Erna Paris is the author of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice.
Eugene Ionesco's comic play, Amédée, featuring a "corpse" in a closet that extends grotesque members during an urbane dinner party, was almost certainly intended to spoof the blindness of the French to their wartime collaboration with the Nazis; but the playwright's metaphor can be extended to other willful hidings, including one now facing the government of Canada.
Canada's unexamined role in transferring captured Afghans to notorious prisons where they were certain to be tortured is another stubborn entity that keeps popping out of the cupboard. Both former prime minister Stephen Harper and current PM Justin Trudeau have tried to ignore the unwelcome visitor, but it will not be snubbed.
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Torture is a war crime, and you don't have to be the torturer to be culpable. A state that intentionally transfers a detainee to torture is guilty under international law, including the Geneva Conventions, which state "the Detaining Power is responsible for the treatment given to prisoners of war."
In November, Craig Scott, a former NDP MP and a professor of law at Osgoode Hall, sent a 90-page brief to the International Criminal Court in The Hague in which he argued that Canada has abdicated its legal obligation under the Rome Statute, the ICC's underlying charter, to investigate long-standing reports of having handed prisoners over to torture. His timing is propitious: Earlier that same month, prosecutor Fatou Bensouda opened an investigation into alleged war crimes and crimes against humanity in Afghanistan involving Afghan forces and the Taliban – and American troops. Mr. Scott believes there is enough evidence to warrant adding Canada to this list; he claims that there are "multiple persons" who know much, but who will come forward only if there is an official ICC probe.
He hasn't had to look far for evidence. In 2007, Graeme Smith researched an investigative feature for The Globe and Mail in which he interviewed 30 men who'd been transferred by Canadian soldiers to Afghan jails. They spoke of being whipped, starved, frozen and choked. They did not accuse Canadians of inflicting the abuse; they did say that the soldiers were aware of these events.
Although Mr. Smith's reporting exploded like a bombshell (and is raised by Mr. Scott), the determined denizen of the closet also made other appearances. After a similar article appeared in La Presse, two Canadian international law experts, William Schabas and Michael Byers, wrote to the ICC requesting a preliminary investigation.
In 2009, Richard Colvin, a high-ranking diplomat in Afghanistan, testified that as far back as May, 2006, he had informed his superiors in Ottawa about torture in Afghan prisons. His reports, he said, were ignored. He was ordered to stop putting them in writing. Worse still, he received a warning missive: "We trust that you will conduct yourself according to the interpretation of the Government of Canada" – and a second notice informing him that the Justice Department would take legal action if he filed documents. In other words, he might end up in jail. Mr. Colvin was ridiculed. General Rick Hillier dismissed his claims as "ludicrous." Peter MacKay, then defence minister, said "Let us get beyond the rhetorical flourishes."
They were rightly scared; the implications of Mr. Colvin's revelations were potentially ruinous. Canada's governing party – the keeper of our country's vaunted commitment to the rule of law and human rights – stood accused of ignoring criminal behaviour. At the time, the Liberal opposition was outraged by the presumed cover-up.
With the recent announcement that an investigation will be opened – and that the United States will also come under scrutiny – Mr. Scott's brief to the prosecutor has a strong chance of success. The Trudeau government has acknowledged that, like the Conservatives, it has never addressed the issue. Because both Canadian parties failed to do so when in power, it now falls to the ICC prosecutor to pursue the case.
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How ironic that Canada, whose current leader has fashioned his mandate on human rights and the rule of law, may be subject to an international investigation for having failed to respect the rules of the world's first court to prosecute war crimes and crimes against humanity – the very tribunal this country worked so hard to create.
Only a full investigation will serve the interests of justice. Canada's reputation in the world may soon depend upon its willing compliance.