seuls membres des Forces canadiennes qui pourraient faire face à une responsabilité criminelle sont ceux qui ont reçu des allégations crédibles d’abus et qui ont omis d’agir en réponse à ces allégations. Ces membres des Forces canadiennes pourraient être tenus responsables en vertu de l’article 124 pour l’exécution négligente d’une tâche ou mission militaire en ayant violer le devoir d’un officier commandant de signaler tout incident sérieux prévu à l’article 4.11 des Ordonnances et règlements royaux. De plus, les officiers commandants ont le devoir d’empêcher, de réprimer et de dénoncer des infractions au droit des conflits armés; ce devoir est contenu dans la Doctrine du droit des conflits armés des Forces canadiennes. De plus, les officiers commandants doivent prendre des mesures effectives pour corriger la situation ou demander le retour des détenus en cas d’abus; ce devoir est prévu dans le Manuel du commandant. Les membres des Forces canadiennes pourraient également être responsables en vertu de l’article 129 de la Loi sur la défense

nationale pour conduite préjudiciable au bon ordre et à la discipline. Enfin, tel que mentionné précédemment, des membres des Forces canadiennes pourraient être tenus responsables d’infractions prévues au Code criminel en vertu de l’article 130 de la Loi sur la défense nationale.

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Table of Abbreviations

AIHRC Afghanistan Independent Human Rights Commission

AIC Amnesty International Canada

ANA Afghanistan National Army

ANP Afghanistan National Police

BCCLA British Columbia Civil Liberties Association

C4 Canadian computer network used for diplomatic reporting

CEFCOM Canadian Expeditionary Forces Command

CF Canadian Forces

CMAC Court Martial Appeal Court

CO Commanding Officer

CSC Correctional Services Canada

DFAIT Department of Foreign Affairs and International Trade Canada

ICRC International Committee of the Red Cross

ICTY International Criminal Tribunal for the Former Yugoslavia

ICTR International Criminal Tribunal for Rwanda

IHL International Humanitarian Law

ISAF International Security Assistance Force

JTF-A Joint Task Force Afghanistan

MPCC Military Police Complaints Commission

NATO North Atlantic Treaty Organization

NDHQ National Defence Head Quarters

NDS National Directorate of Security

OEF Operation Enduring Freedom

PRT Provincial Reconstruction Team

UN SC United Nations Security Council

3 PPCLI 3rd Battalion, Princess Patricia’s Canadian Light Infantry

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TABLE OF CONTENTS

I. INTRODUCTION...................................................................................................................................1

II. FACTUAL BACKGROUND: CANADIAN MILITARY INVOLVEMENT IN AFGHANISTAN

AND THE TRANSFER OF DETAINEES ................................................................................................1

A. Canadian Military Involvement in Afghanistan ..................................................................................1

1. Initial Deployment: 2001-2002........................................................................................................1

2. Kabul: 2003-2005 ............................................................................................................................3

3. Kandahar: 2005-present ...................................................................................................................3

B. International Agreements.....................................................................................................................4

1. Arrangements between Canada and Afghanistan ............................................................................5

2. Operationalization of International Arrangements ..........................................................................9

C. Allegations of Abuse of Afghan Detainees .......................................................................................10

1. International Reports Confirming Torture Occurs in Afghan Prisons...........................................10

2. Specific Instances of Abuse of Detainees Transferred by Canada ................................................11

a) Four Distinct Incidents in 2006 .................................................................................................11

b) Two Allegations of Torture in April 2007 ................................................................................12

c) Graeme Smith’s April 23rd Globe and Mail Article ..................................................................12

d) Allegations of Abuse Following the Second Transfer Arrangement ........................................13

e) Dedicated Monitor Sent in October 2007..................................................................................14

f) Credible Allegation of Torture in November 2007....................................................................14

3. Inadequacies in Record Keeping....................................................................................................14

4. ICRC Monitoring ...........................................................................................................................15

5. Concerns over Transfers Raised from the Field ............................................................................16

a) General Concerns Raised about Transfer Practices...................................................................16

b) Reports Responding to Specific Incidents ................................................................................16

6. Suspension of Transfers .................................................................................................................17

D. Related Proceedings ...........................................................................................................................17

III. LEGAL ISSUES: POTENTIAL AREAS OF LIABILITY FOR CANADIAN OFFICIALS.....18

A. International Law on Armed Conflicts..............................................................................................19

1. Overview........................................................................................................................................19

2. Defining an Armed Conflict in International Law.........................................................................19

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a) International Armed Conflict ....................................................................................................20

b) Non-International Armed Conflict ............................................................................................21

B. Individual Criminal Liability in International Customary Law and the Crimes Against Humanity

and War Crimes Act ................................................................................................................................23

1. Overview........................................................................................................................................23

2. Underlying Offence: War Crime ...................................................................................................24

a) Definition...................................................................................................................................24

b) Elements of a War Crime ..........................................................................................................25

c) The War Crime of Torture.........................................................................................................26

d) The War Crime of Cruel Treatment ..........................................................................................28

e) Application to the Facts: The War Crimes of Torture and Cruel Treatment Apply..................29

3. Aiding and Abetting a War Crime .................................................................................................30

a) Aiding and Abetting in Customary International Humanitarian Law .......................................30

i. Physical Element (actus reus) ................................................................................................30

ii. Mental Element (mens rea)...................................................................................................31

b) Aiding and Abetting in the CAHWC Act...................................................................................32

c) Aiding and Abetting may Apply to the Facts ............................................................................34

4. Other Forms of Liability in the CAHWC Act ................................................................................35

a) Conspiracy to Commit an Offence ............................................................................................35

b) Attempt to Commit an Offence .................................................................................................36

c) Counsel in Relation to an Offence.............................................................................................36

d) Accessory to an Offence After the Fact ....................................................................................37

5. Command and Superior Responsibility .........................................................................................38

a) Customary International Humanitarian Law .............................................................................38

b) The CAHWC Act .......................................................................................................................40

c) Application of Command Responsibility to the Facts...............................................................42

6. Summary of Liability in Customary International Humanitarian Law and the CAHWC Act........43

C. Liability Under the Criminal Code ....................................................................................................43

1. Overview........................................................................................................................................43

2. Criminal Code Jurisdiction ............................................................................................................44

3. Physical and Mental Circumstances Underlying the Offences......................................................44

a) Physical Circumstances (Actus Reus)........................................................................................44

b) Mental Elements (Mens Rea) ....................................................................................................44

i. Knowledge and Wilful Blindness ..........................................................................................44

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ii. Intent and Recklessness ........................................................................................................45

4. Secondary Liability Offences ........................................................................................................45

a) The Underlying Offence of Torture ..........................................................................................46

i. Definition ...............................................................................................................................46

ii. Elements of the Offence........................................................................................................47

iii. Application to Facts .............................................................................................................51

b) The Underlying Offence of Assault ..........................................................................................51

c) The Underlying Offence of Uttering Threats ............................................................................52

d) Secondary Liability: Aiding and Abetting ................................................................................53

i. Application to the Facts .........................................................................................................55

e) Secondary Liability: Counselling ..............................................................................................56

f) Secondary Liability: Accessory After the Fact ..........................................................................57

g) Secondary Liability: Attempts ..................................................................................................57

h) Secondary Liability: Conspiracy ...............................................................................................57

i) Conclusions with Respect to Secondary Liability .....................................................................57

5. Offences as Principal .....................................................................................................................57

a) Criminal Negligence Causing Bodily Harm..............................................................................57

i. The Act of Transferring Detainees.........................................................................................58

ii. The Act of Continuing Detainee Transfers after Allegations of Torture Received ..............59

iii. Omitting to Fulfil Legal Duties............................................................................................60

iv. Conclusion Regarding Acts and Omissions .........................................................................60

v. Causation..............................................................................................................................61

b) Failing to Provide the Necessities of Life .................................................................................61

i. Nature of the Duty..................................................................................................................62

ii. Elements of the Offence........................................................................................................63

6. Defences.........................................................................................................................................64

7. Conclusion .....................................................................................................................................64

D. Liability Under The National Defence Act.........................................................................................64

1. Overview.........................................................................................................................................64

2. Scope of, and Punishments Under the National Defence Act ........................................................64

3. Service Offences ............................................................................................................................67

a) Negligent Performance of Duties ..............................................................................................67

i. Existence of a Military Duty ..................................................................................................67

ii. Negligence ............................................................................................................................70

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iii. Analysis of Negligent Performance of Duties .....................................................................71

iv. The Application of the Duty to Report ................................................................................72

v. The Application of the Duty to Observe and Enforce Obligations .......................................72

vi. The Application of the Duty to Take Effective Measures to Correct the Situation or

Request the Return of the Prisoners ...........................................................................................73

b) Prejudicing Good Order and Discipline ....................................................................................73

4. Summary of the Application of the National Defence Act ............................................................74

IV. CONCLUSION...................................................................................................................................75

ANNEX A: TIMELINE OF DETAINEE RELATED EVENTS...........................................................76

ANNEX B: TABLE OF OFFENCES.......................................................................................................80

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I. INTRODUCTION

As part of Canada’s military involvement in Afghanistan, Canadian Forces (CF) have been permitted to detain individuals where there is a reasonable belief that they are adverse in interest. Detainees either remain in Canadian custody, are released, or are transferred to Afghan authorities. Between 2005 and 2008, concerns were raised by a number of international bodies regarding incidents of torture that took place in Afghan detention facilities. In response to these concerns, Canada signed two Arrangements with the Government of Afghanistan to ensure the protection of Canadian transferred detainees from torture while in Afghan custody. Notwithstanding these arrangements, it has been alleged that detainees transferred from Canadian custody have likely been subjected to torture while in Afghan custody and that Canadian civilian and military officials were aware of the serious risk of torture but continued to transfer detainees notwithstanding this risk. This Report addresses the legal implications and potential criminal liability that Canadian officials could face in relation to the transfer of detainees. It does not make any definitive legal findings, rather it discuses and analyzes potential areas of liability. The basis of this report’s findings is allegations made in publicly available documents. The Report will first provide a factual background of Canada’s military involvement in Afghanistan and the facts surrounding the transfer of detainees. It will then provide a detailed overview of the potential areas of liability for Canadian officials, beginning with an overview of international law on armed conflict, followed by a discussion of potential liability under international law (customary international law and the Crimes Against Humanity and War

Crimes Act), the Criminal Code, and the National Defence Act. The conclusion of the Report suggests that if the facts as alleged are true, there may be some areas of potential liability for Canadian civilian and military officials.

II. FACTUAL BACKGROUND: CANADIAN MILITARY INVOLVEMENT IN

AFGHANISTAN AND THE TRANSFER OF DETAINEES A. Canadian Military Involvement in Afghanistan 1. Initial Deployment: 2001-2002 Canada’s military involvement in Afghanistan is a consequence of the terrorist attacks against New York, Washington, D.C., and Pennsylvania on 11 September 2001. The United Nations Security Council (UN SC) passed Resolution 1368 on 12 September 2001, in which it condemned the attacks, recognized the inherent right of individual and collective self-defence as expressed in Article 51 of the UN Charter,1 and called upon the international community to take action to prevent and suppress acts of terrorism.2 1 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7 [UN Charter].

2 UNSC. Res. 1368 (2001), UN Doc. S/RES/1368.

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On 12 September 2001, NATO members invoked the collective defence clause in Article 5 of the North Atlantic Treaty.3 Although its member states were not directly involved militarily, NATO agreed on a number of measures to assist the United States in its exercise of self-defence.4 On October 7, the United States, under Operation ENDURING FREEDOM (OEF), invaded Afghanistan in order to destroy al-Qaeda and depose the Taliban regime whom it blamed for the September 11th attacks. On the same day, Prime Minister Chrétien announced that Canada would contribute land, sea, and air forces to the international campaign against terrorism launched by the United States.5 The Canadian Operation APOLLO was established in support of the United States-led OEF.6 Canada deployed its first ground forces, the 3rd Battalion, Princess Patricia’s Canadian Light Infantry (3 PPCLI), to Kandahar in January 2002 to provide security at Kandahar airfield and conduct combat operations against Taliban and al-Qaeda fighters. The 3 PPCLI Battle Group returned to Canada at the end of July 2002.7 Operation APOLLO was an exercise by Canada of its inherent right of individual and collective self-defence in accordance with Article 51 of the U.N. Charter; at that time there was no UN SC authorization to use force.8 The fall of Kandahar to American forces on December 7 marked the ousting of the Taliban government. Also in December of 2001, Afghan opposition leaders convened in Bonn, Germany and negotiated an Agreement on Provisional Arrangements in Afghanistan pending the

Re-establishment of Permanent Government Institutions (Bonn Agreement).9 The Bonn

Agreement requested that the UN SC establish a UN-mandated military force to provide security in Kabul.10

3 North Atlantic Treaty, 4 April 1949, 34 UNTS 243, Can. T.S. 1949 No. 7 (entered into force 24 August 1949); see also: NATO and the fight against terrorism, online: NATO: <http://www.nato.int/cps/en/natolive/topics_48801.htm.> [NATO, Fight against terrorism].

4 NATO, Fight against terrorism, ibid.

5 Department of National Defence, The Canadian Forces' Contribution to the International Campaign Against

Terrorism (Backgrounder) (Ottawa: CEFCOM, 2004), online: CEFCOM <http://comfec-cefcom.forces.gc.ca/pa-ap/nr-sp/doc-eng.asp?id=490> [CF Contribution]; Parliament, Standing Committee on National Defence, “Report 1 – Canadian Forces in Afghanistan” (12 June 2007) at 42 [NDC Report].

6 CF Contribution, ibid.; NDC Report, ibid. at 42.

7 CF Contribution, ibid.; NDC Report, ibid. at 42.

8Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for

the Canadian Forces, Minister of National Defence and Attorney General of Canada, 2008 FC 336 [Amnesty Trial

Judgment] (referring to a communication of October 24, 2001 to the Security Council: S/2001/1005).

9 Agreement on Provisional Arrangements in Afghanistan pending the Re-establishment of Permanent Government

Institutions, 5 December 2001, UN Doc. S/2001/1154 [Bonn Agreement].

10 Bonn Agreement, ibid.

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The UN SC endorsed the Bonn Agreement, and on December 20 passed Resolution 1386, establishing the International Security Assistance Force (ISAF) and authorizing its use of all necessary measures, including the use of force, to bring stability to the region.11 ISAF was to deploy for an initial period of six months to Kabul and its surrounding areas to provide security.12 ISAF’s mandate was later extended well into 2003 by UN SC Resolutions 1413 and 1444.13 2. Kabul: 2003-2005 On 19 July 2003, the 3rd Battalion, the Royal Canadian Regiment Battle Group deployed to Kabul to provide security for the emerging Afghan government. Dubbed Operation ATHENA, this deployment marked the beginning of Canada’s contribution to the ISAF mission.14 On August 11, NATO assumed command of ISAF at the request of the United Nations and the Government of Afghanistan.15 On October 13, the UN SC passed Resolution 1510, which expanded the ISAF mission beyond Kabul to the whole of Afghanistan.16 This is ISAF's current mandate and has subsequently been extended by way of UN SC Resolutions 1563, 1623, 1707, 1776, and 1833.17 3. Kandahar: 2005-present In August 2005, CF personnel started redeploying from Kabul to Kandahar as Canada took over the leadership of the Provincial Reconstruction Team (PRT) there.18 On October 18, the Kabul phase of Operation ATHENA ended, and Operation ARCHER began in Kandahar. The Canadian battle group in Kandahar became part of the United States-led OEF, as ISAF had not yet taken over command of the southern provinces including Kandahar Province.19

11 UNSC Res. 1386 (2001), UN Doc. S/RES/1386.

12 Ibid.

13The situation in Afghanistan, S Res. 1413(2002), UN Doc. N02/397/33, online: United Nations

<http://www.un.org>; The situation in Afghanistan, S Res. 1444(2002), UN Doc. N02/713/91, online: United Nations <http://www.un.org>.

14 Operation ATHENA, online: CEFCOM <http://comfec-cefcom.forces.gc.ca/pa-ap/ops/athena/index-eng.asp>.

15 NDC Report, supra at 39.

16 UNSC Res. 1510(2003), UN Doc. S/RES/1510.

17 UNSC Res. 1563(2004), UN Doc. S/RES/1563; UNSC Res. 1623(2005), UN Doc. S/RES/1623; UNSC Res. 1707(2006), UN Doc. S/RES/1707; UNSC Res. 1776(2007), UN Doc. S/RES/1776; UNSC Res. 1833 (2008), UN Doc. S/RES/1833; see also: NATO's role in Afghanistan, online: NATO <http://www.nato.int/cps/en/natolive/topics_8189.htm#mandate> [NATO's role].

18 NDC Report, supra at 53.

19 NDC Report, ibid. at 21.

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On March 1, Theatre Standing Order 321 A (TSO 321 A) was issued, giving direction on the policy and procedures relating to the detention of Afghan nationals or other persons. The order is discussed in more detail in Section B below. On 17 May 2006, the House of Commons passed a motion extending the Canadian mission in Afghanistan until February 2009.20 The mission was subsequently extended on 13 March 2008 when the House of Commons passed a motion extending the Canadian mission in Afghanistan until July 2011.21 On 13 July 2006, ISAF took command of the Canadian mission in Kandahar Province. Operation ARCHER, which was part of the U.S.-led Operation Enduring Freedom, reverted to Operation ATHENA as part of ISAF.22 Between 2-17 September 2006, the Canadian battle group lead Operation MEDUSA, the largest Canadian combat operation since the Korean War.23

B. International Agreements There are a number of noteworthy international agreements that have established the legal basis for the international community’s involvement in Afghanistan since 2002.

On 4 January 2002 a Military and Technical Agreement (MTA) was signed between ISAF and the Afghan government. Key provisions provided that ISAF personnel would at all times be subject to the exclusive jurisdiction of their national elements in respect of any criminal or disciplinary offences.24 Furthermore, ISAF personnel may not be surrendered or transferred to the custody of an international tribunal or any other entity or state without the express consent of the contributing nation.

One of the three legal bases for the Canadian Forces presence in Afghanistan is the

consent of the Government of Afghanistan, as reflected in the Afghanistan Compact.25 The Afghanistan Compact was signed at an international conference on Afghanistan that was held on January 31 and February 1, 2006 in London, England. It represents a commitment made by the

20 House of Commons (39th Parliament, 1st Session), Journals No. 25 (Wednesday, May 17, 2006) at 189.

21 House of Commons (39th Parliament, 2nd Session), Journals No. 66 (Monday, March 13, 2008) at 593.

22 NDC Report, supra at 46-47.

23 Matt McLure, “Operation Medusa a significant success” CTV News (17 September 2006), online: CTV News <http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060917/suicide_bomb_060917/20060917/>.

24Annex A, Military Technical Agreement Between the International Security Assistance Force (ISAF) and the

Interim Administration of Afghanistan (‘Interim Administration’), 4 January 2002 , online: UK Ministry of Defence < http://www.operations.mod.uk/fingal/isafmta.pdf > at 3 [MTA].

25The Afghanistan Compact, The Islamic Republic of Afghanistan and the international community, 1 February

2006, online: United Nations Assistance Mission in Afghanistan <http://unama.unmissions.org/Portals/UNAMA/Documents/AfghanistanCompact-English.pdf>.[Afghan Compact]; see also: Amnesty Trial Judgment, supra at 40-41.

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Republic of Afghanistan, the international community (consisting of more than 60 countries and international organizations), and the United Nations, “to achieve progress in…: security; governance, including the rule of law, human rights, and tackling corruption; and economic and social development.”26 The Afghanistan Compact has been endorsed by the UN SC through Resolutions 1659 and 1707.27 It states that the Afghan Government, with the assistance of the international community, “will create a secure environment by strengthening Afghan institutions”.28 It further specifies that ISAF and OEF, with the help of partner nations involved in security sector reform, will provide strong support to the Afghan Government in order to establish security and stability in Afghanistan.29 This will be accomplished by helping the Afghan Government strengthen and develop the capacity of the national security forces in order to assist them in becoming fully functional.30 Furthermore, ISAF commits to expanding its presence in Afghanistan and will continue to promote stability and support security sector reforms in its operation. Finally, the Afghanistan Compact states that all of this is to be conducted with respect for Afghanistan’s sovereignty.31 1. Arrangements between Canada and Afghanistan

In addition to the international agreements there are other agreements solely between Canada and Afghanistan. On 18 December 2005, the Governments of Canada and Afghanistan entered into the Technical Arrangements between the Government of Canada and the

Government of the Islamic Republic of Afghanistan (the Technical Arrangement). The Technical

Arrangement delineated the nature and power of Canada’s involvement in Afghanistan.32 It governs CF activities including assistance in the armed conflict, stabilization, training of the Afghan military, and assistance to law enforcement authorities.33 The Technical Arrangement provides that:

Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan

26 Amnesty Trial Judgment, ibid. (Affidavit of Colleen Sword at 9).

27 UNSC Res. 1659(2006), UN Doc. S/RES/1659; UNSC Res. 1707(2006), UN Doc. S/RES/1707.

28 Afghan Compact, supra at 3.

29 Afghan Compact, ibid. at 3.



32 Amnesty Trial Judgment, supra at 44.

33 Amnesty Trial Judgment, ibid. at 45.

6

authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.34

The ultimate and final authority to interpret the Technical Arrangement is the Canadian Military Commander in Afghanistan.35

In addition to the Technical Arrangement, Canada signed a “Status of Forces Arrangement” which is annexed to the Technical Arrangements.36 The Status of Forces Arrangement states that, “Canadian personnel are immune from Afghan law and “have complete and unimpeded freedom of movement throughout the territory and airspace of Afghanistan.”37 Article 1.1 of the Status of Forces Arrangement provides that Canadian personnel are subject to the exclusive jurisdiction of Canadian authorities in relation to criminal and disciplinary offences that are committed in Afghanistan.38 Moreover, Article 1.2 states that the Government of Canada must ensure that Canadian personnel “will respect international law and will refrain from activities not compatible with the nature of their operations or their status in Afghanistan.”39 Canadian personnel are protected against arrest or detention under this arrangement “unless the senior Canadian military Commander consents to such treatment.”40 Article 1.4 states that “in giving effect to the Arrangements, the Participants will at all times act in a manner consistent with their obligations under international law.”41

On 19 December 2005, the Canadian and Afghan governments entered into the

Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of

Defence of the Islamic Republic of Afghanistan (the 2005 Arrangement).42 This Arrangement

outlines the procedures to be followed when the CF transfer Afghan detainees to Afghan operated detention facilities.43 Under the 2005 Arrangement, detainees are to be treated “in accordance with the standards set out in the Third Geneva Convention.”44 If there is any doubt as 34

Amnesty Trial Judgment, ibid. at 47.


36Amnesty Trial Judgment, ibid. at 49.

37 Amnesty Trial Judgment, ibid. (Affidavit of Yavar Hameed at 20).



40Amnesty Trial Judgment, ibid. at.51.


42Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the

Islamic Republic of Afghanistan, Canada and The Islamic Republic of Afghanistan, 19 December 2005 [2005

Arrangement].

432005 Arrangement, ibid. at para 1.


7

to whether a detainee is a Prisoner of War, it requires that the detainee be treated “humanely, at all times and under all circumstances, in a manner consistent with the rights and protections of the Third Geneva Convention, even if subsequently transferred to the custody of an Accepting Power.”45 Additionally, the 2005 Arrangement gives the ICRC authority to visit detainees while in the custody of either the CF or Afghan authorities and requires participants to notify the ICRC upon the transfer of a detainee.46 Moreover, the participants committed to cooperating with the AIHRC “in the exercise of its role.”47 Finally, the participants are required to maintain accurate records relating to every detainee that has been in their custody. These records are to be made available to the ICRC and original copies of the records are to remain with the Transferring Power while copies are to be given to the Accepting Power. 48

On 3 May 2007, the Government of Canada signed a modified arrangement with Afghanistan entitled Arrangement for the Transfer of Detainees Between the Government of

Canada and The Government of the Islamic Republic of Afghanistan (the 2007 Arrangement).49 This Arrangement supplements the 2005 Arrangement, which remains in effect.50 Under the 2007 Arrangement, Canadian government personnel were granted “full and unrestricted access to any persons transferred by the CF to Afghan authorities while such persons are in custody.”51 The ICRC and AIHRC were also all guaranteed full access to detainees.52 Moreover, under the 2007 Arrangement, the Afghan government must hold Canadian transferred detainees in a limited number of facilities to assist in keeping track of individual detainees.53 The designated institutions are the National Directorate of Security (NDS) Detention Facility in Kandahar, Kandahar central prison (Sarpoza), NDS detention facility No. 17 in Kabul, and Pul-e-Charki prison in Kabul.54 Additionally, the Government of Canada is to be notified “prior to the initiation of proceedings involving persons transferred by the [CF] and prior to the release of the detainees.”55 Furthermore, the Government of Canada is to be advised of any “material change of

45



47 2005 Arrangement, ibid. at para 11.


49Arrangement for the Transfer of Detainees Between the Government of Canada and The Government of the

Islamic Republic of Afghanistan, Canada and The Islamic Republic of Afghanistan, 3 May 2007 [2007

Arrangement].

50Amnesty Trial Judgment, supra at 70.

512007 Arrangement, supra at para 2.

522007 Arrangement, ibid. at paras 2 ,8.


54Amnesty Trial Judgment, supra at 71.

55 2007 Arrangement, supra at para. 3.

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circumstances regarding the detainees including any instances of alleged improper treatment.”56 Afghan authorities are required to treat detainees in accordance with Afghanistan’s international human rights obligations. Should there be any allegations brought to the attention of the Government of Afghanistan that a detainee has been mistreated, the matter is to be investigated by the Government of Afghanistan.57 Those responsible for the mistreatment will be prosecuted in accordance with Afghan law and applicable international legal standards.”58

Although these Arrangements provide procedural safeguards to ensure that detainees

captured by the CF are not transferred to torture or mistreated, it has been argued that these Arrangements are not legally binding under international law. The Vienna Convention on the

Law of Treaties 1969 (VCLT) sets out the rules governing international treaties.59 The VCLT

defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”60 According to the International Law Commission, the phrase “governed by international law” requires that there be an intent by the parties to create legal relations.61 To determine whether the parties intended to create legal relations one must look to the agreement itself as well as the circumstances surrounding its conclusion.62 Professor Christopher Greenwood argued that by choosing an informal title like “Arrangements” and by having non-binding languages such as “will” rather than “shall”, the parties intended for these agreements to be non-binding instruments.63 It should be noted, however, that there are some who argue that these Arrangements are in fact legally binding treaties.64 Despite this, it is likely that these Arrangements are not legally binding at international law as the parties did not intend them to be.

56

2007 Arrangement, ibid.

572007 Arrangement, ibid. at paras. 4, 10.


59Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980)

[VCLT].

60VCLT, ibid. at Art. 2.

61International Law Commission, Draft Articles on the Law of Treaties with commentaries 1966, UN GAOR, 18th Sess. (1966), online: International Law Commission <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf> .

62Amnesty Trial Judgment, supra (Affidavit of Christopher Greenwood at 74).

63 Amnesty Trial Judgment, ibid. (Affidavit of Christopher Greenwood at 74).

64 Professor Michael Byers argues that, although the Department of National Defence (DND) has stated that these arrangements are not legally binding, the fact that they are entitled “Arrangements” “does not detract from [their] legal status as treat[ies]”.64 He argues that treaties can also be called “arrangements” and therefore these arrangements are in fact legally binding international treaties. Amnesty Trial Judgment, ibid. (Affidavit of Michael Byers at 6).

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2. Operationalization of International Arrangements The international arrangements are operationalized through the Joint Task Force

Afghanistan’s TSO 321A in relation to the “Detention of Afghan Nationals and other Persons.”65 Note that this is not an international agreement or arrangement. This order replaced a number of interim policies on detainee handling, and was designed to translate the requirements of the 2005

Arrangement into binding orders for the members of Joint Task Force Afghanistan (JTF-A). TSO 321A allows CF personnel to detain any person provided when there is a “reasonable belief”, meaning “neither mere speculation nor absolute certainty”, that the individual is adverse in interest.66 Where this reasonable belief exists and the individual becomes a detainee, notice is sent to the ICRC and the AIHRC.67 It is of note that the CF are not required to provide notice to the Government of Afghanistan once an Afghan citizen has been detained.68 Notice to the Afghan Government is only required where the detainee is transferred to Afghan authorities.69 TSO 321A allows the Commander of JTF-A to decide whether detainees are to remain in Canadian custody, released, or transferred into the custody of a third party.70 Furthermore, it states that detainees are to be treated “fairly and humanely” and in accordance “with applicable international law and CF Doctrine.”71 Detainees are to be transferred or released within 96 hours of capture, according to NATO and CF policy.72 The CF are, however, permitted to hold detainees for longer than 96 hours and have done so in the past.73 The decision to retain, transfer, or release detainees is within the sole discretion of the CF.74 Prior to transferring a detainee, the Commander of JTF-A must be satisfied that “there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatments at the hands of the Afghan authorities.”75



67Amnesty Trial Judgment, ibid. (Affidavit of Brigadier General Joseph Paul Andre Deschamps at 9).









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C. Allegations of Abuse of Afghan Detainees

1. International Reports Confirming Torture Occurs in Afghan Prisons Between 2005 and 2008, a number of reports released by international bodies maintained

that torture regularly takes place in Afghan prisons. In its 2004-2005 Annual Report, the AIHRC stated that torture is a routine part of custody and interrogation by Afghan National Police (ANP). It is used to extort confessions and is especially prevalent in Kandahar where many of the Canadian transfers occur. 76 In March 2006, the UN High Commissioner for Human Rights, Louise Arbour, reported that complaints of torture in Afghan prisons are ‘common.’ Her report refers specifically to the NDS, one of the units of the Afghan government to which the CF has transferred detainees.77 That same month, a United States’ State Department Report noted instances of torture and extrajudicial killings in Afghan prisons as reported by credible observers.78 At the end of 2006, the Canadian Embassy’s Annual Human Rights Report on Afghanistan detailed systemic problems of torture in Afghan jails, concluding that “extra-judicial executions, disappearances, torture and detention without trial are all too common.”79

In March 2007, the US State Department reiterated that there is credible evidence of

torture in Afghan custody including mutilation and sexual abuse. The Report cites the practices of “pulling out fingernails and toenails, burning with hot oil, sexual humiliation, and sodomy.”80 That month, a UN Secretary General Report stated that a recent detainee-monitoring campaign in

76 Afghanistan Independent Human Rights Commission, Annual Report 2004-2005 at s. 4.7, online: AIHRC <http://www.aihrc.org.af>.

77 Report of the High Commissioner for Human Rights on the situation of human rights in Afghanistan and on the

achievements of technical assistance in the field of human rights, UN ESCOR, 62d Sess., UN Doc. E/CN.4/2006/108 (3 March 2006) (“Multiple security institutions managed by the [NDS], the Ministry of the Interior and the Ministry of Defence, function in an uncoordinated manner, and lack central control. Complaints of serious human rights violations committed by representatives of these institutions, including arbitrary arrest, illegal detention and torture, are common” at para. 68).

78U.S., Bureau of Democracy, Human Rights, and Labor, U.S. Department of State 2006 Country Reports on Human

Rights Practices: Afghanistan (2007), online: U.S. Department of State <http://www.state.gov/g/drl/rls/hrrpt/2006/78868.htm> (“Complaints of serious human rights violations committed by representatives of national security institutions, including arbitrary arrest, unconfirmed reports of torture, and illegal detention were numerous. There were allegations that local commanders operated private prisons where they abused individuals in detention, in some cases resulting in their death”).

79 Canada, House of Commons, Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 015 (18 November 2009) at 1540 (Richard Colvin) [Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 015 (Richard Colvin)]; see also: Amnesty Decision on Injunction, supra at para. 105.

80 U.S., Bureau of Democracy, Human Rights, and Labor, U.S. Department of State 2007 Country Reports on

Human Rights Practices: Afghanistan (2008), online: U.S. Department of State <http://www.state.gov/g/drl/rls/hrrpt/2007/100611.htm> (“The constitution prohibits such practices; however, there were reports of abuses by government officials, local prison authorities, police chiefs, and tribal leaders. NGOs reported that security forces continued to use excessive force, including beating and torturing civilians. During the year human rights organizations reported that local authorities in Herat, Helmand, Badakhshan, and other locations continued to torture and abuse detainees. Torture and abuse included pulling out fingernails and toenails, burning with hot oil, beatings, sexual humiliation, and sodomy”).

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Afghan prisons revealed “ill-treatment and torture.”81 In November 2007 an Amnesty International Report concluded that Afghan detainees continue to be tortured and ill-treated and that NATO countries violate their international obligations by transferring detainees to Afghan custody.82

2. Specific Instances of Abuse of Detainees Transferred by Canada

a) Four Distinct Incidents in 2006

Three persons apprehended by CF in the Kandahar region in April 2006 allegedly suffered abuse following their transfer to Afghan Authorities.83 In May 2006, a detainee was transferred to the ANP and allegedly abused.84 On 14 June 2006, CF detained an individual who was transferred to the local ANP, who allegedly beat the man with their “shoes, boots and weapons,” prompting CF to retrieve the detainee from ANP custody.85 The detainee was later transferred to the Provincial ANP. 86 In another incident in 2006, the CF intervened upon discovering that a detainee to be transferred was at risk of being summarily executed by the

81 Report of the Secretary General, The situation in Afghanistan and its implications for international peace and

security, UN GAOR & UN SCOR, 2007, UN Doc. A/61/799-S/2007/152 (“A join Afghan Independent Human Rights Commission and UNAMA arbitrary detention monitoring campaign began in October 2006 throughout Afghanistan with the cooperation of the Ministries of Justice and the Interior and the Office of the Attorney General. Initial findings indicated that in a significant proportion of the cases pre-trial detention timelines had been breached, suspects had not been provided with defence counsel, and ill-treatment and torture had been used to force confessions” at para. 41).

82 Amnesty International, Afghanistan: Detainees transferred to torture: ISAF complicity? Doc. No. ASA 11/011/2007 (November 2007), online: Amnesty International <http://www.amnesty.org/en/library/info/ASA11/011/2007> (“Amnesty International has received reports of torture, other ill-treatment, and arbitrary detention by Afghanistan’s intelligence service, the National Directorate of Security (NDS). Detainees are transferred from international forces operating in Afghanistan as part of the International Security Assistance Force (ISAF) to Afghan authorities. By transferring individuals to a situation where there is a grave risk of torture and other-ill treatment, ISAF states may be complicit in this treatment, and are breaching their international legal obligations”).

83 Canada, Military Police Complaints Commission, MPC-2007-003 (Attaran) (9 February 2007), online: Military Police Complaints Commission <http://www.mpcc-cppm.gc.ca/alt_format/300/Afghanistan/2007-02-09-2-eng.pdf>; see also: Amnesty Decision on Injunction, supra (Affidavit of Yavar Hameed at para. 92, referring to a 2 March 2007 Globe and Mail report that three detainees captured by the CF in April 2006 were transferred to Afghan authorities and subsequently disappeared).

84 Richard Colvin, submission to the Special Committee on the Canadian Mission in Afghanistan, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan” (16 December 2009) at 8, online: CBC <http://www.cbc.ca/news/pdf/further-evidence-special-committee.pdf> [Richard Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan”].

85 Statement of General Walter Natynczyk in “Top General changes story on Taliban suspect” (9 December 2009), online: CBC News <http://www.cbc.ca/canada/story/2009/12/09/natynczyk-detainee.html>; see also: Task Force Afghanistan, “General Occurrence Report” (14 June 2006), online: CBC News <http://www.cbc.ca/news/pdf/soldier-055.pdf>.

86 Amnesty Decision on Injunction, supra (Affidavit of Steven P. Noonan at para. 56, online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/afghan_detainee_litigation.html>) [Noonan Affidavit].

12

Afghan National Army (ANA) and obtained instructions to continue holding the detainee until the detainee could be transferred to the NDS.87

b) Two Allegations of Torture in April 2007

On 13 February 2007, the Kandahar PRT began conducting site visits to prisons. Between February and May, they conducted 13 visits to Sarpoza prison and two visits with the NDS.88 In April 2007, the Correctional Component Director of the Kandahar PRT reported two allegations to the AIHRC and ICRC. One detainee reported the physical abuse of other prisoners. The other detainee stated that he had heard beatings in the next cell and had overheard six prisoners say that they had been physically abused by the ANP prior to their transfer to NDS.89 She further commented that prison conditions at Sarpoza fell below United Nations standards of treatment, including the consistent use of chains on security prisoners, holding of children detainees with adults, the use of light deprivation, and the arbitrary detention of prisoners past their release date.90

c) Graeme Smith’s April 23rd

Globe and Mail Article On 23 April 2007, the Globe and Mail published Graeme Smith’s report on detainee

abuse in Afghan prisons. In the article thirty detainees were interviewed and reported being whipped with electrical cables, electrocuted, starved, frozen and forced to stand for days at a time by NDS and the ANP.91 The majority of the detainees were transfers from CF custody.92 The article highlighted three particular detainees transferred from CF custody who were subsequently abused. Several Canadian officials stated that this article was the first specific allegation of torture of Canadian transferred detainees.93 On April 25 and 26, BGen. Tim Grant

87 Noonan Affidavit, ibid. at para. 55.

88 Canada, House of Commons, Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (2 December 2009) at 1535 (Linda Garwood-Filbert) [Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (Linda Garwood-Filbert)].

89 Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (Linda Garwood-Filbert), ibid. at 1540.

90 Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (Linda Garwood-Filbert), ibid. at 1540.

91 Graeme Smith, “Canadian custody into cruel hands; Savage beatings, electrocution, whipping and extreme cold: Detainees detail a litany of abuses by Afghan authorities” Globe and Mail (23 April 2007) A1 [Graeme Smith, “Canadian custody into cruel hands”].

92 Graeme Smith, “Canadian custody into cruel hands”, ibid. at A1.

93 Canada, House of Commons, Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 017 (26 November 2009) at 164 (H.E. David Mulroney) [Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 017(H.E. David Mulroney)]; see also: Canada, House of Commons, Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (2 December 2009) at 1645 (Colleen Swords) [Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (Colleen Swords)], Noonan Affidavit, supra at para. 62.

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met with the Director of the NDS, DFAIT representatives and the AIHRC to discuss these allegations and to reaffirm AIHRC access to NDS facilities.94

d) Allegations of Abuse Following the Second Transfer Arrangement

On 3 May 2007, Canada and Afghanistan entered into the 2007 Arrangement. Eight complaints of prisoner abuse were received by Canadian personnel during private interviews between 3 May and 5 November 2007, including allegations that detainees were kicked, beaten with electrical cables, given electric shocks, cut, burned, shackled, and made to stand for days at a time with their arms raised over their heads.95 In some cases, prisoners bore physical signs of this abuse, and in others, signs of mental illness were observed.96

In June 2007, DFAIT began monitoring detainees and received several complaints of

abuse.97 Between 3 May and 14 December 2007, DFAIT led 20 visits to NDS facilities in Kandahar and Kabul.98 A DFAIT report from June 4 or 5 stated that a detainee alleged to have been blindfolded and beaten with electrical cables while at the Kandahar NDS facility.99 On June 5 and 6, an Embassy Monitoring Team visited Sederat (an NDS facility in Kabul) and interviewed four detainees transferred from Kandahar. Three of the detainees reported instances of abuse and torture and bore physical signs of mistreatment.100 One detainee’s toenails appeared “somewhat traumatized.”101 Another detainee reported that he had been hit with cables and wires as well and shocked with electricity while in Kandahar.102 The third detainee stated that he was hit on his feet with a cable and forced to stand for two days while being interrogated by NDS.103 After receiving the reports, the monitoring team identified one of the tortured detainees as a

94 Noonan Affidavit, ibid. at para. 69.

95 Amnesty Decision on Injunction, supra at 85.

96 Amnesty Decision on Injunction, ibid. at 87.

97 Canada, House of Commons, Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 016 (25 November 2009) at 1555 (Lieutenant-General Michel Gauthier) [Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 016 (Lieutenant-General Michel Gauthier)].

98 Amnesty Decision on Injunction, supra (Affidavit of Nicholas Gosselin at para. 18, online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/afghan_detainee_litigation.html>).

99 Canada, House of Commons, Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (2 December 2009) at 1605 (Hon. Ujjal Dosanjh); see also: Richard Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan”, supra at 6 (referring to DFAIT Report KANDH-0039).

100 Richard Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan”, ibid. at 5.

101 Richard Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan”, ibid. at 5; see also: Colvin & Bloodworth, “KBGR00291—Visit to NDS detention facility in Kabul” email report from KABUL-GR-C4R (6 June 2007) at 5, online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/09colvin.html>.

102 Richard Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan”, supra at 5.


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Canadian transfer and subsequently informed the Interdepartmental Coordinator for Afghanistan.104 The NDS conducted an internal investigation based on these allegations, and reported to the Canadian Ambassador that there was no basis for the allegations.105 Ambassador Lalani sent the report back to NDS because he found it to be incomplete.106

e) Dedicated Monitor Sent in October 2007

Between May and October 2007, monitoring was conducted by a rotating pool of officers; however, it was not completely effective.107 In October 2007, DFAIT sent a dedicated monitor to Kandahar who found “incontrovertible evidence of continued torture.”108

f) Credible Allegation of Torture in November 2007

On November 5, Canadian officials received a “credible allegation of mistreatment”109 during a monitoring visit to the NDS facility in Kandahar City.110 During the visit, a detainee said that while he had been interrogated in the office of the Director of Investigations he was held to the ground and beaten with electrical wires and a rubber hose until knocked unconscious.111 He revealed a large bruise on his back was consistent with the beating described112 and braided piece of electrical cable was found in the office.113 After having received this allegation, the PRT conducted eight visits to Afghan prisons between November 7 and December 14, on the instruction of the Canadian government to carry out additional visits.114

3. Inadequacies in Record Keeping

Documentation between May and November of 2007 is replete with references to ongoing difficulties facing the CF and DFAIT in tracking down detainees once they leave





108 Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 015 (Richard Colvin), supra at 1555.

109 Amnesty Decision on Injunction, supra at para 30 (According to Colleen Swords, this is the first credible allegation from the Monitoring Team against a Canadian transfer detainee, see: Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 018 (Colleen Swords), supra at 1700).

110 Amnesty Decision on Injunction, ibid. at para 30; see also: Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 016 (Lieutenant-General Michel Gauthier), supra at 1555.




114 Amnesty Decision on Injunction, ibid. (Affidavit of Kerry Buck at para. 32, online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/afghan_detainee_litigation.html>).

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Canadian custody.115 There were at least four detainees taken into Canadian custody during this period and then subsequently transferred into Afghan custody whose whereabouts are unknown.116 On 26 June 2007, Canadian personnel visited the NDS detention facility in Kandahar City with a list of 12 individuals who had recently been transferred from CF custody. Upon arrival, they were advised that ten of the individuals had been released the day before. There is no ability to verify this information, or whether these individuals suffered mistreatment while in custody.117

4. ICRC Monitoring

On 31 May 2006, amidst criticisms that the 2005 Arrangement contained inadequate mechanisms to ensure detainee safety, Minister of National Defence Gordon O’Connor stated in the House of Commons that “The Red Cross or the Red Crescent is responsible to supervise their treatment once the prisoners are in the hands of the Afghan authorities. If there is something wrong with their treatment, the Red Cross or Red Crescent would inform us and we would take action.”118 In March of 2007, the ICRC contradicted Minister O’Connor’s remarks, stating that issues of abuse are reported only to the detaining power. 119 A few weeks later, the Minister of National Defense delivered an oral apology to Parliament for his misstatement of the role of the ICRC in reporting allegations of detainee abuse.120

In 2009, it was revealed that in September 2006 the head of the ICRC had met with

Ministers Peter MacKay (Foreign Affairs), Stockwell Day (Public Safety) and Gordon O'Connor (National Defense) to focus Canada’s attention on alleged abuses in Afghan prisons. The exact contents of the meeting are unknown, however, unofficial sources indicated that the meeting was to convey the ICRC’s frustration with Canada’s delays in communicating detainee transfers.

Notification of transfers often took up to one month to reach the ICRC from the date of transfer as the information filtered through multiple levels of Canadian bureaucracy.121


116 Amnesty Decision on Injunction, ibid. at 78 (Testimony of Nicholas Gosselin).

117 Amnesty Decision on Injunction, ibid. at 81-82.

118 Canada, House of Commons, Edited Hansard, No. 030 (May 31, 2006) at 1445 (Hon. Gordon O’Connor).

119 Amnesty Decision on Injunction, supra (Supplementary Affidavit of Alex Neve at paras. 7-8, online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/afghan_detainee_litigation.html>) [Neve Affidavit 2].

120 Neve Affidavit 2, ibid. at para. 9.

121 Murray Brewster, “Peter MacKay, Red Cross discussed detainees in 2006,” Toronto Star, online: The Star, <http://www.thestar.com/news/canada/afghanmission/article/741316--peter-mackay-red-cross-discussed-detainees-in-2006>.

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5. Concerns over Transfers Raised from the Field

a) General Concerns Raised about Transfer Practices In May 2006, Richard Colvin, the senior DFAIT representative of the PRT, became

aware of human rights concerns arising from detainee transfer practices and began to inform others through written reports and verbal briefings to senior DFAIT and CF officials. For instance on 26 May 2006, a report authored by Colvin was circulated addressing inadequate notification to the ICRC and the inability to effectively monitor detainees.122 On 2 June 2006, Colvin flagged the issue of detainee treatment in a report that cited a credible source or sources expressing serious concerns regarding the treatment of detainees in the Sarpoza prison.123

In the fall of 2006, reports addressed ISAF and NATO concerns over Canada’s transfer

practices. For instance, on 19 September 2006, a Canadian Embassy Report noted ISAF concerns over the continued monitoring of Canadian detainees and lack of information sharing on Canadian detainees with ISAF.124 A similar report issued on 4 December 2006, identified concerns raised by NATO allies that once transferred, detainees may “vanish from sight” and be at risk of torture.125 In March 2007, Colvin attended an inter-agency meeting on detainees and spoke about NDS and their practice of torture and that in order to prevent torture, Canada should not be transferring detainees to the NDS.126

b) Reports Responding to Specific Incidents

On 24-25 April 2007, the Canadian Embassy sent two reports in response to the torture allegations suggesting detainee monitoring through robust mechanisms, or taking responsibility for detainees.127 After specific allegations of abuse were received on June 5 and 6, Richard

122 Richard Colvin, “ Further Evidence of Richard Colvin to the Special Committee on Afghanistan”, supra at 1; see also: Richard Colvin, “KANDH0029: Detainees: ICRC Concerns over Notification by Canadian Forces”, email report (26 May 2006), online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/09colvin.html> (this report did not contain any specific reference to torture, see: Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 017 (H.E. David Mulroney), supra at 1640).

123 Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 015 (Richard Colvin), supra at 1620 (referring to the report “KANDH-0032: Kandahar Prison and Afghan Detainees”).

124 Richard Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan”, supra at 1 (referring to report “KBGR-0118: Afghanistan: ISAF Detainee Concerns”).

125 Richard Colvin, “Further Evidence of Richard Colvin to the Special Committee on Afghanistan”, ibid. at 2 (referring to report “KBGR-0160: Afghan Detainee Issues”).

126 Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 015 (Richard Colvin), supra at 1600; see also: Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 017 (H.E. David Mulroney), supra at 1550.

127 Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 015(Richard Colvin), ibid. at 1550.

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Colvin sent a report containing this information to ten addresses on the C4 list including DFAIT and the commander of the Canadian Task Force in Afghanistan.128

6. Suspension of Transfers

On 6 November 2007, following a specific allegation of torture, Col. Christian Juneau, the Deputy Commander of Task Force Afghanistan, made the decision to temporarily suspend detainee transfers, in the absence of BGen. Laroche, who was on leave at the time.129 On 26 February 2008, CF resumed transfer of detainees to Afghan authorities.130

D. Related Proceedings On 29 January 2007, the Military Police Complaints Commission (MPCC) received a

formal complaint by Professor Amir Attaran of possible abuse of detainees by CF personnel that went un-investigated by the Military Police in April of 2006. The MPCC subsequently launched a public interest investigation into the matter on 9 February 2007.131 The MPCC released its report on 23 April 2009, finding that the Military Police did not mistreat detainees, but did fail to properly investigate the origins of the detainees’ injuries.132

After the first complaint to the MPCC, media reports surfaced that CF personnel may

have abused a detainee. The CF launched a Board of Inquiry under Part IV of the National

Defence Act to investigate the allegations on 27 March 2007. The Board issued its final report on 6 February 2009. The Inquiry found that CF personnel had complied with orders, directives, and policies that were in place for the handling of detainees at the time, and any non-compliant actions were purely administrative.133

On 21 February 2007, Amnesty International Canada (AIC) and the British Columbia

Civil Liberties Association (BCCLA) filed a joint complaint to the MPCC regarding the transfer of detainees by military police in Afghanistan. The complaint alleges that the military police had, on at least 18 occasions, transferred detainees to Afghan authorities notwithstanding alleged

128 Colvin & Bloodworth, “KBGR00291—Visit to NDS detention facility in Kabul” email report from KABUL-GR-C4R (6 June 2007), online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/09colvin.html>.

129 Amnesty Decision on Injunction, supra at 34-35.

130 Amnesty Decision on Injunction, ibid. at 81; see also: Special Committee on the Canadian Mission in Afghanistan, Evidence, No. 016 (Lieutenant-General Michel Gauthier), supra at 1555.

131Afghanistan Public Interest Investigation, online: Military Police Complaints Commission <http://www.mpcc-

cppm.gc.ca/300/afghanistan/index-eng.aspx > [APII].

132 Military Police Complaints Commission, Final Report (Ottawa: Military Police Complaints Commission, 2009) at pg. 72.

133 Board of Inquiry into In-theatre Handling of Detainees, Final Report (Ottawa: Department of National Defence, 2009) at Part IV, para. 74.

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evidence of the likelihood that they would be tortured.134 The MPCC began a public interest investigation into the matter on 26 February 2007, and moved it to a public interest hearing process on 12 March 2008, due to delays and difficulties in obtaining documents and information from government authorities. These hearings are currently ongoing.

On 21 February 2007, the BCCLA and AIC also launched an application for judicial

review against the Chief of Defence Staff for the Canadian Forces, the Minister of National Defence and the Attorney General of Canada “in respect of actions or potential actions of Canadian Forces deployed in … Afghanistan” on the assertion that the 2005 Arrangement does not provide adequate safeguards to protect detainees from torture.135 The applicants sought to invoke the Canadian Charter of Rights and Freedoms (Charter) to protect Afghan detainees in Canadian custody.

On 7 February 2008, the Federal Court delivered its judgment on a motion for an

interlocutory injunction to stop detainee transfers. The court refused to grant the injunction because the transfers had been temporarily suspended, but noted that the evidence raised real and serious concerns as to the effectiveness of the steps taken to ensure detainees transferred into Afghan custody are not mistreated.136

On 12 March 2008, the Federal Court delivered its judgment on the Charter application,

determining that detainees do not have rights under the Charter.137

The Federal Court of Appeal upheld this judgment on 17 December 2008.138

III. LEGAL ISSUES: POTENTIAL AREAS OF LIABILITY FOR CANADIAN

OFFICIALS

This part of the Report addresses the legal issues surrounding the potential criminal liability of Canadian officials in relation to the transfer of detainees in Afghanistan. It is divided into four sections. First, an overview of international law on armed conflicts is provided. Second, international law offences under both customary international law and the Crimes Against

Humanity and War Crimes Act, which implements the Rome Statute of the International

Criminal Court, are analyzed. Third, offences under the Criminal Code are discussed. The last section analyses offences under the National Defence Act.

134 APII, supra.

135 Notice of Application for Judicial Review, Dated February 21, 2007 Online: British Columbia Civil Liberties Association <http://www.bccla.org/antiterrorissue/afghan_detainee_litigation.html>.

136 Amnesty Decision on Injunction,, supra at 111.

137 Amnesty Trial Judgment, supra.

138Amnesty International Canada et al. v. Canada (Canadian Forces), 2008 FC 401 [Amnesty Appeal Judgment].

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It should be noted that the goal of this Report is not to make a definitive finding as to whether criminal liability arises or not. The aim is rather to analyze, based on the allegations made and the documents available, if there is ground for potential criminal liability. Any definitive findings would have to be made by a proper judicial authority with powers to compel the production of documents and testimony. A. International Law on Armed Conflicts 1. Overview This section deals with the potential criminal liability that could arise from rules of international law. Those rules emanate either from a treaty139 or customary international law.140 Since the allegations concern events that occurred during an armed conflict, we must first determine what type of armed conflict was taking place in Afghanistan at the relevant time; the type of armed conflict will determine which rules of international law apply. We then analyze the different types of criminal liability that arise in both customary international law and treaty law that could potentially apply to officials involved in transferring detainees. 2. Defining an Armed Conflict in International Law To determine which rules of International Humanitarian Law (IHL) – the body of law that regulates warfare – are applicable, we must first define an armed conflict. An armed conflict “exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized groups or between such groups within a State.”141 Second, we must determine if the situation in Afghanistan is an international armed conflict or a non-international armed conflict, because some rules of IHL apply only in an international conflict whereas others apply in both types of armed conflicts.

139 In Canada, a treaty must be transformed through legislation in order to have effect in the Canadian domestic legal order. As such, the rules contained in the Rome Statute, infra, are applicable in Canada through the Crimes Against

Humanity and War Crimes Act, infra, which implemented the treaty into the Canadian legal order.

140 A rule of customary international law exists when there is “a general practice accepted as law” by states. The two constitutive elements of an international custom are a general practice – a practice that is widespread but not necessarily universal – and opinio juris – a belief by states that the rule is legally binding. Customary international law is universally binding on all states save the exception of the “persistent objector” – a state whose objection is consistent and raised at every possible opportunity is not bound by rule. A rule of customary international law can operate in parallel to a treaty rule in the sense that they are both valid independent legal obligations. A rule of customary international law is automatically incorporated into the Canadian common law in the absence of conflicting legislation. See: Article 38(1)(b) of the Statute of the International Court of Justice, 26 June 1945, Can. T.S. 1945 No. 7 (entered into force 24 October 1945); Case concerning Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v. United States of America) (Merits), [1986] I.C.J. Rep. 14 (“customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content” at 179) [Nicaragua Case]; R. v. Hape, [2007] 2. S.C.R. 292 at para. 39; Ian Brownlie, Principles of Public International Law (New York: Oxford University Press, 2008) at 6-12.

141 Prosecutor v. Du ko Tadi , IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) at para. 70 (ICTY, Appeals Chamber) [Tadi , Appeal Judgment].

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a) International Armed Conflict An international armed conflict is a conflict between two or more states. It has been defined as “any difference arising between two states and leading to the intervention of the armed forces…It makes no difference how long the conflict lasts, how much slaughter takes places, or how numerous are the participating sources.”142 On this definition, an international armed conflict is a resort to force by two or more states. IHL applies not only to the areas in which actual hostilities between parties occur, nor only at the time of those hostilities, but broadly to the entirety of the conflict. The temporal and geographic scope of an international armed conflict and the application of IHL within it was described in the Tadic judgement, “[i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached…Until that moment, IHL continues to apply in the whole territory of the warring States.”143 It should be noted that the application of international humanitarian law to an international armed conflict is not conditional on any formal recognition of the enemy state or government.144 The situation in Afghanistan from the beginning of military operations by U.S. forces on 7 October 2001 to the transfer of authority to the Transitional Authority on 22 June 2002 was an international armed conflict between the U.S.-led coalition and Taliban-governed Afghanistan.145 In the context of an international armed conflict, the four Geneva Conventions of 1949 apply.146 The law of international armed conflict distinguishes between combatants and civilians. Lawful combatants are members of armed forces and they must distinguish themselves from civilians by openly bearing arms and wearing distinctive insignia. To be recognized as lawful combatants, irregular forces must fulfil the following conditions: a) they must be under the command of a person responsible for his subordinates; b) they must wear a fixed distinctive badge recognizable at a distance; c) they must carry arms openly; and d) they must conduct their operations in accordance with the laws and customs of war.147 Lawful combatants have a right to

142 United States v. Noriega et al., 746 F. Supp. 1506 (1990) (Dist. Ct. S.Fla. 1990).

143 Tadi , Appeal Judgment, supra at para. 70.

144 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (New York: Cambridge University Press, 2004) at 16; Christopher Greenwood, “International Law and the ‘War against Terrorism’” (2002) 78 International Affairs 301 at 312-3.

145 International Committee for the Red Cross, “International Humanitarian Law and Terrorism” online: ICRC <http://www.icrc.org/web/eng/siteeng0.nsf/iwpList575/0F32B7E3BB38DD26C1256E8A0055F83E>.

146 Article 2(1) common to the Geneva Conventions. See: Geneva Convention (I) for the Amelioration of the

Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, 8 December 1949, 75 U.N.T.S. 31, Can. T.S. 1965 No. 20 (entered into force 21 October 1950); Geneva Convention (II) for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, 8 December 1949, 75 U.N.T.S. 85, Can. T.S. 1965 No. 20 (entered into force 21 October 1950); Geneva Convention (III) relative

to the Treatment of Prisoners of War of August 12, 1949, 8 December 1949, 75 U.N.T.S. 135, Can. T.S. 1965 No. 20 (entered into force 21 October 1950) [Geneva Convention III]; Geneva Convention (IV) relative to the Protection

of Civilian Persons in Time of War of August 12, 1949, 8 December 1949, 75 U.N.T.S. 287, Can. T.S. 1965 No. 20 (entered into force 21 October 1950).

147 Combatants are defined at Article 4 of Geneva Convention III, ibid. and at Article 43 of Protocol Additional to

the Geneva Conventions of 12 August 1949, and relating to the protection of Victims of International Armed

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engage in hostilities; if they are captured, they become prisoners of war and cannot be prosecuted for acts that respect IHL.148 Geneva Convention III and Additional Protocol I detail the protections granted to prisoners of war.149 One such protection is Article 12 of Geneva

Convention III, which provides that a prisoner of war cannot be transferred to a country that does not respect the Convention. Civilians, on the other hand, are all persons other than lawful combatants and they do not have the right to take part in hostilities. Unlike lawful combatants, if they do participate in hostilities, they may be prosecuted for their actions. Civilians not taking part in hostilities cannot be targeted by military operations.150 Additional Protocol I to the Geneva Conventions, which provides further protections to civilians during an international armed conflict, also applies when the belligerent states have ratified it. 151 Even if a state has not ratified Additional Protocol I, it is still bound by most of its provisions as they reflect rules of customary international law, including the fundamental guarantees in Article 75 – e.g. the right to be treated humanely, and the prohibition against torture, humiliating and degrading treatment, and corporal punishment.152 Afghanistan ratified Additional Protocol I on 11 November 2009; therefore, the Protocol itself was not applicable to the international armed conflict that took place between October 2001 and June 2002. The international armed conflict was thus governed by the Geneva Conventions and applicable customary international law, including those aspects of Additional Protocol I that have customary status. b) Non-International Armed Conflict Common Article 3 of the Geneva Conventions applies to an “armed conflict not of an international character.” A non-international armed conflict is thus a conflict that takes place within the confines of a state’s territory, and can involve state and non-state actors.153 A non-international armed conflict is differentiated from mere riots and disturbances by an intensity

Conflicts (Protocol I), 12 December 1977, Can. T.S. 1991 No. 2 (entry into force 7 December 1978) [Additional

Protocol I]. See also Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (New York: Cambridge University Press, 2004) at 27-33.

148 Marco Sassòli & Antoine A. Bouvier, How does Law Protect in War?, 2d ed., Vol. I (Geneva: ICRC, 2006) at 154-6 [Sassòli & Bouvier, How does Law Protect in War?].

149 Geneva Convention III, supra at Articles 12-16; Additional Protocol I, supra.

150 Sassòli & Bouvier, How does Law Protect in War?, supra at 143-5.

151 Additional Protocol I, supra.

152 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, (New York: Cabridge University Press, 2005) at Rules 87 and 90 [Henckaerts & Doswald-Beck, Customary International

Humanitarian Law].

153 Robert Cryer et al., An Introduction to International Criminal Law and Procedure (New York: Cambridge University Press, 2007) at 236 [Cryer et al., An Introduction to International Criminal Law and Procedure] .

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threshold and the organization of the parties; as stated by the ICTY, there needs to be “protracted armed violence between governmental authorities and organized armed groups.”154 Common Article 3 establishes minimum protections to “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by…detention”; Common Article 3 is customary international law.”155 It provides protections, amongst others, against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and against “outrages upon personal dignity, in particular humiliating and degrading treatment.” Unlike in international armed conflicts, combatants in non-international armed conflicts do not enjoy privileges such as prisoner of war status. Additional Protocol II supplements Common Article 3. Additional Protocol II has a more restrictive definition of what constitutes a non-international armed conflict than Common Article 3. Article 1(1) of Protocol II states:

…[the Protocol] shall apply to all armed conflicts which are not covered by Article 1 of [Additional Protocol I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.156

The higher threshold of Additional Protocol II’s definition means that a non-international armed conflict is governed by Common Article 3 and Additional Protocol II if the conflict meets the higher threshold, or by Common Article 3 alone if it does not meet that higher threshold or if states have not ratified Additional Protocol II. The fundamental guarantees against torture and cruel treatment found in Article 4 of Additional Protocol II are customary international law and thus apply even if a state has not ratified the Protocol. 157 Afghanistan ratified Additional Protocol II on 10 November 10 2009. Therefore, the armed conflict that took place from June 2002 to November 2009 was governed by Common Article 3 and customary international law. Since November 2009, Additional Protocol II is also applicable.

154 Tadi , Appeal Judgment supra at para. 70 [emphasis added].

155 Nicaragua Case, supra at 114.

156 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-

International Armed Conflicts (Protocol II), 12 December 1977, Can T.S. 1991 No. 2 (entered into force 7 December 1978) [emphasis added] [Additional Protocol II].

157 Henckaerts & Doswald-Beck, Customary International Humanitarian Law, supra at Rules 87 and 90.

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B. Individual Criminal Liability in International Customary Law and the Crimes Against

Humanity and War Crimes Act

1. Overview This section analyses whether Canadian officials can be liable for their acts in relation to the treatment suffered by detainees transferred to Afghan authorities from Canadian custody under customary international law or the Crimes Against Humanity and War Crimes Act

(CAHWC Act). Canadian officials did not torture or cruelly treat detainees; therefore it must be determined if there is accessory liability on the part of Canadian officials for an underlying offence committed by Afghan authorities. Prior to discussing the elements of a war crime, the relevant provisions of the CAHWC Act will be briefly introduced.158

The CAHWC Act, implementing Canada’s obligations under the Rome Statute of the

International Criminal Court (Rome Statute), came into force in 2000.159 It allows for the prosecution of war crimes, crimes against humanity and genocide within Canada. An individual can be prosecuted for an offence under the CAHWC Act if they are a Canadian citizen or employed by Canada in a military or civilian capacity; if they are a citizen of a state engaged in armed conflict with Canada; where the victim of the offence was a Canadian citizen or a citizen of a state allied with Canada in an armed conflict; or if the person is present in Canada after the alleged crime has been committed.160 The applicable jurisdictional provision with respect to the transfer of detainees by the CF is s.8(a)(i), at the time of the alleged offence a person was “a Canadian citizen or was employed by Canada in a civilian or military capacity.”161

Under ss.4(1)(c) and 6(1)(c) of the CAHWC Act an individual may be prosecuted for a

war crime committed inside and outside of Canada respectively.162 Sections 4(1.1) and 6(1.1) include inchoate offences relating to the commission of a war crime: conspiring or attempting to commit, an accessory after the fact, or counselling in relation to a war crime.163 A war crime is defined by the Act as:

[A]n act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional [i.e., treaty-based] international law applicable to armed conflicts, whether or not it

158 Crimes Against Humanity and War Crimes Act, S.C. 2000, c.24 [CAHWC Act].

159 Rome Statute of the International Criminal Court, 18 December 1998, Can. T.S. 2002 No. 13, 2187 U.N.T.S. 90 (entered into force 1 July 2002) [Rome Statute].

160 CAWHC Act, supra at s. 8.

161 CAWHC Act, ibid. at s. 8(a)(i).

162 CAWHC Act, ibid. at ss. 4(1)(c) & 6(1)(c).

163 CAWHC Act, ibid. at ss. 4(1.1) & 6(1.1).

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constitutes a contravention of the law in force at the time and in the place of its commission.164

Reference is made to Article 8 of the Rome Statute for definition of the specific elements of war crimes as well as to customary international law.165 The Rome Statute provision applicable to the facts is Article 8(2)(c)(i) referring to the offence of torture or cruel treatment occurring in a non-international armed conflict.166 It should be noted that though the Rome Statute is considered descriptive of current customary international law on war crimes, this does not prejudice the application of developing customary international law on war crimes through sections 4 and 6. 2. Underlying Offence: War Crime In the allegations set out above, it is assumed that Afghan authorities tortured or cruelly treated detainees. For Canadian officials to incur accessory liability for their acts, the underlying offence of war crime must be present. Torture and cruel treatment are war crimes. a) Definition A war crime is a “breach of the international law of armed conflict that is regarded as so serious that it entails not just a state responsibility, but individual criminal responsibility.”167 Grave breaches of the four Geneva Conventions in an international armed conflict, such as torture and inhuman treatment, are war crimes.168 Section 3 of the Geneva Conventions Act, which implements the Conventions and their Additional Protocols into Canadian law, provides that every person who commits a grave breach of the Geneva Conventions or Additional

Protocol I is guilty of an indictable offence punishable by up to fourteen years imprisonment.169 If the grave breach causes death, the maximum sentence increases to life in prison. Section 3 of the Act refers to instruments that are only applicable to an international armed conflict and the

164 CAWHC Act, ibid. at ss. 4(3) & 6(3).

165 CAWHC Act, ibid. at ss. 4(4) & 6(4); see also: Schedule in s.2(1) reproducing Arts. 6-8 of the Rome Statute, supra.

166 Rome Statute, ibid. (“In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” at art. 8(1)(c)).

167 Gideon Boas, James L. Bischoff & Natalie L. Reid, Elements of Crime under International Law (New York: Cambrdige University Press, 2008) at 215 [Boas et al., Elements of Crime under International Law].

168 “Grave breaches to which the preceding Article relations shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhumane treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” see: Article 50 of Geneva Convention I, supra; Article 51 of Geneva Convention II, supra; Article 130 of Geneva Convention III, supra; Article 147 of Geneva Convention IV, supra; see also: Article 85 of Additional

Protocol I, supra.

169 An Act respecting the Geneva Conventions, R.S. C. 1949, c. G-3 [Geneva Conventions Act].

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notion of “grave breach” is also not directly applicable in a non-international armed conflict.170 Therefore, since the transfer allegations cover events that took place during a non-international armed conflict, s. 3 of the Geneva Conventions Act is not applicable to determine liability of Canadian officials. Customary international law imposes criminal liability for serious violations of Common Article 3 in a non-international armed conflict; these serious violations constitute war crimes.171 The Rome Statute also has specific provisions establishing criminal responsibility for war crimes in a non-international armed conflict. b) Elements of a War Crime Like domestic crimes, each war crime has specific physical (actus reus) and mental elements (mens rea) that must be proven for an individual to be held liable. However, before an act can be prosecuted as a war crime, some preliminary conditions must be met. First, the act in question must take place in the context of an armed conflict.172 Second, there must be a nexus between the act and the armed conflict.173 Third, for a violation of Common Article 3 of the Geneva Conventions, the victim must not be taking part in hostilities at the time the alleged offence took place. As such, a detainee, who by virtue of their detention no longer takes part in hostilities, meets this third requirement as it is stated in common Article 3.174

With respect to the CAHWC Act the same elements of a war crime apply. In R. c.

Munyaneza, the first prosecution under the CAHWC Act, the Superior Court stated that in order for a war crime to be proven, there must be a nexus between an armed conflict and the prohibited act.175 For Article 8(2)(c)(i) of the Rome Statute to apply, there must be a nexus between the non-international armed conflict and the cruel treatment or torture. The definition of non-international conflict set out above applies to this provision and is articulated in Article 8(2)(d): “[p]aragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”176 Paragraph 3 of Article 8 further limits the 170 Lindsay Moir, “Grave Breaches and Internal Armed Conflict” (2009) 7 Journal of International Criminal Justice 763 (Professoir Moir notes that even if the grave breaches regime of the Geneva Conventions does not extend to non-international armed conflict, it has had an important influence on the development of rules that impose criminal responsibility on individual for acts committed in a non-international armed conflict).

171 Tadi , Appeal Judgment, supra at para. 134; Prosecutor v. Tihomir Bla ki , IT-95-14, Judgment (3 March 2000) at para. 176 (ICTY, Trial Chamber) [Bla ki , Trial Judgment]; Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgment (2 September 1998) at para. 608 (ICTR, Trial Chamber) [Akayesu, Trial Judgment].

172 Boas et al., Elements of Crime under International Law, supra at 232.

173 Prosecutor v. Dragoljub Kunarac et al., IT-96-23 & 23/1-A, Judgment (12 June 2002) at para. 59 (ICTY, Appeals Chamber) [Kunarac, Appeals Judgment].

174 Akayesu, Trial Judgment, supra.

175 R c. Munyaneza, [2009] R.J.Q. 1432 at para. 147.

176 Rome Statute, supra at Art.8(2)(d).

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applicability of Article 8(2)(c), stating that nothing in the provision “shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.”177 Given that torture or cruel treatment cannot be justified for any reason, Paragraph 3 is inapplicable to the circumstances in question.

The nexus concept is a general requirement meaning that military activities do not need

to be occurring at the time and place of the crime.178 It is sufficient that the perpetrator acted in furtherance of or under the guise of an armed conflict taking into account contextual factors such as the status of the perpetrator, the status of the victim, whether the crime served the goal of a military campaign, and whether it was committed in the context of the perpetrator’s official duties.179 The nexus between the act and armed conflict is not a legal evaluation. The perpetrator need only be aware of the factual circumstances that established an armed conflict at the time. They do not need to have considered whether a conflict was of an international or non-international character.180

In addition to the requirement of a nexus with an armed conflict, the prohibited act must

be against an individual or individuals not taking an active part in the armed conflict for Article 8(2)(c) to apply. This refers to civilians, members of armed forces that have laid down their arms, medical personnel, religious personnel and persons hors de combat.181

c) The War Crime of Torture The general prohibition against torture is a peremptory norm of international law.182 The customary international law elements of the crime of torture in both an international and non-international armed conflict are enumerated in the ICTY Furund ija

183 case: (i) The infliction by act or omission of severe pain or suffering,

whether physical or mental;184

177 Rome Statute, ibid. at Art. 8(3).

178 Cryer et al., An Introduction to International Criminal Law and Procedure, supra at 238.

179 Prosecutor v. Rutaganda, ICTR-96-3-A, Judgment (26 May 2003) at para. 569 (ICTR, Appeals Chamber).

180 Boas et al., Elements of Crimes Under International Law, supra at 298; International Criminal Court, Elements of

Crimes, ICC Doc. No. ICC-ASP/1/3(part II-B) (9 September 2002) at 14 [International Criminal Court, Elements of

Crimes].

181 Rome Statute, supra at art.8(2)(c).

182 Prosecutor v. Furund ija, IT-95-17/1-T, Judgment (10 December 1998) at para. 153 (ICTY, Trials Chamber) [Furund ija, Trial Judgment]; see also: Cryer et al,. An Introduction to International Criminal Law and Procedure, supra at 294.

183 Furund ija, Trial Judgment, ibid. at para. 162, in Furundzija, the ICTY Trial Chamber adopted a fifth requirement to the effect that “at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity.” In a 2002 decision, the ICTY Appeals Chamber noted that the “public official” requirement does not reflect the crime of torture during an armed conflict in customary international law, see: Kunarac, Appeal Judgment, supra at para. 148.

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(ii) The act or omission must be intentional; (iii) It must aim at obtaining information or a confession, or at a

punishment, intimidating, humiliating, coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; 185

(iv) The act or omission must be linked to an armed conflict.

In assessing whether the acts amount to torture, consideration should be given to the nature and context of the infliction of pain including the institutionalization of the conduct, the physical condition of the victim, the manner and method used, and the extent the individual has been mistreated over a prolonged period of time.186 The crime of torture is also defined in the Rome Statute and reflects the elements of customary international law set out above. To constitute torture under s.8(2)(a)(ii) (war crime in international armed conflict), the perpetrator must have “inflicted severe physical or mental pain or suffering upon one or more persons” for the purpose of “obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.”187 The elements are the same under s.8(2)(c)(i) (war crime in non-international armed conflict) and the jurisprudence of s.8(2)(a)(ii) is applicable.188 The Rome Statute sets a standard mental element requirement in Article 30, requiring that the material elements for each offence be committed with intent and knowledge.189 Intent means that conduct was either meant to be engaged in, a consequence was either meant to occur or the perpetrator was aware that the consequence will occur in “the ordinary course of events.”190 It is not enough for the perpetrator to anticipate the possibility of the consequence as the words “will occur” set a high standard for the probability of the occurrence of the consequence.191 Knowledge refers to an “awareness that a circumstance exists or a consequence will occur in the

184 Prosecutor v. Radoslav Br anin, IT-99-36-T, Judgment (1 September 2004) at para. 483 (ICTY, Trial Chamber) [Br anin, Trial Judgment].

185 Br anin, Trial Judgment, ibid. at para. 486.

186 Prosecutor v. Krnojelac, IT-97-25-T, Judgment (15 March 2002) at para. 182 (ICTY, Trial Chamber II) [Krnojelac, Trial Judgment II].

187 International Criminal Court, Elements of Crimes, supra at 15, 35.

188 International Criminal Court, Elements of Crimes, ibid. at 35. See also, Chris Byron, War Crimes an Crimes

Against Humanity in the Rome Statute of the International Criminal Court (Manchester: Manchester University Press, 2009) at 177.

189 Rome Statute, supra at Art. 30(1).

190 Rome Statute, ibid. at Art. 30(2)(a).

191 Gerhard Werle & Florian Jessberger, “‘Unless Otherwise Provided’: Article 30 of the ICC Statute and the Mental Elements of Crimes under International Criminal Law” (2005) 3 Journal of International Criminal Law 35 at 41.

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ordinary course of events.”192 Commentators have considered the knowledge requirement to be met, at least in principle, if the perpetrator knows the essential factual circumstances and comprehends the significance of their incriminating conduct.193 For the war crime of torture the mens rea is the intention to inflict severe mental or physical pain or suffering for the prohibited purpose. d) The War Crime of Cruel Treatment

The war crime of cruel treatment is specified in Common Article 3 of the Geneva Conventions, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”194 It is the equivalent of the war crime of inhuman treatment in international armed conflicts and because jurisprudence on its elements often overlaps with discussions of inhuman treatment they are discussed together. This overlap is made clear by the following statement of the ICTY Trials Chamber, “cruel treatment is treatment that causes serious mental or physical suffering or constitutes a serious attack on human dignity which is the equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions.”195 According to the ICRC commentary on the provision it can be understood as a means to an end, “the end being that of ensuring that persons taking no active part in hostilities shall in all circumstances be treated humanely.”196 Other commentators have likewise noted that the essential criterion of this prohibition is the preservation of human dignity and therefore the offence should be interpreted in that regard.197

The European Court of Human Rights’ judgment in Ireland v. the United Kingdom is widely cited as one of the key texts for the interpretation of cruel treatment, albeit in the context of the European Convention on Human Rights and not IHL.198 The Court held that keeping detained individuals in stress positions, the practice of hooding, subjection to noise, sleep deprivation and deprivation of food and drink when applied in combination constituted inhuman or cruel treatment.199 Though the Court did not provide a strict definition though it did distinguish it from torture on a factual basis: “[a]lthough the five techniques, as applied in


193 Gerhard Werle & Florian Jessberger, “‘Unless Otherwise Provided’: Article 30 of the ICC Statute and the Mental Elements of Crimes under International Criminal Law” (2005) 3 Journal of International Criminal Law 35 at 47.

194 Common Article 3 of the Geneva Conventions, supra [emphasis added].

195 Prosecutor v. Zejnil Delalic et al., IT-96-21-T, Judgment (16 November 1998) at para. 552 (ICTY, Trial Chamber) [Celibici Case, Trial Judgment].

196 Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources

and Commentary (Cambridge: Cambridge University Press and the International Committee of the Red Cross, 2004) at 399 [Dormann, Elements of War Crimes].

197 Michael Bothe, “War Crimes” in Antonio Cassesse, Paola Geata & John R.W.D. Jones, eds., The Rome Statute of

the International Criminal Court: A Commentary, vol. 1 (Oxford: Oxford University Press, 2002) at 392.

198 Ireland v. the United Kingdom (1978), 91 E.C.H.R. (Ser. A) [Ireland v. U.K.].

199 Ireland v. U.K., ibid. at para.168.

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combination, undoubtedly amounted to inhuman and degrading treatment…they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.”200 The ICTY has held that inhuman treatment is “treatment which deliberately causes serious mental and physical suffering that falls short of the severe mental and physical suffering required for the offence of torture. Furthermore the offence need not have a prohibited purpose or be committed under official sanction as required by torture.”201 Cruel treatment can therefore be understood and concerned with the fundamental dignity of a person and attaches to those acts that cause severe physical or mental pain but not meet the threshold of torture and/or are not committed with the prohibited purpose required by the definition of torture. With respect to the mental element, the ICTY has suggested that recklessness would constitute a sufficient form of intention for cruel treatment.202

The actus reus of the war crime of cruel treatment also articulated in Article 8(2)(c)(i) of the Rome Statute and is consistent with customary international law on the equivalent provision in Common Article 3 of the Geneva Conventions. The requirements for this offence are that the “perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.”203 The definition described above in relation to customary international law is applicable to the Rome Statute: being acts that cause severe physical or mental pain but not meet the threshold of torture and/or are not committed with the prohibited purpose required by the definition of torture. With respect to the mental element, Article 30 of the Rome Statute also applies to cruel treatment.204 The mens rea is the intention to inflict serious mental or physical suffering and knowledge that serious suffering will occur as a result of the act or omission. It should be noted that this is a higher threshold then the mens rea for the equivalent offence in customary international law.

e) Application to the Facts: The War Crimes of Torture and Cruel Treatment Apply In respect of the situation under study, the three requirements of a war crime are met. There was an armed conflict at the time of the events. The acts in question – transfers by Canadian official and torture by Afghan authorities – are inextricably linked to the armed conflict; indeed, but for the armed conflict, there would be no detainee transfers. The detainees were not taking part in hostilities at the time of the alleged offences; by virtue of their detention, the detainees were hors de combat. With respect to the conduct of Afghan authorities in relation to their treatment of detainees, the elements of the crime of torture are met. Indeed, in light of the many reports from governmental and non-governmental sources and specific allegations, we can safely assume that Afghan authorities, in the context of the ongoing armed conflict, intentionally inflicted severe

200 Ireland v. U.K., ibid. at para. 167.

201 Celibici Case, Trial Judgment, supra at para. 541.

202 Celibici Case, Trial Judgment, ibid. at para. 552; see also: Dormann, Elements of War Crimes, supra at 401.

203 International Criminal Court, Elements of Crimes, supra at 34.


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physical pain and suffering for the purpose of obtaining information or a confession, or intimidating, humiliating or coercing detainees. As acts of torture are necessarily those of cruel treatment regardless of the purpose of those acts, Afghan authorities committed the war crime of torture and cruel treatment. The underlying offence of a war crime in both customary international law and the CAHWC Act is established. We now turn to the question of whether Canadian officials incurred accessory liability for their actions. International criminal law provides multiple forms of accessory liability, which are analyzed below. 3. Aiding and Abetting a War Crime

a) Aiding and Abetting in Customary International Humanitarian Law Aiding and abetting is a form of accessory liability that requires an underlying offence. 205 Torture and cruel treatment constitute the underlying war crime in this case.206 The customary elements of aiding and abetting in a war crime have been enunciated by the ICTY in the Furund ija case; these elements have been applied consistently in the jurisprudence of the international tribunals.207 i. Physical Element (actus reus) There are two components to the actus reus of aiding and abetting. First, the accused must lend practical assistance, encouragement or moral support to the physical perpetrator of the crime of torture or cruel treatment.208 Second, such practical assistance, encouragement, or moral support must have a substantial effect on the commission of the crime by the physical perpetrator.209 For “practical assistance” to exist, there is no requirement of a causal effect with the act of the physical perpetrator.210 Moreover, no evidence of a plan between the aider and abettor and

205 Prosecutor v. Dragoljub Kunarac et al., IT-96-23 & 23/1-T, Judgment (22 February 2001) at para. 391 (ICTY, Trial Chamber) [Kunarac, Trial Judgment].

206 Prosecutor v. Milomir Staki , IT-97-24-A, Judgment (22 March 2006) at para. 315 (ICTY, Appeals Chamber); Boas et al., Elements of Crime under International Law, supra at 272.

207 Furund ija, Trial Judgment, supra at paras. 190-249; Prosecutor v. Du ko Tadi , IT-94-1-T, Judgment (7 May 1997) at para. 666 (ICTY, Trial Chamber) [Tadi , Trial Judgment].

208 Furund ija, Trial Judgment, ibid. at paras. 235, 249; Prosecutor v. Blagoje Simi et al., IT-95-9-A, Judgment (28 November 2006) at para. 85 (ICTY, Appeals Chamber) [Simi , Appeal Judgment].

209 Furund ija, Trial Judgment, ibid. at paras. 235, 249.

210 Simi , Appeal Judgment, supra at para. 85.

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the physical perpetrator is required.211 Proof of practical assistance can be given by direct or circumstantial evidence.212 Concerning the “substantial effect” component, the ICTY indicates that a contribution that has a substantial effect is a “contribution that in fact has an impact on the commission of a crime.”213 The prosecution does not have to prove that the crime would not have been committed but for the accused’s practical assistance.214 The position taken by the international tribunals indicates that for an individual to incur liability for aiding and abetting in torture under customary law, the crime of torture must have been committed. The physical crime must be established for an individual to be held liable, though the physical perpetrator need not have been tried or even identified.215 ii. Mental Element (mens rea) In respect to the mental element, the aider and abettor must have acted with the knowledge – in the sense that he or she was aware – that his or her act would lend assistance, encouragement, or moral support to the commission or probable commission of the crime by the physical perpetrator.216 Also, “it is not necessary that the aider and abettor…know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crime will probably be committed, and one of those crime is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”217 Moreover, the ICTY stated that:

[t]he aider and abettor need not share the mens rea of the principal but he must know of the essential elements of the crime (including the perpetrator’s mens rea) and take the conscious decision to act in the knowledge that he thereby supports [in the sense of “aids”] the

211 Prosecutor v. Milorad Krnojelac, IT-97-25-A, Judgment (17 September 2003) at para. 33 (ICTY, Appeals Chamber).

212 Prosecutor v. Stanislav Gali , IT-98-29-A, Judgment (30 November 2006) at para. 178 (ICTY, Appeals Chamber).

213 Tadi , Trial Judgment, supra at para. 688.

214 Simi , Appeal Judgment, supra at para. 85.

215 Blagojevi & Joki , Trial Judgment, supra at para. 727; Prosecutor v. Zlatko Aleksovski, IT-95-14/1-A, Judgment (24 March 2000) at para. 165 (ICTY, Appeals Chamber) [Aleksovski, Appeal Judgment]; Prosecutor v. Naser Ori , IT-03-68-T, Judgment (30 June 2006) at para. 269 (ICTY, Trial Chamber) [Ori , Trial Judgment]; Br anin, Trial Judgment, supra at para. 273.

216 Prosecutor v. Tihomir Bla ki , IT95-14-A, Judgment (29 July 2004) at para. 49-50 (ICTY, Appeals Chamber) [Bla ki , Appeal Judgment]; Prosecutor v. Mitar Vasiljevi , IT-98-32-A, Judgment (25 February 2004) at para. 102 (ICTY, Appeals Chamber) [Vasiljevi , Appeal Judgment].

217 Bla ki , Appeal Judgment, ibid. at para. 50 (emphsis added); Furund ija, Trial Judgment, supra at para. 246.

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commission of the crime.218 Succinctly, the aider and abettor needs to know, or be aware, that his or her act assists in the commission of the crime and he or she must be aware of the physical perpetrator’s mens

rea.219 The knowledge or awareness does not have to be expressed, it can be inferred from the circumstances.220 The ICTY Appeals Chamber twice rejected a more stringent test where, in addition to having knowledge that his acts assist in the commission of a crime, the aider and abettor would need to have intended to provide assistance, or as a minimum, “accepted that such assistance would be a possible and foreseeable consequence of his act.”221 The mens rea for aiding and abetting in customary international law (knowledge) is wider than in the Rome Statute, which has a purposive requirement. The elements of aiding and abetting in the Rome Statute do not reflect customary law; under the Rome Statute, the liability for aiding and abetting is thus narrower than in custom.222 b) Aiding and Abetting in the CAHWC Act

Aiding and abetting as a form of culpability is not expressly provided for in the CAHWC

Act.223 That being said, it is possible that an aider and abettor may be found liable in the CAHWC

Act as through the customary international law standard set out above. This is because the CAHWC Act does not limit the application of customary law on war crimes that has developed beyond the Rome Statute as s.6(4) states:

For greater certainty, crimes described in articles 6 and 7 and paragraph 2 of article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law, and may be crimes according

218 Kunarac, Trial Judgment, supra at para. 392 [emphasis added]; Prosecutor v. Zlatko Aleksovski, IT-95-14/1-T, Judgment (25 June 1999) at para. 61 (ICTY, Trial Chamber) [Aleksovski, Trial Judgment]; Tadi , Trial Judgment, supra at para. 674; Simi , Appeal Judgment, supra at para. 86; Gideon Boas, James L. Bischoff & Nathalie L. Reid, Forms of Responsibility in International Criminal Law (New York: Cambridge University Press, 2007) at 323 [Boas et al., Forms of Responsibility in International Criminal Law].

219 E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C. Asser Press, 2003) at 89.

220 Prosecutor v. Pavle Strugar, IT-01-42-T, Judgment (31 January 2005) at para. 350 (ICTY, Trial Chamber).

221 Joseph Rikhof, “Complicity in International Criminal Law and Canadian Refugee Law” (2006) 4 Journal of International Criminal Justice 702 at 707; Vasiljevi , Appeal Judgment, supra at para. 102; Bla ki , Appeal Judgment, supra at para. 49.

222 Robert Cryer, “The Boundaries of Liability in International Criminal Law, or ‘Selectivity by Stealth’” (2001) 6 Journal of Conflict and Security Law 3 at 23.

223 See CAHWC Act, supra at s.6(4) incorporating Articles 6 through 8 of the Rome Statute, supra, for the definition of crimes against humanity, genocide and war crimes. Aiding and abetting is provided for in Article 25(3)(c) of the Rome Statute and therefore not incorporated by reference to the CAHWC Act.

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to customary international law before that date. This does not limit or

prejudice in any way the application of existing or developing rules of

international law.224

Customary laws on war crimes can be applicable to the CAHWC Act because the reference to the Rome Statute is not meant to supersede the development of further laws in this area. This reading of ss. 4(4) and 6(4) is supported by the legislative history of the CAHWC Act. For instance, in the committee hearings on the CAHWC Act, Mr. Darryl Robinson, a legal officer at DFAIT responsible for the development of the legislation, testified that the reference to the Rome Statute serves only to guide courts in interpretation: “Canadian courts may apply customary international law. In order to assist the courts, we then guide them to the fact that articles 6, 7, and 8 of the Rome Statute were specifically designed to reflect customary law existing on July 17, 1998. But I should also clarify that those crimes in the Rome Statute are not, and do not purport to be, a complete codification of customary international law.”225

According to Mr. Irwin Cotler, M.P. (special advisor to Minister of Foreign Affairs on the International Criminal Court at the time) the words “for greater certainty” which open the paragraph are meant to be understood in the same manner,

the second thing is to act as a guideline to our courts in the interpretation and application of what may be regarded as customary international law and, as well, not precluding any dynamic development with regard to international law… This is really an interpretive guide for the courts domestically. That's why it says “For greater certainty”, just to make clear what is set forth in articles 6 and 7 regarding the international crimes.226

Both these comments indicate that the CAHWC Act is not to be limited to the Rome

Statute for the interpretation of war crimes but also rely on customary international law that has developed on the issue. Support for the inclusion of international jurisprudence on aiding and abetting a war crime can also be drawn from the Hansard debates on the third reading of the CAHWC Act which set out the principles underlying the Act. Two principles of relevance are individual criminal responsibility founded on the Nuremberg principle, “crimes against international law are committed by men, not by abstract entities, and only by punishing the individuals who commit such crimes can international law be enforced”, and the tenth principle—aiding and abetting, “[p]ersons who aid and abet, counsel, or otherwise assist in the commission of an offence are considered to be parties to that offence.”227 The legislative history

224 CAHWC Act, supra at ss.4(4), 6(4) [emphasis added].

225 Canada, House of Commons, Standing Committee on Foreign Affairs and International Trade, Evidence (1 June 2000) at 1035 (Mr. Darryl Robinson).

226 Canada, House of Commons, Standing Committee on Foreign Affairs and International Trade, Evidence (1 June 2000) at 1035 (Mr. Irwin Cotler).

227 House of Commons Debates (Hansard), No. 113 (13 June 2000) at 1310-1315 (Irwin Cotler).

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demonstrates that it is possible to include customary international law on aiding and abetting a war crime in the CAHWC Act as it does not prejudice the development of custom and its application is in keeping with the underlying principles of the Act. Still, it should be observed that the application of customary international law on aiding and abetting in the CAHWC Act is contestable not only for the fact that the very limited jurisprudence on the Act has never addressed a similar question of interpretation but also that such an interpretation may create a lower standard of mens rea then required by the rest of the Act. Aiding and abetting is conspicuously absent from the inchoate offences in sections 4(1.1) and 6(1.1) discussed in further detail below. For each of those forms of culpability more than mere knowledge is required to meet the threshold mens rea. It was open to the legislature to incorporate Article 25(3)(c) of the Rome Statute, setting out aiding and abetting, at the time of drafting and it did not do so. To briefly summarize, it may be possible to argue that liability for aiding and abetting a war crime can be imposed through the CAHWC Act but this interpretation is certainly open to contestation. c) Aiding and Abetting may Apply to the Facts The underlying war crime of torture or cruel treatment by Afghan officials is established. The physical and mental elements of the offence of aiding and abetting must then be proven. Under aiding and abetting in customary international law, Canadian officials can be liable due to the lower threshold of knowledge. The two requirements of practical assistance and substantial effect that make up the actus

reus are met. The very transfer of detainees lends assistance to the Afghan authorities in the commission of their acts of torture or cruel treatment. This transfer of detainees also has a substantial effect; but for the transfer of detainees by Canadian officials, the Afghan authorities would not have been in a position to commit torture on the detainees transferred by CF. Regarding the mental element, the question that needs to be answered is whether Canadian officials transferred detainees knowing or being aware that Afghan authorities in Kandahar (NDS) were torturing or cruelly treating detainees or if it was probable that such treatment could occur. If Canadian officials – from CF members on the ground in Afghanistan to senior military and civilian officials – knew that detainees would be or could probably be tortured, there are grounds to believe that they could be liable for aiding and abetting as it is established under customary law, through the CAHWC Act. However, CF members who did the actual physical transferring of detainees could invoke the defense of superior orders. The defense of superior order is invalid under both customary international law and the CAHWC Act unless three cumulative conditions are met: a) there is an obligation to obey the order of the superior on the part of the subordinate; b) the subordinate does not have knowledge that the order is unlawful; and c) the order must not have been manifestly illegal.228 The second element is difficult to establish; indeed, it is not easy to establish what the subordinate knew about the legality of the order. 228 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, (New York: Cabridge University Press, 2005) at Rule 155; CAHWC Act, supra at s.14. See also: Cryer et al., An

Introduction to International Criminal Law and Procedure, supra at 342-6.

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In the case of the CF members who transferred detainees, they had an obligation to obey their superiors; it can be argued that they did not know that the order was unlawful since there was an agreement with Afghanistan – however ill-enforced – to ensure the humane treatment of detainees; and there is nothing manifestly illegal in transferring detainees. 4. Other Forms of Liability in the CAHWC Act The CAHWC Act specifies that it is an offence to conspire, attempt to commit, counsel in relation to or be an accessory after the fact to a war crime in sections 4(1.1) and 6(1.1). According to s.2(2) words and expressions used in the Act have the same meaning as the Criminal Code, therefore both subsections must be interpreted within that framework.229 Each element of sections 4(1.1) and 6(1.1) and its application to the facts is discussed separately. a) Conspiracy to Commit an Offence With respect to conspiracy, s.465(1)(c) states that “anyone who conspires with any one to commit an indictable offence…is guilty of an indictable offence.”230 For conspiracy to be made out there must be a meeting of the minds; that is an “agreement between two or more persons to commit an unlawful act.”231 The actus reus is a common agreement between conspirators to commit a criminal offence; this agreement does not need to be explicit and can be implied from the factual circumstances.232 The mens rea for conspiracy is the intention on the part of the accused to enter into an agreement and the intention to put that agreement into effect.233 Mere recklessness is not sufficient to establish the mens rea when there are a number of courses of action being considered and only some of which are illegal.234 As conspiracy requires a meeting of the minds it is difficult to see how this is established on the facts. There is no indication of any form of agreement being reached to conspire to commit the war crime of torture. The Transfer Arrangements in themselves indicate the reverse, despite the inadequacies of the 2005 Arrangement and the failure to remedy those deficiencies immediately. While an agreement to commit an offence does not need to be explicit, it is hard to infer such an agreement on the established facts. One could perhaps argue that the knowledge of torture in Afghan detention facilities and the transfer of detainees to facilities known to be inadequate is an implicit or unspoken agreement of sorts. However, the mens rea requirement of an intention to enter an agreement and put that agreement into effect is still not met. For this to be made out, it would have to be established that Canadian authorities intended to enter into an agreement with Afghan authorities that persons detained by Canada would be tortured once

229 See also: Interpretation Act, R.S.C. 1985, c. I-21 at s.34(2).

230 Criminal Code, R.S.C. 1985, c. C-46, at s.465(1)(c) [Criminal Code].

231 R. v. Alcantra, 2009 ABQB 524 at para. 31.

232 R. v. Papalia; R. v. Cotroni, [1979] 2 S.C.R. 256 at 276.

233 R. v. O’Brien, [1954] S.C.R. 666.

234 R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Que. C.A.).

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transferred to Afghan facilities, and that Canada intended for that agreement to be put into practice. Conspiracy requires more than mere recklessness or facilitation on the part of transferring personnel. There is nothing in the factual background that leads to the conclusion that there was an intention to enter into an agreement to torture detained individuals and therefore the crime of conspiracy does not apply. b) Attempt to Commit an Offence Attempting to commit is specified in s.24 of the Criminal Code,“[e]very one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.”235 The mens rea is an intention to commit an offence and the actus reus is an act or omission in order to carry the offence. There is a distinction between preparation and attempting to commit an offence, for the latter there must be more than mere preparation to meet the threshold actus reus for the offence.236 The distinction between preparation and attempt is a fact based contextual inquiry that can account of factors such as proximity to what would have been the completed offence as well as the nature and quality of the act in question to the potential offence.237 As the actual commission of the crime is not required for this offence, the material element is the intent to commit an offence. Applying this provision to the facts, it requires an intention to commit the offence itself not merely facilitating in the commission or carrying out preparatory acts for the offence. On the established facts, liability under this provision cannot be made out as there is no indication that there was intent on the part of Canadian officials to commit a war crime. Mere knowledge that torture may occur is not enough to make out intention. Nor is recklessness in transferring individuals to face the possibility of torture enough. None of the documents or testimony reviewed in this work demonstrate that Canadian officials intended to commit the war crime of torture. The transfer of individuals to detention facilities where torture may occur could be considered a preparatory act in the commission of the offence in that it aids in the commission of the crime but lacks an intention to carry out that crime, and therefore fails to meet the threshold for attempting to commit a crime. c) Counsel in Relation to an Offence The offence of counselling requires that a person induce another to be a party to a criminal offence and that person subsequently does become a party to that offence.238 The Supreme Court has summarized the actus reus and mens rea requirements:

[T]he actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious

235 Criminal Code, supra at s.24(1).

236 R. v. Deutsch, [1986] 2 S.C.R. 2 [Deutsch].

237 Ibid.

238 Criminal Code, supra at s.22.

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disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.239

The elements set out by the Supreme Court are that a person deliberately encourages or actively induces the principal to commit a crime and that they intended to do so or consciously disregarded the substantial and inherent risk that the crime would likely be committed as a result of their counselling. Counselling is inapplicable to the facts given that the actus reus required is the active inducement or deliberate encouragement of a criminal offence. While the transfer of individuals by CF to Afghan authorities aided the underlying offence of torture or cruel treatment against those individuals, there is nothing to support an allegation that Canadian officials and/or military personnel were deliberately encouraging Afghan officials to torture detained individuals. Facilitation or complicity in a crime does not meet the threshold of deliberate encouragement. The 2005 Arrangement specifies that detainees are to be treated humanly and consistent with the rights and protections of the Geneva Conventions at all times. Though the clear inadequacies of that Arrangement were the subject of much debate, at the very least they cannot be said to actively encourage torture on their face. Furthermore activities such as the actions of CF personnel on 14 June 2006, removing an individual from the custody of the ANP when they learned of his mistreatment as well as the insistence by Canadian authorities that NDS conduct an investigation on torture and/or cruel treatment of detainees after allegations came to light in June 2007, do not indicate active inducement of torture so much as attempts to prevent reoccurrences. Simply put, mere knowledge that offences are occurring is not enough to satisfy the actus reus standard for counselling. d) Accessory to an Offence After the Fact The final form of liability listed in sections 4(1.1) and 6(1.1) of the CAHWC Act is accessory after the fact. This is specified in s.23 of the Criminal Code which creates an offence for a person to “receive, comfort, or assist” an individual that they know has been a party to an offence for the purpose of enabling that person to escape.240 The actus reus for this offence receiving, comforting, or a assisting a person party to an offence for the purpose of enabling their escape. The alleged accessory must have actual knowledge of the offence committed.241 Being wilfully blind by deliberately choosing to not confirm suspicions that the principal has committed the offence is sufficient knowledge to meet the threshold.242 Failure to aid in the apprehension of the principal offender is not significant enough to warrant the application of this

239 R. v. Hamilton, [2005] S.C.R. 432, 2005 SCC 47 at para. 29.


241 R. v. Duong (1998), 124 C.C.C. (3d) 392 (Ont. C.A.) [Duong].

242 Duong, supra; for a full explanation on wilful blindness see the Criminal Code offences section infra.

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provision.243 With respect to the mens rea, in R. v McVay, the Ontario Court of Appeal held that the accessory must have the purpose and not merely the effect of assisting.244 This calls for a specific intent to assist and not mere recklessness. Furthermore, by virtue of s.23.1 of the Criminal Code a person may still be found liable under s.23 whether or not the principal offender was convicted of an offence.245 This is the case even if the principal has been acquitted of the offence.246 The issue is the transfer of individuals by the CF to torture or cruel treatment and therefore accessory after the fact is inapplicable as nothing in the facts suggests that CF personnel were helping individuals that perpetrated torture escape. The lack of proper investigation into claims of torture and the continuation of the transfers despite the known risk of torture do not meet the actus reus requirements for liability to incur because these are not acts to help those who committed the torture escape after the fact, rather these actions are in relation to the commission of the offence and are not relevant for this provision. 5. Command and Superior Responsibility

a) Customary International Humanitarian Law The doctrine of superior responsibility (or command responsibility) is “the means by which superiors may be held criminally responsible in relation to crimes committed by their subordinates.”247 Command/superior responsibility is a:

[f]orm of omission liability: the superior is responsible for failing to prevent or punish crimes committed by his subordinates, as opposed to crimes he has in fact committed, planned, ordered, instigated, or otherwise aided and abetted. Criminal responsibility for omission exists where there is a lawful duty to act and the superior fails to do so.248

The notion of command/superior responsibility is found in customary international law and applies to both international and non-international armed conflict.249

243 R. v. Young (1950), 98 C.C.C. 195 (Que. C.A.).

244 R. v. McVay (1982), 66 C.C.C. (2d) 512 at para. 28.

245 Criminal Code, supra at s.23.1.

246 R. v. S. (F.J.) (1997), 115 C.C.C. (3d) 450, affd [1998] 1 S.C.R. 88.

247 Boas et al., Forms of Responsibility in International Criminal Law, supra at 143.

248Boas et al., Forms of Responsibility in International Criminal Law, ibid. at 143-4.

249 Henckaerts & Doswald-Beck, Customary International Humanitarian Law, supra at Rule 153; Prosecutor v.

Enver Had ihasanovi & Amir Kubura, IT-01-47-A, Judgment (22 April 2008) at para. 18 (ICTY, Appeals Chamber).

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There are three requirements to establish command/superior responsibility.250 First, there must be a superior-subordinate relationship. For a superior-subordinate relationship to exist there must be “effective control”. It appears from the jurisprudence of the international tribunals that the notions of command and subordination are fairly broad.251 Superior responsibility can arise where the superior has legal power, or power in fact over the subordinate.252 In interpreting superior responsibility, the ICTY has stated that civilian superiors are only liable under command responsibility to the extent that they operate as military commanders exercising a military-like degree of control over their subordinates.253 The determination of degree of control for both military commanders and civilian superiors is a fact-based inquiry. The second requirement deals with the accused’s state of mind. The doctrine of command/superior responsibility is not a form of strict liability.254 The superior must have known or had reason to know that a violation was being committed or was going to be committed.255 On the issue of “knowledge”, the Appeals Chamber of the ICTY came to the conclusion that a “superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates.”256 They have further stated that the requisite mens rea is met when the superior, “had in [their] possession information of a nature, which at least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by [their] subordinates.”257 The third requirement is that the accused failed to take the measures that were necessary and reasonable to prevent or punish the act committed by the subordinates.258 What measures qualify as “necessary and reasonable” is linked to the particular situation and is a matter of evidence.259


251 Strugar, Trial Judgment, supra at para. 362.

252 Celibici Case, Trial Judgment, supra at paras. 354, 370.

253 Celibici Case, Trial Judgment, ibid .at para. 370.

254 Prosecutor v. Zejnil Delalic et al., IT-96-21-A, Judgment (20 February 2001) at para. 239 (ICTY, Appeals Chamber) [Celibici Case, Appeal Judgment].

255 Sylvestre v. Gacumbitsi, ICTR-2001-64-A, Judgment (7 July2006) at para. 143 (ICTR, Appeals Chamber); Celibici Case, Trial Judgment, supra at para. 346; Boas et al., Forms of Responsibility in International Criminal

Law, supra, at 200-1.

256 Celibici Case, Appeal Judgment, supra at para. 241.


258 Celibici Case, Trial Judgment, ibid. at para. 346.

259 Bla ki , Appeal Judgment, supra at para. 72.

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b) The CAHWC Act

Like the customary international law on this issue, military commanders and civilian superiors can be held liable for the actions of their subordinates in the commission of a war crime under ss. 5 and 7 of the CAHWC Act. If a military commander fails to exercise proper control over a person under their command and the person commits an offence under ss. 4 or 6, the commander may be liable under command responsibility.260 Additionally if a military commander has knowledge that a person is going to commit an offence or has already committed an offence or was criminally negligent in not knowing and they fail to take all reasonable measures to prevent or further the commission of the offence or fail to submit the matter for investigation they are also guilty of an offence.261 Civilian superiors are likewise criminally responsible if they fail to exert effective control over a subordinate resulting in the commission of an offence under sections 4 and/or 6 or if they have knowledge that a person is either about to or has already committed an offence relating to activities that the superior exercises effective authority over, and they fail to take measures to prevent the offence, its reoccurrence or submit the matter to investigation.262 The term effective control can be interpreted through the customary international law on the issue specified above. It is a fact-based inquiry determining whether military or military-like control of a subordinate is present. Authority, reflected in a hierarchical relationship, is not by itself a sufficient determinative of effective control.263 In addition to authority, the superior must have the ability to prevent and punish offences for the threshold of effective control to be met.264 In jurisprudence of the ICTY, effective control for superior responsibility has been found in cases where civilians were operating in military settings such as civilians operating as de facto commanders of prison camps who are in control of the detainees, officers and guards.265 Rarely has a civilian superior been found liable under superior responsibility in a civilian setting except in the most egregious of cases.266 For instance, the ICTR held that one of the founders of Radio Télévision Libre des Mille Collines who acted as a superior to the station staff was liable under superior responsibility for the actions of his subordinates inciting the Rwandan genocide and

260 CAHWC Act, supra at ss. 5(1)(a)(i)(ii), 7(1)(a)(i)(ii).

261 CAHWC Act, ibid. at ss.5(1)(b)-(c), 7(1)(b)-(c).

262 CAHWC Act, supra at ss.5(2)(a)-(d), 7(2)(a)-(d).

263 Prosecutor v. Sefer Halilovi , No. IT-01-48-A, Judgment (16 October 2007) at para. 59 (ICTY, Appeals Chamber).

264 Celibici Case, Trial Judgment, supra at paras. 256, 378.

265 See: Celibici Case, Trial Judgment, ibid.

266 See: Yaël Ronen, “Superior Responsibility of Civilian for International Crimes Committed in Civilian Settings” (2010) 43:2 Vanderbilt Journal of Transnational Law [forthcoming].

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ethnic violence.267 This is the only case from an international criminal tribunal where an individual was found culpable under superior responsibility in a civilian setting. There is a significant departure between military commanders and civilian superiors. The former may have been ‘criminally negligent’ in not knowing about the commission of a war crime whereas the latter must, “consciously [disregard] information that clearly indicates that such an offence is about to be committed or is being committed by the person.”268 This differential standard in sections 5 and 7 of the CAHWC Act is consistent with the Rome Statute’s distinction between civilian superior and military commander responsibility in Article 28. The higher mens rea required for civilian superiors has been rejected by the ICTR Appeals Chamber, though its acceptance in both the Rome Statute and the CAHWC Act demonstrate that it is the standard for liability under those statutes.269 Due to the rejection of the mens rea for civilian superiors by the ICTR, it is important to keep in mind that on this issue the CAHWC Act and international jurisprudence do not always maintain the same standard. The ICTY has interpreted ‘consciously disregarded’ as having occurred when a superior “simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed or about to be committed.”270 This interpretation is more consistent with the terminology in the CAHWC Act as it requires that the superior be in actual possession of material that demonstrates a crime is going to take place or has already occurred. The precise requirements for a superior or commander to act in response to knowledge that a crime was about to occur or has occurred depend on the scope of the commander’s or superior’s powers. Relevant actions that have been sufficient to meet this requirement include: issuing special orders to prevent international crimes and ensuring their implementation; investigating the possible commission of a crime where there is information indicating it may have taken place; protesting and criticising action; initiating disciplinary measures, and; reporting to and insisting on action from higher authorities.271 From this brief description of the interpretation of command responsibility, it is clear that causation is an essential element in the offence otherwise liability is excluded:

where there is no form of causation, even in the expanded sense that a failure to prevent may facilitate commission. This is perhaps best explained by separating off the general duties a superior has to control subordinates and the specific duties that devolve on a superior when he or she knows or should have known of offences or their imminent commission (to take necessary and reasonable measures to prevent or

267 Ferdinand Nahimana et al. v. the Prosecutor, ICTR-99-52-A, Judgment (28 November 2007) (ICTR, Appeals Chamber).

268 CAHWC Act, supra at ss.5(2)(b), 7(2)(b).

269 Robert Cryer et al., An Introduction to International Criminal Law and Procedure, supra at 325.

270 Celibici Case, Trial Judgment, supra at para. 387 [emphasis added].

271 Ori , Trial Judgment, supra at para. 331.

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repress them. A violation of the former duty is necessary, in the ICC Statute, for either type of liability. It is not necessary, however, for failure to punish liability to arise that the superior violate the specific duties to prevent offences.272

Liability for command responsibility is perhaps best conceptualized as arising where there is a duty by the civilian superior or military commander to intervene and there is knowledge of a criminal act to which that duty attaches. c) Application of Command Responsibility to the Facts

If CF and Canadian officials are found liable for aiding and abetting a war crime, it is possible that command responsibility may also apply to the circumstances. For both command and superior responsibility, the underlying form of liability—aiding and abetting—must be established.273 As stated above, it is possible that aiding and abetting a war crime may apply to these circumstances and, if so, the first requirement is satisfied for both commanders and superiors.

With respect Canadian officials, superior responsibility may be difficult to make out.

Recalling above, civilian superiors must have authority and effective-control of their subordinates for superior responsibility to be established. Authority can be either de jure or de

facto, the former creating a presumption of effective-control.274 It may be possible to find that effective control did exist between civilian superiors and their subordinates who were involved in the monitoring and reporting of transfers. However, in practice the application of superior responsibility appears to be limited to instances of civilians operating in military like settings as commanders or to egregious failures to prevent and punish acts, such as allowing subordinates to incite genocide. While it may be possible, at least doctrinally, to find superior responsibility if Canadian officials were aware of the offence or consciously disregarded information in their possession relating to the offence and further failed to take measures to prevent or punish that conduct, the instances of practical application of this form of liability do not lend support for its use here.

Regarding command responsibility, this is a form of imputed liability, therefore if CF

commanders are found liable for aiding and abetting a war crime this section of the CAHWC Act will not apply.275 The ICTY has stated it is duplicative to find an officer guilty of directly ordering an offence or aiding and abetting an offence as well as hold them liable under command responsibility.276 However, command responsibility may still attach if commanders are not found 272 Robert Cryer et al., An Introduction to International Criminal Law and Procedure, supra at 328.

273 Aiding and abetting a war crime is a form of liability to which command or superior responsibility can attach, see: Ori , Trial Judgment, supra at para. 297.

274 Aleksovski, Trial Judgment, supra at para. 103.

275 See: Greg R. Vetter, “Command Responsibility of Non-Military Commanders in the International Criminal Court” (2000) 25 Yale J. Int’l L. 89 at 99.

276 Bla ki , Appeal Judgment, supra at paras. 91-92.

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liable under aiding and abetting but their subordinates are or could apply to those in positions of authority above theatre commanders who may not have aided and abetted the commission of a war crime but were negligent in their supervision of their subordinates. In both cases it must be demonstrated that commanders were either aware of the acts of their subordinates that amounted to aiding and abetting a war crime or were negligent in not knowing of the acts of their subordinates. From the available information it is reasonable to believe that there may have been knowledge that transfers of detainees to facilities where torture occurred could be considered aiding and abetting. It must also be shown that there was a failure to prevent or punish subordinates for their actions. There is no information on this requirement in the available facts. If neither preventative measures or punishment actions were undertaken it may be possible to find that command responsibility attaches to these circumstances. 6. Summary of Liability in Customary International Humanitarian Law and the CAHWC

Act Members of the CF could be held responsible in customary international law for aiding and abetting a war crime during a non-international armed conflict by transferring detained individuals to torture and cruel treatment. Liability in the CAHWC Act for aiding and abetting a war crime could also potentially attach for these actions. It is also possible that military commanders could be held liable under command responsibility as either an alternate form of liability in the case of theatre commanders or to those above theatre commanders due to negligent supervision.

C. Liability Under the Criminal Code 1. Overview

This section explores whether liability could arise under the Canadian Criminal Code for the transfer of detainees by CF to Afghan custody where they were likely subjected to torture. Several offences under the Criminal Code will be examined. These offences can be divided into two categories: those where Canadian officials were not the principal but might be implicated as an accessory to the offence and those where Canadian officials may be liable as the principal offender.

The section will begin by discussing the jurisdictional issues related to Criminal Code

offences. Subsequently, there will be a general overview of the mental and physical circumstances that may form the basis of the offences that will be discussed. Next, offences to which secondary forms of liability may attach are examined (including torture, assault and uttering threats), as well as the ways in which Canadian officials might be held liable as parties to these offences (including aiding and abetting, counselling, accessory after the fact, attempts and conspiracy). Following this, there will be an analysis of the offences where Canadian officials might be liable as principals, including: criminal negligence causing bodily harm and failing to provide the necessities of life. Finally, possible defences will be discussed.

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2. Criminal Code Jurisdiction Although criminal jurisdiction is generally territorially limited to offences committed in

Canada,277 under section 130 of the National Defence Act278 any member of the CF can be tried

for an offence committed outside of Canada, that would have been triable under the Criminal

Code or any other Act of Parliament had it taken place in Canada. The effect of this provision is to extend the territorial reach of the Criminal Code beyond Canada’s borders as it applies to members of the CF.

The extraterritorial reach of Canadian criminal law with respect to civilian offenders is

also extended to by virtue of the Supreme Court’s ruling in R. v. Libman.279 In this case, the

Court held that Canadian courts have jurisdiction over an offence if “a significant portion of the activities constituting the offence” took place in Canada, such that there is a “real and substantial link” between the offence and this country.280 With respect to certain offences, decisions made by civilians in Canada that had a direct bearing on the transfer of detainees could potentially incur criminal culpability by virtue of Libman.

3. Physical and Mental Circumstances Underlying the Offences All criminal offences are composed of physical elements (actus reus) and mental elements (mens rea), all of which must be present for the offence to be made out. a) Physical Circumstances (Actus Reus) The actus reus elements are the physical circumstances giving rise to the offence. For the purposes of this discussion, there is strong evidence to suggest that some prisoners transferred by CF into Afghan custody were subjected to torture by Afghan officials. There is no suggestion that CF members themselves were directly involved in the torture of detainees. There are also no specific allegations that abuse in Afghan custody lead to the death of a detainee.281 b) Mental Elements (Mens Rea) For each offence, the mental state of the accused is a relevant consideration. There are a number of possible mental states relating to different aspects of an offence that can be broadly categorized as knowledge and intent related mental states. i. Knowledge and Wilful Blindness

277 R. v. Libman, [1985] 2 S.C.R. 178 at para. 11 [Libman].

278 National Defence Act, R.S.C. 1985, c. N-5 [National Defence Act].

279 Libman, supra.

280 Libman, ibid. at para. 74.

281 This possibility should not be discounted completely, given that several human rights reports highlighted the prevalence of extra-judicial killings in Afghan prisons. If evidence later reveals that detainees were killed, other sections of the Criminal Code might be applicable. These provisions include: s. 220 criminal negligence causing death; s. 222(5)(a) unlawful act manslaughter; and s. 222(5)(b) criminal negligence manslaughter.

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Knowledge is a requisite mens rea element for many of the Criminal Code offences that will be discussed in this report. For certain offences, general knowledge of the risk is adequate; for others, specific knowledge with respect to an individual detainee may be required. Even if Canadian officials had no knowledge that specific individuals transferred to Afghan authorities would be subjected to torture, they could have been wilfully blind to this fact. Wilful blindness is a subjective form of mens rea that can substitute for knowledge. The Supreme Court, in R v. Hinchley, held that wilful blindness is an adequate substitute for full knowledge: “if a party has his suspicion aroused but then deliberately omits to make further enquires, because he wishes to remain in ignorance.”282

If Canadian officials knew or suspected that torture was occurring in Afghan prisons, and

failed to inquire into whether specific prisoners were being tortured because they did not want to know, they could be found wilfully blind to this fact. It is notable Canadian officials began receiving allegations of abuse and warnings about detainee transfer practices as early as May 2006. However, it took a full year to amend the inadequate 2005 Arrangement, and a further 5 months to appoint a dedicated prison monitor.283 While the facts are still very much in dispute, it could be that these facts imply that Canadian officials were wilfully blind to torture, in failing to make the appropriate inquiries.

ii. Intent and Recklessness

Intent is also requisite element of the mens rea for most offences. On the basis of the facts as known, there is no indication that Canadian officials intended that detainees be subject to torture. Recklessness is a mental state that can substitute for intent for certain offences. Given there was likely no intent, it is relevant to consider whether Canadian officials were reckless. The concept of recklessness as a form of subjective mens rea was discussed by the Supreme Court in R v. Sansregret: “[recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk.”284 If Canadian officials subjectively foresaw the risk of torture inherent in the transfers, and chose to proceed despite the risk, they could be found to have been acting recklessly as defined by criminal law. Whether or not recklessness is a sufficient replacement for intent will depend upon the particular offence in question.

4. Secondary Liability Offences The acts allegedly perpetrated by Afghan officials against detainees could constitute the actus reus of certain Criminal Code offences, including: torture, assault and uttering threats. Through the act of transferring detainees to torture, Canadian officials might have incurred a degree of secondary liability for their role in these offences. Although the Afghan officials who acted as principals in these offences are not themselves accountable under Canadian criminal law, through section 23.1 of the Criminal Code, Canadian officials could be liable as parties to these offences despite this fact. Section 23.1 reads:

282 R. v. Hinchley, [1996] 3 S.C.R. 1128 at para. 112[Hinchley].


284 R. v. Sansregret, [1985] 1 S.C.R. 570, 45 C.R. (3d) 193 at para. 16 [Sansregret].

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23.1 For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

Sections 21 to 23 apply to aiding or abetting, counselling and accessory after the fact. a) The Underlying Offence of Torture i. Definition

Section 269.1 of the Criminal Code makes torture a criminal offence. The section was first introduced into Canadian criminal law following the ratification of the Convention Against

Torture (CAT) in 1987.285 The provision was implemented in order to fulfil Canada’s obligation under Article 4 of the convention, which states:

4(1) Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. (2) Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. 286

Section 269.1 states the following:

269.1(1) (1) Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (2) Definitions.. “official” means

(a) a peace officer, (b) a public officer, (c) a member of the Canadian Forces, or (d) any person who may exercise powers, pursuant to a law in force in a foreign state, that would, in Canada, be exercised by a person referred to in paragraph (a), (b), or (c),

whether the person exercises powers in Canada or outside Canada; “torture” means any act or omission by which severe pain or suffering,

285 Donald V. Macdougall, “Torture in Canadian Criminal Law” (2005) 24 C.R. (6th) 74 at 2 (WL) [Macdougall, “Torture in Canadian Criminal Law”].

286 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, Can. T.S. 1987 No. 36, 1465 U.N.T.S. 85 (entered into force 26 June 1987) at Article 4 [CAT].

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whether physical or mental, is intentionally inflicted on a person (a) for a purpose including

(i) obtaining from the person or from a third person information or a statement, (ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and (iii) intimidating or coercing the person or a third person, or

(b) for any reason based on discrimination of any kind, but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions. No Defence (3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency.287

Section 7(3.7) of the Criminal Code, a related provision to s. 269.1, “extend[s] the courts jurisdiction to incidents [of torture] that occur outside of Canada.”288 This section extends the reach of this provision beyond those persons covered by section 130 of the National Defence Act to encompass all Canadian citizens.289 This section also extends the courts’ jurisdiction, for incidents of torture that occur outside of Canada, to “the person who commits the act or omission [and are], after the commission thereof, present in Canada”.290 This is significant as Afghan authorities who engaged in acts of torture in Afghanistan could be prosecuted if they were to be present in Canada after the commission of the offence. It is of note that there is no requirement that the underlying torture offence be committed by a Canadian for aiding and abetting to apply to CF conduct outside of Canada. ii. Elements of the Offence

The definition of torture found in the Criminal Code (s. 269.1) is taken from Article 4 of the CAT. Prior to the implementation of s. 269.1, actions that are now included in that section were already offences provided for in other sections of the Criminal Code such as “assault causing bodily harm, aggravated assault, murder, administering a noxious thing, extortion, and intimidation”.291 Although there is no specific description of what constitutes torture in the Criminal Code, the British Columbia Supreme Court considered the following acts to be torture:

287 Criminal Code, supra at s.296.1.

288 Macdougall, “Torture in Canadian Criminal Law”, supra at 8.

289 Criminal Code, supra at s.7(3.7).

290 Criminal Code, ibid. at s.7(3.7)(e).


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being hung upside down, given electric shocks, and making threats that the person would be shot.292

In order to find an individual liable under s.269.1 it first must be established that the

accused was an official as defined in s.269.1(2) or acting at the instigation of or with the consent or acquiescence of an official. Official includes any peace officer, public officer, member of the Canadian Forces, or any person who may exercise powers, pursuant to a law in force in a foreign state, that would, in Canada, be exercised by a peace officer, public officer, or member of the Canadian Forces. Afghan officials who are committing the actual acts of torture could therefore be included as an “official” under s.269.1.

The definition of “public officer” and “Canadian Forces” is found in section 2 of the

Criminal Code:

Public officer” includes (a) an officer of customs or excise, (b) an officer of the Canadian Forces, (c) an officer of the Royal Canadian Mounted Police, and (d) any officer while the officer is engaged in enforcing the laws of Canada relating to revenue, customs, excise, trade or navigation;293

“Canadian Forces” means the armed forces of Her Majesty raised by Canada;294

It must also be proven that the accused by acting, or omitting to act, intentionally inflicted “severe pain or suffering, whether physical or mental” on the complainant.295 It has been suggested that despite the lack of a specific definition for “severe”, it is likely that it must be more than what is required to prove “‘bodily harm’ (s.267) and closer to that required for “aggravated assault” (s.268).”296 Aggravated assault is defined as wounding, maiming, disfiguring or endangering the life of someone.297 It is of note however, that torture under s. 269.1 includes severe mental as well as physical pain and suffering, whereas aggravated assault does not refer to mental suffering. Furthermore, section 269.1 appears to fall under paragraph “a” of “serious personal injury offences” under section 752 of the Criminal Code. 298 This provisions states: 292 India v. Singh [1996], 108 C.C.C. (3d) 274 (B.C. S.C.) at para. 31.


294 Criminal Code, ibid. at s.2.

295 Criminal Code, ibid. at s.269.1(2).


297 Criminal Code, supra at s. 268.(1).

298 David Watt & Michelle Fuerst, The 2009 Annotated Tremeear’s Ciminal Code (Toronto: Thomson Canada Limited, 2008) at 606.

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“serious personal injury offence” means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more.299

This provision may also assist in determining what constitutes “severe.” It is of note that this provision includes psychological injuries similar to s.269.1.

Additionally, it must be shown that the accused inflicted pain and suffering for a prohibited purpose.300 It has been argued that the three purposes listed in the definition (obtaining information, punishing, and intimidating or coercing) are not an exhaustive list.301 Moreover, the “prohibited purpose…must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose.”302 It is of note that the statute provides an exception for acts and omissions that are “inherent in or incidental to lawful sanctions.”303

The requisite mens rea of the torture offence was set out in R c. Rainville.304 The Court of

Quebec stated:

…[translation] the crime of torture requires not only a subjective mens

rea but a specific intent, that is to say the search of a goal or a specific consequence, namely the intent to inflict "severe pain or suffering, whether physical or mental." This intention will be present if the accused is aware that the outcome in question occurs in the normal course of things. [Also] if the accused is reckless in respect of the consequences of his acts or omissions.305



301 Macdougall, “Torture in Canadian Criminal Law”, ibid. at 7.

302 Macdougall, “Torture in Canadian Criminal Law”, ibid. at 7.

303 Criminal Code, supra at s.269.1(2)(b).

304 R. c. Rainville [2001] J.Q. No. 947, cited in Macdougall, “Torture in Canadian Criminal Law, supra at 7 [Rainville].

305 Rainville, ibid. at para. 75.

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The Court held that evidence of “subjective fault and criminal intent” is required.306 Subjective fault “requires the crown to establish that the accused subjectively had the required guilty knowledge in relation to the specific circumstances or consequences.”307 In Rainville, the accused was charged and convicted of unlawfully committing torture. The facts of that case related to squadron captain who conducted a fake terrorist attack. During the simulation, a Regiment Officer was awakened by five armed men who used guns and threats in order to get weapons the Regiment Officer had access to. The Officer was unaware that this was a simulation and was traumatized by the events. The accused argued, in his defence, that he lacked the criminal intent and that his sole intent “[translation] was to fulfil a mission he had been [assigned to do].”308 Despite this argument the court held that:

[translation] It’s the intention to do the act that counts, not the purpose pursued by the accused. A person can be found culpable despite a motivation that is otherwise defendable. 309

Furthermore, the court cited “Traité de droit pénal Canadien” for the proposition that:

[translation] even if we address the mens rea in a subjective manner, we must note that the scale of values of an accused person is irrelevant in determining his moral culpability, what matters is whether the accused is subjectively aware of the consequences of his actions and not if he believed it was justified. 310

On the facts of Rainville, the Court held that Rainville intended to impose “severe pain and suffering” as the aim of the exercise was to cause an unbearable fright in the victim.311 This was enough to find the requisite intent and it made no difference that the accused did not anticipate or realize the “[translated] continued impact that would ensue.”312

The crime of torture in the Criminal Code requires the perpetrator to be an official or acting under the direction of an official, and the act must be done with the intention of inflicting severe mental or physical pain or suffering for a prohibited purpose. It is of note that the elements needed to prove torture under the Criminal Code differ slightly from the requirements under the CAHWC Act. Under the CAHWC Act there is no requirement that the accused be a

306 Rainville, ibid. at paras. 66-71.

307 Kent Roach, Criminal Law (Toronto: Irwin Law Inc., 2004) at 144 [Roach, Criminal Law].

308 Rainville, supra at para. 65.


310G. Côté-Harper, P. Rainville, & J. Turgeon, «Traité de droit pénal canadien » 4e ed. (Éditions Yvon Blais, 1998) at 375, cited in Rainville, supra at para. 67.

311 Rainville, supra at para. 80.


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public official. Therefore it has been stated, “the scope of torture in a crime against humanity in the [CAHWC Act] is broader than torture in the Criminal Code.”313 iii. Application to Facts

In the Afghan detainee case, the detainees claimed that they were beaten with electrical cables, kicked, given electric shocks, cut, burned, shackled ,and made to stand for days at a time with their arms raised over their head by Afghan officials. There was also evidence that detainees suffered mental injuries. It is likely that all of these types of treatment would constitute severe physical and mental pain or suffering as defined in s.269.1, and therefore would constitute torture. Although there is no specific evidence relating to the purpose behind the treatment of the detainees under Afghan authority, based on these allegations and the fact that this treatment occurred while the detainees were imprisoned, it is probable that Afghan authorities were inflicting this severe physical and mental pain for one of the prohibited purposes (obtaining information, punishing, or coercing). Even if it was not done for one of the prohibited purposes, the list is not exhaustive and it would not be difficult to find another prohibited purpose. Therefore the actus reus would likely be made out. Additionally, it is probable, based on the allegations, that the mens rea is made out as pain or suffering was likely intentionally inflicted as the Afghan authorities were arguably aware of the consequences of their acts and even if they were not, it could be argued that they were reckless as to the consequences.

b) The Underlying Offence of Assault Under s. 265(1) of the Criminal Code, “a person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly…”.314 Section 266 makes assault an offence. There are several other offences, predicated on this definition that add additional actus reus and mens rea elements, including: assault with a weapon (s. 267(a)), assault causing bodily harm (s. 267(b)), and aggravated assault (s. 268). A ‘weapon’ is defined as “any thing used… (a) in causing death or injury to any person…”.315 ‘Bodily harm’ is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”316 Aggravated assault is when the act of the accused “wounds, maims, disfigures or endangers the life of the complainant.”317

The acts of torture committed by Afghan authorities, as alleged by the complainants, could fall within the definition of assault under the Criminal Code. With respect to the actus reus of basic assault, the required elements are lack of consent on the part of the victim, and application of force to the person.318 Specific allegations of torture included being hit with cable, 313 Macdougall, “Torture in Canadian Criminal Law”, supra at 4.

314 Criminal Code, supra at s.265(1)



317 Criminal Code, ibid. at s. 268.

318 R. v. Jobidon, [1991] 2 S.C.R. 714 at para. 34.

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having fingernails pulled off, being kicked and other forms of physical abuse. The cable allegedly used to beat detainees likely meets the definition of a weapon for the purposes of s. 267(a). In certain cases, physical signs of trauma were noted and these could meet the definition of bodily harm for the purposes of s. 267(b). On 5 November 2007, CF received an allegation that a detainee was beaten until he passed out. This could arguably fall within the meaning of ‘wounds’ or ‘endangers the life’ for the purposes of aggravated assault. There is no evidence to indicate that in any of these cases, the consent of the victims was given. Even if consent had been given, s. 265(3) states that consent is vitiated where the complainant submits or does not resist by reason of (d) the exercise of authority.319 Since in the prison context, guards and interrogators are in a position of authority, any consent given would be vitiated by this provision. For these reasons, the actus reus of assault, assault with a weapon, assault causing bodily harm and aggravated assault are likely met.

Regarding the mens rea of assault, the accused must have the intent to apply force.320 Given the specific wording of the provision to include ‘intention,’ intent is required and recklessness will not suffice. This intent to apply force on the part of Afghan officials can likely be inferred from the facts because force was applied in several specific situations, was reportedly widely used in Afghan prisons, and there is nothing to indicate that it was unintended.

Based on the facts as known, Afghan officials conducting torture could likely be found

guilty of the offence of assault were they accountable under Canadian law. A discussion of whether liability for this offence would extend to Canadian officials through the act of transferring detainees to assault will follow in the sections below.

c) The Underlying Offence of Uttering Threats

Section 264.1(1) of the Criminal Code creates the related offence of uttering threats, which can be understood as a type of verbal assault. The provision reads as follows:

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person.321

Given that several reports indicated that torture was used as an interrogation technique, it is likely that the actual application of force was preceded or accompanied by the threat of bodily harm or death. The actus reus of this offence includes uttering, conveying or causing a person to receive a threat of death or bodily harm.322 The mens rea of the offence includes knowledge on the part of the accused that the words uttered would be considered threatening, intent to utter the words and intent that that the words be taken seriously.323 Since Afghan officials were likely 319 Criminal Code, supra at s. 265(3)(d).

320 R. v. Deakin (1974), 16 C.C.C. (2d) 1 at para. 31.

321 Criminal Code, supra at s. 264.1(1)(a).

322 R. v. Taylor, [1998] B.C.J. No. 2988 (Prov. Ct. (QL)) at para. 46 [Taylor].

323 Taylor, ibid. at para.47.

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using torture as an interrogation tactic, it is conceivable that they were also using threats and could have fulfilled all of the required elements of this offence. As with assault and torture, Canadian officials might have accrued some secondary form of liability for this offence through detainee transfers. d) Secondary Liability: Aiding and Abetting

There are a number of similarities between aiding and abetting under international law, discussed above, and under domestic criminal law. However there are also some notable differences. Section 21 of the Criminal Code stipulates that:

21. (1) Every one is a party to an offence who

(a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.324

An individual who is found to have aided or abetted an offence is as guilty of the same offence as the person who actually commits it (‘principal’).325 Aiding is defined as “giving some assistance in the commission of a crime.”326 Abetting is defined to include “encouraging, instigating, promoting, or procuring the crime to be committed.”327 In order to be found liable, the accused must assist the principal but also have the intention of assisting the principal in the crime.328 In R. v. Hick, the Supreme Court held that the acquittal of a principal is not conclusive as to the liability of the aider or abettor.329

The Supreme Court of Canada, in R v. Hibbert, held that purpose in the aiding and abetting provision (s. 21(1)(b)) means with intention, not with desire that the offence be committed. 330 The Court went on to state:

While the criminal code does not contain a definition of either “purpose” or “intention”, the normal meaning of those words suggests that a person must subjectively advert to a specific objective and that he or she, therefore, must have knowledge of the facts that constitute the objective.331


325 Roach, Criminal Law, supra at 128.

326 R v. Greyeyes [1997], 116 C.C.C. (3d) 334 at 344 [Greyeyes], cited in Roach, Criminal Law, ibid. at 129.

327 Greyeyes, ibid. at 344.


329R. v. Hick [1991] 3 S.C.R. 383, 7 C.R.(4th) 297 at para. 6.

330 R v. Hibbert [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193[Hibbert].

331 Hibbert, ibid. at para. 28 [emphasis added].

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The Ontario Court of Appeal, in R v. Helsdon, confirmed that purpose means the same as intention.332 In this case, they also clarified that despite the lack of language such as “for the purpose” in section (c), abetting also requires proof of intent to encourage the principal.333 Moreover, the court stated that “a requirement that the accused do something for the purpose of achieving a prohibited result imposes a high degree of subjective mens rea.”334 The Supreme Court in R. v. Dunlop stated:

A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended… One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned.335

It has also been stated that the individual is not required to have known all of the details of the crime committed.336 Furthermore, “It is sufficient that he or she was ‘aware of the type of crime intended to be committed’” and knew “the circumstances necessary to constitute the offence he is accused of aiding.”337 The Ontario Court of Appeal in R v. Roach stated, “purpose is synonymous with intent and does not include recklessness. The mens rea for liability as an aider includes actual knowledge or wilful blindness, but not recklessness”.338 This indicates that there is a high level of mens rea required in order to find the accused guilty of aiding and abetting.339 The reasoning behind this is to ensure that no person is convicted without the sufficient level of fault.340

As this report was being finalized, the Supreme Court decided R. v. Briscoe. In that case it affirmed that the mens rea for aiding and abetting included two elements: “intent” and “knowledge”. For intent to be demonstrated, “[t]he Crown must prove that the accused intended to assist the principal in the commission of the offence”, although there is no need to show that he or she actually desired that outcome. For knowledge, the accused “must know that the

332 R. v. Helsdon, [2007] 45 C.R. (6th) 37[Helsdon] [emphasis added].

333 Helsdon, ibid.

334 Helsdon, ibid. at para 28 [emphasis added].

335 Dunlop and Sylvester v. The Queen [1979] 2 S.C.R. 881, 47 C.C.C. (2d) 93 at 110 [Dunlop, cited to C.C.C.].


337 R. v. Yanover, [1985] 20 C.C.C. (3d) 300 at 29; R v. F.W. Woolworth Co. [1974], 18 C.C.C. (2d) 23 at 32, cited in Roach, Criminal Law, ibid. at 131.

338 R. v. Roach (2004), 192 CCC (3d) 557, cited in Roach, Criminal Law, ibid. at 132 [Roach].

339 Roach, ibid.


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perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed”. This knowledge requirement may also be satisfied where the accused is willfully blind of the underlying criminal intent of the principal.341 It is of note that under international law, as stated above, the ICTY Appeals Chambers has rejected the stringent test for mens rea that requires intent in addition to knowledge. In order to make out the mens rea for aiding and abetting torture under customary international law, all that is required is that the aider or abettor have knowledge or awareness that they are assisting in the commission of the crime. 342 The aider or abettor is not required to have the same mens rea as the principal to the crime.343 Moreover, knowledge or awareness can be inferred from the circumstances and need not be expressed.344 It is clear however that in Canadian domestic law intent is required to establish the mens rea of the offence. i. Application to the Facts In order to be held liable as an aider and abettor in the above offences, it must be established that Canadian officials’ knew of the Afghan authorities’ practice of torture and had the intent to transfer the detainees to torture. It must also be shown that their continuance in transferring detainees was enough to establish the requisite actus reus and mens rea of the offence.

It is likely that Canadian officials had the requisite actus reus for aiding in the offences, as they transferred the detainees to the Afghan authorities who then proceeded to torture the detainees. Had they not transferred the detainees, the underlying offences would not have taken place.

It appears unlikely that Canadian officials had the requisite mens rea to be held liable for aiding the offences. As previously mentioned, s.21(1)(b) requires a high degree of subjective mens rea in order to find the accused guilty and there is no evidence of specific intent to aid or abet Afghan officials in committing torture. As previously mentioned, in all crimes that require a subjective element of fault, the crown must establish that the accused subjectively had the required guilty knowledge and intent in relation to the specific circumstances or consequences. There must be an intention to aid or abet the commission of the offence. At worst, it can be argued that Canadian officials had knowledge that detainees might be getting abused in Afghan prisons, or at least that the types of crimes that would be committed, and the circumstances necessary to constitute the offence. Recklessness, however, is insufficient to give rise to liability for aiding and abetting.

341 R. v. Briscoe, 2010 SCC 13 at paras. 16 and 17 et seq.

342 E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C. Asser Press, 2003) at 89.

343 Kunarac, Trial Judgment, supra at para. 392; Aleksovski, Trial Judgment, supra at para. 6; Tadi , Trial Judgment, supra at para. 674; Simi , Appeal Judgment, supra at para. 86.

344 Strugar, Trial Judgment, supra at para. 350.

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The difficulty in proving intent for aiding and abetting torture is reflected in a case that arose in 1993, when the CF were stationed in Belet Huen as part of Operation Deliverance. During this time, a Somalian (Shidane Arone) was captured, tortured and killed by CF. A number of soldiers were charged including Private David Brocklebank who was charged with negligent performance of a military duty and torture and was acquitted of both the charges.345 This case is relevant to the situation in Afghanistan, since Private Brockelbank was not involved as a principal in the crimes.346 The case turned on whether he could be found to have aided and abetted the crime. Private Brocklebank’s charges related to his presence in the bunker where Master Corporal Clayton Matchee was torturing Arone. Private Brocklebank handed over his sidearm to Matchee, which was used to shoot Arone. Justice Decary of the Court Martial Appeal Court (CMAC) spoke to the issue of aiding and abetting in the commission of torture under s.72 of the National Defence Act (the aiding and abetting provision) and s.269.1 of the Criminal

Code, and stated:

In order to be found guilty of the offence of aiding and abetting in the commission of torture, the panel had to be convinced beyond a reasonable doubt Brocklebank a) did or omitted to do something; b) for the purpose of aiding Matchee in the Commission of the offence of torture. 347

He went on to find that there was no evidence to establish that Brocklebank “had formed the intention required to commit the offence.”348 Therefore, the Judge Advocate ought to have “granted defence counsel’s motion of no prima facie case by the prosecution with respect to the [torture] charge.”349

As previously stated, this case illustrates that it is very difficult to establish the requisite mens rea for the purpose of aiding and abetting even when the accused is present and actively contributes to the circumstances that allow the offence to be committed. Since there was no evidence of a specific intention to aid or abet torture, assault, or uttering threats, it is unlikely that Canadian officials would be found guilty of aiding or abetting any of these offences.

e) Secondary Liability: Counselling

As discussed in the context of the CAHWC Act, it is unlikely that Canadian officials could be found guilty of counselling Afghan authorities to torture, assault or threaten detainees, since there is no evidence that Canadian officials did anything to actively induce any of the impugned acts, they simply contributed to the conditions that facilitated the commission of the


346 R. v. Brocklebank (1996), 106 C.C.C. (3d) 234 (Can. Ct. Martial App. Ct.) [Brocklebank].

347 Brocklebank, ibid. at para 9.



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offences. Since there is no evidence of active inducement of torture, but rather evidence to the contrary, the actus reus requirement of counselling the offences is not made out.

f) Secondary Liability: Accessory After the Fact

As indicated in the CAHWC Act section, a person can be liable as an accessory after the fact by assisting the principle offender for the purpose of enabling them to escape.350 It could be argued that in failing to adequately investigate allegations of abuse, Canadian officials assisted Afghan officials to escape culpability under Afghan or international law for the use of torture. However, as indicated above, the required mens rea is intent and recklessness will not suffice. Since there is no evidence to suggest that Canadian officials were intentionally assisting Afghan officials to escape liability for torture, it is unlikely that Canadian officials would be held culpable as accessories after the fact to torture, assault or uttering threats.

g) Secondary Liability: Attempts As previously mentioned in the section relating to the CAHWC Act, it is unlikely that Canadian officials would be held liable for an attempt, by transferring detainees to Afghan authorities where they are subsequently tortured, as the requisite mens rea for an attempt is intent to commit the completed crime. It appears that knowledge and/or recklessness would not suffice as it requires a more specific intent to commit the crime. On the facts, it does not appear that the Canadian officials had the specific intent to transfer detainees to torture, as they likely only had knowledge and/or were reckless. h) Secondary Liability: Conspiracy

As previously stated in the section relating to the CAHWC Act, it is unlikely that Canadian officials would be found culpable for conspiring to commit torture, assault or uttering threats. There is no evidence of an agreement between the Government of Canada and the Government of Afghanistan, or any of their representatives, to commit torture, assault, or uttering threat, therefore the actus reus is not met. Furthermore, there does not appear to be any intention to agree to put a common design into effect on the part of Canadian officials in relation to these crimes. The 2005 and 2007 Arrangements arguably suggest the opposite, an agreement not to commit the offence. i) Conclusions with Respect to Secondary Liability

It is unlikely that Canadian officials could be held culpable under the Criminal Code

provisions relating to torture, assault or uttering threats, given that they were not principals with respect to the offences and lacked the elevated mens rea of intent that is required to convict non-principal parties to an offence.

5. Offences as Principal

a) Criminal Negligence Causing Bodily Harm Another area of potential liability for Canadian officials for the transfer of detainees to torture is under section 221 of the Criminal Code – criminal negligence causing bodily harm. Criminal negligence is defined in section 219:


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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.

(2) For the purposes of this section, “duty” means a duty imposed by law.351

In terms of the actus reus, this offence requires an act or omission that shows wanton or reckless disregard for the lives or safety of other persons. The conduct must be ‘wanton’ or ‘reckless’ but not necessarily both.352 There must also be a causal link between the impugned act or omission and the bodily harm suffered. The Supreme Court has established that the mens rea of this offence is objective and requires a “marked and substantial departure” from the standard of care of a reasonable person in the circumstances.353 No individual factors short of incapacity should be considered.354 Furthermore, the bodily harm must be a reasonably foreseeable consequence of the act or omission.

For the purposes of this discussion, there are a number of acts and omissions on the part of Canadian officials that may have given rise to liability under this offence. These acts and omissions will be discussed and evaluated individually.

i. The Act of Transferring Detainees

In terms of the actus reus, the act of transferring detainees into Afghan custody despite the risk of torture showed a disregard for the lives or safety of detainees given the human rights reports of the prevalence of torture in Afghan prisons. It is unclear however, whether that disregard was wanton or reckless, given that there were procedures and arrangements in place to guard against torture, even if those procedures and arrangements proved to be inadequate.

In terms of the mens rea, the question of whether this act showed a marked and

substantial departure from the standard of care of a reasonable person can be gauged in this case by comparison with the detainee transfer practices of other states involved in Afghanistan. According to Colvin’s testimony, Canada’s detainee transfers varied from those of other NATO countries in five key respects. First, Canada took and transferred far more detainees than any other country. Second, Canada did not monitor its own detainees after their transfer as the 2005

Arrangement had no provision to this effect, instead reliance was placed exclusively on the AIHRC and ICRC to monitor detainees. Third, Canada was slow to report to the ICRC when a transfer had taken place, sometimes taking months to report when Dutch and British officials reported transfers within 24 hours, and detainees received no monitoring during this lag period.


352 R. v. Lebedynski (1984), 28 M.V.R. 20 (B.C. C.A.).

353 R. v. J.F., 2008 SCC 60 at para. 9 [J.F.].

354 R. v. Creighton, [1993] 3 S.C.R. 3.

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Fourth, Canada had unusually poor record keeping, such that ICRC were often unable to find the detainees transferred from Canadian custody. Finally, CF, unlike the United Kingdom and the Netherlands forces, cloaked detainee practices in secrecy, refusing to reveal information such as numbers of detainees taken in the interests of operational security.355 These differences indicate that Canada’s detainee transfer practices were a departure from a reasonable standard in the circumstances and in light of serious concerns regarding torture.

The trier of fact would have to determine whether or not this departure constitutes a

marked and substantial departure, such as to establish the requisite mens rea for criminal negligence. It is unclear whether this threshold is met. One could argue that the fact that other states were also transferring detainees into Afghan custody, despite the strong evidence of torture, suggests that the Canadian practices may not have been such a departure as to elevate the conduct to the standard of penal negligence. Conversely, one could argue that given the greater volume of detainee transfers carried out by Canada, the vast delays in reporting transfers to the ICRC, the inadequacy of record keeping on the part of Canadian officials and the lack of follow-up monitoring under the 2005 Arrangement, this departure could be considered marked and substantial, in light of the severity of the consequences. In this respect, it is possible that the act of transferring detainees to a risk of torture could constitute criminal negligence by Canadian officials. ii. The Act of Continuing Detainee Transfers after Allegations of Torture Received It could also be argued that the act of continuing detainee transfers after allegations of torture had been received showed wanton or reckless disregard for the lives or safety of detainees. This act could arguably attach culpability not only to decision-makers in the CF, but also to civilian decision-makers through the rule in Libman as explained above, if a significant portion of the offence occurred in Canada. If it was shown that negligent decisions to continue transferring detainees in light of evidence of torture were made by civilian officials in Canada, it is possible that this standard will be met and civilian officials could be tried in Canada. In terms of actus reus, this act could arguably be considered a reckless disregard for the lives or safety of others, given that transfers continued after several allegations of torture had been received. If it were determined that the response to allegations was inadequate, the actus

reus for this offence could be made out through the continued transfers.

In terms of mens rea, the issue of culpability for this act turns on whether the response to allegations and the continuation of detainee transfers demonstrated a marked and substantial departure from the conduct of a reasonable person. Colvin first started warning of the inadequacy of detainee transfer practices in May 2006. Several allegations of torture emerged after he had begun delivering warnings, including those in Graeme Smith’s April 2007 article. In May 2007, the new Transfer Arrangement was reached; however, a dedicated monitor was not appointed until October 2007 and in the intervening time more allegations of torture were received and transfers were finally suspended in November 2007. It took approximately 12 months between the beginning of Colvin’s warnings and the signing of a new transfer arrangement. It was another five months after that before a dedicated monitor was appointed. Given the severity of the


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consequences of failing to halt transfers or modify arrangements, these delays could be viewed as unreasonably long, and the response could be seen as falling below a reasonable standard. Conversely, it could also be argued that because transfers were halted following the credible allegation in November, a new Arrangement was eventually reached and most of the allegations of torture were reported and/or investigated, this behaviour may not be such a departure such as to constitute criminal negligence. A more thorough analysis of the response to allegations would be required to establish whether this threshold was or was not met, however, liability will again turn on the question of whether this behaviour constitutes a marked and substantial departure. iii. Omitting to Fulfil Legal Duties Omitting to fulfil a legal duty may also give rise to a criminal negligence charge if the omission shows a wanton or reckless disregard for the lives or safety of others. The duty must be one imposed by the common law or by statute on the individual charged.356 If a legal duty was created by one of the statutes discussed in this report, or another statute, the duty was breached and the breach of the duty showed a wanton or reckless disregard for the lives or safety of others,

then the breach could constitute criminal negligence.357

One possible source of a legal duty is section 217 of the Criminal Code which provides that: “every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.”358 In R. v. Browne, the Court established that “before someone is convicted of recklessly breaching a legal duty generated by his or her undertaking, that undertaking must have been clearly made, and with binding intent.”359 Although likely not binding at international law, the 2005 and 2007 Arrangements might be understood as having the binding intent required to constitute ‘undertakings’ for the purposes of section 217. Since these Arrangements provide that detainees be treated in accordance with the Geneva Convention III and that adequate written records be maintained, and its arguable these requirements were not met, this could be understood as a failure to fulfil a legal duty.360 If it were determined that this omission showed wanton or reckless disregard for the lives or safety of others, it could constitute the actus reus for criminal negligence.

iv. Conclusion Regarding Acts and Omissions

356 R. v. Coyne (1958), 31 C.R. 335, (N.B. C.A.).

357 Leblanc v. R. (1975), 29 C.C.C. (2d) 97 (S.C.C.).

358 Criminal Code, supra s.217.

359 R v. Browne, 33 O.R. (3d) 77 (Ont. C.A.).

360 Article 12 of the Geneva Convention III provides that “prisoners of war may only be transferred… after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.” Since there it was likely known that Afghan officials engaged in torture, and Article 3 provides that in the case of a non-international armed conflict, persons taking no active part in the hostilities, including detainees, be treated humanely and not be tortured, Article 12 could arguably have been breached. (As previously discussed the convention does not apply in the context of a non-international armed conflict and so this breach would have no legal effect at international law); see: Geneva Convention III, supra at Articles 3 & 12.

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It is possible that the acts of transferring detainees despite the risk of torture, the act of continuing transfers after allegations were received or the omission of duties imposed by law could give rise to criminal negligence charges if these acts or omissions showed wanton or reckless disregard for the lives or safety of others, and the acts or omissions demonstrated a marked and substantial departure from a the standard of a reasonable person in the circumstances. v. Causation

This offence also requires a causal link between the negligent act or omission and the bodily harm suffered. The Supreme Court held in R v. Smithers that in order to establish causation, the accused’s act need merely be a “contributing cause… outside the de minimis

range.”361 In R v. Nette, Arbour J. for the Supreme Court held that the test for causation should be whether the act was a “sufficient contributing cause”, which has been understood as a restatement of the Smithers test.362 In Nette, Arbour J. clarified that determining causation requires an inquiry into factual and legal causation. Factual causation is concerned with whether the accused was a significant medical, mechanical or physical cause of the result. Legal causation deals with whether the accused should be held responsible for the result.363

In the circumstances, transfers were a significant contributing cause of torture, because without the transfers, the detainees would not be in Afghan custody. A failure to investigate certain allegations and halt transfers could also be considered a significant contributing cause of subsequent cases of torture. It is therefore likely that factual causation could be made out. In terms of legal causation, the issue is whether the bodily harm could be fairly imputed to the Canadian military or civilian decision makers responsible for the transfers. Given their role in creating policy for the CF in Afghanistan, and the severity of the consequences of their decisions, it seems likely that it would be fair to impute responsibility for the bodily harm to Canadian officials.

b) Failing to Provide the Necessities of Life Another area of potential liability of Canadian officials for the transfer of detainees to torture is s. 215 of the Criminal Code. Section 215 creates a legal duty to provide the necessaries of life to certain persons and creates an offence in failing to fulfil this duty. The provision stipulates:

215. (1) Every one is under a legal duty… (c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life.

361 R. v. Smithers, [1978] 1 S.C.R. 506 [Smithers].

362 R. v. Nette, [2001] 3 S.C.R. 488 [Nette]; Don Stuart, Canadian Criminal Law: A Treatise (Scarborough: Thomson Carswell, 2007) at 145 [Stuart, Canadian Criminal Law]

363 Stuart, Canadian Criminal Law, ibid. at 146.

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(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if

(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.364

If Afghan authorities fell under the jurisdiction of the Criminal Code, their acts of torture could arguably make out this offence since alleged interrogation tactics used on detainees included: light deprivation, starvation, subjection to extreme cold and forcing detainees to stand for days and arguably ‘necessaries of life’ include adequate shelter, food, warmth and rest. However, Afghan officials are not subject to Canadian penal laws, and as discussed previously, the Criminal Code would likely not extend liability to Canadian officials for acts performed by Afghan officials where there is no intent on the part of Canadian officials that these acts be performed. There can therefore be no culpability under this provision for the acts of Afghan officials. There is however, a possibility that this provision could be applied to Canadian officials as the principal offender, with regards to the acts of Canadian officials while the detainees were in Canadian custody. Since the provision creates a duty to provide necessaries of life in detention situations and the CF held the prisoners in detention in temporary facilities prior to their transfer, this duty was likely triggered. If it could be shown that transferring detainees to torture constituted a failure to uphold this duty, Canadian officials could be potentially liable under section 215(2). i. Nature of the Duty The nature of this duty has been interpreted fairly broadly. In R. v. Peterson the Ontario Court of Appeal held that the phrase “necessaries of life” includes: food, shelter and medical attention necessary to sustain life, as well as protection from harm.365 It is arguable that in transferring detainees to Afghan custody where they faced a possibility of torture, Canadian officials failed to protect the detainees from harm. The obligations with respect to this duty are driven by the facts and context of each case.366 On the facts of the case, it could be argued that transferring detainees to Afghan authorities posed a real and substantial risk of harm. In the context of IHL, which forbids the use of torture and the elevation of this prohibition to the status of jus cogens, protection from torture likely falls within this duty to protect from harm.367 Conversely, it could be argued that while in Canadian custody, the detainees were protected from harm, and it was only after they were transferred out of Canadian custody did the risk of harm incur, therefore this risk of harm did not fall within the scope of the duty. This argument is

364 Criminal Code, supra at s.215 [emphasis added].

365 R. v. Peterson (2005), 34 C.R. (6th) 120 at para. 34 [Peterson].

366 Peterson, ibid.

367 John H. Currie, Public International Law, 2d ed. (Toronto: Irwin Law, 2008) at 175.

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weakened, however, by the fact that the Afghan custody of detainees flowed directly from Canadian custody without interruption, and so the decision to transfer was directly linked to the treatment detainees received once they left Canadian custody. This concept of ‘protection from harm’ has not been interpreted in many cases and therefore it is unclear whether or not the transfer of detainees to a risk of torture would constitute a failure of this duty. ii. Elements of the Offence The offence created by s. 215(2) imposes liability where failure to fulfil the duty endangers the life, causes or is likely to cause the health of that person to be injured permanently. If the transfer of detainees constituted a failure of this duty, it must then be established that this breach endangered the life or risks permanent injury to the person to whom the duty is owed. There is evidence that detainees showed physical signs of injury, mental illness and traumatization. In this sense, the transfers arguably caused permanent injury to the health of detainees. In any case, the likelihood of these types of abuses causing permanent physical and mental injury is real. Given that the offence requires only a likelihood that the life or health of the person be endangered, this element of the offence is likely met.

The mens rea for this offence is objective as set out by the Supreme Court in R v. Naglik.

368 It requires that the conduct show: “a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other.”369 This also involves an evaluation of whether, in the circumstances, the person could have acted otherwise.370 As discussed with respect to criminal negligence causing bodily harm, the reasonableness of Canadian transfers can be evaluated in light of the transfer practices of other countries involved in Afghanistan. Canadian practices fell below the standard set in terms of protecting detainees from harm, and Canadian officials could certainly have acted otherwise to reduce the risk of harm by implementing better monitoring procedures, and communication practices both within the Canadian government and with the ICRC. Culpability will turn on whether Canadian practices showed a marked departure from the reasonable standard in the circumstances. The marked departure standard required for this offence is lower than the marked and substantial

departure required to make out criminal negligence.371

It is possible that Canadian officials could incur culpability under s. 215 for the transfer of detainees into Afghan custody. A court might find that Canadian officials failed in their duty to adequately protect detainees from harm, that this breach endangered the life or health of the detainees, and as such the act of transfer could be considered a deprivation of the necessities of life. It is unclear, however, whether this breach amounted to a marked departure from the

368 R. v. Naglik, [1993] 3 S.C.R. 122 at paras. 37, 51, 33.

369 Peterson, supra at para. 35.

370 Peterson, ibid. at para. 36.

371 J.F., supra at para. 16.

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standard of an ordinary person in the circumstances, when Canadian practices are compared with those of other states. 6. Defences

As previously mentioned in the CAHWC Act section, CF members who did the actual transferring of the detainees may be able to invoke the defence of superior orders. Under s.14, this defence is available if the individuals did not know the order was unlawful. Arguably, CF personnel who did the transferring did not know that the order was unlawful as there are arrangements to ensure against torture. CF commanders who made the orders could not invoke this defence.

It is unlikely that this defence could be used successfully if they were charged with aiding

and abetting torture as s. 269.1(3) states that there it is no defence that the accused was following orders of a superior or public authority. Moreover, it is not a defence to argue that there were exceptional circumstances such as war, internal political instability or any other public emergency. Therefore, it is unlikely that this defence could be used successfully if prosecuted for torture under s.269.1.

7. Conclusion

It will be difficult to find culpability for the offences discussed in which Canadian officials were not the principals, since the requisite mens rea for being party to an offence is high and many forms of secondary liability under the Criminal Code require specific intent rather than mere knowledge or recklessness. As there is no evidence of any intent or purpose to commit torture, assault, or uttering threats, it is unlikely that Canadian officials will be held liable for being party to these offences despite possibly having knowledge of the dangers of transferring detainees to Afghan authorities. The most likely avenue for finding liability under the Criminal

Code would be for those offences where Canadian officials could arguably be held liable as principals to the crime. As discussed, Canadian officials might be held culpable for criminal negligence causing bodily harm or for failing to provide the necessities of life. D. Liability Under The National Defence Act 1. Overview This section will examine the potential legal liability for members of the CF under the National Defence Act. First, the scope of the Act and the scale of punishments under it will be explained. Secondly, the various offences that may be applicable will be explored in order to determine potential areas of legal culpability. 2. Scope of, and Punishments Under the National Defence Act

The Code of Service Discipline (CSD) constitutes Part III of the National Defence Act, and provides the basis of the CF military justice system. Only persons subject to the CSD may be charged under the National Defence Act. CF members, and in some limited cases that are not applicable in the current context, civilians working for the CF are subject to it.372 A person

372 National Defence Act, supra at s.60(1). The limited cases that apply to civilians deal strictly with those who are (e) filling the role of an officer or non-commissioned member; (f) a person accompanying the CF on active service;

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becomes subject to the CSD as soon as they join the CF, and their legal liability for acts committed while so employed continues after the period of employment ceases.373 The CSD is translated into binding military duties for those subject to it by virtue of the Queen’s Regulations

and Orders (QR&O), and Defence Orders and Administrative Directives (DAOD), among others, which are issued by the Governor in Council under s.12 of the National Defence Act. The CSD creates numerous offences, deemed “service offences,” that are uniquely military in nature and triable internally within the CF either summarily or by court martial.374 A “service offence” is defined as an offence under the National Defence Act or other federal laws that is committed by a person while subject to the CSD.375 Service offences carry criminal liability for acts that “pertain directly to the discipline, efficiency and morale of the military.”376 Many of the acts made illegal under the CSD would either not be illegal if performed by a civilian, or would give rise only to civil liability. The Supreme Court noted that “[m]any offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment.”377

As noted above, the Criminal Code is incorporated into the jurisdiction of the military justice system by s.130 of the National Defence Act. Through this section, criminal offences become service offences, and a person charged under s.130 of the National Defence Act cannot also be charged under the Criminal Code.

378 With some limited exceptions, persons alleged to have committed a service offence may be charged under the National Defence Act whether the offence was committed in Canada or elsewhere.379 The Supreme Court has noted that “[s]ervice tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing wrongful

(i) a person who is in service custody for an alleged offence; and (j) a person who has agreed to be subject to it while working with the CF.

373 National Defence Act, ibid. at s.60(2).

374 Office of the Judge Advocate General, The Code of Service Discipline and Me, online: JAG <http://www.forces.gc.ca/jag/publications/defence/CSDME-CDMMOI-eng.pdf>.

375 Queen's Regulations and Order for the Canadian Forces, Vol. I, 1.02, “service offence”, online: <http://www.admfincs.forces.gc.ca/qro-orf/vol-02/doc/chapter-chapitre-104.pdf> [QR&O].

376 R. v. Genereux, [1992] 1 S.C.R. 259 at para. 44[Genereux].

377 1 F.C. 233 (T.D.) at 235-36, quoted with approval in Genereux, ibid. at para. 45. The Court goes on to use the example of a civilian not showing up for work, and having the possible liability of breach of contract, while a person subject to the National Defence Act who did not show up for work may be liable for Absent Without Leave, or Desertion.

378 National Defence Act, supra at ss. 66, 71.

379 National Defence Act, ibid. at ss. 67, 70. Exceptions in s.70 include manslaughter, murder, and abduction

committed within Canada, see also: “Canadian Military Justice System – Legal Basis” National Defence and the

Canadian Forces, online: <http://www.forces.gc.ca/jag/justice/basis-base-eng.asp>.

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conduct, in circumstances where the offence is committed by a member of the military or other person subject to the [CSD].”380

Additionally, the scale of punishment for service members is often more severe than for

comparable civil and criminal offences in the civilian context. The scale of available punishments are contained in the National Defence Act:

139. (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

(a) imprisonment for life; (b) imprisonment for two years or more;

(c) dismissal with disgrace from Her Majesty’s service; (d) imprisonment for less than two years; (e) dismissal from Her Majesty’s service; (f) detention; (g) reduction in rank; (h) forfeiture of seniority; (i) severe reprimand; (j) reprimand; (k) fine; and (l) minor punishments.

(2) Where a punishment for an offence is specified by the [CSD] and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression “less punishment” means any one or more of the punishments lower in the scale of punishments than the specified punishment.

It is important to understand the scale of punishments, as the severity of the punishments available to a court martial are often more severe than those available under other federal acts. The National Defence Act goes on to state that:

148. Only one sentence shall be passed on an offender at a trial under the Code of Service Discipline and, where the offender is convicted of more than one offence, the sentence is good if any one of the offences would have justified it.

Section 148 is clarified in the QR&O. Courts martial are not to award a sentence for each individual offence committed, rather award a single sentence in respect of all findings of guilt made at a trial. This sentence may involve more than one type of punishment, e.g. a reduction in rank and detention. Where the sentence is imposed by the service tribunal it is expressed as the

380

Genereux, supra at para. 30.

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total of each type of punishment that it is intended that the accused person undergo.381 Courts martial will impose the least severe punishment that will maintain discipline.382 3. Service Offences There are two service offences that apply to the allegations that the CF transferred detainees to Afghan custody after receiving credible allegations of abuse: Negligent Performance of a Military Duty and Prejudicing Good Order and Discipline. Each will be explored in this section. There are other offences in the National Defence Act that appear, at first glance, to apply, but upon examining the jurisprudence on those sections, they clearly do not apply.383 Liability will be considered both at the level of senior leadership, or ‘command’ level, as well as the subordinate leadership and ‘soldier’ level. This is not a formal distinction based on any sort of military policy. Rather, the difference between the two categories is related to the decision-making authority of the CF member, with the idea being that as authority increases so too will legal liabilities for events occurring within their area of responsibility. Those military officers responsible for the formulation of JTF-A policy and issuing Task Force-wide orders will attract more legal liability than the soldiers on the ground applying those policies by virtue of the duties of commanders, explained below. a) Negligent Performance of Duties

124. Every person who negligently performs a military duty imposed on that person is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

The key elements of this offence are: (1) Proof of the existence of a military duty, and (2) Negligence in performing that duty. Each will be explored in turn. i. Existence of a Military Duty

“Military duty” is a term which is not defined by the QR&O. The CMAC has held that a military duty under s.124 “will not arise absent an obligation which is created either by statute, regulation, order from a superior, or rule emanating from the government or Chief of Defence Staff,”384 and is to be read strictly. It does not import the civil concept of duty from tort law.385

381

QR&O supra at Vol. II, 104.15 at Note A. By way of example in R. v. Captain J.D. Leslie, 2008 CM 2015, the Court Martial imposed both a forfeiture in seniority and a fine for a single offence of negligently performing a duty, at 6 [Leslie].

382 R. v. Corporal C.L.W. McDougall, 2009 CM 2017 at 5.

383 The main offences we considered, and rejected include: s.77(f) – Offences Related to Operations – which is rarely used, likely due to its similarity to offences against persons and property contained in the Criminal Code; and;s.93 – Cruel or Disgraceful Conduct – while cruel conduct is not alleged on the part of CF members, it was considered in light of s.128 – Conspiracy, but rejected on the grounds that there was no common intent that the NDS torture the detainees.

384 Brocklebank, supra at para. 42.

385 Brocklebank, ibid. at para. 32.

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Military duties arise from the QR&O and DAOD, among other similar orders. Relevant duties in this case may include: the duty of all CF members to be familiar with, obey and enforce all “regulations, rules, orders and instructions necessary for the performance of the member’s duties;”386 Also, an officer commanding a formation387 has a duty to:

[R]eport immediately to National Defence Headquarters and to the Regional Headquarters concerned any serious or unusual incident that occurs in or affects any base, unit or element in the command, which is not required to be reported by other regulations or orders, has a military significance, and is likely to be the subject of questions to National Defence Headquarters.388

The CMAC has held rules of engagement,389 and safeguarding of prisoners in CF custody390 to be military duties requiring special care. Thus far the CMAC has not gone as far as to impose a military duty to safeguard prisoners when no custodial relationship exists391 - the prisoner must be in the custody of the person charged in order to trigger the military duty.392 On the other hand, it was held in Brocklebank, that there is no “basis in law for the inference that the Geneva Conventions ... impose on service members the obligation, not otherwise found in Canadian law, to take positive steps to prevent or arrest the mistreatment or abuse of prisoners in Canadian Forces custody by other members of the Forces.”393 Private Brocklebank, on the lowest rung of the chain of command, was acquitted of the charge of negligent performance of a military duty for failing to intervene when he had the opportunity. A military duty does arise at the command level. The Chief of Defence Staff is responsible overall for the “control and administration of the Canadian Forces.”394 An officer in command of a command is responsible to the Chief of Defence Staff for the control and

386 QR&O, supra at 19.01.

387 QR&O, ibid. at 3.22, this states that an officer commanding a formation, exercises command over all units and elements allocated to the formation. JTF-A is such a formation, with its constituent formations ISAF headquarters, Regional Command (South) Headquarters, Battle Group and National Support Element. Each constituent element has its sub-commands, down to the platoon and section level.

388 QR&O, ibid. 4.11.

389 Mathieu, supra at 15.

390 R. v. Boland, [1995] 5 C.M.A.J. No. 7

391 Brocklebank, supra at para. 62.



394 National Defence Act, supra at s.18(1).

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administration of all formations and elements allocated to it.395 A Commanding Officer (CO) bears overall responsibility for the whole of their element, including policy, safety, and distribution of work. Commanders may not delegate authority on important matters requiring personal attention, nor general control and supervision of duties within the organization.396 For example, in R. v. Sox and R. v. Seward, the platoon and company commander of the soldiers involved in the torture and murder of a Somali teenager were held liable under s.124 as a result of their duties to exercise proper control over their subordinates,397 and to issue clear orders in regards to the handling of prisoners.398 It was not necessary in Sox to decide as to whether there is a military duty of a superior officer to intervene when witnessing mistreatment of a prisoner not in his custody by a member of the CF, and it was deliberately left open for a future case.399

Commanders are responsible to prevent, suppress, and report breaches of the Laws of Armed Conflict by persons under their control.400 The same duty attaches to COs,401 with the additional requirement that:

[w]here breaches of the [laws of armed conflict] have been committed or may be committed by members of armed forces not under command, or civilians not under the control of the CO, the CO remains duty bound to report such violations to competent authorities and, where possible, to take all measures within the limits of his/her operational orders to prevent and suppress violations of the [laws of armed conflict].402

Common Article 3 of the Geneva Conventions and Article 12 of the Geneva Convention III appear to place a duty to stop mistreatment of prisoners by the receiving power post-transfer on the shoulders of the power that originally detained them, or to request the return of the prisoners. Although the alleged abuses by the NDS occurred during a non-international armed conflict, and Geneva Convention III would not normally apply, Canada and Afghanistan agreed to treat detainees in accordance with the principles laid out in the Geneva Conventions in the 2005

Arrangement. Adherence to the Geneva Conventions was passed on in orders. As COs are 395 QR&O, supra at 4.10.

396 QR&O, ibid. at 4.20.

397 R. v. Sox, [1996] C.M.A.J. No. 7 at 27 [Sox].

398 R. v. Seward, [1996] C.M.A.C. No. 5 at 36 [Seward].

399 Sox, supra at 27.

400 LOAC, supra at 1621.1; Additional Protocol I, supra at Art. 87(2).

401 “Commanding Officer” differs from “commander” in both definition and the responsibilities associated. A CO is a specific appointment, defined as “(a) an officer in command of a base, unit or element, or (b) any other officer designated as a commanding officer by or under the authority of the Chief of the Defence Staff” in QR&O, supra at Vol. I, 1.02, “commanding officer”.

402 Department of National Defence, CDS Guidance to Commanding Officers (2003), online: <http://www.cda-acd.forces.gc.ca/cdsg-dcemd/index-eng.asp> at 704.3 [emphasis added].

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responsible for everything that goes on within their command and how their command interacts with other entities, they may bear the legal responsibility to do so, thus creating a military duty for those commanders.

The jurisprudence on command duties comports with the idea that as responsibility increases, so too does legal liability. Soldiers have a duty to ensure their own actions are in accordance with orders and regulations. Commanders have a military duty to issue orders so as to prevent breaches of the Laws of Armed Conflict within their command, and report those breaches. COs bear the same responsibility, and the additional one to take effective measures to stop the abuses or request the return of the prisoners.

ii. Negligence The QR&Os state that s.124 should only be used “where the nature of the military duty, or the circumstances in which it is being performed, is such as to impose upon the individual a need to take special care in its performance” rather than being invoked for ordinary carelessness. The degree of negligence required as an element of the offence mirrors the penal negligence standard of a marked departure from the standard of care that must be shown in criminal cases.403 The applicable standard is an objective one – what a reasonable person would have done in the circumstances.404 The Brocklebank decision is again most helpful. The CMAC reviewed the jurisprudence regarding the standard of care applicable to the negligent performance of a military duty, and defined it as:

[T]he conduct expected of the reasonable person of the rank and in all the circumstances of the accused at the time and place the alleged offence occurred. In the context of a military operation, the standard of care will vary considerably in relation to the degree of responsibility exercised by the accused, the nature and purpose of the operation, and the exigencies of a particular situation. An emergency, or the heightened state of apprehension or urgency caused by threats to the security of Canadian Armed Forces personnel or their materiel might mandate a more flexible standard than that expected in relatively non-threatening scenarios.405

The standard of care, therefore, is to be determined on the circumstances of the case. The key factors in the assessment of the standard are those related to the responsibility exercised by the soldier and the threat level associated with the theatre of operations. Responsibility in the military context is tied to rank and experience. The CMAC in Brocklebank stated that “a soldier cannot be held to the same exacting standard of care as a senior officer when faced with a situation where the discharge of his duty might bring him into direct conflict with the authority of a senior officer.”406 As with the interpretation of military duty, commanders bear a higher 403

Mathieu, supra at 16; Brocklebank, supra at 31.

404 Mathieu, ibid. at 20, the CMAC goes on to note that the mens rea requirement is established by the act itself as a result of the objective standard to be applied.

405 Brocklebank, supra at 18.

406 Brocklebank, ibid. at 18.

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level of responsibility than soldiers, not only for their own actions, but for those of their subordinates.

For example, in Seward, Captain Sox’s officer commanding, Major Seward, had issued a “dangerously ambiguous” order in regards to the handling of prisoners.407 Despite having no direct personal connection to the beating and death of a prisoner, his “education, training, and experience and his much greater responsibilities as commanding officer put on him a higher standard of care.”408 Seward was sentenced to three months imprisonment and dismissal from the CF for his complicity in the torture, s.124. Thus, culpability under s.124 attaches not just to the person directly responsible for committing the negligent act, but also to the supervisors in that person’s chain of command. It should be kept in mind that the extension of liability up the chain of command is not unlimited. Lieutenant-Colonel Mathieu, the commanding officer of the Airborne Regiment and three levels up the chain of command from those who committed the acts, was acquitted on s.124 charges related to ambiguous orders given on the use of force.409 Although LCol. Mathieu was acquitted by his courts martial, the Somalia Inquiry later found that his failure to ensure, among other things, that his soldiers were properly trained on the Law of War and Geneva Conventions caused him to fail in his duties as a commander. The Inquiry noted that his rank and his position as a commanding officer carried with them a responsibility to observe and enforce IHL, the rules of engagement, and prisoner handling procedures, for both himself and within his command.410 The Inquiry reached a similar finding in regards to Mathieu’s supervisor, Colonel Serge Labbé, the Commander of the Canadian Joint Force Somalia.411 While the Somalia Inquiry was not a formal legal proceeding, its findings may be indicative of the government’s sensitivity to commanders’ responsibilities in regards to humane treatment of detainees.

In summary, the standard of care expected of a CF member increases as the amount of

responsibility that member bears increases. Senior commanders will be held to an exacting standard, while junior soldiers will attract a more flexible standard. A marked departure from the standard expected of a reasonable person in the circumstances must be shown. iii. Analysis of Negligent Performance of Duties All of the s.124 cases dealing with treatment of prisoners or detainees involve the prisoner being directly in the custody of a CF member. There are no allegations of mistreatment at the hands of Canadians, and the above-mentioned Board of Inquiry, MPCC hearing and investigation found that at the soldier level the CF had fulfilled their responsibilities. Thus, it is

407 Seward, supra at 36.

408 Seward, ibid. at 36.

409 Commission of Inquiry on Somalia: Report, vol. 1 (Ottawa: Minister of Public Works and Government Services Canada 1997) at “The Courts Martial”, online: <http://www.forces.gc.ca/somalia/vol1/v1c14e.htm> [Somalia

Inquiry].

410 Somalia Inquiry, ibid. vol.4 at “Lieutenant-Colonel (Retired) Carol Mathieu.”

411 Somalia Inquiry, ibid. vol.4 at “Colonel Serge Labbé.”

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highly unlikely that a low-level soldier or subordinate commander can or will be charged under this section for failing to take positive steps to prevent Afghan detainees from being abused by Afghan authorities post-transfer.

At the command level, however, if the principles of the jurisprudence relating to commanders are applied to the Afghan detainee issue and read in context with Common Article 3 requirements in the Geneva Conventions, senior military commanders responsible for overseeing the transfer of detainees may be liable under s.124. This would involve a leap in reasoning from previous similar cases, as the Afghan authorities who were the principals in the alleged abuses were not under CF command or control. The courts would be asked to impose a military duty to safeguard prisoners where no custodial or command relationship exists.

From all of the military duties discussed above, there are three that gather sufficient legal traction based on the factual circumstances to warrant discussion: the duty to report immediately any serious or unusual incident of military significance that is likely to be the subject of questions to National Defence Head Quarters (NDHQ); the duty to obey and enforce all obligations created by statute and regulations; and the duty to take effective measures to correct the situation or request the return of the detainees. iv. The Application of the Duty to Report Colvin alleged that senior military officers were on the distribution list of his notes and emails in regards to the deficiencies in post-transfer detainee monitoring as he became aware of them in May 2006. Also, on 2 June 2006 he passed on credible allegations of abuse. With the benefit of hindsight, it is easy to construe these reports as being incidents of military significance, and likely to be the subject of questions to NDHQ. For example, LGen. Gauthier’s post-Colvin-testimony reaction suggests that he immediately realized the military significance, in that he stated that he would never knowingly expose his soldiers and commanders to complicity in war crimes.412 Those commanders would be held to the exacting standard of care described in Brocklebank. The complete failure to report allegations of abuse of detainees post-transfer represents a marked departure from the standard of care expected of senior commanders in carrying out their duty to report. Therefore, they may be held liable for negligent performance of their duty to report. v. The Application of the Duty to Observe and Enforce Obligations

Colvin alleges that he informed senior commanders of the likelihood that detainees transferred by the CF were being abused and that those commanders failed to act enforce Canada’s international obligations. No CF commander had command over the Afghan NDS, who are alleged to have committed the acts of abuse. The 6 November 2007 suspension of detainee transfers upon receipt of allegations of abuse indicates, however, that CF commanders had it in their authority to take action within their command to prevent further abuses by actors outside of it. If senior commanders had allegations of detainee abuse prior to 5 November 2007, they had a military duty to act within their command to prevent more detainees from being put at risk. The

412 “A who’s who of officials named in Richard Colvin’s testimony” CBC News (23 November 2009), online: CBC <http://www.cbc.ca>.

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duty here is not to prevent the NDS from abusing detainees, but to halt the transfers so that more detainees are not subject to the same treatment. Again, senior commanders are held to an exacting standard of care. A reasonable senior commander is expected to know, observe, and enforce Canada’s international law obligations. The total failure to react in any way to the information received on abuse represents a marked departure from the standard of care. Those commanders who received credible allegations of post-transfer abuse of detainees by the NDS may be liable for negligent performance of the military duty to observe and enforce obligations imposed by statute and regulations. vi. The Application of the Duty to Take Effective Measures to Correct the Situation or Request the Return of the Prisoners As mentioned above, this duty applies solely to those appointed as COs who were recipients of information giving credible allegations of NDS mistreatment of detainees. The discussion in this section follows the same principles as the duty to enforce obligations. The COs in possession of such information had a duty to, at a minimum, halt the transfer of detainees. They had an additional duty to attempt to use their authority to stop the abuses by the NDS, or to request the return of the detainees transferred to the NDS by the CF. There is no indication that any action was taken to perform any of these duties between 2 June and 5 November 2007. There have been no known requests resulting from the Afghan failure to observe the Geneva

Conventions at any time for the return of detainees. A CO who is duty bound to take action but does nothing has departed markedly from the standard of care. Those COs who received credible allegations of post-transfer abuse of detainees by the NDS may be liable for negligent performance of the military duty to take effective measures to correct the situation or request the return of the prisoners. b) Prejudicing Good Order and Discipline

129. (1) Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

(2) An act or omission constituting an offence under section 72 or a contravention by any person of

(a) any of the provisions of this Act, (b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or (c) any general, garrison, unit, station, standing, local or other orders,

is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

This section of the National Defence Act is the ‘catch-all’ provision to be used if there is real doubt that one of the prescribed charges has been committed.413 For example, “a civilian

413 QR&O, supra at 103.60 note D.

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cannot give ‘a lawful command’ under s.83 to members of the service but it may well be the duty of an officer or non-commissioned member to do the act indicated, apart from any order, and if he does not do so, he may be liable.”414 In the Sox case, mentioned above, a charge under s.129 was laid as an alternative to s.124 and stayed by the court martial once it was clear that the s.124 charge was sufficient. Under s.129 ‘good order’ should be read as “wide enough to include good order in the sense in which the words would be understood in civil life and applicable to civilians and in the sense in which they would be understood in military life as applicable to members of a military force. It is not sufficient to prove that the act, etc., is prejudicial to good order but it must also be proved that the act was prejudicial to discipline.”415 An act that is prejudicial to discipline is automatically prejudicial to good order. All that the prosecutor needs to prove is that the alleged contravention actually occurred, and that the regulation or order was issued and published properly. The accused is then given constructive knowledge of the order.416 As noted above, there are no allegations that low-level soldiers acted inappropriately, therefore no charges are likely at that level. The most appropriate application of s.129 would be as an alternate charge to those senior commanders and in-theatre COs implicated under s.124. The applicability of s.129 would depend on the inapplicability of s.124 to the three duties noted above and characterization of the failure to report or the failure to observe and enforce obligations as prejudicial to good order and discipline.

There are numerous grounds on which a s.129 charge may apply to this case. A failure to report significant incidents to the chain of command easily meets the requirement of an act prejudicial to discipline. The prosecutor would only have to show that the commander had received information that detainees were being abused post-transfer by the NDS and did not report it to their supervisor. A failure to issue clear and effective orders to prevent further harm to detainees transferred by Canadians when duty bound to do so is also easily construed as prejudicial to discipline. The CDS Guidance to Commanding Officers is guidance as contemplated in s.129(2)(b), requiring the reporting of breaches of the laws of armed conflict and the taking of all measures within operation orders to prevent and suppress breaches. The failure to comply with it is prejudicial to discipline as well.

Given the CF’s practice of using s.129 as a ‘catch-all’ charge, it is not difficult to

determine that if any military commander received credible allegations of post-transfer abuse of detainees and failed to report it or act on it as required to by any of the above-mentioned policies they could be liable under this section. 4. Summary of the Application of the National Defence Act

414 QR&O, ibid. at 103.16 note H.

415QR&O, ibid. at 103.60 note B.

416QR&O, ibid. at 103.60 note E.

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Based on the facts as alleged, the only CF members liable under the National Defence Act in the case of post-transfer abuse by Afghan authorities are those who received credible allegations of abuse, and failed to act upon them. The specific sections of the National Defence

Act that may apply are:

1. Section 124 - Negligent Performance of a Military Duty a. The duty of commanders to report, contained in Art. 4.11 of the QR&O. b. The duty of commanders to prevent, suppress, and report breaches of the laws

of armed conflict, contained in the CF LOAC Doctrine c. The duty of COs to take effective measures to correct the situation or request

the return of the detainees, contained in the Chief of Defence Staff`s Guidance to Commanding Officers

2. Section 129 – Prejudicing Good Order and Discipline, as an alternate charge to s.124. 3. Section 130 – for breaches of the Criminal Code as discussed above.

IV. CONCLUSION

If it is established that the facts as alleged are true, then there are several potential areas under which liability may attach to Canadian officials. It is important to note that this Report merely identifies areas of potential criminal liability; any definitive findings would have to be made by a proper judicial authority. First, under customary international law and the CAHWC, members of the CF might be held liable for aiding and abetting the war crimes of torture and cruel treatment during a non-international armed conflict by transferring detainees. Additionally, military commanders could be held liable under command responsibility. Secondly, under the Criminal Code, Canadian officials might be held culpable for criminal negligence causing bodily harm or for failing to provide the necessities of life. Finally, under the National Defence Act, member of the CF could be held liable for negligent performance of a military duty (duty of commanders to report, duty of commanders to prevent, suppress, and report breaches of the laws of armed conflict, and the duty of commanding officers to take effective measures to correct the situation or request the return of the detainees) or for prejudicing good order and discipline.

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ANNEX A: TIMELINE OF DETAINEE RELATED EVENTS This Annex is intended as a basic reference guide only. All of the events, documents, and testimony are cited and discussed in the Factual Background of the main body of work. This timeline assumes Richard Colvin's testimony to be accurate as presented, and several of the dates provided are derived from his testimony. Dates of some events are uncertain, due to the redaction or unavailability of documents, and are represented only by the month in which they occurred.

Month Day Event

2001

11 Terrorist attacks on the New York, Washington, and Pennsylvania. September

12 North Atlantic Council invokes the collective self-defence provisions of the North Atlantic Treaty. UN Security Council (UN SC) issues Resolution 1368 condemning the attacks in New York, and recognizing the right of individual or collective self-defence in accordance with the Charter.”

October 7 The USA invades Afghanistan under Operation ENDURING FREEDOM. The Canadian government announces that Canada will contribute forces to the international effort in Afghanistan.

20 UN SC Resolution 1386 establishes NATO-led International Security Assistance Forces (ISAF).

December

22 Bonn Agreement establishes interim government in Afghanistan and invites an UN-sanctioned security force to Afghanistan.

2002

4 Military and Technical Agreement (MTA) is signed between ISAF and the Afghan government.

January

The first Canadian Battle Group deploys on Canadian Operation APOLLO to Kandahar as part of a US Army task force on Operation ENDURING FREEDOM.

2003

July 17 Canadian Operation ATHENA begins as part of ISAF in Kabul.

August 11 NATO assumes command of ISAF at the request of the UN and the Afghanistan government.

October 13 UNSC Resolution 1510 expands ISAF mission beyond Kabul.

2005

August Canadian elements shift to Kandahar as part of Operation ENDURING FREEDOM and, as ISAF's role expanded, continued under ISAF Multi-National Brigade South.

October 18 The first “phase” of Operation ATHENA ends, and Operation ARCHER begins as Canadians redeploy to Kandahar under the US-led Coalition.

December 18 The Governments of Canada and Afghanistan entered into the Technical

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Arrangements between the Government of Canada and the Government of the

Islamic Republic of Afghanistan (the Technical Arrangement, including the 2005

Arrangement for the transfer of detainees and the ‘Status of Forces Arrangement.’

2006

February 1 The Afghanistan Compact is signed to govern relations between the Republic of Afghanistan, ISAF, and the US-led Operation ENDURING FREEDOM.

1 Theatre Standing Order 321-A is issued, mandating treatment of detainees in accordance with the Geneva Conventions.

March

UN High Commissioner for Human Rights, Louise Arbour, reports that complaints of torture in Afghan prisons and NDS facilities are ‘common.’ United States’ State Department Report notes instances of torture and extrajudicial killings in Afghan prisons as reported by credible observers.

April 6 Three detainees of the CF near Kandahar region are allegedly abused after transfer to Afghan authorities

A detainee was transferred to the ANP and allegedly abused. May

31 The Minister of National Defence states in the House of Commons that if detainees were being mistreated, the Red Cross would inform Canada and Canada would take action. The ICRC contradicts this in March, 2007, stating that abuse is only reported to the detaining power.

2 The AIHRC issues a report stating that one-third of prisoners handed over by Canadians are abused by Afghan authorities. Richard Colvin sends a memo concerning the risk of torture and/or the actual torture of Afghan detainees.

June

14 CF members were forced to retrieve a detainee from ANP custody after seeing him beaten by the ANP with “shoes, boots and weapons.”

July 31 ISAF assumes command of the operations in the south of Afghanistan, including the Canadian mission. Operation ARCHER reverts to Operation ATHENA.

August - December

Richard Colvin sends three memos over this period addressing notification, transfer, and treatment concerns regarding Afghan detainees.

September 2-17 CF lead Operation MEDUSA, the largest Canadian combat operation since the Korean War.

December Canadian Embassy’s Annual Human Rights Report on Afghanistan detailed systemic problems of torture in Afghan jails, concluding that “extra-judicial executions, disappearances, torture and detention without trial are all too common.”

Month Unknown

CF intervened to prevent summary execution of a detainee by the ANA. The CF were instructed to continue holding the detainee until he could be transferred to the NDS.

2007

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January 29 Military Police Complaints Commission (MPCC) receives a formal complaint of possible abuse by CF personnel that went un-investigated by the Military Police.

9 MPCC launches an investigation [APII] into the Military Police handling of the complaint of abuse.

13 Kandahar Provincial Reconstruction Team begins conducting site visits to prisons

February

26 MPCC launches public hearings (APIH) into allegations that the Military Police had, on at least 18 occasions, transferred detainees to Afghan authorities notwithstanding alleged evidence of the likelihood that they would be tortured. These hearings are still ongoing in their preliminary stages.

2 The three detainees whose treatment is being investigated by the APII cannot be located by the NDS or investigators.

March

A United States’ State Department Report states that there is credible evidence of torture in Afghan custody including mutilation and sexual abuse. Richard Colvin orally warns government officials that the NDS tortures detainees.

1 Afghan prisoners publicly claim they had been abused. Richard Colvin sends an urgent email to 71 senior officials in Ottawa.

The PRT reports two allegations of abuse to the AIHRC and ICRC.

23 Graeme Smith’s article published in the Globe and Mail states that detainees transferred from CF custody were abused.

April

25-6 Representatives from the CF, DFAIT, NDS and AIHRC meet to discuss the allegations in the Globe article, and reaffirm AIHRC access to NDS facilities.

3 The 2007 Arrangement is signed. May

DFAIT workers in Afghanistan are told by government to make reports by phone, rather than in writing. Distribution lists on email traffic significantly reduced.

DFAIT begins monitoring detainees and receives several complaints of abuse.

4-5 DFAIT reports the abuse of a detainee at the NDS in Kandahar.

5-6 Embassy Monitoring Team reports that three detainees transferred to Kabul from the NDS in Kandahar reported being abused, and showed physical signs of trauma.

June

26 Canadian monitoring team is unable to locate ten detainees that had recently been transferred to the NDS in Kandahar.

June - July

Richard Colvin sends four memos over this period regarding detainee abuses.

October 1 DFAIT sends a dedicated monitor to Kandahar. They find evidence that detainees are being tortured.

November 5 Canadian officials receive a ‘credible allegation of mistreatment’ during a monitoring visit to the NDS in Kandahar.

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6 Detainee transfers are suspended by the in-theatre Commander due the receipt of allegations of mistreatment from the monitor.

19 The government confirms that it has learned of evidence of abuse and is investigating.

2008

February 26 Detainee transfers resume.

2009

February 6 The Board of Inquiry issues its final report, finding that CF personnel complied with orders, directives and policies in place for the handling of detainees.

AIHRC reports that 98.5% of Afghan prisoners interviewed had been tortured while in government custody.

April

27 The MPCC releases its final report into the Afghanistan Public Interest Inquiry, which finds that the Military Police did not mistreat detainees, but did fail to investigate the origins of the detainees’ injuries.

December 9 Gen. Natynczyk states that the CF had received a credible allegation of mistreatment of a detainee by Afghan Police in June 2006, but the report had not been brought to his attention until after his 3 December 2009 testimony.

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ANNEX B: TABLE OF OFFENCES This Annex is intended as a reference guide to the offences under the various statutes for which Canadians are exposed to potential legal liability with regard to the post-transfer abuse of detainees by Afghan authorities. It includes:

Table 1. Criminal Code of Canada Table 2. Underlying Offence in Customary International Law and Crimes Against Humanity

and War Crimes Act Table 3. Secondary Liability in Customary International Law and Crimes Against Humanity

and War Crimes Act Table 4. National Defence Act

Table 1. Criminal Code of Canada

Criminal Code of Canada

Elements Offence Class of Persons

Actus Reus Mens Rea

s. 219 Criminal Negligence Causing Bodily Harm

Canadian officials 1. An act or omission that shows a wanton or reckless disregard for the lives or safety of other persons

2. A causal link between the act or omission and the bodily harm suffered

1. A marked and substantial departure from the standard of care of a reasonable person in the circumstances

2. The bodily harm must be a reasonably foreseeable consequence of the act or omission

s. 215 Failure to Provide the Necessities of Life

Canadian officials 1. The existence of a legal duty

2. A failure to provide necessities of life

3. This failure endangers the life of, causes or is likely to cause permanent injury to the health of that person

1. Objective – a marked departure from the conduct of a reasonably prudent person in the circumstances

2. The harm must be the objectively foreseeable consequence of the failure

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Table 2. Underlying Offence in Customary International Law and Crimes Against Humanity and

War Crimes Act

Underlying Offences* in Customary International Law & Crimes Against Humanity and War Crimes Act

Offence Nexus to Armed Conflict

Status of Victim Actus Reus Mens Rea

Torture Common Article 3 of the Geneva

Conventions ss. 4 &6 of the Crimes Against

Humanity and

War Crimes Act referring to Article 8(2)(c)(i) of the Rome

Statute

The act or omission must take place in the context of and associated with a non-international armed conflict. The perpetrator must have knowledge of the facts establishing the occurrence of an armed conflict.

The perpetrator must commit the act or omission against a person not taking direct part in the hostilities. The perpetrator must have knowledge of the facts establishing the victim’s status.

The infliction, by act or omission, of severe physical or mental pain or suffering done for the purpose of obtaining information, a confession, punishing, intimidating, humiliating, coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.

The intention to inflict severe mental or physical pain or suffering for the prohibited purpose.

Cruel Treatment Common Article 3 of the Geneva

Conventions ss. 4 &6 of the Crimes Against

Humanity and

War Crimes Act referring to Article 8(2)(c)(i) of the Rome

Statute

The act or omission must take place in the context of and associated with a non-international armed conflict. The perpetrator must have knowledge of the facts establishing the occurrence of an armed conflict.

The perpetrator must commit the act or omission against a person not taking direct part in the hostilities. The perpetrator must have knowledge of the facts establishing the victim’s status

The infliction of serious mental and physical suffering.

The intention to inflict serious mental or physical suffering and knowledge that serious suffering will occur as a result of the act or omission.

*Underlying offences are presumed to have been committed by Afghan authorities, and useful in understanding the secondary liability that may attach for Canadians, discussed on the next page.

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Table 3. Secondary Liability in Customary International Law and Crimes Against Humanity and

War Crimes Act Secondary Liability in Customary International Law

& Crimes Against Humanity and War Crimes Act

Offence General Requirements Actus Reus Mens Rea

Aiding and abetting potentially ss. 4 & 6 of the Crimes Against Humanity

and War Crimes Act

Nexus to an armed conflict Underlying offence: war crime of torture

Lending practical assistance to the physical perpetrator of torture; and Such practical assistance has a substantial effect on the commission of torture by the physical perpetrator.

Knowing or being aware that the act accomplished would lend practical assistance to the commission of the crime or the probable commission of that crime.

Command responsibility ss. 5 & 7 of the Crimes

Against Humanity and

War Crimes Act

Superior-subordinate relationship in the military chain of command.

Failure by the commander to take necessary and reasonable measure to prevent or punish illegal acts committed by their subordinate.

Knowing or having reason to know that a violation was being committed or is going to be committed by subordinates.

Superior responsibility ss. 5 & 7 of the Crimes

Against Humanity and

War Crimes Act

Superior-subordinate relationship.

Failure by the superior to take necessary and reasonable measure to prevent or punish illegal acts committed by their subordinate.

Knowing or consciously disregarding information that a violation was being committed or is going to be committed by subordinates

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Table 4. National Defence Act

National Defence Act

Offence Class of Persons Elements Application to Case

Existence of a military duty arising from statute, regulation, superior order, or rule from government or CDS.

1. The duty to report incidents of military significance (QR&O Art. 4.11).

2. The duty to prevent, suppress, and report breaches of the LOAC (CF LOAC Doctrine).

Military commanders in charge of a command who received credible allegations of abuse.

Negligence in performing that military duty, consisting of a marked departure from the standard of care. The standard of care for commanders is high, based on education, rank, experience, and greater responsibilities. Threats to security might mandate a more flexible standard.

1. Failure to pass on reports of allegations of abuse is a marked departure.

2. Failure to act on allegations of abuse is a marked departure. Liability may be mitigated by the increased threat level and operational tempo at the time, due to Op MEDUSA.

The duty to take effective measures to correct violations of the LOAC by those outside of their command, or request the return of the detainees (CDS Guidance to COs, Art. 12, III Geneva Convention + 2005 Arrangement).

s.124 Negligent performance of a military duty.

Commanding Officers who received credible allegations of abuse.

The elements are the same as for commanders, above. COs would be held to a higher standard of care than commanders. Less mitigation of that standard due to operational considerations.

Failure to take any measures between June 2 and November 5, 2007 is a marked departure.

An act, conduct, disorder or neglect,

Failure to carry out any of the duties mentioned above (QR&O Art. 103.60).

To the prejudice of good order,

s.129* Prejudicing good order and discipline. * Alternative charge to s.124, should there be real doubt that s.124 has been violated.

Military commanders and Commanding Officers who received credible allegations of abuse.

And to the prejudice of discipline. An act contrary to discipline is automatically prejudicial to good order.

Failure to conduct something that one is duty bound to do is prejudicial to military discipline, and therefore prejudicial to good order.

s.130 Service trial of civil offences.

CF members liable under other Acts, discussed above.

Commission of an offence under another Federal Act

Discussed above.