Allegations of mistreatment of Afghan detainees

Review from the Office of the Ombudsman | English Services

Summary

Reports about allegations of mistreatment of prisoners transferred to Afghan authorities

You complained after seeing The National, November 19, 2009, that aired two reports examining “whether Canadian military authorities knew about possible mistreatment of prisoners transferred to Afghan authorities.”

The first report concerned the government's rejection of calls for an inquiry into the allegations of torture of Afghan detainees made by Canadian diplomat Richard Colvin. Defense Minister Peter MacKay stated in the House of Commons that Mr. Colvin's testimony was not credible.

The second report asked if the allegation of torture were proven to be true, could Canadians be charged with war crimes? The two interviewees in the report agreed that this could be a possible outcome.

Specifically, you had four objections.

  • First, you were concerned the two experts who were interviewed in the report were biased because “both…practically presumed Canadian soldiers to be guilty of aiding and abetting torture.” You stated that the experts interviewed by the CBC presented similar perspectives that required a dissenting point of view in the interest of fair reporting.
  • Second, you further objected to the CBC's use of the term “torture,” an unproven claim which you believe “has been used very recklessly by both journalists and academics.”

  • Third, you also stated that in wartime, the CBC has failed to appreciate that “there is a vast difference between warfare and a criminal trial”: “There are laws,” you stated, “governing the conduct of our soldiers in combat, but they are not subject to the same legal restrictions as police. In war, there is no presumption of innocence nor a burden of proof beyond a reasonable doubt.”

  • Finally, you said, “given the chaotic history of Afghanistan and the customs and nature of the Muslim world, Canada cannot expect its allies in the region to behave like saints.”

Mark Harrison, executive producer of The National, responded to you on April 21, 2010. He referred to the first report that pointed out the political context of the accusations by Mr. Colvin – that he (Mr. Colvin) had “sent 17 emails warning of torture to 17 senior government and military officials.”

Mr. Harrison also referred to the two interviewees in the second report who “appeared to agree (emphasis added) that if Canadian officials knew prisoners would be tortured, there would be a strong case against them in international law.”

Please forgive the delay in responding. Your request came when I was out of the office dealing with a medical issue and it has taken me longer than I would have liked to deal with the backlog of material.

I should also acknowledge the substantial contribution in research and preparation of this review of Jeffrey Dvorkin of the University of Toronto and the Organization of News Ombudsmen.

Historical and Legal Background

The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) requires signatory parties (including Canada) to take measures to end torture within their territorial jurisdictions. For purposes of the Convention, torture is defined as an extreme form of cruel and inhuman punishment committed under the colour of law. The Convention allows for no circumstances or emergencies where torture could be permitted. Additionally, CAT Article 3 requires that no state party expel, return, or extradite a person to another country where there are substantial grounds to believe he would be subjected to torture. CAT Article 3 does not expressly prohibit persons from being removed to countries where they would face cruel, inhuman, or degrading treatment not rising to the level of torture.

Canadian military efforts in Afghanistan have been intense, even with a smaller presence in the region compared to that of the Americans. The Canadian mission has been a focus of national pride and support among Canadians and this has been reflected in much of the media coverage across Canada as well as on the CBC.

In legal and journalistic circles in Canada and in the United States, an intense debate continues over the legality of the missions in Iraq and now in Afghanistan. Along with this debate, a level of media scrutiny has been focused on the actions of the allied military forces. At the same time, extensive legal arguments over the legality of the Afghan mission specifically and around post 9/11 military actions in particular are part of the debate. These questions have been extensively and appropriately examined on The National.

The question has been raised whether domestic laws and traditions can be or should be applied on the battlefield, and in what form those laws might be applied. While recent events concerning allegations of torture have revived disputes about the rights of combatants and civilians, there is still no settled political or juridical consensus either in Canada or the US.

CBC Journalistic Standards and Practices

The report in question touches on two aspects in the CBC's Journalistic Standards and Practices guidelines.

One is whether the report has been complete and contextual. On the question of balance, the guidelines state in part,

CBC programs dealing with matters of public interest on which differing views are held must supplement the exposition of one point of view with an equitable treatment of other relevant points of view. Equitable in this context means fair and reasonable, taking into consideration the weight of opinion behind a point of view, as well as its significance or potential significance.

Second, did the report, as part of its ongoing coverage of this story, avoid appearing partisan on a matter of great interest and importance for many in the CBC audience? On that question, the guidelines state in part:

Continuing news and current affairs programs must present a balanced overall view of controversial matters, to avoid the appearance of promoting particular opinions or being manipulated into doing so by events… Such continuing news and current affairs programs, particularly magazine programs, are expected to present the general flow of ideas prevalent in our society. This will entail, at times, broadcasting the views of a single author, scientist, thinker, expert, artist or citizen, whose thoughts merit airing on their own account. In performing this role, those responsible for journalistic programming must avoid a cumulative bias or slant over a period of time and must be mindful of the CBC's responsibility to present the widest possible range of ideas.

Your complaint can be centred on two issues: first, was the CBC fair in presenting two experts who both supported the Colvin allegations?

You felt the report should have included a contrary opinion. This was your strongest point since the Colvin allegations were, at the time, without supportive evidence.

The issue became politicized by supporters and opponents of the government's Afghan policy, thus media coverage, by extension, appeared part of that political dispute.

While it may be difficult and even journalistically unsound to seek out a defender of the practice of torture, there might have been greater efforts made by The National to locate a credible expert who might have added an additional perspective to this issue.

In the Toronto Star Professor Wesley Wark, an intelligence expert at the University of Toronto's Munk Centre for International Studies, was quoted as saying that “while the events were shocking to the average Canadian, the government may have been trying to rein in someone they believed to be a renegade.”

The Washington Post's Anne Applebaum has written about the implications of reporting on torture as giving a recruitment boost to both Al Qaeda and the Taliban. She has written that reports of torture appear to confirm the widespread impression that “it endangers our soldiers on the battlefield by encouraging reciprocity.” She also quotes the online liberal magazine Slate that “liberals have a tendency to accept, all too eagerly, fictitious accounts of…torture.”

Both the Star and the Post seem to have had little difficulty in presenting more complete perspectives on this highly emotive issue than did The National in this instance.

Second, you criticized the CBC for assuming that long-held Canadian values need not be applied on a battlefield such as Afghanistan. The stated implication is that in a tough neighbourhood such as the Middle East, there is no room for long-established standards of military comportment.

This is precisely the argument made by former US Attorney-General Alberto Gonzales and former US Vice President Dick Cheney as they sought to abandon the Geneva Convention during the War in Iraq. This is a doctrine that has been largely discredited in legal circles, yet remains stubbornly advocated by a few. Canadian law and international law are extremely clear on this point: Canada's high standards of legality and military justice may not be abandoned as soon as the regiment departs these shores.

This was upheld in the so-called Somalia Affair (1993) where Canadian military personnel were held accountable for the direct involvement in the torture and murder of Somali civilians. These same principles regarding appropriate military behaviour and responsibility remain in effect today.

I find that your complaint is upheld in the first instance and not upheld in the second.

Conclusion

Producers and managers should be reminded that a range of opinionsis the basic requirement of a responsible news organization.

Every effort should be made to provide useful context around complex and emotional events.

Vince Carlin
CBC Ombudsman