Monday, November 23, 2009

Command responsibility and other notes

Some miscellaneous points on the Afghanistan torture issue from the past day...

1. There is arguably a legal duty for the Harper government to undertake an independent investigation, i.e., a judicial inquiry on this matter, now that these allegations have come to light. Canada is a founding member of the International Criminal Court and that court will start prosecution mechanisms if a member state does not take action itself in the face of allegations of war crimes. Watch Professor Errol Mendes here (towards end of video on these points, an article on the CTV site gets a key statement by Mendes wrong, so ignore it and watch instead. And ignore the misguided video description too).

Mendes speaks of the "command responsibility" theory which is essentially that if someone in a position of civilian or military leadership did not take all necessary and reasonable steps to stop the potential commission of war crimes, then there is the potential that command responsibility for torture may follow. He stated that it is not a defence to say that you didn't know there was a substantial risk of torture. The defence would require that you actively take steps to ensure it is not happening. Given the story that the Harper government is telling to date and the disclosures we're reading, this is something to keep in mind.

2. That report on General Natynczyk and his admission that yes, Afghan prisoner transfers were halted over safety concerns multiple times over is a big development from the past day. As was pointed out last night, this is contrary to what the government's line has been, that transfers were only halted once in November 2007. The very fact that they were halted multiple times lends credence to Richard Colvin's testimony, again. Why would they stop the transfers multiple times? They must have been acting on information of some kind, of course. When did these additional stops occur in the timeline? That would be an interesting fact to uncover, perhaps during this week's testimony by military officials, if it proves fruitful. If the halts to the transfers that Natynczyk speaks of coincided with Colvin's warnings, then the government's smearing of him would fall apart to a greater extent than it has already in the past few days (see Natynczyk's aforementioned information, statements from a NATO official, an EU diplomat, and the Afghanistan Independent Human Rights Commission report of April 2009 substantiating torture in Kandahar - reported at first link above - and so on).

3. There seems to be an argument bubbling out there in some quarters that war is tough and things happen. I.e., what did we really expect to occur over there in a war racked society and various other excuses. Which is all nonsense. What should have been done instead is along the lines of this suggestion:
Semple said the unfolding controversy in Canada should be used to confront the Afghan intelligence agency.

"Simply taking promises that it won't happen aren't good enough," he said.

Semple said Canada, the United States and other allies should march into the NDS in Kabul, threaten to stop paying the bills and say: "We can't back institutions that are involved in torture."
Or they should have run their own facility, for example. Speaking of which, that may be what the British are in fact doing:
"British forces halted prisoner transfers last summer because of abuse concerns. It's unclear whether they have resumed."
But muzzling the information that you are receiving from your own top diplomats and intermittently stopping transfers, only to start them up again into a widespread prison system - with secret prisons that can't be checked - and which has been shown to be torturous isn't sufficient.

And of late, having the Canadian Minister of Defence publicly pronouncing that a single, solitary instance of torture can't be proven is the opposite of what we should be doing. Those public pronouncements from MacKay are absurd because he's basically been discredited at this point and secondly, it doesn't do anything to stop the Afghans from torturing. It actually sends them the distinctly wrong message that Canada will give them cover for it. That's what MacKay is presently doing, it seems to me, in his vigorous denunciation of Colvin and his refusal to accept the reports all around him. A very poor message he's sending on behalf of Canada.

4. For the record, Ignatieff has pressed the government in the House of Commons before on the issue of torture. See Hansard, for example, from the peak of the spring 2007 allegations:
Mr. Michael Ignatieff (Etobicoke—Lakeshore, Lib.): Mr. Speaker, I have been in Afghan places of detention and I have no confidence in the capacity of the Afghanistan Independent Human Rights Commission to protect prisoners.

They were beaten, whipped, starved, frozen, choked, electrocuted. These are very serious allegations, and Canada's honour is at stake.

When will the Prime Minister replace his incompetent Minister of National Defence with a minister who can make sure our allies and Canada itself respect the Geneva convention?
To suggest that there's some reluctance or avoidance is just not the case. What is the issue is this government's record in respect of what they did when they heard about these allegations. Let's keep that top of mind.