Richard Colvin had barely finished delivering his incendiary testimony about torture in Afghanistan to a House committee last week before fierce debate broke out. For politicians and the public, the issue was whether the diplomat is a courageous whistleblower or an unreliable rogue. But among international law experts, the argument is about the ultimate outcome if his allegations—about federal officials ignoring clear warnings that detainees transferred by Canadian troops to Afghan authorities were being tortured—hold up. Is there a serious prospect of Canadian military or civilian officials being investigated and even charged as war criminals?

A few outspoken law professors quickly concluded that Colvin’s revelations formed a solid basis for a war crimes case. But others told Maclean’s that dramatic outcome is extremely unlikely. The experts are sparring over a relatively untested federal law. International law on war crimes went through a period of rapid reform in the 1990s, largely in the wake of atrocities committed in the violent breakup of the former Yugoslavia. Prompted by the creation of the International Criminal Court, Canada passed a new Crimes Against Humanity and War Crimes Act on Oct. 23, 2000. The first person convicted under the act, Désiré Munyaneza, a Rwandan who led a band of murderers in that country’s 1994 genocide, was sentenced last month in a Montreal court to life in prison.

The possibility that the same law meant to bring the likes of Munyaneza to justice could be applied to Canadians involved in Afghan detainee transfers is sobering. Recognizing that even raising the possibility is controversial, some lawyers who have been hashing over the issue in private declined to be interviewed on the record. Yet several prominent academic experts said it could and should happen. “We must hope that the will to investigate and prosecute is present,” said Michael Byers, a University of British Columbia law professor and former federal NDP candidate in Vancouver. Continue…