has been risking complicity in breaches of the Geneva Conventions.
We have also been taking chances with the 1984 Torture Convention, 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 now know about practices at U.S. military detention centres at Abu Ghraib, Guantanamo Bay Naval Base in Cuba, Bagram Air Base in Afghanistan and elsewhere, the possibility that our prisoners will be tortured in U.S. custody is real. It does not suffice, as the Department of National Defence has argued, that Canada has received assurances from the United States that any detainees received by it will be treated properly. Torturing governments always deny and seek to conceal their actions; what matters is their track record.
Transferring prisoners to Afghan instead of U.S. custody cannot relieve Canada of responsibility, since Kabul may be expected to comply with a U.S. request for a further, onward transfer. Yet this is precisely what Canada has been doing since December 2005, when Chief of the Defence Staff Rick Hillier signed a detainee-transfer “arrangement” with the defence minister of Afghanistan. Under it, Afghanistan promised to treat humanely any individuals received and to allow representatives of the International Committee of the Red Cross (ICRC) to visit the detainee. Yet the Afghan government is hardly a beacon of humanitarian law: according to the UN-funded Afghanistan Research and Evaluation Unit, nineteen of Afghanistan’s newly elected members of Parliament are suspected war criminals. Moreover, the Afghan government is very susceptible to being influenced by the United States, which still has nineteen thousand troops in the country, eight thousand of them operating independently from the NATO–led international security assistance force.
Indeed, the Canada-Afghanistan arrangement explicitly envisages that some prisoners will be transferred onward to the custody of a third country, but it does nothing to guard against that country being one where prisoners are at risk of being tortured or otherwise abused. Amir Attaran of the University of Ottawa has accurately described the document as a “detainee laundering agreement,” for it enables Canada to move its prisoners indirectly into U.S. custody without the scrutiny involved in direct transfers.
The limitations of the Canada-Afghanistan arrangement become even more evident when compared with a Memorandum of Understanding concluded several months earlier between the Netherlands and Afghanistan. That memorandum provides Dutch officials with a right of access to any of their transferred prisoners; the Canadian arrangement does not. The Dutch memorandum provides for a right of access for “relevant human rights institutions within the UN system”; the Canadian arrangement does not. Instead, the Canadian arrangement relies solely on the ICRC, an organization that normally does not tell other countries about any evidence of abuses it discovers. In September 2006, Canadian foreign affairs minister Peter MacKay acknowledged this reality:
In all of its activities, in particular visits to prisoners, the ICRC’s relations with its contacts and detaining authorities are based on a policy of discretion… In cases where the ICRC visits detainees we have transferred to Afghanistan, we are confident the ICRC would advise the Afghan authorities, as the current detaining authorities, if the ICRC had any concerns about a particular detainee or the conditions of detention.
MacKay was careful not to suggest that the ICRC would inform the Canadian authorities.
Amazingly, Canada did not even secure the right—as the Dutch did—to be notified by the Afghan authorities before they send one of our transferred prisoners onwards to a third country.
In February 2007, the Globe and Mail reported allegations that at least one Afghan was beaten while in the custody of Canadian soldiers. The allegations are serious—and must be subject to a rigorous criminal investigation—but just as serious was the revelation that the Canadian Forces cannot account for the location or condition of the forty prisoners they captured prior to April 2006 or the several dozen taken since then. All we know is what General Hillier has said: “We hand them over to either the Afghan national police or the Afghan national army. We’re trying to help build a country; you’ve got to help build their rule of law, a justice system, which includes a prison system.”
But surely the fact that Afghanistan is a broken-down country is a reason for caution rather than blind trust. Afghanistan’s military, police, judicial and correctional institutions are undergoing a far-reaching transformation that is far from complete. Corruption and human rights violations remain commonplace. By relying solely on the ICRC to oversee transferred prisoners, and by failing to secure a right of notification as to any change in their location or condition, the Canadian government is washing its hands of them in a situation where their human rights—and our obligations—are clearly at risk.
We also need to worry about our soldiers, who have been placed at legal risk as a result of the transfer arrangement. The Torture Convention requires countries to “ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” The convention thus affirms a basic principle of criminal law: those who aid or abet a crime are criminals themselves. Complicity in torture is subject to the universal jurisdiction of national courts, making it possible for a Canadian soldier to be tried in the courts of any other country for transferring a prisoner into a situation where there is an apparent risk of such abuse. Indeed, in some circumstances, complicity in torture could even be considered a war crime subject to the Rome Statute of the International Criminal Court. Canada ratified the Rome Statute in 2000; as a result, any Canadian solider who aids, abets or otherwise assists in torture could end up being prosecuted in The Hague.
The situation is clearly unacceptable. So, where do we go from here? The Canada-Afghanistan arrangement should be renegotiated to include all the protections provided in the Dutch memorandum. As the Dutch are demonstrating in southern Afghanistan today, these protections have no detrimental operational consequences. Nor is there any reason to believe that the Afghan authorities would object to a renegotiation, since they have already agreed to the terms of the Dutch memorandum. Nor, indeed, would these protections interfere with efforts to improve the Afghan police, prison and judicial systems; if anything, they are likely to enhance them. And there is one more protection that we should insist on including: a right of veto over any proposed transfer to a third country. For without a right of veto, the right to be notified would be deprived of any real effect.
In November 2005, then defence minister Bill Graham gave a lecture to one of my classes at the University of British Columbia. The former professor of international law told the students that Canada had no choice but to transfer prisoners to U.S. or Afghan custody, because we lacked the facilities to hold them and building such facilities would be impracticable. One of the students challenged this assertion, arguing that expediency is no excuse for violating fundamental human rights. Indeed, if compliance required building our own detention facilities, so be it; as the eighth-largest economy in the world, this is something we could afford.
Finally, there is the additional issue of how our actions are perceived in Afghanistan, not just by the local authorities, but by ordinary people. In that increasingly hostile region, those who risk complicity in torture risk losing the most important battle—the battle for hearts and minds.
EXTRAORDI NARY RENDITION
Just six days after the September 2001 terrorist attacks on New York and Washington, George W. Bush signed a “presidential finding” that provided the Central Intelligence Agency (CIA) with broad authorization to disrupt terrorist activity, including by killing, capturing or detaining Al-Qaeda members anywhere in the world. On this basis, the CIA began secretly transferring suspects, either to the intelligence services of countries notorious for torture or to clandestine prisons located outside the United States and, therefore, beyond the reach—or at least the scrutiny—of U.S. courts.
This
