Prof. Byers called on the Canadian government to begin its own inquiry and avoid a potentially embarrassing ICC investigation.

UBC Professor Michael Byers and human rights expert Professor William A. Schabas of the National University of Ireland have called on the International Criminal Court (ICC) to expand its preliminary examination of alleged war crimes by Canadian officials in and related to Afghanistan.

In a letter  written to ICC Prosecutor Luis Moreno-Ocampo on 3 December, Byers and Schabas drew the Prosecutor’s attention to the recent allegations made by Foreign Affairs officer Richard Colvin concerning possible Canadian complicity in the torture of detainees transferred to the Afghan government and called on the ICC to expand the list of senior Canadian officials under investigation for possible war crimes. ( Colvin, who spent 17 months in Afghanistan in 2006-2007, recently testified before the House of Commons Special Committee on the Canadian Mission in Afghanistan that senior officials in Ottawa ignored warnings about the probable torture of prisoners transferred by Canada to the Afghan authorities.)

At a press conference on Parliament Hill, Prof. Byers noted that the ICC does not have to intervene if Canada conducts its own investigation of the allegations. To date, however, the Canadian government has shown no inclination to conduct such an investigation. Byers hopes that greater public awareness of the very real possibility of ICC prosecutions will pressure the government to act.

Prof. Byers argued against conducting a public inquiry on the subject, noting that the evidence and testimony presented at such an inquiry would be prohibited from use in other proceedings, including criminal investigations, which he believes should be undertaken. He did not know what form of criminal investigation, civilian or military, should be conducted, however.

Byers was a candidate for the New Democratic Party in the last federal election. He denied, however, that his motivations in pursuing the issue were partisan, noting that the NDP, like the other opposition parties, is in favour of a public inquiry.

The letter sent to the ICC by Prof. Byers and Prof. Schabas was a follow up to a previous letter, sent on 25 April 2007, that called on the ICC Prosecutor to begin a preliminary examination of the detainee issue. On 26 November 2009, the ICC Prosecutor confirmed in an interview with the Wall Street Journal that a preliminary examination of allegations related to a number of different parties in Afghanistan had been begun. To read the full text of the 3 December 2009 Byers-Schabas letter, click Byers Schabas Letter to ICC 3 Dec 2009.