An oldie, but a goodie.
This piece will be useful in understanding my opposition to the Khadr settlement.
Vincent J. Curtis 25
March 2010
With the return of parliament from prorogation, the enquiry into
alleged Afghanistan war crimes was resurrected.
Yet no successful prosecution will result from the enquiry even if the worst
of the allegations prove true, so why keep it going?
Not being one who believes that political hygiene motivates those
pressing the enquiry, I divide those interested in keeping it going into two
groups, whose membership overlaps. One
group is motivated to inflict pain upon those in office; the other in gaining
readership through sensationalism. The
one outcome that neither group cares a fig about is inflaming the enemy into
greater resistance to us.
Putting the most sensational spin on it, the accusation is that a
Canadian, somewhere in the chain of command from the section 2i/c to the Prime
Minister, is guilty of a war crime because Afghans captured by Canadian
soldiers were turned over to the government of Afghanistan and were
subsequently tortured while detained in Afghan custody.
By way of background, the transfer and custody of Afghan prisoners
was the subject of a MOU with the Afghan government, negotiated by the Liberal
government of Paul Martin and signed into effect by then LGen Rick Hillier. Later, when it was discovered that rumors of
torture may have had some merit, the MOU was strengthened under the Harper
government to prevent it.
The law under which Canadians are allegedly guilty is the Law of
Armed Conflict. CF Pamphlet B-GJ-005-104/FP-021,
in fact. Our DND codified what is called
the LOAC.
The LOAC as expressed in the pam is how Canada understands the
Geneva Convention, the Hague Convention, and other customs and traditions of
war. Insofar as the law of armed
conflict applies to Canadians, it is Canadian law and Canadian jurisdiction. There is no supra-national body or
supra-national court with superior jurisdiction that Canadians need fear in
this matter. Jurisdiction over how
Canadians interpret and apply the LOAC in respect of ourselves lies in our own
court system. So let's apply some
Canadian common sense to the matter at hand.
For a crime to be felonious, there has to be a grave degree of moral
culpability. Capital murder, second
degree murder, manslaughter, and criminal negligence causing death are crimes
of diminishing moral culpability to the act of party B killing party A. The less morally culpable B is, the lesser
the crime and the lesser the punishment.
There is a wide moral gap between murder and accidentally killing a
fellow hunter, thinking he was a deer.
For there to be moral culpability, an act has to be voluntary. If the act is involuntary or non-voluntary,
little or no moral culpability attaches to the act. If an action is done in ignorance, or done under
compulsion, or it is not in one's power to stop, the action is involuntary. We call such acts mistakes and mishaps. There has to be malice in the performance of
the act for the moral culpability of the act to be highest. Malice is not present when an act is done in
ignorance or under compulsion. The real moral
agent in the torture of Afghan prisoners, the person most guilty of malicious
action, is the Afghan torturer himself or his master, who are not Canadian.
This being so, it would seem that those at the bottom of the chain
of command are innocent of a grave offense since they either did not know of
the consequences of their actions or were compelled by orders and operational
circumstances to forward the prisoners up the chain of command. Those at the highest level were not aware due
to remoteness that the actions of their subordinates led indirectly to the
torture of prisoners. Let us defer
consideration of those in the middle, those who actually handed prisoners over
to Afghan authorities, and look now at the LOAC itself.
The LOAC concerning prisoners of war is the Third Geneva Convention
of 1949. Three elements of the Geneva
convention apply to the matter of the torture of Afghan prisoners. First, for an act to constitute a war crime,
the act must be grave; second, the responsibility for the prisoners lies with
the detaining power; and finally, the person in question has to be a prisoner of war.
In respect of torture and acts committed by Canadians, two of the
tests for a war crime fail to be met.
Although torture is deplorable, what was done by Afghans to their own
countrymen does not rise to the level of a "grave act" as that term
was understood in 1949, written with the memory of the Nazi atrocities in
mind. Canada is not the "detaining
power" as that term is understood by LOAC; and no particular Canadian was
responsible for the treatment of the prisoners that were turned over to the detaining
power, viz the government of Afghanistan.
These in themselves are sufficient to establish that no war crime, no
"grave act," under the Geneva Convention was committed by a Canadian. The mere handing over of prisoners in good
faith under a MOU does not constitute a war crime.
But what has not been explored is the legal status of the persons
detained: were they prisoners of war
or not? The Geneva Convention
established who is liable to be classed as a PoW and who is not. The Taliban most definitely are not lawful
combatants under Geneva and are not entitled to PoW status. Being Afghan nationals held by the government
of Afghanistan, were they held under Afghan civil law? Were they accused of treason, murder,
attempted murder, sedition, or some such civil offense? Is torture a civil crime in Afghanistan? If such turns out to be the case, civil detention
and civil offenses, not being covered by LOAC, there is no underlying war crime
that a Canadian can be accused of being complicit in. This potentially decisive question has not
been explored.
Regardless, since the LOAC is Canadian law, and Canada a sovereign
country, it would be strange indeed if Afghan actions and Afghan law were to
affect Canadian law and expose Canadians to legal culpability.
What we do know is that when high military authorities in
Afghanistan became aware of the mistreatment of prisoners they ceased turning
over captives to the Afghan authorities pending action on the part of the
Canadian government. The government, in
turn, demanded and received strengthened conditions in the MOU concerning
prisoners, and the problem ended. Malice
towards the prisoners is lacking on the Canadian side. One can always second guess and castigate the
man on the spot for not thinking or acting swiftly enough, but one cannot
Monday morning quarterback a lack of speed or of awareness into a grave, morally
culpable act, or war crime.
Press sensationalism and political theatre
can be great amusement for all but the targets.
Lack of malice and lack of knowledge are sufficient defense against the
charge of a war crime in this case, and the underlying acts themselves under
the worst conditions do not amount to a war crime. To prolong a useless enquiry too long risks
inflaming the enemy and creating altogether undeserved impressions.
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XXX -
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