Military police watchdog probes transfers to torture

Established in the wake of civilian abuse by members of the Canadian Airborne Regiment in Somalia in 1993 – and the failure of a Military Police (MP) force too integrated into the chain of command to adequately investigate this abuse - the Military Police Complaints Commission (the MPCC) provides independent, civilian oversight for the Canadian Forces military police. At times, however, together with its civilian oversight cousin, the Canadian Forces Ombudsman, the MPCC has seemed somewhat a “bit player” in promoting real reform and accountability. The main story – and this is as it should be – was taking place in the wide-reaching reforms in military justice ushered in by the public inquiries which followed the Somalia affair. These reforms included establishing a Canadian Forces National Investigation Service which reports outside the regular chain of command directly to the Canadian Forces Provost Marshall. In most years since its inception, the MPCC has had a low caseload and rarely exercised its power to hold public hearings.

However, the MPCC’s importance as a civilian oversight mechanism for the Canadian Forces’ roughly 1200 MPs has become apparent in the last year. First of all, its 2008 case load – with 92 new files opened - was the highest since its creation ten years ago. Second, its current probe into the activities of Canadian military police in Afghanistan promises real relevancy and, more importantly, the possibility of shining light on the treatment of detainees by Canadian troops. With a 2008 Federal Court ruling (confirmed by the Federal Court of Appeal with application for leave to the Supreme Court of Canada dismissed in May 2009) that the Charter does not apply to the actions of Canadian Forces personnel in their treatment of Afghan citizens in Afghanistan – even when detainees are under the Forces’ direct control – the judiciary appears to have foreclosed the possibility of judicial oversight of expeditionary military action. Furthermore, the military’s internal investigatory procedures – both the investigation ordered by the Provost Marshall and the Boards of Inquiry ordered by top brass – have found no wrongdoing. And yet there are many unanswered questions. Chief among them is this: why did the Canadian Forces - contrary to our obligations under International Humanitarian Law and the UN Torture Convention - transfer Afghan detainees to prospective torture at the hands of local authorities? And what omissions or commissions did MPs commit in the transfers to torture?

The MPCC’s decision to hold a Public Hearing into the Afghan detainees came in March 2008, roughly one year after its investigation was launched and after the failure of various government departments to fully provide the MPCC with documents necessary for its investigation. Hearings began at the end of May of this year and, after 5 days of establishing the wider context of the Canadian Forces engagement in Afghanistan, will reconvene in October.

It should be noted that the MPCC’s hearings are operating under a cloud. The federal government has brought an application for judicial review into the Commission’s decision to hold a public hearing, arguing that the inquiry does not involve members of the military police in the performance of any “policing duties or functions”. Fortunately, the government’s request for a stay of the hearings until the full judicial review application is heard was refused by the Federal Court in April 2009.

One of the complainants before the MPCC, Ottawa University’s Prof. Amir Attaran, has criticised commission counsel for taking a non-adversarial approach at the start of the May hearings. However, given the Commission’s determination to go ahead with the hearing despite vigorous government opposition, and its wide subpoena powers, the hearings this coming fall do offer the best prospect of accountability for the transfers to torture.

Posted by Professor Christopher Waters, University of Windsor, Faculty of Law