 |  |  |
      |
| | |
|
In this chapter we introduce the major themes that are central to our terms of reference and thus merit substantial attention in our account of what transpired in the desert in Somalia and across the boardroom tables of National Defence Headquarters in Ottawa. These themes are as follows:
These may appear to be easily understood concepts. In truth, the surface simplicity of these twin pillars can be a beguiling trap for the unwary. Like much that is profound, apparent simplicity can mask deceptive depth and texture. Take leadership, for example. Can we address the definition of leadership in the armed forces in the way that U.S. Supreme Court Justice Potter Stewart attempted to deal with the vexing question of defining obscenity by concluding, "I know it when I see it."1 We think not.
Leadership, while difficult to define, is capable of articulation. Indeed, we address leadership in detail in Volume 2, Chapter 15 of this report. Leadership, as we make clear, encompasses, at least in part, certain qualities that enable the person possessing them to lead others in the accomplishment of an assigned mission or task -- one that requires harnessing the talents and energies of all for its successful completion. Leadership is essential to the exercise of command in the armed forces. Occupying a position of authority does not make an individual a leader. Leadership includes not merely authority but also the ability to lead others. It has been described by the legendary Canadian military leader, Gen Jacques Dextraze, as "the art of influencing others to do willingly what is required in order to achieve an aim or goal." General Dextraze listed such qualities of leadership as self-sacrifice, loyalty, integrity and courage, and we do not quarrel with his list. Others add to or refine such formulations, but the core that constitutes real leadership is irreducible.
There is little doubt that military leaders occupy a position of trust with regard to their troops -- leaders must care about their troops, and their first thoughts must be for their troops' welfare. Military men and women subscribe to a cause that insists upon their unlimited liability, and thus it is incumbent upon those who would lead them into peril or place them in harm's way to put the well-being of their subordinates before their own.
Leadership is central to the matters under consideration by this Inquiry, because at issue is the extent to which the mission failed because the system and its leaders failed. The Inquiry must answer the question of whether, in the context of the deployment of Canadian forces to Somalia, proper military leadership was exercised. The recurring issue is whether the leaders in the chain of command fulfilled their responsibilities: did they do what ought to have been done?
This question leads us naturally to the second of the twin pillars -- accountability. How can we measure or assess the role and actions of senior leaders in the Somalia deployment without insisting upon a full accounting of what transpired? Accountability is a vexing concept for theorists across a broad range of disciplines. It is often ill-defined and erroneously merged with the allied concept of responsibility. Clarity of thought and precision in definition are of the utmost importance for an adequate understanding of this key concept.
This Inquiry, in discharging its mandate, was asked to focus on the nature of the mission and tasks assigned to the Canadian Joint Task Force Somalia and the suitability of the forces deployed to accomplish the tasks assigned. The actual manner in which the mission was conducted, the effectiveness of the decisions and actions of leadership at all levels of the chain of command, and the adequacy of the command response to the operational, disciplinary, and administrative problems encountered must all be examined. In addition, the professional values and attitudes of all rank levels to the lawful conduct of operations, the treatment of detainees, and the extent to which cultural attitudes affected the conduct of operations must be explored. Beyond this, the Inquiry was asked to review allegations of cover-up and destruction of evidence and, if these allegations were found to be substantial, to assess whether those in command responded appropriately. In essence, what the Government of the day and the Canadian people are seeking from this Inquiry is the accountability of senior officials for the failures of the Somalia mission.
As we define it, accountability is the mechanism for ensuring conformity to standards of action. In the military, this means that those called upon to exercise substantial power and discretionary authority must be answerable (i.e., subject to scrutiny, interrogation and, ultimately, commendation or sanction) for all activities assigned or entrusted to them. In any properly functioning system or organization, there should be accountability for actions, whether those actions are executed properly and lead to a successful result or are carried out improperly and produce injurious consequences.
Accountable leaders cannot shelter behind the actions of their subordinates. Accountable officials are always answerable to their superiors. In the military, with its elaborate system of rank and hierarchy, this reality is especially apparent.
In any organization, however structured, those at the apex should be accountable for the actions and decisions of those in the chain of authority who are subordinate to them. In a properly linked chain of command, accountability does not become attenuated the farther removed one is from the source of the activity. When the subordinate fails, that failure is shouldered by all who are responsible and exercise the requisite authority -- subordinate, superior, and superior to the superior.
Accountability in its most pervasive and all-encompassing sense resides inevitably with the chief executive officer of the organization or institution. In the diarchy that presides over Canada's military, this refers to the Chief of the Defence Staff and the CDS's civilian counterpart, the Deputy Minister of National Defence.
The term responsibility is not synonymous with accountability. One who is authorized to act or exercises authority is 'responsible'. Responsible officials are held to account. An individual who exercises powers while acting in the discharge of official functions is responsible for the proper exercise of the powers or duties assigned. In the chapter devoted to accountability (see Volume 2, Chapter 16) we make it clear that responsible officials include supervisors and delegates or agents who act on behalf of a superior officer. All are responsible for their actions and can be held to account for what goes wrong on their watch. One cannot delegate responsibility (and hence accountability) even if the authority to act has been delegated.
It is the responsibility of those entrusted with authority, those who exercise supervisory authority, and those who delegate the authority to act to others to know what is transpiring in the area of their assigned authority. Even if subordinates, whose duty it is to inform their superior of all relevant facts, circumstances, and developments, fail to fulfill their obligations, this cannot absolve the superior of responsibility for what has transpired. Ignorance of significant facts bearing on the discharge of an important responsibility does not often provide an adequate excuse for those who lead or are responsible when the time comes to account. In the military, unlimited liability and unrestricted access to the use of force impose a premium on those entrusted with the responsibility of leadership.
These principles of accountability and their corollaries are the yardsticks by which we have assessed the actions and decisions of senior leaders with respect to those aspects of the Somalia deployment that we were able to explore in the time available to us.
Chain of command is a quintessentially military notion and method of organization that has been appropriated by the captains of industry and professions other than the military. In its simplest terms, the 'chain' referred to is the line of responsibility that flows from the most superior officer of the organization, through subordinates at various rank levels, to those at the farthest reaches of the organization, all of whom are asked to take action or discharge obligations in the name of the organization. In the military, the chain of command is the line of authority and responsibility extending from the Chief of the Defence Staff to the lowest-ranked member of the Canadian Forces. It is the military connection that joins a superior officer to a subordinate for the legal transfer of orders and instructions.
Chain of command is the central organizing concept through which military discipline and leadership are effected. Once orders are given, the chain of command becomes the vehicle for ensuring compliance with those orders. When orders are given, the appropriate legal authority is vested in the recipient to carry out those orders. According to military theory, responsibility is not delegated. Rather, each link in the chain of command is responsible and accountable for the satisfactory performance of the obligation imposed.
The chain of command is organized around the principle of hierarchy, superior to subordinate, and the concept of 'command'. Commanders at each level respond to the orders and direction of their immediate superiors and subsequently issue orders appropriate to their level of command. In carrying out their responsibilities, commanders are empowered to issue orders and directions to those immediately subordinate to them.
Without an effective chain of command, the military enterprise is destined to failure. In our Inquiry, where the task is to examine and analyze the sufficiency of the actions and decisions of leaders and the effectiveness of the operation as a whole, the importance of an effective chain of command is very clear.
Discipline is fundamental to the military endeavour. A few years ago, in a ground-breaking decision on military justice, the Chief Justice of the Supreme Court of Canada discussed the need for discipline in the armed forces:
The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend threats to the nation's security. To maintain the armed forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more seriously than would be the case if a civilian engaged in such conduct.2
Discipline, for the military, has at least two important meanings. The first, discussed by the Chief Justice, applies the same connotations to the term that the larger society would: namely, that discipline entails the enforcement of laws, standards and mores in a corrective and, at times, punitive way. The second, and arguably more important meaning from a military perspective, entails the application of control to harness energy and motivation to a collective end. Discipline, thus conceived, is more positive than negative. It seeks actively to channel individual efforts into a collective enterprise. Where that enterprise is the waging of war or armed conflict, it permits the application of force in a controlled and focused manner. Controlling aggressivity so that the right amount of force is applied in exactly the right circumstances is of primary significance to the military. Discipline is the means of achieving such control.
Few professions are as dependent on discipline as the military. Since the chief purpose of military discipline is harnessing the capacity of the individual to the needs of the group, the probability of success for a particular mission varies in proportion to the extent to which there is concert or cohesion among soldiers. This cohesion occurs when soldiers are disciplined.
Discipline seeks to elicit from individuals their best and most altruistic qualities. It depends on the development of a sense of co-operation and teamwork in support of the group. While imposed initially through the rigours of training, the goal of discipline is to lead individuals gradually to the stage where, of their own volition, they control their own conduct and actions.
The task of ensuring the discipline of subordinates is a major priority of a commander. Good leadership begins with self-discipline, and for the sake of those serving below, a commander must establish a standard of self-discipline that merits emulation. The capacity of the individual soldier for self-correction may originate in the fear of punishment but, over time, respect for authority and willing obedience must reflect the individual's own self-discipline.
Our terms of reference obliged us to investigate and report on "the chain of command system, leadership within the chain of command, discipline, operations, actions and decisions of the Canadian Forces and the actions and decisions of the Department of National Defence in respect of the Canadian Forces deployment to Somalia...". We were also asked to inquire into whether the institutional responses to the operational, disciplinary and administrative problems encountered in the various phases of the Somalia operation were adequate. In our view, only by considering whether proper discipline existed can we determine whether an effective unit, capable of operational tasks, was dispatched to serve in Africa.
Mission planning is a major theme in this report, since an understanding of the nature of the mission and the tasks undertaken by the Canadian Airborne Regiment is fundamental to our mandate. As our narrative history of the Somalia operation recounts (see chapters 12 through 14 in this volume and chapters 24 and 25 in Volume 3), the precise definition of the Somalia mission in the early days of deployment was slow to emerge. The mandate itself was imprecise and ephemeral, changing in midstream from a United Nations Chapter VI peacekeeping mission (Operation Cordon) to a considerably more dangerous Chapter VII peace enforcement operation (Operation Deliverance). The nature of the UN leadership and oversight was itself transformed as UNOSOM mutated into the U.S.-led UNITAF operation.
Mission planning considerations permeate our terms of reference, particularly as they relate to pre-deployment issues. Not only do the terms of reference direct us to investigate the mission and tasks assigned to the Canadian Airborne Regiment in the context of an assessment of the suitability of the Regiment for the mission, but they also indirectly require a comprehensive review of the operational readiness of the Regiment and the appropriateness of the training objectives and standards used to prepare the unit for deployment. Further, as noted earlier, we were required to report on the effectiveness of the decisions and actions taken by leadership in preparation for the mission, a task that necessitates a clear understanding of the nature of the mission assigned to the Regiment.
The importance of proper mission planning is undeniable. Inadequacies in planning and preparation can create the conditions for mission failure. When regular, deliberate, conscientious and comprehensive planning processes are followed, senior decision makers can identify areas where deficiencies exist or extra effort is needed. With this knowledge, they are obliged to ensure that the requisite steps are taken to prepare the force properly, for example, by adjusting training or altering the composition of the force. Consequently, we focused our hearings with respect to mission planning on issues such as last-minute changes to the mission, its location, the tasks involved, the rules governing the use of force, and the leadership of the force, and whether they led to planning failures affecting the organization, composition, and structure of the force, as well as shortfalls in logistical support, weapons and materiel, and force training.
Suitability in the context of this Inquiry embraces a plethora of issues, including general and mission-specific factors such as cohesion, as well as selection, screening, and promotion processes or mechanisms. More particularly, our task was to determine whether a unit composed of parachutists and, more particularly, the Canadian Airborne Regiment, was suitable for selection for service in this particular mission in Somalia.
A Department of National Defence publication lists five characteristics that differentiate airborne forces from more conventional forces: air mobility; quick reaction; flexibility in terms of tactical deployment; lightness (referring to light scale of equipment); and suitability to low-intensity conflicts (including peacekeeping or peace enforcement).3 While few would argue with the requirement for paratroops to have these general attributes, some would contend that there is a basic incompatibility between the elite parachutist's creed, including a commitment to fight on to the objective and never surrender, and the peacekeeper's constabulary ethic, which requires a commitment to the minimum use of force. The question for us was whether the selection of a paratroop unit with this different ethic as Canada's UN standby unit could be offset by proper training preparations.
If one accepts that there is no inherent characteristic disqualifying an airborne regiment from selection for deployment on the Somalia mission, the question of suitability then focuses on the suitability of the actual unit selected for service in Somalia. In assessing this question, we were also obliged to pay attention to the availability and suitability of an alternative to the CAR in the selection process.
Since the CAR was selected to serve in Somalia and was, in this sense, deemed suitable, we have been obliged to evaluate the adequacy of that choice by senior leadership, given such realities as, among others, recognized deficiencies in the organization and leadership of the regiment; the restructuring and downsizing of the regiment; the reduction (from colonel to lieutenant-colonel) in the rank necessary to command the CAR; the failure to remedy known disciplinary problems; and the substantial turnover in personnel just before deployment.
As we have indicated, the probability of success in a mission varies in proportion to the extent of concert or cohesion among soldiers. This kind of cohesion occurs where soldiers are properly disciplined and trained. Cohesion imparts to the group a unity of purpose. Our Inquiry was to assess to what extent, by dint of proper leadership, training, discipline and values, group cohesion was achieved in the Somalia deployment. Cohesion, thus comprehended, is an important indicator in the assessment of overall suitability.
Suitability can also be examined at the micro level in terms of the acceptability for service of those within the unit designated for deployment to Somalia. This measure of suitability involves considering the adequacy and application of the mechanisms and processes in place for selecting and screening candidates for admission to the forces or for deployment to an operational theatre.
The Somalia deployment underscores the importance of judgement regarding such key personnel issues as behavioural suitability and professionalism. In 1992, almost no guidance on these factors was available to the chain of command in the deploying unit. Leaders of deploying units relied heavily on the overall CF personnel system to select, screen, employ and promote unit members appropriately at any given time.
In Somalia, a great many unsavoury events conspired to call into question the adequacy of the individual selection and screening processes in place before deployment. In our report, we analyze and assess the essential capacity of the Canadian Forces processes to screen for criminal tendencies, psychological instability, security risks, disciplinary threats, and racism. However, the full story of the Somalia deployment cannot be recounted without describing the rash of disciplinary incidents, the unbounded hazing rituals, and the presence of right-wing extremists and racist incidents and paraphernalia within the CAR.
A persistent and lingering allegation of rampant careerism in the CF has made it necessary for us to evaluate the methods and mechanisms in place for securing the appropriate career development of officers and members of the armed forces, including performance evaluation reports, merit boards, and criteria for promotions. We have been obliged, in this regard, to examine whether bureaucratic and administrative imperatives were allowed to dilute the merit principle in the appointments process. Also, we wanted to investigate whether individual career management plans were allowed to take precedence over the operational needs of the mission. In essence, was the merit principle observed, and were the best, most suitable candidates selected for service in Somalia?
Suitability is intimately linked to the theme of appropriate training. Training in the military is the bedrock of discipline and the foundation for the professional image of the armed forces. Our Inquiry was directed to look into "the appropriateness of the training objectives and standards used to prepare for deployment of the Airborne Regiment". Training, in turn, is linked to the question of the operational readiness of the CAR for deployment to Somalia. Fundamental to the operational readiness of a unit is the question of whether troops are well trained to perform all aspects of the mission for which the unit is being deployed.
We assume that the Canadian Forces accepts a duty to train and prepare adequately all armed forces personnel slated for deployment on a peacekeeping mission. This is as much for the protection of Canada's soldiers as it is for the safety and security of civilians living in the area of the intended deployment.
Peacekeeping, and even peace enforcement, differ fundamentally from the conduct of war. There is an established, traditional method of preparing to wage war. This kind of training is referred to as general purpose combat training (GPCT). According to military regulations, GPCT involves basic soldiering skills, including firing specific weapons, throwing grenades, achieving fitness standards, applying military first aid, performing individual fieldcraft, performing nuclear/biological/chemical defence, applying mine awareness, navigating using a map and compass, communicating using communications equipment, and identifying fighting vehicles and aircraft. In the Canadian Forces, GPCT forms the basis for peacekeeping training. Any other training is mission-specific and is delivered as part of a unit's pre-deployment preparations for a peacekeeping mission.
In addition to providing fighting skills, GPCT instills a strong sense of discipline in a unit, together with the impetus and ability to work cohesively and efficiently. These attributes can enhance the performance of any task, whether in combat or delivering aid to civilian populations. A combat-ready contingent commands respect, and this can be of critical importance in a theatre where war or civil strife is occurring.
At this time there is no consensus with regard to whether general purpose combat training is sufficient preparation for non-traditional military missions such as peacekeeping and peace enforcement. Certainly within the Canadian Forces there was a belief (at least until the fall of 1995) that GPCT was sufficient training for all purposes, and very little non-traditional training, if any, was given in preparation for peacekeeping/peace enforcement missions. This is remarkable, given Canada's long history of involvement in peacekeeping.
Today's soldiers must be more than avid warriors. They must exercise skills that fit more naturally within the realms of civilian policing, diplomacy and social service. In developing the appropriate skills for a given peace support operation, training is arguably more effective than ad hoc experience.
In Chapter 21 on training we devote considerable attention to the question of what constitutes valid and useful non-traditional training for peace support missions. Suffice to say that a mix of generic and mission-specific training beyond GPCT seems to be required. Peacekeeping soldiers require an understanding of the peacekeeper's roles and responsibilities; they must learn advanced techniques of negotiation and conflict resolution to be effective; the diversity of their assignments demands sensitivity to issues of intercultural relations; they require an appreciation of the full gamut of UN procedures affecting such matters as the establishment of buffer zones, the supervision and monitoring of cease-fires, and the protection of humanitarian relief efforts. The modern peacekeeper must know how to establish and maintain law and order, impose crowd control, conduct searches, and handle detainees, while at the same time lending assistance to relief efforts and co-operating with humanitarian agencies. These general skills must be supplemented by an acquired knowledge of the language, culture, geography history, and political background of the theatre of operations.
To discharge our obligation in this report, we must answer the question of whether the soldiers sent to Somalia were properly trained for their mission. This is a complex question. It involves an assessment of the nature and adequacy of the training received and of the policies underlying that training, together with an examination of whether the performance of our soldiers could have been improved or enhanced if they had been exposed to additional, perhaps more sophisticated, training.
One specific area of training that has commanded our attention, whether in the context of non-traditional training or general purpose combat training, is the formulation and observance of rules of engagement (ROE).
Rules of engagement are the operational directions that guide the application of armed force by soldiers in a theatre of operations. The ROE define the degree and manner and the circumstances and limitations surrounding the application of force. To take an example that had some prominence during our hearings, the rules of engagement tell soldiers when they can fire a weapon and whether it is appropriate to shoot to kill.
The rules of engagement in effect constitute official commands. They are an expression of government policy and are promulgated by the Chief of the Defence Staff. ROE are the means by which the government ensures that military activity aligns with Canadian foreign policy and legal objectives. In R. v. Mathieu Mr. Justice Hugessen stated that the ROE "constitute orders to Commanders and Commanding Officers",4 which is undoubtedly correct, but they are also of crucial importance to soldiers in the field, since they are the clearest and most concise authoritative expression of when force can be employed. For this reason, the ROE are condensed and printed on a card, to be carried at all times by soldiers on duty in an operational theatre.
Since the ROE are of importance to the soldier's tasks and duties while on deployment, they are an integral part of training for the mission. Training performance can be assessed, at least in part, against the standards enunciated in the ROE. Since the rules of engagement are tantamount to orders, a soldier could be charged under the Code of Service Discipline for failing to comply with them.
The rules of engagement depend to a great extent on clarity of expression. To the extent that they are ambiguous, their utility is compromised. Soldiers are entitled to look to their commanders for clarification of what is intended by any given rule within the ROE. Thus, it is critical for commanders to know and to understand what is contained in and intended by the rules of engagement.
Our terms of reference direct us to evaluate "the extent to which the Task Force Rules of Engagement were effectively interpreted, understood and applied at all levels of the Canadian Forces chain of command". Significant questions arose in Somalia in relation to the ROE. The mission changed from peacekeeping under Chapter VI of the UN Charter to peace enforcement under Chapter VII. The planned deployment took place in a rapidly changing environment in which the ROB were very slow to find their way to the soldiers. In addition, the interpretation of the ROE changed significantly during the deployment, resulting in serious confusion about the meaning and application of the rules. The adequacy of training on the rules of engagement during pre-deployment and in theatre was also raised for our consideration. Behind these questions about the practical use and application of the rules of engagement during the Somalia operation is the larger issue of the sufficiency of Canadian policy and procedures for the development, formulation and transmission of ROE.
Operational readiness entails a rigorous and comprehensive assessment of whether an assigned unit is effective and prepared to mount its mission in an operational theatre. It embraces all the themes described to this point. If a unit is led by competent and accountable leaders who respect and adhere to the imperatives of the chain of command system; if the soldiers serving under these leaders are properly recruited and screened, cohesive, well trained, and disciplined; if they have a clear understanding of adequately conceived and transmitted rules of engagement, then we can have confidence that this is a unit that merits the right to bear arms under the Canadian flag or the UN banner and that is operationally ready to deploy.
The assignment of missions and the assessment of operational readiness are the responsibility of commanders.
Operational readiness contains both qualitative and quantitative aspects. Strategic and tactical doctrine, leadership, discipline, morale, unit cohesion, technical competence and logistical support are all factors contributing to operational effectiveness and preparedness -- all must be measured and assessed to determine operational readiness. If assessments of readiness are left wholly or mainly to subjective determinations, the process becomes fundamentally flawed. Subjectivity, by its nature, complicates the ability to confirm the accuracy of an assessment. We must regard as suspect the reliability of wholly subjective determinations on an issue as contentious as the readiness of a military unit to perform appropriately in a hostile theatre.
In fulfilling our mandate to investigate the state of readiness of the Canadian Airborne Regiment when it was deployed to Somalia, we evaluated whether the Canadian Forces Operational Readiness and Effectiveness System (ORES) -- in place at the time Operation Cordon and Operation Deliverance were planned and used in the assessment of the state of readiness of the CAR -- was flawed by its excessively subjective nature. More generally, we saw it as our responsibility to take the measure of the defence policies in place in 1992 and 1993 concerning operational readiness in the Canadian Forces.
Cover-up is an important theme of this report. It finds expression in paragraph (k) of our terms of reference, which directs us to investigate, in relation to in-theatre events, 'the manner in which the Task Force conducted its mission and tasks in-theatre and responded to the operational, disciplinary and administrative problems encountered, including allegations of cover-up and destruction of evidence".
This Inquiry had its genesis, at least in the public's mind, in the events surrounding the torture and death of a Somali citizen, Shidane Arone. Our work was expected to take us at least as far as that March 16, 1993 incident and its aftermath. The Government's decision to truncate the work of this Inquiry curtailed our ability to investigate this incident and the allegations of cover-up surrounding it. However, our Inquiry equally owes its origins to the courageous efforts of Maj Barry Armstrong to bring to light another incident, also involving the death of a Somali citizen at the hands of Canadian soldiers. This incident occurred some 12 days before the homicide of Mr. Arone, on March 4, 1993. This incident, like the one involving Mr. Arone, also prompted allegations of cover-up, which we have been able to explore, albeit only within the amb it of the theatre of operations. For the most part, the upper echelons of the Canadian Forces and the major figures in the National Defence Headquarters bureaucracy have been excluded from our examination by reason of the Government's decision to shorten our Inquiry.
The term 'cover-up' is used in this report to describe a deliberate course of conduct that aims to frustrate broader moral, legal, or public claims to information. Most attempts at a more thorough definition tend to require a purposeful attempt at concealment. It is probably accurate to say that this element of wilfulness conforms to the usual understanding of the term cover-up. Most people, we believe, would not consider failures to report, reveal, or preserve information that result from pure accident or even benign neglect as constituting a cover-up. The term has more sinister connotations, usually reflecting a suspicion that the concealment is purposeful and, quite possibly, orchestrated. Cover-up is the handmaiden of conspiracy.
In the case of a public institution like the military, special laws and regulations typically impose specific duties in relation to reporting, retaining, or divulging information. Furthermore, the criminal law requires individuals to refrain from acting or attempting to act in a manner that compromises the functioning or integrity of public institutions. This is especially important when those institutions play a fact-finding and/or adjudicative role. Together these affirmative and negative legal duties constitute, at least partially, the prevailing standard for openness on the part of public institutions and their personnel. These duties exist to support individuals' legal accountability in criminal, civil, or professional terms for their personal conduct and performance and, in certain contexts like the military, the conduct and performance of their subordinates.
But cover-up is not a legal term, and the concept clearly extends beyond the scope of legally mandated claims to information or evidence. Before there can be a cover-up, there must be some obligation, legal or moral, to maintain an accessible record, and to report or divulge the information in question. Within the military there are many such obligations. A few examples of the legal obligations under which members of the military operate will suffice to map the terrain at this point.
All Canadian Forces members are required to report "to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline."5 Also, a commander of a base, unit, or other element of the forces must report significant events that occur on or affect a base, unit, station, or other element. Essentially, "significant" incidents are deemed to be those that could engender public interest or that might otherwise come to the attention of senior departmental officials by means outside the normal military reporting chain.6 Moreover, an officer commanding a command is required to report immediately to NDHQ and to the appropriate regional headquarters any serious or unusual incident of military significance, affecting any base, unit, or element in the command, that is not otherwise required to be reported if it is likely to be the subject of questions to NDHQ.7
Beyond these Code of Service Discipline matters, CF Military Police are required, among other things, to investigate and report on all criminal and serious service offences committed or alleged to have been committed by persons subject to the Code of Service Discipline and on all criminal offences, serious service offences and security violations or offences that occur on or in respect of a defence establishment, works, materiel, or operation. They must also investigate and report on all incidents involving CF members, DND employees or defence works in which the security of Canada could be threatened.
Hence, military life is subject to broad requirements to observe and report and, by the same token, to a high degree of supervision and oversight. Reporting of significant or unusual incidents may spawn a variety of investigations and inquiries, examples of which are discussed throughout this report. Our own Inquiry, for example, was preceded by an internal board of inquiry.
The seeds of a cover-up can reside in the simple fact that some official may not wish to "let the bad news out". Careers can be made or lost simply because mistakes or errors are made on one's watch. Thus, the requirement to report may invite an unwelcome spotlight and can provide the impetus or the motivation to conceal or cover up matters of importance.
But it is not only internal processes involving disclosure and oversight that may produce this result. The Access to Information Act gives the public, on request and subject to a variety of exceptions, the right to access to "any record under the control of a government institution."8 The Department of National Defence is listed in a schedule to the act as a government institution that is subject to this right of access. The public's right to know, as facilitated by this act, might be seen by some bureaucrats, or even by senior officials, as focusing unwanted attention on matters that some would prefer to keep in the shadows.
Both internal and external reporting mechanisms have their place in our consideration of allegations of cover-up. The inadequate reporting of significant incidents in theatre and the inadequacy of the investigations prompted by such reports raise the spectre of one kind of cover-up. The alteration and falsification of documents and the manipulation of access to information processes led us in the direction of another, perhaps related, kind of cover-up. These matters are pursued in the chapters dealing with the incident of March 4, 1993 and our examination of the public affairs branch of DND (which we refer to as the DGPA phase of our investigation), both in Volume 5.
Disclosure of documents became a thorny issue for this Inquiry almost from its inception. An organization as massive and as extended as the Department of National Defence relies in an exceptional way on processes that document the transmission of official instructions. We recognized that it would be fruitless to attempt to reconstruct what occurred in Somalia in 1993 without full disclosure from the Department of National Defence and the Government of Canada of all relevant documentation. Accordingly, on April 21, 1995 we issued an order pursuant to section 4 of the Inquiries Act for the immediate production of all such material. Since documents are the communications lifeblood of the Canadian military, it was naturally expected that the documentation involved in the Commissioners' request would be extensive.
Representatives from the Somalia Inquiry Liaison Team (SILT) established by DND confirmed this impression. Their initial estimation of the amount of material to be disclosed was some 7,000 documents. Over time it would be demonstrated that this figure, substantial in itself, represented a vast underestimation of what would be necessary to satisfy the Commissioners' order.
As discussed in the chapter dealing with the DGPA phase and with the general subject of DND disclosure (Volume 5, Chapter 39), document disclosure never really came to formal closure throughout the life of the Inquiry. We were drawn inescapably to the conclusion that all that should have been disclosed was not disclosed.
In that chapter we document how disclosure took the form of a slow leak of information, rather than an efficient handover of material. We describe our efforts to determine why documents went missing or were altered or destroyed. We also describe our efforts to remind representatives of SILT of the urgency of our requests and of the need for an appropriate level of compliance with our orders. Finally, when these efforts came to nought, and with the unfolding spectacle of altered Somalia-related documents, missing and/or destroyed field logs, and a missing National Defence Operations Centre computer hard drive, we had no choice but to embark upon the 'document destruction' or DGPA phase of our proceedings so as to call senior DND officials to account for these many shortcomings in disclosure.
Document disclosure was no mere side issue for our Inquiry. A legal or quasi-legal tribunal must have the capacity to vindicate itself and ensure the integrity of its processes. When the possibility of manipulation of the documentary record or, even worse, possible obstruction, appears, it must be pursued. The entire credibility of the inquiry process hinges on matters such as these.
Military justice merits its place as a major theme of this report since that system played a pivotal role in the aftermath of the central events in Somalia. Military justice encompasses far more than the adjudicative process -- that is, the process for trying service, disciplinary or criminal offences within the military. The adjudicative process was certainly on display in the aftermath of the Somalia deployment (12 court martial proceedings were convened) but it is only one of the three main components of the military justice system. The other two processes are policing or investigation, and prosecution. These two elements command the bulk of our attention in this portion of our report.
We declared on several occasions that the Inquiry was not a trial and that it was not the purpose of the Inquiry to try or retry any matter that had been heard in the civil or criminal courts. We were charged primarily with reporting on institutional and systemic failures and shortcomings. Our findings in relation to these systemic issues may also be linked to individual failings. Because of the Government's decision to restrict the time within which we were to report, however, we determined that we would not comment or report on individual misconduct, except as regards issues pertaining to the pre-deployment and DGPA phases. Our examination of military justice is therefore entirely institutional or systemic -- which is not to say that it fails to concern itself with facts and circumstances that are part of the record of this Inquiry or that the discussion fails to describe faithfully the relevant testimony of relevant actors on relevant events and incidents.
In March 1997 we published one of the research studies we commissioned, Controlling Misconduct in the Military, by Martin Friedland. The study examines at some length a variety of issues bearing on the subject of military justice. The military justice system is the core mechanism for controlling misconduct in the military. When less harsh controls -- leadership, loyalty to one's unit or comrades, administrative sanctions, and rewards -- fail, the military justice system may still deter improper conduct on and off the battlefield.
One of the major purposes of the military justice system is to curb misbehaviour or, more positively, to encourage appropriate conduct. The intimate link between military justice and discipline was discussed in our treatment of the theme of discipline. Anthony Kellett, in his excellent text, Combat Motivation: The Behavior of Soldiers in Battle, states that the "first and, perhaps, primary purpose of military discipline is to ensure that the soldier does not give way in times of great danger to his natural instinct for self preservation but carries out his orders, even though they may lead to his death." A further purpose, he states, is to maintain order within an army so that it may be easily moved and controlled so that it does not abuse its power. If an army is to fulfill its mission on the battlefield, it must be trained in aggression; however, its aggressive tendencies have to be damped down in peacetime, and the medium for this process is discipline."9 The use of internal military discipline to ensure adherence to laws, standards and mores is an aspect of the operation of the military justice system. The military requires almost instinctive obedience to lawful military orders. Drill is used to instill instinctive obedience. Taken as a whole, the military justice system also serves this purpose.
Policing, which is the responsibility of Military Police, and the charging and prosecutions process, which is under the control of the commanding officer but heavily influenced by the office of the Judge Advocate General, play very important roles in attempting to control misconduct in the military. As our probe into the Somalia operation unfolded, it became progressively more evident that an examination of the Somalia deployment would be incomplete without serious attention being devoted to these key elements of the system. The deployment, beset as it was by numerous problems involving serious breaches of discipline and several instances involving the loss of civilian lives, cast an unflattering light on the way the military organizes itself to investigate and prosecute possible criminal behaviour.
With regard to investigations, we were interested in the role that Military Police play in the Canadian Forces. This led us inevitably to consider the relationship of Military Police to their commanding officers and, more generally, to the entire chain of command. Did they, because of their relatively junior status, experience a wall of non-co-operation when investigating serious misconduct? Since Military Police are controlled and restrained by such mundane realities as available resources, physical location, and the chain of command's inherent ability to control these variables, how significant is the problem of 'command influence' and its first cousin, 'conflict of interest'? In our chapter on the military justice system (Volume 5, Chapter 40) we examine these and other questions in light of a number of incidents or events that occurred during the Somalia deployment.
Problems relating to the charging and prosecutions process also owe much of their pertinence to the issues of command influence and conflict of interest. Here, once again, our discussion is driven by the examples afforded by the deployment itself.
In general terms, we wanted to analyze key roles in the charging process -- those of the commanding officer (CO) and the Judge Advocate General (JAG) -- in order to assess to what extent a lack of institutional independence could be discerned and whether an appearance of unlawful command influence exists. We examined subsidiary questions such as whether a lack of clarity in the criteria for laying charges results in too wide a grant of discretion to the CO with regard to the actual laying of charges. If the CO's powers are indeed too broad in this respect, then questions of both apparent and actual command influence arise, since there is a need for both the appearance of justice and actual justice.
Our discussion of command influence and conflict of interest leads naturally to a consideration of the adequacy of safeguards to prevent conflict of interest. The role of the commanding officer in the prosecutions process can pose difficulties if the CO has had any involvement in the decision to charge or in the incident itself. This has particular relevance in the Somalia context, where the incidents are clearly linked to problems within the chain of command.
As a final element of our treatment of military justice, we examine the office of the Judge Advocate General and its institutional independence. We assess the validity of the widely held perception that the JAG lacks institutional independence in the area of prosecutions. Our discussion here is primarily of a theoretical nature, owing to our tight deadline. Nevertheless, the public record does reveal a few significant examples, and it is these that have commanded our attention and yield important insights concerning whether the JAG and the JAG's office have conflicting roles that ultimately undermine the appearance of justice.
The themes discussed in this chapter are strongly interrelated. Individually and together, they define the standards for and relationships within a properly functioning military system. They form the foundation for our investigation into the events surrounding the Somalia mission and provide a framework for our analysis and conclusions. These themes serve as a roadmap to understanding our journey, which began in the fall of 1992 in Petawawa and took us to the theatre of operations in Somalia and to National Defence Headquarters in Ottawa.
|
Search | Help | Français | Comments | D-NET
Home (C) Minister of Public Works and Government Services Canada 1997 |