Why is Canada failing when it comes to the laws of war?

Canadian soldiers report evidence of war crimes to no avail

Back in May 2021 David Pugliese reported that Canadian soldiers had complained to their commanders in September 2018 that the Iraqi troops they were training were war criminals who liked to show videos of their atrocities including rape, torture and execution:

At least five Canadian Forces sergeants and two master corporals saw the videos, which they immediately reported to their leadership in Iraq.

Pugliese further wrote that:

The Canadian personnel were told by their officers the problem would be dealt with, but they were to continue with their processing of the Iraqi troops for training.

However, repeated attempts on their part to determine if their complaints had been acted upon proved fruitless.

Picking up the story on 6 June CBC’s Murray Brewster, after noting how much Canadian military and civilian leadership in Ottawa knew of the complaints is a “matter for debate”, goes on to write:

The matter might have been buried and forgotten had it not been for a briefing note prepared recently for the new commander of the 3rd Battalion Royal Canadian Regiment, based in Petawawa, Ont.

The briefing note references the efforts made by soldiers to have the matter addressed and the ‘traumatizing’ effect of the experience on the soldiers, with one stating:

I am an ethical man and I believe in our moral doctrine and the LOAC (Law of Armed Conflict). I am bothered by the fact that my assigned duties allowed me to train and enable people who in my mind were criminals.

Acting Chief of Defence Staff takes action

The briefing note seems to have belatedly awakened the Canadian military to the seriousness of these allegations, with acting Chief of Defence Staff Lt. Gen. Wayne Eyre stating:

When I heard the allegations of this, it gravely concerned me [and] I’ve ordered an investigation into it to determine the facts.

This apparently includes military police interviewing the Canadian soldiers who first made the allegations.

The Canadian training mission in Iraq, part of Operation Impact, was extended on 30 March 2021 until 31 March 2022, with the recent federal budget allocating significant funds to this effort.

Crimes Against Humanity and War Crimes Act

Canada’s national legislation for the prosecution of war crimes and crimes against humanity, as defined in the Rome Statute of the International Criminal Court (ICC), states:

Breach of responsibility by military commander

(1) A military commander commits an indictable offence if

• (a) the military commander
  • (i) fails to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence under section 4, or
  • (ii) fails, after the coming into force of this section, to exercise control properly over a person under their effective command and control or effective authority and control, and as a result the person commits an offence under section 6;
• (b) the military commander knows, or is criminally negligent in failing to know, that the person is about to commit or is committing such an offence; and
• (c) the military commander subsequently
  • (i) fails to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence, or the further commission of offences under section 4 or 6, or
  • (ii) fails to take, as soon as practicable, all necessary and reasonable measures within their power to submit the matter to the competent authorities for investigation and prosecution. [emphasis added]

The highlighted portion of the legislation (breaches of which are punishable under the Criminal Code of Canada) makes it clear that the duty is not just to provide a cursory report but to take all “necessary and reasonable measures” to submit the matter to “the competent authorities”.

In this case that would mean following up both within the Iraqi national authorities and international entities, including the International Committee of the Red Cross and the Office of the High Commissioner for Human Rights at the United Nations.

General Vance was warned about inadequate vetting of Iraqi soldiers

More fuel was added to the fire when Lee Berthiaume of the Canadian Press reported that:

A secret memo has emerged showing that Canada’s top military commander was warned last year that the vetting of Iraqi security forces associated with a Canadian-led training mission in the country lacked “sufficient depth.”

At this point it is appropriate to recall the original report by David Pugliese, where he focused in particular on the issue of vetting Iraqi soldiers. He wrote:

Maj.-Gen. Dany Fortin, then Canadian commander of the NATO training mission in Iraq, told journalists he was confident the alliance would be successful in screening out any war criminals.

In the words of Gen. Fortin:

I think we have a pretty good vetting process in place to screen out those potential instructors to ensure we have quality people, that they — the Iraqi government — feel confident with,” Fortin said.

The explanation by military spokesperson Maj. Melinda Archambault, that the memo did not relate to the atrocity video incident but other vetting issues, seems to entirely miss the bigger point that there was a problem with vetting Iraqi soldiers – period.

Role of the Judge Advocate General

Conspicuously absent in all of the reporting on this disturbing course of events is any reference to Canada’s senior military law officer, the Judge Advocate General. The relevant page of the DND website describes her or his role as follows:

The Office of the Judge Advocate General oversees the administration of military justice. We offer legal advice to the Governor General and the Minister, as well as at bases and wings, and all across National Defence.

We provide lawyers to defend accused persons at courts martial, teach courses to military members, and advise commanders on the ethical and legal principles established by both the Canadian Armed Forces (CAF) and the Government of Canada.

Elaborating on the range of legal services provided by military lawyers under the overall auspices of the JAG, Professor Andrew Flavelle Martin describes five substantive divisions of work, including the Operational and International Law division, providing legal support to deployed CAF elements in all aspects of military law.

RI President Peggy Mason comments:

During my 18-year association with the Pearson Peacekeeping Centre, I heard many eloquent lectures by Canadian Judge Advocates General on Canadian military responsibilities under the laws of war. Yet, we have these glaring examples of what seems to be a complete failure in legal oversight.

NDP calls for independent inquiry

Alleging a disturbing pattern that goes all the way back to Canadian conduct in Afghanistan, NDP defence critic Randall Garrison believes the time has come for an independent inquiry:

Why is that happening? I think there needs to be an independent inquiry. Is this the fault of certain senior leaders?

Or is there something systemic here that causes us not to uphold international (law) and even our own national law?

For more on the failure of the Canadian government to adequately investigate extremely serious allegations of Canadian complicity in war crimes in Afghanistan, see: Torture of Afghan Detainees: Canada’s Alleged Complicity and the Need for a Public Inquiry (Omar Sabry, Rideau Institute reports, September 2015).

See also our March 2020 blog reporting on the decision by the Appellate level of the International Criminal Court (ICC) to authorize an investigation into alleged war crimes and crimes against humanity by Afghan, Taliban and US forces and its implications for Canada.

On the merits of a public inquiry, the blog references a high level Open Letter signed by 41 human rights experts, former and current leading parliamentarians and other eminent Canadians which stated in part:

A public inquiry would serve to authoritatively investigate and report on the actions of all Canadian officials in relation to Afghan detainees, and to review the legal and policy framework that attempted to justify these actions. Based on this review, the Commission would issue recommendations with a view to ensuring that Canadian officials never again engage in practices that violate the universal prohibition of torture.

Whither Canada?

Part of the training that Canadian forces are supposed to be providing Iraqi forces relates to their obligations under international law. How can we possibly have any confidence in this training if the Canadian military chain of command is not scrupulously following that law as well?

We call on the Government of Canada to forthwith institute an independent inquiry into the handling of the video atrocities incident in Iraq.

We also reiterate our longstanding call for a public inquiry into the allegations of Canadian complicity in war crimes in Afghanistan.

And now for some shorter updates on ongoing topics of concern.

Understanding the China Belt and Road Initiative (BRI)

For a non-political, non-polemical assessment of this massive Chinese infrastructure initiative, see the OECD study entitled: China’s Belt and Road Initiative in the Global Trade, Investment and Finance Landscape (OECD Business and Finance Outlook 2018).

The authors describe the report thusly:

This report explores and quantifies parts of the BRI strategy, the impact on other BRI-participating economies and some of the implications for OECD countries.

On the overall purpose of the BRI, the report states in the introduction:

The world has a large infrastructure gap constraining trade, openness and future prosperity. Multilateral development banks (MDBs) are working hard to help close this gap. Most recently China has commenced a major global effort to bolster this trend, a plan known as the Belt and Road Initiative (BRI).

For an examination of the divergent European and American perspectives on BRI, see European versus American Perspectives on the Belt and Road Initiative (Madi Sarsenbayev and Nicolas Véron, piie.com, 29 March 2020).

For a brief analysis of the Canadian approach which includes lots of great footnotes to further articles, see How China’s Belt and Road Initiative Affects Canada (Aryan Bajpai, kroegerpolicyreview.com, 29 March 2021).

Update on Iran nuclear deal negotiations

Indirect negotiations between Iran and the USA, facilitated by other parties to the 2015 nuclear accord, are set to resume on the weekend of 10 June. This would be the sixth round of indirect talks.

For an extremely interesting and hopeful analysis of the potential non-impact of the upcoming Iranian elections on the negotiations, see the 7 June analysis in the Bulletin of Atomic Scientists by Sina Azodi, entitled: Iran elections and the nuclear deal: Why Biden can’t lose, no matter who wins.

The article concludes:

As long as the United States continues to fully implement its commitments under the JCPOA, the next Iranian administration, regardless of its political affiliation, is likely to abide by the terms of the agreement. Joe Biden need not lose any sleep over this in the coming weeks.

Rideau Institute joins global call for Biden and Putin Summit to adopt No-First-Use Policy

Legislators from a mix of nuclear armed, nuclear allied and non-nuclear states have joined other political, military, academic, religious and civil society leaders in an Open Letter released yesterday (June 10), by Parliamentarians for Nuclear Non-Proliferation and Disarmament.

It calls on US President Joseph Biden and Russian President Vladimir Putin to use the opportunity of their June 16 Summit in Switzerland to:

• reduce tensions between the two countries,
• lower the risks of a nuclear exchange and
• recommit to the goal of a nuclear-weapon-free world.

In particular, the letter states:

Now is the perfect time for you to declare a joint commitment that your nations will not use nuclear weapons first under any circumstances, and to make this a key step toward fulfilling the UN goal to totally eliminate nuclear weapons from the planet.

We will report on the outcome of the Summit in our 18 June blog.

Youtube recordings now available for the entire IPD Middle East Security Forum 2021

For the full playlist of sessions, click on the three lines in the upper right corner of the embedded link and then choose the one you wish to view.

Photo credit: CAF images (Afghanistan 2004)