laws of war are often referred to as “international humanitarian law,” since these rules are designed to prevent unnecessary suffering during armed conflicts. They are paralleled, in times of peace, by international human rights. And they include the prohibition on the use of chemical or biological weapons, the prohibition on the intentional targeting of civilians and the prohibition on torture and cruel or inhuman treatment or punishment.
For decades, individual Canadians have been at the forefront of efforts to protect human beings during times of both peace and war. In 1948, McGill law professor John Humphrey helped draft the Universal Declaration of Human Rights. In 1956, then foreign minister Lester B. Pearson pioneered the concept of United Nations peacekeeping—and won the Nobel Peace Prize in 1957. In 1994, then lieutenant general Roméo Dallaire served as force commander of the UN peacekeeping mission in Rwanda and strove valiantly to persuade the member states of the UN Security Council to enforce the prohibition on genocide. In the late 1990s, then foreign minister Lloyd Axworthy threw his weight first behind a new multilateral treaty banning anti-personnel landmines and then behind the creation of the permanent International Criminal Court. Today another Canadian, Philippe Kirsch, serves as the first president of that judicial body.
Another Canadian, Louise Arbour, is the UN high commissioner for human rights. She has distinguished herself in that office through a willingness to speak truth to power and, in December 2005, she issued the following public warning: “The absolute ban on torture, a cornerstone of the international human rights edifice, is under attack. The principle we once believed to be unassailable— the inherent right to physical integrity and dignity of the person— is becoming a casualty of the so-called war on terror.”
For decades, Canadian governments took human rights and international humanitarian law seriously. In 1976, Canada was one of the first countries to ratify the Optional Protocol to the International Covenant on Civil and Political Rights. In 1977, Sandra Lovelace, a Maliseet woman from New Brunswick, used the protocol to file a complaint with the UN Human Rights Committee. She alleged that the Canadian government had violated international law when it stripped her of her status and rights under the Indian Act after she married a non-Native man. The Human Rights Committee upheld her complaint, and the Canadian government responded by doing the right thing: amending the Indian Act to make it consistent with international standards. Today, Sandra Lovelace Nicholas sits as a senator in the Canadian Parliament.
In 1993, members of the Canadian Airborne Regiment tortured and killed a teenager during a peacekeeping mission in Somalia. Their actions were violations of international humanitarian law and the Canadian government responded accordingly. Several paratroopers were court martialled for their role in the atrocity; one served five years in jail. And, in a move that signalled just how serious the offences were considered, the entire Canadian Airborne Regiment was disbanded.
Canada also took the protection of civilians seriously when it came to the selection of military targets. During the 1999 Kosovo War, Canadian CF-18 fighter pilots, who train with their American counterparts, were never assigned as wingmen to them. Canada has ratified the First Addition Protocol to the 1949 Geneva Conventions, whereas the United States has not, and for this reason our pilots are subject to more stringent requirements concerning the protection of civilians. Accordingly, in Kosovo they could not be counted on to respond to some threats, such as anti-aircraft fire coming from a school or hospital, in the same way that an American pilot would. Where the American pilot would attack the source of the anti-aircraft fire, the Canadian pilot would—quite properly—turn his plane on its tail and leave.
Unfortunately, there was a discernible change of approach on the part of the Canadian government to these and other rules after September 11, 2001.
In 2002, Canadian soldiers in Afghanistan were ordered by their American commander to lay anti-personnel landmines around their camp. When the Canadians refused—citing our obligations under the 1997 Ottawa Landmines Convention—American soldiers, whose government has not ratified the convention and who are thus not subject to the same restrictions, laid the mines for them. More recently, Canadian forces in Kabul and Kandahar have benefited from the protection provided by anti-personnel landmines laid by Soviet forces during the 1980s. The Canadian government argues that the Landmines Convention has not been violated, since the prohibition on the “use” of anti-personnel mines does not extend to reliance on mines laid by others. As I explain in Chapter 5, this strained interpretation hardly reinforces our claim to be the leading proponent of the total elimination of these viciously indiscriminate devices, which have killed more than one million people over the past three decades.
Yet this compromise on landmines is less serious than the manner in which we have shirked our responsibilities concerning suspected Taliban or Al-Qaeda fighters captured by Canadian soldiers in Afghanistan. For here we have been complicit in the erosion of the prohibition on torture, the very erosion that Louise Arbour condemned.
TRANSFERRING TO TORTURE
In 1998 and 1999, I met dozens of torture victims as I worked with a coalition of London-based human rights groups trying to have former Chilean president Augusto Pinochet extradited from Britain to Spain to face criminal charges. The next year, when I arrived at Duke University, my new secretary was a former special-forces soldier who had been tortured by a Colombian drug cartel; fifteen years later, the scars from cigarette burns were still visible on his arms. More recently, I’ve had the honour of meeting Maher Arar, a Canadian who was wrongfully arrested in the United States in 2002 and forcibly handed over to Syria, where he was tortured while imprisoned for a year without charge.
On each occasion, the first thing that struck me about these torture victims was the deadness in their eyes. Torture—the deliberate infliction of severe pain—is a despicable and inhumane practice. That’s why it is absolutely prohibited by a wide range of treaties. That’s why every civilized country has committed itself to preventing torture and punishing it wherever it’s found. That’s also why, whenever we transfer individuals into the custody of another country, we should do what we can to protect against the possibility of their being tortured after they leave our hands.
Canadian soldiers in Afghanistan took their first prisoners in January 2002 and promptly transferred them to U.S. custody. They handed the men over despite the fact that then U.S. defence secretary Donald Rumsfeld had 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,” a legal term referring to a category of prisoners entitled to special treatment. Canada, by choosing to hand over the prisoners in these circumstances, also violated the Third Geneva Convention. But the transfers did not undermine the prohibition on torture, since there was, at that time, no reason to believe that U.S. forces would mistreat the men.
Today we know better. The photographs from Abu Ghraib were only the first pieces of a growing body of evidence indicating that, at best, the U.S. military has failed to educate its soldiers about international humanitarian law. At worst, the revelations— including a series of leaked legal memoranda that seek to justify torture—suggest a policy of law breaking that extended all the way up the chain of command, to Rumsfeld and perhaps the commander-in-chief himself.
It’s in this context that we must assess the announcement, in September 2005, that Canadian soldiers in Afghanistan had again transferred prisoners to U.S. custody. The full scope of the Third Geneva Convention 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 a provision, Common Article 3, that applies to armed conflicts that are “not of an international character.” Common Article 3 specifies that a number of acts “are and shall remain absolutely prohibited at any time and in any place whatsoever,” including “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Canada, by transferring prisoners to a foreign military
