Military told to heed abuse claims

Rating: 
5

JAG memo to top brass in 2007 said all reports of detainee torture must be investigated

Richard J. Brennan, Ottawa Bureau – Feb 25, 2010

OTTAWA–Canadian military brass were told it was a crime to ignore allegations of prisoner abuse and that it was their duty to investigate it, according to a top secret document revealed to the Toronto Star.

Buried in documents withheld from a special parliamentary committee by the Conservative government, the May 22, 2007 five-page memo from the Judge Advocate General (JAG), Brig.-Gen. Ken Watkin, followed on the heels of a series of media reports and diplomatic dispatches alleging serious prisoner abuse.

"There is a smoking gun here to show that there was legal opinion about the obligations of Canada in the field and it clearly states if we are transferring detainees (into harm's way) we could potentially be in violation of international laws," NDP MP Paul Dewar (Ottawa Centre) said Wednesday.

In the widely distributed memo, which was sent to then-chief of defence staff Gen. Rick Hillier and Lt.-Gen. Michel Gauthier, now both retired, Watkin stated that senior officials ignore warnings of prisoner torture at their own peril.

"Military commanders who know, or are criminally negligent in failing to know, that a transferred detainee would be subjected to such abuse have the obligation to take all necessary and reasonable measures within their power to prevent or repress the commission of such abuse. They may also be subject to criminal liability for failing to submit the matter to competent authorities for investigation and prosecution," Watkin, the military's top lawyer, wrote.

The JAG office, whose role is to uphold the ethical and legal principles established by the Forces and the government, noted that a range of offences related to mistreatment of detainees was available under Canada's Crimes Against Humanity and War Crimes Act, the Criminal Code of Canada and the National Defence Act. A copy also went to deputy minister of defence, whose job it was, critics say, to pass it along to the defence minister.

The Conservative government has been at the centre of a maelstrom for several months over accusations that it knowingly allowed Canadian forces to turn over prisoners to Afghan officials despite widespread reports of abuse.

Observers say the memo is further evidence the Canadian public is not getting the full picture of Ottawa's role in the torture of prisoners.

Stuart Hendin, a University of Ottawa expert on armed conflict and human rights law, said the detailed warning to Hillier and Gauthier now suggests "their credibility, when they gave the testimony, is suspect."

"The key is they ought to have known that they (detainees) could be subject to abuse or torture," said Hendin, who has written several papers on the treatment of prisoners and legal implications.

Hendin also said the opinion seems to indicate senior military officials could be vulnerable to prosecution from the time the first detainee agreement was reached in 2005 until the time of the opinion.

Both Hillier and Gauthier told the committee no credible information on torture was brought to their attention, despite multiple reports of torture in Afghan prisons from various organizations, including the Red Cross, NATO and the Afghan Human Rights Commission.

Watkin's memo states that as long as there is even a hint of torture, senior military personnel have an obligation to look into it and take whatever action is necessary to address it or face the consequences.

"I can now see why he didn't want to disclose one iota of information," Liberal MP Ujjal Dosanjh (Vancouver South), said of Watkin's appearance before the Afghan committee in early November when he leaned heavily on solicitor-client privilege.

Dosanjh said the repeated denials of any wrongdoing in the prisoner transfers "is an outright lie" and that it was appropriate for the JAG to issue a warning to the military and indirectly the government.

Craig Scott, a professor of international human rights law at Osgoode Hall Law School, said: "If there's this paper trail of good legal advice going against what the government is doing, it's even more likely (the federal government violated its obligations under international law)." Since last fall, Prime Minister Stephen Harper's government has been accused of covering up details of prisoner abuse in Afghanistan. It has responded by refusing to release internal documents to Parliament's special committee on Afghanistan and by shutting down a Canadian Military Police Complaints Commission probe.

Senior diplomat Richard Colvin, who was second in command at the Canadian embassy in Kabul in 2006 and 2007, rocked the government and military when he told the House of Commons committee Afghan prisoners transferred by Canadians to local authorities in Kandahar were likely all tortured – while high-level officials in Ottawa looked the other way.

With files from Allan Woods

Original article on Toronto Star website