As confident as Byers, Schabas and many others are in their assertion that Canada has committed war crimes, the matter is unfortunately far more complex and far less certain. One of the primary reasons for this complexity is that Canada is not the party that allegedly committed torture. It is widely agreed that the acts of torture were undertaken solely by Afghan authorities, making them the perpetrators in this case. If the allegations against Canada turn out to be founded, Canada’s participation could at best be characterised as accessory. This brings the matter into an exceptionally murky area of law that asks the question of how and to what extent accessory liability operates in war crimes both domestically and internationally. These issues will be explored in the balance of this paper. In Part I, theories of individual criminal responsibility will be explored, including the doctrines of causation and complicity. The doctrine of causation attributes liability to principal offenders who cause some prohibited consequence through their own actions. The doctrine of complicity operates differently to create accessory liability for a party to an offence who does not actually commit the crime in question. A principal commits an offence through their own conduct, while an accessory derives criminal liability from the conduct of another through solicitation or facilitation. In the international setting, the doctrine of complicity has given rise to controversial forms of individual criminal responsibility, including: i) conspiracy; ii) criminal organizations; and iii) Joint Criminal Enterprise (JCE). Emerging from the post-World War II International Military Tribunal (IMT) and the International Criminal Tribunal for the former Yugoslavia (ICTY), all three concepts can operate to impute guilt to individuals who somehow participated in collective crimes even if they themselves did not commit the specific crime in question. While these concepts may initially seem to give credence to the allegations of Canadian criminal responsibility in Afghanistan, it will be shown that their liberal use in international law has come dangerously close to guilt by association and as a result they lack legitimacy as legal concepts. In Part II, the question of Canadian accessory liability will be considered under the legal framework of the War Crimes Act; Canada’s implementing legislation for the Rome Statute. The War Crimes Act criminalizes torture during armed conflict as a war crime, similar to the Rome Statute, and generates criminal responsibility for accessory participation in war crimes by reference to the Criminal Code. The operation of the Criminal Code within the context of international crimes has the potential to bring two different systems of law into conflict. A comparative analysis of Canadian criminal law and judicial interpretation of the War Crimes Act will produce an estimation of where the law sits in this regard. In Part III, the Canadian legal framework for accessories to war crimes will be compared with the international framework provided by the Rome Statute. article 2513 of the Rome Statute identifies the specific modes of individual criminal responsibility that, in conjunction with the listed crimes, will satisfy the conduct and fault requirement of an offence. Two of these modes of responsibility are relevant to Canada’s activities in Afghanistan: a) “aids, abets or otherwise assists” (Art. 25(3)(c)); and b) “in any other way contributes to... a crime by a group of persons acting with a common purpose” (Art. 25(3)(d)). While seeming comprehensive, the interpretation of these provisions has proved problematic; particularly with regard to their fault and conduct requirements. Both requirements will be considered in an attempt to provide an interpretation of the provisions consistent with the text of the Rome Statute and, where the text is found lacking, is informed by international jurisprudence and supplemented by general principles of criminal law. Finally, in Part IV, the somewhat ambiguous domestic and international legal framework for accessories to war crimes will be applied to the case of the Canadian Forces detainee transfer operations in Afghanistan. As preliminary investigations are still ongoing, the precise facts of the case are not yet known, and no prediction can be made as to the relative culpability of any of the potential accused. What will be considered instead is the case the prosecution would have to meet if charges were laid in either a Canadian or international forum.
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Deborah Bayley, "Six Degrees of Separation: Canadian Accessory Liability in Afghan War Crimes" (2011) 20 Dal J Leg Stud 61.