The Toronto Star is reporting today that it has obtained a copy of a “top secret document” outlining the military’s obligation to investigate claims of transfer to torture in Afghanistan.

The document at issue is a five-page memo dated May 22, 2007 from the Judge Advocate General (JAG), Brig.-Gen. Ken Watkin, and the distribution list included then-chief of staff Gen. Rick Hillier and Lt.-Gen. Michel Gauthier.  According to the Star, Watkin spelled out the obligations of the military to prevent the abuse of transferred prisoners, and to investigate allegations of abuse:

‘Military commanders who know, or are criminally negligent in failing to know, that a transferred detainee would be subejcted to such abuse have the obligation to take all necessary and reasonable measures within their power to prevent or repress the commission of such abuse.  They may also be subject to criminal liability for failing to submit the matter to competent authorities for investigation and prosecution,’ Watkin, the military’s top lawyer, wrote.

. . .

Watkin’s memo states that as long as there is even a hint of torture, senior military personnel have an obligation to look into it and take whatever action is necessary to address it or face the consequences.

Watkin had appeared before the Parliamentary committee investigating the transfers of prisoners in Afghanistan in early November.  He declined to answer many of the questions posed to him, invoking solicitor-client privilege.

The legal opinions expressed in Watkin’s memo make clear Canada’s obligations under both domestic and international law.  It doctrinal that ignorance of the law is no defence, but here, it would seem that Canada’s military commanders can’t even claim ignorance.

Military told to heed abuse claims (Toronto Star)