THE SOMALIA AFFAIR AND THE TRANSFORMATION OF CANADIAN MILITARY JUSTICE.

• Author: Lim, Preston Jordan

1. INTRODUCTION

   On the evening of 16 March 1993, soldiers of the Canadian Airborne Regiment (CAR) captured, beat, and ultimately killed an unarmed, 16-year-old Somali teenager named Shidane Abukar Arone. Canadian troops were serving in Somalia as part of the United Task Force, a UN-sanctioned and US-led peace operation authorized to establish "a secure environment for humanitarian relief operations in Somalia". (1) Somalia, riven by conflict between warlords, was suffering from a famine of catastrophic proportions. The first Canadian troops arrived in late 1992 and deployed to the town of Belet Huen, located in south-central Somalia. As historian Grant Dawson has noted, the Canadians accomplished a great deal in Somalia; the CAR, for example, rebuilt infrastructure, provided medical training to Somalis, and obtained uniforms for the local police force. (2) Many of Canada's soldiers, however, became disillusioned with their mission and thought the local population to be ungrateful. (3) The Canadians suffered from the "effects of hard rations, illness, and the limited opportunities for communication with their families" and faced an endemic thievery problem whereby Somali adults, teenagers, and even children would infiltrate the Canadian camp. (4)

   The Canadian contingent in Somalia failed to develop proper procedures for dealing with thieves. Instead, Lieutenant Colonel Carol Mathieu, commanding officer of the CAR, instructed his troops in January 1993 that "they could shoot at thieves under certain circumstances." (5) And on the morning of 16 March, Major Anthony Seward, the officer commanding 2 Commando of CAR, held an orders group and instructed his platoon commanders to "capture and abuse the prisoners." (6) That evening, three paratroopers captured Shidane Arone in an abandoned US Seabees Compound located beside the 2 Commando Compound. After Arone was taken into custody, Master Corporal Clayton Matchee spent the evening "severely and brutally" beating the teenager with the help of Private Kyle Brown. (7) A number of other paratroopers heard screams coming from the bunker where Arone was detained but did nothing to intervene. (8)

   The murder of Shidane Arone shocked Canadians. After all, Canada was proud of its rich peacekeeping tradition. Former Prime Minister Lester Pearson had received a Nobel Peace Prize for his role in organizing the United Nations Emergency Force, which deployed to the Near East in the aftermath of the Suez Canal Crisis. In the years since, Canadians had proudly watched as the Canadian Forces (CF) (9) deployed in support of various UN operations. How could the country of peacekeeping, Lester Pearson, and multiculturalism be guilty of such serious disciplinary offences? How could the Airborne Regiment, which had served honourably on past operations, have so utterly disgraced the flag in Somalia?

   Moreover, over the following months and years, Canadians discovered that paratroopers had committed a litany of offences in Somalia. As the Commission of Inquiry into the Deployment of Canadian Forces to Somalia ("Somalia Commission") made clear, 16 March was not an exception or a one-off, but was instead a symptom of a much deeper malaise. Earlier during the mission, in February 1993, Canadian troops had fired into a crowd gathered at Belet Huen's Bailey Bridge. (10) On 4 March, just days before the death of Shidane Arone, Captain Michel Rainville, leader of CAR's Reconnaissance Platoon, took his men on a mission to entrap any Somalis trying to break into the compound of the Field Squadron of Engineers. (11) Two Somalis--Ahmed Afraraho Aruush and Abdi Hunde Bei Sabrie--approached the Engineers' compound; instead of capturing both Somalis, Rainville's men fired live ammunition, killing the former and injuring the latter. And the day after Arone's death, on 17 March, Canadian soldiers "shot a Somali national at the compound of the International Committee of the Red Cross in Belet Huen." (12) The Canadian government could not merely dismiss the conduct of troops in Somalia as the work of a few bad apples but had to confront the prospect of more systemic issues, ranging from poor leadership to a faulty military justice system.

   Unsurprisingly, the Somalia Affair--as the collective abuses and disciplinary offences committed by Canadian troops in Somalia were termed-has attracted no shortage of discussion, controversy, and scholarship. Some scholars have blamed the Canadian Forces' troubles on the post-war deterioration of military professionalism. David Bercuson argued in Significant Incident that "[a]t the heart of the Canadian army's deepest crisis lies the struggle to ensure that the army's leaders are, first and foremost, true warriors whose morality, integrity, and courage in leadership in battle and in peace set the tone for the entire chain of command." (13) John A. English, in his Lament for an Army, similarly cast the Somalia Affair as a "symptom... of a waning military professionalism." (14) Christi Siver, while focusing on the toxic subculture of the CAR's 2 Commando, noted that the military did not have a robust law of war or peacekeeping training curriculum in place, which consequently impacted the CAR's professionalism. (15)

   Other writers have focused on the shortcomings of the government's response to the Somalia Affair. Sherene Razack characterized Canada's mission in Somalia as a contemporary manifestation of colonialism and contended that the Somalia Commission, appointed by the Government to fully evaluate Canadian conduct in Somalia, failed to confront the systemic racism afflicting the Canadian Forces. (16) Peter Desbarats, one of the Somalia Commission's three Commissioners, argued that the Government prematurely shut down the Inquiry before it could investigate cover-up attempts by senior members of the Canadian government. (17)

   More recently, scholars have examined the legacy of the Somalia Affair and gauged the extent to which the government and CF implemented reforms. Colonel (as he then was) RT. Strickland argued that the Somalia Affair served as a "catalyst", inspiring wide-ranging change in the CF; the success of reform was partially due, Strickland suggested, to the "civilian imposition of these reforms" on the military. (18) Bercuson also assessed the reforms positively, concluding that the CF "eventually began to march forward with determination to a new professionalism rooted in the history and values of Canadian society". (19) In 2015, Colonel Bernd Horn and Dr. Bill Bentley assessed the implementation of educational reforms, warning that the military was in danger once again of paying "insufficient attention... to the vital importance of ... the professional development, especially higher education, of the officer corps." (20) In 2018, Katie Domansky also evaluated the state of educational reforms, concluding that the CF not only made the necessary reforms, but had also implemented a "plan for continued change". (21)

   Finally, several commentators have compared the Somalia Commission with other commissions of inquiry. Justice John Gomery pointed to the amount of litigation surrounding the Somalia Commission and concluded that the "inquiry simply ran out of time." (22) Professor Gerard Kennedy cited the Somalia Commission as an example of an unsuccessful inquiry, suggesting that political pressure may have resulted in an overly broad mandate. (23)

   Despite the richness of the extant literature, few scholars have paid the requisite attention to the Somalia Affair's impact on Canada's military justice system. Such a gap is a significant one, since almost all of the investigations and commissions established by the government agreed that the Somalia Affair highlighted serious deficiencies in the military justice system and consequently called for revolutionary reform. The government and CF responded effectively to those calls for reform. Ultimately, the Somalia Affair and the reforms it sparked inaugurated the modern era of Canadian military justice. Many aspects of the modern military justice system find their origin in the extraordinary period of intellectual ferment and reform that commenced in 1995 and continued into the current millennium. (24)

   In this article, I first tell the story of how the Somalia Affair sparked military justice reform before distilling broader lessons from the government and CF's reforms. Part 2 of the article breaks down the post-Somalia military justice reforms into three phases. In Phase I, which lasted from 1993-95, the CF adopted an "internal" approach to reform, attempting to manage the fallout from the Somalia Affair on its own. The insufficiency of the internal approach led the government to implement Phase II, which lasted from 1995-98 and was marked by an "external-approach to reform. The government commissioned a range of outside experts to analyze the failures of the CF and suggest reforms. I break these external reports down into two types--the comprehensive and the targeted--and suggest that the interplay between and complementarity of these two types of investigations ultimately drove the success of the reform period. During the course of Phase III, which commenced in 1998 and has lasted to the present day, the government and the CF implemented the reforms generated during Phase II, established robust monitoring mechanisms, and ultimately inculcated a culture of continual reform.

   Part 3 of the article distils broader lessons from the government and CF's handling of the Somalia Affair. First, I argue that Ottawa's response to the Somalia Affair can serve as a template for other countries that have to deal with war crimes or serious disciplinary offences. Next, I turn to contemporary Canada and argue that modern Canadian policy-makers and military lawyers must live out a reformist mindset if they are to ensure the continued health of the military justice system.

2. RESPONDING TO SOMALIA

   1. PHASE I: THE INSUFFICIENCIES...