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Why Canada can't wash its hands of Afghan detainees
Why Canada can't wash its hands of Afghan detainees
Michael Byers
March 22, 2006
For four years, Canadian soldiers in Afghanistan have violated international law by transferring suspected Taliban and Al Qaeda fighters into the custody of the United States. In one of his final acts as defence minister, Bill Graham concluded an agreement with the Afghan government that will see future detainees transferred into its custody instead. The agreement is a step in the right direction, but there's still no certainty that Canada's legal obligations will be fulfilled. Canadian soldiers captured and transferred the first detainees in January 2002. The transfers occurred shortly after U.S. Defence Secretary Donald Rumsfeld publicly 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 to a country that was in clear violation of the Third Geneva Convention, violated the convention itself. The British and German governments showed greater concern for the law. As soon as Rumsfeld made his announcement, they ceased transferring detainees to the U.S. and began handing them to the nascent government of Hamid Karzai. At the time, Canada's actions did not violate the 1984 Torture Convention, since there was no reason to believe that U.S. forces would mistreat the detainees. Today, we know better. Photographs, news reports, and official investigations into abuses at Abu Ghraib Prison, Bagram Air Base and Guantanamo Bay indicate that, at best, the United States has failed to educate its soldiers about human rights and the laws of war. At worst, the revelations indicate a policy of law-breaking that extends all the way up the chain of command. Then there is the American gulag. According to the Washington Post, the CIA has maintained covert prisons in a number of foreign countries: "Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long." Worse yet, "CIA interrogators in the overseas sites are permitted to use the CIA's approved `enhanced interrogation techniques,' some of which are prohibited by the UN convention (on torture) and by U.S. military law." It is in this context that Canadian Brig.-Gen. Mike Ward announced, in September 2005, that Canadian special forces had again transferred detainees 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 UN-recognized government in Kabul. But Canada is still bound by a provision —"Common Article 3" — that is found in all four of the Geneva Conventions and applies to armed conflicts which are "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." Canada, by transferring detainees to a foreign military that has recently committed violations of the latter kind, risks becoming complicit in yet another breach of the Geneva rules. We're also taking a risk under the 1984 UN Torture Convention. Article 3 of that convention stipulates 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." Last autumn, the UN Special Rapporteur on Torture singled out Canada and five other countries for violating this convention by deporting terrorist suspects to countries, such as Egypt and Syria, where they may have been tortured. Given what we now know about practices at Abu Ghraib, Bagram, Guantanamo Bay and elsewhere, the possibility that our detainees will be tortured in U.S. custody is also very real — as real, perhaps, as if we sent them to Syria. Last December, Graham — who was an international law professor before entering politics — successfully pushed for a transfer-of-detainee agreement with Afghanistan. Under the agreement, Afghanistan commits to the humane treatment of any individuals transferred to it by Canada, and to allow representatives of the International Committee of the Red Cross to visit them. Yet under international law, Canada's obligations do not end when a detainee leaves our soldiers' hands. The UN Committee on Torture has stated that the term "another state" in Article 3 of the Torture Convention encompasses any additional country to which a prisoner might subsequently be transferred. For this reason, transferring detainees to the Afghan authorities does not relieve Canada of responsibility should the Afghans accede to an American request for an onward transfer. In short, if any detainee who was captured by Canada ends up being tortured, Canada will be complicit — regardless of whether the detainee arrived in the hands of his torturers directly or indirectly. The Canadian government insists that there is no reason to believe that Afghanistan will break its promises. Perhaps not, but the Afghan government is hardly a model of perfect compliance with international human rights. According to the UN-funded Afghanistan Research and Evaluation Unit, 19 of Afghanistan's newly elected MPs are suspected war criminals. And earlier this month, Assadullah Sarwari, who headed the Afghan intelligence agency during the communist regime of the late 1970s, was denied legal representation and convicted and sentenced to death in a one-day trial. The Afghan government is also susceptible to being influenced by the United States, which still has 19,000 troops in the country. Karzai is democratically elected, but some strings remain attached. In these circumstances, Canada should build its own detention facility in Kandahar, perhaps together with the Dutch, who delayed their deployment to Afghanistan because of concerns about the transferring of detainees. American and Afghan officials would still be allowed to conduct interrogations at this facility, but only in the presence of a Canadian soldier or police officer. The Department of National Defence argues that such a facility would cost too much. But surely, as the eighth largest economy in the world, upholding fundamental human rights is something we can afford.
 
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