The National Law Journal claims that the War on Terror is the top legal story of the decade. And torture allegations in Afghanistan may prove to be the biggest political issue in Canada for 2010, even as the PM denies Canadian responsibility.
The alternatives raised by pundits hardly seem feasible. Handing prisoners over to the Americans would result in directly complicity in Guantanamo Bay. And the abuses at Bagram were just as bad (or perhaps worse) than Abu Ghraib.
Building our own prisons would hardly work either. It's not cost-effective or practical in a mission that was intended to be peacekeeping. Besides, Canadian soldiers themselves have engaged in abuses in the past. Unfortunately sometimes the soldiers are to blame, and supporting them does not include support of these failures. Sometimes failures may even result in criminal charges, which may help us get to know ourselves better, and hopefully improve for the future.
Not since the invocation of the War Measures Act in October 1970 has Canada experienced a moral crisis to equal the impact of these revelations, in which the chain of military and civilian command, up to and including elected government ministers, stands accused of turning a blind eye to torture; in other words, of knowing complicity in an act that has been outlawed morally since the Spanish Inquisition and formally since the UN Convention Against Torture.
The bigger issue for Canada is the need to reassure the public that we only go to war when it is absolutely necessary, and when we do so, we will do it in a manner that reflects our values.
I'm sharing a working paper on the subject,
A Trial to End All Terrorism: How the United States Could have Won the War on Terrorism Before it Even Began With the Trial of Only One Man.
It outlines how a proper case for self-defence was not made in respect to necessity and proportionality, and Canada's NATO obligations were therefore improperly invoked under international law, points that have been raised before by other legal academics.
The more important part is in the conclusion, which explains how a judicial solution is the only approach towards a nebulously-defined "War on Terrorism," which can never have a definitive victory or conclusion. The implications for this are immense, with the potential for resolution of many diverse conflicts around the world.
Canadians do not fully understand why we are in Afghanistan, and are even less informed about the type of threats we face. It's because of this that I start the paper with a quote by Sun Tzu in The Art of War,
If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.
(Chapter 3: Attack by Stratagem)
If we don't dig deeper to get this kind of understanding towards our conflicts, we're left with a convoluted plan that looks something like this: