Final

Question 1

​In the article “Faux Internationalism and Really Existing Imperialism,” Ellen Brun and Jacques Hersh analyze the impact of humanitarian interventions. What are Brun and Hersh’s main arguments, what is the main evidence used to support these arguments, and what are the strengths and weaknesses, errors, or omissions of this analysis?

Answer 1

• Main argument is that the rhetoric of humanitarian interventions (playing up humanitarian concerns) has been used as a front to intervene in sovereign countries’ affairs and legitimize military operations that advance national interest of hegemonic powers
• Cites 1948 guidelines of US foreign policy under Kennan who talks about need to preserve unequal distribution of world resources (50% of world’s wealth despite having only 7% of population)
• Cites many Western leftists backing war in Libya and criticizing leftist Latin American governments’ support of Qaddafi despite 20-40k deaths up from 1k when NATO intervened, encouraged by Arab countries in US sphere like Qatar + Al Jazeera
• Libya represents fault-line in international politics where US backed coalition supposedly represents international will despite non-participation of governments representing more than 50% of world pop (thus showing that new players such as China and India are beginning to demand their share of world resources and are running against US interests in places like Africa)
• Links the rhetoric surrounding the high era of European imperialism (for their own sake uncivilized countries should accept liberation based on export of European commerce, Christianity, civilization) to modern rhetoric with humanitarian interventions (same North-South asymmetric relationship, Blair advisor Robert Cooper who talks about Western states competing against states with no regard for values)
• Double standard in terms of which regimes are chosen to be overthrown (nationalist regimes like Libya and Mossadeq in Iran overthrown while regimes like Saudi allowed to exist because in US sphere)
• Ends by saying that with this in mind Western leftists should be critical of the rhetorical foundations of interventionism lest they become useful idiots of actual imperialism

Question 2

Mirah Williamson’s critiques of Afghan War

Answer 2

• No legal right to declare war because 9/11 did not constitute armed attack (did not cross threshold for armed attack vs use of force so should have used other response, just a crime since Bush referred to them as acts of murder and employing law enforcement against terrorists, congressional resolution described attacks as “treacherous violence” and not acts of war)
• 9/11 conducted by non-state actor that wasn’t directed by Afghan government (precedent in Nicaragua case that arming rebels did not constitute armed attack)
• Response was not proportional and too much harm inflicted on Afghan civilians
• Response did not pass self defense (Caroline test of instant, overwhelming, no choice of means and no room for deliberation), took 26 days to launch first strikes
• Al Qaeda and Taliban are separate organizations and even if had right to attack Al Qaeda, the latter did not attack US and thus no right for attack (head of Taliban Omar reported to have condemned 9/11 attacks)
• Not explicitly authorized by UNSC since language of texts that address it is different than things like Korean War

Question 3

Arguments for Afghan War

Answer 3

• Were an armed attack (culmination of series of things such as destruction of US embassy in Kenya, also historically costly in terms of human and economic cost)
• US had already used military force as initial response such as NORAD deploying fighter jets to try and intercept (same as Pearl Harbor where DOW accompanied by law enforcement to intern Japanese)
• Argument that Nicaragua ruling has been overturned by state custom, also international law has evolved (such as definition of crimes against humanity changing from just state action, Teditch case prosecuting Serbs in Yugoslav war says non-state actors can be treated like state actors in international law)
• Given frequency and scale of combat operations, frequency of civilian casualties were actually quite low (so actually proportional) and fact that units embedded in civilian areas made casualties inevitable (Karzai’s relative who failed to stop approaching convoy –> possibly suicide bomber)
• 26 days to launch attack might have been fine in self defense response time since needed to deploy infrastructure due to inhospitable Afghan terrain
• Taliban was only recognized by 3 countries as legitimate governing body of Afghanistan, Omar’s claim that would have been happy to turn Bin Laden to third party court disproved by fact that he blocked attempts to prosecute him
• Text of UNSC resolutions are often wildly varied and resolutions addressing 9/11 do use phrases like “all means necessary”
• US and its allies did not need UN authorization to go to war (Article 51 that says nothing will impair inherent right to self defense)

Question 4

Legality of Iraq War

Answer 4

• Prelude was first Gulf War and problems with the sanctions regime (failure of sanctions to enforce the armistice agreement leads to resumption of use of force against Iraq and call for support from international community)
• Bush administration sought to seek legitimacy via principles of preemptive war (production of destructive weapons meant that could no longer wait for self defense of Caroline test although now know that these programs were effectively halted) and implied that Iraqi regime was supporting terrorist organizations (now know that only paying reparations to families of Palestinian suicide bombers)
• Widespread belief at time that Iraq was in fact cheating and question was extent of cheating and what needed to be done (Iraqi scientists were not allowed to leave country to talk to inspectors, government often amended reports about its weapons programs, many senior Iraqi military leaders also suspected hidden weapons)
• Argued that original resolution authorizing the Gulf War was still intact and did not require new one (although did seek new resolution in UNSC with UK but did not get enough support), international community quite divided with countries like UK supporting and France dissenting, Canada formally declined to participate in Iraq invasion but did not condemn the invasion as illegal and allowed Canadian forces personnel serving on exchange to participate in the conflict

Question 5

Yugoslavian war

Answer 5

• Slovenia and Croatia attempt to break away from rest of Yugoslavia which is dominated by Serbs, Bosnia breaks away afterwards, then Kosovo
• Complex mix of ethnicities and religions throughout countries makes fighting very deadly
• Belligerents in Kosovo are Serbs (under Milosevic and his Yugoslav National Army), Serb paramilitaries under Karadzic and Mladic, Croations under Tudman, Bosniaks under Izetbegovic (all sides commit war crimes)
• Ferocity of Serb war crimes generally gets international community on side of Bosnians, UN sets up save havens but flight of Bosnian military personnel to them leads to Serbs storming them and 10k Bosnians die (international community divided on response, Serbs take UN personnel hostage as human shields, eventually US and NATO are able to bring belligerents to sign Dayton Accords that split up Bosnia-Herzegovina)

Question 6

Kosovo phase of Yugoslav war

Answer 6

• Kosovars do not like loss of little autonomy at hands of Milosevic, entertain merge with Albania, try non-violent opposition to Serb government initially but pushed aside in favor of violent groups as war goes on and use methods of terror that aggrieve Serbs (Serbs also argue that trying to amend territorial wrongs committed by Ottomans) so Serb government deploys paramilitaries who persecute dissidents
• International community much faster to intervene compared to earlier phases of war since believed non-intervention would lead to more tens of thousands of deaths
• NATO response leads to Serbs saying that use of force never employed against NATO so no argument for self defense, also UNSC never sees any resolution presented to try to authorize action (Russia made it clear would veto), no GA uniting for peace (Yugoslavia had many allies so might have been defeated)
• Arguments for intervention include customary right to intervene against things like genocide that existed prior to Charter, enough cases in which states have employed force for humanitarian purposes since Charter that Serbia could not just hide behind Charter such as ECOWAS intervening in Liberian civil war, UN was essentially endorsing NATO actions by stepping in to secure Kosovo after the fact (instead of trying to reverse)
• ICJ eventually says that did not have jurisdiction to make formal ruling (since NATO allies did not want it to make ruling and Serbs did – requires voluntary participation both sides)

Question 7

Development of humanitarian interventions

Answer 7

• International Committee on Intervention and State Sovereignty after Kosovo releases R2P report: model for interventions cites authorization via 3 ways (UNSC, GA, possibility of regional security organization) and define humanitarian intervention as taking side of victim vs aggressor without consent of target state
• 2005 UN World Summit that endorses using peaceful means to accomplish goals of protecting populations (such as chapter 6 or 7 peacekeeping, diplomatic action), also use of force only when authorized through Security Council (which itself endorses concept in 2006)
• Security Council despite endorsement has never explicitly described and authorized use of force as humanitarian intervention (although aspects of concept have been raised such as in Darfur conflict where UNSC instead chose to strengthen AU peacekeeping force, Kenyan Crisis where chose diplomatic measures that successfully ended violence)
• Myanmar during 2008 hurricane crisis refuses foreign aid (government wants to retain political control), fears that more deaths would result in aftermath lead to French concerns that force should be employed to get assistance to survivors; ends up being compromise where tightly restricted aid providers allowed while military assistance disallowed
• Libya and Ivory Coast while not fully authorized interventions implemented aspects (Ivory Coast authorized to use all necessary means to protect civilians and aircraft used to attack military installations in order to get President to step down – case can be made that was humanitarian intervention in everything but name although UN says not taking sides in sense that was protecting all civilians so not party to dispute)

Question 8

Arguments in favor / against humanitarian interventions

Answer 8

• UN Charter 2(4) explicitly prohibits use of force as a tool to resolve international disagreements and no provisions exist for humanitarian intervention so not even UNSC can authorize them (counterarguments are that UNSC unbounded, UNSC has also defined lots of varying things as threat to peace such as nuclear weapons testing in DPRK, article 2(4) has been violated so many times that it is now meaningless – concept of desuetude)
• Counterargument to desuetude is that it not only opens door to use of force for humanitarian purpose but also to any purpose (can also be said that international custom is creating special exception for R2P that may become legally binding; however sources like SecGen speeches and expert panels not considered primary sources of international law, different types of organizations like UNSC and regional security orgs have endorsed principles of humanitarian interventions differently, also if this becomes norm is any treaty worth its paper?)
• Use of force against failed states that have lost their legitimacy should not be considered violation of sovereignty (problem is threshold of legitimacy and humanitarian intervention)
• Genocide Convention has three things states should do to prevent genocide (pass laws to prevent domestically, try criminals or refer them to other courts, and most relevantly refer to UN to take action under Charter) so might already be legal basis
• Major critique is that humanitarian intervention is deeply flawed and actually based out of political and economic interests of states that undertake them (problems of unimportant regions will be ignored, third world countries view any violation of sovereignty with suspicion as evoke colonial past)

Question 9

Background to Libya conflict

Answer 9

• Arab Spring uprisings inspire protests in Benghazi, Qaddafi forces accused of attacking peaceful protestors so UNSC imposes economic sanctions, initially looks like rebels will easily overwhelm Qaddafi but large treasury allows hiring of forces from neighboring states and rebels pushed back in Tripoli and other places
• Other groups than NTC fighting for control include tribal factions, Islamist groups
• France recognize NTC as legitimate representative of Libyan people and more aid starts to flow, UNSC passes resolution authorizing all necessary measures to protect civilians under attack (not to help rebels) and Arab League endorses, not all international community on board (US supports on condition that US forces not required to take lead, 5 UNSC members abstain including Russia China based on US interventionism, India argues moving too fast and cites commercial ties, Germany based on non-interventionist tendencies, Brazil due to troubling precedent of more interventions)

Question 10

Libya intervention

Answer 10

• After UNSC resolution passed start large scale airstrikes initially mainly by US UK France, NATO countries and Arab allies like Jordan Qatar UAE contribute too
• Arab League head soon after publicly deplores attacks against Libyan forces, shows that even though some countries contribute and officially still support mission not really that much support in Arab League
• Canadian Charles Bouchard appointed as head of mission, conflict starts to settle into a stalemate and reports emerge that rebels also engaging in human rights violations such as executing POWs, killing dark skinned Africans on sight since associated with regime mercenaries, employing child soldiers, hiring senior former Qaddafi officials
• Canadian JTF2 special forces sent into Libya with unclear purpose
• By May, reports that Qaddafi government employing human shields, countries like US UK France provide more arms to rebels citing all necessary measures in resolution
• After summer, Qaddafi forces collapse from sustained military support, Qaddafi flees Tripoli and killed in Sirt
• Post intervention Libya has been mixed bag with periods of security and conflict (although not as bad as Syria), lots of factions still vying for control (two main ones are internationally recognized government that controls small area around Tripoli, military faction in Western part of country, hardline Islamist groups have made little progress but control sporadic areas as both big factions have targeted them and have had infighting)
• Many mercenary fighters from Western Africa have returned to their own country to stir up more fighting

Question 11

Early conceptions of Jus in Bello

Answer 11

• Aztec battles were sometimes fought between set numbers of people at set place (ritual of war)
• Ancient China, people like Sun Tzu suggested that lives of innocent people should be respected in war
• Ancient Greece people like Plato right books on conduct of war
• Indian Code of Manu talks about not using barbarous weapons, respecting civilians, etc.

Question 12

Hugo Grotius

Answer 12

• Writer during 30 years war, before him most scholars considered the question of how wars justly arise and viewed conduct in war as anything goes
• Differentiated between combatants (members of armed forces with uniforms, open carry, etc.) and non-combatants (everyone else) and only former group can be deliberately and directly targeted in war (does not mean every civilian death is violation of war since locations directly connected to war may be deliberately targeted – refers only to places that are components of war effort like mines and arms factories)
• Weapons cannot cause gratuitous harm such as barbed spears, expanding bullets (only really used by air marshals who do not want bullet to pass through), things like land mines and poison that can potentially kill civilians
• Once soldier is captured / surrenders / wounded, they should be treated like non-combatant and are no longer legitimate target

Question 13

Development of Jus in Bello

Answer 13

• Writings like people like Grotius are secondary sources, formal efforts start in mid 19th century with Declaration of Paris treaty that attempts to set rules regarding blockades, contraband, outlaws privateers
• In US Civil War, Union officer Dr. Liber issues field manuals as reference for allowed actions, soon widely copied by other states like France, Italy, Russia
• St. Petersburg Declaration that prohibits small exploding anti-personnel bullets
• Hague Peace Conferences that try to codify customary practices such as no poisoned arms, weapons that cause superfluous injury (actual effects are limited since contain all participants clause which means belligerents only bound by clauses if all other parties also signatories – so non-signatories in WW1 use gas which allows other to use gas)
• Martens Clause of Hague Peace Conferences says that until more comprehensive laws of conduct are established, populations still remain under protection of law by way of human conscience and established norms

Question 14

Prohibitions on and uses of chemical weapons

Answer 14

• WW1 was commonly employed and in separate conflicts such as Italy in Abyssinia
• Geneva Gas Protocol governed use of production, preparations, testing but WW2 combatants all developed extensive chemical and biological weapons (in Canada Sir Frederick Banting was big contributor) and many countries considered using them like US on Japan, UK on Germany, Germany in last ditch effort (choice not to ended up being more due to military considerations such as technical challenges)
• Cold War violations of Gas Protocol and 1972 Biological Weapons Treaty happened esp by USSR and Yeltsin acknowledges manufacturing for offensive purposes (also Egypt using mustard gas during Yemeni civil war, Saddam using them)
• Post-Cold War uses have included Syrian government and rebel groups, ISIS, government of Sudan in Darfur despite 1997 Convention on Chemical Weapons

Question 15

Background of drones

Answer 15

• Unarmed drones have been used for surveillance since mid-1990s, armed drones have been in existence for around 10 years and are currently being widely adopted and researched (in Canada unarmed have been used in Afghan war and Trudeau government has adopted in last couple years)
• Drones are currently all controlled by human operator with fully autonomous ones in development (probably decade or more away)
• Obama administration used far more drones that killed far more as Bush, Trump administration in first 2 years has reportedly authorized as many drone strikes as Obama in 2 terms
• Obama initially widely targets individuals but starts to implement rules to only target people who pose continuing eminent threat vs just significant threat, also shifts control over more of fleet to DoD from CIA and orders CIA to provide annual summary of civilian deaths to Congress (Trump administration has revoked this)

Question 16

Arguments for/against drones

Answer 16

• Critics say tend to increase local support for groups targeted, impede peace negotiations, absence of risk to attackers leads to more attacks and thus more casualties
• Supporters say don’t tend to increase local support for groups (some material suggests that governments like Pakistan support strikes in private despite condemning in public), even if have negative political impact nonetheless kill senior officials in target organizations which hinders such groups, make it harder for non-state actors to communicate (since surveillance can lead to strike)
• Legal detractors say illegal since breach jus ad bellum restrictions (violate sovereignty) and jus in belli (disproportionate response to threat of terror due to civilian casualties, don’t discriminate between combatants and non-combatants)
• Legal proponents say that places where drones used such as Somalia do not have sovereignty, remote nature of controller actually lets them get closer to target and thus reduce civilian casualties, problematic executive orders such as not allowing CIA reports can be undone in future

Question 17

Ottawa Process

Answer 17

• Signatories would forego use and eliminate stocks of landmines (anti-personnel, while anti-vehicles are allowed and directed weapons like claymore mines are allowed since they are connected to operator who detonates), since problem is mines that remain long after conflict ends and particularly plastic mines that are very hard to detect
• After end of Cold War, NGOs like Human Rights Watch come together to focus on landmines, by 1996 many governments on board and Canada hosts conference with 75 different national governments to produce draft treaty
• 1997, 121 countries in Oslo negotiate final text to pledge complete elimination of landmines other than small stock allowed for training, currently more than 160 countries have ratified landmine convention (although some countries like Canada have included reservation that operations with state that doesn’t sign treaty does not count)
• Countries like India, China, US, Israel don’t sign (US pledges in 2004 moratorium on persistent anti-personnel landmines and only those with mechanism for obsolescence)

Question 18

Critiques of Ottawa Process

Answer 18

• Largely a promise by countries that already did not really use landmines and no indication that large-scale users of landmines are going to adopt treaty anytime soon
• Countries that have signed it tend not to be involved in conflicts (in Middle East + North Africa more than 70% of countries have not signed)
• Little formal enforcement outside of public opinion and some countries have either failed to document compliance or haven’t had the funds necessary to de-mine

Question 19

Voluntary human shields

Answer 19

• Use of hostages has been an age-old tactic that continues to be employed and is unambiguously prohibited
• Voluntary human shields are a relatively new tactic and involve civilians who take advantage of impermissiblity of targeting civilians in order to protect combatants and have been employed by many non-state actors such as Hezbollah, Taliban
• Examples of state use include Serb civilians congregating on major infrastructure points to deter NATO airstrikes
• Another major instance was Iraq peace activists who traveled there prior to 2003 war, congregating around institutions like schools to deter attacks – gov then tries to get them to go to military installations which causes their return
• Legality is in question, some argue that even if protecting military target still retain civilian status (also if any doubt that might have been coerced better to hold off), other argue that deliberate protection of military objective equates to participation in war (like workers in munitions factories), other balance by saying that if protecting offensive installation then take direct role while if protecting defensive installation then civilian
• Red Cross has proposed test where if trying to protect during ground combat then loses civilian status, while if in air strike then do not pose physical obstacle and as such enjoy legal status as civilians
• Regardless of views no accepted state practice or treaty yet

Question 20

Prior to and WW1 + 2 Canadian war misconduct

Answer 20

• In Boer War, six captured Boers allegedly executed by Canadian fighters due to use of white flag for ambush as well as additional thirteen who were transferred by NZ troops; also burned farms (not illegal at time)
• WW2 soldiers raped their way up Italy and during occupation of Germany
• WW2 shackling controversy during Dieppe raid where orders given to bind hands of any German captured which led to German response of shackling which led to further Canadian shackling (shackling POWs was violation of international law)
• WW2 problems of repatriation where POWs returned more slowly than supposed to
• WW2 during D-Day came across bodies of Canadians killed by SS and retaliate in kind
• WW1 where reports of Canadian crucified on barn door lead to retaliation

Question 21

Post-WW2 Canadian war misconduct

Answer 21

• UNITAF where soldiers capture and beat to death Somali teenager who tries to sneak into base, 2 charged with murder and 1 convicted, 1 found unfit for trial; separate incident where 2 Somalis shot that leads to Somalia Inquiry – in the end said that the Canadian military did not adequately investigate incidents
• Yugoslav war where Canadians mark armed vehicle as ambulance (dangerous because can incentivize attacks on other ambulances)
• Afghan war where Canadian sniper takes trophy photo with dead Taliban fighter (desecrating body)
• Afghan war where detainees allege injury during capture, investigation determines no wrongdoing but afterward Military Complaints Commission finds that only cursory investigation done
• 2010 Canadian soldier convicted of undertaking mercy killing on Afghan insurgent (disgraceful conduct and dismissed)
• Failure to report instances where boys were being sexually abused by Afghan army / police
• Afghan war where JTF2 member executes surrendering Afghan soldier (cleared but subsequent inquiry says process superficial)

Question 22

Background to Afghan detainee issue

Answer 22

• Soldiers take captives who are transferred to American custody in Kandahar then processed and possibly transferred to Guantanamo
• Chretien government starts to question whether it made right decision by turning over detainees to US, publicly talks about hypothetically doing this but photos emerge of Canadian soldiers already doing it
• Government then changes course, says will continue turning soldiers over to US while telling US to respect international law
• Subsequent Martin and and initially Harper governments hesitant to talk about detainees as POWs under First Protocol until 2006 Harper says individuals taken on battlefield not POWs (although would be entitled to POW treatment)
• Issue made complicated by fact that Protocol states that country that initially captures individual is responsible for treatment

Question 23

Status of irregular combatants under international law

Answer 23

• Third Geneva Convention states that there is four part test to establish POW status: being under formal command, having fixed distinctive sign, carrying arms openly, conducting operations in accordance with laws and customs of war
• First Protocol to Geneva has less restrictive test: as long as arms openly carried during military engagement and period of visibility (Canadian reservation was only accepts in circumstances outlined in 1(4) where people fighting against colonial domination, alien occupation and against racist regimes) – colonial domination only refers to European colonial empires while alien occupation refers to areas occupied by Israel in aftermath of 6 day war, racist regime refers to apartheid

Question 24

Argument that Afghan detainees not POWs

Answer 24

• Individuals not covered by First Protocol because Afghan War not colonial domination, alien occupation or racist regime (especially since working with approval of legitimate Afghan government)
• For four part test: individuals are commanded, sometimes carry arms openly, do not have fixed distinctive sign such as uniform or armband, do not always carry out operations in accordance with laws of war (so don’t qualify as POWs)
• Counterargument is that circumstances under First Protocol are not exhaustive since states that “include” colonial domination etc (hard to endorse since things like Canadian reservation make quite clear that list is exhaustive)

Question 25

Treatment of Afghan detainees under Canadians

Answer 25

• Fear that detainees would be sent to Guantanamo
• Starting 2006 detainees sent to Afghan government instead (which also has poor human rights record)
• Canadian government has argued that adequate steps taken to protect transferred detainees by imploring Americans to observe international law and putting pressure on Afghan government to improve human rights record
• Also case during Harper era where Canadians physically retrieved prisoner who was being beaten and put him in different facility where monitored
• Under Harper years also halted all transfers until Afghan government improved procedures
• ICC has said that Canadian government did not perform adequately due to fact that should have known that prisoners turned to US and Afghanis would have been likely mistreated but has not prosecuted

Question 26

Is war on war being won?

Answer 26

• Some argue that warfare in on the decline in the world but others says that advances in things like medicine that reduce casualties give the illusion of decreasing war
• Average war in post-WW2 era killed 20k per year while in new millennium estimates say around 4k per year
• One-sided government violence has also decreased, number of world refugees post-Cold War was also either stagnant or declining (until Syrian civil war)
• End of Cold War has allowed the UN to take more effective actions, work of NGOs have also been useful in doing things like shining light on exploitation
• Model of global trade has been better than models like wealth through conquest
• Societal norms have also shifted away from violence, democracies are less likely to fight with one another
• Public opinion polls have also shown people still feel current era is dangerous – could be from media playing up conflicts over peacetime occurrences, ability for people to find out information about particular conflicts, until recently not much systemic research on topic

Question 27

In the article “Unpunished War Criminals, The Shameful Legacy of Canada’s Military Involvement in Afghanistan,” Stuart E. Hendin analyzes the impact of humanitarian interventions. What are Hendin’s main arguments, what is the main evidence used to support these arguments, and what are the strengths and weaknesses, errors, or omissions of this analysis?

Answer 27

• Main argument is that Canada did not take proper care to ensure that detainees would be soundly treated by Afghan authorities and that the written assurances obtained by Canada from Afghanistan that they would do so were worthless, therefore there is ground to prosecute those involved in transfers under criminal negligence
• Says that Canada is bound by the Torture Convention which states that it will take effective measures to prevent torture, cannot extradite to another state where there is substantial ground for belief that torture will occur, and treat those who torture as guilty up to 14 years
• Also bound by ICCPR which states the same (cannot torture or expose individuals to torture via extradition)
• Universal Declaration of Human Rights states the same, and thus due to these 3 treaties while Canadian courts say that Canadian Charter does not apply to detainees, Canada still have positive obligation to prevent acts like torture or other cruel treatment
• Thus, either Canada as a state or individuals who knowingly made decisions to transfer detainees can be held accountable in international courts under violations of CAT and ICCPR
• At the domestic level, treaties like Torture, Geneva Conventions have been accepted into law, while the Crimes Against Humanity and War Crimes Act also identifies torture as punishable within Canada including offenses connected to it that are not actual participation
• Zazai vs Canada case has determined that complicity in crime against humanity is just as prosecutable as direct participation
• Principle of command responsibility means that if any Canadian commander knew of possibility of torture, then should be prosecutable – esp in combination with Criminal Code talking about criminal negligence causing bodily harm is guilty