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Afghanistan: We cannot risk complicity in torture by Michael Byers
Description: Canadians think of themselves as supporters rather than violators of international human rights. But our troops in Afghanistan could be breaching Canada's obligations under the 1949 Geneva Conventions and the 1984 Convention against Torture...
Date: 26 September 2005
Source: The Globe and Mail, A19
Canadians think of themselves as supporters rather than violators of international human rights. But our troops in Afghanistan could be breaching Canada's obligations under the 1949 Geneva Conventions and the 1984 Convention against Torture.

In January, 2002, Canadian soldiers captured suspected Taliban and al-Qaeda fighters in Afghanistan and handed them over to the U.S. military. The transfers took place despite the fact that U.S. Defence Secretary Donald Rumsfeld had refused to convene the "status determination tribunals" required by the Third Geneva Convention to investigate whether individuals captured on the battlefield are prisoners of war.

Canada, by choosing to hand the detainees over, also violated the Third Geneva Convention. The transfers did not, however, violate Canada's obligations under the torture convention, since there was no reason to believe that U.S. forces would abuse the detainees.

Today, we know better. Photographs, news reports and official investigations into abuses at Abu Ghraib Prison in Iraq, Bagram Air Base in Afghanistan and Guantanamo Naval Base in Cuba indicate that, at best, the U.S. military has failed to educate its soldiers about human rights and the laws of war. At worst, the revelations suggest a policy of law-breaking that extends all the way up the chain of command. Leaked legal opinions that seek to justify torture, the denial of access to legal counsel, and the removal of detainees from occupied Iraq provide additional cause for concern. So does the practice (to which Maher Arar fell victim) of subcontracting interrogations to the notorious intelligence services of Egypt, Jordan and Syria.

It is in this context that we must assess last week's announcement that Canadian soldiers in Afghanistan have again acquired detainees and again transferred them to U.S. custody.

The full scope of the Geneva Conventions no longer applies to Canada's operations in Afghanistan, because our soldiers are there with the full consent of the sovereign government in Kabul. But Canada is still bound by Common Article 3 that applies to armed conflicts "not of an international character occurring in the territory of one of the High Contracting Parties." Afghanistan is one such party, having ratified the Conventions in 1956.

Common Article 3 stipulates that "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms," are absolutely protected from "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." It also proscribes "outrages upon personal dignity, in particular, humiliating and degrading treatment." Canada, by transferring detainees to a foreign military that has recently committed violations of precisely this kind, risks complicity in breaches of the Geneva Conventions.

We're also taking chances with the Torture Convention, Article 3 of which decrees that "no state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture." Given what we know about practices at Abu Ghraib and elsewhere, the possibility that our detainees will be tortured in U.S. custody is very real.

The UN Committee on Torture has stated that "another state" encompasses any additional country to which a prisoner might subsequently be transferred. For this reason, transferring detainees to the Afghan authorities will not relieve Canada of responsibility, since Kabul may be expected to comply with a U.S. request for custody.

Transferring our detainees to U.S. custody might even violate the Canadian Charter of Rights and Freedoms, which safeguards "security of the person" and affirms that "everyone has the right not to be subjected to any cruel and unusual treatment or punishment." Since the Supreme Court has held that extraditing an accused murderer to face capital punishment would violate the Charter, these provisions would seem to apply to the any transfers of detainees from Canadian custody in Afghanistan, especially if the death penalty might be applied, but also if torture were possible.

Canada has received assurances that the detainees will be treated properly. This is insufficient: Torturing governments almost always seek to conceal their actions. What matters is the recent track record of the United States.

Defence Minister Bill Graham says that Canada must transfer the detainees because we lack the facilities to hold them. The Canadian government should stand up for international human rights and the laws of war. If doing so requires building our own detention facilities or even pulling out of Afghanistan, so be it. There's no excuse for playing fast and loose with these fundamental rules.

Michael Byers, who holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia, is the author of War Law: Understanding International Law and Armed Conflict.

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