OTTAWA — There is significant evidence to indicate the Canadian government knew in 2006 that Afghan detainees were being tortured and abused, says a Canadian professor of international law, who adds if detainees were handed over to Afghan forces, that would likely constitute a war crime.

“The law is clear. Where there are substantial grounds for the risk of torture . . . there is an absolute obligation to stop that transfer,” said Errol Mendes, from the University of Ottawa, on Wednesday. “(The law) doesn’t say, as (Defence Minister) Peter MacKay keeps on saying in Parliament, that you have to have proven allegations.”

The international law indicates there need only be substantial grounds for the risk of torture, he said.

The law in question is aiding and abetting a war crime, which is outlined in the Geneva Conventions, and has also been incorporated into the Criminal Code of Canada.

Canada’s chief of defence staff on Wednesday contradicted comments he made earlier this week, to say that Canadians troops did take an Afghan detainee into custody before the man was turned over to local authorities.

The detainee was beaten and eventually rescued by Canadian troops. Gen. Walter Natynczyk’s previous statement indicated the detainee was never in Canadian custody, and his new statements have raised the issue of whether Canadian troops were aware the detainee might face abuse or torture at the hands of authorities.

“If there is knowledge or foreseeability that by handing someone over, that person is going to be subject to torture or inhumane treatment, then that could likely constitute aiding and abetting a war crime,” said Payam Akhavan, a McGill University law professor with experience in international courts and tribunals.

Sources providing “sufficient knowledge” of abuse of Afghan detainees have come from the United Nations, NATO and the Afghan Independent Human Rights Commission, Mendes said.

Both Mendes and Akhavan said any responsibility for the incident lies with the civilian command, and not with the individual soldiers on the ground in Afghanistan.

“The framework given to our frontline soldiers was given by the civilian command, so the ultimate responsibility lies with them,” Mendes said. “If they have not given proper rules and instructions on the Geneva Conventions and on the obligations in our Criminal Code . . . this is pretty serious at the highest level of our government.”

It’s unlikely the International Criminal Court would investigate Canada for a potential crime of this nature, but it would expect one of its founding members to set an example for the rest of the world by carrying out a judicial public inquiry, he said.

“Some people may say it’s only Afghan detainees and we don’t care about them,” Mendes said. “Well, I’m sure the vast majority of Canadians care about the honour and dignity of Canada and the honour and dignity of our military.”

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