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Canada could face investigation from international court it’s fighting to save

A Canadian Army soldier from Bulldog Company, 1st Battalion, 22nd Royal Regiment, enters a house during a patrol in the Panjwai district of Kandahar province, southern Afghanistan June 25, 2011. The ICC is on the verge of announcing whether it will launch a full formal investigation into war crimes in Afghanistan – including crimes by the U.S. military. As a close partner of the United States in the Afghan military campaign, Canada is believed to be among the likely targets in this investigation.


Foreign Minister Stéphane Dion is campaigning across Africa to save the beleaguered International Criminal Court – although Canada itself could soon be a target of a war-crimes investigation by the court.

Canada, which played a key role in creating the international court in the late 1990s, is fighting to quell an African rebellion that threatens the court's future. Three African nations have already announced plans to quit the court, and several others are on the verge of doing so.

"We should not overreact and panic," Mr. Dion told The Globe and Mail on Thursday night in an interview from Ethiopia, the last country on his week-long Africa tour.

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He said it was "very sad" that some African countries are planning to abandon the court, but he added: "We need to help African countries to find a solution and to suggest it to the world. We will encourage African countries to stick together on this issue."

Many Africans have complained that the court is biased because it has prosecuted only Africans so far. No Western officials have ever been charged by the court.

The ICC, however, is on the verge of announcing whether it will launch a full formal investigation into war crimes in Afghanistan – including crimes by the U.S. military. As a close partner of the United States in the Afghan military campaign, Canada is believed to be among the likely targets in this investigation, especially because of allegations that Canada handed over hundreds of detainees for near-certain torture or death at the hands of Afghan police and soldiers.

The ICC has been conducting a "preliminary examination" of Afghanistan-related crimes for years, but there are reports that it could soon announce that the preliminary review has been converted into a full investigation.

"We have advanced significantly in the preliminary examination in that particular situation of Afghanistan," chief prosecutor Fatou Bensouda told the France 24 television channel this week.

Her office will probably release a report on the Afghanistan review and other cases next week, she said.

Mr. Dion told The Globe that it is too early to say how his government might react to a formal war-crimes investigation. But he said: "We are part of the ICC, so we'll work with the ICC. We have confidence in the ICC as an institution, and we'll not pick and choose."

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On Wednesday, Mr. Dion met Kenyan President Uhuru Kenyatta, who has himself faced charges of crimes against humanity for his alleged role in stoking ethnic violence after a 2007 election. The ICC dropped the charges last year after witnesses were allegedly bribed and intimidated into changing their testimony.

Mr. Kenyatta has led the African attack on the ICC, accusing it of bias – a charge that Canada rejects. "The court is responding to real needs," Mr. Dion said in a speech last week. "It is normal that not all problems in the world at a given time are evenly distributed."

Foreign Policy, a U.S.-based publication, quoted "multiple sources" as saying that Ms. Bensouda "will seek to initiate an investigation in the coming weeks" on the Afghanistan issue.

The investigation, if launched, would cover all possible war crimes in Afghanistan, including those by the Taliban, Afghan forces and foreign forces. It would probably provoke a legal wrangle with the U.S. administration, since the United States is not a member of the ICC, but the court believes it can investigate crimes in non-member countries.

If there is an ICC investigation of alleged crimes in Afghanistan, it would be difficult to exclude Canadian military conduct. Craig Scott, a former MP who is now a law professor at Osgoode Hall law school in Toronto, says the former ICC prosecutor Luis Moreno Ocampo told him that the court's investigative office has already begun looking at the conduct of all forces in Afghanistan, including Canadians.

Mr. Scott said he is planning his own submission to the ICC, providing new evidence and analyzing the legal reasons why the court should investigate Canada's conduct in Afghanistan. He says the court should also look at the complicity of high-level Canadian officials who were involved in the decision to let Canadian soldiers hand over detainees to Afghan forces despite the knowledge that they could be tortured or killed.

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Before the ICC can launch a formal investigation, it must be satisfied that the country's own domestic institutions are unwilling to pursue justice. But there is clear evidence, since the Afghan detainee scandal first erupted in 2007, that Canadian agencies are unwilling to investigate, Mr. Scott said.

He noted that Mr. Dion was an MP on a parliamentary committee in 2010 that reviewed thousands of secret government documents on the Afghan detainee issue. After reviewing the documents, Mr. Dion told reporters that there was a "very high" likelihood that Afghan detainees were tortured in custody. The documents showed that the government should face questions from Canadians about the detainee issue, Mr. Dion said at the time.

Earlier this year, Mr. Scott and other prominent Canadians, including former prime minister Joe Clark, petitioned the federal government to call a judicial inquiry into the alleged torture of Afghans detained by Canadians. The government rejected the call.

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About the Author
Africa Bureau Chief

Geoffrey York is The Globe and Mail's Africa correspondent.He has been a foreign correspondent for the newspaper since 1994, including seven years as the Moscow Bureau Chief and seven years as the Beijing Bureau Chief.He is a veteran war correspondent who has covered war zones since 1992 in places such as Somalia, Sudan, Chechnya, Iraq and Afghanistan. More


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