[Editor's note: This article is drawn from testimony given to the House of Commons Standing Committee on Defence yesterday, Dec. 11. Byers is a professor of international law at UBC with a long-standing focus on prohibition of torture. He served on the legal team that represented Amnesty International and three other human rights groups in the Pinochet Case.]
I don't know how many of you have met torture victims. I'm always struck by the deadness in their eyes.
Torture -- the deliberate infliction of severe pain -- is a despicable and inhumane practice.
That's why torture is absolutely prohibited by a wide range of treaties. That's why every civilized country has committed itself to preventing and punishing torture wherever it's found.
That's also why, when we negotiate a detainee transfer arrangement, we should do what we can to protect against the possibility of detainees being tortured after they leave our hands. Unfortunately, the Canada-Afghanistan arrangement doesn't even include some patently obvious and reasonable protections.
Emulate the Dutch
To begin with, the arrangement doesn't provide Canadian officials with a right of access to our transferred detainees. Compare this with the "Memorandum of Understanding" concluded between The Netherlands and Afghanistan prior to the negotiation of the Canada-Afghanistan arrangement and used (according to former defence minister Bill Graham) as a model for our arrangement. The Dutch memorandum provides their officials with a right of access to any of their transferred detainees.
The Dutch memorandum also provides for a right of access for "relevant human rights institutions within the UN system," a category that includes the UN Special Rapporteur on Torture. The Canadian arrangement fails to provide this.
Instead, the Canadian arrangement relies solely on the International Committee of the Red Cross, an organization that normally does not inform other countries when any particular country fails to uphold the rights of detainees.
On Sept. 18, 2006, in a written response to a question posed by MP Dawn Black, Foreign Affairs Minister Peter McKay acknowledged this fact:
"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."
Note that Mr. McKay is careful not to suggest that the ICRC would inform the Canadian authorities. For on the basis of past practice, they likely would not.
Geneva Act obligations
Afghanistan is a poor country. Its military, police, judicial and correctional institutions are undergoing a deep-rooted transformation that is far from complete. Corruption and human rights violations remain commonplace. By relying on the ICRC to oversee the detainees and to liaise solely with the Afghan authorities in the event of violations, Canada is washing its hands of the detainees in a situation where their rights are hardly assured.
The washing of hands extends to the possibility that Afghanistan might transfer some of the detainees onward to third countries, including countries with a demonstrated and recent record of torture. For the Canada-Afghanistan arrangement does not even provide Canada with a right to be notified in advance of any such transfers. This, again, stands in contrast with the Dutch memorandum, which does provide a right of notification.
These omissions pose problems for Canada's obligations under the 1949 Geneva Conventions. Common Article 3, which is found in all four of the Geneva Conventions, applies to non-international conflicts of the kind that now exists in Afghanistan. It protects "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms," and therefore any detainees. It specifies that, with respect to such persons, a number of acts "are and shall remain absolutely prohibited at any time and in any place whatsoever." Among the prohibited acts are "cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment."
The absolute, territorially-unlimited and time-unlimited character of Common Article 3 imposes obligations on Canada that would be violated if a detainee transferred by us was tortured or otherwise mistreated in the custody of either Afghanistan or a third country.
Further torture agreements
The Canadian arrangement also fails to provide adequate protections against violations of the 1984 Torture Convention, Article 3 of which specifies 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."
The UN Committee on Torture has indicated that the term "another state" in Article 3 encompasses any additional country to which a prisoner might subsequently be transferred. For this reason, Canada's obligation extends to ensuring that any detainee is protected against torture, not just when transferred to the custody of Afghanistan, but also if transferred onwards into the custody of a third country.
The Canadian arrangement also fails to guard against possible violations of the 1998 Rome Statute of the International Criminal Court, Article 8 of which identifies those acts that, under international law, constitute war crimes. These include serious violations of Common Article 3, including "violation to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."
Article 25 of the Rome Statute identifies the circumstances in which "a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court." It specifies that these circumstances include aiding, abetting or otherwise assisting such a crime, "including by providing the means for its commission."
Canada ratified the Rome Statute in July 2000. Consequently, any torture, cruel treatment, or other outrages upon personal dignity that are aided, abetted or otherwise assisted by Canadian soldiers in Afghanistan are subject to the jurisdiction of the International Criminal Court.
The Canadian arrangement, by allowing the onward transfer of detainees into the custody of a third country where they might be tortured or otherwise abused, fails to guard against the possibility that Canadian soldiers might transfer detainees to Afghan custody knowing -- or suspecting -- that this would in fact happen. It thus fails to protect against the possibility that Canadian soldiers -- including commanders who order transfers -- might one day face charges of war crimes in The Hague.
So, where do we go from here?
The Canada-Afghanistan arrangement should be renegotiated to include all the protections provided in the Netherlands-Afghanistan 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.
Finally, there is one additional, entirely reasonable protection that we should insert in the renegotiated arrangement, namely a right of veto over any proposed transfer to a third country. Clearly, without such a right of veto, the right to be notified would be deprived of much of its practical effect.
The current Canada-Afghanistan arrangement was drafted in a hurry. Canadian troops were already on their way to Kandahar. The then defence minister was distracted by an election campaign. We all understand how easily mistakes can be made in situations such as these.
Today, having had the opportunity to study the situation carefully, it's time to renegotiate the arrangement. We can do better. Indeed, we must.
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